# Official Journal C 211/2011

| | ISSN 1725-2423
  doi:10.3000/17252423.C_2011.211.eng |
| --- | --- |
| Official Journal
  of the European Union | C 211 |
| | |
| English edition | Information and Notices | Volume 5416 July 2011 |

ISSN 1725-2423

doi:10.3000/17252423.C_2011.211.eng

Official Journal

of the European Union

C 211

English edition

Information and Notices

Volume 5416 July 2011

---

| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | Court of Justice of the European Union |
| 2011/C 211/01 | Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 204, 9.7.2011 | 1 |

Notice No

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

2011/C 211/01

Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 204, 9.7.2011

Official Journal of the European Union

1

| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2011/C 211/02 | Opinion 1/08: Opinion of the Court (Grand Chamber) of 30 November 2009 — Commission of the European Communities (Opinion pursuant to Article 300(6) EC — General Agreement on Trade in Services (GATS) — Schedules of specific commitments — Conclusion of agreements on the grant of compensation for modification and withdrawal of certain commitments following the accession of new Member States to the European Union — Shared competence — Legal bases — Common commercial policy — Common transport policy) | 2 |
| 2011/C 211/03 | Opinion 1/09: Opinion of the Court (Full Court) of 8 March 2011 — Council of the European Union (Opinion delivered pursuant to Article 218(11) TFEU — Draft agreement — Creation of a unified patent litigation system — European and Community Patents Court — Compatibility of the draft agreement with the Treaties) | 2 |
| 2011/C 211/04 | Case C-485/07: Judgment of the Court (First Chamber) of 26 May 2011 (reference for a preliminary ruling from the Centrale Raad van Beroep — Netherlands) — Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen v H. Akdas, H. Agartan, Z. Akbulut, M. Bas, K. Yüzügüllüer, E. Keskin, C. Topaloglu, A. Cubuk, S. Sariisik (EEC-Turkey Association — Social security for migrant workers — Waiving of residence clauses — Scope — Supplement to the invalidity pension paid by the host Member State in order to ensure a minimum standard of living for the recipients — Amendment of national legislation — Withdrawal of that supplement when the recipient resides outside the territory of the Member State concerned) | 3 |
| 2011/C 211/05 | Case C-306/08: Judgment of the Court (Third Chamber) of 26 May 2011 — European Commission v Kingdom of Spain (Failure of a Member State to fulfil obligations — Directives 93/37/EEC and 2004/18/EC — Procedures for the award of public works contracts — Urban development legislation of the Autonomous Community of Valencia) | 3 |
| 2011/C 211/06 | Joined Cases C-165/09 to C-167/09: Judgment of the Court (First Chamber) of 26 May 2011 (references for a preliminary ruling from the Raad van State (Netherlands)) — Stichting Natuur en Milieu and Others (C-165/09) v College van Gedeputeerde Staten van Groningen, Stichting Natuur en Milieu and Others (C-166/09) v College van Gedeputeerde Staten van Zuid-Holland, Stichting Natuur en Milieu and Others (C-167/09) v College van Gedeputeerde Staten van Zuid-Holland (Environment — Directive 2008/1/EC — Permit for the construction and operation of a power station — Directive 2001/81/EC — National emission ceilings for certain atmospheric pollutants — Power of the Member States during the transitional period — Direct effect) | 4 |
| 2011/C 211/07 | Case C-538/09: Judgment of the Court (First Chamber) of 26 May 2011 — European Commission v Kingdom of Belgium (Failure of a Member State to fulfil obligations — Environment — Directive 92/43/EEC — Article 6(3) — Special areas of conservation — Appropriate assessment of the implications of a plan or project which is likely to have a significant effect on a protected site — Exemption from assessment of plans or projects which are subject to a declaratory scheme — Incorrect transposition) | 5 |
| 2011/C 211/08 | Case C-293/10: Judgment of the Court (Fourth Chamber) of 26 May 2011 (reference for a preliminary ruling from the Landesgericht Innsbruck — Austria) — Gebhard Stark v DAS Österreichische Allgemeine Rechtsschutzversicherung AG (Legal expenses insurance — Directive 87/344/EEC — Article 4(1) — Freedom of the insured person to choose his lawyer — Limitation of the reimbursement allowed in respect of the costs relating to representation of the insured person in judicial proceedings — Reimbursement limited to the amount corresponding to that claimed by a lawyer established in the judicial district of the court having jurisdiction at first instance) | 6 |
| 2011/C 211/09 | Case C-344/09: Order of the Court of 24 March 2011 (reference for a preliminary ruling from Mora Kommun — Sweden) — in the course of consideration of a complaint made by Dan Bengtsson (Reference for a preliminary ruling — Need for a dispute and proceedings intended to lead to a decision of a judicial nature — Lack of jurisdiction of the Court) | 6 |
| 2011/C 211/10 | Case C-519/09: Order of the Court (Fifth Chamber) of 7 April 2011 (reference for a preliminary ruling from the Arbeitsgericht Wuppertal — Germany) — Dieter May v AOK Rheinland/Hamburg — Die Gesundheitskasse (Article 104(3), first subparagraph, of the Rules of Procedure — Social policy — Organisation of working time — Directive 2003/88/EC — Scope ratione personae — Annual leave coinciding with sick leave — Compensation payment in respect of sickness — Concept of worker — Employees subject to the regulations concerning annual leave of public servants (Dienstordnungsangestellte)) | 6 |
| 2011/C 211/11 | Joined Cases C-136/10 and C-178/10: Order of the Court (Fifth Chamber) of 8 April 2011 (references for a preliminary ruling from the Curtea de Apel Târgu-Mureș (Romania)) — Daniel Ionel Obreja v Ministerul Economiei și Finanțelor, Direcția Generală a Finanțelor Publice a județului Mureș (C-136/10), Ministerul Economiei și Finanțelor, Direcția Generală a Finanțelor Publice a județului Mureș, Administrația Finanțelor Publice Târgu-Mureș v SC Darmi SRL (C-178/10) (First subparagraph of Article 104(3) of the Rules of Procedure — Internal taxation — Article 110 TFEU — Pollution tax levied upon first registration of motor vehicles) | 7 |
| 2011/C 211/12 | Case C-151/10: Order of the Court (Sixth Chamber) of 7 April 2011 (reference for a preliminary ruling from the Arbeidshof te Antwerpen (Belgium)) — Dai Cugini NV v Rijkdienst voor Sociale Zekerheid (First subparagraph of Article 104(3) of the Rules of Procedure — Directive 97/811/EC — Equal treatment of part-time and full-time workers — Discrimination — Administrative obstacle likely to limit the opportunities for part-time work — Mandatory publication and retention of contracts and work-schedules) | 7 |
| 2011/C 211/13 | Case C-336/10: Order of the Court (Fifth Chamber) of 8 April 2011 (reference for a preliminary ruling from the Curtea de Apel Craiova (Romania)) — Administrația Finanțelor Publice a Municipiului Târgu-Jiu, Administrația Fondului pentru Mediu v Victor Vinel Ijac (First subparagraph of Article 104(3) of the Rules of Procedure — Internal taxation — Article 110 TFEU — Pollution tax levied upon first registration of motor vehicles) | 8 |
| 2011/C 211/14 | Case C-418/10 P: Order of the Court (Fifth Chamber) of 28 March 2011 — Herhof-Verwaltungsgesellschaft mbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) — Stabilator sp. z o.o. (Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 8(1)(b) — Opposition proceedings — Earlier mark STABILAT — Figurative sign stabilator — Relative ground for refusal — Likelihood of confusion — Absence of similarity of the goods and services) | 8 |
| 2011/C 211/15 | Case C-609/10 P: Order of the Court of 14 April 2011 — Dieter C. Umbach v European Commission (Appeal — Access to the documents of the Institutions — TACIS programme — Contract concluded by the Commission — Termination of the contract — Dispute between the contracting parties — Application for access to documents — Manifest inadmissibility) | 9 |
| 2011/C 211/16 | Joined Cases C-29/11 and C-30/11: Order of the Court (Fifth Chamber) of 8 April 2011 (references for a preliminary ruling from the Tribunalul Suceava (Romania)) — Aurora Elena Sfichi v Direcția Generală a Finanțelor Publice Suceava, Administrația Finanțelor Publice Suceava, Administrația Fondului pentru Mediu (C-29/11), Adrian Ilaș v Direcția Generală a Finanțelor Publice Suceava, Administrația Finanțelor Publice Suceava, Administrația Fondului pentru Mediu (C-30/11) (First subparagraph of Article 104(3) of the Rules of Procedure — Internal taxation — Article 110 TFEU — Pollution tax levied upon first registration of motor vehicles) | 9 |
| 2011/C 211/17 | Case C-92/11: Reference for a preliminary ruling from the Bundesgerichtshof (Germany), lodged on 28 February 2011 — RWE Vertrieb AG v Verbraucherzentrale Nordrhein-Westfalen e.V. | 10 |
| 2011/C 211/18 | Case C-168/11: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 6 April 2011 — Dr Manfred Beker and Christa Beker v Finanzamt Heilbronn | 10 |
| 2011/C 211/19 | Case C-182/11: Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 18 April 2011 — Econord SpA v Comune di Cagno and Comune di Varese | 10 |
| 2011/C 211/20 | Case C-183/11: Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 18 April 2011 — Econord SpA v Comune di Solbiate and Comune di Varese | 11 |
| 2011/C 211/21 | Case C-187/11: Reference for a preliminary ruling from the Tribunale di Treviso (Italy) lodged on 20 April 2011 — Criminal proceedings against Elena Vermisheva | 11 |
| 2011/C 211/22 | Case C-188/11: Reference for a preliminary ruling from the Landesgericht für Zivilrechtssachen (Vienna) lodged on 20 April 2011 — Peter Hehenberger v Republic of Austria | 11 |
| 2011/C 211/23 | Case C-191/11 P: Appeal brought on 20 April 2011 by Yorma’s AG against the judgment of the General Court (First Chamber) delivered on 15 February 2011 in Case T-213/09, Yorma’s AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs), other party: Norma Lebensmittelfilialbetrieb GmbH & Co. KG | 12 |
| 2011/C 211/24 | Case C-192/11: Action brought on 20 April 2011 — European Commission v Republic of Poland | 13 |
| 2011/C 211/25 | Case C-197/11: Reference for a preliminary ruling from the Cour constitutionnelle (Belgium) lodged on 28 April 2011 — Eric Libert, Christian Van Eycken, Max Bleeckx, Syndicat national des propriétaires et copropriétaires (ASBL), Olivier de Clippele v Flemish Government | 13 |
| 2011/C 211/26 | Case C-207/11: Reference for a preliminary ruling from the Commissione tributaria regionale di Milano (Italy) lodged on 2 May 2011 — 3D I srl v Agenzia delle Entrate — Ufficio di Cremona | 14 |
| 2011/C 211/27 | Case C-208/11 P: Appeal brought on 29 April 2011 by Internationaler Hilfsfonds e.V. against the order of the General Court (Fourth Chamber) of 24 March 2011 in Case T-36/10 Internationaler Hilfsfonds e.V. v Commission | 14 |
| 2011/C 211/28 | Case C-210/11: Reference for a preliminary ruling from the Cour de cassation (Belgium) lodged on 9 May 2011 — État belge v Medicom sprl | 15 |
| 2011/C 211/29 | Case C-211/11: Reference for a preliminary ruling from the Cour de cassation (Belgium) lodged on 9 May 2011 — État belge v Maison Patrice Alard sprl | 15 |
| 2011/C 211/30 | Case C-223/11: Action brought on 13 May 2011 — European Commission v Portuguese Republic | 16 |
| 2011/C 211/31 | Case C-225/11: Reference for a preliminary ruling from Upper Tribunal (Tax and Chancery Chamber) (Royaume-Uni) (United Kingdom) made on 13 May 2011 — Her Majesty's Commissioners of Revenue and Customs v Able UK Ltd | 16 |
| 2011/C 211/32 | Case C-226/11: Reference for a preliminary ruling from the Cour de cassation (France) lodged on 16 May 2011 — Expedia Inc. v Autorité de la concurrence, Ministre de l’économie de l’industrie et de l’emploi, Société nationale des chemins de fer français (SNCF), Voyages-SNCF.Com, Agence Voyages-SNCF.Com, Société VFE Commerce, Société IDTGV, société par actions simplifiée | 17 |
| 2011/C 211/33 | Case C-228/11: Reference for a preliminary ruling from the Landgericht Düsseldorf (Germany) lodged on 16 May 2011 — Melzer v MF Global UK Ltd | 17 |
| 2011/C 211/34 | Case C-235/11 P: Appeal brought on 17 May 2011 by Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE against the judgment of the General Court (Eighth Chamber) delivered on 3 March 2011 in Case T-589/08: Evropaïki Dynamiki v Commission | 17 |
| 2011/C 211/35 | Case C-240/11 P: Appeal brought on 19 May 2011 by World Wide Tobacco España, S.A. against the judgment of the General Court (Fourth Chamber) delivered on 8 March 2011 in Case T-37/05 World Wide Tobacco España v Commission | 18 |
| 2011/C 211/36 | Case C-247/11 P: Appeal brought on 24 May 2011 by Areva against the judgment of the General Court (Second Chamber) delivered on 3 March 2011 in Joined Cases T-117/07 and T-121/07 Areva and Others v Commission | 18 |
| 2011/C 211/37 | Case C-253/11 P: Appeal brought on 25 May 2011 by Alstom, T&D Holding, formerly Areva T&D Holding SA, Alstom Grid SAS, formerly Areva T&D SA, Alstom Grid AG, formerly Areva T&D AG against the judgment of the General Court (Second Chamber) delivered on 3 March 2011 in Joined Cases T-117/07 and T-121/07 Areva and Others v Commission | 19 |
| 2011/C 211/38 | Case C-219/09: Order of the President of the Court of 15 April 2011 (reference for a preliminary ruling from the Tribunale di Milano — Italy) — Vitra Patente AG v High Tech srl | 20 |
| 2011/C 211/39 | Case C-158/10: Order of the President of the Court of 30 March 2011 (reference for a preliminary ruling from the Raad Van State — Netherlands) — Johan van Leendert Holding BV v Minister van Sociale Zaken en Werkgelegenheid | 21 |
| 2011/C 211/40 | Case C-227/10: Order of the President of the Eighth Chamber of the Court of 10 March 2011 — European Commission v Republic of Estonia | 21 |
| 2011/C 211/41 | Case C-241/10: Order of the President of the Court of 7 April 2011 (reference for a preliminary ruling from the Unabhängiger Verwaltungssenat Salzburg — Austria) — Harald Jung and Gerald Hellweger v Magistrat der Stadt Salzburg, other party to the proceedings: Finanzamt Salzburg-Stadt | 21 |
| 2011/C 211/42 | Case C-306/10: Order of the President of the Fifth Chamber of the Court of 10 March 2011 — European Commission v Republic of Estonia | 21 |
| 2011/C 211/43 | Case C-374/10: Order of the President of the Fifth Chamber of the Court of 12 April 2011 — European Commission v Kingdom of Sweden | 21 |
| 2011/C 211/44 | Case C-380/10: Order of the President of the Seventh Chamber of the Court of 17 March 2011 — European Commission v Republic of Finland | 21 |
| 2011/C 211/45 | Case C-445/10: Order of the President of the Court of 21 March 2011 — European Commission v Federal Republic of Germany | 21 |
| 2011/C 211/46 | Case C-471/10: Order of the President of the Court of 7 April 2011 (reference for a preliminary ruling from the the Unabhängiger Verwaltungssenat Salzburg — Austria) — Martin Wohl, Ildiko Veres v Magistrat der Stadt Salzburg, other party to the proceedings: Finanzamt Salzburg-Stadt | 21 |
| | General Court |
| 2011/C 211/47 | Case T-206/06: Judgment of the General Court of 7 June 2011 — Total and Elf Aquitaine v Commission (Competition — Agreements, decisions and concerted practices — Market for methacrylates — Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement — Imputability of the unlawful conduct — Rights of the defence — Presumption of innocence — Obligation to state reasons — Principle of equal treatment — Principle that penalties must fit the offence — Principle of nullum crimen, nulla poena sine lege — Principle of sound administration — Principle of legal certainty — Misuse of powers — Fines — Attribution of liability for payment within a group of companies) | 22 |
| 2011/C 211/48 | Case T-217/06: Judgment of the General Court of 7 June 2011 — Arkema France and Others v Commission (Competition — Agreements, decisions and concerted practices — Market for methacrylates — Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement — Imputability of the unlawful conduct — Obligation to state reasons — Principle of equal treatment — Principle of sound administration — Fines — Gravity of the infringement — Actual impact on the market — Deterrent effect of the fine — Repeat infringement — Ne bis in idem principle — Principle of proportionality — Attenuating circumstances — Actual non-application of the agreements — Attribution of liability for payment within a group of companies — Unlimited jurisdiction) | 22 |
| 2011/C 211/49 | Case T-471/08: Judgment of the General Court of 7 June 2011 — Toland v Parliament (Access to documents — Regulation (EC) No 1049/2001 — Audit report on the parliamentary assistance allowance — Refusal of access — Exception relating to protection of the purpose of inspections, investigations and audits — Exception relating to protection of the decision-making process) | 23 |
| 2011/C 211/50 | Case T-507/08: Judgment of the General Court of 7 June 2011 — Psytech International v OHIM — Institute for Personality & Ability Testing (16PF) (Community trade mark — Invalidity proceedings — Community word mark 16PF — Absolute grounds for refusal — Distinctive character — No descriptive character — No signs which have become customary — No bad faith — Article 7(1)(b) to (d) and Article 51(1)(b) of Regulation (EC) No 40/94 (now Article 7(1)(b) to (d) and Article 52(1)(b) of Regulation (EC) No 207/2009)) | 23 |
| 2011/C 211/51 | Case T-489/08: Order of the General Court of 24 May 2011 — Power-One Italy v Commission (Action for compensation — Project cofunded by the financial instrument LIFE + — Development of a new system of supplying power for use in mobile telephony (Pneuma project) — Abuse of process — Disregard of formal requirements — Inadmissibility) | 23 |
| 2011/C 211/52 | Case T-176/09: Order of the General Court of 24 May 2011 — Government of Gibraltar v Commission (Action for annulment — Directive 92/43/EEC — Conservation of natural habitats and of wild fauna and flora — Decision 2009/95/EC — List of sites of Community importance for the Mediterranean biogeographical region — Inclusion in the site of Community importance called Estrecho oriental of an area of the territorial waters of Gibraltar and of an area of the high seas — Partial annulment — Non-severability — Inadmissibility) | 24 |
| 2011/C 211/53 | Case T-493/09 P: Order of the General Court of 23 May 2011 — Y v Commission (Appeal — Staff case — Contract agents — Dismissal — Appeal in part manifestly inadmissible and in part manifestly unfounded) | 24 |
| 2011/C 211/54 | Case T-115/10: Order of the General Court of 24 May 2011 — United Kingdom v Commission (Action for annulment — Directive 92/43/EEC — Conservation of natural habitats and of wild fauna and flora — Decision 2010/45/EU — List of sites of Community importance for the Mediterranean biogeographical region — Measure not open to challenge — Measure merely confirmatory — Inadmissibility) | 24 |
| 2011/C 211/55 | Case T-198/11 P: Appeal brought on 30 March 2011 by Guido Strack against the judgment of the Civil Service Tribunal of 20 January 2011 in Case F-121/07, Strack v Commission | 25 |
| 2011/C 211/56 | Case T-228/11 P: Appeal on 26 April 2011 by Florence Barbin against the judgment of 15 February 2011 by the Civil Service Tribunal in Case F-68/09 Barbin v Parliament | 26 |
| 2011/C 211/57 | Case T-229/11: Action brought on 20 April 2011 — Inglewood and Others v Parliament | 26 |
| 2011/C 211/58 | Case T-234/11 P: Appeal lodged on 28 April 2011 by Oscar Orlando Arango Jaramillo a.o. against the Order of the Civil Service Tribunal of 4 February 2011 in Case F-34/10 Arango Jaramillo and Others v EIB | 27 |
| 2011/C 211/59 | Case T-242/11: Action brought on 9 May 2011 — Kaltenbach & Voigt v OHIM (3D eXam) | 27 |
| 2011/C 211/60 | Case T-248/11: Action brought on 12 May 2011 — International Engine Intellectual Property Company v OHIM (PURE POWER) | 28 |
| 2011/C 211/61 | Case T-255/11: Action brought on 20 May 2011 — Fellah v Council | 28 |
| 2011/C 211/62 | Case T-257/11: Action brought on 23 May 2011 — Pangyrus v OHIM — RSVP Design (COLOURBLIND) | 29 |
| 2011/C 211/63 | Case T-260/11: Action brought on 19 May 2011 — Spain v Commission | 29 |
| 2011/C 211/64 | Case T-264/11 P: Appeal brought on 21 May 2011 by Carlo De Nicola against the judgment of the Civil Service Tribunal of 8 March 2011 in Case F-59/09, De Nicola v EIB | 30 |
| 2011/C 211/65 | Case T-267/11: Action brought on 24 May 2011 — Video Research USA/OHMI (VR) | 31 |
| 2011/C 211/66 | Case T-269/11: Action brought on 23 May 2011 — Xeda International/Commission | 31 |
| | European Union Civil Service Tribunal |
| 2011/C 211/67 | Case F-35/11: Action brought on 4 April 2011 — ZZ v European Parliament | 33 |
| 2011/C 211/68 | Case F-57/11: Action brought on 23 May 2011 — ZZ v Commission | 33 |
| 2011/C 211/69 | Case F-58/11: Action brought on 23 May 2011 — ZZ v European Investment Bank | 34 |
| 2011/C 211/70 | Case F-59/11: Action brought on 24 May 2011 — ZZ v OHIM | 34 |
| 2011/C 211/71 | Case F-60/11: Action brought on 25 May 2011 — ZZ v ECB | 35 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2011/C 211/02

Opinion 1/08: Opinion of the Court (Grand Chamber) of 30 November 2009 — Commission of the European Communities (Opinion pursuant to Article 300(6) EC — General Agreement on Trade in Services (GATS) — Schedules of specific commitments — Conclusion of agreements on the grant of compensation for modification and withdrawal of certain commitments following the accession of new Member States to the European Union — Shared competence — Legal bases — Common commercial policy — Common transport policy)

2

2011/C 211/03

Opinion 1/09: Opinion of the Court (Full Court) of 8 March 2011 — Council of the European Union (Opinion delivered pursuant to Article 218(11) TFEU — Draft agreement — Creation of a unified patent litigation system — European and Community Patents Court — Compatibility of the draft agreement with the Treaties)

2

2011/C 211/04

Case C-485/07: Judgment of the Court (First Chamber) of 26 May 2011 (reference for a preliminary ruling from the Centrale Raad van Beroep — Netherlands) — Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen v H. Akdas, H. Agartan, Z. Akbulut, M. Bas, K. Yüzügüllüer, E. Keskin, C. Topaloglu, A. Cubuk, S. Sariisik (EEC-Turkey Association — Social security for migrant workers — Waiving of residence clauses — Scope — Supplement to the invalidity pension paid by the host Member State in order to ensure a minimum standard of living for the recipients — Amendment of national legislation — Withdrawal of that supplement when the recipient resides outside the territory of the Member State concerned)

3

2011/C 211/05

Case C-306/08: Judgment of the Court (Third Chamber) of 26 May 2011 — European Commission v Kingdom of Spain (Failure of a Member State to fulfil obligations — Directives 93/37/EEC and 2004/18/EC — Procedures for the award of public works contracts — Urban development legislation of the Autonomous Community of Valencia)

3

2011/C 211/06

Joined Cases C-165/09 to C-167/09: Judgment of the Court (First Chamber) of 26 May 2011 (references for a preliminary ruling from the Raad van State (Netherlands)) — Stichting Natuur en Milieu and Others (C-165/09) v College van Gedeputeerde Staten van Groningen, Stichting Natuur en Milieu and Others (C-166/09) v College van Gedeputeerde Staten van Zuid-Holland, Stichting Natuur en Milieu and Others (C-167/09) v College van Gedeputeerde Staten van Zuid-Holland (Environment — Directive 2008/1/EC — Permit for the construction and operation of a power station — Directive 2001/81/EC — National emission ceilings for certain atmospheric pollutants — Power of the Member States during the transitional period — Direct effect)

4

2011/C 211/07

Case C-538/09: Judgment of the Court (First Chamber) of 26 May 2011 — European Commission v Kingdom of Belgium (Failure of a Member State to fulfil obligations — Environment — Directive 92/43/EEC — Article 6(3) — Special areas of conservation — Appropriate assessment of the implications of a plan or project which is likely to have a significant effect on a protected site — Exemption from assessment of plans or projects which are subject to a declaratory scheme — Incorrect transposition)

