# Official Journal C 95/2011

| | ISSN 1725-2423
  doi:10.3000/17252423.C_2011.095.eng |
| --- | --- |
| Official Journal
  of the European Union | C 95 |
| | |
| English edition | Information and Notices | Volume 5426 March 2011 |

ISSN 1725-2423

doi:10.3000/17252423.C_2011.095.eng

Official Journal

of the European Union

C 95

English edition

Information and Notices

Volume 5426 March 2011

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| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | Court of Justice of the European Union |
| 2011/C 095/01 | Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 89, 19.3.2011 | 1 |

Notice No

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

2011/C 095/01

Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 89, 19.3.2011

Official Journal of the European Union

1

| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2011/C 095/02 | Case C-590/10: Reference for a preliminary ruling from the Bayerischer Verwaltungsgerichtshof (Germany) lodged on 15 December 2010 — Wolfgang Köppl v Freistaat Bayern | 2 |
| 2011/C 095/03 | Case C-618/10: Reference for a preliminary ruling from the Audiencia Provincial de Barcelona (Spain) lodged on 29 December 2010 — Banco Español de Crédito, S.A. v Joaquín Calderón Camino | 2 |
| 2011/C 095/04 | Case C-1/11: Reference for a preliminary ruling from the Verwaltungsgericht Mainz (Germany) lodged on 3 January 2011 — Interseroh Scrap and Metal Trading GmbH v Sonderabfall-Management-Gesellschaft Rheinland-Pfalz mbH (SAM) | 3 |
| 2011/C 095/05 | Case C-4/11: Reference for a preliminary ruling from the Hessischer Verwaltungsgerichtshof (Germany) lodged on 5 January 2011 – Federal Republic of Germany v Kaveh Puid | 3 |
| 2011/C 095/06 | Case C-9/11: Reference for a preliminary ruling from the Cour d’appel de Bruxelles (Belgium) lodged on 7 January 2011 — Waypoint Aviation SA v État belge — SPF Finances | 4 |
| 2011/C 095/07 | Case C-11/11: Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 11 January 2011 — Société Air France S.A. v Heinz-Gerke Folkerts and Luz-Tereza Folkerts | 5 |
| 2011/C 095/08 | Case C-13/11: Reference for a preliminary ruling from the Tribunal da Relação de Guimarães (Portugal) lodged on 11 January 2011 — Maria das Dores Meira da Silva v Zurich — Companhia de Seguros SA | 5 |
| 2011/C 095/09 | Case C-21/11: Reference for a preliminary ruling from the Commissione Tributaria Provinciale di Benevento (Provincial Tax Court, Benevento) lodged on 14 January 2011 — Volturno Trasporti SAS di Santoro Nino & C. v Camera di Commercio Benevento; Concessione Equitalia Sestri S.P.A. | 6 |
| 2011/C 095/10 | Case C-24/11P: Appeal brought on 17 January 2011 by the Kingdom of Spain against the judgment delivered on 12 November 2010 in Case T-113/08 Kingdom of Spain v European Commission | 6 |
| | General Court |
| 2011/C 095/11 | Case T-213/09: Judgment of the General Court of 15 February 2011 — Yorma's v OHIM — Norma Lebensmittelfilialbetrieb (YORMA’S) (Community trade mark — Opposition proceedings — Application for the Community figurative mark including the word element yorma’s — Earlier Community word mark NORMA — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009)) | 7 |
| 2011/C 095/12 | Case T-37/11: Action brought on 21 January 2011 — Republic of Hungary v European Commission | 7 |
| 2011/C 095/13 | Case T-62/11: Action brought on 25 January 2011 — Air France — KLM v Commission | 8 |
| 2011/C 095/14 | Case T-63/11: Action brought on 24 January 2011 — Air France v Commission | 9 |
| 2011/C 095/15 | Case T-67/11: Action brought on 24 January 2011 — Martinair Holland v Commission | 9 |
| 2011/C 095/16 | Case T-74/11: Action brought on 1 February 2011 — Omnis Group Srl v European Commission | 10 |
| 2011/C 095/17 | Case T-77/11: Action brought on 31 January 2011 — Truvo Belgium v OHIM — AOL (TRUVO) | 11 |
| 2011/C 095/18 | Case T-86/11: Action brought on 14 February 2011 — Bamba v Council | 11 |
| | European Union Civil Service Tribunal |
| 2011/C 095/19 | Case F-76/09: Judgment of the Civil Service Tribunal (First Chamber) of 15 February 2011 AH v Commission (Civil service — Social security — Articles 72 and 76a of the Staff Regulations — General Implementing Provisions — Reliance on care — Surviving spouse of a retired official — Rejection of the request for reimbursement in full of nursing attendance costs and for financial assistance — Action out of time — Inadmissibility) | 13 |
| 2011/C 095/20 | Case F-81/09: Judgment of the Civil Service Tribunal (First Chamber) of 15 February 2011 — Marcuccio v Commission (Civil service — Officials — Invalidity allowance — Error in the calculation — Payment of arrears — Default interest due — Rate applicable — Annual capitalisation Material and non-material damage) | 13 |
| 2011/C 095/21 | Case F-95/09: Judgment of the Civil Service Tribunal (Second Chamber) of 8 February 2011 — Skareby v Commission (Civil service — Officials — Psychological harassment by a hierarchical superior — Articles 12a and 24 of the Staff Regulations — Request for assistance — Reasonable period — Point from which time starts to run — Length of time) | 13 |
| 2011/C 095/22 | Case F-8/11: Action brought on 7 February 2011 — Nieminen v Council | 14 |
| 2011/C 095/23 | Case F-10/11: Action brought on 7 February 2011 — Bojinova and Ghiba v Commission | 14 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2011/C 095/02

Case C-590/10: Reference for a preliminary ruling from the Bayerischer Verwaltungsgerichtshof (Germany) lodged on 15 December 2010 — Wolfgang Köppl v Freistaat Bayern

2

2011/C 095/03

Case C-618/10: Reference for a preliminary ruling from the Audiencia Provincial de Barcelona (Spain) lodged on 29 December 2010 — Banco Español de Crédito, S.A. v Joaquín Calderón Camino

2

2011/C 095/04

Case C-1/11: Reference for a preliminary ruling from the Verwaltungsgericht Mainz (Germany) lodged on 3 January 2011 — Interseroh Scrap and Metal Trading GmbH v Sonderabfall-Management-Gesellschaft Rheinland-Pfalz mbH (SAM)

3

2011/C 095/05

Case C-4/11: Reference for a preliminary ruling from the Hessischer Verwaltungsgerichtshof (Germany) lodged on 5 January 2011 – Federal Republic of Germany v Kaveh Puid

3

2011/C 095/06

Case C-9/11: Reference for a preliminary ruling from the Cour d’appel de Bruxelles (Belgium) lodged on 7 January 2011 — Waypoint Aviation SA v État belge — SPF Finances

4

2011/C 095/07

Case C-11/11: Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 11 January 2011 — Société Air France S.A. v Heinz-Gerke Folkerts and Luz-Tereza Folkerts

5

2011/C 095/08

Case C-13/11: Reference for a preliminary ruling from the Tribunal da Relação de Guimarães (Portugal) lodged on 11 January 2011 — Maria das Dores Meira da Silva v Zurich — Companhia de Seguros SA

5

2011/C 095/09

Case C-21/11: Reference for a preliminary ruling from the Commissione Tributaria Provinciale di Benevento (Provincial Tax Court, Benevento) lodged on 14 January 2011 — Volturno Trasporti SAS di Santoro Nino & C. v Camera di Commercio Benevento; Concessione Equitalia Sestri S.P.A.

