# Official Journal C 303/2012

| | ISSN 1977-091X
  doi:10.3000/1977091X.C_2012.303.eng |
| --- | --- |
| Official Journal
  of the European Union | C 303 |
| | |
| English edition | Information and Notices | Volume 556 October 2012 |

ISSN 1977-091X

doi:10.3000/1977091X.C_2012.303.eng

Official Journal

of the European Union

C 303

English edition

Information and Notices

Volume 556 October 2012

---

| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | Court of Justice of the European Union |
| 2012/C 303/02 | Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 295, 29.9.2012 | 1 |
| | European Union Civil Service Tribunal |
| 2012/C 303/01 | Désignation du juge remplaçant le président du Tribunal en qualité de juge des référés | 2 |

Notice No

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

2012/C 303/02

Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 295, 29.9.2012

Official Journal of the European Union

1

European Union Civil Service Tribunal

2012/C 303/01

Désignation du juge remplaçant le président du Tribunal en qualité de juge des référés

2

| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2012/C 303/03 | Case C-21/11: Order of the Court of 7 June 2012 (reference for a preliminary ruling from the Commissione tributaria provinciale di Benevento — Italy) — Volturno Trasporti Sas di Santoro Nino e c. v Camera di Commercio di Benevento, Equitalia Polis SpA (Reference for a preliminary ruling — Manifest inadmissibility) | 3 |
| 2012/C 303/04 | Case C-198/11 P: Order of the Court (Sixth Chamber) of 11 May 2012 — Lan Airlines SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Air Nostrum, Líneas Aéreas de Mediterráneo SA (Appeal — Article 119 of the Rules of Procedure — Community trade mark — Regulation (EC) No 40/94 — Article 8(1)(b) — Community word mark LÍNEAS AÉREAS DEL MEDITERRÁNEO LAM — Application for registration — Opposition by the proprietor of the earlier Community word and figurative marks LAN — Rejection of the opposition — No likelihood of confusion — Appeal manifestly inadmissible) | 3 |
| 2012/C 303/05 | Case C-240/11 P: Order of the Court of 3 May 2012 — World Wide Tobacco España, SA v European Commission (Appeal — Competition — Agreements, decisions or concerted practices — The Spanish market for the purchase and first processing of raw tobacco — Price-fixing and market-sharing — Fines — Deterrent effect — Equal treatment — Mitigating circumstances — Maximum limit of 10 % of turnover — Cooperation) | 4 |
| 2012/C 303/06 | Case C-389/11 P: Order of the Court of 4 July 2012 — Région Nord-Pas-de-Calais v Communauté d’Agglomération du Douaisis, European Commission (Appeal — State aid — Construction of railway equipment — Decisions declaring aid incompatible with the common market and ordering its recovery) | 4 |
| 2012/C 303/07 | Case C-453/11 P: Order of the Court (Eighth Chamber) of 14 May 2012 — Timehouse GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Appeal — Community trade mark — Three-dimensional mark representing a watch — Refusal of registration — Lack of distinctiveness) | 4 |
| 2012/C 303/08 | Case C-466/11: Order of the Court (Third Chamber) of 12 July 2012 (reference for a preliminary ruling from the Tribunale ordinario di Brescia — Italy) — Gennaro Currà and Others v Bundesrepublik Deutschland (Reference for a preliminary ruling — Article 92(1) of the Rules of Procedure — Action brought by the victims of massacres against a Member State as the party liable for acts committed by its armed forces in wartime — Charter of Fundamental Rights of the European Union — Clear lack of jurisdiction of the Court) | 5 |
| 2012/C 303/09 | Case C-467/11 P: Order of the Court (First Chamber) of 5 July 2012 — Audi AG, Volkswagen AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Appeal — Community trade mark — Appeal which has become devoid of purpose — No need to adjudicate) | 5 |
| 2012/C 303/10 | Case C-477/11 P: Order of the Court of 14 May 2012 — Sepracor Pharmaceuticals (Ireland) Ltd v European Commission (Appeals — Regulation (EC) No 726/2004 — Medicinal products for human use — Active substance eszopiclone — Marketing authorisation — Procedure — Statement of position by the Commission — Status of new active substance — Concept of actionable measure) | 6 |
| 2012/C 303/11 | Case C-582/11 P: Order of the Court (Eighth Chamber) of 10 July 2012 — Rügen Fisch AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Schwaaner Fischwaren GmbH (Appeal — Regulation (EC) No 40/94 — Article 7(1) and (2) — Community trade mark — Word mark SCOMBER MIX — Absolute ground for invalidity — Descriptive character) | 6 |
| 2012/C 303/12 | Case C-599/11 P: Order of the Court (Fifth Chamber) of 28 June 2012 — TofuTown.com GmbH; other parties to the proceedings: Meica Ammerländische Fleischwarenfabrik Fritz Meinen GmbH & Co. KG, Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Appeal — Article 119 of the Rules of Procedure — Community trade mark — Application for registration of the word sign TOFUKING — Opposition by the proprietor of the trade mark Curry King — Regulation (EC) No 207/2009 — Article 8(1)(b) — Likelihood of confusion — Degree of similarity) | 6 |
| 2012/C 303/13 | Case C-16/12: Order of the Court (Seventh Chamber) of 6 July 2012 (reference for a preliminary ruling from the Gyulai Törvényszék — Hungary) — HERMES Hitel és Faktor Zrt v Nemzeti Földalapkezelő Szervezet (Reference for a preliminary ruling — General principles of European Union law — Forestry Act — Lack of connection to European Union law — Clear lack of jurisdiction of the Court) | 7 |
| 2012/C 303/14 | Case C-25/12 P: Order of the Court of 4 July 2012 — Gino Trevisanato v European Commission (Appeal — Article 119 of the Rules of Procedure — Application seeking an order that the Commission take a position concerning the interpretation and the transposition of a directive — Manifest inadmissibility) | 7 |
| 2012/C 303/15 | Case C-73/12: Order of the Court (Fifth Chamber) of 4 July 2012 (reference for a preliminary ruling from the Giudice di Pace di Revere — Italy) — Criminal proceedings against Ahmed Ettaghi (Reference for a preliminary ruling — No description of the dispute in the main proceedings — Manifest inadmissibility) | 8 |
| 2012/C 303/16 | Case C-74/12: Order of the Court (Fifth Chamber) of 4 July 2012 — (reference for a preliminary ruling from the Giudice di Pace di Revere — Italy) — Criminal proceedings against Abd Aziz Tam (Reference for a preliminary ruling — No description of the dispute in the main proceedings — Manifest inadmissibility) | 8 |
| 2012/C 303/17 | Case C-75/12: Order of the Court (Fifth Chamber) of 4 July 2012 (reference for a preliminary ruling from the Giudice di Pace di Revere — Italy) — Criminal proceedings against Majali Abdel (Reference for a preliminary ruling — No description of the main proceedings — manifestly inadmissible) | 8 |
| 2012/C 303/18 | Case C-134/12: Order of the Court (Sixth Chamber) of 10 May 2012 (reference for a preliminary ruling from the Curtea de Apel Constanța, Romania) — Ministerul Administrației și Internelor, Inspectoratul General al Poliției Române, Inspectoratul de Poliție al Județului Tulcea v Corpul Național al Polițiștilor — Biroul Executiv Central (Reference for a preliminary ruling — Charter of Fundamental Rights of the European Union — European Convention on the Protection of Human Rights and Fundamental Freedoms — Validity of national legislation imposing salary reductions on a number of categories of civil servants — Failure to implement European Union law — Clear lack of jurisdiction of the Court of Justice) | 9 |
| 2012/C 303/19 | Case C-156/12: Order of the Court (Sixth Chamber) of 13 June 2012 (reference for a preliminary ruling from the Landesgericht Salzburg — Austria) — GREP GmbH v Freitstaat Bayern (First subparagraph of Article 104(3) of the Rules of Procedure — Charter of Fundamental Rights of the European Union — Articles 47 and 51(1) — Implementation of European Union law — Action against a decision holding that a ruling delivered in another Member State ordering enforcement procedures was enforceable — Effective judicial protection — Right of access to courts — Legal aid — National legislation refusing legal aid to legal persons) | 9 |
| 2012/C 303/20 | Case C-238/12 P: Appeal brought on 16 May 2012 by FLSmidth & Co. A/S against the judgment of the General Court (Fourth Chamber) delivered on 6 March 2012 in Case T-65/06: FLSmidth & Co. A/S v European Commission | 10 |
| 2012/C 303/21 | Case C-287/12 P: Appeal brought on 7 June 2012 by Ryanair Ltd against the judgment of the General Court (Fifth Chamber) delivered on 28 March 2012 in Case T-123/09: Ryanair Ltd v European Commission | 11 |
| 2012/C 303/22 | Case C-294/12 P: Appeal brought on 11 June 2012 by You-Q BV against the judgment of the General Court (Eighth Chamber) delivered on 29 March 2012 in Case T-369/10: You-Q BV v Office for Harmonisation in the Internal Market (Trade Marks and Designs) | 12 |
| 2012/C 303/23 | Case C-314/12: Reference for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 29 June 2012 — UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH, Munich (Germany), Wega Filmproduktionsgesellschaft mbH | 12 |
| 2012/C 303/24 | Case C-324/12: Reference for a preliminary ruling from the Handelsgericht Wien (Austria) lodged on 9 July 2012 — Novontech-Zala Kft v LOGICDATA Electronic & Software Entwicklungs GmbH | 13 |
| 2012/C 303/25 | Case C-326/12: Reference for a preliminary ruling from the Finanzgericht Düsseldorf (Germany) lodged on 10 July 2012 — Rita van Caster, Patrick van Caster v Finanzamt Essen-Süd | 13 |
| 2012/C 303/26 | Case C-328/12: Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 11 July 2012 — Ralph Schmidt (in his capacity as liquidator in respect of the assets of Aletta Zimmerman) v Lilly Hertel | 14 |
| 2012/C 303/27 | Case C-335/12: Action brought on 13 July 2012 — European Commission v Portuguese Republic | 14 |
| 2012/C 303/28 | Case C-343/12: Reference for a preliminary ruling from the Rechtbank van Koophandel te Gent (Belgium) lodged on 19 July 2012 — Euronics Belgium CVBA v Kamera Express BV & Kamera Express Belgium BVBA | 16 |
| 2012/C 303/29 | Case C-350/12 P: Appeal brought on 24 July 2012 by Council of the European Union against the judgment of the General Court (Fifth Chamber) delivered on 4 May 2012 in Case T-529/09: Sophie in ’t Veld v Council of the European Union | 16 |
| 2012/C 303/30 | Case C-364/12: Reference for a preliminary ruling from the Audiencia Provincial de Barcelona (Spain), lodged on 1 August 2012 — Miguel Fradera Torredemer and Others v Corporación Uniland, S.A. | 17 |
| 2012/C 303/31 | Case C-370/12: Reference for a preliminary ruling from Supreme Court (Ireland) made on 3 August 2012 — Thomas Pringle v Government of Ireland, Ireland and the Attorney General | 18 |
| 2012/C 303/32 | Case C-372/12: Reference for a preliminary ruling from the Raad van State (Netherlands), lodged on 3 August 2012 — Minister voor Immigratie, Integratie en Asiel, other parties: M. and S. | 18 |
| 2012/C 303/33 | Case C-379/12 P: Appeal brought on 7 August 2012 by Arav Holding Srl against the judgment of the General Court (Second Chamber) delivered on 19 June 2012 in Case T-557/10 H.Eich v OHIM — Arav (H.EICH) | 19 |
| 2012/C 303/34 | Case C-380/12: Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands), lodged on 8 August 2012 — X BV, other party: Minister van Financiën | 20 |
| 2012/C 303/35 | Case C-381/12 P: Appeal brought on 9 August 2012 by I Marchi Italiani Srl against the judgment of the General Court (Sixth Chamber) delivered on 28 June 2012 in Case T-133/09 I Marchi Italiani and Basile v OHIM — Osra | 20 |
| 2012/C 303/36 | Case C-298/11: Order of the President of the Court of 9 July 2012 (reference for a preliminary ruling from the Administrativen sad Varna — Bulgaria) — Dobrudzhanska petrolna kompania AD v Direktor na Direktsia Obzhalvane i upravlenie na izpalnenieto — gr. Varna, pri Tsentralno upravlenie na Natsionalnata Agentsia po Prihodite | 21 |
| 2012/C 303/37 | Case C-353/11: Order of the President of the Court of 11 July 2012 — European Commission v Czech Republic | 21 |
| 2012/C 303/38 | Case C-503/11 P: Order of the President of the Court of 8 May 2012 — ThyssenKrupp Elevator (CENE) GmbH, formerly ThyssenKrupp Aufzüge GmbH, ThyssenKrupp Fahrtreppen GmbH v European Commission | 21 |
| 2012/C 303/39 | Case C-504/11 P: Order of the President of the Court of 8 May 2012 — ThyssenKrupp Ascenseurs Luxemburg Sàrl v European Commission | 21 |
| 2012/C 303/40 | Case C-505/11 P: Order of the President of the Court of 8 May 2012 — ThyssenKrupp Elevator AG v European Commission | 21 |
| 2012/C 303/41 | Case C-506/11 P: Order of the President of the Court of 8 May 2012 — ThyssenKrupp AG v European Commission | 21 |
| 2012/C 303/42 | Case C-39/12: Order of the President of the Court of 18 June 2012 — (reference for a preliminary ruling from the Bundesgerichtshof — Germany) — Criminal proceedings against Vu Thang Dang, interested party: Generalbundesanwalt beim Bundesgerichtshof | 21 |
| | General Court |
| 2012/C 303/43 | Case T-333/12: Action brought on 25 July 2012 — Soltau v Commission | 22 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2012/C 303/03

Case C-21/11: Order of the Court of 7 June 2012 (reference for a preliminary ruling from the Commissione tributaria provinciale di Benevento — Italy) — Volturno Trasporti Sas di Santoro Nino e c. v Camera di Commercio di Benevento, Equitalia Polis SpA (Reference for a preliminary ruling — Manifest inadmissibility)

3

2012/C 303/04

Case C-198/11 P: Order of the Court (Sixth Chamber) of 11 May 2012 — Lan Airlines SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Air Nostrum, Líneas Aéreas de Mediterráneo SA (Appeal — Article 119 of the Rules of Procedure — Community trade mark — Regulation (EC) No 40/94 — Article 8(1)(b) — Community word mark LÍNEAS AÉREAS DEL MEDITERRÁNEO LAM — Application for registration — Opposition by the proprietor of the earlier Community word and figurative marks LAN — Rejection of the opposition — No likelihood of confusion — Appeal manifestly inadmissible)

