# Official Journal C 167/2009

| | ISSN 1725-2423
  doi:10.3000/17252423.C_2009.167.eng |
| --- | --- |
| Official Journal
  of the European Union | C 167 |
| | |
| English edition | Information and Notices | Volume 5218 July 2009 |

ISSN 1725-2423

doi:10.3000/17252423.C_2009.167.eng

Official Journal

of the European Union

C 167

English edition

Information and Notices

Volume 5218 July 2009

---

| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES |
| | Court of Justice |
| 2009/C 167/01 | Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 153, 4.7.2009 | 1 |

Notice No

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Court of Justice

2009/C 167/01

Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 153, 4.7.2009

Official Journal of the European Union

1

| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2009/C 167/02 | Case C-214/08 P: Judgment of the Court (Third Chamber) of 20 May 2009 — Philippe Guigard v Commission of the European Communities (Appeal — Action for damages — Conditions for the Community to incur contractual and non-contractual liability — Articles 313(2)(k), 314 and 317(a) of the Fourth Lomé Convention, as revised by the Mauritius Agreement) | 2 |
| 2009/C 167/03 | Case C-535/08: Order of the Court (Sixth Chamber) of 26 March 2009 (Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Sicilia — Italy) — Maria Catena Rita Pignataro v Ufficio Centrale Circoscrizionale c/o Tribunale di Catania, Ufficio Centrale Regionale per l'elezione del Presidente dell'Assemblea Regionale Siciliana c/o Corte d'Appello di Palermo, Assemblea Regionale Siciliana, Presidenza del Consiglio dei Ministri, Ministero dell’Interno, Ministero dell’Economia, Andrea Vitale, Antonino Di Guardo, Fabio M. Mancuso (Eligibility requirements for regional elections — Requirement of residence in the region concerned — Articles 17 EC and 18 EC — Fundamental rights — No link with Community law — Court clearly lacking jurisdiction) | 2 |
| 2009/C 167/04 | Case C-148/09 P: Appeal brought on 10 February 2009 by the Kingdom of Belgium against the judgment of the Court of First Instance (Second Chamber) delivered on 24 April 2009 (fax: 22 April 2009) in Case T-388/03 Deutsche Post AG and DHL International v Commission of the European Communities | 3 |
| 2009/C 167/05 | Case C-151/09: Reference for a preliminary ruling from the Juzgado de lo Social Único de Algeciras (Spain) lodged on 28 April 2009 — Federación de Servicios Públicos de la UGT (UGT-FSP) v Ayuntamiento de la Línea de la Concepción, María del Rosario Vecino Uribe and Others, and the Ministerio Fiscal | 3 |
| 2009/C 167/06 | Case C-152/09: Reference for a preliminary ruling from the Verwaltungsgericht Schwerin (Germany) lodged on 4 May 2009 — André Grootes v Amt für Landwirtschaft Parchim | 4 |
| 2009/C 167/07 | Case C-155/09: Action brought on 4 May 2009 — Commission of the European Communities v Hellenic Republic | 4 |
| 2009/C 167/08 | Case C-168/09: Reference for a preliminary ruling from the Tribunale di Milano (Italy) lodged on 12 May 2009 — Flos SpA v Semeraro Casa & Famiglia SpA | 5 |
| 2009/C 167/09 | Case C-172/09: Action brought on 13 May 2009 — Commission of the European Communities v Republic of Poland | 5 |
| 2009/C 167/10 | Case C-174/09: Action brought on 14 May 2009 — Commission of the European Communities v Republic of Poland | 6 |
| 2009/C 167/11 | Case C-183/09: Action brought on 26 May 2009 — Commission of the European Communities v Hellenic Republic | 6 |
| 2009/C 167/12 | Case C-184/09: Action brought on 26 May 2009 — Commission of the European Communities v Kingdom of Spain | 6 |
| 2009/C 167/13 | Case C-187/09: Action brought on 26 May 2009 — Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland | 7 |
| 2009/C 167/14 | Case C-202/09: Action brought on 5 May 2009 — Commission of the European Communities v Ireland | 7 |
| 2009/C 167/15 | Case C-312/08: Order of the President of the Fifth Chamber of the Court of 2 April 2009 — Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland | 7 |
| 2009/C 167/16 | Case C-374/08: Order of the President of the Court of 8 April 2009 — Commission of the European Communities v Republic of Hungary | 8 |
| 2009/C 167/17 | Case C-418/08: Order of the President of the Court of 27 March 2009 — Commission of the European Communities v Ireland | 8 |
| | Court of First Instance |
| 2009/C 167/18 | Case T-152/06: Judgment of the Court of First Instance of 9 June 2009 — NDSHT v Commission (Action for annulment — State aid — Regulation (EC) No 659/1999 — Complaint by a competitor — Letters from the Commission to a complainant — Existing aid — Non-actionable measure — Inadmissibility) | 9 |
| 2009/C 167/19 | Case T-179/06: Judgment of the Court of First Instance of 3 June 2009 — Commission v Burie Onderzoek en advies (Arbitration clause — Contracts concluded under the RACE II programme and a specific programme in the field of telematic applications of common interest — Repayment of part of the advances paid — Jurisdiction of the Court of First Instance — Partial inadmissibility — Principle of sound administration — Counterclaim) | 9 |
| 2009/C 167/20 | Case T-189/07: Judgment of the Court of First Instance of 3 June 2009 — Frosch Touristik v OHIM — DSR touristik (FLUGBÖRSE) (Community trade mark — Invalidity proceedings — Community word mark FLUGBÖRSE — Material date for the examination of an absolute ground for invalidity — Article 51(1)(a) of Regulation (EC) No 40/94 (now Article 52(1)(a) of Regulation (EC) No 207/2009) | 10 |
| 2009/C 167/21 | Case T-22/07: Order of the Court of First Instance of 14 May 2009 — US Steel Košice v Commission (Action for annulment — State aid — Act of Accession — Condition imposed on the beneficiary to limit its sales of flat products in the enlarged EU — Commission letter interpreting the condition as applying to the Bulgarian and Romanian markets from the date of their accession — Act not amenable to review — Inadmissibility) | 10 |
| 2009/C 167/22 | Case T-372/08: Order of the Court of First Instance of 20 April 2009 — Murnauer Markenvertrieb v OHIM — Fitne Gesundheit und Wellness (Notfall Bonbons) (Community trade mark — Application for a declaration of invalidity — Withdrawal of the application for a declaration of invalidity — No need to adjudicate) | 11 |
| 2009/C 167/23 | Case T-383/08: Order of the Court of First Instance of 23 April 2009 — New Europe v Commission of the European Communities (Formal inadmissibility of the application — Name of the applicant — Legal person governed by private law — Authority — Manifest inadmissibility — Intervention) | 11 |
| 2009/C 167/24 | Case T-462/08: Order of the Court of First Instance of 21 April 2009 — Winzer Pharma v OHIM — Alcon (OFTAL CUSI) (Community trade mark — Annulment of the decision of the Board of Appeal — No need to adjudicate) | 11 |
| 2009/C 167/25 | Case T-159/09 R: Order of the Court of First Instance of 25 May 2009 — Biofrescos v Commission (Application for interim measures — Application for suspension of operation — Submission of the application — Inadmissibility — Financial loss — Lack of urgency) | 12 |
| 2009/C 167/26 | Case T-127/09: Action brought on 15 April 2009 — Abdulrahim v Council and Commission | 12 |
| 2009/C 167/27 | Case T-160/09: Action brought on 20 April 2009 — Winzer Pharma v OHIM | 13 |
| 2009/C 167/28 | Case T-162/09: Action brought on 24 April 2009 — Würth and Fasteners (Shenyang) v Council | 13 |
| 2009/C 167/29 | Case T-167/09 P: Appeal brought on 24 April 2009 by the Commission of the European Communities against the judgment of the Civil Service Tribunal delivered on 17 February 2009 in Case F-38/08 Liotti v Commission | 14 |
| 2009/C 167/30 | Case T-173/09: Action brought on 5 May 2009 — Z v Commission | 15 |
| 2009/C 167/31 | Case T-175/09 P: Appeal brought on 27 April 2009 by the Council of the European Union against the judgment of the Civil Service Tribunal delivered on 17 February 2009 in Case F-51/08, Stols v Council | 15 |
| 2009/C 167/32 | Case T-179/09: Action brought on 28 April 2009 — Dunamenti Erőmű v Commission | 16 |
| 2009/C 167/33 | Case T-189/09: Action brought on 12 May 2009 — Poloplast v OHIM — Polypipe Building Products (P) | 17 |
| 2009/C 167/34 | Case T-190/09: Action brought on 13 May 2009 — Longevity Health Products v OHIM — Performing Science (5 HTP) | 17 |
| 2009/C 167/35 | Case T-192/09: Action brought on 14 May 2009 — Amen Corner v OHIM — Comercio Electrónico Ojal (SEVE TROPHY) | 18 |
| 2009/C 167/36 | Case T-194/09: Action brought on 13 May 2009 — Lan Airlines v OHIM — Air Nostrum (LÍNEAS AÉREAS DEL MEDITERRÁNEO LAM) | 18 |
| 2009/C 167/37 | Case T-196/09: Action brought on 25 May 2009 — TerreStar Europe v Commission | 19 |
| 2009/C 167/38 | Case T-198/09: Action brought on 20 May 2009 — UOP v Commission | 19 |
| 2009/C 167/39 | Case T-200/09: Action brought on 25 May 2009 — Abertis Infraestructuras v Commission | 20 |
| 2009/C 167/40 | Case T-203/09: Action brought on 25 May 2009 — Olymp Bezner v OHIM — Bellido (Olymp) | 20 |
| 2009/C 167/41 | Case T-204/09: Action brought on 25 May 2009 — Olymp Bezner v OHIM — Bellido (OLYMP) | 21 |
| 2009/C 167/42 | Case T-207/09: Action brought on 25 May 2009 — El Jirari Bouzekri v OHIM — Nike International (NC NICKOL) | 21 |
| 2009/C 167/43 | Case T-208/09: Action brought on 26 May 2009 — Mars v OHIM — Marc (MARC Marlon Abela Restaurant Corporation) | 22 |
| 2009/C 167/44 | Case T-210/09: Action brought on 26 May 2009 — Formenti Seleco v Commission | 22 |
| 2009/C 167/45 | Case T-216/09: Action brought on 27 May 2009 — Astrim and Elyo Italia v Commission | 23 |
| | European Union Civil Service Tribunal |
| 2009/C 167/46 | Case F-27/09: Action brought on 27 March 2009 — Ingo Hanschmann v Europol | 25 |
| 2009/C 167/47 | Case F-28/09: Action brought on 27 March 2009 — Kipp v Europol | 25 |
| 2009/C 167/48 | Case F-34/09: Action brought on 2 April 2009 — Sluiter v Europol | 25 |
| 2009/C 167/49 | Case F-35/09: Action brought on 2 April 2009 — Visser-Fornt Raya v Europol | 26 |
| 2009/C 167/50 | Case F-36/09: Action brought on 2 April 2009 — Armitage-Wilson v Europol | 26 |
| 2009/C 167/51 | Case F-37/09: Action brought on 2 April 2009 — Doyle v Europol | 26 |
| 2009/C 167/52 | Case F-38/09: Action brought on 2 April 2009 — Martin v Europol | 26 |
| 2009/C 167/53 | Case F-39/09: Action brought on 2 April 2009 — Goddijn v Europol | 27 |
| 2009/C 167/54 | Case F-49/09: Action brought on 12 May 2009 — Wendler v Commission of the European Communities | 27 |
| 2009/C 167/55 | Case F-50/09: Action brought on 12 May 2009 — Missir Mamachi di Lusignano v Commission | 27 |
| 2009/C 167/56 | Case F-54/09: Action brought on 20 May 2009 — Lebedef v Commission | 28 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2009/C 167/02

Case C-214/08 P: Judgment of the Court (Third Chamber) of 20 May 2009 — Philippe Guigard v Commission of the European Communities (Appeal — Action for damages — Conditions for the Community to incur contractual and non-contractual liability — Articles 313(2)(k), 314 and 317(a) of the Fourth Lomé Convention, as revised by the Mauritius Agreement)

2

2009/C 167/03

Case C-535/08: Order of the Court (Sixth Chamber) of 26 March 2009 (Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Sicilia — Italy) — Maria Catena Rita Pignataro v Ufficio Centrale Circoscrizionale c/o Tribunale di Catania, Ufficio Centrale Regionale per l'elezione del Presidente dell'Assemblea Regionale Siciliana c/o Corte d'Appello di Palermo, Assemblea Regionale Siciliana, Presidenza del Consiglio dei Ministri, Ministero dell’Interno, Ministero dell’Economia, Andrea Vitale, Antonino Di Guardo, Fabio M. Mancuso (Eligibility requirements for regional elections — Requirement of residence in the region concerned — Articles 17 EC and 18 EC — Fundamental rights — No link with Community law — Court clearly lacking jurisdiction)

2

2009/C 167/04

Case C-148/09 P: Appeal brought on 10 February 2009 by the Kingdom of Belgium against the judgment of the Court of First Instance (Second Chamber) delivered on 24 April 2009 (fax: 22 April 2009) in Case T-388/03 Deutsche Post AG and DHL International v Commission of the European Communities

3

2009/C 167/05

Case C-151/09: Reference for a preliminary ruling from the Juzgado de lo Social Único de Algeciras (Spain) lodged on 28 April 2009 — Federación de Servicios Públicos de la UGT (UGT-FSP) v Ayuntamiento de la Línea de la Concepción, María del Rosario Vecino Uribe and Others, and the Ministerio Fiscal

3

2009/C 167/06

Case C-152/09: Reference for a preliminary ruling from the Verwaltungsgericht Schwerin (Germany) lodged on 4 May 2009 — André Grootes v Amt für Landwirtschaft Parchim

4

2009/C 167/07

Case C-155/09: Action brought on 4 May 2009 — Commission of the European Communities v Hellenic Republic

4

2009/C 167/08

Case C-168/09: Reference for a preliminary ruling from the Tribunale di Milano (Italy) lodged on 12 May 2009 — Flos SpA v Semeraro Casa & Famiglia SpA

5

2009/C 167/09

Case C-172/09: Action brought on 13 May 2009 — Commission of the European Communities v Republic of Poland

5

2009/C 167/10

Case C-174/09: Action brought on 14 May 2009 — Commission of the European Communities v Republic of Poland

6

2009/C 167/11

Case C-183/09: Action brought on 26 May 2009 — Commission of the European Communities v Hellenic Republic

6

2009/C 167/12

Case C-184/09: Action brought on 26 May 2009 — Commission of the European Communities v Kingdom of Spain

6

2009/C 167/13

Case C-187/09: Action brought on 26 May 2009 — Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland

7

2009/C 167/14

Case C-202/09: Action brought on 5 May 2009 — Commission of the European Communities v Ireland

7

2009/C 167/15

Case C-312/08: Order of the President of the Fifth Chamber of the Court of 2 April 2009 — Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland

7

2009/C 167/16

Case C-374/08: Order of the President of the Court of 8 April 2009 — Commission of the European Communities v Republic of Hungary

8

2009/C 167/17

Case C-418/08: Order of the President of the Court of 27 March 2009 — Commission of the European Communities v Ireland

8

Court of First Instance

2009/C 167/18

Case T-152/06: Judgment of the Court of First Instance of 9 June 2009 — NDSHT v Commission (Action for annulment — State aid — Regulation (EC) No 659/1999 — Complaint by a competitor — Letters from the Commission to a complainant — Existing aid — Non-actionable measure — Inadmissibility)

9

2009/C 167/19

Case T-179/06: Judgment of the Court of First Instance of 3 June 2009 — Commission v Burie Onderzoek en advies (Arbitration clause — Contracts concluded under the RACE II programme and a specific programme in the field of telematic applications of common interest — Repayment of part of the advances paid — Jurisdiction of the Court of First Instance — Partial inadmissibility — Principle of sound administration — Counterclaim)

9

2009/C 167/20

Case T-189/07: Judgment of the Court of First Instance of 3 June 2009 — Frosch Touristik v OHIM — DSR touristik (FLUGBÖRSE) (Community trade mark — Invalidity proceedings — Community word mark FLUGBÖRSE — Material date for the examination of an absolute ground for invalidity — Article 51(1)(a) of Regulation (EC) No 40/94 (now Article 52(1)(a) of Regulation (EC) No 207/2009)

10

2009/C 167/21

Case T-22/07: Order of the Court of First Instance of 14 May 2009 — US Steel Košice v Commission (Action for annulment — State aid — Act of Accession — Condition imposed on the beneficiary to limit its sales of flat products in the enlarged EU — Commission letter interpreting the condition as applying to the Bulgarian and Romanian markets from the date of their accession — Act not amenable to review — Inadmissibility)

10

2009/C 167/22

Case T-372/08: Order of the Court of First Instance of 20 April 2009 — Murnauer Markenvertrieb v OHIM — Fitne Gesundheit und Wellness (Notfall Bonbons) (Community trade mark — Application for a declaration of invalidity — Withdrawal of the application for a declaration of invalidity — No need to adjudicate)