5

2011/C 211/08

Case C-293/10: Judgment of the Court (Fourth Chamber) of 26 May 2011 (reference for a preliminary ruling from the Landesgericht Innsbruck — Austria) — Gebhard Stark v DAS Österreichische Allgemeine Rechtsschutzversicherung AG (Legal expenses insurance — Directive 87/344/EEC — Article 4(1) — Freedom of the insured person to choose his lawyer — Limitation of the reimbursement allowed in respect of the costs relating to representation of the insured person in judicial proceedings — Reimbursement limited to the amount corresponding to that claimed by a lawyer established in the judicial district of the court having jurisdiction at first instance)

6

2011/C 211/09

Case C-344/09: Order of the Court of 24 March 2011 (reference for a preliminary ruling from Mora Kommun — Sweden) — in the course of consideration of a complaint made by Dan Bengtsson (Reference for a preliminary ruling — Need for a dispute and proceedings intended to lead to a decision of a judicial nature — Lack of jurisdiction of the Court)

6

2011/C 211/10

Case C-519/09: Order of the Court (Fifth Chamber) of 7 April 2011 (reference for a preliminary ruling from the Arbeitsgericht Wuppertal — Germany) — Dieter May v AOK Rheinland/Hamburg — Die Gesundheitskasse (Article 104(3), first subparagraph, of the Rules of Procedure — Social policy — Organisation of working time — Directive 2003/88/EC — Scope ratione personae — Annual leave coinciding with sick leave — Compensation payment in respect of sickness — Concept of worker — Employees subject to the regulations concerning annual leave of public servants (Dienstordnungsangestellte))

6

2011/C 211/11

Joined Cases C-136/10 and C-178/10: Order of the Court (Fifth Chamber) of 8 April 2011 (references for a preliminary ruling from the Curtea de Apel Târgu-Mureș (Romania)) — Daniel Ionel Obreja v Ministerul Economiei și Finanțelor, Direcția Generală a Finanțelor Publice a județului Mureș (C-136/10), Ministerul Economiei și Finanțelor, Direcția Generală a Finanțelor Publice a județului Mureș, Administrația Finanțelor Publice Târgu-Mureș v SC Darmi SRL (C-178/10) (First subparagraph of Article 104(3) of the Rules of Procedure — Internal taxation — Article 110 TFEU — Pollution tax levied upon first registration of motor vehicles)

7

2011/C 211/12

Case C-151/10: Order of the Court (Sixth Chamber) of 7 April 2011 (reference for a preliminary ruling from the Arbeidshof te Antwerpen (Belgium)) — Dai Cugini NV v Rijkdienst voor Sociale Zekerheid (First subparagraph of Article 104(3) of the Rules of Procedure — Directive 97/811/EC — Equal treatment of part-time and full-time workers — Discrimination — Administrative obstacle likely to limit the opportunities for part-time work — Mandatory publication and retention of contracts and work-schedules)

7

2011/C 211/13

Case C-336/10: Order of the Court (Fifth Chamber) of 8 April 2011 (reference for a preliminary ruling from the Curtea de Apel Craiova (Romania)) — Administrația Finanțelor Publice a Municipiului Târgu-Jiu, Administrația Fondului pentru Mediu v Victor Vinel Ijac (First subparagraph of Article 104(3) of the Rules of Procedure — Internal taxation — Article 110 TFEU — Pollution tax levied upon first registration of motor vehicles)

8

2011/C 211/14

Case C-418/10 P: Order of the Court (Fifth Chamber) of 28 March 2011 — Herhof-Verwaltungsgesellschaft mbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) — Stabilator sp. z o.o. (Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 8(1)(b) — Opposition proceedings — Earlier mark STABILAT — Figurative sign stabilator — Relative ground for refusal — Likelihood of confusion — Absence of similarity of the goods and services)

8

2011/C 211/15

Case C-609/10 P: Order of the Court of 14 April 2011 — Dieter C. Umbach v European Commission (Appeal — Access to the documents of the Institutions — TACIS programme — Contract concluded by the Commission — Termination of the contract — Dispute between the contracting parties — Application for access to documents — Manifest inadmissibility)

9

2011/C 211/16

Joined Cases C-29/11 and C-30/11: Order of the Court (Fifth Chamber) of 8 April 2011 (references for a preliminary ruling from the Tribunalul Suceava (Romania)) — Aurora Elena Sfichi v Direcția Generală a Finanțelor Publice Suceava, Administrația Finanțelor Publice Suceava, Administrația Fondului pentru Mediu (C-29/11), Adrian Ilaș v Direcția Generală a Finanțelor Publice Suceava, Administrația Finanțelor Publice Suceava, Administrația Fondului pentru Mediu (C-30/11) (First subparagraph of Article 104(3) of the Rules of Procedure — Internal taxation — Article 110 TFEU — Pollution tax levied upon first registration of motor vehicles)

9

2011/C 211/17

Case C-92/11: Reference for a preliminary ruling from the Bundesgerichtshof (Germany), lodged on 28 February 2011 — RWE Vertrieb AG v Verbraucherzentrale Nordrhein-Westfalen e.V.

10

2011/C 211/18

Case C-168/11: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 6 April 2011 — Dr Manfred Beker and Christa Beker v Finanzamt Heilbronn

10

2011/C 211/19

Case C-182/11: Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 18 April 2011 — Econord SpA v Comune di Cagno and Comune di Varese

10

2011/C 211/20

Case C-183/11: Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 18 April 2011 — Econord SpA v Comune di Solbiate and Comune di Varese

11

2011/C 211/21

Case C-187/11: Reference for a preliminary ruling from the Tribunale di Treviso (Italy) lodged on 20 April 2011 — Criminal proceedings against Elena Vermisheva

11

2011/C 211/22

Case C-188/11: Reference for a preliminary ruling from the Landesgericht für Zivilrechtssachen (Vienna) lodged on 20 April 2011 — Peter Hehenberger v Republic of Austria

11

2011/C 211/23

Case C-191/11 P: Appeal brought on 20 April 2011 by Yorma’s AG against the judgment of the General Court (First Chamber) delivered on 15 February 2011 in Case T-213/09, Yorma’s AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs), other party: Norma Lebensmittelfilialbetrieb GmbH & Co. KG

12

2011/C 211/24

Case C-192/11: Action brought on 20 April 2011 — European Commission v Republic of Poland

13

2011/C 211/25

Case C-197/11: Reference for a preliminary ruling from the Cour constitutionnelle (Belgium) lodged on 28 April 2011 — Eric Libert, Christian Van Eycken, Max Bleeckx, Syndicat national des propriétaires et copropriétaires (ASBL), Olivier de Clippele v Flemish Government

13

2011/C 211/26

Case C-207/11: Reference for a preliminary ruling from the Commissione tributaria regionale di Milano (Italy) lodged on 2 May 2011 — 3D I srl v Agenzia delle Entrate — Ufficio di Cremona

14

2011/C 211/27

Case C-208/11 P: Appeal brought on 29 April 2011 by Internationaler Hilfsfonds e.V. against the order of the General Court (Fourth Chamber) of 24 March 2011 in Case T-36/10 Internationaler Hilfsfonds e.V. v Commission

14

2011/C 211/28

Case C-210/11: Reference for a preliminary ruling from the Cour de cassation (Belgium) lodged on 9 May 2011 — État belge v Medicom sprl

15

2011/C 211/29

Case C-211/11: Reference for a preliminary ruling from the Cour de cassation (Belgium) lodged on 9 May 2011 — État belge v Maison Patrice Alard sprl

15

2011/C 211/30

Case C-223/11: Action brought on 13 May 2011 — European Commission v Portuguese Republic

16

2011/C 211/31

Case C-225/11: Reference for a preliminary ruling from Upper Tribunal (Tax and Chancery Chamber) (Royaume-Uni) (United Kingdom) made on 13 May 2011 — Her Majesty's Commissioners of Revenue and Customs v Able UK Ltd

16

2011/C 211/32

Case C-226/11: Reference for a preliminary ruling from the Cour de cassation (France) lodged on 16 May 2011 — Expedia Inc. v Autorité de la concurrence, Ministre de l’économie de l’industrie et de l’emploi, Société nationale des chemins de fer français (SNCF), Voyages-SNCF.Com, Agence Voyages-SNCF.Com, Société VFE Commerce, Société IDTGV, société par actions simplifiée

17

2011/C 211/33

Case C-228/11: Reference for a preliminary ruling from the Landgericht Düsseldorf (Germany) lodged on 16 May 2011 — Melzer v MF Global UK Ltd

17

2011/C 211/34

Case C-235/11 P: Appeal brought on 17 May 2011 by Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE against the judgment of the General Court (Eighth Chamber) delivered on 3 March 2011 in Case T-589/08: Evropaïki Dynamiki v Commission

17

2011/C 211/35

Case C-240/11 P: Appeal brought on 19 May 2011 by World Wide Tobacco España, S.A. against the judgment of the General Court (Fourth Chamber) delivered on 8 March 2011 in Case T-37/05 World Wide Tobacco España v Commission

18

2011/C 211/36

Case C-247/11 P: Appeal brought on 24 May 2011 by Areva against the judgment of the General Court (Second Chamber) delivered on 3 March 2011 in Joined Cases T-117/07 and T-121/07 Areva and Others v Commission

18

2011/C 211/37

Case C-253/11 P: Appeal brought on 25 May 2011 by Alstom, T&D Holding, formerly Areva T&D Holding SA, Alstom Grid SAS, formerly Areva T&D SA, Alstom Grid AG, formerly Areva T&D AG against the judgment of the General Court (Second Chamber) delivered on 3 March 2011 in Joined Cases T-117/07 and T-121/07 Areva and Others v Commission

19

2011/C 211/38

Case C-219/09: Order of the President of the Court of 15 April 2011 (reference for a preliminary ruling from the Tribunale di Milano — Italy) — Vitra Patente AG v High Tech srl

20

2011/C 211/39

Case C-158/10: Order of the President of the Court of 30 March 2011 (reference for a preliminary ruling from the Raad Van State — Netherlands) — Johan van Leendert Holding BV v Minister van Sociale Zaken en Werkgelegenheid

21

2011/C 211/40

Case C-227/10: Order of the President of the Eighth Chamber of the Court of 10 March 2011 — European Commission v Republic of Estonia

21

2011/C 211/41

Case C-241/10: Order of the President of the Court of 7 April 2011 (reference for a preliminary ruling from the Unabhängiger Verwaltungssenat Salzburg — Austria) — Harald Jung and Gerald Hellweger v Magistrat der Stadt Salzburg, other party to the proceedings: Finanzamt Salzburg-Stadt

21

2011/C 211/42

Case C-306/10: Order of the President of the Fifth Chamber of the Court of 10 March 2011 — European Commission v Republic of Estonia

21

2011/C 211/43

Case C-374/10: Order of the President of the Fifth Chamber of the Court of 12 April 2011 — European Commission v Kingdom of Sweden

21

2011/C 211/44

Case C-380/10: Order of the President of the Seventh Chamber of the Court of 17 March 2011 — European Commission v Republic of Finland

21

2011/C 211/45

Case C-445/10: Order of the President of the Court of 21 March 2011 — European Commission v Federal Republic of Germany

21

2011/C 211/46

Case C-471/10: Order of the President of the Court of 7 April 2011 (reference for a preliminary ruling from the the Unabhängiger Verwaltungssenat Salzburg — Austria) — Martin Wohl, Ildiko Veres v Magistrat der Stadt Salzburg, other party to the proceedings: Finanzamt Salzburg-Stadt

21

General Court

2011/C 211/47

Case T-206/06: Judgment of the General Court of 7 June 2011 — Total and Elf Aquitaine v Commission (Competition — Agreements, decisions and concerted practices — Market for methacrylates — Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement — Imputability of the unlawful conduct — Rights of the defence — Presumption of innocence — Obligation to state reasons — Principle of equal treatment — Principle that penalties must fit the offence — Principle of nullum crimen, nulla poena sine lege — Principle of sound administration — Principle of legal certainty — Misuse of powers — Fines — Attribution of liability for payment within a group of companies)

22

2011/C 211/48

Case T-217/06: Judgment of the General Court of 7 June 2011 — Arkema France and Others v Commission (Competition — Agreements, decisions and concerted practices — Market for methacrylates — Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement — Imputability of the unlawful conduct — Obligation to state reasons — Principle of equal treatment — Principle of sound administration — Fines — Gravity of the infringement — Actual impact on the market — Deterrent effect of the fine — Repeat infringement — Ne bis in idem principle — Principle of proportionality — Attenuating circumstances — Actual non-application of the agreements — Attribution of liability for payment within a group of companies — Unlimited jurisdiction)

22

2011/C 211/49

Case T-471/08: Judgment of the General Court of 7 June 2011 — Toland v Parliament (Access to documents — Regulation (EC) No 1049/2001 — Audit report on the parliamentary assistance allowance — Refusal of access — Exception relating to protection of the purpose of inspections, investigations and audits — Exception relating to protection of the decision-making process)

23

2011/C 211/50

Case T-507/08: Judgment of the General Court of 7 June 2011 — Psytech International v OHIM — Institute for Personality & Ability Testing (16PF) (Community trade mark — Invalidity proceedings — Community word mark 16PF — Absolute grounds for refusal — Distinctive character — No descriptive character — No signs which have become customary — No bad faith — Article 7(1)(b) to (d) and Article 51(1)(b) of Regulation (EC) No 40/94 (now Article 7(1)(b) to (d) and Article 52(1)(b) of Regulation (EC) No 207/2009))

23

2011/C 211/51

Case T-489/08: Order of the General Court of 24 May 2011 — Power-One Italy v Commission (Action for compensation — Project cofunded by the financial instrument LIFE + — Development of a new system of supplying power for use in mobile telephony (Pneuma project) — Abuse of process — Disregard of formal requirements — Inadmissibility)

23

2011/C 211/52

Case T-176/09: Order of the General Court of 24 May 2011 — Government of Gibraltar v Commission (Action for annulment — Directive 92/43/EEC — Conservation of natural habitats and of wild fauna and flora — Decision 2009/95/EC — List of sites of Community importance for the Mediterranean biogeographical region — Inclusion in the site of Community importance called Estrecho oriental of an area of the territorial waters of Gibraltar and of an area of the high seas — Partial annulment — Non-severability — Inadmissibility)

24

2011/C 211/53

Case T-493/09 P: Order of the General Court of 23 May 2011 — Y v Commission (Appeal — Staff case — Contract agents — Dismissal — Appeal in part manifestly inadmissible and in part manifestly unfounded)

24

2011/C 211/54

Case T-115/10: Order of the General Court of 24 May 2011 — United Kingdom v Commission (Action for annulment — Directive 92/43/EEC — Conservation of natural habitats and of wild fauna and flora — Decision 2010/45/EU — List of sites of Community importance for the Mediterranean biogeographical region — Measure not open to challenge — Measure merely confirmatory — Inadmissibility)

24

2011/C 211/55

Case T-198/11 P: Appeal brought on 30 March 2011 by Guido Strack against the judgment of the Civil Service Tribunal of 20 January 2011 in Case F-121/07, Strack v Commission

25

2011/C 211/56

Case T-228/11 P: Appeal on 26 April 2011 by Florence Barbin against the judgment of 15 February 2011 by the Civil Service Tribunal in Case F-68/09 Barbin v Parliament

26

2011/C 211/57

Case T-229/11: Action brought on 20 April 2011 — Inglewood and Others v Parliament

26

2011/C 211/58

Case T-234/11 P: Appeal lodged on 28 April 2011 by Oscar Orlando Arango Jaramillo a.o. against the Order of the Civil Service Tribunal of 4 February 2011 in Case F-34/10 Arango Jaramillo and Others v EIB

27

2011/C 211/59

Case T-242/11: Action brought on 9 May 2011 — Kaltenbach & Voigt v OHIM (3D eXam)

27

2011/C 211/60

Case T-248/11: Action brought on 12 May 2011 — International Engine Intellectual Property Company v OHIM (PURE POWER)

28

2011/C 211/61

Case T-255/11: Action brought on 20 May 2011 — Fellah v Council

28

2011/C 211/62

Case T-257/11: Action brought on 23 May 2011 — Pangyrus v OHIM — RSVP Design (COLOURBLIND)

29

2011/C 211/63

Case T-260/11: Action brought on 19 May 2011 — Spain v Commission

29

2011/C 211/64

Case T-264/11 P: Appeal brought on 21 May 2011 by Carlo De Nicola against the judgment of the Civil Service Tribunal of 8 March 2011 in Case F-59/09, De Nicola v EIB

30

2011/C 211/65

Case T-267/11: Action brought on 24 May 2011 — Video Research USA/OHMI (VR)

31

2011/C 211/66

Case T-269/11: Action brought on 23 May 2011 — Xeda International/Commission

31

European Union Civil Service Tribunal

2011/C 211/67

Case F-35/11: Action brought on 4 April 2011 — ZZ v European Parliament

33

2011/C 211/68

Case F-57/11: Action brought on 23 May 2011 — ZZ v Commission

33

2011/C 211/69

Case F-58/11: Action brought on 23 May 2011 — ZZ v European Investment Bank

34

2011/C 211/70

Case F-59/11: Action brought on 24 May 2011 — ZZ v OHIM

34

2011/C 211/71

Case F-60/11: Action brought on 25 May 2011 — ZZ v ECB

35

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

EN

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

| 16.7.2011 | EN | Official Journal of the European Union | C 211/1 |
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16.7.2011

EN

Official Journal of the European Union

C 211/1

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2011/C 211/01

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

OJ C 204, 9.7.2011

Past publications

OJ C 194, 2.7.2011

OJ C 186, 25.6.2011

OJ C 179, 18.6.2011

OJ C 173, 11.6.2011

OJ C 160, 28.5.2011

OJ C 152, 21.5.2011

These texts are available on:

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

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V Announcements

COURT PROCEEDINGS

Court of Justice

| 16.7.2011 | EN | Official Journal of the European Union | C 211/2 |
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16.7.2011

EN

Official Journal of the European Union

C 211/2

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Opinion of the Court (Grand Chamber) of 30 November 2009 — Commission of the European Communities

(Opinion 1/08) (1)

(Opinion pursuant to Article 300(6) EC - General Agreement on Trade in Services (GATS) - Schedules of specific commitments - Conclusion of agreements on the grant of compensation for modification and withdrawal of certain commitments following the accession of new Member States to the European Union - Shared competence - Legal bases - Common commercial policy - Common transport policy)

2011/C 211/02

Language of the case: all the official languages

Parties

Applicant: Commission of the European Communities

Re:

Request for an Opinion — World Trade Organisation (WTO) — General Agreement on Trade in Services (GATS) — Schedules of specific commitments concerning market access and the grant of national treatment — Agreements relating to the modification and withdrawal of specific commitments following the accession of new Member States to the European Union and to the compensatory adjustments for WTO members affected by that modification and withdrawal — Nature of the Community’s competence (exclusive or shared) to conclude such agreements and appropriate legal bases — Scope of the common commercial policy and the common transport policy respectively

Operative part

| 1. | The conclusion of the agreements with the affected members of the World Trade Organisation, pursuant to Article XXI of the General Agreement on Trade in Services (GATS), as described in the request for an Opinion, falls within the sphere of shared competence of the European Community and the Member States. |
| --- | --- |

1.

The conclusion of the agreements with the affected members of the World Trade Organisation, pursuant to Article XXI of the General Agreement on Trade in Services (GATS), as described in the request for an Opinion, falls within the sphere of shared competence of the European Community and the Member States.

| 2. | The Community act concluding the abovementioned agreements must be based both on Article 133(1), (5) and (6), second subparagraph, EC and on Articles 71 EC and 80(2) EC, in conjunction with Article 300(2) and (3), first subparagraph, EC. |
| --- | --- |

2.

The Community act concluding the abovementioned agreements must be based both on Article 133(1), (5) and (6), second subparagraph, EC and on Articles 71 EC and 80(2) EC, in conjunction with Article 300(2) and (3), first subparagraph, EC.

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(1)  OJ C 183, 19.7.2008.

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/2 |
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16.7.2011

EN

Official Journal of the European Union

C 211/2

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Opinion of the Court (Full Court) of 8 March 2011 — Council of the European Union

(Opinion 1/09) (1)

(Opinion delivered pursuant to Article 218(11) TFEU - Draft agreement - Creation of a unified patent litigation system - European and Community Patents Court - Compatibility of the draft agreement with the Treaties)

2011/C 211/03

Language of the case: all the official languages.

Parties

Applicant: Council of the European Union

Re:

Request for an opinion — Compatibility, with the EC Treaty, of a draft agreement creating a unified patent litigation system — European and Community Patents Court, composed of a court of first instance and a court of appeal — Attribution to that court of jurisdiction to determine, in particular, disputes relating to the validity and/or application of Community patents, linked to the power or the obligation for that court to refer to the Court of Justice questions for a preliminary ruling on the interpretation of the EC Treaty or the validity and interpretation of acts adopted by the European Union institutions — Adverse effect on the autonomy of the Community legal order and the primacy of Community law?

Operative part

The envisaged agreement creating a unified patent litigation system (currently called ‘European and Community Patents Court’) is not compatible with the provisions of the EU Treaty and the FEU Treaty.

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(1)  OJ C 220, 12.9.2009.

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/3 |
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16.7.2011

EN

Official Journal of the European Union

C 211/3

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Judgment of the Court (First Chamber) of 26 May 2011 (reference for a preliminary ruling from the Centrale Raad van Beroep — Netherlands) — Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen v H. Akdas, H. Agartan, Z. Akbulut, M. Bas, K. Yüzügüllüer, E. Keskin, C. Topaloglu, A. Cubuk, S. Sariisik

(Case C-485/07) (1)

(EEC-Turkey Association - Social security for migrant workers - Waiving of residence clauses - Scope - Supplement to the invalidity pension paid by the host Member State in order to ensure a minimum standard of living for the recipients - Amendment of national legislation - Withdrawal of that supplement when the recipient resides outside the territory of the Member State concerned)

2011/C 211/04

Language of the case: Dutch

Referring court

Centrale Raad van Beroep

Parties to the main proceedings

Applicant: Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen

Defendants: H. Akdas, H. Agartan, Z. Akbulut, M. Bas, K. Yüzügüllüer, E. Keskin, C. Topaloglu, A. Cubuk, S. Sariisik

Re:

Reference for a preliminary hearing — Centrale Raad van Beroep — Interpretation of Article 9 of the Association Agreement, of Article 59 of the Additional Protocol to the Agreement establishing an Association between the European Economic Community and Turkey signed at Brussels on 23 November 1970 and concluded, approved and confirmed on behalf of the Community by Council Regulation (EEC) No 2760/72 of 19 December 1972 (OJ 1973 C 133, p. 17) and of Article 6(1) of Decision No 3/80 of the Association Council of 19 September 1980 on the application of the social security schemes of the Member States of the European Communities to Turkish workers and members of their families (OJ 1983 C 110, p. 60) — National legislation providing for the grant of a supplementary benefit by means of insurance against incapacity for work in order to reach the level of the minimum wage — Restrictions in the event of residence outside the Netherlands — Two speed withdrawal of supplementary benefit according to place of residence and nationality

Operative part of the judgment

| 1. | The first subparagraph of Article 6(1) of Decision No 3/80 of the Association Council of 19 September 1980 on the application of the social security schemes of the Member States of the European Communities to Turkish workers and members of their families must be interpreted as having direct effect, so that Turkish nationals to whom that provision applies are entitled to rely on those provisions directly before the Member States’ courts in order to have rules of national law which are contrary to it disapplied; |
| --- | --- |

1.

The first subparagraph of Article 6(1) of Decision No 3/80 of the Association Council of 19 September 1980 on the application of the social security schemes of the Member States of the European Communities to Turkish workers and members of their families must be interpreted as having direct effect, so that Turkish nationals to whom that provision applies are entitled to rely on those provisions directly before the Member States’ courts in order to have rules of national law which are contrary to it disapplied;

| 2. | The first subparagraph of Article 6(1) of Decision No 3/80 must be interpreted, in circumstances such as those at issue in the main proceedings, as precluding legislation of a Member State, such as Article 4 of the Law on supplementing benefits (Toeslagenwet) of 6 November 1986, which withdraws the award of a benefit such as the supplement to invalidity benefit, made under the national legislation, from former Turkish migrant workers such as the respondents in the main proceedings when they have returned to Turkey after losing their right to remain in the host Member State because they became incapacitated in that Member State. |
| --- | --- |

2.