6

2011/C 095/10

Case C-24/11P: Appeal brought on 17 January 2011 by the Kingdom of Spain against the judgment delivered on 12 November 2010 in Case T-113/08 Kingdom of Spain v European Commission

6

General Court

2011/C 095/11

Case T-213/09: Judgment of the General Court of 15 February 2011 — Yorma's v OHIM — Norma Lebensmittelfilialbetrieb (YORMA’S) (Community trade mark — Opposition proceedings — Application for the Community figurative mark including the word element yorma’s — Earlier Community word mark NORMA — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))

7

2011/C 095/12

Case T-37/11: Action brought on 21 January 2011 — Republic of Hungary v European Commission

7

2011/C 095/13

Case T-62/11: Action brought on 25 January 2011 — Air France — KLM v Commission

8

2011/C 095/14

Case T-63/11: Action brought on 24 January 2011 — Air France v Commission

9

2011/C 095/15

Case T-67/11: Action brought on 24 January 2011 — Martinair Holland v Commission

9

2011/C 095/16

Case T-74/11: Action brought on 1 February 2011 — Omnis Group Srl v European Commission

10

2011/C 095/17

Case T-77/11: Action brought on 31 January 2011 — Truvo Belgium v OHIM — AOL (TRUVO)

11

2011/C 095/18

Case T-86/11: Action brought on 14 February 2011 — Bamba v Council

11

European Union Civil Service Tribunal

2011/C 095/19

Case F-76/09: Judgment of the Civil Service Tribunal (First Chamber) of 15 February 2011 AH v Commission (Civil service — Social security — Articles 72 and 76a of the Staff Regulations — General Implementing Provisions — Reliance on care — Surviving spouse of a retired official — Rejection of the request for reimbursement in full of nursing attendance costs and for financial assistance — Action out of time — Inadmissibility)

13

2011/C 095/20

Case F-81/09: Judgment of the Civil Service Tribunal (First Chamber) of 15 February 2011 — Marcuccio v Commission (Civil service — Officials — Invalidity allowance — Error in the calculation — Payment of arrears — Default interest due — Rate applicable — Annual capitalisation Material and non-material damage)

13

2011/C 095/21

Case F-95/09: Judgment of the Civil Service Tribunal (Second Chamber) of 8 February 2011 — Skareby v Commission (Civil service — Officials — Psychological harassment by a hierarchical superior — Articles 12a and 24 of the Staff Regulations — Request for assistance — Reasonable period — Point from which time starts to run — Length of time)

13

2011/C 095/22

Case F-8/11: Action brought on 7 February 2011 — Nieminen v Council

14

2011/C 095/23

Case F-10/11: Action brought on 7 February 2011 — Bojinova and Ghiba v Commission

14

| EN | |
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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

| 26.3.2011 | EN | Official Journal of the European Union | C 95/1 |
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26.3.2011

EN

Official Journal of the European Union

C 95/1

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2011/C 95/01

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

OJ C 89, 19.3.2011

Past publications

OJ C 80, 12.3.2011

OJ C 72, 5.3.2011

OJ C 63, 26.2.2011

OJ C 55, 19.2.2011

OJ C 46, 12.2.2011

OJ C 38, 5.2.2011

These texts are available on:

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

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V Announcements

COURT PROCEEDINGS

Court of Justice

| 26.3.2011 | EN | Official Journal of the European Union | C 95/2 |
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26.3.2011

EN

Official Journal of the European Union

C 95/2

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Reference for a preliminary ruling from the Bayerischer Verwaltungsgerichtshof (Germany) lodged on 15 December 2010 — Wolfgang Köppl v Freistaat Bayern

(Case C-590/10)

2011/C 95/02

Language of the case: German

Referring court

Bayerischer Verwaltungsgerichtshof

Parties to the main proceedings

Applicant: Wolfgang Köppl

Defendant: Freistaat Bayern

Questions referred

| 1. | Are Article 1(2) and Article 8(2) and (4) of Directive 91/439/EEC (1) — with particular regard to Article 2(1) and Article 3(1) of the Charter of Fundamental Rights of the European Union — to be interpreted as meaning that a Member State (the ‘host Member State’) is entitled not to recognise a Category B driving licence which another Member State (‘the issuing Member State’) has issued to a person on whom the host Member State has imposed prior measures within the meaning of Article 8(2) of Directive 91/439/EEC and which driving licence is on the face of the document itself in breach of the residence requirement of Article 7(1)(b) of Directive 91/439/EEC, if that person has subsequently obtained in the issuing Member State a Category C driving licence which is not on the face of that driving licence in breach of the residence requirement? |
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1.

Are Article 1(2) and Article 8(2) and (4) of Directive 91/439/EEC (1) — with particular regard to Article 2(1) and Article 3(1) of the Charter of Fundamental Rights of the European Union — to be interpreted as meaning that a Member State (the ‘host Member State’) is entitled not to recognise a Category B driving licence which another Member State (‘the issuing Member State’) has issued to a person on whom the host Member State has imposed prior measures within the meaning of Article 8(2) of Directive 91/439/EEC and which driving licence is on the face of the document itself in breach of the residence requirement of Article 7(1)(b) of Directive 91/439/EEC, if that person has subsequently obtained in the issuing Member State a Category C driving licence which is not on the face of that driving licence in breach of the residence requirement?

| 2. | If the answer to that question is in the affirmative, can the host Member State refuse to recognise the Category C driving licence issued to that person? |
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2.

If the answer to that question is in the affirmative, can the host Member State refuse to recognise the Category C driving licence issued to that person?

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(1)  Council Directive 91/439/EEC of 29 July 1991 on driving licences (OJ 1991 L 237, p. 1).

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| 26.3.2011 | EN | Official Journal of the European Union | C 95/2 |
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26.3.2011

EN

Official Journal of the European Union

C 95/2

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Reference for a preliminary ruling from the Audiencia Provincial de Barcelona (Spain) lodged on 29 December 2010 — Banco Español de Crédito, S.A. v Joaquín Calderón Camino

(Case C-618/10)

2011/C 95/03

Language of the case: Spanish

Referring court

Audiencia Provincial de Barcelona

Parties to the main proceedings

Appellant: Banco Español de Crédito, S.A.