11

2009/C 167/23

Case T-383/08: Order of the Court of First Instance of 23 April 2009 — New Europe v Commission of the European Communities (Formal inadmissibility of the application — Name of the applicant — Legal person governed by private law — Authority — Manifest inadmissibility — Intervention)

11

2009/C 167/24

Case T-462/08: Order of the Court of First Instance of 21 April 2009 — Winzer Pharma v OHIM — Alcon (OFTAL CUSI) (Community trade mark — Annulment of the decision of the Board of Appeal — No need to adjudicate)

11

2009/C 167/25

Case T-159/09 R: Order of the Court of First Instance of 25 May 2009 — Biofrescos v Commission (Application for interim measures — Application for suspension of operation — Submission of the application — Inadmissibility — Financial loss — Lack of urgency)

12

2009/C 167/26

Case T-127/09: Action brought on 15 April 2009 — Abdulrahim v Council and Commission

12

2009/C 167/27

Case T-160/09: Action brought on 20 April 2009 — Winzer Pharma v OHIM

13

2009/C 167/28

Case T-162/09: Action brought on 24 April 2009 — Würth and Fasteners (Shenyang) v Council

13

2009/C 167/29

Case T-167/09 P: Appeal brought on 24 April 2009 by the Commission of the European Communities against the judgment of the Civil Service Tribunal delivered on 17 February 2009 in Case F-38/08 Liotti v Commission

14

2009/C 167/30

Case T-173/09: Action brought on 5 May 2009 — Z v Commission

15

2009/C 167/31

Case T-175/09 P: Appeal brought on 27 April 2009 by the Council of the European Union against the judgment of the Civil Service Tribunal delivered on 17 February 2009 in Case F-51/08, Stols v Council

15

2009/C 167/32

Case T-179/09: Action brought on 28 April 2009 — Dunamenti Erőmű v Commission

16

2009/C 167/33

Case T-189/09: Action brought on 12 May 2009 — Poloplast v OHIM — Polypipe Building Products (P)

17

2009/C 167/34

Case T-190/09: Action brought on 13 May 2009 — Longevity Health Products v OHIM — Performing Science (5 HTP)

17

2009/C 167/35

Case T-192/09: Action brought on 14 May 2009 — Amen Corner v OHIM — Comercio Electrónico Ojal (SEVE TROPHY)

18

2009/C 167/36

Case T-194/09: Action brought on 13 May 2009 — Lan Airlines v OHIM — Air Nostrum (LÍNEAS AÉREAS DEL MEDITERRÁNEO LAM)

18

2009/C 167/37

Case T-196/09: Action brought on 25 May 2009 — TerreStar Europe v Commission

19

2009/C 167/38

Case T-198/09: Action brought on 20 May 2009 — UOP v Commission

19

2009/C 167/39

Case T-200/09: Action brought on 25 May 2009 — Abertis Infraestructuras v Commission

20

2009/C 167/40

Case T-203/09: Action brought on 25 May 2009 — Olymp Bezner v OHIM — Bellido (Olymp)

20

2009/C 167/41

Case T-204/09: Action brought on 25 May 2009 — Olymp Bezner v OHIM — Bellido (OLYMP)

21

2009/C 167/42

Case T-207/09: Action brought on 25 May 2009 — El Jirari Bouzekri v OHIM — Nike International (NC NICKOL)

21

2009/C 167/43

Case T-208/09: Action brought on 26 May 2009 — Mars v OHIM — Marc (MARC Marlon Abela Restaurant Corporation)

22

2009/C 167/44

Case T-210/09: Action brought on 26 May 2009 — Formenti Seleco v Commission

22

2009/C 167/45

Case T-216/09: Action brought on 27 May 2009 — Astrim and Elyo Italia v Commission

23

European Union Civil Service Tribunal

2009/C 167/46

Case F-27/09: Action brought on 27 March 2009 — Ingo Hanschmann v Europol

25

2009/C 167/47

Case F-28/09: Action brought on 27 March 2009 — Kipp v Europol

25

2009/C 167/48

Case F-34/09: Action brought on 2 April 2009 — Sluiter v Europol

25

2009/C 167/49

Case F-35/09: Action brought on 2 April 2009 — Visser-Fornt Raya v Europol

26

2009/C 167/50

Case F-36/09: Action brought on 2 April 2009 — Armitage-Wilson v Europol

26

2009/C 167/51

Case F-37/09: Action brought on 2 April 2009 — Doyle v Europol

26

2009/C 167/52

Case F-38/09: Action brought on 2 April 2009 — Martin v Europol

26

2009/C 167/53

Case F-39/09: Action brought on 2 April 2009 — Goddijn v Europol

27

2009/C 167/54

Case F-49/09: Action brought on 12 May 2009 — Wendler v Commission of the European Communities

27

2009/C 167/55

Case F-50/09: Action brought on 12 May 2009 — Missir Mamachi di Lusignano v Commission

27

2009/C 167/56

Case F-54/09: Action brought on 20 May 2009 — Lebedef v Commission

28

| | Corrigenda |
| --- | --- |
| 2009/C 167/57 | Corrigendum to the notice to the Official Journal in Case T-475/08 P (OJ C 69, 21.3.2009, p. 40) | 29 |

Corrigenda

2009/C 167/57

Corrigendum to the notice to the Official Journal in Case T-475/08 P (OJ C 69, 21.3.2009, p. 40)

29

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

EN

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Court of Justice

| 18.7.2009 | EN | Official Journal of the European Union | C 167/1 |
| --- | --- | --- | --- |

18.7.2009

EN

Official Journal of the European Union

C 167/1

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2009/C 167/01

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

OJ C 153, 4.7.2009

Past publications

OJ C 141, 20.6.2009

OJ C 129, 6.6.2009

OJ C 113, 16.5.2009

OJ C 102, 1.5.2009

OJ C 90, 18.4.2009

OJ C 82, 4.4.2009

These texts are available on:

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

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V Announcements

COURT PROCEEDINGS

Court of Justice

| 18.7.2009 | EN | Official Journal of the European Union | C 167/2 |
| --- | --- | --- | --- |

18.7.2009

EN

Official Journal of the European Union

C 167/2

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Judgment of the Court (Third Chamber) of 20 May 2009 — Philippe Guigard v Commission of the European Communities

(Case C-214/08 P) (1)

(Appeal - Action for damages - Conditions for the Community to incur contractual and non-contractual liability - Articles 313(2)(k), 314 and 317(a) of the Fourth Lomé Convention, as revised by the Mauritius Agreement)

2009/C 167/02

Language of the case: French

Parties

Appellant: Philippe Guigard (represented by: S. Rodrigues and C. Bernard-Glanz)

Other party to the proceedings: Commission of the European Communities (represented by: A. Bordes and F. Dintilhac, Agents)

Re:

Appeal against the judgment of the Court of First Instance (Third Chamber) of 11 March 2008 in Case T-301/05 Guigard v Commission, by which the Court of First Instance dismissed the applicant’s action for damages for the loss which he allegedly suffered by reason of the Commission’s conduct with regard to the non-renewal of his contract of employment concluded in the framework of technical co-operation between the Community and the Republic of Niger financed by the European Development Fund — Conditions for the Community to incur non-contractual liability — Infringement of Articles 313(2)(k) and 314 of the Fourth Lomé Convention (OJ 1991 L 229), as revised by the Mauritius Agreement (OJ 1998 L 156, p. 3) — Infringement of the obligation to state reasons and of the rights of the defence.

Operative part of the judgment

The Court:

| 1. | Sets aside the judgment of the Court of First Instance of the European Communities in Case T-301/05 Guigard v Commission inasmuch as it declared Mr Guigard’s action to be admissible; |
| --- | --- |

1.

Sets aside the judgment of the Court of First Instance of the European Communities in Case T-301/05 Guigard v Commission inasmuch as it declared Mr Guigard’s action to be admissible;

| 2. | Dismisses Mr Guigard’s action in Case T-301/05; |
| --- | --- |

2.

Dismisses Mr Guigard’s action in Case T-301/05;

| 3. | Declares that it is not necessary to rule on the appeal; |
| --- | --- |

3.

Declares that it is not necessary to rule on the appeal;

| 4. | Orders Mr Guigard to pay the costs incurred by the Commission of the European Communities before the Court of Justice of the European Communities and before the Court of First Instance of the European Communities. |
| --- | --- |

4.

Orders Mr Guigard to pay the costs incurred by the Commission of the European Communities before the Court of Justice of the European Communities and before the Court of First Instance of the European Communities.

---

(1)  OJ C 223, 30.08.2008.

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| 18.7.2009 | EN | Official Journal of the European Union | C 167/2 |
| --- | --- | --- | --- |

18.7.2009

EN

Official Journal of the European Union

C 167/2

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Order of the Court (Sixth Chamber) of 26 March 2009 (Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Sicilia — Italy) — Maria Catena Rita Pignataro v Ufficio Centrale Circoscrizionale c/o Tribunale di Catania, Ufficio Centrale Regionale per l'elezione del Presidente dell'Assemblea Regionale Siciliana c/o Corte d'Appello di Palermo, Assemblea Regionale Siciliana, Presidenza del Consiglio dei Ministri, Ministero dell’Interno, Ministero dell’Economia, Andrea Vitale, Antonino Di Guardo, Fabio M. Mancuso

(Case C-535/08) (1)

(Eligibility requirements for regional elections - Requirement of residence in the region concerned - Articles 17 EC and 18 EC - Fundamental rights - No link with Community law - Court clearly lacking jurisdiction)

2009/C 167/03

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per la Sicilia

Parties

Applicant: Maria Catena Rita Pignataro

Defendants: Ufficio Centrale Circoscrizionale c/o Tribunale di Catania, Ufficio Centrale Regionale per l'elezione del Presidente dell'Assemblea Regionale Siciliana c/o Corte d'Appello di Palermo, Assemblea Regionale Siciliana, Presidenza del Consiglio dei Ministri, Ministero dell’Interno, Ministero dell’Economia, Andrea Vitale, Antonino Di Guardo, Fabio M. Mancuso

Re:

Reference for a preliminary ruling — Tribunale Amministrativo Regionale per la Sicilia — Interpretation of Article 6 EU, Article 3 of the First Additional Protocol and Article 2 of the Fourth Additional Protocol to the European Convention on Human Rights and Article 25 of the International Covenant on Civil and Political Rights — Interpretation of Articles 17 EC and 18 EC — Compatibility of regional legislation restricting the right of an Italian national to be nominated for election on the basis of a requirement of residence in the region

Operative part of the order

| 1. | Articles 17 EC and 18 EC do not preclude national legislation which, in a situation such as that at issue in the main proceedings, includes among the requirements for eligibility for election to a regional assembly, the obligation to be residing in the region concerned at the time when nominations are put forward. |
| --- | --- |

1.

Articles 17 EC and 18 EC do not preclude national legislation which, in a situation such as that at issue in the main proceedings, includes among the requirements for eligibility for election to a regional assembly, the obligation to be residing in the region concerned at the time when nominations are put forward.

| 2. | The Court of Justice of the European Communities clearly does not have jurisdiction to reply to the first question referred by the Tribunale Amministrativo Regionale per la Sicilia. |
| --- | --- |

2.

The Court of Justice of the European Communities clearly does not have jurisdiction to reply to the first question referred by the Tribunale Amministrativo Regionale per la Sicilia.

---

(1)  OJ C 32, 7.2.2009.

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| 18.7.2009 | EN | Official Journal of the European Union | C 167/3 |
| --- | --- | --- | --- |

18.7.2009

EN

Official Journal of the European Union

C 167/3

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Appeal brought on 10 February 2009 by the Kingdom of Belgium against the judgment of the Court of First Instance (Second Chamber) delivered on 24 April 2009 (fax: 22 April 2009) in Case T-388/03 Deutsche Post AG and DHL International v Commission of the European Communities

(Case C-148/09 P)

2009/C 167/04

Language of the case: German

Parties

Appellant: Kingdom of Belgium (represented by: C. Pochet and T. Materne, acting as Agents)

Other parties to the proceedings: Deutsche Post AG, DHL International, Commission of the European Communities

Form of order sought

| — | Set aside the judgment of the Court of First Instance of the European Communities of 10 February 2009 in Case T-388/03 Deutsche Post AG and DHL International v Commission of the European Communities |
| --- | --- |

—

Set aside the judgment of the Court of First Instance of the European Communities of 10 February 2009 in Case T-388/03 Deutsche Post AG and DHL International v Commission of the European Communities

| — | Order Deutsche Post and DHL International to pay the costs. |
| --- | --- |

—

Order Deutsche Post and DHL International to pay the costs.

Pleas in law and main arguments

The appellant puts forward three pleas in law in support if its appeal against the judgment of the Court of First Instance of 10 February 2009, by which a Commission Decision of 23 July 2003 raising no objections, following a preliminary examination procedure provided for in Article 88(3) EC, to a proposal announced on 3 December 2002 in increase La Poste’s capital and to certain other measures adopted by the Belgium authorities in favour of La Poste was annulled. Those please seeking to have the judgment under appeal set aside.

By the first plea in law, the appellant claims that the judgment under appeal misinterpreted the procedural rules concerning the examination of State aids, in so far as it classified certain elements of the preliminary examination procedure and certain aspects of the Commission Decision of 23 July 2003 as objective and consistent evidence of ‘serious difficulties’, which should have necessitated the initiation of the formal investigation procedure under article 88(2) EC.

By the second plea in law, the appellant states that the judgment under appeal already partially reached a decision on the substantive correctness of the examination, undertaken in the Commission Decision of 23 July 2003, of the existence of State aid and its compatibility with the common market, in so far as it took the fourth and seventh pleas into consideration and also upheld them, although the fourth and seventh pleas should have been declared inadmissible as the applicant, even according to the judgment under appeal, had no corresponding standing to bring proceedings.

By the third plea in law, the appellant complains that he judgment under appeal breached the principle of legal certainty, in so far as it objects that the Commission, in its examination included in the decision of 23 July 2003, did not take account of the fourth criterion of the judgment of the Court of Justice of 24 July 2003 in the Altmark Case, which is the criterion of ‘benchmarking’ with the costs of a typical, well-run and appropriately-equipped undertaking, although that judgment was made only after the examination of the present case (and one day after the Commission had decided to raise no objections to the proposed increase to La Poste’s capital), and the criterion in question was not, before that time, reflected in the case-law of the Court f Justice or the Court of First Instance or in the Commission’s decision-making practice.

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| 18.7.2009 | EN | Official Journal of the European Union | C 167/3 |
| --- | --- | --- | --- |

18.7.2009

EN

Official Journal of the European Union

C 167/3

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Reference for a preliminary ruling from the Juzgado de lo Social Único de Algeciras (Spain) lodged on 28 April 2009 — Federación de Servicios Públicos de la UGT (UGT-FSP) v Ayuntamiento de la Línea de la Concepción, María del Rosario Vecino Uribe and Others, and the Ministerio Fiscal

(Case C-151/09)

2009/C 167/05

Language of the case: Spanish

Referring court

Juzgado de lo Social Único de Algeciras

Parties to the main proceedings

Applicant: Federación de Servicios Públicos de la UGT (UGT-FSP)

Defendants: Ayuntamiento de la Línea de la Concepción, María del Rosario Vecino Uribe and Others,

the Ministerio Fiscal

Question referred

Is the requirement that autonomy be preserved — referred to in Article 6(1) of Directive 2001/23/EC (1) of 12 March 2001 — met in a factual situation (such as that in the main proceedings) in which, following the recovery of various outsourced public services by a municipal authority, the employees who were part of the staff of the actual undertakings which until then had provided the outsourced municipal services are taken on by that municipal administration and integrated into its staff, but it is those same employees (without exception) who continue to hold the same posts and carry out the same duties as before, in the same places of work and under the instruction of the same immediate superiors (hierarchical superiors), without significant changes in the working conditions, the sole difference being that now their overall managers (above the previous superiors) are the relevant publicly elected officials (councillors or mayor)?

---

(1)  On the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses (OJ 2001 L 82, p. 16).

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| 18.7.2009 | EN | Official Journal of the European Union | C 167/4 |
| --- | --- | --- | --- |

18.7.2009

EN

Official Journal of the European Union

C 167/4

---

Reference for a preliminary ruling from the Verwaltungsgericht Schwerin (Germany) lodged on 4 May 2009 — André Grootes v Amt für Landwirtschaft Parchim

(Case C-152/09)

2009/C 167/06

Language of the case: German

Referring court

Verwaltungsgericht Schwerin

Parties to the main proceedings

Claimant: André Grootes

Defendant: Amt für Landwirtschaft Parchim

Questions referred

| 1. | Can hardship under Article 40(5) of Regulation (EC) No 1782/2003 (1) be recognised in relation to an area-based amount even where an agri-environmental measure ongoing on 15 May 2003 constitutes just retention of (permanent) use as pastureland, but it is connected seamlessly in time (or at any rate ‘promptly’) with a measure under which conversion from arable land to permanent pastureland has taken place? |
| --- | --- |

1.

Can hardship under Article 40(5) of Regulation (EC) No 1782/2003 (1) be recognised in relation to an area-based amount even where an agri-environmental measure ongoing on 15 May 2003 constitutes just retention of (permanent) use as pastureland, but it is connected seamlessly in time (or at any rate ‘promptly’) with a measure under which conversion from arable land to permanent pastureland has taken place?

| 2. | If the first question should be answered in the affirmative:
  Can hardship under Article 40(5) of Regulation (EC) No 1782/2003 be recognised in relation to an area-based amount only where there has been a change of use of the area from arable land to pastureland on the basis of (and precisely because of) participation in an agri-environmental measure as referred to in the aforementioned provision? |
| --- | --- |

2.