3

2012/C 303/05

Case C-240/11 P: Order of the Court of 3 May 2012 — World Wide Tobacco España, SA v European Commission (Appeal — Competition — Agreements, decisions or concerted practices — The Spanish market for the purchase and first processing of raw tobacco — Price-fixing and market-sharing — Fines — Deterrent effect — Equal treatment — Mitigating circumstances — Maximum limit of 10 % of turnover — Cooperation)

4

2012/C 303/06

Case C-389/11 P: Order of the Court of 4 July 2012 — Région Nord-Pas-de-Calais v Communauté d’Agglomération du Douaisis, European Commission (Appeal — State aid — Construction of railway equipment — Decisions declaring aid incompatible with the common market and ordering its recovery)

4

2012/C 303/07

Case C-453/11 P: Order of the Court (Eighth Chamber) of 14 May 2012 — Timehouse GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Appeal — Community trade mark — Three-dimensional mark representing a watch — Refusal of registration — Lack of distinctiveness)

4

2012/C 303/08

Case C-466/11: Order of the Court (Third Chamber) of 12 July 2012 (reference for a preliminary ruling from the Tribunale ordinario di Brescia — Italy) — Gennaro Currà and Others v Bundesrepublik Deutschland (Reference for a preliminary ruling — Article 92(1) of the Rules of Procedure — Action brought by the victims of massacres against a Member State as the party liable for acts committed by its armed forces in wartime — Charter of Fundamental Rights of the European Union — Clear lack of jurisdiction of the Court)

5

2012/C 303/09

Case C-467/11 P: Order of the Court (First Chamber) of 5 July 2012 — Audi AG, Volkswagen AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Appeal — Community trade mark — Appeal which has become devoid of purpose — No need to adjudicate)

5

2012/C 303/10

Case C-477/11 P: Order of the Court of 14 May 2012 — Sepracor Pharmaceuticals (Ireland) Ltd v European Commission (Appeals — Regulation (EC) No 726/2004 — Medicinal products for human use — Active substance eszopiclone — Marketing authorisation — Procedure — Statement of position by the Commission — Status of new active substance — Concept of actionable measure)

6

2012/C 303/11

Case C-582/11 P: Order of the Court (Eighth Chamber) of 10 July 2012 — Rügen Fisch AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Schwaaner Fischwaren GmbH (Appeal — Regulation (EC) No 40/94 — Article 7(1) and (2) — Community trade mark — Word mark SCOMBER MIX — Absolute ground for invalidity — Descriptive character)

6

2012/C 303/12

Case C-599/11 P: Order of the Court (Fifth Chamber) of 28 June 2012 — TofuTown.com GmbH; other parties to the proceedings: Meica Ammerländische Fleischwarenfabrik Fritz Meinen GmbH & Co. KG, Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Appeal — Article 119 of the Rules of Procedure — Community trade mark — Application for registration of the word sign TOFUKING — Opposition by the proprietor of the trade mark Curry King — Regulation (EC) No 207/2009 — Article 8(1)(b) — Likelihood of confusion — Degree of similarity)

6

2012/C 303/13

Case C-16/12: Order of the Court (Seventh Chamber) of 6 July 2012 (reference for a preliminary ruling from the Gyulai Törvényszék — Hungary) — HERMES Hitel és Faktor Zrt v Nemzeti Földalapkezelő Szervezet (Reference for a preliminary ruling — General principles of European Union law — Forestry Act — Lack of connection to European Union law — Clear lack of jurisdiction of the Court)

7

2012/C 303/14

Case C-25/12 P: Order of the Court of 4 July 2012 — Gino Trevisanato v European Commission (Appeal — Article 119 of the Rules of Procedure — Application seeking an order that the Commission take a position concerning the interpretation and the transposition of a directive — Manifest inadmissibility)

7

2012/C 303/15

Case C-73/12: Order of the Court (Fifth Chamber) of 4 July 2012 (reference for a preliminary ruling from the Giudice di Pace di Revere — Italy) — Criminal proceedings against Ahmed Ettaghi (Reference for a preliminary ruling — No description of the dispute in the main proceedings — Manifest inadmissibility)

8

2012/C 303/16

Case C-74/12: Order of the Court (Fifth Chamber) of 4 July 2012 — (reference for a preliminary ruling from the Giudice di Pace di Revere — Italy) — Criminal proceedings against Abd Aziz Tam (Reference for a preliminary ruling — No description of the dispute in the main proceedings — Manifest inadmissibility)

8

2012/C 303/17

Case C-75/12: Order of the Court (Fifth Chamber) of 4 July 2012 (reference for a preliminary ruling from the Giudice di Pace di Revere — Italy) — Criminal proceedings against Majali Abdel (Reference for a preliminary ruling — No description of the main proceedings — manifestly inadmissible)

8

2012/C 303/18

Case C-134/12: Order of the Court (Sixth Chamber) of 10 May 2012 (reference for a preliminary ruling from the Curtea de Apel Constanța, Romania) — Ministerul Administrației și Internelor, Inspectoratul General al Poliției Române, Inspectoratul de Poliție al Județului Tulcea v Corpul Național al Polițiștilor — Biroul Executiv Central (Reference for a preliminary ruling — Charter of Fundamental Rights of the European Union — European Convention on the Protection of Human Rights and Fundamental Freedoms — Validity of national legislation imposing salary reductions on a number of categories of civil servants — Failure to implement European Union law — Clear lack of jurisdiction of the Court of Justice)

9

2012/C 303/19

Case C-156/12: Order of the Court (Sixth Chamber) of 13 June 2012 (reference for a preliminary ruling from the Landesgericht Salzburg — Austria) — GREP GmbH v Freitstaat Bayern (First subparagraph of Article 104(3) of the Rules of Procedure — Charter of Fundamental Rights of the European Union — Articles 47 and 51(1) — Implementation of European Union law — Action against a decision holding that a ruling delivered in another Member State ordering enforcement procedures was enforceable — Effective judicial protection — Right of access to courts — Legal aid — National legislation refusing legal aid to legal persons)

9

2012/C 303/20

Case C-238/12 P: Appeal brought on 16 May 2012 by FLSmidth & Co. A/S against the judgment of the General Court (Fourth Chamber) delivered on 6 March 2012 in Case T-65/06: FLSmidth & Co. A/S v European Commission

10

2012/C 303/21

Case C-287/12 P: Appeal brought on 7 June 2012 by Ryanair Ltd against the judgment of the General Court (Fifth Chamber) delivered on 28 March 2012 in Case T-123/09: Ryanair Ltd v European Commission

11

2012/C 303/22

Case C-294/12 P: Appeal brought on 11 June 2012 by You-Q BV against the judgment of the General Court (Eighth Chamber) delivered on 29 March 2012 in Case T-369/10: You-Q BV v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

12

2012/C 303/23

Case C-314/12: Reference for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 29 June 2012 — UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH, Munich (Germany), Wega Filmproduktionsgesellschaft mbH

12

2012/C 303/24

Case C-324/12: Reference for a preliminary ruling from the Handelsgericht Wien (Austria) lodged on 9 July 2012 — Novontech-Zala Kft v LOGICDATA Electronic & Software Entwicklungs GmbH

13

2012/C 303/25

Case C-326/12: Reference for a preliminary ruling from the Finanzgericht Düsseldorf (Germany) lodged on 10 July 2012 — Rita van Caster, Patrick van Caster v Finanzamt Essen-Süd

13

2012/C 303/26

Case C-328/12: Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 11 July 2012 — Ralph Schmidt (in his capacity as liquidator in respect of the assets of Aletta Zimmerman) v Lilly Hertel

14

2012/C 303/27

Case C-335/12: Action brought on 13 July 2012 — European Commission v Portuguese Republic

14

2012/C 303/28

Case C-343/12: Reference for a preliminary ruling from the Rechtbank van Koophandel te Gent (Belgium) lodged on 19 July 2012 — Euronics Belgium CVBA v Kamera Express BV & Kamera Express Belgium BVBA

16

2012/C 303/29

Case C-350/12 P: Appeal brought on 24 July 2012 by Council of the European Union against the judgment of the General Court (Fifth Chamber) delivered on 4 May 2012 in Case T-529/09: Sophie in ’t Veld v Council of the European Union

16

2012/C 303/30

Case C-364/12: Reference for a preliminary ruling from the Audiencia Provincial de Barcelona (Spain), lodged on 1 August 2012 — Miguel Fradera Torredemer and Others v Corporación Uniland, S.A.

17

2012/C 303/31

Case C-370/12: Reference for a preliminary ruling from Supreme Court (Ireland) made on 3 August 2012 — Thomas Pringle v Government of Ireland, Ireland and the Attorney General

18

2012/C 303/32

Case C-372/12: Reference for a preliminary ruling from the Raad van State (Netherlands), lodged on 3 August 2012 — Minister voor Immigratie, Integratie en Asiel, other parties: M. and S.

18

2012/C 303/33

Case C-379/12 P: Appeal brought on 7 August 2012 by Arav Holding Srl against the judgment of the General Court (Second Chamber) delivered on 19 June 2012 in Case T-557/10 H.Eich v OHIM — Arav (H.EICH)

19

2012/C 303/34

Case C-380/12: Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands), lodged on 8 August 2012 — X BV, other party: Minister van Financiën

20

2012/C 303/35

Case C-381/12 P: Appeal brought on 9 August 2012 by I Marchi Italiani Srl against the judgment of the General Court (Sixth Chamber) delivered on 28 June 2012 in Case T-133/09 I Marchi Italiani and Basile v OHIM — Osra

20

2012/C 303/36

Case C-298/11: Order of the President of the Court of 9 July 2012 (reference for a preliminary ruling from the Administrativen sad Varna — Bulgaria) — Dobrudzhanska petrolna kompania AD v Direktor na Direktsia Obzhalvane i upravlenie na izpalnenieto — gr. Varna, pri Tsentralno upravlenie na Natsionalnata Agentsia po Prihodite

21

2012/C 303/37

Case C-353/11: Order of the President of the Court of 11 July 2012 — European Commission v Czech Republic

21

2012/C 303/38

Case C-503/11 P: Order of the President of the Court of 8 May 2012 — ThyssenKrupp Elevator (CENE) GmbH, formerly ThyssenKrupp Aufzüge GmbH, ThyssenKrupp Fahrtreppen GmbH v European Commission

21

2012/C 303/39

Case C-504/11 P: Order of the President of the Court of 8 May 2012 — ThyssenKrupp Ascenseurs Luxemburg Sàrl v European Commission

21

2012/C 303/40

Case C-505/11 P: Order of the President of the Court of 8 May 2012 — ThyssenKrupp Elevator AG v European Commission

21

2012/C 303/41

Case C-506/11 P: Order of the President of the Court of 8 May 2012 — ThyssenKrupp AG v European Commission

21

2012/C 303/42

Case C-39/12: Order of the President of the Court of 18 June 2012 — (reference for a preliminary ruling from the Bundesgerichtshof — Germany) — Criminal proceedings against Vu Thang Dang, interested party: Generalbundesanwalt beim Bundesgerichtshof

21

General Court

2012/C 303/43

Case T-333/12: Action brought on 25 July 2012 — Soltau v Commission

22

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EN

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

| 6.10.2012 | EN | Official Journal of the European Union | C 303/1 |
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6.10.2012

EN

Official Journal of the European Union

C 303/1

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2012/C 303/01

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

OJ C 295, 29.9.2012

Past publications

OJ C 287, 22.9.2012

OJ C 273, 8.9.2012

OJ C 258, 25.8.2012

OJ C 250, 18.8.2012

OJ C 243, 11.8.2012

OJ C 235, 4.8.2012

These texts are available on:

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

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European Union Civil Service Tribunal

| 6.10.2012 | EN | Official Journal of the European Union | C 303/2 |
| --- | --- | --- | --- |

6.10.2012

EN

Official Journal of the European Union

C 303/2

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Designation of the Judge replacing the President of the Tribunal as the Judge hearing applications for interim measures

2012/C 303/02

On 19 September 2012, in accordance with Article 103(2) of the Rules of Procedure, the Tribunal decided that, for the period from 1 October 2012 to 30 September 2014, Judge Rofes i Pujol shall replace the President of the Tribunal if he is absent or prevented from dealing with any application for interim measures.

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V Announcements

COURT PROCEEDINGS

Court of Justice

| 6.10.2012 | EN | Official Journal of the European Union | C 303/3 |
| --- | --- | --- | --- |

6.10.2012

EN

Official Journal of the European Union

C 303/3

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Order of the Court of 7 June 2012 (reference for a preliminary ruling from the Commissione tributaria provinciale di Benevento — Italy) — Volturno Trasporti Sas di Santoro Nino e c. v Camera di Commercio di Benevento, Equitalia Polis SpA

(Case C-21/11) (1)

(Reference for a preliminary ruling - Manifest inadmissibility)

2012/C 303/03

Language of the case: Italian

Referring court

Commissione tributaria provinciale di Benevento (Italy)

Parties to the main proceedings

Applicant: Volturno Trasporti Sas di Santoro Nino e c.

Defendants: Camera di Commercio di Benevento, Equitalia Polis SpA

Re:

Reference for a preliminary ruling — Commissione tributaria provinciale di Benevento — Interpretation of Article 10(c) of Council Directive No 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital (OJ, English Special Edition 1969 (II), p. 412) — Indirect taxes on the raising of capital — Imposition of an annual fee for entry in the register of companies kept by the local chambers of commerce — Whether permissible

Operative part of the order

The reference for a preliminary ruling made by the Commissione tributaria provinciale di Benevento (Italy), by decision of 22 September 2010, is manifestly inadmissible.

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(1)  OJ C 95, 26.3.2011.

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| 6.10.2012 | EN | Official Journal of the European Union | C 303/3 |
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6.10.2012

EN

Official Journal of the European Union

C 303/3

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Order of the Court (Sixth Chamber) of 11 May 2012 — Lan Airlines SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Air Nostrum, Líneas Aéreas de Mediterráneo SA

(Case C-198/11 P) (1)

(Appeal - Article 119 of the Rules of Procedure - Community trade mark - Regulation (EC) No 40/94 - Article 8(1)(b) - Community word mark LÍNEAS AÉREAS DEL MEDITERRÁNEO LAM - Application for registration - Opposition by the proprietor of the earlier Community word and figurative marks LAN - Rejection of the opposition - No likelihood of confusion - Appeal manifestly inadmissible)

2012/C 303/04

Language of the case: Spanish

Parties

Appellant: Lan Airlines SA (represented by: E. Armijo Chávarri. lawyer)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: O. Mondéjar Ortuño, Agent), Air Nostrum, Líneas Aéreas del Mediterráneo SA

Re:

Appeal brought against the judgment of the General Court (Fourth Chamber) of 8 February 2011 in Case T-194/09 Lan Airlines v OHIM — Air Nostrum, Líneas Aéreas del Mediterráneo, by which the General Court dismissed an appeal brought against the decision of the Fourth Board of Appeal of OHIM of 19 February 2009 (Case R 107/2008-4), relating to opposition proceedings between Lan Airlines, SA and Air Nostrum, Líneas Aéreas del Mediterráneo, SA

Operative part of the order

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

1.