Respondent: Joaquín Calderón Camino

Questions referred

| 1. | Is it contrary to Community law, in particular the law on consumers and users, for a national court to avoid giving a ruling of its own motion and in limine litis or at any stage during the proceedings on whether or not a term concerning interest on late payments (in this case 29 %) in a consumer credit agreement is void and on whether or not that term should be modified. May the court, without prejudicing the rights of the consumer under Community law, decide to leave any evaluation of such a term to the initiative of the debtor (by means of the appropriate procedural objection)? |
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1.

Is it contrary to Community law, in particular the law on consumers and users, for a national court to avoid giving a ruling of its own motion and in limine litis or at any stage during the proceedings on whether or not a term concerning interest on late payments (in this case 29 %) in a consumer credit agreement is void and on whether or not that term should be modified. May the court, without prejudicing the rights of the consumer under Community law, decide to leave any evaluation of such a term to the initiative of the debtor (by means of the appropriate procedural objection)?

| 2. | In the light of Article 6(1) of Directive 93/13/EEC (1) and Article 2 of Directive 2009/22/EEC, (2) what is the correct interpretation of Article 83 of Real Decreto Legislativo No 1/2007 (Royal Legislative Decree No 1/2007) (formerly Article 8 of Ley General No 26/1984, de 19 julio, para la Defensa de los Consumidores y Usarios) (General Law No 26/1984 of 19 July 1984 for the protection of consumers and users) for those purposes? What is the scope in that regard of Article 6(1) of Directive 93/13/EEC where it provides that unfair contract terms ‘shall not be binding on the consumer’? |
| --- | --- |

2.

In the light of Article 6(1) of Directive 93/13/EEC (1) and Article 2 of Directive 2009/22/EEC, (2) what is the correct interpretation of Article 83 of Real Decreto Legislativo No 1/2007 (Royal Legislative Decree No 1/2007) (formerly Article 8 of Ley General No 26/1984, de 19 julio, para la Defensa de los Consumidores y Usarios) (General Law No 26/1984 of 19 July 1984 for the protection of consumers and users) for those purposes? What is the scope in that regard of Article 6(1) of Directive 93/13/EEC where it provides that unfair contract terms ‘shall not be binding on the consumer’?

| 3. | Is it possible to exclude judicial review of a court’s own motion and in limine litis where the applicant clearly states in his application the rate of interest on late payments, the amount of the claim, including the principal and interest, the contractual penalties and the costs, the interest rate and the period of time for which that interest is demanded (or a statement that statutory interest is automatically added to the principle under the law of the Member State of origin), the cause of the action, including a description of the facts relied on as the basis of the claim and the interest demanded, and it is clearly stated whether it concerns statutory or contractual interest, capitalisation of interest or the interest rate for the loan, whether it has been calculated by the applicant and the number of percentage points above the Central Bank base rate, as is the case with the Community regulation on the European order for payment procedure? (3) |
| --- | --- |

3.

Is it possible to exclude judicial review of a court’s own motion and in limine litis where the applicant clearly states in his application the rate of interest on late payments, the amount of the claim, including the principal and interest, the contractual penalties and the costs, the interest rate and the period of time for which that interest is demanded (or a statement that statutory interest is automatically added to the principle under the law of the Member State of origin), the cause of the action, including a description of the facts relied on as the basis of the claim and the interest demanded, and it is clearly stated whether it concerns statutory or contractual interest, capitalisation of interest or the interest rate for the loan, whether it has been calculated by the applicant and the number of percentage points above the Central Bank base rate, as is the case with the Community regulation on the European order for payment procedure? (3)

| 4. | In the absence of their transposition, do Articles 5(1)(l) and (m) and 6(1)(i) of Directive 2008/48/EC, (4) where they refer to ‘arrangements for its adjustment’, and Article 10(2)(1), where it refers to ‘arrangements for its adjustment’, require the financial institution specifically to include and to highlight in the contract (not in the body of the text, in an undifferentiated manner) as ‘pre-contractual information’ references to the interest rate applicable in the case of late payments, in the event of default, set out clearly and in a prominent place, and the elements taken into account when determining them (financial costs, recovery costs etc.) and to include a warning regarding the consequences connected with those cost elements? |
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4.

In the absence of their transposition, do Articles 5(1)(l) and (m) and 6(1)(i) of Directive 2008/48/EC, (4) where they refer to ‘arrangements for its adjustment’, and Article 10(2)(1), where it refers to ‘arrangements for its adjustment’, require the financial institution specifically to include and to highlight in the contract (not in the body of the text, in an undifferentiated manner) as ‘pre-contractual information’ references to the interest rate applicable in the case of late payments, in the event of default, set out clearly and in a prominent place, and the elements taken into account when determining them (financial costs, recovery costs etc.) and to include a warning regarding the consequences connected with those cost elements?

| 5. | Does Article 6(2) of Directive 2008/48/EEC include the requirement to notify the early termination of a credit or loan agreement which gives rise to the charging of interest on late payments? Is the principle of the prohibition on unjustified enrichment contained in Article 7 of Directive 2008/48/EEC applicable where the credit institution seeks not only the recovery of the goods (the loan capital), but also the application of an especially high rate of interest on late payments? |
| --- | --- |

5.

Does Article 6(2) of Directive 2008/48/EEC include the requirement to notify the early termination of a credit or loan agreement which gives rise to the charging of interest on late payments? Is the principle of the prohibition on unjustified enrichment contained in Article 7 of Directive 2008/48/EEC applicable where the credit institution seeks not only the recovery of the goods (the loan capital), but also the application of an especially high rate of interest on late payments?

| 6. | In the absence of any transposing provision and in the light of Article 11(2) of Directive 2005/29/EC, (5) may the court find of its own motion that it is an unfair practice to include in a contract a term concerning interest on late payments? |
| --- | --- |

6.

In the absence of any transposing provision and in the light of Article 11(2) of Directive 2005/29/EC, (5) may the court find of its own motion that it is an unfair practice to include in a contract a term concerning interest on late payments?

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(1)  Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).

(2)  Directive 2009/22/EC of the European Parliament and of the Council of 23 April 2009 on injunctions for the protection of consumers’ interests (OJ 2009 L 110, p. 30).

(3)  Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure (OJ 2006 L 399, p. 1).

(4)  Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC (OJ 2008 L 133, p. 66).

(5)  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).

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| 26.3.2011 | EN | Official Journal of the European Union | C 95/3 |
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26.3.2011

EN

Official Journal of the European Union

C 95/3

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Reference for a preliminary ruling from the Verwaltungsgericht Mainz (Germany) lodged on 3 January 2011 — Interseroh Scrap and Metal Trading GmbH v Sonderabfall-Management-Gesellschaft Rheinland-Pfalz mbH (SAM)

(Case C-1/11)

2011/C 95/04

Language of the case: German

Referring court

Verwaltungsgericht Mainz

Parties to the main proceedings

Applicant: Interseroh Scrap and Metal Trading GmbH

Defendant: Sonderabfall-Management-Gesellschaft Rheinland-Pfalz mbH (SAM)

Questions referred

| 1. | Does Article 18(4) of Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste (1) also apply to those involved in the shipment process? |
| --- | --- |

1.