If the first question should be answered in the affirmative:

Can hardship under Article 40(5) of Regulation (EC) No 1782/2003 be recognised in relation to an area-based amount only where there has been a change of use of the area from arable land to pastureland on the basis of (and precisely because of) participation in an agri-environmental measure as referred to in the aforementioned provision?

| 3. | Is recognition of hardship under Article 40(5) of Regulation (EC) No 1782/2003 contingent on the farmer making the application being the person who made the change of use, or can a farmer who later ‘joins in on’ the agri-environmental measure also successfully claim hardship under that provision? |
| --- | --- |

3.

Is recognition of hardship under Article 40(5) of Regulation (EC) No 1782/2003 contingent on the farmer making the application being the person who made the change of use, or can a farmer who later ‘joins in on’ the agri-environmental measure also successfully claim hardship under that provision?

---

(1)  Council Regulation (EC) No 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers and amending Regulations (EEC) No 2019/93, (EC) No 1452/2001, (EC) No 1453/2001, (EC) No 1454/2001, (EC) 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, (EC) No 1673/2000, (EEC) No 2358/71 and (EC) No 2529/2001 (OJ L 270, 21.10.2003, p. 1).

---

| 18.7.2009 | EN | Official Journal of the European Union | C 167/4 |
| --- | --- | --- | --- |

18.7.2009

EN

Official Journal of the European Union

C 167/4

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Action brought on 4 May 2009 — Commission of the European Communities v Hellenic Republic

(Case C-155/09)

2009/C 167/07

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (represented by: R. Lyal, D. Triantafillou)

Defendant: Hellenic Republic

Form of order sought

The Court is asked to:

| — | declare that the Hellenic Republic is in breach of its obligations under Articles 18, 39 and 43 EC in the light of Article 12 EC (and under Articles 28, 31 and 4 of the EEA Treaty), inasmuch as it is impeding the exercise of fundamental freedoms deriving from those provisions:






  — | by granting exemption from tax on the transfer of immovable property solely to persons already permanently resident in Greece but not to persons who intend to settle in Greece in the future; |
| --- | --- | --- |

—

declare that the Hellenic Republic is in breach of its obligations under Articles 18, 39 and 43 EC in the light of Article 12 EC (and under Articles 28, 31 and 4 of the EEA Treaty), inasmuch as it is impeding the exercise of fundamental freedoms deriving from those provisions:

—

by granting exemption from tax on the transfer of immovable property solely to persons already permanently resident in Greece but not to persons who intend to settle in Greece in the future;

| — | by granting, subject to conditions, exemption from tax on the transfer of immovable property in Greece solely to Greek nationals on the purchase of a first home in Greece, expressly discriminating against foreign residents who are not Greek nationals; |
| --- | --- |

—

by granting, subject to conditions, exemption from tax on the transfer of immovable property in Greece solely to Greek nationals on the purchase of a first home in Greece, expressly discriminating against foreign residents who are not Greek nationals;

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

—

order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

Exemption from transfer tax benefits mainly Greek citizens. The fact that Community nationals who are not already resident in Greece are excluded from the exemption constitutes discriminatory treatment linked to nationality which thus renders more difficult and impedes the purchase of a first home in that country by citizens of other Member States. That discriminatory impediment is confirmed and reinforced by the express restriction of the exemption to Greek citizens abroad.

The measure is not an appropriate way to make it easier for residents of the country to acquire ownership of their homes, in the absence of corresponding obligations as regards use of the immovable property. Moreover, it appears excessive, since actual residence could be checked by way of a declaration on the part of the purchaser, accompanied by various entries in the Register, and checks.

As concerns the express restriction of the exemption to Greeks abroad, this cannot be justified by the objective of their repatriation, since that objective conflicts with the principle of free movement.

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| 18.7.2009 | EN | Official Journal of the European Union | C 167/5 |
| --- | --- | --- | --- |

18.7.2009

EN

Official Journal of the European Union

C 167/5

---

Reference for a preliminary ruling from the Tribunale di Milano (Italy) lodged on 12 May 2009 — Flos SpA v Semeraro Casa & Famiglia SpA

(Case C-168/09)

2009/C 167/08

Language of the case: Italian

Referring court

Tribunale di Milano

Parties to the main proceedings

Applicant: Flos SpA

Defendant: Semeraro Casa & Famiglia SpA

Questions referred

| 1. | Must Articles 17 and 19 of Directive 98/71/EC be interpreted as meaning that, in implementing a national law of a Member State which has introduced copyright protection for designs into its legal order in accordance with that Directive, the discretion accorded to such a Member State to establish independently the extent to which, and the conditions under which, such protection is conferred may include discretion to preclude such protection in the case of designs which — albeit meeting the requirements for protection laid down in copyright law — fell to be regarded as having entered into the public domain before the date on which the statutory provisions introducing copyright protection for designs into the domestic legal order entered into force, in so far as they had never been registered as designs or in so far as the relevant registration had already expired by that date? |
| --- | --- |

1.

Must Articles 17 and 19 of Directive 98/71/EC be interpreted as meaning that, in implementing a national law of a Member State which has introduced copyright protection for designs into its legal order in accordance with that Directive, the discretion accorded to such a Member State to establish independently the extent to which, and the conditions under which, such protection is conferred may include discretion to preclude such protection in the case of designs which — albeit meeting the requirements for protection laid down in copyright law — fell to be regarded as having entered into the public domain before the date on which the statutory provisions introducing copyright protection for designs into the domestic legal order entered into force, in so far as they had never been registered as designs or in so far as the relevant registration had already expired by that date?

| 2. | If the answer to the first question is in the negative, must Articles 17 and 19 of Directive 98/71/EC be interpreted as meaning that, in implementing a national law of a Member State which has introduced copyright protection for designs into its legal order in accordance with that Directive, the discretion accorded to such a Member State to establish independently the extent to which, and the conditions under which, such protection is conferred may include discretion to preclude such protection in the case of designs which — albeit meeting the requirements for protection laid down in copyright law — fell to be regarded as having entered into the public domain before the date on which the statutory provisions introducing copyright protection for designs into the domestic legal order entered into force and where a third party — without authorisation from the holder of the copyright on such designs — has already produced and marketed products based on such designs in that State? |
| --- | --- |

2.

If the answer to the first question is in the negative, must Articles 17 and 19 of Directive 98/71/EC be interpreted as meaning that, in implementing a national law of a Member State which has introduced copyright protection for designs into its legal order in accordance with that Directive, the discretion accorded to such a Member State to establish independently the extent to which, and the conditions under which, such protection is conferred may include discretion to preclude such protection in the case of designs which — albeit meeting the requirements for protection laid down in copyright law — fell to be regarded as having entered into the public domain before the date on which the statutory provisions introducing copyright protection for designs into the domestic legal order entered into force and where a third party — without authorisation from the holder of the copyright on such designs — has already produced and marketed products based on such designs in that State?

| 3. | If the answers to the first and second questions are in the negative, must Articles 17 and 19 of Directive 98/71/EC be interpreted as meaning that, in implementing a national law of a Member State which has introduced copyright protection for designs into its legal order in accordance with that Directive, the discretion accorded to such a Member State to establish independently the extent to which, and the conditions under which, such protection is conferred may include discretion to preclude such protection in the case of designs which — albeit meeting the requirements for protection laid down in copyright law — fell to be regarded as having entered into the public domain before the date on which the statutory provisions introducing copyright protection for designs into the domestic legal order entered into force and where a third party — without authorisation from the holder of the copyright on such designs — has already produced and marketed products based on such designs in that State, where protection is precluded for a substantial period (a period of 10 years)? |
| --- | --- |

3.

If the answers to the first and second questions are in the negative, must Articles 17 and 19 of Directive 98/71/EC be interpreted as meaning that, in implementing a national law of a Member State which has introduced copyright protection for designs into its legal order in accordance with that Directive, the discretion accorded to such a Member State to establish independently the extent to which, and the conditions under which, such protection is conferred may include discretion to preclude such protection in the case of designs which — albeit meeting the requirements for protection laid down in copyright law — fell to be regarded as having entered into the public domain before the date on which the statutory provisions introducing copyright protection for designs into the domestic legal order entered into force and where a third party — without authorisation from the holder of the copyright on such designs — has already produced and marketed products based on such designs in that State, where protection is precluded for a substantial period (a period of 10 years)?

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| 18.7.2009 | EN | Official Journal of the European Union | C 167/5 |
| --- | --- | --- | --- |

18.7.2009

EN

Official Journal of the European Union

C 167/5

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Action brought on 13 May 2009 — Commission of the European Communities v Republic of Poland

(Case C-172/09)

2009/C 167/09

Language of the case: Polish

Parties

Applicant: Commission of the European Communities (represented by: P. Dejmek and K. Gawlik, acting as Agents)

Defendant: Republic of Poland

Form of order sought

| — | declare that, by not bringing into force all the laws, regulations and administrative provisions necessary to comply with Directive 2005/60/EC of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing, (1) and in any event by not informing the Commission of the adoption of those provisions, the Republic of Poland has failed to fulfil its obligations under that directive and the EC Treaty; |
| --- | --- |

—

declare that, by not bringing into force all the laws, regulations and administrative provisions necessary to comply with Directive 2005/60/EC of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing, (1) and in any event by not informing the Commission of the adoption of those provisions, the Republic of Poland has failed to fulfil its obligations under that directive and the EC Treaty;

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

—

order the Republic of Poland to pay the costs.

Pleas in law and main arguments

The period for transposition of Directive 2005/60/EC expired on 15 December 2007. On the day on which the action was brought, meanwhile, the defendant still had not brought into force all the provisions needed for the purpose of transposing the directive and in any event had not informed the Commission of them.

---

(1)  OJ 2005 L 309, p. 15.

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| 18.7.2009 | EN | Official Journal of the European Union | C 167/6 |
| --- | --- | --- | --- |

18.7.2009

EN

Official Journal of the European Union

C 167/6

---

Action brought on 14 May 2009 — Commission of the European Communities v Republic of Poland

(Case C-174/09)

2009/C 167/10

Language of the case: Polish

Parties

Applicant: Commission of the European Communities (represented by: M. Kaduczak and S. Schønberg, Agents)

Defendant: Republic of Poland

Form of order sought

| — | declare that, by failing to bring into force the laws, regulations and administrative provisions necessary for compliance with Directive 2005/32/EC of the European Parliament and of the Council of 6 July 2005 establishing a framework for the setting of ecodesign requirements for energy-using products, (1) and in any event by failing to inform the Commission of those provisions, the Republic of Poland has failed to fulfil its obligations under that directive; |
| --- | --- |

—

declare that, by failing to bring into force the laws, regulations and administrative provisions necessary for compliance with Directive 2005/32/EC of the European Parliament and of the Council of 6 July 2005 establishing a framework for the setting of ecodesign requirements for energy-using products, (1) and in any event by failing to inform the Commission of those provisions, the Republic of Poland has failed to fulfil its obligations under that directive;

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

—

order the Republic of Poland to pay the costs.

Pleas in law and main arguments

The period within which Directive 2005/32/EC had to be transposed expired on 11 August 2007. Up to the date on which the action was brought, the defendant failed to introduce all of the provisions necessary for transposition of the directive, and in any event failed to inform the Commission thereof.

---

(1)  OJ 2005 L 191, p. 29.

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| 18.7.2009 | EN | Official Journal of the European Union | C 167/6 |
| --- | --- | --- | --- |

18.7.2009

EN

Official Journal of the European Union

C 167/6

---

Action brought on 26 May 2009 — Commission of the European Communities v Hellenic Republic

(Case C-183/09)

2009/C 167/11

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (represented by: D. Triantafillou and I. Dimitriou)

Defendant: Hellenic Republic

Form of order sought

The Court is asked to:

| — | declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with certain provisions of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax, or in any event by failing to notify such provisions to the Commission, the Hellenic Republic is in breach of its obligations under the first subparagraph of Article 412(1) of that directive; |
| --- | --- |

—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with certain provisions of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax, or in any event by failing to notify such provisions to the Commission, the Hellenic Republic is in breach of its obligations under the first subparagraph of Article 412(1) of that directive;

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

—

order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

The period prescribed for transposing Directive 2006/112/EC into national law expired on 1 January 2008.

---

(1)  OJ L 347 of 11.12.2006, p. 1.

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| 18.7.2009 | EN | Official Journal of the European Union | C 167/6 |
| --- | --- | --- | --- |

18.7.2009

EN

Official Journal of the European Union

C 167/6

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Action brought on 26 May 2009 — Commission of the European Communities v Kingdom of Spain

(Case C-184/09)

2009/C 167/12

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (represented by: E. Adserá Ribera and A. Marghelis, Agents)

Defendant: Kingdom of Spain

Form of order sought

| — | a declaration that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2006/21/EC (1) of the European Parliament and of the Council of 15 March 2006 on the management of waste from extractive industries and amending Directive 2004/35/EC (2) or, in any event, by failing to notify those provisions to the Commission, the Kingdom of Spain has failed to fulfil its obligations under that directive; |
| --- | --- |

—

a declaration that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2006/21/EC (1) of the European Parliament and of the Council of 15 March 2006 on the management of waste from extractive industries and amending Directive 2004/35/EC (2) or, in any event, by failing to notify those provisions to the Commission, the Kingdom of Spain has failed to fulfil its obligations under that directive;

| — | an order that the Kingdom of Spain should pay the costs. |
| --- | --- |

—

an order that the Kingdom of Spain should pay the costs.

Pleas in law and main arguments

The period prescribed for transposition of Directive 2006/21/EC into domestic law expired on 30 April 2008.

---

(1)  OJ 2006 L 102, p. 15.

(2)  OJ 2004 L 143, p. 56.

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| 18.7.2009 | EN | Official Journal of the European Union | C 167/7 |
| --- | --- | --- | --- |

18.7.2009

EN

Official Journal of the European Union

C 167/7

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Action brought on 26 May 2009 — Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland

(Case C-187/09)

2009/C 167/13

Language of the case: English

Parties

Applicant: Commission of the European Communities (represented by: O. Beynet, S. Walker, 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 Directive 2006/40/EC (1) of the European Parliament and of the Council of 17 May 2006 relating to emissions from air-conditioning systems in motor vehicles and amending Council Directive 70/156/EEC, or in any event, by failing to communicate them all to the Commission, the United Kingdom of Great Britain and Northern Ireland failed to fulfil its obligations under this Directive and under the Treaty; |
| --- | --- |

—

Declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2006/40/EC (1) of the European Parliament and of the Council of 17 May 2006 relating to emissions from air-conditioning systems in motor vehicles and amending Council Directive 70/156/EEC, or in any event, by failing to communicate them all to the Commission, the United Kingdom of Great Britain and Northern Ireland failed to fulfil its obligations under this Directive and under the Treaty;

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

—

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

Pleas in law and main arguments

The period within which the Directive had to be transposed expired on 4 January 2008.

---

(1)  OJ L 161, p. 12

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| 18.7.2009 | EN | Official Journal of the European Union | C 167/7 |
| --- | --- | --- | --- |

18.7.2009

EN

Official Journal of the European Union

C 167/7

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Action brought on 5 May 2009 — Commission of the European Communities v Ireland

(Case C-202/09)

2009/C 167/14

Language of the case: English

Parties

Applicant: Commission of the European Communities (represented by: Mmes L. Balta, A.-A. Gilly, Agents)

Defendant: Ireland

The applicant claims that the Court should:

| — | declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2006/24/EC (1) of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC (2), or in any event by failing to communicate them to the Commission, Ireland has failed to fulfil its obligations under the Directive; and |
| --- | --- |

—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2006/24/EC (1) of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC (2), or in any event by failing to communicate them to the Commission, Ireland has failed to fulfil its obligations under the Directive; and

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

—

order Ireland to pay the costs.

Pleas in law and main arguments

The period within which the directive had to be transposed expired on 15 September 2007.

---

(1)  OJ L 105, p. 54

(2)  OJ L 201, p. 37

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| 18.7.2009 | EN | Official Journal of the European Union | C 167/7 |
| --- | --- | --- | --- |

18.7.2009

EN

Official Journal of the European Union

C 167/7

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Order of the President of the Fifth Chamber of the Court of 2 April 2009 — Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland

(Case C-312/08) (1)

2009/C 167/15

Language of the case: English

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

---

(1)  OJ C 223, 30.08.2008.

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| 18.7.2009 | EN | Official Journal of the European Union | C 167/8 |
| --- | --- | --- | --- |

18.7.2009

EN

Official Journal of the European Union

C 167/8

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Order of the President of the Court of 8 April 2009 — Commission of the European Communities v Republic of Hungary

(Case C-374/08) (1)

2009/C 167/16

Language of the case: Hungarian

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

---

(1)  OJ C 260, 11.10.2008.