The appeal is dismissed.

| 2. | LAN Airlines SA is ordered to pay the costs. |
| --- | --- |

2.

LAN Airlines SA is ordered to pay the costs.

---

(1)  OJ C 186, 25.6.2011.

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| 6.10.2012 | EN | Official Journal of the European Union | C 303/4 |
| --- | --- | --- | --- |

6.10.2012

EN

Official Journal of the European Union

C 303/4

---

Order of the Court of 3 May 2012 — World Wide Tobacco España, SA v European Commission

(Case C-240/11 P) (1)

(Appeal - Competition - Agreements, decisions or concerted practices - The Spanish market for the purchase and first processing of raw tobacco - Price-fixing and market-sharing - Fines - Deterrent effect - Equal treatment - Mitigating circumstances - Maximum limit of 10 % of turnover - Cooperation)

2012/C 303/05

Language of the case: Spanish

Parties

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

Other party to the proceedings: European Commission (represented by: E. Gippini Fournier and L. Malferrari, acting as Agents)

Re:

Appeal brought against the judgment of the General Court (Fourth Chamber) of 8 March 2011 in Case T-37/05 World Wide Tobacco España v Commission by which the General Court rejected in part an application for a reduction in the amount of the fine imposed on the applicant in Commission Decision C(2004) 4030 final, of 20 October 2004, relating to a proceeding under Article 81(1) (EC) (Case COMP/C.38.238/B.2 — Raw tobacco — Spain)

Operative part of the order

| 1. | The main appeal and the additional appeal are dismissed. |
| --- | --- |

1.

The main appeal and the additional appeal are dismissed.

| 2. | World Wide Tobacco España, SA is ordered to pay the costs of the main appeal. |
| --- | --- |

2.

World Wide Tobacco España, SA is ordered to pay the costs of the main appeal.

| 3. | The European Commission is ordered to pay the costs of the additional appeal. |
| --- | --- |

3.

The European Commission is ordered to pay the costs of the additional appeal.

---

(1)  OJ C 211, 16.7.2011.

---

| 6.10.2012 | EN | Official Journal of the European Union | C 303/4 |
| --- | --- | --- | --- |

6.10.2012

EN

Official Journal of the European Union

C 303/4

---

Order of the Court of 4 July 2012 — Région Nord-Pas-de-Calais v Communauté d’Agglomération du Douaisis, European Commission

(Case C-389/11 P) (1)

(Appeal - State aid - Construction of railway equipment - Decisions declaring aid incompatible with the common market and ordering its recovery)

2012/C 303/06

Language of the case: French

Parties

Appellant: Région Nord-Pas-de-Calais (represented by: M. Cliquennois and F. Cavedon, avocats)

Other parties to the proceedings: Communauté d’Agglomération du Douaisis, European Commission (represented by: C. Giolito and B. Stromsky, Agents)

Re:

Appeal against the judgment of the General Court (Eighth Chamber) of 12 May 2011 in Joined Cases T-267/08 and T-279/08 Région Nord-Pas-de-Calais v Commission and Communauté d’agglomération du Douaisis v Commission dismissing the actions, initially, for annulment of Commission Decision C(2008) 1089 final of 2 April 2008, then for annulment of Commission Decision C(2010) 4112 final of 23 June 2010, on State aid C 38/2007 (ex NN 45/2007) implemented by France in favour of Arbel Fauvet Rail SA — Construction of railway equipment — Recovery of aid incompatible with the common market — Infringement of the rights of the defence and the principle of the right to be heard

Operative part of the order

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

1.

The appeal is dismissed.

| 2. | The Région Nord-Pas-de-Calais is ordered to pay the costs. |
| --- | --- |

2.

The Région Nord-Pas-de-Calais is ordered to pay the costs.

---

(1)  OJ C 290, 1.10.2011.

---

| 6.10.2012 | EN | Official Journal of the European Union | C 303/4 |
| --- | --- | --- | --- |

6.10.2012

EN

Official Journal of the European Union

C 303/4

---

Order of the Court (Eighth Chamber) of 14 May 2012 — Timehouse GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-453/11 P) (1)

(Appeal - Community trade mark - Three-dimensional mark representing a watch - Refusal of registration - Lack of distinctiveness)

2012/C 303/07

Language of the case: German

Parties

Appellant: Timehouse GmbH (represented by: V. Knies, Rechtsanwalt)

Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: K. Klüpfel, acting as Agent)

Re:

Appeal lodged against the judgment of the General Court (Third Chamber) of 6 July 2011 in Case T-235/10 Timehouse v OHIM (Shape of a watch with scalloped edges), by which the General Court dismissed an action brought against the decision of the First Board of Appeal of OHIM of 11 March 2010 (Case R 0492/2009-1) concerning an application for registration as a Community trade mark of a three-dimensional sign consisting of the shape of a watch — Lack of distinctiveness

Operative part of the order

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

1.

The appeal is dismissed.

| 2. | Timehouse GmbH is ordered to pay the costs. |
| --- | --- |

2.

Timehouse GmbH is ordered to pay the costs.

---

(1)  OJ C 340, 19.11.2011.

---

| 6.10.2012 | EN | Official Journal of the European Union | C 303/5 |
| --- | --- | --- | --- |

6.10.2012

EN

Official Journal of the European Union

C 303/5

---

Order of the Court (Third Chamber) of 12 July 2012 (reference for a preliminary ruling from the Tribunale ordinario di Brescia — Italy) — Gennaro Currà and Others v Bundesrepublik Deutschland

(Case C-466/11) (1)

(Reference for a preliminary ruling - Article 92(1) of the Rules of Procedure - Action brought by the victims of massacres against a Member State as the party liable for acts committed by its armed forces in wartime - Charter of Fundamental Rights of the European Union - Clear lack of jurisdiction of the Court)

2012/C 303/08

Language of the case: Italian

Referring court

Tribunale ordinario di Brescia

Parties to the main proceedings

Applicants: Gennaro Currà, Nadia Orlandi heir of Aldo Orlandi, Renzo Ciro Malago heir of Federico Malago, Ruberto Ezecchia, Camillo Turchetti, Franco Forni, Ilva Morselli heir of Ermenegildo Morselli, Elisa Ghisolfi and Anna Ghisolfi joint heirs of Luca Ghisolfi, Primo Zelioli, Francesco Perondi, Anna Furgeri heir of Agide Furgeri, Elena Penzani and Gian Luigi Penzani joint heirs of Carlo Penzani, Renato Mortari, Ada Zaccaria heir of Sigifredo Zaccaria, Erino Alberti, Gabriella Boccaletti heir of Mario Boccaletti, Rita Boccasanta heir of Ernesto Boccasanta, Alberto Borelli, Pierantonio Foresti heir of Franco Foresti, Irmo Sancassiani, Ennio Mischi heir of Aldo Mischi, Graziano Broglia heir of Rosolino Broglia, Alba Spinella and Maria Raffaella Spinella joint heirs of Vincenzo Rocco Spinella, Giuseppe Ferri, Alessandra Fontanabona heir of Giulio Fontanabona, Luciana, Mariuccia and Giulietta Pedratti joint heirs of Carlo Pedratti, Raffaele Colucci

Defendant: Bundesrepublik Deutschland

In the presence of: Repubblica italiana

Re:

Reference for a preliminary ruling — Tribunale ordinario di Brescia — Interpretation of Articles 3, 4(3), 6 and 21 TEU and Articles 17, 47 and 52 of the Charter of Fundamental Rights of the European Union — Crimes against humanity — Action brought by victims of massacres against a Member State as the party liable for acts committed by its armed forces in wartime — Victims’ right to compensation — Whether time-barring of this right is permissible — Whether it is permissible that the Member State in question should claim immunity from jurisdiction

Operative part of the order

It is clear that the Court of Justice of the European Union has no jurisdiction to take cognisance of the request for a preliminary ruling submitted by the Tribunale ordinario di Brescia (Italy).

---

(1)  OJ C 347, 26.11.2011.

---

| 6.10.2012 | EN | Official Journal of the European Union | C 303/5 |
| --- | --- | --- | --- |

6.10.2012

EN

Official Journal of the European Union

C 303/5

---

Order of the Court (First Chamber) of 5 July 2012 — Audi AG, Volkswagen AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-467/11 P) (1)

(Appeal - Community trade mark - Appeal which has become devoid of purpose - No need to adjudicate)

2012/C 303/09

Language of the case: German

Parties

Appellants: Audi AG, Volkswagen AG (represented by: P. Kather, Rechtsanwalt)

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

Re:

Appeal brought against the judgment of the General Court (Third Chamber) of 6 July 2011 in Case T-318/09 Audi and Volkswagen v OHMI (TDI), by which the General Court dismissed the action for annulment brought against the decision of the First Board of Appeal of OHIM of 14 May 2009 (Case R 226/2007-1), concerning an application for registration of the word sign TDI as a Community trade mark for the goods in Class 12 (Vehicles and constructive parts thereof’) — Infringement of Articles 7(1)(c) and 7(3) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1) — Distinctive character of the word sign TDI

Operative part of the order

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

1.

There is no need to adjudicate on the appeal.

| 2. | Audi AG and Volkswagen AG are ordered to pay the costs. |
| --- | --- |

2.

Audi AG and Volkswagen AG are ordered to pay the costs.

---

(1)  OJ C 347, 26.11.2011.

---

| 6.10.2012 | EN | Official Journal of the European Union | C 303/6 |
| --- | --- | --- | --- |

6.10.2012

EN

Official Journal of the European Union

C 303/6

---

Order of the Court of 14 May 2012 — Sepracor Pharmaceuticals (Ireland) Ltd v European Commission

(Case C-477/11 P) (1)

(Appeals - Regulation (EC) No 726/2004 - Medicinal products for human use - Active substance ‘eszopiclone’ - Marketing authorisation - Procedure - Statement of position by the Commission - Status of ‘new active substance’ - Concept of ‘actionable measure’)

2012/C 303/10

Language of the case: English

Parties

Appellant: Sepracor Pharmaceuticals (Ireland) Ltd (represented by: I. Dodds-Smith, solicitor, D. Anderson QC, and J. Stratford, barrister)

Other party to the proceedings: European Commission (represented by: M. Wilderspin and M. Šimerdová, acting as Agents)

Re:

Appeal brought against the order of the General Court (Fourth Chamber) of 4 July 2011 in Case T-275/09 P Sepracor Pharmaceuticals v Commission, dismissing as inadmissible an application for the annulment of the Commission’s decision of 6 May 2009 finding, in the context of the procedure for granting marketing authorisation for the medicinal product ‘Lunivia’, produced by the appellant, that the active substance ‘eszopiclone’, which it contains, does not constitute a new active substance within the meaning of Article 3(2)(a) of Regulation (EC) No 726/2004 of the European Parliament and of the Council (OJ 2004 L 136, p. 1) — Concept of actionable measure

Operative part of the order

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

1.

The appeal is dismissed.

| 2. | Sepracor Pharmaceuticals Ltd is ordered to pay the costs. |
| --- | --- |

2.

Sepracor Pharmaceuticals Ltd is ordered to pay the costs.

---

(1)  OJ C 347, 26.11.2011.

---

| 6.10.2012 | EN | Official Journal of the European Union | C 303/6 |
| --- | --- | --- | --- |

6.10.2012

EN

Official Journal of the European Union

C 303/6

---

Order of the Court (Eighth Chamber) of 10 July 2012 — Rügen Fisch AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Schwaaner Fischwaren GmbH

(Case C-582/11 P) (1)

(Appeal - Regulation (EC) No 40/94 - Article 7(1) and (2) - Community trade mark - Word mark SCOMBER MIX - Absolute ground for invalidity - Descriptive character)

2012/C 303/11

Language of the case: German

Parties

Appellant: Rügen Fisch AG (represented by: O. Spuhler and M. Geitz, Rechtsanwälte)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: G. Schneider, Agent), Schwaaner Fischwaren GmbH (represented by: A. Jaeger-Lenz and T. Bösling, Rechtsanwälte)

Re:

Appeal brought against the judgment of the General Court (Third Chamber) of 21 September 2011 in Case T-201/09 Rügen Fisch v OHIM, by which the General Court dismissed the appellant’s action against the decision of the Fourth Board of Appeal of OHIM of 20 March 2009 (Case R 230/2007-4), relating to invalidity proceedings between Rügen Fisch AG and Schwaaner Fischwaren GmbH — Breach of Articles 7(1)(c) and 51(1)(a) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1) — Descriptive character of the word sign SCOMBER MIX

Operative part of the order

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

1.

The appeal is dismissed;

| 2. | Rügen Fisch AG is ordered to pay the costs. |
| --- | --- |

2.

Rügen Fisch AG is ordered to pay the costs.

---

(1)  OJ C 25, 28.1.2012.

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| 6.10.2012 | EN | Official Journal of the European Union | C 303/6 |
| --- | --- | --- | --- |

6.10.2012

EN

Official Journal of the European Union

C 303/6

---

Order of the Court (Fifth Chamber) of 28 June 2012 — TofuTown.com GmbH; other parties to the proceedings: Meica Ammerländische Fleischwarenfabrik Fritz Meinen GmbH & Co. KG, Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-599/11 P) (1)

(Appeal - Article 119 of the Rules of Procedure - Community trade mark - Application for registration of the word sign ‘TOFUKING’ - Opposition by the proprietor of the trade mark Curry King - Regulation (EC) No 207/2009 - Article 8(1)(b) - Likelihood of confusion - Degree of similarity)

2012/C 303/12

Language of the case: German

Parties

Appellant: TofuTown.com GmbH (represented by: B. Krause, Rechtsanwältin)

Other parties to the proceedings: Meica Ammerländische Fleischwarenfabrik Fritz Meinen GmbH & Co. KG (represented by: S. Russlies, Rechtsanwalt), Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: G. Schneider, Agent)

Re:

Appeal against the judgment of the General Court (Second Chamber) of 20 September 2011 in Case T-99/10 Meica v OHIM — TofuTown.com (TOFUKING), in which the General Court annulled the decision of the Fourth Board of Appeal of OHIM of 7 January 2010 (Case R 63/2009-4) concerning opposition proceedings between Meica Ammerländische Fleischwarenfabrik Fritz Meinen GmbH & Co. KG and TofuTown.com GmbH — Likelihood of confusion

Operative part of the order

The Court:

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

1.