Does Article 18(4) of Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste (1) also apply to those involved in the shipment process?

| 2. | If not, is Article 18(1) of that regulation restricted by EU primary law on the protection of business secrets? |
| --- | --- |

2.

If not, is Article 18(1) of that regulation restricted by EU primary law on the protection of business secrets?

| 3. | If question 1 is answered in the affirmative, is the obligation under Article 18(1) of that regulation on the persons who arrange the shipments to disclose the name of the waste producer or waste collector to the consignee of the waste by means of the document set out in Annex VII limited by Article 18(4) in order to protect business secrets? |
| --- | --- |

3.

If question 1 is answered in the affirmative, is the obligation under Article 18(1) of that regulation on the persons who arrange the shipments to disclose the name of the waste producer or waste collector to the consignee of the waste by means of the document set out in Annex VII limited by Article 18(4) in order to protect business secrets?

| 4. | If question 3 is answered in the affirmative, does the extent of the limitation depend on a weighing up of the interests (on the one hand, the business interests affected, on the other, protection of the environment) on a case-by-case basis? |
| --- | --- |

4.

If question 3 is answered in the affirmative, does the extent of the limitation depend on a weighing up of the interests (on the one hand, the business interests affected, on the other, protection of the environment) on a case-by-case basis?

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(1)  OJ 2006 L 190, p. 1.

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| 26.3.2011 | EN | Official Journal of the European Union | C 95/3 |
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26.3.2011

EN

Official Journal of the European Union

C 95/3

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Reference for a preliminary ruling from the Hessischer Verwaltungsgerichtshof (Germany) lodged on 5 January 2011 – Federal Republic of Germany v Kaveh Puid

(Case C-4/11)

2011/C 95/05

Language of the case: German

Referring court

Hessischer Verwaltungsgerichtshof

Parties to the main proceedings

Applicant: Federal Republic of Germany

Defendant: Kaveh Puid

Questions referred

| 1. | Is the first sentence of Article 3(2) of Regulation 343/2003, (1) pursuant to which a Member State is entitled to examine an asylum application made to it which, under Article 3(1) of the regulation, another Member State is responsible for (‘the Member State assuming responsibility’), in derogation from that responsibility (the so-called ‘right to assume responsibility’), to be interpreted as meaning that the duty of a Member State to exercise the right granted to it under that provision to the benefit of asylum-seekers can also be inferred from reasons not directly associated with the asylum-seeker himself or other particularities of an individual case, but which result from a situation in the Member State assuming responsibility which poses a threat to the fundamental rights of asylum-seekers under the Charter of Fundamental Rights of the European Union (‘Charter of Fundamental Rights’)? |
| --- | --- |

1.

Is the first sentence of Article 3(2) of Regulation 343/2003, (1) pursuant to which a Member State is entitled to examine an asylum application made to it which, under Article 3(1) of the regulation, another Member State is responsible for (‘the Member State assuming responsibility’), in derogation from that responsibility (the so-called ‘right to assume responsibility’), to be interpreted as meaning that the duty of a Member State to exercise the right granted to it under that provision to the benefit of asylum-seekers can also be inferred from reasons not directly associated with the asylum-seeker himself or other particularities of an individual case, but which result from a situation in the Member State assuming responsibility which poses a threat to the fundamental rights of asylum-seekers under the Charter of Fundamental Rights of the European Union (‘Charter of Fundamental Rights’)?

| 2. | If the first question should be answered in the affirmative:
  Does the case where the Member State assuming responsibility has failed to satisfy in a serious manner and for an uncertain period of time one or several of the requirements laid down in Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum-seekers (OJ 2003 L 31, p. 18) and Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (OJ 2005 L 326, p. 13) provide relevant grounds for a Member State to be required to assume responsibility as a result of the situation in the Member State required to assume responsibility with a view to protecting the fundamental rights in Article 3(1), Article 4, Article 18, Article 19(2) and Article 47 of the Charter of Fundamental Rights? |
| --- | --- |

2.

If the first question should be answered in the affirmative:

Does the case where the Member State assuming responsibility has failed to satisfy in a serious manner and for an uncertain period of time one or several of the requirements laid down in Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum-seekers (OJ 2003 L 31, p. 18) and Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (OJ 2005 L 326, p. 13) provide relevant grounds for a Member State to be required to assume responsibility as a result of the situation in the Member State required to assume responsibility with a view to protecting the fundamental rights in Article 3(1), Article 4, Article 18, Article 19(2) and Article 47 of the Charter of Fundamental Rights?

| 3. | If the second question should be answered in the negative:
  Is there a duty on the part of the Member States to exercise their right under the first sentence of Article 3(2) of Regulation 343/2003 in view of the guarantees laid down in the Charter of Fundamental Rights referred to above at any rate if, in the Member State assuming responsibility, particularly serious deficiencies exist which could fundamentally compromise the procedural guarantees for asylum-seekers or pose a threat to the existence or the physical integrity of the transferred asylum-seeker? |
| --- | --- |

3.

If the second question should be answered in the negative:

Is there a duty on the part of the Member States to exercise their right under the first sentence of Article 3(2) of Regulation 343/2003 in view of the guarantees laid down in the Charter of Fundamental Rights referred to above at any rate if, in the Member State assuming responsibility, particularly serious deficiencies exist which could fundamentally compromise the procedural guarantees for asylum-seekers or pose a threat to the existence or the physical integrity of the transferred asylum-seeker?

| 4. | If either the second or third question should be answered in the affirmative:
  Does an enforceable personal right on the part of the asylum-seeker to force a Member State to assume responsibility result from the duty of the Member States to exercise their right under the first sentence of Article 3(2) of Regulation 343/2003? |
| --- | --- |

4.

If either the second or third question should be answered in the affirmative:

Does an enforceable personal right on the part of the asylum-seeker to force a Member State to assume responsibility result from the duty of the Member States to exercise their right under the first sentence of Article 3(2) of Regulation 343/2003?

---

(1)  Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (OJ 2003 L 50, p. 1).

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| 26.3.2011 | EN | Official Journal of the European Union | C 95/4 |
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26.3.2011

EN

Official Journal of the European Union

C 95/4

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Reference for a preliminary ruling from the Cour d’appel de Bruxelles (Belgium) lodged on 7 January 2011 — Waypoint Aviation SA v État belge — SPF Finances

(Case C-9/11)

2011/C 95/06

Language of the case: French

Referring court

Cour d’appel de Bruxelles

Parties to the main proceedings

Applicant: Waypoint Aviation SA

Defendant: État belge — SPF Finances

Questions referred

| 1. | Does Article 49 EC prelude the application of a national provision such as Article 29(2)(d) of the Law of 11 April 1983, in so far as:
  first, that provision permits the grant of a tax credit, the notional withholding tax, to the recipients of income from debt-claims or loans granted to a coordination centre, within the meaning of Royal Decree No 187 of 30 December 1982 on the creation of coordination centres, when the company which uses the funds borrowed by or through the coordination centre in order to acquire a tangible asset which it uses in Belgium in the exercise of its business activity, confers the right to use that asset on a company which forms part of the same group of companies and which is resident in Belgium, whereas, second, that provision does not permit the grant of a tax credit when the same company confers a right to use the same tangible asset on a company which also forms part of the same group of companies but which is resident in a Member State other than Belgium? |
| --- | --- |

1.