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| 18.7.2009 | EN | Official Journal of the European Union | C 167/8 |
| --- | --- | --- | --- |

18.7.2009

EN

Official Journal of the European Union

C 167/8

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Order of the President of the Court of 27 March 2009 — Commission of the European Communities v Ireland

(Case C-418/08) (1)

2009/C 167/17

Language of the case: English

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

---

(1)  OJ C 301, 22.11.2008.

---

Court of First Instance

| 18.7.2009 | EN | Official Journal of the European Union | C 167/9 |
| --- | --- | --- | --- |

18.7.2009

EN

Official Journal of the European Union

C 167/9

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Judgment of the Court of First Instance of 9 June 2009 — NDSHT v Commission

(Case T-152/06) (1)

(Action for annulment - State aid - Regulation (EC) No 659/1999 - Complaint by a competitor - Letters from the Commission to a complainant - Existing aid - Non-actionable measure - Inadmissibility)

2009/C 167/18

Language of the case: English

Parties

Applicant: NDSHT Nya Destination Stockholm Hotell & Teaterpaket AB (Stockholm, Sweden) (represented by: M. Merola and L. Armati, lawyers)

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

Re:

Application for the annulment of the decision contained in the Commission’s letters to NDSHT of 24 March and 28 April 2006, relating to a complaint concerning allegedly unlawful State aid granted by the City of Stockholm to Stockholm Visitors Board AB (Case CP 178/04 — Alleged State aid to SVB AB),

Operative part of the judgment

The Court:

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

1.

Dismisses the action as inadmissible;

| 2. | Orders NDSHT Nya Destination Stockholm Hotell & Teaterpaket AB to pay the costs. |
| --- | --- |

2.

Orders NDSHT Nya Destination Stockholm Hotell & Teaterpaket AB to pay the costs.

---

(1)  OJ C 178, 29.7.2006.

---

| 18.7.2009 | EN | Official Journal of the European Union | C 167/9 |
| --- | --- | --- | --- |

18.7.2009

EN

Official Journal of the European Union

C 167/9

---

Judgment of the Court of First Instance of 3 June 2009 — Commission v Burie Onderzoek en advies

(Case T-179/06) (1)

(Arbitration clause - Contracts concluded under the RACE II programme and a specific programme in the field of telematic applications of common interest - Repayment of part of the advances paid - Jurisdiction of the Court of First Instance - Partial inadmissibility - Principle of sound administration - Counterclaim)

2009/C 167/19

Language of the case: Dutch

Parties

Applicant: Commission of the European Communities (represented initially by A. Weimar and L. Escobar Guerrero, and subsequently by W. Roels, Agents, assisted by W. Rupert)

Defendant: Burie Onderzoek en Advies BV (Nijeholtpade, Netherlands) (represented by: I. van den Berge and A. Appelman, lawyers)

Re:

Application pursuant to an arbitration clause within the meaning of Article 238 EC seeking an order that Burie Onderzoek en Advies BV repay part of the advances paid by the European Community, together with default interest, in implementation of two financing contracts in the field of advanced communications technologies in Europe and of telematic applications.

Operative part of the judgment

The Court:

| 1. | Dismisses as inadmissible the action concerning the repayment of advances paid by the Commission under the Barbara (Broad Range of Community Based Telematics Applications in Rural Areas) contract with reference number ‘Project R 2022’ in so far as that action is directed against Burie Onderzoek en Advies BV, on the ground that it is clear that the Court of First Instance has no jurisdiction to take cognisance of the action; |
| --- | --- |

1.

Dismisses as inadmissible the action concerning the repayment of advances paid by the Commission under the Barbara (Broad Range of Community Based Telematics Applications in Rural Areas) contract with reference number ‘Project R 2022’ in so far as that action is directed against Burie Onderzoek en Advies BV, on the ground that it is clear that the Court of First Instance has no jurisdiction to take cognisance of the action;

| 2. | Orders Burie Onderzoek en Advies, under the Telepromise (Telematics to Provide for Missing Services) contract with reference number ‘Project UR 1028’, to pay the Commission the principal sum of EUR 109 535,62 plus default interest at the applicable statutory rate in the Netherlands from 31 August 2001 until full payment of the debt; |
| --- | --- |

2.

Orders Burie Onderzoek en Advies, under the Telepromise (Telematics to Provide for Missing Services) contract with reference number ‘Project UR 1028’, to pay the Commission the principal sum of EUR 109 535,62 plus default interest at the applicable statutory rate in the Netherlands from 31 August 2001 until full payment of the debt;

| 3. | Dismisses the counterclaim of Burie Onderzoek en Advies; |
| --- | --- |

3.

Dismisses the counterclaim of Burie Onderzoek en Advies;

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

4.

Orders each party to bear its own costs.

---

(1)  OJ C 224, 16.9.2006.

---

| 18.7.2009 | EN | Official Journal of the European Union | C 167/10 |
| --- | --- | --- | --- |

18.7.2009

EN

Official Journal of the European Union

C 167/10

---

Judgment of the Court of First Instance of 3 June 2009 — Frosch Touristik v OHIM — DSR touristik (FLUGBÖRSE)

(Case T-189/07) (1)

(Community trade mark - Invalidity proceedings - Community word mark FLUGBÖRSE - Material date for the examination of an absolute ground for invalidity - Article 51(1)(a) of Regulation (EC) No 40/94 (now Article 52(1)(a) of Regulation (EC) No 207/2009)

2009/C 167/20

Language of the case: German

Parties

Applicant: Frosch Touristik GmbH (Munich, Germany) (represented by: H. Lauf and T. Raab, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: DSR touristik GmbH (Karlsruhe, Germany)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 22 March 2007 (Case R 1084/2004-4), relating to invalidity proceedings between DSR touristik GmbH and Frosch Touristik GmbH

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 22 March 2007 (Case R 1084/2004-4). |
| --- | --- |

1.

Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 22 March 2007 (Case R 1084/2004-4).

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

2.

Orders OHIM to pay the costs.

---

(1)  OJ C 183, 4.8.2007.

---

| 18.7.2009 | EN | Official Journal of the European Union | C 167/10 |
| --- | --- | --- | --- |

18.7.2009

EN

Official Journal of the European Union

C 167/10

---

Order of the Court of First Instance of 14 May 2009 — US Steel Košice v Commission

(Case T-22/07) (1)

(Action for annulment - State aid - Act of Accession - Condition imposed on the beneficiary to limit its sales of flat products in the ‘enlarged EU’ - Commission letter interpreting the condition as applying to the Bulgarian and Romanian markets from the date of their accession - Act not amenable to review - Inadmissibility)

2009/C 167/21

Language of the case: English

Parties

Applicant: US Steel Košice s.r.o. (Košice, Slovakia) (represented by: E. Vermulst and S. Van Cutsem, lawyers)

Defendant: Commission of the European Communities (represented by: K. Gross and T. Scharf, acting as Agents)

Intervener in support of the applicant: Slovak Republic (represented by: J. Čorba, Agent)

Re:

Action for annulment of the decision allegedly contained in the Commission’s letter of 22 November 2006, inasmuch as it interprets the condition imposed on the applicant to limit its sales of flat products in the ‘enlarged EU’ as applying also, from 1 January 2007, to the Bulgarian and Romanian markets.

Operative part of the order

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

1.

The action is dismissed as inadmissible.

| 2. | US Steel Košice s.r.o. shall bear its own costs and pay those incurred by the Commission. |
| --- | --- |

2.

US Steel Košice s.r.o. shall bear its own costs and pay those incurred by the Commission.

| 3. | The Slovak Republic shall bear its own costs. |
| --- | --- |

3.

The Slovak Republic shall bear its own costs.

---

(1)  OJ C 56, 10.3.2007.

---

| 18.7.2009 | EN | Official Journal of the European Union | C 167/11 |
| --- | --- | --- | --- |

18.7.2009

EN

Official Journal of the European Union

C 167/11

---

Order of the Court of First Instance of 20 April 2009 — Murnauer Markenvertrieb v OHIM — Fitne Gesundheit und Wellness (Notfall Bonbons)

(Case T-372/08) (1)

(Community trade mark - Application for a declaration of invalidity - Withdrawal of the application for a declaration of invalidity - No need to adjudicate)

2009/C 167/22

Language of the case: German

Parties

Applicant: Murnauer Markenvertrieb GmbH (Trebur, Germany) (represented by: H. Daniel and O.I. Haleen, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Fitne Gesundheit und Wellness GmbH (Salzhemmendorf, Germany) (represented by: M. De Zorti, T. Grimm and M. Koch, lawyers)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 10 July 2008 (Case R 909/2007-1) relating to invalidity proceedings between Murnauer Markenvertrieb GmbH and Fitne Gesundheit und Wellness GmbH.

Operative part of the order

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

1.

There is no need to adjudicate on the action.

| 2. | Murnauer Markenvertrieb GmbH and Fitne Gesundheit und Wellness GmbH are ordered to pay their own costs, and half each of the costs of the Office for Harmonisation in the Internal Market (Trade Marks and Designs). |
| --- | --- |

2.

Murnauer Markenvertrieb GmbH and Fitne Gesundheit und Wellness GmbH are ordered to pay their own costs, and half each of the costs of the Office for Harmonisation in the Internal Market (Trade Marks and Designs).

---

(1)  OJ C 313, 6.12.2008.

---

| 18.7.2009 | EN | Official Journal of the European Union | C 167/11 |
| --- | --- | --- | --- |

18.7.2009

EN

Official Journal of the European Union

C 167/11

---

Order of the Court of First Instance of 23 April 2009 — New Europe v Commission of the European Communities

(Case T-383/08) (1)

(Formal inadmissibility of the application - Name of the applicant - Legal person governed by private law - Authority - Manifest inadmissibility - Intervention)

2009/C 167/23

Language of the case: English

Parties

Applicant: New Europe (Brussels, Belgium) (represented by: A.-M. Alamanou, lawyer)

Defendant: Commission of the European Communities

Re:

Application for annulment of the Commission decision taken in the form of a letter of 2 July 2008 refusing to inform the applicant of the names of the companies and persons cited in the documents disclosed by the Commission relating to the ‘Eximo’ case,

Operative part of the order

| 1. | The application is dismissed as being inadmissible. |
| --- | --- |

1.

The application is dismissed as being inadmissible.

| 2. | The applicant shall bear its own costs. |
| --- | --- |

2.

The applicant shall bear its own costs.

| 3. | There is no need to rule on the application for leave to intervene submitted by the European Data Protection Supervisor. |
| --- | --- |

3.

There is no need to rule on the application for leave to intervene submitted by the European Data Protection Supervisor.

---

(1)  OJ C 301 of 22.11.2008.

---

| 18.7.2009 | EN | Official Journal of the European Union | C 167/11 |
| --- | --- | --- | --- |

18.7.2009

EN

Official Journal of the European Union

C 167/11

---

Order of the Court of First Instance of 21 April 2009 — Winzer Pharma v OHIM — Alcon (OFTAL CUSI)

(Case T-462/08) (1)

(Community trade mark - Annulment of the decision of the Board of Appeal - No need to adjudicate)

2009/C 167/24

Language of the case: Spanish

Parties

Applicant: Dr. Robert Winzer Pharma GmbH (Berlin, Germany) (represented by: S. Schneller, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Alcon Inc. (Hünenberg, Switzerland) (represented by: J. Isern Jara and M. Vidal-Quadras Trias de Bes, lawyers)

Re:

Action brought against the decision of the Board of Appeal of OHIM of 17 July 2008 (case R 1471/2007-1), relating to opposition proceedings between Dr. Robert Winzer Pharma GmbH and Alcon Inc.

Operative part of the order

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

1.

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

| 2. | The defendant is ordered to bear its own costs and the costs incurred by the applicant. |
| --- | --- |

2.

The defendant is ordered to bear its own costs and the costs incurred by the applicant.

| 3. | The intervener is ordered to bear its own costs. |
| --- | --- |

3.

The intervener is ordered to bear its own costs.

---

(1)  OJ C 327 of 20.12.2008.

---

| 18.7.2009 | EN | Official Journal of the European Union | C 167/12 |
| --- | --- | --- | --- |

18.7.2009

EN

Official Journal of the European Union

C 167/12

---

Order of the Court of First Instance of 25 May 2009 — Biofrescos v Commission

(Case T-159/09 R)

(Application for interim measures - Application for suspension of operation - Submission of the application - Inadmissibility - Financial loss - Lack of urgency)

2009/C 167/25

Language of the case: Portuguese

Parties

Applicant: Biofrescos — Comércio de Produtos Alimentares, Lda (Linda-a-Velha, Portugal) (represented by: A. Magalhães Menezes, lawyer)

Defendant: Commission of the European Communities (represented by: R. Lyal, P. Guerra e Andrade and L. Bouyon, acting as Agents)

Re:

Application for suspension of the recovery of import duties not yet demanded of the applicant, in so far as that recovery was ordered by Commission Decision C (2009) 72 final of 16 January 2009, finding that it is justified to proceed to recovery a posteriori of those duties and that remission of those duties is not justified in the applicant’s case.

Operative part of the order

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

1.

The application for interim measures is dismissed.

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

2.

Costs are reserved.

---

| 18.7.2009 | EN | Official Journal of the European Union | C 167/12 |
| --- | --- | --- | --- |

18.7.2009

EN

Official Journal of the European Union

C 167/12

---

Action brought on 15 April 2009 — Abdulrahim v Council and Commission

(Case T-127/09)

2009/C 167/26

Language of the case: English

Parties

Applicant: Abdulbasit Abdulrahim (London, United Kingdom) (represented by: J. Jones, Barrister and M. Arani, Solicitor)

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

Form of order sought

| — | annul in whole or in part Regulation (EC) No 881/2002, as amended by the Commission Regulation (EC) No 1330/2008, and/or the Commission Regulation (EC) No 1330/2008, insofar as they are of direct and individual concern to the Applicant; |
| --- | --- |

—

annul in whole or in part Regulation (EC) No 881/2002, as amended by the Commission Regulation (EC) No 1330/2008, and/or the Commission Regulation (EC) No 1330/2008, insofar as they are of direct and individual concern to the Applicant;

| — | or, in the alternative, to declare Council Regulation (EC) No 881/2002 and/or Commission Regulation (EC) No 1330/2008 to be inapplicable to the applicant; |
| --- | --- |

—

or, in the alternative, to declare Council Regulation (EC) No 881/2002 and/or Commission Regulation (EC) No 1330/2008 to be inapplicable to the applicant;

| — | or, in the alternative, to consider the basis for listing of the Applicant’s name in Annex I of the Council Regulation (EC) No 881/2002 and determine whether the Commission’s decision to add the applicant’s name in Annex I is appropriate and well-founded on the law and on the facts; |
| --- | --- |

—

or, in the alternative, to consider the basis for listing of the Applicant’s name in Annex I of the Council Regulation (EC) No 881/2002 and determine whether the Commission’s decision to add the applicant’s name in Annex I is appropriate and well-founded on the law and on the facts;

| — | to order the defendants to provide for reasons and evidence for listing the applicant’s name in annex I of the Council Regulation (EC) No 881/2002, within a strict time-frame; |
| --- | --- |

—

to order the defendants to provide for reasons and evidence for listing the applicant’s name in annex I of the Council Regulation (EC) No 881/2002, within a strict time-frame;

| — | decide that listing of the applicant’s name in Annex I is inappropriate and unfounded on the law and on the facts and order the applicant’s name be deleted from the Annex I of the Council Regulation (EC) No 881/2002; |
| --- | --- |

—

decide that listing of the applicant’s name in Annex I is inappropriate and unfounded on the law and on the facts and order the applicant’s name be deleted from the Annex I of the Council Regulation (EC) No 881/2002;

| — | take such further action as it may deem appropriate; |
| --- | --- |

—

take such further action as it may deem appropriate;

| — | order the defendant, the Council and/or the Commission to pay the applicant’s costs; |
| --- | --- |

—

order the defendant, the Council and/or the Commission to pay the applicant’s costs;

| — | order the defendant, the Council and/or the Commission, to pay damages to the applicant for loss of earnings, loss of profit and non-material damage. |
| --- | --- |

—

order the defendant, the Council and/or the Commission, to pay damages to the applicant for loss of earnings, loss of profit and non-material damage.

Pleas in law and main arguments

In the present case the applicant seeks the partial annulment of Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban as amended by Commission Regulation (EC) No 1330/2008 of 22 December 2008 (1) 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. In the alternative, the applicant requests the Court, pursuant to Article 241 EC, to declare the Council Regulation No 881/2002 and Commission Regulation No 1330/2008 to be inapplicable to the applicant. He also requests the Court to order the defendants to pay damages.

In support of its claims the applicant submits that the contested regulations infringe his fundamental human rights as guaranteed by the European Convention for the Protection of the Human Rights and Fundamental Freedoms and by the Charter of Fundamental Right and Freedoms of the European Union.

First, he claims that the contested regulations infringe his right to be heard, right to effective judicial review and right to a fair trial as he has never been informed by the Council or the Commission of the reasons for his inclusion in Annex I and has never received any evidence justifying the listing decision. Thus, the applicant contends that he has not been given the possibility to comment on the grounds and reasons for including his name in Annex I of the contested Regulation and in consequence, he has not been able to challenge the listing decision before any judicial body.

Second, the applicant submits that the contested measures infringe his right for respect for property and constitute a disproportionate interference with his private and family life.