Dismisses the appeal;

| 2. | Orders TofuTown.com GmbH to bear its own costs and to pay the costs incurred by Meica Ammerländische Fleischwarenfabrik Fritz Meinen GmbH & Co. KG; |
| --- | --- |

2.

Orders TofuTown.com GmbH to bear its own costs and to pay the costs incurred by Meica Ammerländische Fleischwarenfabrik Fritz Meinen GmbH & Co. KG;

| 3. | Orders the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) to bear its own costs. |
| --- | --- |

3.

Orders the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) to bear its own costs.

---

(1)  OJ C 133, 5.5.2012.

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| 6.10.2012 | EN | Official Journal of the European Union | C 303/7 |
| --- | --- | --- | --- |

6.10.2012

EN

Official Journal of the European Union

C 303/7

---

Order of the Court (Seventh Chamber) of 6 July 2012 (reference for a preliminary ruling from the Gyulai Törvényszék — Hungary) — HERMES Hitel és Faktor Zrt v Nemzeti Földalapkezelő Szervezet

(Case C-16/12) (1)

(Reference for a preliminary ruling - General principles of European Union law - Forestry Act - Lack of connection to European Union law - Clear lack of jurisdiction of the Court)

2012/C 303/13

Language of the case: Hungarian

Referring court

Gyulai Törvényszék

Parties to the main proceedings

Applicant: HERMES Hitel és Faktor Zrt

Defendant: Nemzeti Földalapkezelő Szervezet

Re:

Reference for a preliminary ruling — Gyulai Törvényszék — Interpretation of the general principles of European Union law — Mortgage loan contract concluded between a financial establishment and a public body — Legislative amendment declaring non-transferable certain forested areas which were previously traded — Amendment preventing public auction of the property mortgaged following legal proceedings brought by a creditor for non-performance of the contract by the debtor

Operative part of the order

The Court of Justice of the European Union clearly has no jurisdiction to answer the questions referred by the Gyulai Törvényszék (Hungary), by decision of 4 January 2012

---

(1)  OJ C 126, 28.4.2012.

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| 6.10.2012 | EN | Official Journal of the European Union | C 303/7 |
| --- | --- | --- | --- |

6.10.2012

EN

Official Journal of the European Union

C 303/7

---

Order of the Court of 4 July 2012 — Gino Trevisanato v European Commission

(Case C-25/12 P) (1)

(Appeal - Article 119 of the Rules of Procedure - Application seeking an order that the Commission take a position concerning the interpretation and the transposition of a directive - Manifest inadmissibility)

2012/C 303/14

Language of the case: Italian

Parties

Appellant: Gino Trevisanato (represented by L. Sulfaro, lawyer)

Other party to the proceedings: Commission

Re:

Appeal against the Order of the General Court (Seventh Chamber) of 13 December 2011 in Case T-510/11 Trevisanato v Commission, in which the General Court dismissed an action seeking an order that the Commission take a position on the complaint lodged by the applicant — Failure by the Commission to adopt a binding opinion on the scope of Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies — (OJ 1998 L 225, p. 16) — Manifest lack of jurisdiction of the General Court — Conditions for application of Article 111 of the Rules and Procedures of the General Court

Operative part of the order

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

1.

The appeal is dismissed.

| 2. | Mr Trevisanato is ordered to bear his own costs. |
| --- | --- |

2.

Mr Trevisanato is ordered to bear his own costs.

---

(1)  OJ C 65, 3.3.2012.

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| 6.10.2012 | EN | Official Journal of the European Union | C 303/8 |
| --- | --- | --- | --- |

6.10.2012

EN

Official Journal of the European Union

C 303/8

---

Order of the Court (Fifth Chamber) of 4 July 2012 (reference for a preliminary ruling from the Giudice di Pace di Revere — Italy) — Criminal proceedings against Ahmed Ettaghi

(Case C-73/12) (1)

(Reference for a preliminary ruling - No description of the dispute in the main proceedings - Manifest inadmissibility)

2012/C 303/15

Language of the case: Italian

Referring court

Giudice di Pace di Revere

Criminal proceedings against

Ahmed Ettaghi

Re:

Reference for a preliminary ruling — Giudice di Pace di Revere — Interpretation of Articles 2, 4, 6, 7, 8, 15 and 16 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348, p. 98) and of Article 4(3) TEU — National legislation imposing a fine on a third-country national who has entered or stayed in the country illegally — Admissibility of the criminal offence of illegal stay — Possibility of substituting the fine with an order for expulsion with immediate effect for a period of at least five years or with a home detention (‘permanenza domiciliare’) sentence — Obligations of the Member States during the period prescribed for the transposition of a directive

Operative part of the order

The reference for a preliminary ruling from the Giudice di Pace di Revere (Italy), by decision of 26 January 2012, is clearly inadmissible.

---

(1)  OJ C 118, 21.4.2012.

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| 6.10.2012 | EN | Official Journal of the European Union | C 303/8 |
| --- | --- | --- | --- |

6.10.2012

EN

Official Journal of the European Union

C 303/8

---

Order of the Court (Fifth Chamber) of 4 July 2012 — (reference for a preliminary ruling from the Giudice di Pace di Revere — Italy) — Criminal proceedings against Abd Aziz Tam

(Case C-74/12) (1)

(Reference for a preliminary ruling - No description of the dispute in the main proceedings - Manifest inadmissibility)

2012/C 303/16

Language of the case: Italian

Referring court

Giudice di Pace di Revere

Criminal proceedings against

Abd Aziz Tam

Re:

Reference for a preliminary ruling — Giudice di Pace di Revere — Interpretation of Articles 2, 4, 6, 7, 8, 15 and 16 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348, p. 98) and of Article 4(3) TEU — National legislation imposing a fine on a third-country national who has entered or stayed in the country illegally — Admissibility of the criminal offence of illegal stay — Possibility of substituting the fine with an order for expulsion with immediate effect for a period of at least five years or with a home detention (‘permanenza domiciliare’) sentence — Obligations of the Member States during the period prescribed for the transposition of a directive

Operative part of the order

The reference for a preliminary ruling from the Giudice di Pace di Revere (Italy), by decision of 26 January 2012, is clearly inadmissible.

---

(1)  OJ C 118, 21.4.2012.

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| 6.10.2012 | EN | Official Journal of the European Union | C 303/8 |
| --- | --- | --- | --- |

6.10.2012

EN

Official Journal of the European Union

C 303/8

---

Order of the Court (Fifth Chamber) of 4 July 2012 (reference for a preliminary ruling from the Giudice di Pace di Revere — Italy) — Criminal proceedings against Majali Abdel

(Case C-75/12) (1)

(Reference for a preliminary ruling - No description of the main proceedings - manifestly inadmissible)

2012/C 303/17

Language of the case: Italian

Referring court

Giudice di Pace di Revere

Party in the main proceedings

Majali Abdel

Re:

Reference for a preliminary ruling — Giudice di Pace di Revere — Interpretation of Articles 2, 4, 6, 7, 8, 15 and 16 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348, p. 98) and Article 4(3) TEU — National legislation imposing a fine on a foreign national who has entered national territory illegally or has stayed there illegally — Whether it is permissible to regard illegal stay as a criminal offence — Whether it is possible to substitute for the fine an order for immediate expulsion for a period of at least five years or a measure restricting freedom (‘permanenza domiciliare’) — Member States’ obligations during the period for transposition of a directive

Operative part of the order

The reference for a preliminary ruling from the Giudice di pace di Revere (Italy), by decision of 26 January 2012, is manifestly inadmissible.

---

(1)  OJ C 118, 21.4.2012.

---

| 6.10.2012 | EN | Official Journal of the European Union | C 303/9 |
| --- | --- | --- | --- |

6.10.2012

EN

Official Journal of the European Union

C 303/9

---

Order of the Court (Sixth Chamber) of 10 May 2012 (reference for a preliminary ruling from the Curtea de Apel Constanța, Romania) — Ministerul Administrației și Internelor, Inspectoratul General al Poliției Române, Inspectoratul de Poliție al Județului Tulcea v Corpul Național al Polițiștilor — Biroul Executiv Central

(Case C-134/12) (1)

(Reference for a preliminary ruling - Charter of Fundamental Rights of the European Union - European Convention on the Protection of Human Rights and Fundamental Freedoms - Validity of national legislation imposing salary reductions on a number of categories of civil servants - Failure to implement European Union law - Clear lack of jurisdiction of the Court of Justice)

2012/C 303/18

Language of the case: Romanian

Referring court

Curtea de Apel Constanța

Parties to the main proceedings

Appellants: Ministerul Administrației și Internelor, Inspectoratul General al Poliției Române, Inspectoratul de Poliție al Județului Tulcea

Respondent: Corpul Național al Polițiștilor — Biroul Executiv Central

Re:

Reference for a preliminary ruling — Curtea de Apel Constanța — Interpretation of Articles 17(1), 20 and 21 of the Charter of Fundamental Rights of the European Union — Interpretation of Article 15(3) of the Convention on the Protection of Human Rights and Fundamental Freedoms — Admissibility of national legislation imposing salary reductions on a number of categories of civil servants — Infringement of the right of property and of the principles of equal treatment and non-discrimination

Operative part of the order

The Court of Justice of the European Union clearly has no jurisdiction with regard to the reference for a preliminary ruling from the Curtea de Apel Constanța (Romania), made by decision of 8 February 2012.

---

(1)  OJ C 138, 12.5.2012.

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| 6.10.2012 | EN | Official Journal of the European Union | C 303/9 |
| --- | --- | --- | --- |

6.10.2012

EN

Official Journal of the European Union

C 303/9

---

Order of the Court (Sixth Chamber) of 13 June 2012 (reference for a preliminary ruling from the Landesgericht Salzburg — Austria) — GREP GmbH v Freitstaat Bayern

(Case C-156/12) (1)

(First subparagraph of Article 104(3) of the Rules of Procedure - Charter of Fundamental Rights of the European Union - Articles 47 and 51(1) - Implementation of European Union law - Action against a decision holding that a ruling delivered in another Member State ordering enforcement procedures was enforceable - Effective judicial protection - Right of access to courts - Legal aid - National legislation refusing legal aid to legal persons)

2012/C 303/19

Language of the case: German

Referring court

Landesgericht Salzburg

Parties to the main proceedings

Applicant: GREP GmbH

Defendant: Freitstaat Bayern

Re:

Reference for a preliminary ruling — Landesgericht Salzburg — Interpretation of the first sentence of Article 51(1) and of Article 47 of the Charter of Fundamental Rights of the European Union and, in the alternative, of Article 43(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1) and of Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms — Scope of the Charter of Fundamental Rights — Procedure for enforcement of a ruling made in another Member State — Right to legal aid — Admissibility of national legislation refusing that right to legal persons

Operative part of the order

The action, brought under Article 43 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, in order to contest a decision holding that an order for enforcement was enforceable under Article 38 to 42 of that regulation and ordering conservatory attachment measures constitutes implementation of European Union law for the purposes of Article 51 of the Charter of Fundamental Rights of the European Union.

The principle of effective judicial protection, as enshrined in Article 47 of the Charter of Fundamental Rights of the European Union, may include the right to be exempted from payment of procedural costs and/or fees due for obtaining the assistance of a lawyer in respect of such an action.

However, it is for the national court to ascertain whether the conditions for grant of such aid constitute a restriction on the right of access to courts and tribunals which infringes the very essence of that right, whether they pursue a legitimate aim and whether there is a reasonable level of proportionality between the means used and the aim pursued.

In carrying out that assessment, the national court may take into consideration the subject-matter of the dispute, any reasonable chances of the applicant’s success, the gravity of what is at stake for him, the complexity of the law and procedure applicable and the ability of the applicant effectively to defend his cause. In order to assess the proportionality, the national court may also take into account the extent of the procedural costs to be advanced and whether or not they constitute an insurmountable obstacle to access to justice.

Having regard more specifically to legal persons, the national court may take account of their situation. Thus, it may take into consideration, in particular, the legal form of the legal person in question and whether it is for profit or not and the financial capabilities of its members or shareholders and whether it is possible for them to obtain the sums necessary to bring the court proceedings.

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(1)  OJ C 194, 30.6.2012.

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| 6.10.2012 | EN | Official Journal of the European Union | C 303/10 |
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6.10.2012

EN

Official Journal of the European Union

C 303/10

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Appeal brought on 16 May 2012 by FLSmidth & Co. A/S against the judgment of the General Court (Fourth Chamber) delivered on 6 March 2012 in Case T-65/06: FLSmidth & Co. A/S v European Commission

(Case C-238/12 P)

2012/C 303/20

Language of the case: English

Parties

Appellant: FLSmidth & Co. A/S (represented by: M. Dittmer, advokat, J. Ratliff, Barrister, F. Louis, avocat)

Other party to the proceedings: European Commission

Form of order sought

Relying on Article 256(1), second paragraph, Article 263 and Article 264 of the Treaty on the Functioning of the European Union Article 31 of Council Regulation 1/2003 (1), and Article 56 of the Statute of the Court of Justice, FLSmidth & Co. A/S respectfully requests that the Court of Justice:

| — | sets aside the judgment of 6 March 2012 in case T-65/06, |
| --- | --- |

—

sets aside the judgment of 6 March 2012 in case T-65/06,

| — | annuls the European Commission decision of 30 November 2005 in case COMP/F/38.354 relating to a proceeding under Article 101 TFEU in so far as it concerns FLS; or in the alternative, reduces the amount for which FLS is held liable in the decision. |
| --- | --- |

—

annuls the European Commission decision of 30 November 2005 in case COMP/F/38.354 relating to a proceeding under Article 101 TFEU in so far as it concerns FLS; or in the alternative, reduces the amount for which FLS is held liable in the decision.

| — | orders the European Commission to pay the costs. |
| --- | --- |

—

orders the European Commission to pay the costs.

Pleas in law and main arguments

In support of the primary form of order sought, FLS raises two pleas in law, the last of which is supported by two sub-pleas.

| — | The General Court erred in law as it did not apply the correct legal test for attributing liability to an (ultimate) parent company. Also, the General Court failed to draw the correct legal consequence from the evidence submitted to it seeing that it did not conclude that FLS had succeeded in rebutting the parent liability presumption. |
| --- | --- |

—

The General Court erred in law as it did not apply the correct legal test for attributing liability to an (ultimate) parent company. Also, the General Court failed to draw the correct legal consequence from the evidence submitted to it seeing that it did not conclude that FLS had succeeded in rebutting the parent liability presumption.

| — | The General Court failed to verify whether the Commission complied with its duty to state reasons.