Does Article 49 EC prelude the application of a national provision such as Article 29(2)(d) of the Law of 11 April 1983, in so far as:

first, that provision permits the grant of a tax credit, the notional withholding tax, to the recipients of income from debt-claims or loans granted to a coordination centre, within the meaning of Royal Decree No 187 of 30 December 1982 on the creation of coordination centres, when the company which uses the funds borrowed by or through the coordination centre in order to acquire a tangible asset which it uses in Belgium in the exercise of its business activity, confers the right to use that asset on a company which forms part of the same group of companies and which is resident in Belgium, whereas, second, that provision does not permit the grant of a tax credit when the same company confers a right to use the same tangible asset on a company which also forms part of the same group of companies but which is resident in a Member State other than Belgium?

| 2. | Must Article 10 EC, read in conjunction with Article 49 EC, be understood as prohibiting an interpretation of a provision such as Article 29(2)(d) of the Law of 11 April 1983, which makes the grant of a tax credit, the notional withholding tax, to the recipients of income from debt-claims or loans granted to a coordination centre, within the meaning of Royal Decree No 187 of 30 December 1982 on the creation of coordination centres, subject to the condition that no right to use the tangible asset financed by means of those debt-claims or loans is conferred on a member of the group established in another Member State, by any company in the group, and not only by the company which acquires the tangible asset through that financing, and which uses it in Belgium in the exercise of its business activity? |
| --- | --- |

2.

Must Article 10 EC, read in conjunction with Article 49 EC, be understood as prohibiting an interpretation of a provision such as Article 29(2)(d) of the Law of 11 April 1983, which makes the grant of a tax credit, the notional withholding tax, to the recipients of income from debt-claims or loans granted to a coordination centre, within the meaning of Royal Decree No 187 of 30 December 1982 on the creation of coordination centres, subject to the condition that no right to use the tangible asset financed by means of those debt-claims or loans is conferred on a member of the group established in another Member State, by any company in the group, and not only by the company which acquires the tangible asset through that financing, and which uses it in Belgium in the exercise of its business activity?

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| 26.3.2011 | EN | Official Journal of the European Union | C 95/5 |
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26.3.2011

EN

Official Journal of the European Union

C 95/5

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Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 11 January 2011 — Société Air France S.A. v Heinz-Gerke Folkerts and Luz-Tereza Folkerts

(Case C-11/11)

2011/C 95/07

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: Société Air France S.A.

Defendant: Heinz-Gerke Folkerts, Luz-Tereza Folkerts

Questions referred

| 1. | Does a passenger have a right to compensation under Article 7 of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, (1) in the case where departure was delayed for a period which is below the limits specified in Article 6(1) of that regulation, but arrival at the final destination was at least three hours later than the scheduled arrival time? |
| --- | --- |

1.

Does a passenger have a right to compensation under Article 7 of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, (1) in the case where departure was delayed for a period which is below the limits specified in Article 6(1) of that regulation, but arrival at the final destination was at least three hours later than the scheduled arrival time?

| 2. | If the first question is answered in the negative:
  For the purpose of determining whether there was a delay, within the terms of Article 6(1) of Regulation No 261/2004, in the case of a flight consisting of several stages, should reference be made to the individual stages or to the distance to the final destination? |
| --- | --- |

2.

If the first question is answered in the negative:

For the purpose of determining whether there was a delay, within the terms of Article 6(1) of Regulation No 261/2004, in the case of a flight consisting of several stages, should reference be made to the individual stages or to the distance to the final destination?

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(1)  OJ 2004 L 46, p. 1.

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| 26.3.2011 | EN | Official Journal of the European Union | C 95/5 |
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26.3.2011

EN

Official Journal of the European Union

C 95/5

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Reference for a preliminary ruling from the Tribunal da Relação de Guimarães (Portugal) lodged on 11 January 2011 — Maria das Dores Meira da Silva v Zurich — Companhia de Seguros SA

(Case C-13/11)

2011/C 95/08

Language of the case: Portuguese

Referring court

Tribunal da Relação de Guimarães

Parties to the main proceedings

Applicant: Maria das Dores Meira da Silva

Defendant: Zurich — Companhia de Seguros SA

Questions referred

| 1. | In a road-traffic accident involving a motor vehicle and a pedestrian crossing the road, in which the pedestrian suffers personal and material damage, is the exclusion of compensation for such loss where the loss-causing event is due to the conduct of the pedestrian — in accordance with Articles 505 and 570 of the Portuguese Civil Code as interpreted — contrary to Community law and in particular to Articles 3(1) of the First Directive (72/166/EEC), (1) 2(1) of the Second Directive (84/5/EEC) (2) and 1a of the Third Directive (90/232/EEC), (3) inserted by Article 4 of the Fifth Directive (2005/14/EC) (4) (all relating to insurance against civil liability in respect of the use of motor vehicles), in the light of the case-law of the Court of Justice concerning the circumstances in which compensation on the basis of compulsory motor vehicle insurance may be excluded? |
| --- | --- |

1.

In a road-traffic accident involving a motor vehicle and a pedestrian crossing the road, in which the pedestrian suffers personal and material damage, is the exclusion of compensation for such loss where the loss-causing event is due to the conduct of the pedestrian — in accordance with Articles 505 and 570 of the Portuguese Civil Code as interpreted — contrary to Community law and in particular to Articles 3(1) of the First Directive (72/166/EEC), (1) 2(1) of the Second Directive (84/5/EEC) (2) and 1a of the Third Directive (90/232/EEC), (3) inserted by Article 4 of the Fifth Directive (2005/14/EC) (4) (all relating to insurance against civil liability in respect of the use of motor vehicles), in the light of the case-law of the Court of Justice concerning the circumstances in which compensation on the basis of compulsory motor vehicle insurance may be excluded?

| 2. | If the answer is in the affirmative, that is, that such an exclusion of compensation is contrary to Community law, is the interpretation of the abovementioned provisions of Portuguese civil law to the effect that such compensation may be limited or reduced having regard to the fault of the pedestrian, on the one hand, and the risk posed by the motor vehicle, on the other, in causing the accident, consistent with the Community directives referred to? |
| --- | --- |

2.

If the answer is in the affirmative, that is, that such an exclusion of compensation is contrary to Community law, is the interpretation of the abovementioned provisions of Portuguese civil law to the effect that such compensation may be limited or reduced having regard to the fault of the pedestrian, on the one hand, and the risk posed by the motor vehicle, on the other, in causing the accident, consistent with the Community directives referred to?

---

(1)  Council Directive 72/166/EEC of 24 April 1972 on the approximation of the laws of Member States relating to insurance against civil liability in respect of the use of motor vehicles, and to the enforcement of the obligation to insure against such liability (OJ, English Special Edition 1972 (II), p. 360).