---

(1)  OJ 2008 L 345, p. 60

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| 18.7.2009 | EN | Official Journal of the European Union | C 167/13 |
| --- | --- | --- | --- |

18.7.2009

EN

Official Journal of the European Union

C 167/13

---

Action brought on 20 April 2009 — Winzer Pharma v OHIM

(Case T-160/09)

2009/C 167/27

Language in which the application was lodged: German

Parties

Applicant: Dr. Winzer Pharma GmbH (Berlin, Germany) (represented by: S. Schneller, lawyer)

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

Other party/parties to the proceedings before the Board of Appeal of OHIM: Alcon Inc.

Forms of orders sought

| — | Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 4 February 2009 in case R 147/2007-1 and uphold the opposition No B 809899; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 4 February 2009 in case R 147/2007-1 and uphold the opposition No B 809899;

| — | Grant an oral procedure; |
| --- | --- |

—

Grant an oral procedure;

| — | Order OHIM or, in the alternative, the intervener, to bear all the costs of the proceedings; and |
| --- | --- |

—

Order OHIM or, in the alternative, the intervener, to bear all the costs of the proceedings; and

| — | In the alternative, remit the case to OHIM. |
| --- | --- |

—

In the alternative, remit the case to OHIM.

Pleas in law and main arguments

Applicant for a Community trade mark: Alcon Cusì SA, who later transferred its rights to Alcon Inc.

Community trade mark concerned: Word mark ‘OFTAL CUSI’ of goods in class 5 (Registration No 3 679 181)

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

Mark or sign cited in opposition: Word mark ‘Opthal’ for goods in class 5 (Registration No 489 948)

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009), as there is a likelihood of confusion or at least a likelihood of association between the marks at issue.

---

| 18.7.2009 | EN | Official Journal of the European Union | C 167/13 |
| --- | --- | --- | --- |

18.7.2009

EN

Official Journal of the European Union

C 167/13

---

Action brought on 24 April 2009 — Würth and Fasteners (Shenyang) v Council

(Case T-162/09)

2009/C 167/28

Language of the case: German

Parties

Applicants: Adolf Würth GmbH & Co KG (Künzelsau, Germany) and Arnold Fasteners (Shenyang) Co Ltd (Shenyang, China) (represented by: M. Karl and M. Mayer, lawyers)

Defendant: Council of the European Union

Forms of order sought

| — | Annul Council Regulation (EC) No 91/2009 of 26 January 2009 imposing a definitive anti-dumping duty on imports of certain iron or steel fasteners originating in the People’s Republic of China; or alternatively |
| --- | --- |

—

Annul Council Regulation (EC) No 91/2009 of 26 January 2009 imposing a definitive anti-dumping duty on imports of certain iron or steel fasteners originating in the People’s Republic of China; or alternatively

| — | Annul Council Regulation (EC) No 91/2009 of 26 January 2009 imposing a definitive anti-dumping duty on imports of certain iron or steel fasteners originating in the People’s Republic of China in so far as it individually affects the applicants; and |
| --- | --- |

—

Annul Council Regulation (EC) No 91/2009 of 26 January 2009 imposing a definitive anti-dumping duty on imports of certain iron or steel fasteners originating in the People’s Republic of China in so far as it individually affects the applicants; and

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

—

Order the Council to pay the costs.

Pleas in law and main arguments

On the Commission’s proposal, on 26 January 2009 the Council issued, on the basis of the so-called basic anti-dumping regulation, (1) Regulation (EC) No 91/2009 imposing a definitive anti-dumping duty on imports of certain iron or steel fasteners originating in the People’s Republic of China (2).

The applicants claim to be affected by the anti-dumping duties imposed by that regulation and request (in this respect) the annulment of the regulation.

In support of their action, the applicants refer in the first plea to alleged irregularities in the anti-dumping procedure.

In the second to sixth pleas the applicants complain of an infringement of higher-ranking Community law:

| — | The Commission did not carefully and impartially investigate all the relevant aspects of the individual case and did not sufficiently investigate the facts of the case, which lead to an infringement of the duty to state reasons in Article 253 EC. |
| --- | --- |

—

The Commission did not carefully and impartially investigate all the relevant aspects of the individual case and did not sufficiently investigate the facts of the case, which lead to an infringement of the duty to state reasons in Article 253 EC.

| — | The normal value used in Regulation No 91/2009 was, in breach of Article 2(7)(a) of Regulation No 384/96, investigated in a legally defective manner. |
| --- | --- |

—

The normal value used in Regulation No 91/2009 was, in breach of Article 2(7)(a) of Regulation No 384/96, investigated in a legally defective manner.

| — | The thresholds for the admissibility of an anti-dumping procedure under Article 5(4), subparagraph 3, were not reached. |
| --- | --- |

—

The thresholds for the admissibility of an anti-dumping procedure under Article 5(4), subparagraph 3, were not reached.

| — | The concept ‘like product’ in Article 1(4) of Regulation No 384/96 was stretched in the contested regulation, as the goods concerned produced in the People’s Republic of China and the goods manufactured in the Community are not comparable and are not interchangeable. |
| --- | --- |

—

The concept ‘like product’ in Article 1(4) of Regulation No 384/96 was stretched in the contested regulation, as the goods concerned produced in the People’s Republic of China and the goods manufactured in the Community are not comparable and are not interchangeable.

| — | There is no injury to Community industry which is necessary for the establishment of anti-dumping duties under Article 1(1) and Article 3 of Regulation No 384/96. |
| --- | --- |

—

There is no injury to Community industry which is necessary for the establishment of anti-dumping duties under Article 1(1) and Article 3 of Regulation No 384/96.

The applicants claim finally in the seventh plea a misuse of powers on the part of the Community institutions during the examination of the criteria of injury, causality and Community interest.

---

(1)  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), last amended by Regulation (EC) No 2117/2005 (OJ 2005 L 340, p. 17).

(2)  Regulation (EC) No 91/2009 imposing a definitive anti-dumping duty on imports of certain iron or steel fasteners originating in the People’s Republic of China (OJ 2009 L 340, p. 17).

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| 18.7.2009 | EN | Official Journal of the European Union | C 167/14 |
| --- | --- | --- | --- |

18.7.2009

EN

Official Journal of the European Union

C 167/14

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Appeal brought on 24 April 2009 by the Commission of the European Communities against the judgment of the Civil Service Tribunal delivered on 17 February 2009 in Case F-38/08 Liotti v Commission

(Case T-167/09 P)

2009/C 167/29

Language of the case: French

Parties

Appellant: Commission of the European Communities (represented by B. Eggers and K. Herrmann, acting as Agents)

Other party to the proceedings: Amerigo Liotti (Senningerberg, Luxembourg)

Form of order sought by the appellant

| — | Set aside the judgment of the Civil Service Tribunal of 17 February 2009 in Case F-38/08 Liotti v Commission; |
| --- | --- |

—

Set aside the judgment of the Civil Service Tribunal of 17 February 2009 in Case F-38/08 Liotti v Commission;

| — | order the applicant to pay the costs of the proceedings before the Civil Service Tribunal and of the appeal. |
| --- | --- |

—

order the applicant to pay the costs of the proceedings before the Civil Service Tribunal and of the appeal.

Pleas in law and main arguments

By this appeal, the Commission of the European Communities asks the Court of First Instance to set aside the judgment of the Civil Service Tribunal (‘the Tribunal’) of 17 February 2009 in Case F-38/08 Liotti v Commission, by which the Tribunal annulled Mr Liotti’s career development report (CDR) for the period from 1 January to 31 December 2006.

In support of its appeal, the Commission advances three pleas in law, alleging:

| — | an infringement of Community law in so far as Article 8(7) of the general provisions for implementing Article 43 of the Staff Regulations of Officials of the European Communities (‘the GIP’) does not lay down an obligation at countersigning officer level, or even at Director-General level, to consider the application of appraisal rules in all draft CDRs for a particular grade; |
| --- | --- |

—

an infringement of Community law in so far as Article 8(7) of the general provisions for implementing Article 43 of the Staff Regulations of Officials of the European Communities (‘the GIP’) does not lay down an obligation at countersigning officer level, or even at Director-General level, to consider the application of appraisal rules in all draft CDRs for a particular grade;

| — | breaches of procedure before the Tribunal adversely affecting the Commission’s interests since, by raising of its own motion at the hearing the requirements of concertation and consistency provided for in Article 8(7) of the GIP, the Tribunal infringed the Commission’s rights of defence by depriving it of the opportunity to produce conclusive factual evidence to prove that there was no infringement of Article 8(7) of the GIP when the CDR at issue was drawn up; |
| --- | --- |

—

breaches of procedure before the Tribunal adversely affecting the Commission’s interests since, by raising of its own motion at the hearing the requirements of concertation and consistency provided for in Article 8(7) of the GIP, the Tribunal infringed the Commission’s rights of defence by depriving it of the opportunity to produce conclusive factual evidence to prove that there was no infringement of Article 8(7) of the GIP when the CDR at issue was drawn up;

| — | an error of law in so far as the Tribunal treated the failure to take account of the provisions of Article 8(3) of the GIP as an infringement of an essential procedural requirement and/or a substantial irregularity resulting in the annulment of the CDR in dispute before the Tribunal. |
| --- | --- |

—

an error of law in so far as the Tribunal treated the failure to take account of the provisions of Article 8(3) of the GIP as an infringement of an essential procedural requirement and/or a substantial irregularity resulting in the annulment of the CDR in dispute before the Tribunal.

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| 18.7.2009 | EN | Official Journal of the European Union | C 167/15 |
| --- | --- | --- | --- |

18.7.2009

EN

Official Journal of the European Union

C 167/15

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Action brought on 5 May 2009 — Z v Commission

(Case T-173/09)

2009/C 167/30

Language of the case: German

Parties

Applicant: Z (Hannover, Germany) (represented by: C. Grau and N. Jäger, lawyers)

Defendant: Commission of the European Communities

Forms of order sought

| — | Grant the applicant, through acces to the file in Case COMP/39406 — ‘Marine Hoses’ — in particular through the provision of a copy of the Commission Decision of 28 January 2009, which imposed a fine on Dunlop Oil & Marine/ContiTech AG/Continental AG for their alleged participation in the marine hoses cartel between 1986 and 2007, information about whether it is identified by name in that decision and — if so — in what context the identification of the applicant takes place, in particular the extent to which relevant cartel- or criminal law representations relating to the applicant are included in the Commission decision; |
| --- | --- |

—

Grant the applicant, through acces to the file in Case COMP/39406 — ‘Marine Hoses’ — in particular through the provision of a copy of the Commission Decision of 28 January 2009, which imposed a fine on Dunlop Oil & Marine/ContiTech AG/Continental AG for their alleged participation in the marine hoses cartel between 1986 and 2007, information about whether it is identified by name in that decision and — if so — in what context the identification of the applicant takes place, in particular the extent to which relevant cartel- or criminal law representations relating to the applicant are included in the Commission decision;

| — | Remove, after the granting of access to the file, any references, yet to be defined, identifying the applicant by name, in particular relevant cartel- and criminal law representations relating to the applicant in the Commission Decision of 28 January 2009, which imposed a fine on Dunlop Oil & Marine/ContiTech AG/Continental AG for their alleged participation in the marine hoses cartel between 1986 and 2007; |
| --- | --- |

—

Remove, after the granting of access to the file, any references, yet to be defined, identifying the applicant by name, in particular relevant cartel- and criminal law representations relating to the applicant in the Commission Decision of 28 January 2009, which imposed a fine on Dunlop Oil & Marine/ContiTech AG/Continental AG for their alleged participation in the marine hoses cartel between 1986 and 2007;

| — | Remove the identification by name of the applicant and any references to the applicant in the version of the decision to be published; |
| --- | --- |

—

Remove the identification by name of the applicant and any references to the applicant in the version of the decision to be published;

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

The applicant contests the Commission’s refusal of 5 March 2009 to grant it access to the documents on the file in Case COMP/39.406 — ‘Marine Hoses’. The applicant also requests the removal of possible references to itself in the Commission decision of 28 January 2009 in this case and the removal of references to itself in the version of the decision to be published.

The applicant asserts in support of the action that the right to be granted access to the file and the removal of any references to the applicant are based on the infringement of the applicant’s fundamental procedural rights, namely the right to a fair hearing and the right of access to the file, and on the principle of the presumption of innocence. A right of access to the file is based also on the right of public access to Commission documents under Regulation (EC) No 1049/2001 (1).

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(1)  Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).

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| 18.7.2009 | EN | Official Journal of the European Union | C 167/15 |
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18.7.2009

EN

Official Journal of the European Union

C 167/15

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Appeal brought on 27 April 2009 by the Council of the European Union against the judgment of the Civil Service Tribunal delivered on 17 February 2009 in Case F-51/08, Stols v Council

(Case T-175/09 P)

2009/C 167/31

Language of the case: French

Parties

Appellant: Council of the European Union (represented by M. Bauer and G. Kimberley, acting as Agents)

Other party to the proceedings: Willem Stols (Halsteren, Netherlands)

Form of order sought by the appellant

| — | Set aside the judgment of the CST of 17 February 2009 in Case F-51/08 Willem Stols v Council, |
| --- | --- |

—

Set aside the judgment of the CST of 17 February 2009 in Case F-51/08 Willem Stols v Council,

| — | Dismiss the action of 21 May 2008 by which Mr Stols had sought annulment of the decision of 16 July 2007 by which the Council refused to include him on the list of officials promoted to grade AST 11 for the 2007 promotion exercise, together with the decision of 5 February 2008 by which the Deputy Secretary-General of the Council had rejected, as the appointing authority, Mr Stols’ complaint submitted in accordance with Article 90(2) of the Staff Regulations, |
| --- | --- |

—

Dismiss the action of 21 May 2008 by which Mr Stols had sought annulment of the decision of 16 July 2007 by which the Council refused to include him on the list of officials promoted to grade AST 11 for the 2007 promotion exercise, together with the decision of 5 February 2008 by which the Deputy Secretary-General of the Council had rejected, as the appointing authority, Mr Stols’ complaint submitted in accordance with Article 90(2) of the Staff Regulations,

| — | Order the defendant to pay all the costs incurred at first instance and on appeal. |
| --- | --- |

—

Order the defendant to pay all the costs incurred at first instance and on appeal.

Pleas in law and main arguments

By the present appeal, the Council of the European Union seeks to have set aside the judgment of the Civil Service Tribunal (CST) of 17 February 2009 in Case F-51/08 Stols v Council, by which the CST annulled the Council decisions refusing to promote Mr Stols to grade AST 11 in the context of the 2007 promotion exercise.

In support of its appeal, the Council relies on two grounds of appeal alleging:

| — | an error of law, in so far as the CST exceeded the limits set by the case-law to the review by the Community judicature of the wide discretion enjoyed by the appointing authority for the purposes of the comparative consideration of the merits of officials who are candidatesfor promotion; |
| --- | --- |

—

an error of law, in so far as the CST exceeded the limits set by the case-law to the review by the Community judicature of the wide discretion enjoyed by the appointing authority for the purposes of the comparative consideration of the merits of officials who are candidatesfor promotion;

| — | an infringement of the obligation to state reasons, as the judgment under appeal is marred by numerous omissions and imprecisions which render incomprehensible the basis on which the CST actually concluded that there was a manifest error on the part of the Council difficult to understand. |
| --- | --- |

—

an infringement of the obligation to state reasons, as the judgment under appeal is marred by numerous omissions and imprecisions which render incomprehensible the basis on which the CST actually concluded that there was a manifest error on the part of the Council difficult to understand.

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| 18.7.2009 | EN | Official Journal of the European Union | C 167/16 |
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18.7.2009

EN

Official Journal of the European Union

C 167/16

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Action brought on 28 April 2009 — Dunamenti Erőmű v Commission

(Case T-179/09)

2009/C 167/32

Language of the case: English

Parties

Applicant: Dunamenti Erőmű Zrt. (Százhalombatta, Hungary), (represented by: J. Lever, QC, A. Nourry and R. Griffith, Solicitors)

Defendant: Commission of the European Communities

Form of order sought

| — | annul the decision and each of the operative provisions of the dispositif in so far as they apply to the applicant; |
| --- | --- |

—

annul the decision and each of the operative provisions of the dispositif in so far as they apply to the applicant;

| — | alternatively, annul Articles 2 and 5 of the Decision in so far as they order recovery of aid from the applicant in excess of any aid which should have been found by the Commission to be incompatible with the common market; |
| --- | --- |

—

alternatively, annul Articles 2 and 5 of the Decision in so far as they order recovery of aid from the applicant in excess of any aid which should have been found by the Commission to be incompatible with the common market;

| — | order a measure of inquiry under Article 65 of the Rules of procedure requesting the Commission to provide to the Court copies of all written communications between the Commission and the Hungarian authorities and all records of meetings and discussions between them, such as are contemplated by paragraph 466 of the contested decision; |
| --- | --- |

—

order a measure of inquiry under Article 65 of the Rules of procedure requesting the Commission to provide to the Court copies of all written communications between the Commission and the Hungarian authorities and all records of meetings and discussions between them, such as are contemplated by paragraph 466 of the contested decision;

| — | if the Court in its wisdom agrees that it could be assisted by an expert or experts, order a measure of inquiry commissioning a report or reports from same and any other measures of inquiry as the Court in its wisdom considers to be appropriate; |
| --- | --- |

—

if the Court in its wisdom agrees that it could be assisted by an expert or experts, order a measure of inquiry commissioning a report or reports from same and any other measures of inquiry as the Court in its wisdom considers to be appropriate;

| — | order that the Commission pays the applicant’s costs herein. |
| --- | --- |

—

order that the Commission pays the applicant’s costs herein.