  — | The Commission itself erred by not complying with its duty to state reasons as it did not sufficiently address FLS’ submitted arguments and evidence in order to rebut the presumption of parent liability. |
| --- | --- | --- |

—

The General Court failed to verify whether the Commission complied with its duty to state reasons.

—

The Commission itself erred by not complying with its duty to state reasons as it did not sufficiently address FLS’ submitted arguments and evidence in order to rebut the presumption of parent liability.

| — | In addiction, the Commission did not comply with its duty to state reasons seeing that the decision contained no reasoning as to why FLS was to be liable for the period of December 1990 to December 1991. |
| --- | --- |

—

In addiction, the Commission did not comply with its duty to state reasons seeing that the decision contained no reasoning as to why FLS was to be liable for the period of December 1990 to December 1991.

In support of the alternative form of order sought, FLS raises four pleas in law.

| — | The General Court erred in law as it failed to apply the principle of proportionality and legality when reviewing the liability imposed on FLS; thus failing to reduce the liability in question accordingly. |
| --- | --- |

—

The General Court erred in law as it failed to apply the principle of proportionality and legality when reviewing the liability imposed on FLS; thus failing to reduce the liability in question accordingly.

| — | The General Court erred in law as it failed to put an end to the unequal treatment adopted by the Commission when granting Trioplast Industrier AB — and not FLS — a reduction of 30 pct. under the Leniency Notice. |
| --- | --- |

—

The General Court erred in law as it failed to put an end to the unequal treatment adopted by the Commission when granting Trioplast Industrier AB — and not FLS — a reduction of 30 pct. under the Leniency Notice.

| — | The General Court erred in law by misapplying Section D, second indent of the Leniency Notice, as it did not grant FLS a reduction on the grounds of non-contestation of the facts. In addition, the General Court failed to apply the principle of equal treatment as it did not take into account the fact that Bonar Technical Fabrics was granted a 10 pct. reduction, for at least the same behaviour. |
| --- | --- |

—

The General Court erred in law by misapplying Section D, second indent of the Leniency Notice, as it did not grant FLS a reduction on the grounds of non-contestation of the facts. In addition, the General Court failed to apply the principle of equal treatment as it did not take into account the fact that Bonar Technical Fabrics was granted a 10 pct. reduction, for at least the same behaviour.

| — | The General Court infringed Article 47 of the Charter of Fundamental Rights of the European Union and Article 6(1) of the European Convention on Human Rights as it did not hand down a judgment with9in a reasonable time. |
| --- | --- |

—

The General Court infringed Article 47 of the Charter of Fundamental Rights of the European Union and Article 6(1) of the European Convention on Human Rights as it did not hand down a judgment with9in a reasonable time.

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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 L 1, p. 1

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| 6.10.2012 | EN | Official Journal of the European Union | C 303/11 |
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6.10.2012

EN

Official Journal of the European Union

C 303/11

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Appeal brought on 7 June 2012 by Ryanair Ltd against the judgment of the General Court (Fifth Chamber) delivered on 28 March 2012 in Case T-123/09: Ryanair Ltd v European Commission

(Case C-287/12 P)

2012/C 303/21

Language of the case: English

Parties

Appellant: Ryanair Ltd (represented by: E. Vahida, I.-G. Metaxas-Maragkidis, lawyers

Other parties to the proceedings: European Commission, Italian Republic, Alitalia — Compagnia Aerea Italiana SpA

Form of order sought

The appellant claims that the Court should:

| — | set aside the judgment of the General Court (Fifth Chamber) of 28 March 2012, notified to the Appellant on 29 March 2012, in Case T-123/09 Ryanair Ltd v European Commission: |
| --- | --- |

—

set aside the judgment of the General Court (Fifth Chamber) of 28 March 2012, notified to the Appellant on 29 March 2012, in Case T-123/09 Ryanair Ltd v European Commission:

| — | declare in accordance with Articles 263 and 264 TFEU that part of the European Commission's decision of 12 November 2008 in State aid case C26/2008 (Loan of 300 million euros to Alitalia SpA) is void in so far as it does not order the recovery of the aid from the successor(s) of Alitalia and grants Italy additional time to implement this decision; |
| --- | --- |

—

declare in accordance with Articles 263 and 264 TFEU that part of the European Commission's decision of 12 November 2008 in State aid case C26/2008 (Loan of 300 million euros to Alitalia SpA) is void in so far as it does not order the recovery of the aid from the successor(s) of Alitalia and grants Italy additional time to implement this decision;

| — | declare in accordance with Articles 263 and 264 TFEU that the entire decision of 12 November 2009 in State aid case N510/2008 (Sale of assets of Alitalia SpA) is void, |
| --- | --- |

—

declare in accordance with Articles 263 and 264 TFEU that the entire decision of 12 November 2009 in State aid case N510/2008 (Sale of assets of Alitalia SpA) is void,

| — | order the Commission to bear its own costs and pay those incurred by Ryanair; |
| --- | --- |

—

order the Commission to bear its own costs and pay those incurred by Ryanair;

alternatively,

| — | refer back the case to the General Court for reconsideration; and |
| --- | --- |

—

refer back the case to the General Court for reconsideration; and

| — | reserve the costs of the proceedings at first instance and on appeal. |
| --- | --- |

—

reserve the costs of the proceedings at first instance and on appeal.

Pleas in law and main arguments

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

| | Concerning the Commission's decision of 12 November 2008 in State aid case N510/2008 (Sale of assets of Alitalia SpA):






  1. | Breach of law and procedure regarding admissibility. The General Court refused to acknowledge Ryanair's challenge against the merits of the Commission's decision and re-defined the subject matter of Ryanair's action as an action exclusively seeking to safeguard its procedural rights: |
| --- | --- | --- |

Concerning the Commission's decision of 12 November 2008 in State aid case N510/2008 (Sale of assets of Alitalia SpA):

1.

Breach of law and procedure regarding admissibility. The General Court refused to acknowledge Ryanair's challenge against the merits of the Commission's decision and re-defined the subject matter of Ryanair's action as an action exclusively seeking to safeguard its procedural rights:

| 2. | Infringement of Articles 4 and 7 of Regulation (EC) No 659/1999 (1). The obligations and monitoring mechanisms added to the measure as initially notified constituted modifications and conditions of the type attached to decisions pursuant to Article 7 of Regulation (EC) No 659/1999. The appellant considers that the General Court erred in law by reason of a mistaken qualification of the obligations and monitoring mechanisms as undertaking; |
| --- | --- |

2.

Infringement of Articles 4 and 7 of Regulation (EC) No 659/1999 (1). The obligations and monitoring mechanisms added to the measure as initially notified constituted modifications and conditions of the type attached to decisions pursuant to Article 7 of Regulation (EC) No 659/1999. The appellant considers that the General Court erred in law by reason of a mistaken qualification of the obligations and monitoring mechanisms as undertaking;

| 3. | Infringement of Article 10 of Regulation (EC) No 659/1999 through the General Court's refusal to sanction the Commission's failure to examine all the relevant characteristics of the measures in their context: |
| --- | --- |

3.

Infringement of Article 10 of Regulation (EC) No 659/1999 through the General Court's refusal to sanction the Commission's failure to examine all the relevant characteristics of the measures in their context:

| 4. | Infringement of Article 10 of Regulation (EC) No 659/1999. The General Court found that the Commission did not have to examine options other than the sale of Alitalia assets as notified by Italy. By not considering whether a private investor would have chosen an alternative solution, the General Court erred in law; |
| --- | --- |

4.

Infringement of Article 10 of Regulation (EC) No 659/1999. The General Court found that the Commission did not have to examine options other than the sale of Alitalia assets as notified by Italy. By not considering whether a private investor would have chosen an alternative solution, the General Court erred in law;

| 5. | Other failures to apply the market economy investor principle; |
| --- | --- |

5.

Other failures to apply the market economy investor principle;

| 6. | Failure to identify the party having to repay the aid. The appellant considers that the General Court erred in law by disregarding the economic continuity between Alitalia and CAI. |
| --- | --- |

6.

Failure to identify the party having to repay the aid. The appellant considers that the General Court erred in law by disregarding the economic continuity between Alitalia and CAI.

| | Concerning the Commission's decision of 12 November 2008 in State aid case C26/2008 (Loan of 300 million euros to Alitalia SpA): failure to state reasons to support the finding of inadmissibility. |
| --- | --- |

Concerning the Commission's decision of 12 November 2008 in State aid case C26/2008 (Loan of 300 million euros to Alitalia SpA): failure to state reasons to support the finding of inadmissibility.

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(1)  Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty

OJ L 83, p. 1

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| 6.10.2012 | EN | Official Journal of the European Union | C 303/12 |
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6.10.2012

EN

Official Journal of the European Union

C 303/12

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Appeal brought on 11 June 2012 by You-Q BV against the judgment of the General Court (Eighth Chamber) delivered on 29 March 2012 in Case T-369/10: You-Q BV v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-294/12 P)

2012/C 303/22

Language of the case: English

Parties

Appellant: You-Q BV (represented by: G.S.C.M. van Roeyen, advocaat)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Apple Corps Limited

Form of order sought

The appellant claims that the Court should:

| — | set aside the judgment of the General Court of 29 March 2011 in Case T-369/10; |
| --- | --- |

—

set aside the judgment of the General Court of 29 March 2011 in Case T-369/10;

| — | uphold its application for annulment of the contested decision; |
| --- | --- |

—

uphold its application for annulment of the contested decision;

| — | alternatively, refer the case back to the General Court for reconsideration; |
| --- | --- |

—

alternatively, refer the case back to the General Court for reconsideration;

| — | order OHIM and Apple Corps Limited to pay the costs, including those incurred at first instance. |
| --- | --- |

—

order OHIM and Apple Corps Limited to pay the costs, including those incurred at first instance.

Pleas in law and main arguments

In its first plea in law the applicant submits that certain parts of the reproduction by the General Court of the background to the dispute, to be more specific certain parts of paragraphs 9, 12, 14, 17 and 53, are improperly established and contrary to the requirements of Article 8 (5) of Regulation No 207/2009 (1). Firstly the General Court has incorrectly held that the earlier marks on which Apple Corps relies include an earlier well known mark, since the General Court did not establish that status and moreover did not reveal which earlier mark should be regarded as a well known mark. These findings of the General Court are wrong and violate the principle of clarity. Secondly, the General Court did not properly take into account the factor ‘the nature of the goods or services for which the conflicting marks were registered, including the degree of closeness or dissimilarity between those goods or services, and the relevant section of the public’ to be applied according to the decision of the Court in Case C-252/07 Intel Corporation (2008) ECR I-8823.

In its second plea in law the applicant submits nine complaints against the contested judgment of the General Court, all based on infringement of Article 8(5) of Regulation No 207/2009. Firstly the applicant complains about incorrect findings by the General Court in paragraphs 24, 55, 56, 57 and 58 with regard to the dissimilarity of the goods and services and with regard to the distinctiveness of the earlier marks. Secondly the applicant contests the finding in paragraph 26 of the contested judgment, in which the General Court — contrary to Article 8(5) of Regulation No 207/2009 — abstracted the protection provided for by said article from the goods or services for which the mark with a reputation is registered and from the other requirements for protection of said article (detriment to the distinctive character of the earlier mark, detriment to the repute of that mark and unfair advantage taken of the distinctive character of the repute of that mark). Thirdly, the applicant contests the finding in paragraphs 31 and 54 of the contested judgment, that the distinctive character and reputation of the earlier marks ought to have been examined in the light of the public perception of the mark applied for, since in paragraph 39 of the application of the General Court You-Q puts forward: ‘It should be noted furthermore that the Board of Appeal wrongly did not — as it should have done — define the public whose perception should be taken into account to assess the distinctiveness and the reputation of the earlier mark. According to Intel this should be consumers of the goods and services for which the earlier mark is registered.’ Fourthly, the applicant contests the finding of the General Court that the Board of Appeal has held that the relevant public in relation to whom the earlier marks have reputations consists of the public at large. Fifthly, the applicant contests the finding by the General Court that, according to You-Q, the existence of a reputation must be established by reference to the public concerned by the mark applied for, namely a specialist public and furthermore contests considerations by the General Court with regard to the relevant public, more particularly overlaps in the relevant public, which cannot be a factor for the assessment of reputation of an earlier trade mark. Sixthly, the applicant contests the findings of the General Court as to what is required to establish an enormous reputation and a very substantial reputation for the goods and services concerned. Seventhly, the applicant contests the findings of the General Court with regard to the similarity of the signs. Eighthly, the applicant contests the application by the General Court of the global assessment test, and the relevant factors included in that test, to establish the required link. Finally, the applicant contests the application and interpretation by the General Court of the requirement of Article 8(5) of Regulation No 207/2009 that unfair advantage must be taken of the distinctive character or the repute of the earlier marks.

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(1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark

OJ L 78, p. 1

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| 6.10.2012 | EN | Official Journal of the European Union | C 303/12 |
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6.10.2012

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Official Journal of the European Union

C 303/12

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Reference for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 29 June 2012 — UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH, Munich (Germany), Wega Filmproduktionsgesellschaft mbH

(Case C-314/12)

2012/C 303/23

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Appellant in the appeal proceedings and defendant: UPC Telekabel Wien GmbH, Vienna

Respondents in the appeal proceedings and plaintiffs: Constantin Film Verleih GmbH, Munich, Wega Filmproduktionsgesellschaft mbH

Questions referred

| 1. | Is Article 8(3) of Directive 2001/29/EC (1) (the Information Directive) to be interpreted as meaning that a person who makes protected subject-matter available on the internet without the rightholder’s consent (Article 3(2) of the Information Directive) is using the services of the access providers of persons seeking access to that protected subject-matter? |
| --- | --- |

1.

Is Article 8(3) of Directive 2001/29/EC (1) (the Information Directive) to be interpreted as meaning that a person who makes protected subject-matter available on the internet without the rightholder’s consent (Article 3(2) of the Information Directive) is using the services of the access providers of persons seeking access to that protected subject-matter?

| 2. | If the answer to the first question is in the negative: Are reproduction for private use (Article 5(2)(b) of the Information Directive) and transient and incidental reproduction (Article 5(1) of the Information Directive) permissible only if the original of the reproduction was lawfully reproduced, distributed or made available to the public? |
| --- | --- |

2.