(2)  Second Council Directive 84/5/EEC of 30 December 1983 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles (OJ 1984 L 8, p. 17).

(3)  Third Council Directive 90/232/EEC of 14 May 1990 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles (OJ 1990 L 129, p. 33).

(4)  Directive 2005/14/EC of the European Parliament and of the Council of 11 May 2005 amending Council Directives 72/166/EEC, 84/5/EEC, 88/357/EEC and 90/232/EEC and Directive 2000/26/EC of the European Parliament and of the Council relating to insurance against civil liability in respect of the use of motor vehicles (OJ 2005 L 149, p. 14).

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| 26.3.2011 | EN | Official Journal of the European Union | C 95/6 |
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26.3.2011

EN

Official Journal of the European Union

C 95/6

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Reference for a preliminary ruling from the Commissione Tributaria Provinciale di Benevento (Provincial Tax Court, Benevento) lodged on 14 January 2011 — Volturno Trasporti SAS di Santoro Nino & C. v Camera di Commercio Benevento; Concessione Equitalia Sestri S.P.A.

(Case C-21/11)

2011/C 95/09

Language of the case: Italian

Referring court

Commissione Tributaria Provinciale di Benevento

Parties to the main proceedings

Applicant: Volturno Trasporti SAS di Santoro Nino & C.

Defendants: Camera di Commercio Benevento; Concessione Equitalia Sestri S.P.A.

Question referred

Is the Italian Chamber of Commerce fee, in particular, Article 18(3) of Italian Law No 580 of 29 December 1993 on the reorganisation of the Chambers of Commerce, Industry, Craftsmanship and Agriculture, as amended and supplemented, compatible with Council Directive No 69/335/EEC (1) of 17 July 1969, in particular, with Articles 10(c) and 12(e)?

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(1)  OJ, English Special Edition 1969 (II), p. 412.

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| 26.3.2011 | EN | Official Journal of the European Union | C 95/6 |
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26.3.2011

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Official Journal of the European Union

C 95/6

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Appeal brought on 17 January 2011 by the Kingdom of Spain against the judgment delivered on 12 November 2010 in Case T-113/08 Kingdom of Spain v European Commission

(Case C-24/11P)

2011/C 95/10

Language of the case: Spanish

Parties

Appellant(s): Kingdom of Spain (represented by: M. Muñoz Pérez, agent)

Other party/parties to the proceedings: European Commission

Form of order sought

| — | Grant the appeal and set aside the judgment of the General Court of 12 November 2010 in Case T-113/08 Kingdom of Spain v European Commission |
| --- | --- |

—

Grant the appeal and set aside the judgment of the General Court of 12 November 2010 in Case T-113/08 Kingdom of Spain v European Commission

| — | Annulment of all the financial corrections relating to aid for the production of olive oil granted in Commission Decision 2008/68/EC (1) of 20 December 2007; in the alternative, annulment of the financial corrections in the olive oil production sector which relate to expenditure for which advances were paid before 24 November 2002; in the further alternative, annulment of the financial corrections in the olive oil production sector which relate to expenditure for which advances were paid before 15 July 2000. |
| --- | --- |

—

Annulment of all the financial corrections relating to aid for the production of olive oil granted in Commission Decision 2008/68/EC (1) of 20 December 2007; in the alternative, annulment of the financial corrections in the olive oil production sector which relate to expenditure for which advances were paid before 24 November 2002; in the further alternative, annulment of the financial corrections in the olive oil production sector which relate to expenditure for which advances were paid before 15 July 2000.

Pleas in law and main arguments

| 1. | Internal inconsistency in the reasoning of the General Court and breach of Article 8 of Regulation 1663/95 (2) in accepting that the Commission should base its financial correction on irregularities not specified in letter AGR 16844 by which the results of investigation HO/2002/91/ES were communicated. |
| --- | --- |

1.

Internal inconsistency in the reasoning of the General Court and breach of Article 8 of Regulation 1663/95 (2) in accepting that the Commission should base its financial correction on irregularities not specified in letter AGR 16844 by which the results of investigation HO/2002/91/ES were communicated.

| 2. | Breach of Articles 36 and 53 of the Statute of the Court of Justice arising from failure to state sufficient reasons in the judgment by making no mention at all of, and as a result not ruling on, an essential head of claim formulated by the Kingdom of Spain in the record of the hearing concerning the determination of the dies ad quem for the time-limit of 24 months provided for in Article 5(2)(c) of Regulation No 729/70 (3) and Article 7 of Regulation No 1258/1999. (4) |
| --- | --- |

2.

Breach of Articles 36 and 53 of the Statute of the Court of Justice arising from failure to state sufficient reasons in the judgment by making no mention at all of, and as a result not ruling on, an essential head of claim formulated by the Kingdom of Spain in the record of the hearing concerning the determination of the dies ad quem for the time-limit of 24 months provided for in Article 5(2)(c) of Regulation No 729/70 (3) and Article 7 of Regulation No 1258/1999. (4)

| 3. | Infringement of the time-limit of 24 months established in Article 5(2)(c) of Regulation No 729/70 and Article 7 of Regulation No 1258/1999:






  — | First, by calculating that time-limit from the date of the AGR 16844 letter, although that did not specify all the grounds on which the financial correction was based. |
| --- | --- | --- |

3.

Infringement of the time-limit of 24 months established in Article 5(2)(c) of Regulation No 729/70 and Article 7 of Regulation No 1258/1999:

—

First, by calculating that time-limit from the date of the AGR 16844 letter, although that did not specify all the grounds on which the financial correction was based.

| — | Secondly, by relying on a judgment of the Court of Justice (5) which is not applicable to a sector such as the olive oil production sector, in order to hold that the decisive date for the calculation of the time-limit of 24 months is the date of payment of the balance rather than payment of the advance. |
| --- | --- |

—

Secondly, by relying on a judgment of the Court of Justice (5) which is not applicable to a sector such as the olive oil production sector, in order to hold that the decisive date for the calculation of the time-limit of 24 months is the date of payment of the balance rather than payment of the advance.

---

(1)  excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) (OJ 2008 L 18, p. 12)

(2)  Commission Regulation (EC) No 1663/95 of 7 July 1995 laying down detailed rules for the application of Council Regulation (EEC) No 729/70 regarding the procedure for the clearance of the accounts of the EAGGF Guarantee Section

(3)  Regulation (EEC) No 729/70 of the Council of 21 April 1970 on the financing of the common agricultural policy (English special edition: Series I Chapter 1970(I) p. 218)

(4)  Council Regulation (EC) No 1258/1999 of 17 May 1999 on the financing of the common agricultural policy (OJ 1999 L 160, p. 103)

(5)  In Case C-329/00 Spain v Commission [2003] ECR I-6103

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General Court

| 26.3.2011 | EN | Official Journal of the European Union | C 95/7 |
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Official Journal of the European Union

C 95/7

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Judgment of the General Court of 15 February 2011 — Yorma's v OHIM — Norma Lebensmittelfilialbetrieb (YORMA’S)

(Case T-213/09) (1)

(Community trade mark - Opposition proceedings - Application for the Community figurative mark including the word element ‘yorma’s’ - Earlier Community word mark NORMA - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))

2011/C 95/11

Language of the case: German

Parties

Applicant: Yorma’s AG (Deggendorf, Germany) (represented by: A. Weiß, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Norma Lebensmittelfilialbetrieb GmbH & Co. KG (Nuremberg, Germany) (represented by: A. von Welser, lawyer)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 20 February 2009 (Case R 1879/2007-1), concerning opposition proceedings between Norma Lebensmittelfilialbetrieb GmbH & Co. KG and Yorma’s AG

Operative part of the judgment

The Court:

| 1. | dismisses the action; |
| --- | --- |

1.

dismisses the action;

| 2. | orders Yorma’s AG to pay the costs. |
| --- | --- |

2.

orders Yorma’s AG to pay the costs.