Pleas in law and main arguments

The applicant seeks the annulment of Commission Decision C (2008) 2223 final, of 4 June 2008, declaring incompatible with the common market the aid granted by the Hungarian authorities to certain electricity generating producers in the form of long-term power purchase agreements (‘PPA’) of electricity concluded between the transmission operator Magyar Villamos Müvek Rt. (‘MVM’), owned by the Hungarian State, and these producers at a date prior to accession of the Republic of Hungary to the European Union [State aid C 41/2005 (ex NN 49/2005) — Hungarian ‘Stranded Costs’]. The applicant is identified in the contested decision as a beneficiary of the alleged State aid and the decision orders Hungary to recover the aid, including interest, from the applicant.

The applicant puts forward four pleas in law in support of its claims.

In its first plea, the applicant submits that the Commission infringed Article 87(1) EC in as much as it qualified the applicant’s PPA as aid measure even so the Commission recognised that it constituted an ‘essential’ pre-privatisation agreement. In applicant’s opinion, the Hungarian authorities were therefore acting in accordance with the market economy investor principle. The applicant contends that the Commission misapplied the Treaty of accession of Hungary and Article 1(b)(v) of Council Regulation No 659/1999 (1).

Second, the applicant claims that even if, quod non, the PPA had granted State aid to the applicant in 1995, the applicant was entitled to rely on a legitimate expectation that, under Community law, such aid would be treated as existing aid.

Third, the applicant argues that by qualifying the applicant’s PPA as incompatible State aid the decision infringes the principle of proportionality as the aid was wrongly classified as operating aid and should not have been held to be incompatible even in so far as it compensated the applicant for its stranded costs. Further, the applicant submits that this conclusion is vitiated by inadequate and/or defective reasoning and infringes Article 87(3)(a) EC by failing to recognize any role for applicant’s PPA in promoting the economic development.

Fourth, the applicant claims that the recovery order infringes Article 14(1) of Council Regulation No 659/1999 and general principles of Community law such as principle of legitimate interests and legitimate expectations. Furthermore, the applicant states that the Commission infringed essential procedural requirements, such as its procedural rights to a fair hearing.

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

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| 18.7.2009 | EN | Official Journal of the European Union | C 167/17 |
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18.7.2009

EN

Official Journal of the European Union

C 167/17

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Action brought on 12 May 2009 — Poloplast v OHIM — Polypipe Building Products (P)

(Case T-189/09)

2009/C 167/33

Language in which the application was lodged: German

Parties

Applicant: Poloplast GmbH & Co KG (Leonding, Austria) (represented by: G. Bruckmüller, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Polypipe Building Products Ltd (Edlington, United Kingdom)

Form of order sought

| — | Annul the contested decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market of 25 February 2009 or alter it in such a way that it establishes that there is no likelihood of confusion between the markets covered, and |
| --- | --- |

—

Annul the contested decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market of 25 February 2009 or alter it in such a way that it establishes that there is no likelihood of confusion between the markets covered, and

| — | Order the Office for Harmonisation in the Internal Market to pay the applicant’s costs. |
| --- | --- |

—

Order the Office for Harmonisation in the Internal Market to pay the applicant’s costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Poloplast GmbH & Co KG.

Community trade mark concerned: the figurative mark ‘p’ for goods and services in Classes 6, 11, 17, 19 and 42 (application No 3 148 194).

Proprietor of the mark or sign cited in the opposition proceedings: Polypipe Building Products Ltd.

Mark or sign cited in opposition: the figurative mark ‘P’ for goods in Class 17 (Community trade mark No 33 191) and the figurative mark ‘P POLYPIPE’ for goods in Classes 6, 11, 17, 19 and 20 (Community trade mark No 2 685 691).

Decision of the Opposition Division: Rejection of the opposition.

Decision of the Board of Appeal: Partial dismissal of the appeal.

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009 (1)), as there is no likelihood of confusion between the two marks at issue.

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(1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).

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| 18.7.2009 | EN | Official Journal of the European Union | C 167/17 |
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18.7.2009

EN

Official Journal of the European Union

C 167/17

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Action brought on 13 May 2009 — Longevity Health Products v OHIM — Performing Science (5 HTP)

(Case T-190/09)

2009/C 167/34

Language in which the application was lodged: German

Parties

Applicant: Longevity Health Products, Inc (represented by: J. Korab, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Performing Science LLC

Forms of order sought

| — | Declare the appeal of Longevity Health Products, Inc admissible, |
| --- | --- |

—

Declare the appeal of Longevity Health Products, Inc admissible,

| — | Annul the decision of the Fourth Board of Appeal of 21 April 2009 and dismiss the application by Performing Science LLC that Community trade mark No 002846483 — ‘5 HTP’ be declared invalid, and |
| --- | --- |

—

Annul the decision of the Fourth Board of Appeal of 21 April 2009 and dismiss the application by Performing Science LLC that Community trade mark No 002846483 — ‘5 HTP’ be declared invalid, and

| — | Order the Office for Harmonisation in the Internal Market to pay the costs. |
| --- | --- |

—

Order the Office for Harmonisation in the Internal Market to pay the costs.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: the word mark ‘5 HTP’ for goods and services in Classes 5, 16 and 35 (Community trade mark No 2 846 483).

Proprietor of the Community trade mark: Longevity Health Products, Inc.

Applicant for the declaration of invalidity: Performing Science LLC.

Decision of the Cancellation Division: Application for declaration of invalidity of the trade mark concerned partially granted.

Decision of the Board of Appeal: Dismissal of the applicant’s appeal.

Pleas in law: Infringement of Article 7(1)(d) of Regulation (EC) No 40/94 (now Article 7(1)(d) of Regulation (EC) No 207/2009 (1).

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(1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).

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| 18.7.2009 | EN | Official Journal of the European Union | C 167/18 |
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18.7.2009

EN

Official Journal of the European Union

C 167/18

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Action brought on 14 May 2009 — Amen Corner v OHIM — Comercio Electrónico Ojal (SEVE TROPHY)

(Case T-192/09)

2009/C 167/35

Language in which the application was lodged: Spanish

Parties

Applicant: Amen Corner (Madrid, Spain) (represented by: J. Calderón Chavero and T. Villate Consonni, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Comercio Electrónico Ojal (Madrid, Spain)

Form of order sought

| — | annul the decision of the Board of Appeal of OHIM of 5 March 2009 in Case R 462/2008-2 in so far as it allowed registration of a Community trade mark for goods in class 9; |
| --- | --- |

—

annul the decision of the Board of Appeal of OHIM of 5 March 2009 in Case R 462/2008-2 in so far as it allowed registration of a Community trade mark for goods in class 9;

| — | as a consequence of that annulment, refuse the application for Community trade mark 4 617 213 in its entirety; |
| --- | --- |

—

as a consequence of that annulment, refuse the application for Community trade mark 4 617 213 in its entirety;

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

—

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

Pleas in law and main arguments

Applicant for a Community trade mark: Comercio Electrónico Ojal S.L.

Community trade mark applied for: Figurative mark including the verbal component ‘SEVE TROPHY’ (Application No 4 617 213) for goods and services in classes 3, 9, 14, 18, 25, 28, 35 and 41.

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

Mark or sign cited in opposition: Community figurative trade marks ‘SEVE TROPHY’ and ‘SEVE BALLESTEROS TROPHY’ (No 1 541 226, No 1 980 341, No 2 068 682 and No 3 846 235) for goods and services in classes 3, 14, 25, 28, 35 and 41.

Decision of the Opposition Division: Rejection of the opposition brought under Article 8(5) of Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1994 L 11, p. 1) (replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).

Decision of the Board of Appeal: Appeal upheld in part.

Pleas in law: Incorrect application of Article 8(1)(b) of Regulation No 40/94.

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| 18.7.2009 | EN | Official Journal of the European Union | C 167/18 |
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18.7.2009

EN

Official Journal of the European Union

C 167/18

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Action brought on 13 May 2009 — Lan Airlines v OHIM — Air Nostrum (LÍNEAS AÉREAS DEL MEDITERRÁNEO LAM)

(Case T-194/09)

2009/C 167/36

Language in which the application was lodged: Spanish

Parties

Applicant: Lan Airlines, SA (represented by: E. Armijo Chávarri and A. Castán Pérez-Gómez, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Air Nostrum, Líneas Aéreas del Mediterráneo, SA (Manises, Spain)

Form of order sought

| — | declare, in view of the lodging of this pleading and the documents attached to it, that the action against the decision of the Fourth Board of Appeal of the Office of 19 February 2009 in Case R 0107/2008-4 has been lodged within the prescribed period and in the correct form and, following the appropriate procedural steps, deliver judgment annulling the said decision and expressly order the Office to pay the costs. |
| --- | --- |

—

declare, in view of the lodging of this pleading and the documents attached to it, that the action against the decision of the Fourth Board of Appeal of the Office of 19 February 2009 in Case R 0107/2008-4 has been lodged within the prescribed period and in the correct form and, following the appropriate procedural steps, deliver judgment annulling the said decision and expressly order the Office to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Air Nostrum, Líneas Aéreas del Mediterráneo, SA

Community trade mark concerned: Word mark ‘LÍNEAS AÉREAS DEL MEDITERRÁNEO LAM’ (Application No 4 448 061) for services in class 39.

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

Mark or sign cited in opposition: Community word mark ‘LAN’ (No 3 350 899) for services in classes 35, 39 and 43; and the Community figurative mark constituted by the word ‘LAN’ flanked by a star (No 3 694 957) for services in class 39.

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: Incorrect application of Article 8(1)(b) of Regulation No 40/94 (replaced by Regulation No 207/2009).

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| 18.7.2009 | EN | Official Journal of the European Union | C 167/19 |
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18.7.2009

EN

Official Journal of the European Union

C 167/19

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Action brought on 25 May 2009 — TerreStar Europe v Commission

(Case T-196/09)

2009/C 167/37

Language of the case: English

Parties

Applicant: TerreStar Europe Ltd (London, United Kingdom) (represented by: R. Olofsson, lawyer, J. Killick, Barrister)

Defendant: Commission of the European Communities

Form of order sought

| — | annul the contested decision; |
| --- | --- |

—

annul the contested decision;

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

—

order the Commission to pay the costs;

| — | take such other of further steps as justice may require. |
| --- | --- |

—

take such other of further steps as justice may require.

Pleas in law and main arguments

In the present case, the applicant seeks the annulment of Commission Decision C(2009) 3746 final/2 of 13 May 2009, regarding selection of operators of pan-European systems providing mobile satellite services (MSS) adopted in application of the Decision No 626/2008/EC (1) in so far as it rejects the application of the applicant.

In support of its claims, the applicant puts forward three pleas in law.

First, it submits that the Commission committed a manifest error of assessment in finding that TerreStar did not meet the required milestones. The applicant claims that the inconsistencies between the information and a lack of evidence in completion of one of the milestone as found by the Commission were due to a misunderstanding of the information submitted and could have been cleared up on a simple request by the Commission.

Second, the applicant contends that the Commission acted in breach of the principle of good administration and the principle of proportionality by failing to request clarification and to review the clarifications voluntarily submitted by TerreStar.

Third, in the alternative, the applicant claims that the contested decision lacks adequate reasoning.

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(1)  Decision No 626/2008/EC of the European Parliament and of the Council of 30 June 2008 on the selection and authorisation of systems providing mobile satellite services (MSS) (OJ 2008 L 172, p. 15)

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| 18.7.2009 | EN | Official Journal of the European Union | C 167/19 |
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18.7.2009

EN

Official Journal of the European Union

C 167/19

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Action brought on 20 May 2009 — UOP v Commission

(Case T-198/09)

2009/C 167/38

Language of the case: English

Parties

Applicant: UOP Ltd (Brimsdown, United Kingdom) (represented by: B. Hartnett, Barrister and O. Geiss, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | annul Article 2(2) of the Commission Decision of 16 July 2008 on the aid measure implemented by France for the IFP Group [C 51/05 (ex NN 84/05)] (1); |
| --- | --- |

—

annul Article 2(2) of the Commission Decision of 16 July 2008 on the aid measure implemented by France for the IFP Group [C 51/05 (ex NN 84/05)] (1);

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

The applicant seeks the partial annulment of Commission Decision, of 16 July 2008, on the aid measure implemented by France for the Institute Français du Petrol (IFP) Group [C 51/05 (ex NN 84/05)], [notified under number C (2008) 1330] in so far as it declared, under certain conditions, the aid compatible with the common market within the meaning of Article 87(3)(c) EC. The applicant is a competitor of the beneficiary of the State aid and its subsidiaries, Axens and Prosernat.

The applicant puts forward four pleas in law in support of its claims.

First, it argues that the Commission manifestly erred in fact and in law in violation of Article 87(3) EC and the 1996 Research et Development Framework by mischaracterising the nature of the research and development undertaken by IFP under Annex I of the 1996 Research et Development Framework and thereby wrongly determining the weighted maximum aid intensity. The applicant bases this plea on the following grounds: the activities of Axens and Prosernat as regards processes do not qualify as research and development and the entire pre-competitive development is carried out by IFP; IFP carried out at least the part of pre-competitive development for process technology and for catalysts that involve the use of pilot plants as well as the part of pre-competitive development that falls within its patent portfolio.

Second, the applicant submits that the Commission manifestly erred in fact and in law in violation of Article 87(3) EC and the 1996 Research et Development Framework by failing to have regard to operating aid granted to Axens and Prosernat, the subsidiaries of IFP. The applicant bases the plea on three grounds and claims that: direct benefits for Axens through the continued use of pilot plants as well as indirect benefits for Axens through education grants by IFP and through international research cooperation by IFP were not considered.

Third, the applicant contends that the Commission manifestly erred in law and in fact by concluding that the aid granted to IFP and its subsidiaries, Axens and Prosernat, has an incentive effect.

Fourth, it claims that the Commission manifestly erred in law and in fact by failing to provide adequate reasoning and/or failing to have full regard to the evidence at its disposal.

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(1)  OJ 2009 L 53, p. 13

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| 18.7.2009 | EN | Official Journal of the European Union | C 167/20 |
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18.7.2009

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Official Journal of the European Union

C 167/20

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Action brought on 25 May 2009 — Abertis Infraestructuras v Commission

(Case T-200/09)

2009/C 167/39

Language of the case: Spanish

Parties

Applicant: Abertis Infraestructuras SA (Barcelona, Spain) (represented by: M. Roca Junyent and P. Callol García, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Annulment of the contested decision, an order that the Commission pay the costs and any other appropriate order in law. |
| --- | --- |

—

Annulment of the contested decision, an order that the Commission pay the costs and any other appropriate order in law.

Pleas in law and main arguments

The measure against which this action is brought is the same as in Case T-58/09 Schemaventotto v Commission (OJ 2009 C 82, p. 34); namely, the legal act by virtue of which the European Commission closed proceedings under Article 21 of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1) (‘RCC’) relating to control of the concentration between the applicant and Autostrade S.p.A. (Case COMP/M. 4388 — Abertis/Autostrade).

In support of its action, the applicant claims that:

| — | The European Commission failed to fulfil its legal obligations by closing proceedings commenced under Article 21, without stating that infringements committed by Italy had harmed the rights of Abertis; and, in the alternative, the Commission erred in its analysis of compatibility with Community law and thereby failed to fulfil its obligations under Article 21 RCC. |
| --- | --- |

—

The European Commission failed to fulfil its legal obligations by closing proceedings commenced under Article 21, without stating that infringements committed by Italy had harmed the rights of Abertis; and, in the alternative, the Commission erred in its analysis of compatibility with Community law and thereby failed to fulfil its obligations under Article 21 RCC.

| — | The Commission disregarded the essential procedural requirements established in Article 21 RCC. That infringement invalidates the Commission’s acts, by preventing full achievement of the objectives of Article 21 RCC. |
| --- | --- |

—

The Commission disregarded the essential procedural requirements established in Article 21 RCC. That infringement invalidates the Commission’s acts, by preventing full achievement of the objectives of Article 21 RCC.

| — | The Commission infringed the obligation to state the reasons for its acts. |
| --- | --- |

—

The Commission infringed the obligation to state the reasons for its acts.

| — | The Commission misused its powers because it issued a decision pursuant to a provision, Article 21 RCC, which did not permit it to issue that decision, which is within the scope of Article 226 EC, and thereby rendered nugatory the safeguards of Article 21 RCC, deprived Article 21 RCC of effectiveness and denied protection to the proposed concentration which the Commission itself had previously approved. |
| --- | --- |

—

The Commission misused its powers because it issued a decision pursuant to a provision, Article 21 RCC, which did not permit it to issue that decision, which is within the scope of Article 226 EC, and thereby rendered nugatory the safeguards of Article 21 RCC, deprived Article 21 RCC of effectiveness and denied protection to the proposed concentration which the Commission itself had previously approved.

| — | The Commission infringed the general principles of legal certainty, good administration and the protection of legitimate expectations by failing to take action against the Member State, in circumstances where it had no discretion, thereby damaging the confidence of traders. |
| --- | --- |

—

The Commission infringed the general principles of legal certainty, good administration and the protection of legitimate expectations by failing to take action against the Member State, in circumstances where it had no discretion, thereby damaging the confidence of traders.

| — | Lastly, and in the alternative, the applicant claims that the Commission erred in its analysis of the new regulatory framework introduced by the Italian Republic given that there has not been established a regulatory framework which ensures that, in any future cross-border mergers within the motorways sector in Italy, undertakings receive equal treatment in accordance with the rules of Community law. |
| --- | --- |

—

Lastly, and in the alternative, the applicant claims that the Commission erred in its analysis of the new regulatory framework introduced by the Italian Republic given that there has not been established a regulatory framework which ensures that, in any future cross-border mergers within the motorways sector in Italy, undertakings receive equal treatment in accordance with the rules of Community law.