The first subparagraph of Article 6(1) of Decision No 3/80 must be interpreted, in circumstances such as those at issue in the main proceedings, as precluding legislation of a Member State, such as Article 4 of the Law on supplementing benefits (Toeslagenwet) of 6 November 1986, which withdraws the award of a benefit such as the supplement to invalidity benefit, made under the national legislation, from former Turkish migrant workers such as the respondents in the main proceedings when they have returned to Turkey after losing their right to remain in the host Member State because they became incapacitated in that Member State.

| 3. | Article 9 of the Agreement establishing an Association between the European Economic Community and Turkey, signed at Ankara on 12 September 1963 by the Republic of Turkey and by the Member States of the EEC and the Community and concluded, approved and confirmed on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963, does not apply to a situation such as that at issue in the main proceedings. |
| --- | --- |

3.

Article 9 of the Agreement establishing an Association between the European Economic Community and Turkey, signed at Ankara on 12 September 1963 by the Republic of Turkey and by the Member States of the EEC and the Community and concluded, approved and confirmed on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963, does not apply to a situation such as that at issue in the main proceedings.

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(1)  OJ C 22, 26.1.2008.

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/3 |
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16.7.2011

EN

Official Journal of the European Union

C 211/3

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Judgment of the Court (Third Chamber) of 26 May 2011 — European Commission v Kingdom of Spain

(Case C-306/08) (1)

(Failure of a Member State to fulfil obligations - Directives 93/37/EEC and 2004/18/EC - Procedures for the award of public works contracts - Urban development legislation of the Autonomous Community of Valencia)

2011/C 211/05

Language of the case: Spanish

Parties

Applicant: European Commission (represented by: A. Alcover San Pedro, D. Kukovec and M. Konstantinidis, Agents)

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

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 1, 6(6), 11, 12 and Title II of Chapter IV (Articles 24 to 29) of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ 1993 L 199, p. 54) and Articles 2, 6, 24, 30, 31(4)(a), 48(2) and 53 of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114) — Urban development legislation of the Valencian Community — Non-conformity with Community law

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

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

2.

Orders the European Commission to pay the costs.

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(1)  OJ C 223, 30.8.2008.

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/4 |
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16.7.2011

EN

Official Journal of the European Union

C 211/4

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Judgment of the Court (First Chamber) of 26 May 2011 (references for a preliminary ruling from the Raad van State (Netherlands)) — Stichting Natuur en Milieu and Others (C-165/09) v College van Gedeputeerde Staten van Groningen, Stichting Natuur en Milieu and Others (C-166/09) v College van Gedeputeerde Staten van Zuid-Holland, Stichting Natuur en Milieu and Others (C-167/09) v College van Gedeputeerde Staten van Zuid-Holland

(Joined Cases C-165/09 to C-167/09) (1)

(Environment - Directive 2008/1/EC - Permit for the construction and operation of a power station - Directive 2001/81/EC - National emission ceilings for certain atmospheric pollutants - Power of the Member States during the transitional period - Direct effect)

2011/C 211/06

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Applicants: Stichting Natuur en Milieu, Stichting Greenpeace Nederland, Mr and Mrs B. Meijer, E. Zwaag, F. Pals (C-165/09), Stichting Natuur en Milieu, Stichting Zuid-Hollandse Milieufederatie, Stichting Greenpeace Nederland, Vereniging van Verontruste Burgers van Voorne (C-166/09), Stichting Natuur en Milieu, Stichting Zuid-Hollandse Milieufederatie, Stichting Greenpeace Nederland, Vereniging van Verontruste Burgers van Voorne (C-167/09)

Defendants: College van Gedeputeerde Staten van Groningen (C-165/09), College van Gedeputeerde Staten van Zuid-Holland (C-166/09 and C-167/09)

Third parties: RWE Eemshaven Holding BV, formerly RWE Power AG (C-165/09), Electrabel Nederland NV (C-166/09), College van Burgemeester en Wethouders Rotterdam (C-166/09 and C-167/09), E.On Benelux NV (C-167/09)

Re:

References for a preliminary ruling — Raad van State — Interpretation of Article 9 of Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control (OJ 1996 L 257, p. 26), now Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control (Codified version) (OJ 2008 L 24, p. 8), and of Article 4(1) of Directive 2001/81/EC of the European Parliament and of the Council of 23 October 2001 on national emission ceilings for certain atmospheric pollutants (OJ 2001 L 309, p. 22) — Application for an environmental permit — Decision of the competent authority — Obligations of Member States during the period between the deadline for transposition of Directive 2001/81 and the date laid down in Article 4(1) of Directive 2001/81, which is subsequent to the deadline for transposition of that directive — Power station

Operative part of the judgment

| 1. | Article 9(1), (3) and (4) of Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control, in its original version and as codified by Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control, must be interpreted as meaning that, when granting an environmental permit for the construction and operation of an industrial installation, such as those at issue in the main actions, the Member States are not obliged to include among the conditions for grant of that permit the national emission ceilings for SO2 and NOx laid down by Directive 2001/81/EC of the European Parliament and of the Council of 23 October 2001 on national emission ceilings for certain atmospheric pollutants, whilst they must comply with the obligation arising from Directive 2001/81 to adopt or envisage, within the framework of national programmes, appropriate and coherent policies and measures capable of reducing, as a whole, emissions of inter alia those pollutants to amounts not exceeding the ceilings laid down in Annex I to that directive by the end of 2010 at the latest. |
| --- | --- |

1.

Article 9(1), (3) and (4) of Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control, in its original version and as codified by Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control, must be interpreted as meaning that, when granting an environmental permit for the construction and operation of an industrial installation, such as those at issue in the main actions, the Member States are not obliged to include among the conditions for grant of that permit the national emission ceilings for SO2 and NOx laid down by Directive 2001/81/EC of the European Parliament and of the Council of 23 October 2001 on national emission ceilings for certain atmospheric pollutants, whilst they must comply with the obligation arising from Directive 2001/81 to adopt or envisage, within the framework of national programmes, appropriate and coherent policies and measures capable of reducing, as a whole, emissions of inter alia those pollutants to amounts not exceeding the ceilings laid down in Annex I to that directive by the end of 2010 at the latest.

| 2. | During the transitional period from 27 November 2002 to 31 December 2010, provided for in Article 4 of Directive 2001/81:






  — | Article 4(3) TEU, the third paragraph of Article 288 TFEU and Directive 2001/81 require the Member States to refrain from adopting any measures liable seriously to compromise the attainment of the result prescribed by that directive; |
| --- | --- | --- |

2.

During the transitional period from 27 November 2002 to 31 December 2010, provided for in Article 4 of Directive 2001/81:

—

Article 4(3) TEU, the third paragraph of Article 288 TFEU and Directive 2001/81 require the Member States to refrain from adopting any measures liable seriously to compromise the attainment of the result prescribed by that directive;

| — | adoption by the Member States of a specific measure relating to a single source of SO2 and NOx does not appear liable, in itself, seriously to compromise the attainment of the result prescribed by Directive 2001/81. It is for the national court to review whether that is true of each of the decisions granting an environmental permit for the construction and operation of an industrial installation such as the permits at issue in the main actions; |
| --- | --- |

—

adoption by the Member States of a specific measure relating to a single source of SO2 and NOx does not appear liable, in itself, seriously to compromise the attainment of the result prescribed by Directive 2001/81. It is for the national court to review whether that is true of each of the decisions granting an environmental permit for the construction and operation of an industrial installation such as the permits at issue in the main actions;

| — | the third paragraph of Article 288 TFEU and Articles 6, 7(1) and (2) and 8(1) and (2) of Directive 2001/81 require the Member States, first, to draw up, to update and to revise as necessary programmes for the progressive reduction of national SO2 and NOx emissions, which they are obliged to make available to the public and appropriate organisations by means of clear, comprehensible and easily accessible information, and to notify to the European Commission within the time-limit prescribed, and second, to prepare and annually update national inventories of those emissions and national emission projections for 2010, which they must report to the European Commission and the European Environment Agency within the time-limit prescribed; |
| --- | --- |

—

the third paragraph of Article 288 TFEU and Articles 6, 7(1) and (2) and 8(1) and (2) of Directive 2001/81 require the Member States, first, to draw up, to update and to revise as necessary programmes for the progressive reduction of national SO2 and NOx emissions, which they are obliged to make available to the public and appropriate organisations by means of clear, comprehensible and easily accessible information, and to notify to the European Commission within the time-limit prescribed, and second, to prepare and annually update national inventories of those emissions and national emission projections for 2010, which they must report to the European Commission and the European Environment Agency within the time-limit prescribed;

| — | the third paragraph of Article 288 TFEU and Directive 2001/81 itself do not require the Member States to refuse or to attach restrictions to the grant of an environmental permit for the construction and operation of an industrial installation such as the permits at issue in the main actions, or to adopt specific compensatory measures for each permit granted of that kind, even where the national emission ceilings for SO2 and NOx are exceeded or risk being exceeded. |
| --- | --- |

—

the third paragraph of Article 288 TFEU and Directive 2001/81 itself do not require the Member States to refuse or to attach restrictions to the grant of an environmental permit for the construction and operation of an industrial installation such as the permits at issue in the main actions, or to adopt specific compensatory measures for each permit granted of that kind, even where the national emission ceilings for SO2 and NOx are exceeded or risk being exceeded.

| 3. | Article 4 of Directive 2001/81 is not unconditional and sufficiently precise for individuals to be able to rely upon it before the national courts before 31 December 2010.
  Article 6 of Directive 2001/81 grants rights to individuals directly concerned which can be relied upon before the national courts in order to claim that, during the transitional period from 27 November 2002 to 31 December 2010, the Member States should adopt or envisage, within the framework of national programmes, appropriate and coherent policies and measures capable of reducing, as a whole, emissions of the pollutants covered so as to comply with the national ceilings laid down in Annex I to that directive by the end of 2010 at the latest, and should make the programmes drawn up for those purposes available to the public and appropriate organisations by means of clear, comprehensible and easily accessible information. |
| --- | --- |

3.

Article 4 of Directive 2001/81 is not unconditional and sufficiently precise for individuals to be able to rely upon it before the national courts before 31 December 2010.

Article 6 of Directive 2001/81 grants rights to individuals directly concerned which can be relied upon before the national courts in order to claim that, during the transitional period from 27 November 2002 to 31 December 2010, the Member States should adopt or envisage, within the framework of national programmes, appropriate and coherent policies and measures capable of reducing, as a whole, emissions of the pollutants covered so as to comply with the national ceilings laid down in Annex I to that directive by the end of 2010 at the latest, and should make the programmes drawn up for those purposes available to the public and appropriate organisations by means of clear, comprehensible and easily accessible information.

---

(1)  OJ C 193, 15.8.2009.

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/5 |
| --- | --- | --- | --- |

16.7.2011

EN

Official Journal of the European Union

C 211/5

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Judgment of the Court (First Chamber) of 26 May 2011 — European Commission v Kingdom of Belgium

(Case C-538/09) (1)

(Failure of a Member State to fulfil obligations - Environment - Directive 92/43/EEC - Article 6(3) - Special areas of conservation - Appropriate assessment of the implications of a plan or project which is likely to have a significant effect on a protected site - Exemption from assessment of plans or projects which are subject to a declaratory scheme - Incorrect transposition)

2011/C 211/07

Language of the case: French

Parties

Applicant: European Commission (represented by: D. Recchia and A. Marghelis, Agents)

Defendant: Kingdom of Belgium (represented by: T. Materne, Agent)

Re:

Failure of a Member State to fulfil obligations — Incorrect transposition of the provisions of Article 6(3) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7) — Obligatory environmental impact assessment where a project or a plan has an effect on a ‘Natura 2000’ site

Operative part of the judgment

The Court:

| 1. | Declares that, by not requiring an appropriate environmental impact assessment to be undertaken for certain activities, subject to a declaratory scheme, where those activities are likely to have an effect on a Natura 2000 site, the Kingdom of Belgium has failed to fulfil its obligations under Article 6(3) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora; |
| --- | --- |

1.

Declares that, by not requiring an appropriate environmental impact assessment to be undertaken for certain activities, subject to a declaratory scheme, where those activities are likely to have an effect on a Natura 2000 site, the Kingdom of Belgium has failed to fulfil its obligations under Article 6(3) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora;

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

2.

Orders the Kingdom of Belgium to pay the costs.

---

(1)  OJ C 51, 27.2.2010.

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/6 |
| --- | --- | --- | --- |

16.7.2011

EN

Official Journal of the European Union

C 211/6

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Judgment of the Court (Fourth Chamber) of 26 May 2011 (reference for a preliminary ruling from the Landesgericht Innsbruck — Austria) — Gebhard Stark v DAS Österreichische Allgemeine Rechtsschutzversicherung AG

(Case C-293/10) (1)

(Legal expenses insurance - Directive 87/344/EEC - Article 4(1) - Freedom of the insured person to choose his lawyer - Limitation of the reimbursement allowed in respect of the costs relating to representation of the insured person in judicial proceedings - Reimbursement limited to the amount corresponding to that claimed by a lawyer established in the judicial district of the court having jurisdiction at first instance)

2011/C 211/08

Language of the case: German

Referring court

Landesgericht Innsbruck

Parties to the main proceedings

Appellant: Gebhard Stark

Respondent: DAS Österreichische Allgemeine Rechtsschutzversicherung AG

Re:

Reference for a preliminary ruling — Landesgericht Innsbruck — Interpretation of Article 4(1) of Council Directive 87/344/EEC of 22 June 1987 on the coordination of laws, regulations and administrative provisions relating to legal expenses insurance (OJ 1987 L 185, p. 77) — Insurance contract providing that, in accordance with national legislation, the person taking out legal expenses insurance is required to choose a lawyer established at the place of the court before which the proceedings are to be conducted

Operative part of the judgment

Article 4(1) of Council Directive 87/344/EEC of 22 June 1987 on the coordination of laws, regulations and administrative provisions relating to legal expenses insurance must be interpreted as not precluding a national provision under which it may be agreed that a person covered by legal expenses insurance may select, in order to have his interests represented in administrative or judicial proceedings, only persons professionally authorised to represent parties who have their chambers at the place of the court or administrative authority having jurisdiction at first instance, on condition that, in order not to render meaningless the insured person’s freedom to choose the person instructed to represent him, that restriction relates only to the extent of the cover by the legal insurance provider in respect of costs linked to the involvement of a representative and that the reimbursement actually provided by that insurer is sufficient, this being a matter for the referring court to determine.

---

(1)  OJ C 274, 9.10.2010.

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/6 |
| --- | --- | --- | --- |

16.7.2011

EN

Official Journal of the European Union

C 211/6

---

Order of the Court of 24 March 2011 (reference for a preliminary ruling from Mora Kommun — Sweden) — in the course of consideration of a complaint made by Dan Bengtsson

(Case C-344/09) (1)

(Reference for a preliminary ruling - Need for a dispute and proceedings intended to lead to a decision of a judicial nature - Lack of jurisdiction of the Court)

2011/C 211/09

Language of the case: Swedish

Referring court

Mora Kommun

Party to the main proceedings

Dan Bengtsson

Re:

Reference for a preliminary ruling — Interpretation of Council Recommendation of 12 July 1999 on the limitation of exposure of the general public to electromagnetic fields (0 Hz to 300 GHz) (OJ 1999 L 199, p. 59) and the precautionary principle — Effects on health of electromagnetic radiation from base stations for wireless telecommunication — Reference levels laid down by the recommendation

Operative part of the order

The Court of Justice of the European Union clearly has no jurisdiction to reply to the question referred by Mora Kommun, Miljö- och hälsoskyddsnämnden (Sweden) by decision of 2 June 2009.

---

(1)  OJ C 317, 20.11.2010.

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/6 |
| --- | --- | --- | --- |

16.7.2011

EN

Official Journal of the European Union

C 211/6

---

Order of the Court (Fifth Chamber) of 7 April 2011 (reference for a preliminary ruling from the Arbeitsgericht Wuppertal — Germany) — Dieter May v AOK Rheinland/Hamburg — Die Gesundheitskasse

(Case C-519/09) (1)

(Article 104(3), first subparagraph, of the Rules of Procedure - Social policy - Organisation of working time - Directive 2003/88/EC - Scope ratione personae - Annual leave coinciding with sick leave - Compensation payment in respect of sickness - Concept of worker - Employees subject to the regulations concerning annual leave of public servants (‘Dienstordnungsangestellte’))

2011/C 211/10

Language of the case: German

Referring court

Arbeitsgericht Wuppertal (Germany)

Parties to the main proceedings

Applicant: Dieter May

Defendant: AOK Rheinland/Hamburg — Die Gesundheitskasse

Re:

Reference for a preliminary ruling — Arbeitsgericht Wuppertal — Interpretation of Articles 1(3) and 7(1) and (2) of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (OJ 2003 L 299, p. 9) — Entitlement to a compensatory payment for annual leave that has not been taken in full because of illness — Scope ratione personae of Directive 2003/88/EC — Employees of social security institutions performing tasks comparable to those of the public service and who are subject to the working-time rules of public servants (‘Dienstordnungsangestellte’).

Operative part of the order

Article 7(1) and (2) of Directive 2003/88 of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time, must be interpreted as meaning that the concept of ‘worker’ includes an employee of a public-law body in the social security sector subject to, in particular as regards their entitlement to paid annual leave, rules applicable to public servants.

---

(1)  OJ C 80, 27.3.2010.

---

| 16.7.2011 | EN | Official Journal of the European Union | C 211/7 |
| --- | --- | --- | --- |

16.7.2011

EN

Official Journal of the European Union

C 211/7

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Order of the Court (Fifth Chamber) of 8 April 2011 (references for a preliminary ruling from the Curtea de Apel Târgu-Mureș (Romania)) — Daniel Ionel Obreja v Ministerul Economiei și Finanțelor, Direcția Generală a Finanțelor Publice a județului Mureș (C-136/10), Ministerul Economiei și Finanțelor, Direcția Generală a Finanțelor Publice a județului Mureș, Administrația Finanțelor Publice Târgu-Mureș v SC Darmi SRL (C-178/10)

(Joined Cases C-136/10 and C-178/10) (1)

(First subparagraph of Article 104(3) of the Rules of Procedure - Internal taxation - Article 110 TFEU - Pollution tax levied upon first registration of motor vehicles)

2011/C 211/11

Language of the case: Romanian

Referring court

Curtea de Apel Târgu-Mureș

Parties to the main proceedings

Applicants: Daniel Ionel Obreja (C-136/10), Ministerul Economiei și Finanțelor, Direcția Generală a Finanțelor Publice a județului Mureș, Administrația Finanțelor Publice Târgu-Mureș (C-178/10)

Defendants: Ministerul Economiei și Finanțelor, Direcția Generală a Finanțelor Publice a județului Mureș (C-136/10), SC Darmi SRL (C-178/10)

Re:

Reference for a preliminary ruling — Curtea de Apel Târgu-Mureș — Registration of second-hand vehicles previously registered in other Member States — Environmental tax levied on motor vehicles upon first registration in a Member State — Whether national legislation is compatible with Articles 23, 25 and 90 EC — Possible derogation on the basis of Article 174 EC

Operative part of the order

Article 110 TFEU must be interpreted as precluding a Member State from introducing a pollution tax affecting motor vehicles on their first registration in that Member State, if that fiscal measure is so designed as to discourage the putting into service, in that Member State, of second-hand vehicles bought in other Member States, without, however, discouraging the purchase of second-hand vehicles of the same age and condition on the national market.

---

(1)  OJ C 161, 19.6.2010.

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/7 |
| --- | --- | --- | --- |

16.7.2011

EN

Official Journal of the European Union

C 211/7

---

Order of the Court (Sixth Chamber) of 7 April 2011 (reference for a preliminary ruling from the Arbeidshof te Antwerpen (Belgium)) — Dai Cugini NV v Rijkdienst voor Sociale Zekerheid

(Case C-151/10) (1)

(First subparagraph of Article 104(3) of the Rules of Procedure - Directive 97/811/EC - Equal treatment of part-time and full-time workers - Discrimination - Administrative obstacle likely to limit the opportunities for part-time work - Mandatory publication and retention of contracts and work-schedules)

2011/C 211/12

Language of the case: Dutch

Referring court

Arbeidshof te Antwerpen

Parties to the main proceedings

Applicant: Dai Cugini NV

Defendant: Rijkdienst voor Sociale Zekerheid

Re:

Reference for a preliminary ruling — Arbeidshof te Antwerpen (Afdeling Hasselt) — Interpretation of Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC (OJ 1998 L 14, p. 9) — National legislation providing for a system for the publication and monitoring of work schedules of part-time workers, consisting of the mandatory compilation and retention, subject to criminal or administrative penalties, of documents recording the exact duration of work performed by each worker

Operative part of the order

Clause 4 of the Framework Agreement annexed to Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC must be interpreted as not precluding national legislation which makes employers responsible for the obligations of retention and publication of the contracts and work-schedules of part-time workers if it is established that such legislation does not lead to them being treated less favourably than full-time workers in a similar situation or, if such there is such a difference in treatment, it is established that it is justified on objective grounds and does not go beyond what is necessary to attain the objectives thus pursued.

It is for the referring court to perform the necessary factual and legal investigation, particularly with regard to the applicable national law, in order to determine whether that is so in the case before it.

In the event that the referring court were to conclude that the national legislation at issue is incompatible with Clause 4 of the Framework Agreement on part-time work annexed to Directive 97/81, Clause 5(1) thereof would have to be interpreted as precluding such legislation

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(1)  OJ C 161, 19.6.2010.

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/8 |
| --- | --- | --- | --- |

16.7.2011

EN

Official Journal of the European Union

C 211/8

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Order of the Court (Fifth Chamber) of 8 April 2011 (reference for a preliminary ruling from the Curtea de Apel Craiova (Romania)) — Administrația Finanțelor Publice a Municipiului Târgu-Jiu, Administrația Fondului pentru Mediu v Victor Vinel Ijac

(Case C-336/10) (1)

(First subparagraph of Article 104(3) of the Rules of Procedure - Internal taxation - Article 110 TFEU - Pollution tax levied upon first registration of motor vehicles)

2011/C 211/13

Language of the case: Romanian

Referring court

Curtea de Apel Craiova

Parties to the main proceedings

Applicant: Administrația Finanțelor Publice a Municipiului Târgu-Jiu, Administrația Fondului pentru Mediu

Defendant: Victor Vinel Ijac

Re:

Reference for a preliminary ruling — Curtea de Apel Craiova — Registration of second-hand vehicles previously registered in other Member States — Environmental tax levied on motor vehicles upon first registration in a Member State — Whether national legislation is compatible with Article 110 TFEU

Operative part of the order

Article 110 TFEU must be interpreted as precluding a Member State from introducing a pollution tax affecting motor vehicles on their first registration in that Member State, if that fiscal measure is so designed as to discourage the putting into service, in that Member State, of second-hand vehicles bought in other Member States, without, however, discouraging the purchase of second-hand vehicles of the same age and condition on the national market.

---

(1)  OJ C 274, 9.10.2010.

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/8 |
| --- | --- | --- | --- |

16.7.2011

EN

Official Journal of the European Union

C 211/8

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Order of the Court (Fifth Chamber) of 28 March 2011 — Herhof-Verwaltungsgesellschaft mbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) — Stabilator sp. z o.o.

(Case C-418/10 P) (1)

(Appeal - Community trade mark - Regulation (EC) No 40/94 - Article 8(1)(b) - Opposition proceedings - Earlier mark STABILAT - Figurative sign ‘stabilator’ - Relative ground for refusal - Likelihood of confusion - Absence of similarity of the goods and services)

2011/C 211/14

Language of the case: German

Parties

Appellant: Herhof-Verwaltungsgesellschaft mbH (represented by: A. Zinnecker and S. Müller, Rechtsanwälte)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: G. Schneider, Agent), Stabilator sp. z o.o. (represented by M. Kacprzak, radca prawny)

Re:

Appeal against the judgment of the General Court (Fourth Chamber) of 7 July 2010 in Case T-60/09 Herhof v OHIM — Stabilator, by which the General Court dismissed the action brought by the proprietor of the Community word mark STABILAT in respect of goods and services in Classes 1, 7, 11, 20, 37, 40 and 42, against the decision of the Fourth Board of Appeal of OHIM of 16 December 2008, rejecting its opposition against registration of the figurative Community trade mark stabilator in respect of goods and services in Classes 19, 37 and 42 — Incorrect assessment of the similarity between the services covered by the marks at issue — Infringement of the right to be heard before a court

Operative part of the order

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

1.

The appeal is dismissed.

| 2. | Herhof-Verwaltungsgesellschaft mbH shall pay the costs. |
| --- | --- |

2.

Herhof-Verwaltungsgesellschaft mbH shall pay the costs.

---

(1)  OJ C 288, 23.10.2010.