If the answer to the first question is in the negative: Are reproduction for private use (Article 5(2)(b) of the Information Directive) and transient and incidental reproduction (Article 5(1) of the Information Directive) permissible only if the original of the reproduction was lawfully reproduced, distributed or made available to the public?

| 3. | If the answer to the first question or the second question is in the affirmative and an injunction is therefore to be issued against the user’s access provider in accordance with Article 8(3) of the Information Directive: Is it compatible with Union law, in particular with the necessary balance between the parties’ fundamental rights, to quite simply prohibit an access provider from allowing its customers access to a certain website (without ordering specific measures) as long as the material available on that website is provided exclusively or predominantly without the rightholder’s consent, if the access provider can avoid incurring preventive penalties for breach of the prohibition by showing that it had nevertheless taken all reasonable measures? |
| --- | --- |

3.

If the answer to the first question or the second question is in the affirmative and an injunction is therefore to be issued against the user’s access provider in accordance with Article 8(3) of the Information Directive: Is it compatible with Union law, in particular with the necessary balance between the parties’ fundamental rights, to quite simply prohibit an access provider from allowing its customers access to a certain website (without ordering specific measures) as long as the material available on that website is provided exclusively or predominantly without the rightholder’s consent, if the access provider can avoid incurring preventive penalties for breach of the prohibition by showing that it had nevertheless taken all reasonable measures?

| 4. | If the answer to the third question is in the negative: Is it compatible with Union law, in particular with the necessary balance between the parties’ fundamental rights, to require an access provider to take specific measures to make it more difficult for its customers to access a website containing material that is made available unlawfully if those measures require not inconsiderable costs and can easily be circumvented without any special technical knowledge? |
| --- | --- |

4.

If the answer to the third question is in the negative: Is it compatible with Union law, in particular with the necessary balance between the parties’ fundamental rights, to require an access provider to take specific measures to make it more difficult for its customers to access a website containing material that is made available unlawfully if those measures require not inconsiderable costs and can easily be circumvented without any special technical knowledge?

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(1)  Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10).

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| 6.10.2012 | EN | Official Journal of the European Union | C 303/13 |
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6.10.2012

EN

Official Journal of the European Union

C 303/13

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Reference for a preliminary ruling from the Handelsgericht Wien (Austria) lodged on 9 July 2012 — Novontech-Zala Kft v LOGICDATA Electronic & Software Entwicklungs GmbH

(Case C-324/12)

2012/C 303/24

Language of the case: German

Referring court

Handelsgericht Wien

Parties to the main proceedings

Appellant and defendant: Novontech-Zala Kft

Respondent and applicant: LOGICDATA Electronic & Software Entwicklungs GmbH

Questions referred

| 1. | Does the failure on the part of a party’s lawyer to comply with the time limit for opposing a European order for payment constitute fault on the part of the defendant for the purposes of Article 20(1)(b) of Regulation (EC) 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure? (1) |
| --- | --- |

1.

Does the failure on the part of a party’s lawyer to comply with the time limit for opposing a European order for payment constitute fault on the part of the defendant for the purposes of Article 20(1)(b) of Regulation (EC) 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure? (1)

| 2. | If fault on the part of the lawyer representing the defendant is not to be regarded as fault on the part of the defendant itself, is the failure of the former to take note of the correct date of expiry of the time limit for opposing a European order for payment to be regarded as an extraordinary circumstance within the meaning of Article 20(2) of Regulation 1896/2006? |
| --- | --- |

2.

If fault on the part of the lawyer representing the defendant is not to be regarded as fault on the part of the defendant itself, is the failure of the former to take note of the correct date of expiry of the time limit for opposing a European order for payment to be regarded as an extraordinary circumstance within the meaning of Article 20(2) of Regulation 1896/2006?

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(1)  OJ 2006 L 399, p. 1.

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| 6.10.2012 | EN | Official Journal of the European Union | C 303/13 |
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6.10.2012

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Official Journal of the European Union

C 303/13

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Reference for a preliminary ruling from the Finanzgericht Düsseldorf (Germany) lodged on 10 July 2012 — Rita van Caster, Patrick van Caster v Finanzamt Essen-Süd

(Case C-326/12)

2012/C 303/25

Language of the case: German

Referring court

Finanzgericht Düsseldorf

Parties to the main proceedings

Applicant: Rita van Caster, Patrick van Caster

Defendant: Finanzamt Essen-Süd

Question referred

Does the flat-rate taxation of income from so-called ‘intransparent’ (domestic and) foreign investment funds under Paragraph 6 of the Law on Investment Tax (Investmentsteuergesetz) infringe European Community law (Article 56 EC) because it amounts to a disguised restriction on the free movement of capital (Article 58(3)) EC)?

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| 6.10.2012 | EN | Official Journal of the European Union | C 303/14 |
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6.10.2012

EN

Official Journal of the European Union

C 303/14

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Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 11 July 2012 — Ralph Schmidt (in his capacity as liquidator in respect of the assets of Aletta Zimmerman) v Lilly Hertel

(Case C-328/12)

2012/C 303/26

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: Ralph Schmidt (in his capacity as liquidator in respect of the assets of Aletta Zimmerman)

Defendant: Lilly Hertel

Question referred

The following question regarding the interpretation of Article 3(1) of Council Regulation (EC) No 1346/2000 on insolvency proceedings (1) is to be referred to the Court of Justice of the European Union for a preliminary ruling:

Do the courts of the Member State within the territory of which insolvency proceedings regarding the debtor’s assets have been opened have jurisdiction to decide an action to set a transaction aside by virtue of insolvency that is brought against a person whose place of residence or registered office is not within the territory of a Member State?

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(1)  OJ 2000 L 160, p. 1.

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| 6.10.2012 | EN | Official Journal of the European Union | C 303/14 |
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6.10.2012

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C 303/14

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Action brought on 13 July 2012 — European Commission v Portuguese Republic

(Case C-335/12)

2012/C 303/27

Language of the case: Portuguese

Parties

Applicant: European Commission (represented by: A. Caeiros, Agent)

Defendant: Portuguese Republic

Form of order sought

The Commission claims that the Court should:

| — | declare that, as a result of the refusal of the Portuguese authorities to make available a sum of EUR 785 078,50 corresponding to levies on surplus stocks of non-exported sugar, following the accession of Portugal to the European Community, the Portuguese Republic has failed to fulfil its obligations resulting from Article 10 EC, Article 254 of the Act of Accession, (1) Article 7 of Decision 85/257/EEC, Euratom, (2) Articles 4, 7 and 8 of Regulation (EEC) No 579/86, (3) Article 2 of Regulation (EEC) No 1697/79 (4) and Articles 2, 11 and 17 of Regulation (EEC, Euratom) No 1552/89; (5) |
| --- | --- |

—

declare that, as a result of the refusal of the Portuguese authorities to make available a sum of EUR 785 078,50 corresponding to levies on surplus stocks of non-exported sugar, following the accession of Portugal to the European Community, the Portuguese Republic has failed to fulfil its obligations resulting from Article 10 EC, Article 254 of the Act of Accession, (1) Article 7 of Decision 85/257/EEC, Euratom, (2) Articles 4, 7 and 8 of Regulation (EEC) No 579/86, (3) Article 2 of Regulation (EEC) No 1697/79 (4) and Articles 2, 11 and 17 of Regulation (EEC, Euratom) No 1552/89; (5)

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

—

order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

According to the information provided by the Portuguese authorities, the undertaking William Hinton & Sons did not provide proof of having exported the surplus sugar stocks in its possession. On 3 December 1990, the Portuguese authorities notified that undertaking that it had to pay an additional sum of EUR 785 078,50. The undertaking challenged that decision before the Supreme Tribunal Administrativo (Supreme Administrative Court; ‘STA’), which referred a number of questions to the Court of Justice for a preliminary ruling. On 11 October 2001, the Court of Justice delivered an order in Case C-30/00 William Hinton & Sons, (6) in which it stated that those questions ‘arose in the context of a dispute between William Hinton & Sons Lda ... and Fazenda Pública with regard to the post-clearance recovery of charges levied on surplus stocks of sugar held by William Hinton’. On 8 May 2002, the STA annulled the notice of assessment of the additional sum, because that sum was notified at a time when it was already time-barred.

Earlier case-law of the Court of Justice, namely the judgments of 7 December 2004 in Case T-240/02 Koninklijke Coöperatie Cosun v Commission, and of 26 October 2006 in Case C-68/05 P Koninklijke Coöperatie Cosun v Commission, suggests that the sum of EUR 785 078,50 referred to above could not continue to be classed as a ‘levy’ as it was in the order of the Court of Justice in Case C-30/00, but may continue to be classed as ‘own resources’ of the Communities.

Although that case-law concerns the levy of a sum under Article 3(1) of Regulation No 2670/81, (7) since a given quantity of C sugar was not exported outside of the Community, the fact remains that the chargeable event for the levying of that sum is essentially identical to the chargeable event for the levying of the sum provided for in Article 7(1)(a) of Regulation No 579/86, at issue in the present case. That provision states that a sum is levied on the quantities of sugar which exceed the carry-over stock and which have not been exported outside of the Community, since, in accordance with Article 5(2) of Regulation No 579/86, those quantities are regarded as having been disposed of on the internal market of the Community.

Pursuant to Article 2 of Decision 85/257, revenue from levies and other duties within the framework of the common organisation of the markets in sugar constitutes own resources.

It is apparent from Article 254 of the Act of Accession that the sum referred to above falls within the common organisation of the markets in sugar. That provision states that the carry-over stock which must be eliminated by and at the expense of the Portuguese Republic is that which in quantity exceeds or may be considered representative of a normal carry-over stock and that ‘the concept of normal carry-over stock shall be defined for each product on the basis of the criteria and objectives particular to each common organisation of the markets’ or, in the case of sugar, ‘the concept of normal carry-over stock’ should be defined on the basis of the criteria and objectives particular to the common organisation of the markets in sugar. Thus, the regulation at Community level of the elimination of sugar stocks forms part of the common organisation of the markets in sugar.

Regulation No 3771/85 (8) laid down, on the basis of Article 258(3) of the Act of Accession, ‘the general rules for the application of Article 254 of the Act of Accession’, defined the notion of ‘products in free circulation in Portuguese territory’, determined that ‘detailed rules for (its) application’ were to be adopted ‘in accordance with the procedure laid down ... in corresponding articles in other regulations on the common organisation of the agricultural markets’, and provided that ‘(t)he detailed rules ... shall relate in particular to: ... the procedures for disposing of surplus products’, and that the detailed rules ‘may make provision for: ... the collection of a charge in cases where a party concerned does not comply with the procedures for disposing of surplus products’.

Regulation No 579/86 which lays down detailed rules relating to stocks of products in the sugar sector in Spain and Portugal on 1 March 1986 was adopted by the Commission on the basis of Regulation No 3771/85 and on the basis of Regulation No 1785/81 on the common organisation of the markets in the sugar sector. The fact that the regulation which establishes the common organisation in the markets in the sugar sector is one of the legal bases of Regulation No 579/86 shows that the rules laid down by the latter and, consequently, the amount cited above fall within the common organisation in the markets in the sugar sector.

The sum of EUR 785 078,50, cited above, may be classed as ‘own resources’ of the Communities for the purposes of point (a) of the first paragraph of Article 2 of Decision 85/257, because it is revenue from ‘other duties provided for within the framework of the common organisation of the markets in the sugar sector’ resulting from the special regime put in place by the Portuguese Republic when it became a Member State, namely, a sum which should have been levied by the Portuguese authorities pursuant to Article 7(1)(a) of Regulation No 579/86.

Article 1 of Regulation No 3771/85 lays down ‘the general rules for the application of Article 254 of the Act of Accession’ and defines, in the second indent of Article 3(1)(b) that ‘products shall be considered as being in free circulation in Portuguese territory where: they are imported into Portugal, in respect of which import formalities have been completed and on which customs duties and equivalent charges have been collected in Portugal, without any total or partial drawback thereof’. The second indent of Article 3(1)(b) of Regulation No 3771/85 relates to ‘all products imported into Portugal’ including, thus also, those from other Member States.

Sugar from Denmark thus could and should have been taken into consideration in the calculation of the sugar stocks in free circulation in Portuguese territory on 1 March 1986. The Portuguese authorities consider that, even if, in the circumstances of the present case, Denmark were to have been considered to be a third country, the quantity of sugar imported (796 821 Kg) as ‘Bilhete de Importação no 246’ in the calculation of those stocks should not be taken into consideration, since, in their view, the sugar at issue was not in free circulation on 1 March 1986.

The Commission does not share that point of view because the tax court at second instance held, in its judgment of 26 March 1996, that there was factual evidence that that sugar had been cleared for customs purposes on 27 February 1986 and that it was authorised on that date for circulation and for consumption.

Neither Decision 85/257 and the subsequent decisions which substituted it, nor Regulation No 1552/89, which lays down the conditions in which the Communities’ ‘own resources’ are made available to the Commission, stipulate that the making available of own resources to the Commission is to form part of the Community budget. Articles 371 and 372 of the Act of Accession aim to adapt the application of Decision 85/257 to the specific situation resulting from the accession of Portugal and do not prevent revenue from the sum provided for in Article 7(1)(a) of Regulation No 579/86, namely, in the present case, the sum of EUR 785 078,50, from being classed as own resources.

The classification of a sum as own resources of the Communities results from Community legislation and, in particular, Decision 85/257; the classification given by the Member States is irrelevant.

In accordance with settled case-law, it is not necessary to show that a loss of own resources was caused by error on the part of some national authority. It is sufficient that, following a final decision of the STA, it was considered that the debtor was not taxable for payment of duties and that that fact is directly related to the late action of the Portuguese authorities in 1990. The Court of Justice confirmed this position of the Commission in its judgment of 15 November 2005 in Case C-392/02 Commission v Denmark.

The judgment of the STA of 8 May 2002 confirms that the Commission’s position is legally founded, that is, that the amount of the debt was not communicated to the debtor in good time, i.e. within three years, that the levy was thus not possible, and that, consequently, the own resources could not be made available to the Commission.

---

(1)  Act concerning the conditions of accession of the Kingdom of Spain and the Portuguese Republic and the adjustments to the Treaties (OJ 1985 L 302, p. 23).

(2)  Council Decision 85/257/EEC of 7 May 1985 on the Communities’ system of own resources (OJ 1985 L 128, p. 15).

(3)  Commission Regulation (EEC) No 579/86 of 28 February 1986 laying down detailed rules relating to stocks of products in the sugar sector in Spain and Portugal on 1 March 1986 (OJ 1986 L 57, p. 21).

(4)  Council Regulation (EEC) No 1697/79 of 24 July 1979 on the post-clearance recovery of import duties or export duties which have not been required of the person liable for payment on goods entered for a customs procedure involving the obligation to pay such duties (OJ 1979 L 197, p. 1).

(5)  Council Regulation (EEC, Euratom) No 1552/89 of 29 May 1989 implementing Decision 88/376/EEC, Euratom on the system of the Communities’ own resources (OJ 1989 L 155, p. 1).