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| 18.7.2009 | EN | Official Journal of the European Union | C 167/20 |
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18.7.2009

EN

Official Journal of the European Union

C 167/20

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Action brought on 25 May 2009 — Olymp Bezner v OHIM — Bellido (Olymp)

(Case T-203/09)

2009/C 167/40

Language in which the application was lodged: English

Parties

Applicant: Olymp Bezner GmbH & Co. KG (Bietigheim-Bissingen, Germany) (represented by: J. Dönch and M. Eck, lawyers)

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

Other party to the proceedings before the Board of Appeal: Miguel Bellido, S.A. (Manzanares, Ciudad Real, Spain)

Form of order sought

| — | Repeal the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 11 March 2009 in case R 531/2008-2; and |
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Repeal the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 11 March 2009 in case R 531/2008-2; and

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

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Order OHIM to pay the costs.

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: The word mark ‘Olymp’ for goods in class 25

Proprietor of the Community trade mark: The applicant

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

Trade mark right of the party requesting the declaration of invalidity: Spanish trade mark registration of the figurative mark ‘OLIMPO’ for goods in class 25

Decision of the Cancellation Division: Declared the Community trade mark concerned invalid

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation 40/94 (which became Article 8(1)(b) of Council Regulation 207/2009) and of Article 52(1)(a) of Council Regulation 40/94 (which became Article 53(1)(a) of Council Regulation 207/2009) as the Board of Appeal erred in its finding that there was a likelihood of confusion, due to the fact that the concerned trade marks are not visually, aurally or conceptually similar.

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| 18.7.2009 | EN | Official Journal of the European Union | C 167/21 |
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18.7.2009

EN

Official Journal of the European Union

C 167/21

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Action brought on 25 May 2009 — Olymp Bezner v OHIM — Bellido (OLYMP)

(Case T-204/09)

2009/C 167/41

Language in which the application was lodged: English

Parties

Applicant: Olymp Bezner GmbH & Co. KG (Bietigheim-Bissingen, Germany) (represented by: J. Dönch and M. Eck, lawyers)

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

Other party to the proceedings before the Board of Appeal: Miguel Bellido, S.A. (Manzanares, Ciudad Real, Spain)

Form of order sought

| — | Repeal the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 5 March 2009 in case R 598/2008-2; and |
| --- | --- |

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Repeal the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 5 March 2009 in case R 598/2008-2; and

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

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Order OHIM to pay the costs.

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: The figurative mark ‘OLYMP’ for goods in class 25

Proprietor of the Community trade mark: The applicant

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

Trade mark right of the party requesting the declaration of invalidity: Spanish trade mark registration of the figurative mark ‘OLIMPO’ for goods in class 25

Decision of the Cancellation Division: Declared the Community trade mark concerned invalid

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation 40/94 (which became Article 8(1)(b) of Council Regulation 207/2009) as the Board of Appeal erred in its finding that there was a likelihood of confusion, due to the fact that the concerned trade marks are not visually, aurally or conceptually similar.

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| 18.7.2009 | EN | Official Journal of the European Union | C 167/21 |
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18.7.2009

EN

Official Journal of the European Union

C 167/21

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Action brought on 25 May 2009 — El Jirari Bouzekri v OHIM — Nike International (NC NICKOL)

(Case T-207/09)

2009/C 167/42

Language in which the application was lodged: English

Parties

Applicants: Mustapha El Jirari Bouzekri (Malaga, Spain) (represented by: E. Ragot, lawyer)

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

Other party to the proceedings before the Board of Appeal: Nike International Ltd (Beaverton, United States)

Form of order sought

| — | Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 25 February 2009 in case R 554/2008-2 in so far as it contains an error of law in the interpretation of Article 8(5) of Council Regulation 40/94 (which became Article 8(5) of Council Regulation 207/2009); 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 25 February 2009 in case R 554/2008-2 in so far as it contains an error of law in the interpretation of Article 8(5) of Council Regulation 40/94 (which became Article 8(5) of Council Regulation 207/2009); and

| — | Order the defendant and the other party to the proceedings before the Board of Appeal to pay the applicant’s legal and other costs incurred in the proceedings before the Court of First Instance. |
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—

Order the defendant and the other party to the proceedings before the Board of Appeal to pay the applicant’s legal and other costs incurred in the proceedings before 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 ‘NC NICKOL’, for goods in class 9

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

Mark or sign cited: Community trade mark registration of the figurative mark ‘NIKE’ for a range of goods, amongst them goods in classes 9 and 25

Decision of the Opposition Division: Upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(5) of Council Regulation 40/94 as the Board of Appeal wrongly concluded that the conditions for the application of the said provision were fulfilled.

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| 18.7.2009 | EN | Official Journal of the European Union | C 167/22 |
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18.7.2009

EN

Official Journal of the European Union

C 167/22

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Action brought on 26 May 2009 — Mars v OHIM — Marc (MARC Marlon Abela Restaurant Corporation)

(Case T-208/09)

2009/C 167/43

Language in which the application was lodged: English

Parties

Applicants: Mars, Inc. (McLean, United States) (represented by: A. Bryson, Barrister and V. Marsland, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Marc Ltd (London, 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 5 March 2009 in case R 1827/2007-2; and |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 5 March 2009 in case R 1827/2007-2; 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 other party to the proceedings before the Board of Appeal

Community trade mark concerned: The figurative mark ‘MARC Marlon Abela Restaurant Corporation’, for goods and services in classes 29, 30, 31, 32, 33, 35 and 43

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

Mark or sign cited: Community trade mark registrations of the word and figurative marks ‘MARS’ for goods and services in classes 9, 29, 30, 32, and 35, respectively

Decision of the Opposition Division: Upheld the opposition partially

Decision of the Board of Appeal: Annulled the decision of the Opposition Division and rejected the opposition in its entirety

Pleas in law: Infringement of Article 8(1)(b) Council Regulation 40/94 (which became Article 8(1)(b) of Council Regulation 207/2009) as the Board of Appeal (i) wrongly assumed (or found), with no evidential basis, that the trade marks concerned have a clear and specific meaning for the public in the Baltic States so that the public is capable of grasping it immediately. This led the Board, wrongly, to conclude that there was a conceptual difference between the marks which outweighed the visual and aural similarities and justified a conclusion that the trade marks concerned were nor similar; and (ii) failed to take any or a proper account of the circumstances of sale of the goods and services in question and the impact of such circumstances upon (a) the appreciation of the visual and phonetic similarities between the trade marks; and (b) the relative weight to be given, in the global assessment of similarity/likelihood of confusion, to the different elements (visual, aural, conceptual) by which similarity is to be judged. Infringement of Article 8(5) of Council Regulation 40/94 (which became Article 8(5) of Council Regulation 207/2009) as the Board of Appeal wrongly rejected the opposition in respect of this ground on the basis that the applicant had failed to establish the existence of all the cumulative conditions necessary for the application of the said provision. Infringement of Article 8(4) of Council Regulation 40/94 (which became Article 8(4) of Council Regulation 207/2009) as the Board of Appeal wrongly assumed that the likelihood of confusion is to be assessed according to the same principles for the purposes of Articles 8(1)(b) and 8(4) of Council Regulation 40/94.

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| 18.7.2009 | EN | Official Journal of the European Union | C 167/22 |
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18.7.2009

EN

Official Journal of the European Union

C 167/22

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Action brought on 26 May 2009 — Formenti Seleco v Commission

(Case T-210/09)

2009/C 167/44

Language of the case: Italian

Parties

Applicant: Formenti Seleco SpA (Pordenone, Italy) (represented by: A. Malatesta, G. Terracciano and S. Malatesta, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Order the Commission of the European Communities to pay compensation totalling EUR 1 562 008 915,03 to Formenti Seleco SpA, which is in liquidation under special administration, together with statutory interest with effect from the date of declaration of insolvency or, in the alternative, to the extent which the Court may consider equitable; |
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Order the Commission of the European Communities to pay compensation totalling EUR 1 562 008 915,03 to Formenti Seleco SpA, which is in liquidation under special administration, together with statutory interest with effect from the date of declaration of insolvency or, in the alternative, to the extent which the Court may consider equitable;

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

—

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

Pleas in law and main arguments

The applicant company, one of the main manufacturers in Italy of colour televisions, was declared insolvent and placed under special administration following the wide-scale importation into the European market of colour televisions manufactured by Turkish companies which were sold at prices that amounted to dumping.

That situation arose within the Community as a direct result of the infringement by the Turkish Republic of the Association Agreement concluded with the EC in 1963 and subsequent supplementary measures, in so far as the Turkish Government established a legal framework designed to avoid its obligations under the Association Agreement with the Community with regard, in particular, to the determination of the Turkish origin of colour televisions imported into the Community, the Commission having been aware since at least 1993 of such circumventions.

In particular, Formenti Seleco SpA maintains that the Commission is liable on the following grounds, which are capable of establishing its non-contractual liability to it and its consequent obligation to pay compensation for damage:

| (1) | infringement of its obligations under the Association Agreement and the Additional Protocol thererto, in so far as, either during the transitional period for the implementation of the customs union between the Community and the Turkish Republic or until 1994, or, in particular, at the time when full customs union was accomplished, it failed to ensure that the relevant customs legislation was correctly applied, even though it was aware that the Turkish Republic was disregarding the agreements. |
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(1)

infringement of its obligations under the Association Agreement and the Additional Protocol thererto, in so far as, either during the transitional period for the implementation of the customs union between the Community and the Turkish Republic or until 1994, or, in particular, at the time when full customs union was accomplished, it failed to ensure that the relevant customs legislation was correctly applied, even though it was aware that the Turkish Republic was disregarding the agreements.

| (2) | Infringement of Article 211 EC and the principle of sound administration, since, in so far as the Association Agreement and the Additional Protocol form part of Community law, the Commission is also obliged to monitor the implementation of those provisions and to ensure sound administration. |
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(2)

Infringement of Article 211 EC and the principle of sound administration, since, in so far as the Association Agreement and the Additional Protocol form part of Community law, the Commission is also obliged to monitor the implementation of those provisions and to ensure sound administration.

| (3) | Infringement of the principle of the protection of legitimate expectations, since, as a result of the conduct referred to above, it frustrated the expectation of individual Community commercial operators, and in particular that of the applicant, that the customs union with Turkey would function properly, an expectation that should have been met by means of the checks and controls which the Commission failed to carry out. |
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(3)

Infringement of the principle of the protection of legitimate expectations, since, as a result of the conduct referred to above, it frustrated the expectation of individual Community commercial operators, and in particular that of the applicant, that the customs union with Turkey would function properly, an expectation that should have been met by means of the checks and controls which the Commission failed to carry out.

| (4) | Infringement and/or misapplication of the rules on anti-dumping, since the Commission, even though it had been aware since 1993 of the serious irregularities committed by Turkish exporters, failed to adopt protective measures against such exporters and acted without the diligence and prudence normally to be expected of an administration. |
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(4)

Infringement and/or misapplication of the rules on anti-dumping, since the Commission, even though it had been aware since 1993 of the serious irregularities committed by Turkish exporters, failed to adopt protective measures against such exporters and acted without the diligence and prudence normally to be expected of an administration.

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| 18.7.2009 | EN | Official Journal of the European Union | C 167/23 |
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18.7.2009

EN

Official Journal of the European Union

C 167/23

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Action brought on 27 May 2009 — Astrim and Elyo Italia v Commission

(Case T-216/09)

2009/C 167/45

Language of the case: Italian

Parties

Applicants: Astrim SpA (Rome, Italy) and Elyo Italia Srl (Sesto San Giovanni, Italy) (represented by: M. Brugnoletti, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul the Commission’s decision which found to be incomplete the bid submitted by the applicant group in response to call for tenders No 2008 — C04 005 for a contract to provide services covering the maintenance of the Joint Research Centre, (1) communicated by letter of 27 March 2009 and supplemented by a communication of 3 April 2009, together with all subsequent and related decisions, including the decision to award the tender to other undertakings. |
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Annul the Commission’s decision which found to be incomplete the bid submitted by the applicant group in response to call for tenders No 2008 — C04 005 for a contract to provide services covering the maintenance of the Joint Research Centre, (1) communicated by letter of 27 March 2009 and supplemented by a communication of 3 April 2009, together with all subsequent and related decisions, including the decision to award the tender to other undertakings.

| — | In the alternative, annul point 17 of call for tenders No 2008 — C04 005, in so far as it laid down a general criterion for elimination from the tendering procedure. |
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—

In the alternative, annul point 17 of call for tenders No 2008 — C04 005, in so far as it laid down a general criterion for elimination from the tendering procedure.

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

—

Order the Commission to pay the costs.

Pleas in law and main arguments

The applicants in this case seek the annulment of the decision by which the Commission eliminated the bid they submitted in response to call for tenders No 2008 — C04 005 for a contract to provide services covering the maintenance of the Joint Research Centre and awarded the contract to other companies.

The applicants put forward three grounds in support of their application:

By the first ground, the applicants submit that the Commission infringed point 17 of the invitation to tender, Articles 92 and 89 of Council Regulation No 1605/2002 (2) and the principles of transparency and equal treatment in so far as it decided to exclude the applicants’ bid on the basis of the incorrect assessment that it was incomplete since a number of prices were not stated, whereas the applicant group deliberately chose to offer a price of zero.

By their second ground, the applicants maintain that adequate reasons are not given for the elimination provision, in so far as point 17 of the invitation to tender does provide for automatic elimination where one part of the bid has not been completed but simply provides that elimination is possible, leaving the Commission free to decide whether or not to eliminate the tenderer. Since such a decision is discretionary, adequate reasons must be given for it, which was not the case as regards the elimination provision adopted by the Commission.

By the third ground, which is relevant only in the event that the Court does not uphold the first two grounds, the applicants seek the annulment of point 17 of the invitation to tender on the ground that it infringes Articles 92 and 89 of Council Regulation No 1605/2002 in so far as that point lays down a general elimination criterion.

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(1)  OJ 2008/S 2008-274999 of 25 October 2008.

(2)  Council Regulation No 1605/2002 (EC, Euratom) of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities.

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European Union Civil Service Tribunal

| 18.7.2009 | EN | Official Journal of the European Union | C 167/25 |
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18.7.2009

EN

Official Journal of the European Union

C 167/25

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Action brought on 27 March 2009 — Ingo Hanschmann v Europol

(Case F-27/09)

2009/C 167/46

Language of the case: Dutch

Parties

Applicant: Ingo Hanschmann (The Hague, Netherlands) (represented by: P. de Casparis, lawyer)

Defendant: European Police Office (Europol)

Subject-matter and description of the proceedings

Annulment of the decision of 12 June 2008 informing the applicant that it was impossible to offer him a permanent post, along with the decision of 7 January 2009 rejecting the complaint brought against the first decision.

Form of order sought

| — | annul the decision of 12 June 2008 by which the defendant indicated to the applicant that it was unable to offer him a permanent position, along with the complaint decision of 7 January 2009 rejecting the applicant’s submissions against the decision of 12 June 2008; |
| --- | --- |

—

annul the decision of 12 June 2008 by which the defendant indicated to the applicant that it was unable to offer him a permanent position, along with the complaint decision of 7 January 2009 rejecting the applicant’s submissions against the decision of 12 June 2008;

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

—

order Europol to pay the costs.

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| 18.7.2009 | EN | Official Journal of the European Union | C 167/25 |
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18.7.2009

EN

Official Journal of the European Union

C 167/25

---

Action brought on 27 March 2009 — Kipp v Europol

(Case F-28/09)

2009/C 167/47

Language of the case: Dutch

Parties

Applicant: Michael Kipp (The Hague, Netherlands) (represented by: P. de Casparis, lawyer)

Defendant: European Police Office (Europol)

Subject-matter and description of the proceedings

Annulment of the decision of 12 June 2008 informing the applicant that it was impossible to offer him a permanent post, along with the decision of 7 January 2009 rejecting the complaint brought against the first decision.

Form of order sought

| — | annul the decision of 12 June 2008 by which the defendant indicated to the applicant that it was unable to offer him a permanent position, along with the complaint decision of 7 January 2009 rejecting the applicant’s submissions against the decision of 12 June 2008; |
| --- | --- |

—

annul the decision of 12 June 2008 by which the defendant indicated to the applicant that it was unable to offer him a permanent position, along with the complaint decision of 7 January 2009 rejecting the applicant’s submissions against the decision of 12 June 2008;

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

—

order Europol to pay the costs.