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/9 |
| --- | --- | --- | --- |

16.7.2011

EN

Official Journal of the European Union

C 211/9

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Order of the Court of 14 April 2011 — Dieter C. Umbach v European Commission

(Case C-609/10 P) (1)

(Appeal - Access to the documents of the Institutions - ‘TACIS programme’ - Contract concluded by the Commission - Termination of the contract - Dispute between the contracting parties - Application for access to documents - Manifest inadmissibility)

2011/C 211/15

Language of the case: German

Parties

Appellant: Dieter C. Umbach (represented by: M. Stephani, Rechtsanwalt)

Other party to the proceedings: European Commission (represented by: P. Costa de Oliveira and T. Scharf, Agents)

Re:

Appeal against the judgment of the General Court (Seventh Chamber) of 21 October 2010 in Case T-474/08 Umbach v Commission, by which the General Court dismissed an action for the annulment of the Commission Decision of 2 September 2008 refusing the appellant access to certain information included in documents relating to a contract concluded between the appellant and the Commission and concerning assistance with the drafting of an administrative code on behalf of the Russian Federation in the context of the TACIS programme — Application for access concerning the dispute between the appellant and the Commission following the termination of that contract — Infringement of Article 41(2)(b) of the Charter of Fundamental Rights of the European Union

Operative part of the order

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

1.

The appeal is dismissed.

| 2. | Mr Umbach shall pay the costs. |
| --- | --- |

2.

Mr Umbach shall pay the costs.

---

(1)  OJ C 89, 19.3.2011.

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/9 |
| --- | --- | --- | --- |

16.7.2011

EN

Official Journal of the European Union

C 211/9

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Order of the Court (Fifth Chamber) of 8 April 2011 (references for a preliminary ruling from the Tribunalul Suceava (Romania)) — Aurora Elena Sfichi v Direcția Generală a Finanțelor Publice Suceava, Administrația Finanțelor Publice Suceava, Administrația Fondului pentru Mediu (C-29/11), Adrian Ilaș v Direcția Generală a Finanțelor Publice Suceava, Administrația Finanțelor Publice Suceava, Administrația Fondului pentru Mediu (C-30/11)

(Joined Cases C-29/11 and C-30/11) (1)

(First subparagraph of Article 104(3) of the Rules of Procedure - Internal taxation - Article 110 TFEU - Pollution tax levied upon first registration of motor vehicles)

2011/C 211/16

Language of the case: Romanian

Referring court

Tribunalul Suceava

Parties to the main proceedings

Applicants: Aurora Elena Sfichi (C-29/11), Adrian Ilaș (C-30/11)

Defendants: Direcția Generală a Finanțelor Publice Suceava, Administrația Finanțelor Publice Suceava, Administrația Fondului pentru Mediu (C-29/11), Direcția Generală a Finanțelor Publice Suceava, Administrația Finanțelor Publice Suceava, Administrația Fondului pentru Mediu (C-30/11)

Re:

Reference for a preliminary ruling — Tribunalul Suceava — Registration of second-hand motor vehicles previously registered in other Member States — National legislation making the first registration of such motor vehicles conditional upon payment of an environmental tax, whereas second-hand motor vehicles already present on the national market are exempt from payment of that tax on the occasion of re-registration — Whether the national legislation is compatible with the first and second paragraphs of Article 110 TFEU — Obstacle to the free movement of goods

Operative part of the order

Article 110 TFEU must be interpreted as precluding a Member State from introducing a pollution tax affecting motor vehicles on their first registration in that Member State, if that fiscal measure is so designed as to discourage the putting into service, in that Member State, of second-hand vehicles bought in other Member States, without, however, discouraging the purchase of second-hand vehicles of the same age and condition on the national market.

---

(1)  OJ C 113, 9.4.2011.

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/10 |
| --- | --- | --- | --- |

16.7.2011

EN

Official Journal of the European Union

C 211/10

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Reference for a preliminary ruling from the Bundesgerichtshof (Germany), lodged on 28 February 2011 — RWE Vertrieb AG v Verbraucherzentrale Nordrhein-Westfalen e.V.

(Case C-92/11)

2011/C 211/17

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Appellant on a point of law: RWE Vertrieb AG

Respondent on a point of law: Verbraucherzentrale Nordrhein-Westfalen e.V.

Questions referred

| 1. | Is Article 1(2) of Council Directive 93/13/EEC (1) of 5 April 1993 on unfair terms in consumer contracts to be interpreted as meaning that contractual terms concerning price variations in gas supply contracts with consumers who are to be supplied outside the general obligation to supply gas and on the basis of the general freedom of contract (special customers) are not subject to the provisions of the directive if, in those contractual terms, the statutory provisions which apply to standard-rate customers within the framework of the general obligation to provide a connection and supply gas are incorporated unchanged in the contractual relationships with special customers? |
| --- | --- |

1.

Is Article 1(2) of Council Directive 93/13/EEC (1) of 5 April 1993 on unfair terms in consumer contracts to be interpreted as meaning that contractual terms concerning price variations in gas supply contracts with consumers who are to be supplied outside the general obligation to supply gas and on the basis of the general freedom of contract (special customers) are not subject to the provisions of the directive if, in those contractual terms, the statutory provisions which apply to standard-rate customers within the framework of the general obligation to provide a connection and supply gas are incorporated unchanged in the contractual relationships with special customers?

| 2. | Are Articles 3 and 5 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts — in so far as they are applicable — in conjunction with point 1(j) and the second sentence of point 2(b) of the annex referred to in Article 3(3) of that directive, and Article 3(3) of, in conjunction with points (b) and/or (c) of Annex A to, Directive 2003/55/EC (2) of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC to be interpreted as meaning that contractual terms concerning price variations in natural-gas supply contracts with special customers meet the requirements for plain and intelligible wording and/or possess the requisite degree of transparency if, although the grounds, preconditions and scope of a change in price are not set out, it is nevertheless ensured that the gas supply company informs its customers of every price increase in good time in advance and those customers have the right to terminate the contract by way of notice if they do not wish to accept the amended conditions of which they have been informed? |
| --- | --- |

2.

Are Articles 3 and 5 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts — in so far as they are applicable — in conjunction with point 1(j) and the second sentence of point 2(b) of the annex referred to in Article 3(3) of that directive, and Article 3(3) of, in conjunction with points (b) and/or (c) of Annex A to, Directive 2003/55/EC (2) of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC to be interpreted as meaning that contractual terms concerning price variations in natural-gas supply contracts with special customers meet the requirements for plain and intelligible wording and/or possess the requisite degree of transparency if, although the grounds, preconditions and scope of a change in price are not set out, it is nevertheless ensured that the gas supply company informs its customers of every price increase in good time in advance and those customers have the right to terminate the contract by way of notice if they do not wish to accept the amended conditions of which they have been informed?

---

(1)  OJ L 95, p. 29.

(2)  OJ L 176, p. 57.

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/10 |
| --- | --- | --- | --- |

16.7.2011

EN

Official Journal of the European Union

C 211/10

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Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 6 April 2011 — Dr Manfred Beker and Christa Beker v Finanzamt Heilbronn

(Case C-168/11)

2011/C 211/18

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicants: Dr Manfred Beker and Christa Beker

Defendant: Finanzamt Heilbronn

Question referred

Does Article 56 EC preclude a rule in a Member State by which — in accordance with treaties concluded in order to avoid double taxation — in the case of taxpayers with unlimited tax liability whose foreign revenue is liable to tax corresponding to national (German) income tax in the State in which the revenue originates, the foreign tax is offset against national (German) income tax levied on revenue from that State in such a way that the national (German) income tax resulting from assessment of the revenue to be taxed — including foreign revenue — is apportioned in the proportion that that foreign revenue bears to total revenue — and hence without taking into account special expenditure or extraordinary costs as costs relating to personal life style and personal and family circumstances?

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/10 |
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16.7.2011

EN

Official Journal of the European Union

C 211/10

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Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 18 April 2011 — Econord SpA v Comune di Cagno and Comune di Varese

(Case C-182/11)

2011/C 211/19

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Applicant: Econord SpA

Defendants: Comune di Cagno and Comune di Varese

Interested party: Aspem SpA

Question referred

Must the principle that the position of an individual public authority holding shares in a società strumentale [(a company set up to provide certain municipal services)] is immaterial also apply where one of the partner municipalities holds a single share in the società strumentale and the shareholders’ agreements entered into by the partner public authorities are not such as to give the shareholding municipality any effective power of control over the company, with the result that the company shareholding may be regarded merely as formal cover for a contract for the provision of services?

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/11 |
| --- | --- | --- | --- |

16.7.2011

EN

Official Journal of the European Union

C 211/11

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Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 18 April 2011 — Econord SpA v Comune di Solbiate and Comune di Varese

(Case C-183/11)

2011/C 211/20

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Applicant: Econord SpA

Defendants: Comune di Solbiate and Comune di Varese

Interested party: Aspem SpA

Question referred

Must the principle that the position of an individual public authority holding shares in a società strumentale [(a company set up to provide certain municipal services)] is immaterial also apply where one of the partner municipalities holds a single share in the società strumentale and the shareholders’ agreements entered into by the partner public authorities are not such as to give the shareholding municipality any effective power of control over the company, with the result that the company shareholding may be regarded merely as formal cover for a contract for the provision of services?

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/11 |
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16.7.2011

EN

Official Journal of the European Union

C 211/11

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Reference for a preliminary ruling from the Tribunale di Treviso (Italy) lodged on 20 April 2011 — Criminal proceedings against Elena Vermisheva

(Case C-187/11)

2011/C 211/21

Language of the case: Italian

Referring court

Tribunale di Treviso

Defendant in the criminal proceedings

Elena Vermisheva.

Question referred

In the light of the principles of sincere cooperation and of the effectiveness of directives, do Articles 15 and 16 of Directive 2008/115/EC (1) preclude the possibility that a third country national illegally staying in a Member State may be sentenced to a term of imprisonment of up to four years where he fails to comply with the first order issued by the Questore and a term of imprisonment of up to five years for failure to comply with subsequent orders (with the corresponding obligation for the police authorities to arrest those engaged in the commission of this offence) simply on account of his lack of cooperation in the deportation procedure, in particular his simple failure to comply with a removal order issued by the administrative authorities?

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(1)  OJ 2008 L 348, p. 98.

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/11 |
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16.7.2011

EN

Official Journal of the European Union

C 211/11

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Reference for a preliminary ruling from the Landesgericht für Zivilrechtssachen (Vienna) lodged on 20 April 2011 — Peter Hehenberger v Republic of Austria

(Case C-188/11)

2011/C 211/22

Language of the case: German

Referring court

Landesgericht für Zivilrechtssachen (Vienna)

Parties to the main proceedings

Applicant: Peter Hehenberger

Defendant: Republic of Austria

Question referred

Does Council Regulation (EC) No 1257/1999 (1) in conjunction with Commission Regulation (EC) No 817/2004 (2) preclude the laying down of rules by the provider of support requiring repayment by the recipient, in the event that an on the-spot check (area measurement) is prevented, of all support already given in the context of an agri-environmental measure during the commitment period, even if it has been awarded and disbursed for a number of years?

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(1)  Council Regulation (EC) No 1257/1999 of 17 May 1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) and amending and repealing certain Regulations (OJ 1999 L 160, p. 80).

(2)  Corrigendum to Commission Regulation (EC) No 817/2004 of 29 April 2004 laying down detailed rules for the application of Council Regulation (EC) No 1257/1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) (OJ 2004 L 153, p. 30) (OJ 2004 L 231, p. 24).

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/12 |
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16.7.2011

EN

Official Journal of the European Union

C 211/12

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Appeal brought on 20 April 2011 by Yorma’s AG against the judgment of the General Court (First Chamber) delivered on 15 February 2011 in Case T-213/09, Yorma’s AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs), other party: Norma Lebensmittelfilialbetrieb GmbH & Co. KG

(Case C-191/11 P)

2011/C 211/23

Language of the case: German

Parties

Appellant: Yorma’s AG (represented by: A. Weiß, Rechtsanwalt)

Other parties to the proceedings:

| — | Office for Harmonisation in the Internal Market (Trade Marks and Designs) |
| --- | --- |

—

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

| — | Norma Lebensmittelfilialbetrieb GmbH & Co. KG |
| --- | --- |

—

Norma Lebensmittelfilialbetrieb GmbH & Co. KG

Form of order sought

| — | set aside in its entirety the judgment of the General Court of the European Union of 15 February 2011 in Case T-213/09, pursuant to Article 116(1) of the Rules of Procedure |
| --- | --- |

—

set aside in its entirety the judgment of the General Court of the European Union of 15 February 2011 in Case T-213/09, pursuant to Article 116(1) of the Rules of Procedure

Pleas in law and main arguments

This appeal is directed against the judgment of the General Court dismissing the appellant’s application for annulment of the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 20 February 2010 refusing its application for registration of the figurative sign with a word component ‘yorma’s’. By its judgment the General Court confirmed the Board of Appeal’s decision that there was a likelihood of confusion with the earlier Community word mark ‘NORMA’.

The ground of appeal is infringement of Article 8(1)(b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (‘the Regulation’).

The General Court misinterpreted Article 8(1)(b) of the Regulation by reaching the conclusion that there was a certain similarity between the services in question, the accommodation of guests on the one hand and the letting of houses on the other. The Court failed to take into account that those services neither complement each other functionally nor compete with each other and that the relevant classes of consumers are different. The distribution channels are also different.

The General Court further misinterpreted Article 8(1)(b) of the Regulation in such a way that it came to a causally incorrect conclusion by denying that the clearly absent conceptual similarity of the marks was neutralised.

If, like the General Court, one concludes that there is no conceptual similarity, one cannot also conclude that there is similarity as such within the meaning of Article 8(1)(b) of the Regulation. The conceptual meaning of a word is important because a sign with a definite conceptual meaning is easier to remember than other meaningless signs. There would be a likelihood of confusion only if the later sign made use of the conceptual meaning of the earlier mark. This is clearly not the case here. The likelihood of confusion required by the final words of Article 8(1)(b) of the Regulation was left out of account by the General Court. In particular, the Court took no account of the significance of absence of conceptual similarity, in so far as it took no account of its special significance compared to the absence of phonetic and visual similarity and did not give it the necessary weight, particularly since the apostrophised ‘s’ of the word ‘Yorma’s’ does indeed have an especially emphasised meaning of its own.

Further, the General Court erred in law in the application of Article 8(1)(b) of the Regulation by stating that, against the background of those considerations, the Board of Appeal had correctly taken the view that in the present case the word component dominated. The emphasis in colour of the sign ‘Y’ on three bars suggesting a line of a musical score does not correspond to that supposition. Moreover, no account whatever was taken of the fact that the colour chosen for the ‘Y’ is far stronger and more striking than that of the word ‘Yorma’s’. The General Court’s view also fails to address the fact that the single letter ‘Y’ is in a sort of handwriting, whereas the word component ‘Yorma’s’ is in ordinary print.

The General Court further went wrong and infringed Article 8(1)(b) of the Regulation by assuming that the opposing mark Norma reproduces a visual impression. The opposing mark Norma clearly does not reproduce a visual impression.

Also an error of law and hence an infringement of Article 8(1)(b) of the Regulation is the General Court’s view that the overall impression created by the sign applied for could be substantially influenced.

Also an error of law and hence an infringement of Article 8(1) of the Regulation is the General Court’s reasoning in which it states that the phonetic difference between the two initial letters ‘N’ and ‘Y’ of the words ‘Norma’ and ‘Yorma’s’ carries less weight than the phonetic coincidence of the letters common to both marks ‘O’, ‘R’, ‘M’ and ‘A’. The General Court further says that the ‘Y’ in the background of the mark applied for is not pronounced; that the apostrophised ‘s’ is also not necessarily pronounced; and that even if it is pronounced, it does not suffice to neutralise the phonetic similarity produced by the common word component ‘orma’.

As a result of the different initial letters, each mark has a completely new sound. The ‘Y’ of ‘Yorma’s’ gives it a softer expression, the ‘N’ of ‘Norma’ a harder, monotonous sounding expression. The ‘S’, which, contrary to the General Court’s view, is always pronounced, since it is not presented in a subsidiary manner in its graphic form, gives the mark ‘Yorma’ an essentially more melodious sound with a more distinctive intonation.

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/13 |
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16.7.2011

EN

Official Journal of the European Union

C 211/13

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Action brought on 20 April 2011 — European Commission v Republic of Poland

(Case C-192/11)

2011/C 211/24

Language of the case: Polish

Parties

Applicant: European Commission (represented by: S. Petrova and K. Herrmann, acting as Agents)

Defendant: Republic of Poland

Form of order sought

| — | declare that, by not providing protection for all species of wild birds occurring naturally in the wild within the European territory of the Member States, as required by Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds, (1) and by improperly defining the conditions for the establishment of derogations from the prohibitions laid down in that directive, the Republic of Poland has failed to fulfil its obligations under Articles 1, 5 and 9(1) and (2) of Directive 2009/147; |
| --- | --- |

—

declare that, by not providing protection for all species of wild birds occurring naturally in the wild within the European territory of the Member States, as required by Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds, (1) and by improperly defining the conditions for the establishment of derogations from the prohibitions laid down in that directive, the Republic of Poland has failed to fulfil its obligations under Articles 1, 5 and 9(1) and (2) of Directive 2009/147;

| — | 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 Republic of Poland improperly transposed Article 1 of Directive 2009/147 by reason of the fact that it failed to ensure species protection for bird species occurring in the wild within the European territory of the Member States. Under the national provisions, the only bird species covered by species protection are those which have been recorded within Polish territory and listed in Annexes I and II to the Regulation of the Minister for the Environment of 28 September 2004 concerning protected species of animals occurring in the wild. (2)

The Republic of Poland also failed properly to transpose Article 5 of Directive 2009/147 by reason of the fact that the prohibition on keeping empty eggshells and on holding birds which belong to species the hunting and capture of which are prohibited covers only species of birds which have been recorded in Poland.

Furthermore, the Republic of Poland failed properly to transpose Article 9(1) of the Directive for the following reasons: (1) the introduction, in the Law of 16 April 2004 on nature conservation, (3) of the possibility of establishing derogations on grounds other than those mentioned in that article; (2) the fact that the provisions of the Law on nature conservation exceeded the scope of the conditions defined in the third indent of Article 9(1)(a) relating to the prevention of serious damage to crops, livestock, forests, fisheries and water; (3) the authorisation, in the Regulation of the Minister for the Environment concerning protected species, of a derogation which is not mentioned in Article 9(1) of the Directive and which relates to activities connected with the rational management of farming, forestry or fisheries; (4) the authorisation, in the aforementioned Regulation, of a general derogation, at variance with Article 9(1) of the Directive, in relation to the cormorant (Phalacrocorax carbo) and the grey heron (Ardea cinerea) occurring in the vicinity of fish ponds which have been designated as breeding areas.

Finally, the Republic of Poland failed properly to transpose Article 9(2) of the Directive for the following reasons: (1) failure to introduce, in the provisions of national law, mandatory monitoring with regard to derogations which have been granted; (2) failure to set out in national law the conditions of risk in relation to the derogations granted; (3) failure to define any conditions whatsoever for the application — within the meaning of Article 9(2) of the Directive — of the general derogation relating to the cormorant (Phalacrocorax carbo) and the grey heron (Ardea cinerea) occurring in the vicinity of fish ponds which have been designated as breeding areas and are listed in Annex II to the Regulation of the Minister for the Environment concerning protected species.

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(1)  OJ 2010 L 20, p. 7.

(2)  Dziennik Ustaw 2004, No 220, Position 2237.

(3)  Dziennik Ustaw 2004, No 92, Position 880, as subsequently amended.

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/13 |
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16.7.2011

EN

Official Journal of the European Union

C 211/13

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Reference for a preliminary ruling from the Cour constitutionnelle (Belgium) lodged on 28 April 2011 — Eric Libert, Christian Van Eycken, Max Bleeckx, Syndicat national des propriétaires et copropriétaires (ASBL), Olivier de Clippele v Flemish Government

(Case C-197/11)

2011/C 211/25

Language of the case: French

Referring court

Cour constitutionnelle

Parties to the main proceedings

Applicants: Eric Libert, Christian Van Eycken, Max Bleeckx, Syndicat national des propriétaires et copropriétaires (ASBL), Olivier de Clippele

Defendant: Flemish Government

Intervening parties: Collège de la Commission communautaire française, Gouvernement de la Communauté française, Conseil des ministres

Questions referred

Are Articles 21, 45, 49, 56 and 63 TFEU and Articles 22 and 24 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (1) to be interpreted as precluding the scheme established by Book 5 of the Decree of the Flemish Region of 27 March 2009 on land and real estate policy, entitled ‘Living in your own region’, which, in certain communes referred to as ‘target communes’, makes the transfer of land and buildings thereon conditional upon the purchaser or the lessee demonstrating a sufficient connection with those communes for the purposes of Article 5.2.1., §2 of the Decree?

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(1)  OJ 2004 L 158, p. 77.

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/14 |
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16.7.2011

EN

Official Journal of the European Union

C 211/14

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Reference for a preliminary ruling from the Commissione tributaria regionale di Milano (Italy) lodged on 2 May 2011 — 3D I srl v Agenzia delle Entrate — Ufficio di Cremona

(Case C-207/11)

2011/C 211/26

Language of the case: Italian

Referring court

Commissione tributaria regionale di Milano

Parties to the main proceedings

Applicant: 3D I srl

Defendant: Agenzia delle Entrate — Ufficio di Cremona

Question referred

Where the legislation of a Member State — such as the Italian legislation laid down in Article 2(2) of Legislative Decree No 544 of 30 December 1992 — provides that, in consequence of a transfer or exchange of shares, the transferring company is to be taxed on the capital gains arising from the transfer and the capital gain is to be deemed to correspond to the difference between the initial cost of acquiring the shares or holdings transferred and their current market value, unless the transferring company carries over in its own balance sheet a special reserve fund equivalent to the capital gains arising upon the transfer, is that legislation, in the circumstances of the case covered by the present proceedings, incompatible with Articles 2, 4 and 8(1) and (2) of Council Directive 90/434/EEC (1) of 23 July 1990 on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States?

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(1)  OJ L 225, p. 1.

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/14 |
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16.7.2011

EN

Official Journal of the European Union

C 211/14

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Appeal brought on 29 April 2011 by Internationaler Hilfsfonds e.V. against the order of the General Court (Fourth Chamber) of 24 March 2011 in Case T-36/10 Internationaler Hilfsfonds e.V. v Commission

(Case C-208/11 P)

2011/C 211/27

Language of the case: German

Parties

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

Other parties to the proceedings: European Commission, Kingdom of Denmark

Form of order sought

| — | set aside the contested measures and give final judgment in the case, or, in the alternative, refer the case back to the General Court to make a fresh decision; |
| --- | --- |

—

set aside the contested measures and give final judgment in the case, or, in the alternative, refer the case back to the General Court to make a fresh decision;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

The appellant is a non-governmental organisation under German law which acts in the humanitarian field. The background to the dispute is a contract, ‘LIEN 97-2011’, concluded with the Commission for the co-financing of a medical aid project in Kazakhstan. The contract and the project were unilaterally terminated by the Commission, wrongly in the appellant’s opinion, in October 1999.

The appellant has attempted since the termination of the contract to ascertain the Commission’s reasons for ending the project, which in its opinion and that of the Kazakhstan Government was important and had been successfully started. It suspects misuse of powers, and has therefore attempted in several procedures before the European Ombudsman and the European Union judicature to obtain disclosure by the Commission of all the relevant documents pursuant to 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. The Commission is refusing full access.

The appeal is directed against the order of the General Court dismissing as inadmissible the appellant’s action for annulment of a Commission decision of 9 October 2009 which confirmed its refusal to disclose all the documents, and also ordering the appellant to pay the costs. The appellant complains that the General Court wrongly calculated and interpreted the time-limit for bringing the application.

The appellant complains in particular that the General Court did not take into account that its application was directed against a decision of the Commission provided for in the two-stage procedure under Regulation No 1049/2001. It would not have been able, in terms of procedural law, to bring an action before the answer the Commission said it would give to the appellant’s confirmatory request of 15 October 2009 asking for review of the answer of 9 October 2009 to its initial request. The appellant acted in this respect in accordance with the case-law of the European Union judicature. The period for bringing proceedings started to run from the receipt of the answer to its confirmatory request, deemed to be negative in accordance with Article 8(3) of Regulation No 1049/2001, on 2 December 2009. It ended on 2 February 2010. The application was therefore made in good time, in the opinion of the appellant. The appellant cannot understand how the General Court could, erring in law, set the start of the period for bringing proceedings at 16 October 2009 (the date of making the confirmatory request) and the end at 29 December 2009, without taking into account that it was not until the negative answer to its confirmatory request that the decision of 9 October 2009 (provisional answer to its initial request) became a legal act amenable to challenge.