(6)  Case C-30/00 William Hinton & Sons (2001) ECR I-7511.

(7)  Commission Regulation (EEC) No 2670/81 of 14 September 1981 laying down detailed implementing rules in respect of sugar production in excess of the quota (OJ 1981 L 262, p. 14).

(8)  Council Regulation (EEC) No 3771/85 of 20 December 1985 on stocks of agricultural products in Portugal (OJ 1985 L 362, p. 21).

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| 6.10.2012 | EN | Official Journal of the European Union | C 303/16 |
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6.10.2012

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Official Journal of the European Union

C 303/16

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Reference for a preliminary ruling from the Rechtbank van Koophandel te Gent (Belgium) lodged on 19 July 2012 — Euronics Belgium CVBA v Kamera Express BV & Kamera Express Belgium BVBA

(Case C-343/12)

2012/C 303/28

Language of the case: Dutch

Referring court

Rechtbank van Koophandel te Gent

Parties to the main proceedings

Applicant: Euronics Belgium CVBA

Defendants:

| | Kamera Express BV |
| --- | --- |

Kamera Express BV

| | Kamera Express Belgium BVBA |
| --- | --- |

Kamera Express Belgium BVBA

Question referred

Is Article 101 of the (Belgian) Law on market practices and consumer protection (Wet betreffende marktpraktijken en consumentenbescherming), which, inter alia, is intended to protect the interests of consumers and is worded as follows:

‘Article 101(1)All undertakings shall be prohibited from offering for sale or selling goods at a loss.

A sale at a loss shall mean any sale at a price which is not at least equal to the price at which the undertaking purchased the item or which the undertaking would have to pay to replenish its stock, after any discounts granted and definitively obtained. In order to determine whether a sale is a sale at a loss, no account shall be taken of discounts which, whether exclusive or non-exclusive, are granted in exchange for commitments entered into by the undertaking other than for the purchase of goods’,

contrary to Directive 2005/29/EC (1) in so far as it prohibits sales at a loss, whereas Directive 2005/29/EC appears not to prohibit such sales practices and the Belgian Law may be stricter than the provisions of Directive 2005/29/EC and the prohibition under Article 4 of that directive?

1

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(1)  Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (OJ 2005 L 149, p. 22).

1

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| 6.10.2012 | EN | Official Journal of the European Union | C 303/16 |
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6.10.2012

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Official Journal of the European Union

C 303/16

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Appeal brought on 24 July 2012 by Council of the European Union against the judgment of the General Court (Fifth Chamber) delivered on 4 May 2012 in Case T-529/09: Sophie in ’t Veld v Council of the European Union

(Case C-350/12 P)

2012/C 303/29

Language of the case: English

Parties

Appellant: Council of the European Union (represented by: P. Berman, B. Driessen, Cs. Fekete, Agents)

Other parties to the proceedings: Sophie in ’t Veld, European Commission

Form of order sought

The appellant claims that the Court should:

| — | set aside the contested judgment of the General Court; |
| --- | --- |

—

set aside the contested judgment of the General Court;

| — | give final judgment in the matters that are the subject of this appeal; |
| --- | --- |

—

give final judgment in the matters that are the subject of this appeal;

and

| — | order the Applicant in Case T-529/09 to pay the costs of the Council arising from that case and from the present appeal. |
| --- | --- |

—

order the Applicant in Case T-529/09 to pay the costs of the Council arising from that case and from the present appeal.

Pleas in law and main arguments

The present appeal concerns the interpretation of the exceptions relating to the protection of the public interest as regards international relations and to the protection of legal advice. These exceptions are set out respectively in an absolute exception to the right of public access in the third indent of Article 4(1)(a) and in a qualified exception to the right of public access in the second indent of Article 4(2) of the Regulation (1).

The Council submits that the General Court, in its interpretation of the said exceptions, made four mistakes.

First, the General Court errs in holding that a disagreement on the choice of a legal basis cannot undermine the EU's interests in international relations (first limb of the first plea). Disputes on Union competence and on the choice of the legal basis between the institutions are closely intertwined with conflicts on the substance of international agreements. Disputes on competence between the institutions may moreover impact on the negotiating position of the EU, adversely affect its credibility as a negotiating partner and jeopardise the outcome of the negotiations.

Secondly, the General Court applied the wrong standard of review and replaced the Council's assessment of the significance for international relations of the document concerned with its own (second limb of the first plea). In relation to the protection of the public interest in international relations, the standard of review if one that accords ‘wide discretion’ to the institution concerned rather than requiring the demonstration of ‘actual and specific’ harm. The General Court erred in law in carrying out a full review of the Council's reasons by applying the ‘actual and specific’ harm requirement, thereby replacing the Council's assessment of the foreign policy consequences of the public release of the document with its own assessment.

Thirdly, the General Court erred in law by failing to consider both the sensitive content of the requested legal opinion and the specific circumstances prevailing at the time that access was sought (first limb of the second plea). The matter dealt with in the legal opinion relates to sensitive international negotiations which were still on-going at the time of the access request, where essential and vital interests in the area of transatlantic cooperation on the prevention and combating of terrorism and terrorist financing were at stake and where the issue of the choice of the legal basis addressed in the legal opinion was the subject of disagreement between the institutions. The General Court overlooked these specific characteristics of the legal advice.

Last, the General Court erroneously assimilated the negotiation and conclusion of an international agreement with the institutions’ legislative activities for the purposes of applying the overriding public interest test (second limb of the second plea). By doing so, the General Court overlooked important differences between the negotiation of international agreements, where public participation is necessarily restricted in view of the strategic and tactical interests at stake, and the conclusion and transposition of such agreements.

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

OJ L 145, p. 43

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| 6.10.2012 | EN | Official Journal of the European Union | C 303/17 |
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Official Journal of the European Union

C 303/17

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Reference for a preliminary ruling from the Audiencia Provincial de Barcelona (Spain), lodged on 1 August 2012 — Miguel Fradera Torredemer and Others v Corporación Uniland, S.A.

(Case C-364/12)

2012/C 303/30

Language of the case: Spanish

Referring court

Audiencia Provincial de Barcelona

Parties to the main proceedings

Appellants: Miguel Fradera Torredemer, Maria Teresa Torredemer Marcet, Enrique Fradera Ohlsen and Alicia Fradera Torredemer

Respondent: Corporación Uniland, S.A.

Questions referred

| 1. | Are Article 101 TFEU (formerly Article 81 of the EC Treaty, read in conjunction with Article 10) and Article 4(3) TEU compatible with rules such as those laid down in the regulation on the tariff applying to procuradores, namely: Royal Decree 1373/2003 of 7 November 2003, which provides that their remuneration is subject to a minimum tariff or scale, which can be varied, upwards or downwards, only by 12 % and when it is not really possible for the authorities of the Member State, including the courts, to depart from the minimum levels laid down in the statutory scale if exceptional circumstances arise? |
| --- | --- |

1.

Are Article 101 TFEU (formerly Article 81 of the EC Treaty, read in conjunction with Article 10) and Article 4(3) TEU compatible with rules such as those laid down in the regulation on the tariff applying to procuradores, namely: Royal Decree 1373/2003 of 7 November 2003, which provides that their remuneration is subject to a minimum tariff or scale, which can be varied, upwards or downwards, only by 12 % and when it is not really possible for the authorities of the Member State, including the courts, to depart from the minimum levels laid down in the statutory scale if exceptional circumstances arise?

| 2. | For the purpose of applying the tariff without applying the minimum levels laid down therein: may the fact that the amount of fees payable under the scale or tariff is disproportionate to the work actually done be regarded as exceptional circumstances? |
| --- | --- |

2.

For the purpose of applying the tariff without applying the minimum levels laid down therein: may the fact that the amount of fees payable under the scale or tariff is disproportionate to the work actually done be regarded as exceptional circumstances?

| 3. | Is Article 56 TFEU (formerly Article 49) compatible with the regulation on the tariff applying to procuradores, namely: Royal Decree 1373/2003 of 7 November 2003? |
| --- | --- |

3.

Is Article 56 TFEU (formerly Article 49) compatible with the regulation on the tariff applying to procuradores, namely: Royal Decree 1373/2003 of 7 November 2003?

| 4. | Do these rules meet the requirements of necessity and proportionality referred to in Article 15(3) of Directive 2006/123/EC? (1) |
| --- | --- |

4.

Do these rules meet the requirements of necessity and proportionality referred to in Article 15(3) of Directive 2006/123/EC? (1)

| 5. | Does Article 6 of the European Convention on Human Rights, enshrining the right to a fair trial, include the right to defend oneself properly in a situation in which the figure at which the fees of a procurador are set is disproportionately high and does not correspond to the work actually carried out? |
| --- | --- |

5.

Does Article 6 of the European Convention on Human Rights, enshrining the right to a fair trial, include the right to defend oneself properly in a situation in which the figure at which the fees of a procurador are set is disproportionately high and does not correspond to the work actually carried out?

| 6. | If so, are the provisions of the Spanish Law on civil procedure, which prevent the party ordered to pay costs from challenging the amount of the fees of the procurador on the grounds that they are considered to be excessively high and do not correspond to the work actually carried out, compatible with Article 6 of the European Convention? |
| --- | --- |

6.

If so, are the provisions of the Spanish Law on civil procedure, which prevent the party ordered to pay costs from challenging the amount of the fees of the procurador on the grounds that they are considered to be excessively high and do not correspond to the work actually carried out, compatible with Article 6 of the European Convention?

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(1)  Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36).

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| 6.10.2012 | EN | Official Journal of the European Union | C 303/18 |
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Official Journal of the European Union

C 303/18

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Reference for a preliminary ruling from Supreme Court (Ireland) made on 3 August 2012 — Thomas Pringle v Government of Ireland, Ireland and the Attorney General

(Case C-370/12)

2012/C 303/31

Language of the case: English

Referring court

Supreme Court

Parties to the main proceedings

Applicant: Thomas Pringle

Defendant: Government of Ireland, Ireland and the Attorney General

Questions referred

| 1. | Whether European Council Decision 2011/199/EU of 25th March 2011 (1) is valid:






  — | Having regard to the use of the simplified revision procedure pursuant to Article 48(6) TEU and, in particular, whether the proposed amendment to Article 136 TFEU involved an increase in the competences conferred on the Union in the Treaties; |
| --- | --- | --- |

1.

Whether European Council Decision 2011/199/EU of 25th March 2011 (1) is valid:

—

Having regard to the use of the simplified revision procedure pursuant to Article 48(6) TEU and, in particular, whether the proposed amendment to Article 136 TFEU involved an increase in the competences conferred on the Union in the Treaties;

| — | Having regard to the content of the proposed amendment, in particular whether it involves any violation of the Treaties or of the general principles of law of the Union. |
| --- | --- |

—

Having regard to the content of the proposed amendment, in particular whether it involves any violation of the Treaties or of the general principles of law of the Union.

| 2. | Having regard to






  — | Articles 2 and 3 TEU and the provisions of Part Three, Title VIII TFEU, and in particular Articles 119, 120, 121, 122, 123, 125, 126, and 127 TFEU; |
| --- | --- | --- |

2.

Having regard to

—

Articles 2 and 3 TEU and the provisions of Part Three, Title VIII TFEU, and in particular Articles 119, 120, 121, 122, 123, 125, 126, and 127 TFEU;

| — | the exclusive competence of the Union in monetary policy as set out in Article 3(1)(c) TFEU and in concluding international agreements falling within the scope of Article 3(2) TFEU; |
| --- | --- |

—

the exclusive competence of the Union in monetary policy as set out in Article 3(1)(c) TFEU and in concluding international agreements falling within the scope of Article 3(2) TFEU;

| — | the competence of the Union in coordinating economic policy, in accordance with Article 2(3) TFEU and Part Three, Title VIII TFEU; |
| --- | --- |

—

the competence of the Union in coordinating economic policy, in accordance with Article 2(3) TFEU and Part Three, Title VIII TFEU;

| — | the powers and functions of Union Institutions pursuant to principles set out in Article l3 TEU; |
| --- | --- |

—

the powers and functions of Union Institutions pursuant to principles set out in Article l3 TEU;

| — | the principle of sincere cooperation laid down in Article 4(3) TEU; |
| --- | --- |

—

the principle of sincere cooperation laid down in Article 4(3) TEU;

| — | the general principles of Union law including in particular the general principle of effective judicial protection and the right to an effective remedy as provided under Article 47 of the Charter of Fundamental Rights of the European Union and the general principle of legal certainty; |
| --- | --- |

—

the general principles of Union law including in particular the general principle of effective judicial protection and the right to an effective remedy as provided under Article 47 of the Charter of Fundamental Rights of the European Union and the general principle of legal certainty;

is a Member State of the European Union whose currency is the euro entitled to enter into and ratify an international agreement such as the ESM Treaty?

| 3. | If the European Council Decision is held valid, is the entitlement of a Member State to enter into and ratify an international agreement such as the ESM Treaty subject to the entry into force of that Decision? |
| --- | --- |

3.

If the European Council Decision is held valid, is the entitlement of a Member State to enter into and ratify an international agreement such as the ESM Treaty subject to the entry into force of that Decision?

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(1)  European Council Decision of 25 March 2011 amending Article 136 of the Treaty on the Functioning of the European Union with regard to a stability mechanism for Member States whose currency is the euro

OJ L 91, p. 1

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| 6.10.2012 | EN | Official Journal of the European Union | C 303/18 |
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Official Journal of the European Union

C 303/18

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Reference for a preliminary ruling from the Raad van State (Netherlands), lodged on 3 August 2012 — Minister voor Immigratie, Integratie en Asiel, other parties: M. and S.

(Case C-372/12)

2012/C 303/32

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Appellant: Minister voor Immigratie, Integratie en Asiel

Respondents: M. and S.

Questions referred

| 1. | Should the second indent of Article 12(a) of Directive 95/46/EC (1) of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data be interpreted to mean that there is a right to a copy of documents in which personal data have been processed, or is it sufficient if a full summary, in an intelligible form, of the personal data that have undergone processing in the documents concerned is provided? |
| --- | --- |

1.

Should the second indent of Article 12(a) of Directive 95/46/EC (1) of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data be interpreted to mean that there is a right to a copy of documents in which personal data have been processed, or is it sufficient if a full summary, in an intelligible form, of the personal data that have undergone processing in the documents concerned is provided?

| 2. | Should the words ‘right of access’ in Article 8(2) of the Charter of Fundamental Rights of the European Union (2) be interpreted to mean that there is a right to a copy of documents in which personal data have been processed, or is it sufficient if there is provision of a full summary, in an intelligible form, of the personal data that have undergone processing in the documents concerned within the meaning of the second indent of Article 12(a) of Directive 95/46/EC ...? |
| --- | --- |

2.