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| 18.7.2009 | EN | Official Journal of the European Union | C 167/25 |
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18.7.2009

EN

Official Journal of the European Union

C 167/25

---

Action brought on 2 April 2009 — Sluiter v Europol

(Case F-34/09)

2009/C 167/48

Language of the case: Dutch

Parties

Applicant: Rudolf Sluiter (Hillegom, the Netherlands) (represented by: P. de Casparis, lawyer)

Defendant: European Police Office (Europol)

Subject-matter and description of the proceedings

Annulment of the decision of 12 June 2008 informing the applicant that it was impossible to offer him a permanent post, and the decision of 7 January 2009 rejecting the complaint brought against the first decision.

Form of order sought

The applicant claims that the Tribunal should:

| — | annul the decision of 12 June 2008 by which the defendant informed the applicant that it could not offer him a permanent post and the decision of 7 January 2009 in response to a complaint, stating that the objections which the applicant had raised to the decision of 12 June 2008 were unfounded; |
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—

annul the decision of 12 June 2008 by which the defendant informed the applicant that it could not offer him a permanent post and the decision of 7 January 2009 in response to a complaint, stating that the objections which the applicant had raised to the decision of 12 June 2008 were unfounded;

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

—

order Europol to pay the costs.

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| 18.7.2009 | EN | Official Journal of the European Union | C 167/26 |
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18.7.2009

EN

Official Journal of the European Union

C 167/26

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Action brought on 2 April 2009 — Visser-Fornt Raya v Europol

(Case F-35/09)

2009/C 167/49

Language of the case: Dutch

Parties

Applicant: Maria Teresa Visser-Fornt Raya (the Hague, the Netherlands) (represented by: P. de Casparis)

Defendant: European Police Office (Europol)

Subject-matter and description of the proceedings

Annulment of the decision of 12 June 2008 informing the applicant that it was impossible to offer her a permanent post, and the decision of 7 January 2009 rejecting the complaint brought against the first decision.

Form of order sought

The applicant claims that the Tribunal should:

| — | annul the decision of 12 June 2008 by which the defendant informed the applicant that it could not offer her a permanent post and the decision of 7 January 2009 in response to a complaint, stating that the objections which the applicant had raised to the decision of 12 June 2008 were unfounded; |
| --- | --- |

—

annul the decision of 12 June 2008 by which the defendant informed the applicant that it could not offer her a permanent post and the decision of 7 January 2009 in response to a complaint, stating that the objections which the applicant had raised to the decision of 12 June 2008 were unfounded;

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

—

order Europol to pay the costs.

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| 18.7.2009 | EN | Official Journal of the European Union | C 167/26 |
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18.7.2009

EN

Official Journal of the European Union

C 167/26

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Action brought on 2 April 2009 — Armitage-Wilson v Europol

(Case F-36/09)

2009/C 167/50

Language of the case: Dutch

Parties

Applicant: Kate Armitage-Wilson (the Hague, the Netherlands) (represented by: W. J. Dammingh)

Defendant: European Police Office (Europol)

Subject-matter and description of the proceedings

Annulment of the decision of 12 June 2008 informing the applicant that it was impossible to offer her a permanent post, and the decision of 7 January 2009 rejecting the complaint brought against the first decision.

Form of order sought

The applicant claims that the Tribunal should:

| — | annul the decision of 12 June 2008 by which the defendant informed the applicant that it could not offer her a permanent post and the decision of 7 January 2009 in response to a complaint, stating that the objections which the applicant had raised to the decision of 12 June 2008 were unfounded; |
| --- | --- |

—

annul the decision of 12 June 2008 by which the defendant informed the applicant that it could not offer her a permanent post and the decision of 7 January 2009 in response to a complaint, stating that the objections which the applicant had raised to the decision of 12 June 2008 were unfounded;

| — | order Europol to pay the costs |
| --- | --- |

—

order Europol to pay the costs

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| 18.7.2009 | EN | Official Journal of the European Union | C 167/26 |
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18.7.2009

EN

Official Journal of the European Union

C 167/26

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Action brought on 2 April 2009 — Doyle v Europol

(Case F-37/09)

2009/C 167/51

Language of the case: Dutch

Parties

Applicant: Margaret Doyle (Noordwijkerhout, the Netherlands) (represented by: P. de Casparis)

Defendant: European Police Office (Europol)

Subject-matter and description of the proceedings

Annulment of the decision of 12 June 2008 informing the applicant that it was impossible to offer her a permanent post, and the decision of 7 January 2009 rejecting the complaint brought against the first decision.

Form of order sought

The applicant claims that the Tribunal should:

| — | annul the decision of 12 June 2008 by which the defendant informed the applicant that it could not offer her a permanent post and the decision of 7 January 2009 in response to a complaint, stating that the objections which the applicant had raised to the decision of 12 June 2008 were unfounded; |
| --- | --- |

—

annul the decision of 12 June 2008 by which the defendant informed the applicant that it could not offer her a permanent post and the decision of 7 January 2009 in response to a complaint, stating that the objections which the applicant had raised to the decision of 12 June 2008 were unfounded;

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

—

order Europol to pay the costs.

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| 18.7.2009 | EN | Official Journal of the European Union | C 167/26 |
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18.7.2009

EN

Official Journal of the European Union

C 167/26

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Action brought on 2 April 2009 — Martin v Europol

(Case F-38/09)

2009/C 167/52

Language of the case: Dutch

Parties

Applicant: Breige Martin (Dublin, Ireland) (represented by: P. de Casparis)

Defendant: European Police Office (Europol)

Subject-matter and description of the proceedings

Annulment of the decision of 12 June 2008 informing the applicant that it was impossible to offer her a permanent post, and the decision of 7 January 2009 rejecting the complaint brought against the first decision.

Form of order sought

The applicant claims that the Tribunal should:

| — | annul the decision of 12 June 2008 by which the defendant informed the applicant that it could not offer her a permanent post and the decision of 7 January 2009 in response to a complaint, stating that the objections which the applicant had raised to the decision of 12 June 2008 were unfounded; |
| --- | --- |

—

annul the decision of 12 June 2008 by which the defendant informed the applicant that it could not offer her a permanent post and the decision of 7 January 2009 in response to a complaint, stating that the objections which the applicant had raised to the decision of 12 June 2008 were unfounded;

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

—

order Europol to pay the costs.

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| 18.7.2009 | EN | Official Journal of the European Union | C 167/27 |
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18.7.2009

EN

Official Journal of the European Union

C 167/27

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Action brought on 2 April 2009 — Goddijn v Europol

(Case F-39/09)

2009/C 167/53

Language of the case: Dutch

Parties

Applicant: Jaqueline Goddijn (Breda, the Netherlands) (represented by: P. de Casparis)

Defendant: European Police Office (Europol)

Subject-matter and description of the proceedings

Application for annulment of the decision of 12 June 2008 informing the applicant that it was impossible to offer her a permanent post, and the decision of 7 January 2009 rejecting the complaint brought against the first decision.

Form of order sought

The applicant claims the Tribunal should:

| — | annul the decision of 12 June 2008 by which the defendant informed the applicant that it could not offer her a permanent post and the decision of 7 January 2009 in response to a complaint, stating that the applicant’s objections to the decision of 12 June 2008 were unfounded; |
| --- | --- |

—

annul the decision of 12 June 2008 by which the defendant informed the applicant that it could not offer her a permanent post and the decision of 7 January 2009 in response to a complaint, stating that the applicant’s objections to the decision of 12 June 2008 were unfounded;

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

—

order Europol to pay the costs.

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| 18.7.2009 | EN | Official Journal of the European Union | C 167/27 |
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18.7.2009

EN

Official Journal of the European Union

C 167/27

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Action brought on 12 May 2009 — Wendler v Commission of the European Communities

(Case F-49/09)

2009/C 167/54

Language of the case: German

Parties

Applicant: Eberhard Wendler (Laveno Mombello, Italy) (represented by: M. Müller-Trawinski, lawyer)

Defendant: Commission of the European Communities

Subject-matter and description of the proceedings

Annulment of the defendant’s demand on the applicant to designate a bank account at his place of residence in Italy for his pension payments.

Forms of orders sought

The applicant claims that the Civil Service Tribunal should:

| — | Annul the decision of the defendant of 9 September 2008, in the form of the dismissal of the applicant’s appeal of 19 February 2008, according to which he is obliged to designate a bank account at his place of residence for his pension payments; |
| --- | --- |

—

Annul the decision of the defendant of 9 September 2008, in the form of the dismissal of the applicant’s appeal of 19 February 2008, according to which he is obliged to designate a bank account at his place of residence for his pension payments;

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

—

Order the Commission to pay the applicant’s costs.

---

| 18.7.2009 | EN | Official Journal of the European Union | C 167/27 |
| --- | --- | --- | --- |

18.7.2009

EN

Official Journal of the European Union

C 167/27

---

Action brought on 12 May 2009 — Missir Mamachi di Lusignano v Commission

(Case F-50/09)

2009/C 167/55

Language of the case: Italian

Parties

Applicant: Livio Missir Mamachi di Lusignano (Kerkhove-Avelgem, Belgium) (represented by: F. Di Gianni and R. Antonini, lawyers)

Defendant: Commission of the European Communities

Subject-matter and description of the proceedings

Application for compensation for material and non-material damage arising as a result of the murder of a Commission official and his wife.

Form of order sought

| — | Annul the decision of the appointing authority of 3 February 2009 rejecting Complaint No R/406/08 seeking compensation for the material and non-material damage arising as a result of the murder of Alessandro Missir Mamachi di Lusignano and of his wife on 18 September 2006 in Rabat, Morocco, where he was posted for reasons of service; |
| --- | --- |

—

Annul the decision of the appointing authority of 3 February 2009 rejecting Complaint No R/406/08 seeking compensation for the material and non-material damage arising as a result of the murder of Alessandro Missir Mamachi di Lusignano and of his wife on 18 September 2006 in Rabat, Morocco, where he was posted for reasons of service;

| — | order the Commission to pay to the heirs and successors of Alessandro Missir Mamachi di Lusignano the sum of EUR 2 552 837,96, corresponding to the murdered official’s salary spanning a period of 26 years, to be reassessed in order to take account of that person’s career prospects (as regards both the automatic addition of points on the pay scale and likely promotions in grade) by way of compensation for financial loss; |
| --- | --- |

—

order the Commission to pay to the heirs and successors of Alessandro Missir Mamachi di Lusignano the sum of EUR 2 552 837,96, corresponding to the murdered official’s salary spanning a period of 26 years, to be reassessed in order to take account of that person’s career prospects (as regards both the automatic addition of points on the pay scale and likely promotions in grade) by way of compensation for financial loss;

| — | order the Commission to pay to the heirs and successors of Alessandro Missir Mamachi di Lusignano the sum of EUR 250 000,00 by way of compensation for the non-material damage suffered by the victim before his death; |
| --- | --- |

—

order the Commission to pay to the heirs and successors of Alessandro Missir Mamachi di Lusignano the sum of EUR 250 000,00 by way of compensation for the non-material damage suffered by the victim before his death;

| — | order the Commission to pay to the heirs and successors of Alessandro Missir Mamachi di Lusignano the sum of EUR 1 276 512,00 by way of compensation for the non-material damage suffered by the children of the victim, who witnessed his tragic murder; |
| --- | --- |

—

order the Commission to pay to the heirs and successors of Alessandro Missir Mamachi di Lusignano the sum of EUR 1 276 512,00 by way of compensation for the non-material damage suffered by the children of the victim, who witnessed his tragic murder;

| — | order the Commission to pay to Livio Missir Mamachi di Lusignano the sum of EUR 212 752,00 by way of compensation for the non-material damage suffered by that person as the father of the victim; |
| --- | --- |

—

order the Commission to pay to Livio Missir Mamachi di Lusignano the sum of EUR 212 752,00 by way of compensation for the non-material damage suffered by that person as the father of the victim;

| — | order the Commission to pay compensatory interest and default interest accrued; |
| --- | --- |

—

order the Commission to pay compensatory interest and default interest accrued;

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

—

order the Commission to pay the costs.

---

| 18.7.2009 | EN | Official Journal of the European Union | C 167/28 |
| --- | --- | --- | --- |

18.7.2009

EN

Official Journal of the European Union

C 167/28

---

Action brought on 20 May 2009 — Lebedef v Commission

(Case F-54/09)

2009/C 167/56

Language of the case: French

Parties

Applicant: Giorgio Lebedef (Senningerberg, Luxembourg) (represented by: F. Frabetti, lawyer)

Defendant: Commission of the European Communities

Subject-matter and description of the proceedings

Annulment of several decisions concerning the deduction of 39 days of the applicant’s leave entitlement for 2008.

Form of order sought

The applicant claims that the Tribunal should:

| — | annul the decisions of 12 February 2008, 1 April 2008, 10 April 2008, 20 May 2008 and 14 July 2008 concerning the deduction of 39 days of the applicant’s leave entitlement for 2008; |
| --- | --- |

—

annul the decisions of 12 February 2008, 1 April 2008, 10 April 2008, 20 May 2008 and 14 July 2008 concerning the deduction of 39 days of the applicant’s leave entitlement for 2008;

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

—

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

---

Corrigenda

| 18.7.2009 | EN | Official Journal of the European Union | C 167/29 |
| --- | --- | --- | --- |

18.7.2009

EN

Official Journal of the European Union

C 167/29

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Corrigendum to the notice to the Official Journal in Case T-475/08 P

(
  Official Journal of the European Union C 69 of 21 March 2009, p. 40
  )

2009/C 167/57

The correct text of the OJ notice in Case T-475/08 P Duta v Court of Justice is as follows:

‘Appeal brought on 29 October 2008 by Radu Duta against the judgment of the Civil Service Tribunal delivered on 4 September 2008 in Case F-103/07, Duta v Court of Justice

(Case T-475/08 P)

2009/C 69/93

Language of the case: French

Parties

Appellant: Radu Duta (Luxembourg, Luxembourg) (represented by F. Krieg, lawyer)

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

Form of order sought by the appellant

| — | Admit the present appeal; |
| --- | --- |

—

Admit the present appeal;

| — | declare it well founded; |
| --- | --- |

—

declare it well founded;

| — | accordingly, by amendment of the judgment of the European Union Civil Service Tribunal of 4 September 2008, declare the appellant’s appeal admissible and well founded; |
| --- | --- |

—

accordingly, by amendment of the judgment of the European Union Civil Service Tribunal of 4 September 2008, declare the appellant’s appeal admissible and well founded;

| — | accordingly, on the basis of the claims set out above, annul the contested decisions; |
| --- | --- |

—

accordingly, on the basis of the claims set out above, annul the contested decisions;

| — | so far as necessary, return the matter to the competent authority for a ruling in accordance with the judgment in the appeal; |
| --- | --- |

—

so far as necessary, return the matter to the competent authority for a ruling in accordance with the judgment in the appeal;

| — | order the respondent to pay the sum of EUR 1 100 000 (one million one hundred thousand Euros) in respect of damages and interest; |
| --- | --- |

—

order the respondent to pay the sum of EUR 1 100 000 (one million one hundred thousand Euros) in respect of damages and interest;

| — | so far as necessary, order an expert to give a report on the extent of the financial loss suffered by the appellant; |
| --- | --- |

—

so far as necessary, order an expert to give a report on the extent of the financial loss suffered by the appellant;

| — | order the respondent to pay all the costs and expenses of the case; |
| --- | --- |

—

order the respondent to pay all the costs and expenses of the case;

| — | authorise the appellant expressly to refer to his pleadings at first instance which are annexed to the present appeal and form an integral part thereof; |
| --- | --- |

—

authorise the appellant expressly to refer to his pleadings at first instance which are annexed to the present appeal and form an integral part thereof;

| — | as to the remainder, authorise the appellant expressly to reserve all his rights of actions and remedies and in particular the right to bring an action before the European Court of Human Rights. |
| --- | --- |

—

as to the remainder, authorise the appellant expressly to reserve all his rights of actions and remedies and in particular the right to bring an action before the European Court of Human Rights.

Pleas in law and main arguments

By the present appeal, the appellant seeks the annulment of the judgment of the Civil Service Tribunal (CST) of 4 September 2008, delivered in Case F-103/07 Duta v Court of Justice, dismissing as inadmissible the action by which the appellant sought, on the one hand, annulment of the memorandum informing him that he would not be offered a post as a Legal Secretary and, on the other, damages in compensation for the loss allegedly suffered.

In support of his appeal, the appellant submits, firstly, that his right to a fair hearing, laid down in Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, was infringed because of the structural partiality of the Court of First Instance and because of personal acquaintance between the Members of the Court of First Instance and the authors of the decisions contested before the Civil Service Tribunal. Secondly, the applicant refers to his arguments and pleas advanced at first instance, including breach of the principles of transparency, good faith and equal treatment.

Furthermore, the appellant states his conviction that he will be able to obtain justice only before a court truly independent of his opponent in the proceedings, the Court of Justice of the European Communities, and that he reserves the right to bring his case before the European Court of Human Rights.’

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