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/15 |
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16.7.2011

EN

Official Journal of the European Union

C 211/15

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Reference for a preliminary ruling from the Cour de cassation (Belgium) lodged on 9 May 2011 — État belge v Medicom sprl

(Case C-210/11)

2011/C 211/28

Language of the case: French

Referring court

Cour de cassation

Parties to the main proceedings

Applicant: État belge

Defendant: Medicom sprl

Questions referred

| 1. | Are Articles 6(2)(a) and 13B(b) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (1) to be interpreted as precluding the private use by the mangers, administrators or members and their families of a company with legal personality that is liable to tax of all or part of a property forming part of the assets of the company and thus treated as forming, in its entirety, part of the assets of the business, from being treated as an exempt supply of services, on the basis that it constitutes a leasing or letting of immovable property within the meaning of Article 13B(b), where there is no provision for payment of rent in money as consideration for that use, which amounts to a benefit in kind that is taxed as such for the purpose of the managers’ income tax and such use is therefore regarded for tax purposes as the consideration for a proportion of the work performed by the managers, administrators or members? |
| --- | --- |

1.

Are Articles 6(2)(a) and 13B(b) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (1) to be interpreted as precluding the private use by the mangers, administrators or members and their families of a company with legal personality that is liable to tax of all or part of a property forming part of the assets of the company and thus treated as forming, in its entirety, part of the assets of the business, from being treated as an exempt supply of services, on the basis that it constitutes a leasing or letting of immovable property within the meaning of Article 13B(b), where there is no provision for payment of rent in money as consideration for that use, which amounts to a benefit in kind that is taxed as such for the purpose of the managers’ income tax and such use is therefore regarded for tax purposes as the consideration for a proportion of the work performed by the managers, administrators or members?

| 2. | Are those provisions to be interpreted as meaning that that exemption applies in such circumstances where the company fails to prove that there is an essential link between the operation of the business and the making available of all or part of the property to the managers, administrators or members and, if so, is an indirect link sufficient? |
| --- | --- |

2.

Are those provisions to be interpreted as meaning that that exemption applies in such circumstances where the company fails to prove that there is an essential link between the operation of the business and the making available of all or part of the property to the managers, administrators or members and, if so, is an indirect link sufficient?

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(1)  OJ 1977 L 145, P. 1.

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/15 |
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16.7.2011

EN

Official Journal of the European Union

C 211/15

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Reference for a preliminary ruling from the Cour de cassation (Belgium) lodged on 9 May 2011 — État belge v Maison Patrice Alard sprl

(Case C-211/11)

2011/C 211/29

Language of the case: French

Referring court

Cour de cassation

Parties to the main proceedings

Applicant: État belge

Defendant: Maison Patrice Alard sprl

Questions referred

| 1. | Are Articles 6(2)(a) and 13B(b) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (1) to be interpreted as precluding the private use by the mangers, administrators or members and their families of a company with legal personality that is liable to tax of all or part of a property forming part of the assets of the company and thus treated as forming, in its entirety, part of the assets of the business, from being treated as an exempt supply of services, on the basis that it constitutes a leasing or letting of immovable property within the meaning of Article 13B(b), where there is no provision for payment of rent in money as consideration for that use, which amounts to a benefit in kind that is taxed as such for the purpose of the managers’ income tax and such use is therefore regarded for tax purposes as the consideration for a proportion of the work performed by the managers, administrators or members? |
| --- | --- |

1.

Are Articles 6(2)(a) and 13B(b) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (1) to be interpreted as precluding the private use by the mangers, administrators or members and their families of a company with legal personality that is liable to tax of all or part of a property forming part of the assets of the company and thus treated as forming, in its entirety, part of the assets of the business, from being treated as an exempt supply of services, on the basis that it constitutes a leasing or letting of immovable property within the meaning of Article 13B(b), where there is no provision for payment of rent in money as consideration for that use, which amounts to a benefit in kind that is taxed as such for the purpose of the managers’ income tax and such use is therefore regarded for tax purposes as the consideration for a proportion of the work performed by the managers, administrators or members?

| 2. | Are those provisions to be interpreted as meaning that that exemption applies in such circumstances where the company fails to prove that there is an essential link between the operation of the business and the making available of all or part of the property to the managers, administrators or members and, if so, is an indirect link sufficient? |
| --- | --- |

2.

Are those provisions to be interpreted as meaning that that exemption applies in such circumstances where the company fails to prove that there is an essential link between the operation of the business and the making available of all or part of the property to the managers, administrators or members and, if so, is an indirect link sufficient?

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(1)  OJ 1977 L 145, p. 1.

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/16 |
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16.7.2011

EN

Official Journal of the European Union

C 211/16

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Action brought on 13 May 2011 — European Commission v Portuguese Republic

(Case C-223/11)

2011/C 211/30

Language of the case: Portuguese

Parties

Applicant: European Commission (represented by P. Guerra e Andrade and I. Hadjiyannis, Agents)

Defendant: Portuguese Republic

Form of order sought

The Commission claims that the Court should:

| 1. | Declare that:






  — | by failing to publish national and international plans for the management of river basins, the Portuguese State has failed to fulfil its obligations under Article 13(6), in conjunction with Article 13(1) and (2), of Directive 2000/60/EC; (1) |
| --- | --- | --- |

1.

Declare that:

—

by failing to publish national and international plans for the management of river basins, the Portuguese State has failed to fulfil its obligations under Article 13(6), in conjunction with Article 13(1) and (2), of Directive 2000/60/EC; (1)

| — | by failing to publish and make available for comments to the public, including users, draft copies of the river basin management plans, the Portuguese State has failed to fulfil its obligations under Article 14(1)(c) of Directive 2000/60/EC; |
| --- | --- |

—

by failing to publish and make available for comments to the public, including users, draft copies of the river basin management plans, the Portuguese State has failed to fulfil its obligations under Article 14(1)(c) of Directive 2000/60/EC;

| — | by failing to send to the Commission copies of the plans for river basin management, the Portuguese State has failed to fulfil its obligations under Article 15(1) of Directive 2000/60/EC; |
| --- | --- |

—

by failing to send to the Commission copies of the plans for river basin management, the Portuguese State has failed to fulfil its obligations under Article 15(1) of Directive 2000/60/EC;

| 2. | Order the Portuguese Republic to pay the costs. |
| --- | --- |

2.

Order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

Article 13 of Directive 2000/60/EC

Article 13(6), in conjunction with Article 13(1) and (2), of Directive 2000/60/EC, provides that the river basin management plans of every river basin district, whether national or international, falling entirely within the European Union must be published by 22 December 2009 at the latest.

The Commission has not been notified, nor is it aware, that any such plans have been published, so far as Portugal is concerned.

Article 14 of Directive 2000/60/EC

As the Directive makes clear, public participation is considered essential to the pursuit of the Directive’s objectives.

The Commission has not been notified, nor is it aware, that any draft river basin management plans whatsoever have been published or made available for comments to the public, including users.

Article 15 of Directive 2000/60/EC

The Commission has received from the Portuguese State no copies of plans for river basin management or of those for national or international river basin districts.

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(1)  Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (OJ 2000 L 327, p. 1).

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/16 |
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16.7.2011

EN

Official Journal of the European Union

C 211/16

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Reference for a preliminary ruling from Upper Tribunal (Tax and Chancery Chamber) (Royaume-Uni) (United Kingdom) made on 13 May 2011 — Her Majesty's Commissioners of Revenue and Customs v Able UK Ltd

(Case C-225/11)

2011/C 211/31

Language of the case: English

Referring court

Upper Tribunal (Tax and Chancery Chamber) (Royaume-Uni)

Parties to the main proceedings

Applicant: Her Majesty's Commissioners of Revenue and Customs

Defendant: Able UK Ltd

Question referred

| 1. | Is Article 151(1)(c) of the Principal VAT Directive (1) to be interpreted as exempting a supply in the UK of services of dismantling obsolete US Navy ships for the US Department of Transportation Maritime Administration in either or both of the following circumstances:






  (a) | where that supply was not made to a part of the armed forces of a NATO member taking part in the common defence effort or to civilian staff accompanying them; |
| --- | --- | --- |

1.

Is Article 151(1)(c) of the Principal VAT Directive (1) to be interpreted as exempting a supply in the UK of services of dismantling obsolete US Navy ships for the US Department of Transportation Maritime Administration in either or both of the following circumstances:

(a)

where that supply was not made to a part of the armed forces of a NATO member taking part in the common defence effort or to civilian staff accompanying them;

| (b) | where that supply was not made to a part of the armed forces of a NATO member stationed in or visiting the United Kingdom or to civilian staff accompanying such forces? |
| --- | --- |

(b)

where that supply was not made to a part of the armed forces of a NATO member stationed in or visiting the United Kingdom or to civilian staff accompanying such forces?

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(1)  Council Directive 2006/112/EC. OJ L 347, p. 1

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/17 |
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16.7.2011

EN

Official Journal of the European Union

C 211/17

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Reference for a preliminary ruling from the Cour de cassation (France) lodged on 16 May 2011 — Expedia Inc. v Autorité de la concurrence, Ministre de l’économie de l’industrie et de l’emploi, Société nationale des chemins de fer français (SNCF), Voyages-SNCF.Com, Agence Voyages-SNCF.Com, Société VFE Commerce, Société IDTGV, société par actions simplifiée

(Case C-226/11)

2011/C 211/32

Language of the case: French

Referring court

Cour de cassation

Parties to the main proceedings

Applicant: Expedia Inc.

Defendants: Autorité de la concurrence, Ministre de l’économie de l’industrie et de l’emploi, Société nationale des chemins de fer français (SNCF), Voyages-SNCF.Com, Agence Voyages-SNCF.Com, Société VFE Commerce, Société IDTGV, société par actions simplifiée

Question referred

Should Article 101(1) TFEU and Article 3(2) of Regulation No 1/2003 (1) be interpreted as precluding proceedings being brought and penalties being imposed by a national competition authority, on the grounds of both Article 101(1) TFEU and the national law of competition, in respect of a practice under agreements, decisions of associations of undertakings or concerted action that may affect trade between Member States, but which does not reach the thresholds specified by the European Commission in its notice of 22 December 2001 on agreements of minor importance which do not appreciably restrict competition under Article 81(1) of the Treaty establishing the European Community (de minimis) (OJ 2001 C 368, p. 13)?

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

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/17 |
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16.7.2011

EN

Official Journal of the European Union

C 211/17

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Reference for a preliminary ruling from the Landgericht Düsseldorf (Germany) lodged on 16 May 2011 — Melzer v MF Global UK Ltd

(Case C-228/11)

2011/C 211/33

Language of the case: German

Referring court

Landgericht Düsseldorf

Parties to the main proceedings

Applicant: Melzer

Defendant: MF Global UK Ltd

Question referred

In the context of jurisdiction in matters relating to tort or delict under Article 5(3) of Regulation No 44/2001, (1) where there is cross-border participation of several people in a tort or delict, is reciprocal attribution of the place where the event occurred admissible for determining the place where the harmful event occurred?

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

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/17 |
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16.7.2011

EN

Official Journal of the European Union

C 211/17

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Appeal brought on 17 May 2011 by Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE against the judgment of the General Court (Eighth Chamber) delivered on 3 March 2011 in Case T-589/08: Evropaïki Dynamiki v Commission

(Case C-235/11 P)

2011/C 211/34

Language of the case: English

Parties

Appellant: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (represented by: N. Korogiannakis, M. Dermitzakis, Δικηγόροι)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

| — | Set aside the decision of the General Court, |
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—

Set aside the decision of the General Court,

| — | Annul the decision of the Commission (DG ENVI) to reject the bids submitted by the applicant for each of the three lots relating to open Invitation to Tender DG ENV.C2/FRA/2008/0017 ‘Framework contract for Emission Trading Scheme — CITL/CR’ (2008/S72-096229) and to award those contracts to another tenderer, |
| --- | --- |

—

Annul the decision of the Commission (DG ENVI) to reject the bids submitted by the applicant for each of the three lots relating to open Invitation to Tender DG ENV.C2/FRA/2008/0017 ‘Framework contract for Emission Trading Scheme — CITL/CR’ (2008/S72-096229) and to award those contracts to another tenderer,

| — | Refer the case to the General Court in order that the latter examines the remaining issues in both Lots, including the request for Damages, not examined yet by the GC, |
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—

Refer the case to the General Court in order that the latter examines the remaining issues in both Lots, including the request for Damages, not examined yet by the GC,

| — | Order the Commission to pay the Appellant's legal and other costs including those incurred in connection with the initial procedure, even if the current Appeal is rejected as well as those of the current Appeal, in case it is accepted. |
| --- | --- |

—

Order the Commission to pay the Appellant's legal and other costs including those incurred in connection with the initial procedure, even if the current Appeal is rejected as well as those of the current Appeal, in case it is accepted.

Pleas in law and main arguments

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

| — | Manifest error of assessment and insufficient reasoning. |
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Manifest error of assessment and insufficient reasoning.

| — | Misinterpretation by the General Court of art. 100(2) of the Financial Regulation (1) and of art. 149 of the implementing rules (2) in relation to its appreciation of the obligation to state reasons of the contracting authority. |
| --- | --- |

—

Misinterpretation by the General Court of art. 100(2) of the Financial Regulation (1) and of art. 149 of the implementing rules (2) in relation to its appreciation of the obligation to state reasons of the contracting authority.

| — | The General Court erred in law by not accepting the appellant’s arguments concerning the infringement of the principle of equal treatment. |
| --- | --- |

—

The General Court erred in law by not accepting the appellant’s arguments concerning the infringement of the principle of equal treatment.

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(1)  OJ L 248, p. 1

(2)  OJ L 357, p. 1

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/18 |
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16.7.2011

EN

Official Journal of the European Union

C 211/18

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Appeal brought on 19 May 2011 by World Wide Tobacco España, S.A. against the judgment of the General Court (Fourth Chamber) delivered on 8 March 2011 in Case T-37/05 World Wide Tobacco España v Commission

(Case C-240/11 P)

2011/C 211/35

Language of the case: Spanish

Parties

Appellant: World Wide Tobacco España, S.A. (represented by: M. Odriozola and A Vide, Abogados)

Other party to the proceedings: European Commission

Form of order sought

| — | set aside in part the judgment of the General Court in Case T-37/05; |
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—

set aside in part the judgment of the General Court in Case T-37/05;

| — | reduce the fine imposed on the appellant; |
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—

reduce the fine imposed on the appellant;

| — | order the Commission to pay the costs of the proceedings at first instance and on appeal. |
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—

order the Commission to pay the costs of the proceedings at first instance and on appeal.

Pleas in law and main arguments

First, the appellant submits that the Commission infringed the principle of equal treatment by applying a more stringent factor for deterrence on World Wide Tobacco España S.A. (WWTE) than on other undertakings engaged in processing tobacco. The Commission applied a factor for deterrence to WWTE on the ground that it belonged to a multi-national group having considerable economic and financial power. The fact that WWTE may have acted — which is not the case — under the decisive influence of its parent companies was considered solely as a supplementary factor.

Second, in the alternative, the appellant submits that the Court of Justice must recalculate the multiplier in so far as it may find any of the parent companies not to be responsible for the conduct of WWTE. The General Court should not have rejected WWTE’s arguments on the ground that it had not included in its application the arguments of its parent companies, given that it is for the parent companies to refute the imputation of liability, not the subsidiary. In any event, the judgments delivered and to be delivered in the actions of the parent companies, including the judgment in Case T-24/05, have the effect of res judicata as between persons which are jointly and severally liable.

Third, the General Court should not have declared inadmissible on grounds of lack of clarity the appellant’s argument that the Commission had imposed a fine which, as the parent companies were not liable, failed to observe the ceiling of 10 % of turnover. The reasons are the same as those referred to in the preceding paragraph: only the parent companies have the capacity to refute the imputation of liability and the judgment given has the effect of res judicata as between persons which are jointly and severally liable.

Finally, the Commission infringed the Guidelines on the method of setting fines since it failed to take into account that, during 1996 and 1997, WWTE did not respect the agreements. Furthermore, the appellant submits that, in having failed to include an express reference to that attenuating circumstance in the contested decision, the Commission cannot maintain that it took it into account.

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/18 |
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16.7.2011

EN

Official Journal of the European Union

C 211/18

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Appeal brought on 24 May 2011 by Areva against the judgment of the General Court (Second Chamber) delivered on 3 March 2011 in Joined Cases T-117/07 and T-121/07 Areva and Others v Commission

(Case C-247/11 P)

2011/C 211/36

Language of the case: French

Parties

Appellant: Areva SA (represented by: A. Schild, lawyer)

Other parties to the proceedings: Alstom, European Commission

Form of order sought

| — | set aside the judgment under appeal; |
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—

set aside the judgment under appeal;

| — | if the Court of Justice considers that the state of the proceedings is such as to permit final judgment in the matter:






  — | principally, set aside the following provisions of the decision at issue:






  — | Article 1(c), |
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—

if the Court of Justice considers that the state of the proceedings is such as to permit final judgment in the matter:

—

principally, set aside the following provisions of the decision at issue:

—

Article 1(c),

| — | Article 2(c); |
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Article 2(c);

| — | in the alternative, substantially reduce the fine imposed on the appellant; |
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in the alternative, substantially reduce the fine imposed on the appellant;

| — | order the Commission to pay all the costs, including those incurred by the appellant before the General Court; |
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—

order the Commission to pay all the costs, including those incurred by the appellant before the General Court;

| — | if the Court of Justice considers that the state of the proceedings is not such as to permit final judgment in the matter, refer the case back to a Chamber of the General Court with a different composition and reserve the costs. |
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if the Court of Justice considers that the state of the proceedings is not such as to permit final judgment in the matter, refer the case back to a Chamber of the General Court with a different composition and reserve the costs.

Pleas in law and main arguments

The appellant puts forward four pleas in support of its appeal.

The first plea alleges infringement by the General Court of the rules relating to the statement of reasons and of the rights of the defence in the analysis of the effective exercise of decisive influence by Areva SA over Areva T&D SA and Areva T&D AG during the period from 9 January to 11 May 2004. In this respect, the appellant observes that the General Court infringed Articles 36 and 53 of Protocol (No 3) on the Statute of the Court of Justice of the European Union (the obligation for the General Court to state the reasons on which its judgments are based) in so far as, in paragraph 150 of the judgment under appeal, the General Court substituted its own reasoning for that of the Commission by retrospectively adding to the decision at issue reasons which do not appear in that decision. The appellant also observes that the General Court infringed its obligation to state reasons in so far as its arguments do not make it possible to understand the reasons why it did not accept the appellant's arguments. Lastly, the appellant observes that the General Court infringed Areva SA's rights of defence by imposing on it a probatio diabolica in the context of the demonstration of the absence of effective exercise of decisive influence by the parent company over its subsidiaries and by refusing to afford it an opportunity of giving its views on the new arguments that the General Court added to the decision at issue.

The second plea alleges that the General Court erred in law when applying the rules relating to joint and several liability for the payment of fines, which resulted in infringement of the principle of legal certainty and the principle that the penalty must be specific to the offender. The appellant submits that, by imposing fines which have the effect of creating ‘de facto’ joint and several liability between two companies which have never formed a single economic unit, the General Court infringed the abovementioned principles.

The third plea alleges misinterpretation by the General Court of the rules relating to the unlawful delegation of the Commission's powers, incorrect reasoning by the General Court and infringement of the principle that the penalty must be specific to the offender because liability was not clearly apportioned between co-debtors in the context of joint and several liability. In this respect, Areva SA claims, first, that the General Court erred in law by interpreting the Commission's decision in a manner contrary to the Commission's intention so as to find a ‘solution’, which, without having any basis in law, enabled it to reject the appellant's arguments concerning the delegation of the Commission's powers. The appellant claims, second, that the General Court's solution infringes the general principle of legal certainty and the general principle that the penalty must be specific to the offender.

The fourth and final plea alleges an error of law regarding the application of the principles of proportionality and equal treatment as regards the fine imposed jointly and severally on Areva SA. The appellant submits that, by failing to use its power of unlimited jurisdiction and by upholding fines which do not take account of the duration of the infringement committed, the General Court infringed those principles.

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/19 |
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16.7.2011

EN

Official Journal of the European Union

C 211/19

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Appeal brought on 25 May 2011 by Alstom, T&D Holding, formerly Areva T&D Holding SA, Alstom Grid SAS, formerly Areva T&D SA, Alstom Grid AG, formerly Areva T&D AG against the judgment of the General Court (Second Chamber) delivered on 3 March 2011 in Joined Cases T-117/07 and T-121/07 Areva and Others v Commission

(Case C-253/11 P)

2011/C 211/37

Language of the case: French

Parties

Appellants: Alstom, T&D Holding, formerly Areva T&D Holding SA, Alstom Grid SAS, formerly Areva T&D SA, Alstom Grid AG, formerly Areva T&D AG (represented by: J. Derenne and A. Müller-Rappard, lawyers)

Other parties to the proceedings: Areva, European Commission

Form of order sought

| — | set aside the judgment of the General Court (Second Chamber) of 3 March 2011 in Cases T-117/07 and T-121/07 Areva SA, Areva T&D Holding SA, Areva T&D AG, Areva T&D SA and Alstom v European Commission; |
| --- | --- |

—

set aside the judgment of the General Court (Second Chamber) of 3 March 2011 in Cases T-117/07 and T-121/07 Areva SA, Areva T&D Holding SA, Areva T&D AG, Areva T&D SA and Alstom v European Commission;

| — | if the Court of Justice considers that the state of the proceedings is such as to permit final judgment in the matter:






  — | principally, set aside the following provisions of Commission Decision C(2006) 6762 final of 24 January 2007 (Case COMP/F/38.899 — Gas insulated switchgear):






  — | Article 1(b) [Alstom], |
| --- | --- | --- | --- |

—

if the Court of Justice considers that the state of the proceedings is such as to permit final judgment in the matter:

—

principally, set aside the following provisions of Commission Decision C(2006) 6762 final of 24 January 2007 (Case COMP/F/38.899 — Gas insulated switchgear):

—

Article 1(b) [Alstom],

| — | Article 1(d) [Alstom Grid AG (formerly Areva T&D AG)], |
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Article 1(d) [Alstom Grid AG (formerly Areva T&D AG)],

| — | Article 1(e) [T&D Holding (formerly Areva T&D Holding SA)], |
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—

Article 1(e) [T&D Holding (formerly Areva T&D Holding SA)],

| — | Article 1(f) [Alstom Grid SAS (formerly Areva T&D SA)], |
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—

Article 1(f) [Alstom Grid SAS (formerly Areva T&D SA)],

| — | Article 2(b) [Alstom], |
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Article 2(b) [Alstom],

| — | Article 2(c) [Alstom, Alstom Grid AG (formerly Areva T&D AG), T&D Holding (formerly Areva T&D Holding SA) and Alstom Grid SAS (formerly Areva T&D SA)]; |
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Article 2(c) [Alstom, Alstom Grid AG (formerly Areva T&D AG), T&D Holding (formerly Areva T&D Holding SA) and Alstom Grid SAS (formerly Areva T&D SA)];

| — | in the alternative, substantially reduce the fines imposed on the appellants; |
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—

in the alternative, substantially reduce the fines imposed on the appellants;

| — | order the Commission to pay the costs, including those relating to the proceedings before the General Court; |
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—

order the Commission to pay the costs, including those relating to the proceedings before the General Court;

| — | if the Court of Justice considers that the state of the proceedings is not such as to permit final judgment in the matter, refer the case back to a Chamber of the General Court with a different composition and reserve the costs. |
| --- | --- |

—

if the Court of Justice considers that the state of the proceedings is not such as to permit final judgment in the matter, refer the case back to a Chamber of the General Court with a different composition and reserve the costs.

Pleas in law and main arguments

The appellants put forward five pleas in support of their appeal.

By their first plea, which is in two parts, the appellants allege infringement of Article 269 TFEU by the General Court in so far as it holds that the Commission's decision is sufficiently reasoned. In this respect, they criticise, first, the General Court for holding, in paragraphs 90 to 99 of the judgment under appeal, that the Commission reasoned to the requisite legal standard its finding that Alstom was jointly and severally liable with Areva T&D SA and Areva T&D AG on the basis that Alstom failed to rebut the presumption of exercise of decisive influence over its subsidiaries, even though the Commission failed to respond to the evidence adduced by Alstom in order to rebut that presumption (first part). The appellants criticise, second, the General Court for holding, in paragraph 200 of the judgment under appeal, that the Commission was entitled not to provide an explanation on the reasons why two companies which do not form a single economic entity on the date of adoption of a decision can have a fine imposed on them for which they are jointly and severally liable.