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(1)  OJ C 180, 1.8.2009.

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| 26.3.2011 | EN | Official Journal of the European Union | C 95/7 |
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C 95/7

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Action brought on 21 January 2011 — Republic of Hungary v European Commission

(Case T-37/11)

2011/C 95/12

Language of the case: Hungarian

Parties

Applicant(s): Republic of Hungary (represented by: M.Z. Fehér, K. Szíjjártó and G. Koós, Agents)

Defendant(s): European Commission

Form of order sought

| — | Annulment of the Commission debit note and recovery order No 3241011280, in so far as, in respect of the Republic of Hungary, it classifies as not eligible for subsidy under the Schengen Facility certain expenditure relating to measures 1, 3, 4, 5 and 6 of objective III/A, to the customs objective III/B and, under objective I/C, to the Mohács inland waterway border control facility and the railway station at Eperjeske. |
| --- | --- |

—

Annulment of the Commission debit note and recovery order No 3241011280, in so far as, in respect of the Republic of Hungary, it classifies as not eligible for subsidy under the Schengen Facility certain expenditure relating to measures 1, 3, 4, 5 and 6 of objective III/A, to the customs objective III/B and, under objective I/C, to the Mohács inland waterway border control facility and the railway station at Eperjeske.

| — | In the alternative, partial annulment of the Commission debit note and recovery order No 3241011280, in so far as, in respect of the Republic of Hungary, it classifies as not eligible or only partially eligible for subsidy under the Schengen Facility certain expenditure relating to measures 1, 3, 4, 5 and 6 of objective III/A, and to the customs objective III/B. |
| --- | --- |

—

In the alternative, partial annulment of the Commission debit note and recovery order No 3241011280, in so far as, in respect of the Republic of Hungary, it classifies as not eligible or only partially eligible for subsidy under the Schengen Facility certain expenditure relating to measures 1, 3, 4, 5 and 6 of objective III/A, and to the customs objective III/B.

| — | An order that the Commission pay the costs. |
| --- | --- |

—

An order that the Commission pay the costs.

Pleas in law and main arguments

The applicant raises the following pleas in law in support of its application:

1.   Principal claim: breach of legitimate expectations, breach of trust and breach of the principle of legal certainty

The applicant states that, having regard to the lack of clarity in the legal background and the considerable amount of aid paid out of the Schengen Facility, it considered it reasonable to rely, throughout the implementation of the programme, on the information provided by the Commission in response to express requests for its position and in the frequent reports issued on the Indicative Schedule.

In the opinion of the applicant, approval of the Indicative Schedule, by way of prior authorisation, the checks carried out by the Commission during the implementation of the schedule and the cooperation with the Member States entail that, given that the Commission carries out ex post facto checks of the eligibility for subsidy of projects, the eligibility for subsidy of projects reviewed several times without being criticised by the Commission may not be questioned. The applicant states that the Commission gave ‘guarantees’ in the financing decisions which caused it to have a legitimate expectation that the measures listed in the Indicative Schedule were eligible for subsidy.

The principle of cooperation in good faith also imposes reciprocal obligations on the institutions of the European Union to cooperate with the Member States.

In the view of the applicant, if, in such an unclear legislative context, in which the rules are still malleable, it were not even possible to expect the Commission to give prior and definite information as to whether a project is eligible for subsidy, the principle of legal certainty would be seriously undermined.

2.   Claim in the alternative: misinterpretation of the concept of full border controls and lack of any justification for financial corrections

The applicant takes the view that, in the contested decision, the Commission considered not eligible or only partially eligible for subsidy the expenditure mentioned in the claim in the alternative on the ground that it was not, or was only partly, for the purpose of a full border control. In the view of the applicant, the Commission reached that conclusion as a result of a misinterpretation of the concept of full border control.

The applicant adds that the Commission, as regards the information made available, did not carry out the required checks to determine the exact amount which needed to be paid back in relation to all the measures and, as regards some of them, erroneously fixed the amounts at a flat rate. According to the applicant, the Commission fixed that flat rate on the basis of the supposed ratio between the border control activities and other activities carried out by the competent authorities, rather than basing it on the provisions contained in Article 22(3)(b) of Commission Decision C(2004) 248 of 5 February 2004 on the management and monitoring of the Schengen Facility and, therefore, on the seriousness of the breaches of the legislation found, or on the scale of the faults in the system of management and control and the financial consequences thereof which gave rise to the irregularities complained of.

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| 26.3.2011 | EN | Official Journal of the European Union | C 95/8 |
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C 95/8

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Action brought on 25 January 2011 — Air France — KLM v Commission

(Case T-62/11)

2011/C 95/13

Language of the case: French

Parties

Applicant: Air France — KLM (Paris, France) (represented by: A Wachsmann and S. Thibault-Liger, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul, on the basis of Article 263 TFEU, the entirety of European Commission Decision No C(2010) 7694 final of 9 November 2010 relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union, Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (Case COMP/39.258 — Airfreight) in so far as it concerns Air France-KLM, as well the grounds underlying the operative part of the Decision; |
| --- | --- |

—

annul, on the basis of Article 263 TFEU, the entirety of European Commission Decision No C(2010) 7694 final of 9 November 2010 relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union, Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (Case COMP/39.258 — Airfreight) in so far as it concerns Air France-KLM, as well the grounds underlying the operative part of the Decision;

| — | at the very least, annul Article 5(b) and (d) of Decision No C(2010) 7694 final of 9 November 2010 which imposes two fines on Air France-KLM, and the grounds underlying those provisions or reduce, on the basis of Article 261 TFEU, those fines to an appropriate amount; |
| --- | --- |

—

at the very least, annul Article 5(b) and (d) of Decision No C(2010) 7694 final of 9 November 2010 which imposes two fines on Air France-KLM, and the grounds underlying those provisions or reduce, on the basis of Article 261 TFEU, those fines to an appropriate amount;

| — | in any event, order the European Commission to pay all the costs. |
| --- | --- |

—

in any event, order the European Commission to pay all the costs.