Should the words ‘right of access’ in Article 8(2) of the Charter of Fundamental Rights of the European Union (2) be interpreted to mean that there is a right to a copy of documents in which personal data have been processed, or is it sufficient if there is provision of a full summary, in an intelligible form, of the personal data that have undergone processing in the documents concerned within the meaning of the second indent of Article 12(a) of Directive 95/46/EC ...?

| 3. | Is Article 41(2)(b) of the Charter of Fundamental Rights of the European Union also addressed to the Member States of the European Union in so far as they are implementing European Union law within the meaning of Article 51(1) of that Charter? |
| --- | --- |

3.

Is Article 41(2)(b) of the Charter of Fundamental Rights of the European Union also addressed to the Member States of the European Union in so far as they are implementing European Union law within the meaning of Article 51(1) of that Charter?

| 4. | Does the consequence that, as a result of the granting of access to ‘minutes’, the reasons why a particular decision is proposed are no longer recorded therein, which is not in the interests of the internal undisturbed exchange of views within the public authority concerned and of orderly decision-making, constitute a legitimate interest of confidentiality within the meaning of Article 41(2)(b) of the Charter of Fundamental Rights of the European Union? |
| --- | --- |

4.

Does the consequence that, as a result of the granting of access to ‘minutes’, the reasons why a particular decision is proposed are no longer recorded therein, which is not in the interests of the internal undisturbed exchange of views within the public authority concerned and of orderly decision-making, constitute a legitimate interest of confidentiality within the meaning of Article 41(2)(b) of the Charter of Fundamental Rights of the European Union?

| 5. | Can a legal analysis, as set out in a ‘minute’, be regarded as personal data within the meaning of Article 2(a) of Directive 95/46/EC ...? |
| --- | --- |

5.

Can a legal analysis, as set out in a ‘minute’, be regarded as personal data within the meaning of Article 2(a) of Directive 95/46/EC ...?

| 6. | Does the protection of the rights and freedoms of others, within the meaning of Article 13(1)(g) of Directive 95/46/EC ..., also cover the interest in an internal undisturbed exchange of views within the public authority concerned? If the answer to that is in the negative, can that interest then be covered by Article 13(1)(d) or (f) of that directive? |
| --- | --- |

6.

Does the protection of the rights and freedoms of others, within the meaning of Article 13(1)(g) of Directive 95/46/EC ..., also cover the interest in an internal undisturbed exchange of views within the public authority concerned? If the answer to that is in the negative, can that interest then be covered by Article 13(1)(d) or (f) of that directive?

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(1)  OJ 1995 L 281, p. 31.

(2)  OJ 2000 C 364, p. 1.

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| 6.10.2012 | EN | Official Journal of the European Union | C 303/19 |
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C 303/19

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Appeal brought on 7 August 2012 by Arav Holding Srl against the judgment of the General Court (Second Chamber) delivered on 19 June 2012 in Case T-557/10 H.Eich v OHIM — Arav (H.EICH)

(Case C-379/12 P)

2012/C 303/33

Language of the case: Italian

Parties

Appellant: Arav Holding Srl (represented by: R. Bocchini, avvocato)

Other parties to the proceedings: H.Eich Srl, Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

Form of order sought

Set aside in full the judgment of 19 June 2012 of the General Court of the European Union and, accordingly, uphold the decision of the First Board of Appeal of OHIM delivered on 9 September 2010, on the ground that the latter fully complied with and applied the rules laid down in the Community trade mark regulation (‘CTMR’), (1) in particular Article 8(1)(b) thereof.

Pleas in law and main arguments

By its appeal, Arav Holding Srl challenges the judgment of the General Court in question in two respects.

First, it complains that the General Court failed to recognise the graphic, phonetic and conceptual similarity between, on the one hand, the Italian national figurative mark ‘H SILVIAN HEACH’ and the international figurative mark ‘H SILVIAN HEACH’ and, on the other, the mark ‘H.EICH’. The General Court failed to identify correctly the essential core of the mark, namely the surname and not the first name. In addition, the General Court failed to take into account the limited significance of the use of a point, which is extremely small in relation to the letters, and failed to take into consideration that the earlier trade mark is a ‘strong’ mark.

Second, Arav Holding Srl submits that the General Court erred in finding that there was no overall likelihood of confusion between the marks resulting from their similarity and the similar uses made of them.

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

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| 6.10.2012 | EN | Official Journal of the European Union | C 303/20 |
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Official Journal of the European Union

C 303/20

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Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands), lodged on 8 August 2012 — X BV, other party: Minister van Financiën

(Case C-380/12)

2012/C 303/34

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Appellant: X BV

Other party: Minister van Financiën

Questions referred

| 1. | Does the expression ‘eliminating the impurities’ in HS Note 1 to Chapter 25 of the Harmonised System also cover the stripping of a chemical product in a crude state of certain chemical particles included therein through natural circumstances, and where the elimination thereof occurs with a view to the strengthening of (specific) natural properties of the mineral product which had previously decreased in strength due to those natural circumstances? |
| --- | --- |

1.

Does the expression ‘eliminating the impurities’ in HS Note 1 to Chapter 25 of the Harmonised System also cover the stripping of a chemical product in a crude state of certain chemical particles included therein through natural circumstances, and where the elimination thereof occurs with a view to the strengthening of (specific) natural properties of the mineral product which had previously decreased in strength due to those natural circumstances?

| 2. | If, on the basis of the answer to the question raised in 1 above, it can be established that the elimination of impurities within the meaning of HS Note 1 to Chapter 25 has occurred, on the basis of what criteria should an assessment then be made as to whether an extracted mineral product such as decolorising earth, after being washed successively with sulphuric acid and water, can remain classified under heading 2508 40 00 of the CN on the basis of the aforementioned Note, and should not rather be regarded as a chemical product as referred to in Chapter 38 of the HS? |
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2.

If, on the basis of the answer to the question raised in 1 above, it can be established that the elimination of impurities within the meaning of HS Note 1 to Chapter 25 has occurred, on the basis of what criteria should an assessment then be made as to whether an extracted mineral product such as decolorising earth, after being washed successively with sulphuric acid and water, can remain classified under heading 2508 40 00 of the CN on the basis of the aforementioned Note, and should not rather be regarded as a chemical product as referred to in Chapter 38 of the HS?

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| 6.10.2012 | EN | Official Journal of the European Union | C 303/20 |
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6.10.2012

EN

Official Journal of the European Union

C 303/20

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Appeal brought on 9 August 2012 by I Marchi Italiani Srl against the judgment of the General Court (Sixth Chamber) delivered on 28 June 2012 in Case T-133/09 I Marchi Italiani and Basile v OHIM — Osra

(Case C-381/12 P)

2012/C 303/35

Language of the case: Italian

Parties

Appellant: I Marchi Italiani Srl (represented by: L. Militerni and G. Militerni, avvocati)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Osra SA

Form of order sought

| — | Set aside in part the judgment of the General Court of the European Union in so far as that Court dismissed the action brought by I Marchi Italiani Srl and ordered it to pay the costs, with the exception of those relating to the discontinuance; |
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Set aside in part the judgment of the General Court of the European Union in so far as that Court dismissed the action brought by I Marchi Italiani Srl and ordered it to pay the costs, with the exception of those relating to the discontinuance;

| — | grant in part the forms of order sought at first instance and, consequently, annul the decision of the Second Board of Appeal of OHIM of 9 January 2009 — notified to the appellant on 30 January 2009 — in proceedings R 502/2008 between I Marchi Italiani Srl and Osra SA, which upheld the decision of the Cancellation Division which had allowed the application for revocation and declaration of invalidity of the mark ‘B Antonio Basile 1952’ following the action brought by Osra S.A; |
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grant in part the forms of order sought at first instance and, consequently, annul the decision of the Second Board of Appeal of OHIM of 9 January 2009 — notified to the appellant on 30 January 2009 — in proceedings R 502/2008 between I Marchi Italiani Srl and Osra SA, which upheld the decision of the Cancellation Division which had allowed the application for revocation and declaration of invalidity of the mark ‘B Antonio Basile 1952’ following the action brought by Osra S.A;

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

order OHIM to pay the costs.

Pleas in law and main arguments

The appeal lodged by the company I Marchi Italiani Srl is based on the following three grounds:

| 1. | Infringement of Article 135(4) of the Rules of Procedure of the General Court, in so far as the General Court erred in declaring that the documents produced by I Marchi Italiani Srl must be excluded without it being necessary to assess their probative value, and that the arguments relating to the reputation of the contested mark and to the infringement of the principle of good faith were inadmissible. |
| --- | --- |

1.

Infringement of Article 135(4) of the Rules of Procedure of the General Court, in so far as the General Court erred in declaring that the documents produced by I Marchi Italiani Srl must be excluded without it being necessary to assess their probative value, and that the arguments relating to the reputation of the contested mark and to the infringement of the principle of good faith were inadmissible.

| 2. | Infringement of Article 53(2) of Regulation No 40/94 (1) (now Article 54(2) of Regulation No 207/2009), (2) in so far as the General Court erred in declaring that less than five years had elapsed between the date of registration of the (contested) trade mark and the date when the application for a declaration of invalidity was filed and that, therefore, the date on which the Community trade mark application was filed was irrelevant. |
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2.

Infringement of Article 53(2) of Regulation No 40/94 (1) (now Article 54(2) of Regulation No 207/2009), (2) in so far as the General Court erred in declaring that less than five years had elapsed between the date of registration of the (contested) trade mark and the date when the application for a declaration of invalidity was filed and that, therefore, the date on which the Community trade mark application was filed was irrelevant.

| 3. | Infringement of Article 8(1)(b) of Regulation No 40/94, in so far as the General Court erred in finding that the marks at issue were similar and therefore misapplied that provision by concluding that there was a likelihood of confusion. |
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3.

Infringement of Article 8(1)(b) of Regulation No 40/94, in so far as the General Court erred in finding that the marks at issue were similar and therefore misapplied that provision by concluding that there was a likelihood of confusion.

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

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

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| 6.10.2012 | EN | Official Journal of the European Union | C 303/21 |
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6.10.2012

EN

Official Journal of the European Union

C 303/21

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Order of the President of the Court of 9 July 2012 (reference for a preliminary ruling from the Administrativen sad Varna — Bulgaria) — Dobrudzhanska petrolna kompania AD v Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — gr. Varna, pri Tsentralno upravlenie na Natsionalnata Agentsia po Prihodite

(Case C-298/11) (1)

2012/C 303/36

Language of the case: Bulgarian

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

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(1)  OJ C 232, 6.8.2011.

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| 6.10.2012 | EN | Official Journal of the European Union | C 303/21 |
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6.10.2012

EN

Official Journal of the European Union

C 303/21

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Order of the President of the Court of 11 July 2012 — European Commission v Czech Republic

(Case C-353/11) (1)

2012/C 303/37

Language of the case: Czech

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

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(1)  OJ C 252, 27.8.2011.

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| 6.10.2012 | EN | Official Journal of the European Union | C 303/21 |
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6.10.2012

EN

Official Journal of the European Union

C 303/21

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Order of the President of the Court of 8 May 2012 — ThyssenKrupp Elevator (CENE) GmbH, formerly ThyssenKrupp Aufzüge GmbH, ThyssenKrupp Fahrtreppen GmbH v European Commission

(Case C-503/11 P) (1)

2012/C 303/38

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 347, 26.11.2011.

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| 6.10.2012 | EN | Official Journal of the European Union | C 303/21 |
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6.10.2012

EN

Official Journal of the European Union

C 303/21

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Order of the President of the Court of 8 May 2012 — ThyssenKrupp Ascenseurs Luxemburg Sàrl v European Commission

(Case C-504/11 P) (1)

2012/C 303/39

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 347, 26.11.2011.

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| 6.10.2012 | EN | Official Journal of the European Union | C 303/21 |
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6.10.2012

EN

Official Journal of the European Union

C 303/21

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Order of the President of the Court of 8 May 2012 — ThyssenKrupp Elevator AG v European Commission

(Case C-505/11 P) (1)

2012/C 303/40

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 347, 26.11.2011.

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| 6.10.2012 | EN | Official Journal of the European Union | C 303/21 |
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6.10.2012

EN

Official Journal of the European Union

C 303/21

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Order of the President of the Court of 8 May 2012 — ThyssenKrupp AG v European Commission

(Case C-506/11 P) (1)

2012/C 303/41

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 347, 26.11.2011.

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| 6.10.2012 | EN | Official Journal of the European Union | C 303/21 |
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6.10.2012

EN

Official Journal of the European Union

C 303/21

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Order of the President of the Court of 18 June 2012 — (reference for a preliminary ruling from the Bundesgerichtshof — Germany) — Criminal proceedings against Vu Thang Dang, interested party: Generalbundesanwalt beim Bundesgerichtshof

(Case C-39/12) (1)

2012/C 303/42

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 118, 21.4.2012.

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General Court

| 6.10.2012 | EN | Official Journal of the European Union | C 303/22 |
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6.10.2012

EN

Official Journal of the European Union

C 303/22

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Action brought on 25 July 2012 — Soltau v Commission

(Case T-333/12)

2012/C 303/43

Language of the case: German

Parties

Applicant: Christoff Soltau (Adendorf, Germany) (represented by: T. Rosenkranz, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul the decision of the European Commission of 14 May 2012; |
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—

annul the decision of the European Commission of 14 May 2012;

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

order the defendant to pay the costs.

Pleas in law and main arguments

In support of his action, the applicant claims that the second indent of Article 4(2) of Regulation (EC) No 1049/2001 (1) does not preclude him from accessing the Commission’s opinion, which the latter communicated to the Austrian Oberster Gerichtshof (Supreme Court) in accordance with Article 15(3) of Regulation (EC) No 1/2003 (2) in the context of a cartel case. In the applicant’s view, Article 4(2) does not apply to the document to which the applicant seeks access, since the proceedings before the Austrian court do not, in principle, fall within the scope of protection of that provision. Even if that were the case, the document in question would not fall within the scope of the provision, since the document was not communicated by the Commission as a party to the proceedings. Moreover, the Commission’s decision cannot be justified on the basis of protection of the proceedings in Case C-681/11 Schenker and Others, pending before the Court of Justice. Indeed, the reference for a preliminary ruling was made by the Austrian Oberster Gerichtshof in the context of the cartel case at issue; however, the document in question was neither issued by the Commission in the context of the proceedings for a preliminary ruling, nor does its content relate to the questions referred.

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

(2)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles (101) and (102) (TFEU) (OJ 2003 L 1, p. 1).

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