By their second plea, the appellants allege infringement by the General Court of Articles 36 and 53 of the Statute of the Court of Justice, in conjunction with Article 263 TFEU, in so far as the General Court substitutes, in paragraphs 101 to 110 (first part), 148 to 150 (second part) and 214 to 216 (third part) of the judgment, its own reasoning for that of the Commission by retrospectively adding to the contested decision reasons which do not appear in that decision. Similarly, Alstom and Others criticise the General Court for holding, in paragraph 206 of the judgment under appeal, that two companies which do not form an economic unit on the date of adoption of the contested decision can have a fine imposed on them for which they are jointly and severally liable (fourth part).

The third plea, alleging imposition by the General Court of a probatio diabolica in breach of Article 101 TFEU, and in particular in breach of the rules governing the attributability to a parent company of the activities of its subsidiary and of the principles of the right to a fair hearing and the presumption of innocence enshrined in Articles 47 and 48 of the Charter of Fundamental Rights of the European Union, is in two parts. The appellants submit that:

| (a) | first, by upholding the Commission's attribution of liability for the activities of its subsidiaries to their parent company Alstom and by applying the case-law principles of the presumption of exercise of decisive influence, the General Court failed to have regard, in paragraphs 84 to 110 of the judgment under appeal, to the right to a fair hearing and the principle of the presumption of innocence, by adopting, in the context of attribution of liability, a definition of exercise of decisive influence by a parent company over its subsidiary which bears no relation to actual conduct on the market in question and, therefore, by rendering that presumption non-rebuttable; |
| --- | --- |

(a)

first, by upholding the Commission's attribution of liability for the activities of its subsidiaries to their parent company Alstom and by applying the case-law principles of the presumption of exercise of decisive influence, the General Court failed to have regard, in paragraphs 84 to 110 of the judgment under appeal, to the right to a fair hearing and the principle of the presumption of innocence, by adopting, in the context of attribution of liability, a definition of exercise of decisive influence by a parent company over its subsidiary which bears no relation to actual conduct on the market in question and, therefore, by rendering that presumption non-rebuttable;

| (b) | second, the General Court erred in law, in paragraphs 144 to 152 of the judgment under appeal, in the assessment of the exercise of decisive influence by Areva T&D Holding SA over Areva T&D SA and Areva T&D AG during the period from 9 January to 11 May 2004. |
| --- | --- |

(b)

second, the General Court erred in law, in paragraphs 144 to 152 of the judgment under appeal, in the assessment of the exercise of decisive influence by Areva T&D Holding SA over Areva T&D SA and Areva T&D AG during the period from 9 January to 11 May 2004.

The fourth plea alleges breach by the General Court of the concept of joint and several liability in so far as the General Court holds, in paragraphs 214 to 216 of the judgment under appeal, that joint and several liability determines the shares of the respective contributions of the companies on which a fine has been imposed jointly and severally (first part) and in so far as the General Court infringes, in paragraphs 232 to 236 and 238 to 242 of the judgment under appeal, the principle of legal certainty and the principle that the penalty must be specific to the offender, as well as Article 13 TEU, since there has been a delegation of the Commission's power to determine the liability of each of the undertakings punished.

The fifth plea alleges that the General Court infringed its obligation to respond to the pleas raised in so far as it misinterprets, in paragraphs 223 to 230 of the judgment, the scope of the plea alleging breach of the right to an effective remedy and to judicial protection and does not therefore respond to the plea raised but to another plea which was not raised.

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/20 |
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16.7.2011

EN

Official Journal of the European Union

C 211/20

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Order of the President of the Court of 15 April 2011 (reference for a preliminary ruling from the Tribunale di Milano — Italy) — Vitra Patente AG v High Tech srl

(Case C-219/09) (1)

2011/C 211/38

Language of the case: Italian

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

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(1)  OJ C 205, 29.8.2009.

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/21 |
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16.7.2011

EN

Official Journal of the European Union

C 211/21

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Order of the President of the Court of 30 March 2011 (reference for a preliminary ruling from the Raad Van State — Netherlands) — Johan van Leendert Holding BV v Minister van Sociale Zaken en Werkgelegenheid

(Case C-158/10) (1)

2011/C 211/39

Language of the case: Dutch

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

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(1)  OJ C 161, 19.6.2010.

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/21 |
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16.7.2011

EN

Official Journal of the European Union

C 211/21

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Order of the President of the Eighth Chamber of the Court of 10 March 2011 — European Commission v Republic of Estonia

(Case C-227/10) (1)

2011/C 211/40

Language of the case: Estonian

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

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(1)  OJ C 209, 31.7.2010.

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/21 |
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16.7.2011

EN

Official Journal of the European Union

C 211/21

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Order of the President of the Court of 7 April 2011 (reference for a preliminary ruling from the Unabhängiger Verwaltungssenat Salzburg — Austria) — Harald Jung and Gerald Hellweger v Magistrat der Stadt Salzburg, other party to the proceedings: Finanzamt Salzburg-Stadt

(Case C-241/10) (1)

2011/C 211/41

Language of the case: German

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

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(1)  OJ C 221, 14.8.2010.

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/21 |
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16.7.2011

EN

Official Journal of the European Union

C 211/21

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Order of the President of the Fifth Chamber of the Court of 10 March 2011 — European Commission v Republic of Estonia

(Case C-306/10) (1)

2011/C 211/42

Language of the case: Estonian

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

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(1)  OJ C 221, 14.8.2010.

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/21 |
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16.7.2011

EN

Official Journal of the European Union

C 211/21

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Order of the President of the Fifth Chamber of the Court of 12 April 2011 — European Commission v Kingdom of Sweden

(Case C-374/10) (1)

2011/C 211/43

Language of the case: Swedish

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

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(1)  OJ C 246, 11.9.2010.

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/21 |
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16.7.2011

EN

Official Journal of the European Union

C 211/21

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Order of the President of the Seventh Chamber of the Court of 17 March 2011 — European Commission v Republic of Finland

(Case C-380/10) (1)

2011/C 211/44

Language of the case: Swedish

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

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(1)  OJ C 260, 25.9.2010.

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/21 |
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16.7.2011

EN

Official Journal of the European Union

C 211/21

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Order of the President of the Court of 21 March 2011 — European Commission v Federal Republic of Germany

(Case C-445/10) (1)

2011/C 211/45

Language of the case: German

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

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(1)  OJ C 301, 6.11.2010.

---

| 16.7.2011 | EN | Official Journal of the European Union | C 211/21 |
| --- | --- | --- | --- |

16.7.2011

EN

Official Journal of the European Union

C 211/21

---

Order of the President of the Court of 7 April 2011 (reference for a preliminary ruling from the the Unabhängiger Verwaltungssenat Salzburg — Austria) — Martin Wohl, Ildiko Veres v Magistrat der Stadt Salzburg, other party to the proceedings: Finanzamt Salzburg-Stadt

(Case C-471/10) (1)

2011/C 211/46

Language of the case: German

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

---

(1)  OJ C 328, 4.12.2010.

---

General Court

| 16.7.2011 | EN | Official Journal of the European Union | C 211/22 |
| --- | --- | --- | --- |

16.7.2011

EN

Official Journal of the European Union

C 211/22

---

Judgment of the General Court of 7 June 2011 — Total and Elf Aquitaine v Commission

(Case T-206/06) (1)

(Competition - Agreements, decisions and concerted practices - Market for methacrylates - Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement - Imputability of the unlawful conduct - Rights of the defence - Presumption of innocence - Obligation to state reasons - Principle of equal treatment - Principle that penalties must fit the offence - Principle of nullum crimen, nulla poena sine lege - Principle of sound administration - Principle of legal certainty - Misuse of powers - Fines - Attribution of liability for payment within a group of companies)

2011/C 211/47

Language of the case: French

Parties

Applicants: Total and Elf Aquitaine (Courbevoie, France) and Elf Aquitaine SA (Courbevoie, France) (represented by: É. Morgan de Rivery and S. Thibault-Liger, lawyers)

Defendant: European Commission (represented by: initially F. Arbault and V. Bottka, subsequently V. Bottka and F. Castillo de la Torre, Agents)

Re:

Application for annulment of Articles 1(c) and (d), 2(b), 3 and 4 of Commission Decision C(2006) 2098 final of 31 May 2006 relating to a proceeding pursuant to Article 81 EC and Article 53 of the EEA Agreement (Case COMP/F/38.645 — Methacrylates) and, in the alternative, amendment of Article 2(b) of that decision.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Total SA and Elf Aquitaine SA to pay the costs. |
| --- | --- |

2.

Orders Total SA and Elf Aquitaine SA to pay the costs.

---

(1)  OJ C 261, 28.10.2006.

---

| 16.7.2011 | EN | Official Journal of the European Union | C 211/22 |
| --- | --- | --- | --- |

16.7.2011

EN

Official Journal of the European Union

C 211/22

---

Judgment of the General Court of 7 June 2011 — Arkema France and Others v Commission

(Case T-217/06) (1)

(Competition - Agreements, decisions and concerted practices - Market for methacrylates - Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement - Imputability of the unlawful conduct - Obligation to state reasons - Principle of equal treatment - Principle of sound administration - Fines - Gravity of the infringement - Actual impact on the market - Deterrent effect of the fine - Repeat infringement - Ne bis in idem principle - Principle of proportionality - Attenuating circumstances - Actual non-application of the agreements - Attribution of liability for payment within a group of companies - Unlimited jurisdiction)

2011/C 211/48

Language of the case: French

Parties

Applicants: Arkema France (Colombes, France), Altuglas International SA (Puteaux, France) and Altumax Europe SAS (Puteaux, France) (represented by: initially A. Winckler, S. Sorinas Jimeno and P. Geffriaud, subsequently S. Sorinas Jimeno and E. Jégou, lawyers)

Defendant: European Commission (represented by: initially F. Arbault and V. Bottka, subsequently V. Bottka and F. Castillo de la Torre, Agents)

Re:

By way of principal claim, application for annulment of Commission Decision C(2006) 2098 final of 31 May 2006 relating to a proceeding pursuant to Article 81 EC and Article 53 of the EEA Agreement (Case COMP/F/38.645 — Methacrylates) in so far as it concerns the applicants and, in the alternative, application for annulment or reduction of the fine imposed on the applicants by that decision.

Operative part of the judgment

The Court:

| 1. | Reduces the fine for which Arkema SA (now Arkema France), Altuglas International SA and Altumax Europea SAS were held jointly and severally liable under Article 2(b) of Commission Decision C(2006) 2098 final of 31 May 2006 relating to a proceeding pursuant to Article 81 EC and Article 53 of the EEA Agreement (Case COMP/F/38.645 — Methacrylates) to EUR 113 343 750; |
| --- | --- |

1.

Reduces the fine for which Arkema SA (now Arkema France), Altuglas International SA and Altumax Europea SAS were held jointly and severally liable under Article 2(b) of Commission Decision C(2006) 2098 final of 31 May 2006 relating to a proceeding pursuant to Article 81 EC and Article 53 of the EEA Agreement (Case COMP/F/38.645 — Methacrylates) to EUR 113 343 750;

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

2.

Dismisses the action as to the remainder.

---

(1)  OJ C 249, 14.10.2006.

---

| 16.7.2011 | EN | Official Journal of the European Union | C 211/23 |
| --- | --- | --- | --- |

16.7.2011

EN

Official Journal of the European Union

C 211/23

---

Judgment of the General Court of 7 June 2011 — Toland v Parliament

(Case T-471/08) (1)

(Access to documents - Regulation (EC) No 1049/2001 - Audit report on the parliamentary assistance allowance - Refusal of access - Exception relating to protection of the purpose of inspections, investigations and audits - Exception relating to protection of the decision-making process)

2011/C 211/49

Language of the case: English

Parties

Applicant: Ciarán Toland (Dublin, Ireland) (represented by: A. Burke, Solicitor, E. Regan, SC, and J. Newman, Barrister)

Defendant: European Parliament (represented by: H. Krück, N. Lorenz and D. Moore, acting as Agents)

Interveners in support of the applicant: Kingdom of Denmark (represented by B. Weis Fogh and C. Vang, acting as Agents), Republic of Finland (represented by J. Heliskoski, A. Guimaraes-Purokoski and H. Leppo, acting as Agents), Kingdom of Sweden (represented by A. Falk, S. Johannesson and K. Petkovska, acting as Agents)

Re:

Application for partial annulment of the decision of the European Parliament of 11 August 2008, Reference No A(2008) 10636, in so far as it refuses access to Report No 06/02 of the Internal Audit Service entitled ‘Audit of the Parliamentary Assistance Allowance’

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the European Parliament of 11 August 2008, Reference No A(2008) 10636, in so far as it refuses access to Report No 06/02 of the Internal Audit Service of the Parliament of 9 January 2008 entitled ‘Audit of the Parliamentary Assistance Allowance’; |
| --- | --- |

1.

Annuls the decision of the European Parliament of 11 August 2008, Reference No A(2008) 10636, in so far as it refuses access to Report No 06/02 of the Internal Audit Service of the Parliament of 9 January 2008 entitled ‘Audit of the Parliamentary Assistance Allowance’;

| 2. | Orders the Parliament to bear its own costs and to pay the costs incurred by Mr Ciarán Toland; |
| --- | --- |

2.

Orders the Parliament to bear its own costs and to pay the costs incurred by Mr Ciarán Toland;

| 3. | Orders the Kingdom of Denmark, the Republic of Finland and the Kingdom of Sweden to bear their own costs. |
| --- | --- |

3.

Orders the Kingdom of Denmark, the Republic of Finland and the Kingdom of Sweden to bear their own costs.

---

(1)  OJ C 32, 7.2.2009.

---

| 16.7.2011 | EN | Official Journal of the European Union | C 211/23 |
| --- | --- | --- | --- |

16.7.2011

EN

Official Journal of the European Union

C 211/23

---

Judgment of the General Court of 7 June 2011 — Psytech International v OHIM — Institute for Personality & Ability Testing (16PF)

(Case T-507/08) (1)

(Community trade mark - Invalidity proceedings - Community word mark 16PF - Absolute grounds for refusal - Distinctive character - No descriptive character - No signs which have become customary - No bad faith - Article 7(1)(b) to (d) and Article 51(1)(b) of Regulation (EC) No 40/94 (now Article 7(1)(b) to (d) and Article 52(1)(b) of Regulation (EC) No 207/2009))

2011/C 211/50

Language of the case: English

Parties

Applicant: Psytech International Ltd (Pulloxhill, United Kingdom) (represented by: N. Phillips, Solicitor and N. Saunders, Barrister)

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

Other party to the proceedings before the Board of Appeal of OHIM intervener before the General Court: Institute for Personality & Ability Testing, Inc. (Champaign, United States) (represented by: G. Hobbs QC and A. Chaudri, Solicitor)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 23 July 2008 (Case R 1012/2007-2), relating to invalidity proceedings between Psytech International Ltd and the Institute for Personality & Ability Testing, Inc.

Operative part of the order

The Court:

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

1.

Dismisses the action;

| 2. | Orders Psytech International Ltd to pay the costs. |
| --- | --- |

2.

Orders Psytech International Ltd to pay the costs.

---

(1)  OJ C 19, 24.1.2009.

---

| 16.7.2011 | EN | Official Journal of the European Union | C 211/23 |
| --- | --- | --- | --- |

16.7.2011

EN

Official Journal of the European Union

C 211/23

---

Order of the General Court of 24 May 2011 — Power-One Italy v Commission

(Case T-489/08) (1)

(Action for compensation - Project cofunded by the financial instrument LIFE + - Development of a new system of supplying power for use in mobile telephony (Pneuma project) - Abuse of process - Disregard of formal requirements - Inadmissibility)

2011/C 211/51

Language of the case: Italian

Parties

Applicant: Power-One Italy SpA (Terranova Bracciolini, Italy) (represented by R.Giuffrida and A. Giussani, lawyers)

Defendant: European Commission (represented by P. Oliver and D. Recchia, Agents)

Re:

Action for compensation for loss allegedly suffered by the applicant following the Commission’s decision to end the Pneuma project (LIFE04 ENV/IT/000595), intended to cofund development of a new system of supplying power for use in mobile telephony.

Operative part of the order

The Court hereby orders:

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

1.

The action is dismissed.

| 2. | Power-One Italy SpA is ordered to bear its own costs and to pay those incurred by the Commission. |
| --- | --- |

2.

Power-One Italy SpA is ordered to bear its own costs and to pay those incurred by the Commission.

---

(1)  OJ C 6, 10.1.2009.

---

| 16.7.2011 | EN | Official Journal of the European Union | C 211/24 |
| --- | --- | --- | --- |

16.7.2011

EN

Official Journal of the European Union

C 211/24

---

Order of the General Court of 24 May 2011 — Government of Gibraltar v Commission

(Case T-176/09) (1)

(Action for annulment - Directive 92/43/EEC - Conservation of natural habitats and of wild fauna and flora - Decision 2009/95/EC - List of sites of Community importance for the Mediterranean biogeographical region - Inclusion in the site of Community importance called ‘Estrecho oriental’ of an area of the territorial waters of Gibraltar and of an area of the high seas - Partial annulment - Non-severability - Inadmissibility)

2011/C 211/52

Language of the case: English

Parties

Applicant: Government of Gibraltar (represented by: D. Vaughan and M. Llamas, lawyers)

Defendant: European Commission (represented by: S. Boelaert and D. Recchia, Agents)

Intervener in support of the applicant: United Kingdom of Great Britain and Northern Ireland (represented by E. Jenkinson and S. Ossowski, Agents, and by D. Wyatt QC and M. Wood, Barrister)

Intervener in support of the defendant: Kingdom of Spain (represented by N. Díaz Abad and M. Muñoz Pérez, Agents

Re:

APPLICATION for partial annulment of Commission Decision 2009/95/EC of 12 December 2008 adopting, pursuant to Council Directive 92/43/EEC, a second updated list of sites of Community importance for the Mediterranean biogeographical region (OJ 2009 L 43, p. 393), to the extent that it extends the site called ‘Estrecho oriental’ (ES6120032) to the territorial waters of Gibraltar (both within and outside Site UKGIB0002) and to an area of the high seas

Operative part of the order

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

1.

The action is dismissed as inadmissible.

| 2. | The Government of Gibraltar shall bear its own costs and pay those incurred by the European Commission. |
| --- | --- |

2.

The Government of Gibraltar shall bear its own costs and pay those incurred by the European Commission.

| 3. | The Kingdom of Spain and the United Kingdom of Great Britain and Northern Ireland shall bear their own costs. |
| --- | --- |

3.

The Kingdom of Spain and the United Kingdom of Great Britain and Northern Ireland shall bear their own costs.

---

(1)  OJ C 153, 4.7.2009.

---

| 16.7.2011 | EN | Official Journal of the European Union | C 211/24 |
| --- | --- | --- | --- |

16.7.2011

EN

Official Journal of the European Union

C 211/24

---

Order of the General Court of 23 May 2011 — Y v Commission

(Case T-493/09 P) (1)

(Appeal - Staff case - Contract agents - Dismissal - Appeal in part manifestly inadmissible and in part manifestly unfounded)

2011/C 211/53

Language of the case: French

Parties

Appellant: Y (Brussels, Belgium) (represented by J. Van Rossum, lawyer)

Other party to the proceedings: European Commission (represented originally by J.-P. Keppenne and L. Lozano Palacios, and then by J.-P. Keppenne and D. Martin, Agents)

Re:

Appeal against the judgment of the European Union Civil Service Tribunal (Third Chamber) of 7 October 2009 in Case F-29/08 Y v Commission, not yet published in the ECR, seeking to have that judgment set aside.

Operative part of the order

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

1.

The appeal is dismissed.

| 2. | Mr Y is ordered to bear his own costs and to pay those incurred by the European Commission in these proceedings. |
| --- | --- |

2.

Mr Y is ordered to bear his own costs and to pay those incurred by the European Commission in these proceedings.

---

(1)  OJ C 221, 14.8.2010.

---

| 16.7.2011 | EN | Official Journal of the European Union | C 211/24 |
| --- | --- | --- | --- |

16.7.2011

EN

Official Journal of the European Union

C 211/24

---

Order of the General Court of 24 May 2011 — United Kingdom v Commission

(Case T-115/10) (1)

(Action for annulment - Directive 92/43/EEC - Conservation of natural habitats and of wild fauna and flora - Decision 2010/45/EU - List of sites of Community importance for the Mediterranean biogeographical region - Measure not open to challenge - Measure merely confirmatory - Inadmissibility)

2011/C 211/54

Language of the case: English

Parties

Applicant: United Kingdom of Great Britain and Northern Ireland (represented by: S. Ossowski, acting as Agent, and by D. Wyatt QC and M. Wood, Barrister)

Defendant: European Commission (represented by: S. Boelaert and D. Recchia, Agents)

Re:

APPLICATION for partial annulment of Commission Decision 2010/45/EU of 22 December 2009 adopting, pursuant to Council Directive 92/43/EEC, a third updated list of sites of Community importance for the Mediterranean biogeographical region (OJ 2010 L 30, p. 322) to the extent that it lists the site called ‘Estrecho oriental’ (under reference ES6120032) as a site of Community importance for the Mediterranean biogeographical region

Operative part of the order

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

1.

The action is dismissed as inadmissible.

| 2. | The United Kingdom of Great Britain and Northern Ireland shall pay the costs. |
| --- | --- |

2.

The United Kingdom of Great Britain and Northern Ireland shall pay the costs.

| 3. | There is no need to rule on the Kingdom of Spain’s application for leave to intervene. |
| --- | --- |

3.

There is no need to rule on the Kingdom of Spain’s application for leave to intervene.

---

(1)  OJ C 113, 1.5.2010.

---

| 16.7.2011 | EN | Official Journal of the European Union | C 211/25 |
| --- | --- | --- | --- |

16.7.2011

EN

Official Journal of the European Union

C 211/25

---

Appeal brought on 30 March 2011 by Guido Strack against the judgment of the Civil Service Tribunal of 20 January 2011 in Case F-121/07, Strack v Commission

(Case T-198/11 P)

2011/C 211/55

Language of the case: German

Parties

Appellant: Guido Strack (Cologne, Germany) (represented by H. Tettenborn, lawyer)

Other party to the proceedings: European Commission

Form of order sought by the appellant

| — | set aside in its entirety the judgment of the European Union Civil Service Tribunal (Second Chamber) of 20 January 2011 in Case F-121/07; |
| --- | --- |

—

set aside in its entirety the judgment of the European Union Civil Service Tribunal (Second Chamber) of 20 January 2011 in Case F-121/07;

| — | set aside the order of the European Union Civil Service Tribunal (Second Chamber) of 17 September 2009 in Case F-121/07 in so far as it dismissed the applicant’s application for judgment in default; |
| --- | --- |

—

set aside the order of the European Union Civil Service Tribunal (Second Chamber) of 17 September 2009 in Case F-121/07 in so far as it dismissed the applicant’s application for judgment in default;

| — | set aside the decisions of the European Union Civil Service Tribunal by which Case F-121/07 originally assigned to the First Chamber was subsequently assigned to the Second Chamber; |
| --- | --- |

—

set aside the decisions of the European Union Civil Service Tribunal by which Case F-121/07 originally assigned to the First Chamber was subsequently assigned to the Second Chamber;

| — | set aside the decision of the European Union Civil Service Tribunal in Case F-121/07 not to take into account or not to admit the applicant’s pleading of 2 April 2009 and the applicant’s application contained therein for extension of the claim; |
| --- | --- |

—

set aside the decision of the European Union Civil Service Tribunal in Case F-121/07 not to take into account or not to admit the applicant’s pleading of 2 April 2009 and the applicant’s application contained therein for extension of the claim;

| — | decide in accordance with the applicant’s form of order sought in the application in Case F-121/07 and the applicant’s pleading in that case of 2 April 2009 and rule against the defendant on the basis of that form of order and the applicant’s further claims in Case F-121/07; |
| --- | --- |

—

decide in accordance with the applicant’s form of order sought in the application in Case F-121/07 and the applicant’s pleading in that case of 2 April 2009 and rule against the defendant on the basis of that form of order and the applicant’s further claims in Case F-121/07;

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

—

order the Commission to pay all the costs;

| — | the applicant additionally, referring to the corresponding settled case-law of the European Court of Human Rights, seeks compensation for the excessive length of the proceedings of at least EUR 2 500, the precise amount of which he leaves to the discretion of the Court. |
| --- | --- |

—

the applicant additionally, referring to the corresponding settled case-law of the European Court of Human Rights, seeks compensation for the excessive length of the proceedings of at least EUR 2 500, the precise amount of which he leaves to the discretion of the Court.

Pleas in law and main arguments

In support of the appeal, the appellant relies on 22 grounds of appeal.

He complains inter alia of lack of jurisdiction of the panel which made the contested decisions; unlawful refusal to give judgment in default; unlawfulness of the extensions of time granted to the Commission; refusal to allow the claim to be extended; failure to carry out the required joinder of the case with other cases between the parties; incorrect account of the facts in the preliminary report for the hearing and in the judgment under appeal; bias on the part of the judge-rapporteur; infringement of the Court’s rules on language; and discrimination against the appellant on linguistic grounds and failure to translate procedural documents.

The appellant further claims that the Civil Service Tribunal erred in law and gave inadequate reasons for its judgment, with reference inter alia to the interpretation and application of Articles 11, 25, 26, 26a and 90 et seq. of the Staff Regulations of Officials of the European Union, Articles 6, 8 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, Articles 8, 41, 42, 47 and 52 of the Charter of Fundamental Rights of the European Union, Article 6 et seq. of Regulation (EC) No 1049/2001, (1) and Article 11 et seq. of Regulation (EC) No 45/2001. (2)

---

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

(2)  Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ 2001 L 8, p. 1).

---

| 16.7.2011 | EN | Official Journal of the European Union | C 211/26 |
| --- | --- | --- | --- |

16.7.2011

EN

Official Journal of the European Union

C 211/26

---

Appeal on 26 April 2011 by Florence Barbin against the judgment of 15 February 2011 by the Civil Service Tribunal in Case F-68/09 Barbin v Parliament

(Case T-228/11 P)

2011/C 211/56

Language of the case: French

Parties

Appellant: Florence Barbin (Luxembourg, Luxembourg) (represented by: S. Orlandi, A. Coolen, J.-N. Louis, É. Marchal, and D. Abreu Caldas, lawyers)

Other party to the proceedings: European Parliament

Forms of order sought

The appellant claims that the Court should:

| — | annul the judgment of the Civil Service Tribunal of 15 February 2011 in Case F-68/09 Barbin v Parliament, dismissing the action by the appellant; |
| --- | --- |

—

annul the judgment of the Civil Service Tribunal of 15 February 2011 in Case F-68/09 Barbin v Parliament, dismissing the action by the appellant;

| — | annul the decision of 10 November 2008 not to promote the appellant to Grade AD12 in the 2006 promotions year; |
| --- | --- |

—

annul the decision of 10 November 2008 not to promote the appellant to Grade AD12 in the 2006 promotions year;

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

—

order the European Parliament to pay the costs.

Pleas in law and main arguments

By this appeal, the appellant seeks the annulment of the judgment of the Civil Service Tribunal of 15 February 2011 in Case F-68/09 Barbin v Parliament, in which the Civil Service Tribunal dismissed her action for the annulment of the European Parliament’s decision of 10 November 2008 not to promote her to Grade AD12 in the promotion year 2006.

In support of her appeal, the appellant makes two pleas in law, claiming:

| — | error of law in that the Civil Service Tribunal wrongly took the view that the Parliament did not make a manifest error of assessment in deciding, first, that the latter was not required to comply with the internal rules on staff reports and promotions, and, second, that it could lawfully promote officials having fewer merit points than the appellant on the strength of grounds not taking account of the system for comparing the respective merits of officials eligible for promotion such as that established by the decisions of the Bureau and the Secretary General of the European Parliament; |
| --- | --- |

—

error of law in that the Civil Service Tribunal wrongly took the view that the Parliament did not make a manifest error of assessment in deciding, first, that the latter was not required to comply with the internal rules on staff reports and promotions, and, second, that it could lawfully promote officials having fewer merit points than the appellant on the strength of grounds not taking account of the system for comparing the respective merits of officials eligible for promotion such as that established by the decisions of the Bureau and the Secretary General of the European Parliament;

| — | infringement of the principle of equal treatment and of the obligation of the Parliament to prove that the appellant suffered no discrimination on account of exercising her right to parental leave. |
| --- | --- |

—

infringement of the principle of equal treatment and of the obligation of the Parliament to prove that the appellant suffered no discrimination on account of exercising her right to parental leave.

---

| 16.7.2011 | EN | Official Journal of the European Union | C 211/26 |
| --- | --- | --- | --- |

16.7.2011

EN

Official Journal of the European Union

C 211/26

---

Action brought on 20 April 2011 — Inglewood and Others v Parliament

(Case T-229/11)

2011/C 211/57

Language of the case: French

Parties

Applicants: Lord Inglewood (Penrith, United Kingdom), Georges Berthu (Longré, France), Guy Bono (Saint-Martin-de-Crau, France), David Robert Bowe (Leeds, United Kingdom), Brendan Donnelly (London, United Kingdom), Catherine Guy-Quint (Cournon-d’Auvergne, France), Christine Margaret Oddy (Coventry, United Kingdom), Nicole Thomas-Mauro (Épernay, France), Gary Titley (Bolton, United Kingdom), Vincenzo Viola (Palermo, Italy), and Maartje van Putten (Amsterdam, Netherlands) (represented by S. Orlandi, A. Coolen, J.-N. Louis, É. Marchal, and D. Abreu Caldas, lawyers)

Defendant: European Parliament

Forms of order sought

The applicants claim that the Court should:

| — | declare the decision taken by the Bureau of the Parliament on 1 April 2009 amending the voluntary additional pension scheme of Members of the European Parliament unlawful; |
| --- | --- |

—

declare the decision taken by the Bureau of the Parliament on 1 April 2009 amending the voluntary additional pension scheme of Members of the European Parliament unlawful;

| — | annul the contested decisions; |
| --- | --- |

—

annul the contested decisions;

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

—

order the Parliament to pay the costs.

Pleas in law and main arguments

The action is brought against the decision of the Bureau of the Parliament of 1 April 2009 amending the voluntary additional pension scheme of Members of the European Parliament.

In support of their action, the applicants make four pleas in law on the substance, claiming:

| — | infringement of acquired rights conferred by legal acts and the principle of legal certainty; |
| --- | --- |

—

infringement of acquired rights conferred by legal acts and the principle of legal certainty;

| — | infringement of the principles of equal treatment and proportionality in that the contested decisions raised the pensionable age by three years without transitional measures; |
| --- | --- |

—

infringement of the principles of equal treatment and proportionality in that the contested decisions raised the pensionable age by three years without transitional measures;

| — | infringement of Article 29 of the Rules on Expenses and Allowances of Members of the European Parliament, which provides that the Quaestors and the Secretary General are responsible for the interpretation and strict application of those rules; |
| --- | --- |

—

infringement of Article 29 of the Rules on Expenses and Allowances of Members of the European Parliament, which provides that the Quaestors and the Secretary General are responsible for the interpretation and strict application of those rules;

| — | manifest error of assessment in that the Bureau’s decision of 1 April 2009, amending the rules serving as the basis for the contested decisions, is unsound. |
| --- | --- |

—

manifest error of assessment in that the Bureau’s decision of 1 April 2009, amending the rules serving as the basis for the contested decisions, is unsound.

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/27 |
| --- | --- | --- | --- |

16.7.2011

EN

Official Journal of the European Union

C 211/27

---

Appeal lodged on 28 April 2011 by Oscar Orlando Arango Jaramillo a.o. against the Order of the Civil Service Tribunal of 4 February 2011 in Case F-34/10 Arango Jaramillo and Others v EIB

(Case T-234/11 P)

2011/C 211/58

Language of the case: French

Parties

Applicants: Oscar Orlando Arango Jaramillo (Luxembourg, Luxembourg), Maria Esther Badiola (Luxembourg), Marcella Bellucci (Luxembourg), Stefan Bidiuc (Grevenmacher, Luxembourg), Raffaella Calvi (Schuttrange, Luxembourg), Maria José Cerrato (Luxembourg), Sara Confortola (Verona, Italy), Carlos D’Anglade (Luxembourg), Nuno Da Fonseca Pestana Ascenso Pires (Luxembourg), Andrew Davie (Medernach, Luxembourg), Marta De Sousa e Costa Correia (Itzig, Luxembourg), Nausica Di Rienzo (Luxembourg), José Manuel Fernandez Riveiro (Sandweiler, Luxembourg), Eric Gällstad (Rameldange, Luxembourg), Andres Gavira Etzel (Luxembourg), Igor Greindl (Canach, Luxembourg), José Doramas Jorge Calderon (Luxembourg), Monica Lledo Moreno (Sandweiler), Antonio Lorenzo Ucha (Luxembourg), Juan Antonio Magaña-Campos (Luxembourg), Petia Manolova (Bereldange, Luxembourg), Ferran Minguella Minguella (Gonderange, Luxembourg), Barbara Mulder-Bahovec (Luxembourg), István Papp (Luxembourg), Stephen Richards (Blaschette, Luxembourg), Lourdes Rodriguez Castellanos (Sandweiler), Daniela Sacchi (Mondorf-les-Bains, Luxembourg), Maria Teresa Sousa Coutinho da Silveira Ramos (Almargem do Bispo, Portugal), Isabelle Stoffel (Mondorf-les-Bains), Fernando Torija (Luxembourg), Maria del Pilar Vargas Casasola (Luxembourg), Carolina Vento Sánchez (Luxembourg), Pé Verhoeven (Brussels, Belgium), Sabina Zajc (Contern, Luxembourg); and Peter Zajc (Contern) (represented by B. Cortese and C. Cortese, lawyers)

Other party to the proceedings: European Investment Bank

Forms of order sought

The appellants claim that the Court should:

| — | annul the order subject to appeal, dismiss the objection of inadmissibility raised by the EIB in Case F-34/10, and refer the matter back to the Civil Service Tribunal for it to rule on the substance and on costs in accordance with the forms of order sought by the appellants at first instance; |
| --- | --- |

—

annul the order subject to appeal, dismiss the objection of inadmissibility raised by the EIB in Case F-34/10, and refer the matter back to the Civil Service Tribunal for it to rule on the substance and on costs in accordance with the forms of order sought by the appellants at first instance;

| — | in the alternative, having regard to the novelty of the legal questions raised by this appeal, allocate the costs between the parties as fairness requires. |
| --- | --- |

—

in the alternative, having regard to the novelty of the legal questions raised by this appeal, allocate the costs between the parties as fairness requires.

Pleas in law and main arguments

In support of their appeal, the appellants rely on three pleas in law.

| 1. | First plea, divided into three limbs, claiming an error of law in the determination of the reasonable period applicable to the making of the application in the disputes between the EIB and its staff.






  — | In the first limb, the appellants accuse the Civil Service Tribunal of giving incorrect scope to the case-law concerning the time-limits for EIB staff bringing an action, by abandoning de facto the rule that action must be brought within a reasonable period, which is by nature flexible and open to the balancing of the specific interests at stake, and substituting a strictly-applied and generalised time-limit of three months. |
| --- | --- | --- |

1.

First plea, divided into three limbs, claiming an error of law in the determination of the reasonable period applicable to the making of the application in the disputes between the EIB and its staff.

—

In the first limb, the appellants accuse the Civil Service Tribunal of giving incorrect scope to the case-law concerning the time-limits for EIB staff bringing an action, by abandoning de facto the rule that action must be brought within a reasonable period, which is by nature flexible and open to the balancing of the specific interests at stake, and substituting a strictly-applied and generalised time-limit of three months.

| — | In the second limb, the appellants argue that, with regard to disputes between the EIB and its staff, no time-limit is laid down by the relevant provisions, whereas the Civil Service Tribunal applied by analogy the period of three months and ten days laid down by Article 91 of the Staff Regulations and Article 100(3) of the Rules of Procedure. |
| --- | --- |

—

In the second limb, the appellants argue that, with regard to disputes between the EIB and its staff, no time-limit is laid down by the relevant provisions, whereas the Civil Service Tribunal applied by analogy the period of three months and ten days laid down by Article 91 of the Staff Regulations and Article 100(3) of the Rules of Procedure.

| — | In the third limb, the appellants claim infringement of the principle of proportionality and their right to effective legal protection in so far as the Civil Service Tribunal described as unreasonable the time-limit observed by the appellants, which had a few seconds of difference by comparison with the reference time-limits applicable in relations under the Staff Regulations. |
| --- | --- |

—

In the third limb, the appellants claim infringement of the principle of proportionality and their right to effective legal protection in so far as the Civil Service Tribunal described as unreasonable the time-limit observed by the appellants, which had a few seconds of difference by comparison with the reference time-limits applicable in relations under the Staff Regulations.

| 2. | Second plea, raised in the alternative and claiming error of law in the interpretation of the procedural rules applicable, read in the light of the principle of the unforeseen occurrence. |
| --- | --- |

2.

Second plea, raised in the alternative and claiming error of law in the interpretation of the procedural rules applicable, read in the light of the principle of the unforeseen occurrence.

| 3. | Third plea, raised in the alternative and alleging distortion of the evidence for proving the existence of an unforeseen occurrence and an infringement of the rules concerning the investigation and the organisation of the procedure. |
| --- | --- |

3.

Third plea, raised in the alternative and alleging distortion of the evidence for proving the existence of an unforeseen occurrence and an infringement of the rules concerning the investigation and the organisation of the procedure.

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/27 |
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16.7.2011

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Official Journal of the European Union

C 211/27

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Action brought on 9 May 2011 — Kaltenbach & Voigt v OHIM (3D eXam)

(Case T-242/11)

2011/C 211/59

Language of the case: English

Parties

Applicant: Kaltenbach & Voigt GmbH (Biberach an der Riß, Germany) (represented by: M. Graf, lawyer)

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

Form of order sought

| — | Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 1 March 2011 in case R 2361/2010-2; |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 1 March 2011 in case R 2361/2010-2;

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

—

Order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

Community trade mark concerned: The figurative mark in words ‘3D eXam’ for goods in class 10

Decision of the Examiner: Refused the protection of the international registration to the European Union pursuant to Article 7(1)(b), (c) and Article 2 CTMR

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 7(1)(b) and (c) of Council Regulation No 207/2009 and the failure to take into account prior national registrations/grants of protection, as the International registration at issue: (i) is not purely descriptive, and; (ii) exhibits distinctiveness as the relevant public will consider the sign ‘3D eXam’ as an indication of trade origin.

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/28 |
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16.7.2011

EN

Official Journal of the European Union

C 211/28

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Action brought on 12 May 2011 — International Engine Intellectual Property Company v OHIM (PURE POWER)

(Case T-248/11)

2011/C 211/60

Language of the case: English

Parties

Applicant: International Engine Intellectual Property Company, LLC (Warrenville, United States) (represented by: C. Thomas and B. Reiter, lawyers)

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

Form of order sought

| — | Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 February 2011 in case R 2310/2010-2; |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 February 2011 in case R 2310/2010-2;

| — | Order the defendant to pay the costs of the proceedings; |
| --- | --- |

—

Order the defendant to pay the costs of the proceedings;

| — | Set a date for an oral hearing for the case that findings of the General Court are not possible without an oral hearing. |
| --- | --- |

—

Set a date for an oral hearing for the case that findings of the General Court are not possible without an oral hearing.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘PURE POWER’ for goods in class 12

Decision of the Trade Marks Department: Refused the application

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 7(1)(b), (c) and 7(2) of Council Regulation No 207/2009 as well as the ‘general principles of trademark law’, as the Board of Appeal found that the mark applied for was of descriptive character for the goods in respect of which registration was sought and devoid of any distinctiveness.

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/28 |
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16.7.2011

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Official Journal of the European Union

C 211/28

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Action brought on 20 May 2011 — Fellah v Council

(Case T-255/11)

2011/C 211/61

Language of the case: French

Parties

Applicant: Zakaria Fellah (New York, USA) (represented by: G. Collard, lawyer)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

| — | hold that, in relation to the applicant, Mr Zakaria Fellah, Council Regulation (EU) No 330/2011 of 6 April 2011 and Council Decision 2011/221/CFSP of 6 April 2011, published on 7 April 2011 in the Official Journal of the European Union, are factually unfounded; |
| --- | --- |

—

hold that, in relation to the applicant, Mr Zakaria Fellah, Council Regulation (EU) No 330/2011 of 6 April 2011 and Council Decision 2011/221/CFSP of 6 April 2011, published on 7 April 2011 in the Official Journal of the European Union, are factually unfounded;

| — | in consequence:






  — | annul Council Regulation (EU) No 330/2011 of 6 April 2011 and Council Decision 2011/221/CFSP of 6 April 2011; |
| --- | --- | --- |

—

in consequence:

—

annul Council Regulation (EU) No 330/2011 of 6 April 2011 and Council Decision 2011/221/CFSP of 6 April 2011;

| — | in the alternative, order that the name of Mr Zakaria Fellah be removed from the lists annexed to the said regulation and the said decision. |
| --- | --- |

—

in the alternative, order that the name of Mr Zakaria Fellah be removed from the lists annexed to the said regulation and the said decision.

Pleas in law and main arguments

In support of the action, the applicant relies on two pleas in law.

| 1. | First plea in law, alleging infringement of the duty to state reasons, inasmuch as the grounds for including the name of the applicant in the list of persons and bodies to which restrictive measures apply were sterotyped, without mention of any precise factual element allowing the relevance of the inclusion of that name to be assessed. |
| --- | --- |

1.

First plea in law, alleging infringement of the duty to state reasons, inasmuch as the grounds for including the name of the applicant in the list of persons and bodies to which restrictive measures apply were sterotyped, without mention of any precise factual element allowing the relevance of the inclusion of that name to be assessed.

| 2. | Second plea in law, alleging manifest error of assessment, in so far as:






  — | the applicant is accused of financing the administration of Mr L. Gbagbo, whereas, first, the applicant essentially carried out his functions with Mr L. Gbagbo at a time when the latter was recognised as legitimate head of state by the international community, and, second, the applicant did not have resources allowing him to finance the adminstration of Mr L. Gbagbo; |
| --- | --- | --- |

2.

Second plea in law, alleging manifest error of assessment, in so far as:

—

the applicant is accused of financing the administration of Mr L. Gbagbo, whereas, first, the applicant essentially carried out his functions with Mr L. Gbagbo at a time when the latter was recognised as legitimate head of state by the international community, and, second, the applicant did not have resources allowing him to finance the adminstration of Mr L. Gbagbo;

| — | the contested measures appear to be devoid of purpose since 11 April 2011, Mr L. Gbagbo having been captured on that date. |
| --- | --- |

—

the contested measures appear to be devoid of purpose since 11 April 2011, Mr L. Gbagbo having been captured on that date.

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/29 |
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16.7.2011

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Official Journal of the European Union

C 211/29

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Action brought on 23 May 2011 — Pangyrus v OHIM — RSVP Design (COLOURBLIND)

(Case T-257/11)

2011/C 211/62

Language in which the application was lodged: English

Parties

Applicant: Pangyrus Ltd (York, United Kingdom) (represented by: S. Clubb, Solicitor)

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

Other party to the proceedings before the Board of Appeal: RSVP Design Ltd (Renfrewshire, United Kingdom)

Form of order sought

| — | Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 23 March 2011 in case R 751/2009-4; |
| --- | --- |

—

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 23 March 2011 in case R 751/2009-4;

| — | Restore the decision of the Cancellation Division of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 12 May 2009; and |
| --- | --- |

—

Restore the decision of the Cancellation Division of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 12 May 2009; and

| — | Award the costs in favour of the applicant. |
| --- | --- |

—

Award the costs in favour of the applicant.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The word mark ‘COLOURBLIND’, for goods and services in classes 9, 16, 28, 35 and 41 — Community trade mark registration No 3337979

Proprietor of the Community trade mark: The other party to the proceedings before the Board of Appeal

Applicant for the declaration of invalidity of the Community trade mark: The applicant

Grounds for the application for a declaration of invalidity: The party requesting the declaration of invalidity based its request on two grounds, namely Article 53(1)(c) in conjunction with Article 8(4) of Council Regulation (EC) No 207/2009, by invoking an earlier unregistered right protected under the law of passing-off in the United Kingdom, as well as on the existence of bad faith in accordance with Article 52(1)(b) of Council Regulation (EC) No 207/2009.

Decision of the Cancellation Division: Declared the Community trade mark registration invalid in its entirety

Decision of the Board of Appeal: Annulled the decision of the Cancellation Division and rejected the request for declaration of invalidity

Pleas in law: The applicant considers that the Board of Appeal erred in law in finding that: (i) the Community trade mark proprietor did not act in bad faith when it applied for the Community trade mark; and (ii) the applicant had failed to prove that it had used an earlier sign in the course of trade before the date in which the contested Community trade mark was applied for.

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/29 |
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16.7.2011

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C 211/29

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Action brought on 19 May 2011 — Spain v Commission

(Case T-260/11)

2011/C 211/63

Language of the case: Spanish

Parties

Applicant: Spain (represented by: N. Díaz Abad, Agent)

Defendant: European Commission

Form of order sought

| — | annul Commission Regulation (EU) No 165/2011 of 22 February 2011 providing for deductions from certain mackerel quotas allocated to Spain in 2011 and subsequent years on account of overfishing in 2010, and |
| --- | --- |

—

annul Commission Regulation (EU) No 165/2011 of 22 February 2011 providing for deductions from certain mackerel quotas allocated to Spain in 2011 and subsequent years on account of overfishing in 2010, and

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

The Annex to the contested regulation contains the penalty imposed on Spain for overfishing of mackerel in 2010 in zones VIIIc, IX and X in EU waters of CECAF 34.1.1, the quota being reduced by 39 242 tonnes, with reductions of 4 500 tonnes in 2011, 5 500 in 2012, 9 748 in 2013, 9 747 in 2014 and 9 747 in 2015 and ‘where appropriate ... in subsequent years’.

In support of the action, the applicant relies on six pleas in law.

| 1. | Infringement of Article 105(6) of Council Regulation (EC) No 1224/2009 of 20 November 2009 establishing a Community control system for ensuring compliance with the rules of the common fisheries policy, amending Regulations (EC) No 847/96, (EC) No 2371/2002, (EC) No 811/2004, (EC) No 768/2005, (EC) No 2115/2005, (EC) No 2166/2005, (EC) No 388/2006, (EC) No 509/2007, (EC) No 676/2007, (EC) No 1098/2007, (EC) No 1300/2008, (EC) No 1342/2008 and repealing Regulations (EEC) No 2847/93, (EC) No 1627/94 and (EC) No 1966/2006 (‘Regulation No 1224/2009’), in so far as the contested regulation was adopted before the Commission adopted the implementing regulation provided for in Article 105(6). |
| --- | --- |

1.

Infringement of Article 105(6) of Council Regulation (EC) No 1224/2009 of 20 November 2009 establishing a Community control system for ensuring compliance with the rules of the common fisheries policy, amending Regulations (EC) No 847/96, (EC) No 2371/2002, (EC) No 811/2004, (EC) No 768/2005, (EC) No 2115/2005, (EC) No 2166/2005, (EC) No 388/2006, (EC) No 509/2007, (EC) No 676/2007, (EC) No 1098/2007, (EC) No 1300/2008, (EC) No 1342/2008 and repealing Regulations (EEC) No 2847/93, (EC) No 1627/94 and (EC) No 1966/2006 (‘Regulation No 1224/2009’), in so far as the contested regulation was adopted before the Commission adopted the implementing regulation provided for in Article 105(6).

| 2. | Infringement of an essential procedural requirement in that there was no Management Committee report, given that until now measures to punish Member States for exceeding their quotas were adopted by means of a Commission Regulation following a prior report by the Management Committee. |
| --- | --- |

2.

Infringement of an essential procedural requirement in that there was no Management Committee report, given that until now measures to punish Member States for exceeding their quotas were adopted by means of a Commission Regulation following a prior report by the Management Committee.

| 3. | Infringement of the rights of the defence, since the contested regulation was adopted without the Kingdom of Spain having previously been heard. |
| --- | --- |

3.

Infringement of the rights of the defence, since the contested regulation was adopted without the Kingdom of Spain having previously been heard.

| 4. | Infringement of the principle of legal certainty, in so far as, in imposing the contested measure, the Commission left open the possibility of extending that penalty thereafter, over an unspecified number of years. |
| --- | --- |

4.

Infringement of the principle of legal certainty, in so far as, in imposing the contested measure, the Commission left open the possibility of extending that penalty thereafter, over an unspecified number of years.

| 5. | Infringement of the principle of legitimate expectations, since the contested regulation entered into force when the fishing year for mackerel had already begun. |
| --- | --- |

5.

Infringement of the principle of legitimate expectations, since the contested regulation entered into force when the fishing year for mackerel had already begun.

| 6. | Infringement of the principle of non-discrimination, in that the Commission applied the test relating to socio-economic consequences differently from how it has applied it in other comparable situations. |
| --- | --- |

6.

Infringement of the principle of non-discrimination, in that the Commission applied the test relating to socio-economic consequences differently from how it has applied it in other comparable situations.

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/30 |
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C 211/30

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Appeal brought on 21 May 2011 by Carlo De Nicola against the judgment of the Civil Service Tribunal of 8 March 2011 in Case F-59/09, De Nicola v EIB

(Case T-264/11 P)

2011/C 211/64

Language of the case: Italian

Parties

Appellant: Carlo De Nicola (Strassen, Luxembourg) (represented by L. Isola, lawyer)

Other party to the proceedings: European Investment Bank

Form of order sought by the appellant

The appellant claims that the Court should, acting as an appeal court and dismissing the submissions of the other party to the proceedings, reverse the judgment under appeal in part, grant the application for measures of inquiry and the outstanding heads of claim in the administrative appeal and order the EIB to pay the costs of the appeal proceedings.

Pleas in law and main arguments

In support of the appeal, the appellant relies on 7 pleas in law.

The application for annulment

| 1. | With regard to the application for annulment of Memorandum No HR/Coord/2008-0038/BK of 22 September 2008, the appellant claims that the Civil Service Tribunal totally ignored that document, even though it referred to the EIB’s defence, according to which it is legitimate to choose not to provide the employee with a copy of the sound recording of the meeting of the Appeals Committee or of the formal minutes of the meeting, so that, in conclusion, the EIB is free to distort the facts because it is impossible to adduce evidence in rebuttal. |
| --- | --- |

1.

With regard to the application for annulment of Memorandum No HR/Coord/2008-0038/BK of 22 September 2008, the appellant claims that the Civil Service Tribunal totally ignored that document, even though it referred to the EIB’s defence, according to which it is legitimate to choose not to provide the employee with a copy of the sound recording of the meeting of the Appeals Committee or of the formal minutes of the meeting, so that, in conclusion, the EIB is free to distort the facts because it is impossible to adduce evidence in rebuttal.

| 2. | The appellant none the less sought annulment of the decision of the Appeals Committee.
  The Civil Service Tribunal, in line with the procedure under Article 90 of the Staff Regulations, held that the fact that the application (made first in the administrative procedure and then before the Tribunal) is the same entitled it to examine only the latter and to consider that the former as being completely encompassed within the latter. The appellant disputes that Article 90 of the Staff Regulations is applicable and claims the right to a declaration of annulment, because the document in question forms part of his personal file and could have an adverse effect on his future career. |
| --- | --- |

2.

The appellant none the less sought annulment of the decision of the Appeals Committee.

The Civil Service Tribunal, in line with the procedure under Article 90 of the Staff Regulations, held that the fact that the application (made first in the administrative procedure and then before the Tribunal) is the same entitled it to examine only the latter and to consider that the former as being completely encompassed within the latter. The appellant disputes that Article 90 of the Staff Regulations is applicable and claims the right to a declaration of annulment, because the document in question forms part of his personal file and could have an adverse effect on his future career.

| 3. | Finally, the Civil Service Tribunal rejected the application for annulment of the promotions on the basis that it was out of time. The appellant submits that that decision was unlawful on four grounds. |
| --- | --- |

3.

Finally, the Civil Service Tribunal rejected the application for annulment of the promotions on the basis that it was out of time. The appellant submits that that decision was unlawful on four grounds.

The application for a declaration

| 4. | The appellant sought a declaration from the Tribunal that the harassment to which he has been subjected for 18 years should be considered as a whole and fulfils all the criteria of what has been identified by academic legal writing and employment case-law as mobbing. The appellant claims that the document entitled ‘Policy of respect for an individual’s dignity in the workplace’ (which does not even define mobbing) is inadequate and disputes the decision of the Civil Service Tribunal, which held that the application was inadmissible, since it sought findings of principle or orders against the EIB which the Tribunal is not entitled to make. In fact, the appellant maintains that his application was misconstrued, because he sought a declaration that he had been subjected to abuse by a number of employees, a determination as to whether that harassment, considered as a whole, constituted the offence which is summarised by the term mobbing, and a finding that the EIB was liable for that conduct, as agent. |
| --- | --- |

4.

The appellant sought a declaration from the Tribunal that the harassment to which he has been subjected for 18 years should be considered as a whole and fulfils all the criteria of what has been identified by academic legal writing and employment case-law as mobbing. The appellant claims that the document entitled ‘Policy of respect for an individual’s dignity in the workplace’ (which does not even define mobbing) is inadequate and disputes the decision of the Civil Service Tribunal, which held that the application was inadmissible, since it sought findings of principle or orders against the EIB which the Tribunal is not entitled to make. In fact, the appellant maintains that his application was misconstrued, because he sought a declaration that he had been subjected to abuse by a number of employees, a determination as to whether that harassment, considered as a whole, constituted the offence which is summarised by the term mobbing, and a finding that the EIB was liable for that conduct, as agent.

| 5. | The appellant also challenges the judgment under appeal in so far as the Civil Service Tribunal, in breach of Article 41 of the Staff Regulations, claimed that it was necessary, which was not the case, to have recourse to analogy and itself created a set of rules applicable to the EIB, in breach of its right of self-determination. |
| --- | --- |

5.

The appellant also challenges the judgment under appeal in so far as the Civil Service Tribunal, in breach of Article 41 of the Staff Regulations, claimed that it was necessary, which was not the case, to have recourse to analogy and itself created a set of rules applicable to the EIB, in breach of its right of self-determination.

| 6. | Moreover, the Civil Service Tribunal incorrectly applied to a private employment contract rules which are instead laid down only for civil servants and, what is worse, claimed to be entitled to apply to tortious acts committed by certain employees the rules governing administrative acts. |
| --- | --- |

6.

Moreover, the Civil Service Tribunal incorrectly applied to a private employment contract rules which are instead laid down only for civil servants and, what is worse, claimed to be entitled to apply to tortious acts committed by certain employees the rules governing administrative acts.

The application for orders to be made

| 7. | The appellant sought three orders, namely that the EIB should be ordered to: (1) desist from the mobbing; (2) pay compensation for the personal, material and non-material damage; and (3) pay the costs of the proceedings.
  The Tribunal failed to rule on the first claim.
  It rejected the second claim after misconstruing it, because the appellant claimed compensation as a result of the unlawful conduct on the part of the EIB, irrespective of the manner in which that conduct may classified when the request that the claim be viewed as a whole is considered.
  In any event, the appellant does not consider the claim to be inadmissible on the ground that there is no ‘act capable of causing injury’ to which a claim for compensation could be linked, since the employment relationship is private and what is at issue here are not administrative acts but tortious act.
  The third claim was rejected by the Tribunal on the incorrect assumption that the appellant had not applied for the EIB to pay the costs of the proceedings. |
| --- | --- |

7.

The appellant sought three orders, namely that the EIB should be ordered to: (1) desist from the mobbing; (2) pay compensation for the personal, material and non-material damage; and (3) pay the costs of the proceedings.

The Tribunal failed to rule on the first claim.

It rejected the second claim after misconstruing it, because the appellant claimed compensation as a result of the unlawful conduct on the part of the EIB, irrespective of the manner in which that conduct may classified when the request that the claim be viewed as a whole is considered.

In any event, the appellant does not consider the claim to be inadmissible on the ground that there is no ‘act capable of causing injury’ to which a claim for compensation could be linked, since the employment relationship is private and what is at issue here are not administrative acts but tortious act.

The third claim was rejected by the Tribunal on the incorrect assumption that the appellant had not applied for the EIB to pay the costs of the proceedings.

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/31 |
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Action brought on 24 May 2011 — Video Research USA/OHMI (VR)

(Case T-267/11)

2011/C 211/65

Language of the case: English

Parties

Applicant: Video Research USA, Inc. (New York, U.S.A.) (represented by: B. Brandreth, Barrister)

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

Form of order sought

| — | Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 8 March 2011 in case R 1187/2010-2; |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 8 March 2011 in case R 1187/2010-2;

| — | Remit the case to the Office for Harmonisation in the Internal Market (Trade Marks and Designs) with a recommendation that restitutio in integrum be granted in respect of community trade mark application No 919324; |
| --- | --- |

—

Remit the case to the Office for Harmonisation in the Internal Market (Trade Marks and Designs) with a recommendation that restitutio in integrum be granted in respect of community trade mark application No 919324;

| — | Order the defendant to pay the costs incurred before the Board of Appeal and the General Court. |
| --- | --- |

—

Order the defendant to pay the costs incurred before the Board of Appeal and the General Court.

Pleas in law and main arguments

Community trade mark concerned: The figurative mark ‘VR’ — Community trade mark registration No 919324

Decision of the Trade Marks and Register Department: Rejected the request for restitutio in integrum and confirmed the cancellation of the Community trade mark registration No 919324

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 81 of Council Regulation No 207/2009, as the Board of Appeal erred in the application of this article and in its assessment of the facts in holding that the applicant’s representatives had failed to exercise due care in the circumstances.

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/31 |
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16.7.2011

EN

Official Journal of the European Union

C 211/31

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Action brought on 23 May 2011 — Xeda International/Commission

(Case T-269/11)

2011/C 211/66

Language of the case: English

Parties

Applicant: Xeda International SA (Saint Andiol, France) (represented by: C. Mereu and K. Van Maldegem, lawyers)

Defendant: European Commission

Form of order sought

| — | Declare the Application admissible and well-founded. |
| --- | --- |

—

Declare the Application admissible and well-founded.

| — | Annul the Contested Decision. |
| --- | --- |

—

Annul the Contested Decision.

| — | Order the Defendant to pay the costs and expenses of these proceedings. |
| --- | --- |

—

Order the Defendant to pay the costs and expenses of these proceedings.

Pleas in law and main arguments

The Applicant seeks the annulment of Commission Decision 2011/143/EU of 3 March 2011 concerning the non-inclusion of ethoxyquin in Annex I to Council Directive 91/414/EEC and amending Commission Decision 2008/941/EC (OJ L 59, p. 71).

As a result of the contested Decision, the entry for ethoxyquin in Decision 2008/941/EC has been deleted and ethoxyquin shall not be included as an active substance in Annex I to Directive 91/414/EEC. As a result, the applicant will no longer be allowed to produce and sell ethoxyquin and ethoxyquin-based products in the European Union and will lose its product registrations in the Member States as of 3 September 2011.

In support of the action, the applicant relies on three pleas in law.

| 1. | First plea in law, alleging a manifest error of assessment. According to the applicant, the contested Decision effectively bans the use of ethoxyquin in plant protection products on the basis of a scientific concern and alleged data gaps mentioned in recital 6 thereof, each of which was either adequately addressed by the applicant or was not a concern justifying non-inclusion. |
| --- | --- |

1.

First plea in law, alleging a manifest error of assessment. According to the applicant, the contested Decision effectively bans the use of ethoxyquin in plant protection products on the basis of a scientific concern and alleged data gaps mentioned in recital 6 thereof, each of which was either adequately addressed by the applicant or was not a concern justifying non-inclusion.

| 2. | Second plea in law, alleging an infringement of the applicant’s right of defence and essential procedural requirements. According to the applicant the contested Decision infringes the applicant’s right of defence and its right to a fair hearing by failing to give the applicant sufficient opportunity and time to address concerns raised late in the procedure, and failing to carefully consider its comments in relation to alleged data gaps. |
| --- | --- |

2.

Second plea in law, alleging an infringement of the applicant’s right of defence and essential procedural requirements. According to the applicant the contested Decision infringes the applicant’s right of defence and its right to a fair hearing by failing to give the applicant sufficient opportunity and time to address concerns raised late in the procedure, and failing to carefully consider its comments in relation to alleged data gaps.

| 3. | Third plea in law, alleging breaches of fundamental principles of EU law.






  — | The applicant submits that the contested Decision was adopted in breach of the principle of legal certainty and the applicant’s legitimate expectations arising out of the resubmission procedure under Commission Regulation (EC) No 33/2008 of 17 January 2008. |
| --- | --- | --- |

3.

Third plea in law, alleging breaches of fundamental principles of EU law.

—

The applicant submits that the contested Decision was adopted in breach of the principle of legal certainty and the applicant’s legitimate expectations arising out of the resubmission procedure under Commission Regulation (EC) No 33/2008 of 17 January 2008.

| — | The applicant also submits that the contested Decision is disproportionate given the choice of measures available to the Commission and the disadvantages caused in relation to the aims pursued. |
| --- | --- |

—

The applicant also submits that the contested Decision is disproportionate given the choice of measures available to the Commission and the disadvantages caused in relation to the aims pursued.

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European Union Civil Service Tribunal

| 16.7.2011 | EN | Official Journal of the European Union | C 211/33 |
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16.7.2011

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Official Journal of the European Union

C 211/33

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Action brought on 4 April 2011 — ZZ v European Parliament

(Case F-35/11)

2011/C 211/67

Language of the case: Slovak

Parties

Applicant(s): ZZ (represented by: J. Rybánsky, lawyer)

Defendant: European Parliament

Subject-matter and description of the proceedings

Annulment of the decision of the defendant to grant the applicant only half of the installation allowance to which he should be entitled.

Form of order sought

| — | Annul the decision of the European Parliament (Individual Entitlements Unit) of 28 May 2010 on the grant of the installation allowance to the applicant in so far as it fixes the installation allowance at only one month’s basic salary and does not grant an installation allowance of two months’ basic salary; |
| --- | --- |

—

Annul the decision of the European Parliament (Individual Entitlements Unit) of 28 May 2010 on the grant of the installation allowance to the applicant in so far as it fixes the installation allowance at only one month’s basic salary and does not grant an installation allowance of two months’ basic salary;

| — | Annul the decision of the Secretary-General of the European Parliament of 6 January 2011 which rejects the complaint lodged by the applicant under Article 90(2) of the Staff Regulations of Officials of the European Union; |
| --- | --- |

—

Annul the decision of the Secretary-General of the European Parliament of 6 January 2011 which rejects the complaint lodged by the applicant under Article 90(2) of the Staff Regulations of Officials of the European Union;

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

—

Order the Parliament to pay the costs.

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/33 |
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16.7.2011

EN

Official Journal of the European Union

C 211/33

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Action brought on 23 May 2011 — ZZ v Commission

(Case F-57/11)

2011/C 211/68

Language of the case: Italian

Parties

Applicant: ZZ (represented by: B. Cortese and C. Cortese, lawyers)

Defendant: European Commission

Subject-matter and description of the proceedings

Application for annulment of the Commission’s decision not to give effect to the applicant’s acceptance of the post of probationary official (assistant) with the Joint Research Centre as technical assistant offered to him by the Commission and a claim for compensation for material and non-material damage.

Form of order sought

| — | Annul the Commission’s decision contained in the letter of 5 August 2010 not to give effect to the applicant’s acceptance of the post of probationary official (assistant) with the Joint Research Centre in Ispra as technical assistant offered to him by the Commission by decision contained in the letter of 30 July 2010, sent to him by e-mail on 30 July 2010, and to withdraw that offer; |
| --- | --- |

—

Annul the Commission’s decision contained in the letter of 5 August 2010 not to give effect to the applicant’s acceptance of the post of probationary official (assistant) with the Joint Research Centre in Ispra as technical assistant offered to him by the Commission by decision contained in the letter of 30 July 2010, sent to him by e-mail on 30 July 2010, and to withdraw that offer;

| — | Annul, in so far as necessary, all acts preparatory to the contested decision; |
| --- | --- |

—

Annul, in so far as necessary, all acts preparatory to the contested decision;

| — | Annul, in so far as necessary, the decision of the Appointing Authority to reject the applicant’s complaint contained in the letter of 10 February 2011, sent to the applicant the following day; |
| --- | --- |

—

Annul, in so far as necessary, the decision of the Appointing Authority to reject the applicant’s complaint contained in the letter of 10 February 2011, sent to the applicant the following day;

| — | Order the Commission to pay compensation for the material damage arising from the decision not to give effect to the applicant’s acceptance of the post of probationary official (assistant) with the Joint Research Centre in Ispra as technical assistant offered to him by the Commission by decision contained in the letter of 30 July 2010; the damage is assessed on a provisional basis as the difference between the total actual remuneration received by the applicant in his position as temporary agent with the Joint Research Centre and that to which he would have been entitled if he had been engaged in due time following his acceptance of the offer of a post as official in step 1 of Grade AST 3, together with late payment interest. |
| --- | --- |

—

Order the Commission to pay compensation for the material damage arising from the decision not to give effect to the applicant’s acceptance of the post of probationary official (assistant) with the Joint Research Centre in Ispra as technical assistant offered to him by the Commission by decision contained in the letter of 30 July 2010; the damage is assessed on a provisional basis as the difference between the total actual remuneration received by the applicant in his position as temporary agent with the Joint Research Centre and that to which he would have been entitled if he had been engaged in due time following his acceptance of the offer of a post as official in step 1 of Grade AST 3, together with late payment interest.

| — | Order the Commission to pay compensation for the non-material damage arising from the decision not to give effect to the applicant’s acceptance of the post of probationary official (assistant) with the Joint Research Centre in Ispra as technical assistant offered to him by the Commission in the decision in question contained in the letter of 30 July 2010, to be determined ex aequo et bono by the Civil Service Tribunal, assessed on a provisional basis for the purpose of this application at three times the basic monthly salary of an official in step 1 of Grade AST 3, in the total amount of EUR 10 001,31. |
| --- | --- |

—

Order the Commission to pay compensation for the non-material damage arising from the decision not to give effect to the applicant’s acceptance of the post of probationary official (assistant) with the Joint Research Centre in Ispra as technical assistant offered to him by the Commission in the decision in question contained in the letter of 30 July 2010, to be determined ex aequo et bono by the Civil Service Tribunal, assessed on a provisional basis for the purpose of this application at three times the basic monthly salary of an official in step 1 of Grade AST 3, in the total amount of EUR 10 001,31.

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

—

Order the Commission to pay the costs.

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/34 |
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16.7.2011

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Official Journal of the European Union

C 211/34

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Action brought on 23 May 2011 — ZZ v European Investment Bank

(Case F-58/11)

2011/C 211/69

Language of the case: French

Parties

Applicant(s): ZZ (represented by: B. Cortese, C. Cortese and F. Spitaleri, lawyers)

Defendant: European Investment Bank

Subject-matter and description of the proceedings

Annulment of the decisions of the EIB to increase the contributions of the applicants to the pensions system, and reparation of the non-material harm suffered by the applicants.

Form of order sought

| — | Annul the decisions of the European Investment Bank as set out in the applicants’ salary slips for February 2011, which increase the applicants’ contribution to the pensions system, by increasing the basis for calculation (the salary subject to deduction) of that contribution, on the one hand, and of the calculation coefficient, expressed as a percentage of that salary subject to deduction, on the other. |
| --- | --- |

—

Annul the decisions of the European Investment Bank as set out in the applicants’ salary slips for February 2011, which increase the applicants’ contribution to the pensions system, by increasing the basis for calculation (the salary subject to deduction) of that contribution, on the one hand, and of the calculation coefficient, expressed as a percentage of that salary subject to deduction, on the other.

| — | Order the Bank to pay a symbolic sum of EUR 1, by way of compensation for the non-material harm suffered by the applicants; |
| --- | --- |

—

Order the Bank to pay a symbolic sum of EUR 1, by way of compensation for the non-material harm suffered by the applicants;

| — | Order the European Investment Bank to pay the costs. |
| --- | --- |

—

Order the European Investment Bank to pay the costs.

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/34 |
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16.7.2011

EN

Official Journal of the European Union

C 211/34

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Action brought on 24 May 2011 — ZZ v OHIM

(Case F-59/11)

2011/C 211/70

Language of the case: French

Parties

Applicant(s): ZZ (represented by: R. Adam and P. Ketter, lawyers)

Defendant: OHIM

Subject-matter and description of the proceedings

First, annulment of the decision refusing a second renewal of the applicant’s initial contract as a member of the temporary staff and, second, annulment of his new contract as a member of the temporary staff, and damages.

Form of order sought

| — | Annul the decision of the President of OHIM of 29 September 2010 refusing a second renewal of his contract as a member of the temporary staff initially concluded on 16 July 2005; |
| --- | --- |

—

Annul the decision of the President of OHIM of 29 September 2010 refusing a second renewal of his contract as a member of the temporary staff initially concluded on 16 July 2005;

| — | Annul the fixed term contract as a member of the temporary staff concluded on 1 August 2010 in so far as that contract in fact constitutes a second renewal of the initial contract referred to above; |
| --- | --- |

—

Annul the fixed term contract as a member of the temporary staff concluded on 1 August 2010 in so far as that contract in fact constitutes a second renewal of the initial contract referred to above;

| — | Annul the decision of the President of OHIM of 18 February 2011; |
| --- | --- |

—

Annul the decision of the President of OHIM of 18 February 2011;

| — | Declare the existence of an employment relationship of indefinite duration; |
| --- | --- |

—

Declare the existence of an employment relationship of indefinite duration;

| — | Otherwise, annul the legal classification of the initial contract concluded on 16 July 2005 and of its end date, fixed, after renewal, at 16 July 2010, and reclassify it as employment on a contract of indefinite duration or declare that the applicant’s employment is of indefinite duration; |
| --- | --- |

—

Otherwise, annul the legal classification of the initial contract concluded on 16 July 2005 and of its end date, fixed, after renewal, at 16 July 2010, and reclassify it as employment on a contract of indefinite duration or declare that the applicant’s employment is of indefinite duration;

| — | Order the defendant to make good the material and non-material loss suffered by the applicant through the conduct of OHIM, fixed provisionally, without obligation and without prejudice inter alia to possible increase during proceedings, at EUR 6 113,79 for the material loss and EUR 30 000,00 for the non-material loss; |
| --- | --- |

—

Order the defendant to make good the material and non-material loss suffered by the applicant through the conduct of OHIM, fixed provisionally, without obligation and without prejudice inter alia to possible increase during proceedings, at EUR 6 113,79 for the material loss and EUR 30 000,00 for the non-material loss;

| — | In the alternative and if, contrary to all probability, the Tribunal should conclude that, despite the conclusion of a contract of employment of indefinite duration, the employment relationship ended on 16 July 2010 — quod non — grant damages for wrongful termination of contract; |
| --- | --- |

—

In the alternative and if, contrary to all probability, the Tribunal should conclude that, despite the conclusion of a contract of employment of indefinite duration, the employment relationship ended on 16 July 2010 — quod non — grant damages for wrongful termination of contract;

| — | In the further alternative, and if, contrary to all probability, the Tribunal should conclude that no reclassification or declaration of employment of indefinite duration was possible — quod non — grant damages for the loss suffered through the wrongful conduct of OHIM; |
| --- | --- |

—

In the further alternative, and if, contrary to all probability, the Tribunal should conclude that no reclassification or declaration of employment of indefinite duration was possible — quod non — grant damages for the loss suffered through the wrongful conduct of OHIM;

| — | Reserve to the applicant all rights, remedies, means and actions, and, in particular, an order that OHIM pay damages commensurate with the loss suffered; |
| --- | --- |

—

Reserve to the applicant all rights, remedies, means and actions, and, in particular, an order that OHIM pay damages commensurate with the loss suffered;

| — | Reserve to the applicant the right to adduce by any means offered by the law and, in particular, by the hearing of witnesses, evidence of the facts of the case; |
| --- | --- |

—

Reserve to the applicant the right to adduce by any means offered by the law and, in particular, by the hearing of witnesses, evidence of the facts of the case;

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

—

Order OHIM to pay the costs.

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| 16.7.2011 | EN | Official Journal of the European Union | C 211/35 |
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16.7.2011

EN

Official Journal of the European Union

C 211/35

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Action brought on 25 May 2011 — ZZ v ECB

(Case F-60/11)

2011/C 211/71

Language of the case: english

Parties

Applicant: ZZ (represented by: L. Levi and M. Vandenbussche, lawyers)

Defendant: European Central Bank

Subject-matter and description of the proceedings

The annulment of the ECB's decision confirming its previous decision to suspend the applicant with effect from 5 August 2010 and the claim for damages.

Form of order sought

The applicant claims that the Court should:

| — | Annul the decision of the ECB dated 23 November 2010 confirming the decision of 4 August 2010 to suspend the Appellant and, if necessary, of the decision of 15 March 2011 rejecting the special appeal; |
| --- | --- |

—

Annul the decision of the ECB dated 23 November 2010 confirming the decision of 4 August 2010 to suspend the Appellant and, if necessary, of the decision of 15 March 2011 rejecting the special appeal;

| — | as a consequence, order the full reinstatement of the Appellant in his function with the appropriate publicity in order to restore his good name; |
| --- | --- |

—

as a consequence, order the full reinstatement of the Appellant in his function with the appropriate publicity in order to restore his good name;

| — | in any case, order the compensation of the moral prejudice suffered by the Appellant evaluated ex aequo et bono at 20 000,00 EUR; |
| --- | --- |

—

in any case, order the compensation of the moral prejudice suffered by the Appellant evaluated ex aequo et bono at 20 000,00 EUR;

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

—

order the ECB to pay the costs.

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