Pleas in law and main arguments

The applicant puts forward twelve pleas in support of its action.

| 1. | First plea, alleging incorrect attribution to the applicant of liability for the practices of Société Air France and KLM in breach of the obligation to state reasons, the rules governing the attribution to parent companies of the practices of their subsidiaries and of those governing the situation in which companies succeed one another within groups and the principles of personal liability and that penalties should fit the individual offender. |
| --- | --- |

1.

First plea, alleging incorrect attribution to the applicant of liability for the practices of Société Air France and KLM in breach of the obligation to state reasons, the rules governing the attribution to parent companies of the practices of their subsidiaries and of those governing the situation in which companies succeed one another within groups and the principles of personal liability and that penalties should fit the individual offender.

| 2. | Second plea, alleging infringement of the right to an independent and impartial tribunal resulting from the adoption of the contested decision by an authority which holds simultaneously powers of investigation and sanction, in breach of Article 47(2) of the Charter of Fundamental Rights of the European Union and Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. |
| --- | --- |

2.

Second plea, alleging infringement of the right to an independent and impartial tribunal resulting from the adoption of the contested decision by an authority which holds simultaneously powers of investigation and sanction, in breach of Article 47(2) of the Charter of Fundamental Rights of the European Union and Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

| 3. | Third plea, alleging infringement of the Commission's Leniency Notice adopted in 2002 (1) and of the principles of equal treatment and legitimate expectations resulting from the application of that notice in favour of Lufthansa/Swiss which does not fulfil the conditions of the Leniency Notice. |
| --- | --- |

3.

Third plea, alleging infringement of the Commission's Leniency Notice adopted in 2002 (1) and of the principles of equal treatment and legitimate expectations resulting from the application of that notice in favour of Lufthansa/Swiss which does not fulfil the conditions of the Leniency Notice.

| 4. | Fourth plea, alleging infringement of the obligation to state reasons resulting from a contradiction between the operative part and the grounds of the contested decision as regards the definition of the infringement imputed to the applicant. |
| --- | --- |

4.

Fourth plea, alleging infringement of the obligation to state reasons resulting from a contradiction between the operative part and the grounds of the contested decision as regards the definition of the infringement imputed to the applicant.

| 5. | Fifth plea, alleging failure to state the grounds and infringement of the principles of equal treatment and non-discrimination resulting from the abandoning of legal action against eleven airlines. |
| --- | --- |

5.

Fifth plea, alleging failure to state the grounds and infringement of the principles of equal treatment and non-discrimination resulting from the abandoning of legal action against eleven airlines.

| 6. | Sixth plea, alleging infringement of the principles of non-retroactivity of more severe penalties and of legitimate expectations resulting from the application of the Commission's Guidelines of 2006 on setting fines (2) in respect of the calculation of the fines imposed on the applicant notwithstanding the fact that those guidelines had been adopted after the beginning of the investigation; that retroactive application of the 2006 Guidelines led to a significant increase in the fines which could not have been reasonably foreseen at the time of the facts. |
| --- | --- |

6.

Sixth plea, alleging infringement of the principles of non-retroactivity of more severe penalties and of legitimate expectations resulting from the application of the Commission's Guidelines of 2006 on setting fines (2) in respect of the calculation of the fines imposed on the applicant notwithstanding the fact that those guidelines had been adopted after the beginning of the investigation; that retroactive application of the 2006 Guidelines led to a significant increase in the fines which could not have been reasonably foreseen at the time of the facts.

| 7. | Seventh plea, alleging infringement of the applicant's right to be heard and of the principle of equality of arms with respect to the calculation of the fines imputed to it, since there was no exchange of arguments on the essential elements of the calculation of the fines. |
| --- | --- |

7.

Seventh plea, alleging infringement of the applicant's right to be heard and of the principle of equality of arms with respect to the calculation of the fines imputed to it, since there was no exchange of arguments on the essential elements of the calculation of the fines.

| 8. | Eighth plea, alleging errors affecting the calculation of the fines imputed to the applicant, since those fines were calculated on the basis of incorrect sales values (i) which ought to have included only the surcharges referred to and not the tariffs and (ii) which could not include the amounts corresponding to 50 % of the European Economic Area inbound revenue of Société Air France and KLM. |
| --- | --- |

8.

Eighth plea, alleging errors affecting the calculation of the fines imputed to the applicant, since those fines were calculated on the basis of incorrect sales values (i) which ought to have included only the surcharges referred to and not the tariffs and (ii) which could not include the amounts corresponding to 50 % of the European Economic Area inbound revenue of Société Air France and KLM.

| 9. | Ninth plea, alleging incorrect assessment of the gravity of the practices of Société Air France and KLM resulting from manifest errors of assessment and breach of the principle of equal treatment, first, because the Commission refused to take account of the lesser gravity of the surcharge infringements, the modest combined market share of the parties, the low profit margins achieved by Société Air France and KLM and the deterioration in their financial situation owing to the economic crisis in the air freight sector and, second, because the Commission included within the scope of the infringement contacts relating to the practices implemented outside of the European Economic Area. |
| --- | --- |

9.

Ninth plea, alleging incorrect assessment of the gravity of the practices of Société Air France and KLM resulting from manifest errors of assessment and breach of the principle of equal treatment, first, because the Commission refused to take account of the lesser gravity of the surcharge infringements, the modest combined market share of the parties, the low profit margins achieved by Société Air France and KLM and the deterioration in their financial situation owing to the economic crisis in the air freight sector and, second, because the Commission included within the scope of the infringement contacts relating to the practices implemented outside of the European Economic Area.

| 10. | Tenth plea, alleging breach of the principle of the proportionality of penalties and a manifest error of assessment resulting from the application of an additional amount of 16 % in the fines imputed to the applicant, and of failure to state reasons in relation to the 16 % rate applied in that respect. |
| --- | --- |

10.

Tenth plea, alleging breach of the principle of the proportionality of penalties and a manifest error of assessment resulting from the application of an additional amount of 16 % in the fines imputed to the applicant, and of failure to state reasons in relation to the 16 % rate applied in that respect.

| 11. | Eleventh plea, alleging miscalculation of the duration of the infringement found against Société Air France, which led to an unjustified increase in the fine imputed to the applicant in respect of that infringement. |
| --- | --- |

11.

Eleventh plea, alleging miscalculation of the duration of the infringement found against Société Air France, which led to an unjustified increase in the fine imputed to the applicant in respect of that infringement.

| 12. | Twelfth plea, alleging that the reduction of 15 % in the fines imputed to the applicant in respect of the regulatory regime governing air freight transport between Member States and third States is manifestly insufficient. |
| --- | --- |

12.

Twelfth plea, alleging that the reduction of 15 % in the fines imputed to the applicant in respect of the regulatory regime governing air freight transport between Member States and third States is manifestly insufficient.

---

(1)  Commission Notice on Immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3).

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

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| 26.3.2011 | EN | Official Journal of the European Union | C 95/9 |
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Action brought on 24 January 2011 — Air France v Commission

(Case T-63/11)

2011/C 95/14

Language of the case: French

Parties

Applicant: Société Air France (Roissy Charles de Gaulle, France) (represented by: A. Wachsmann and S. Thibault-Liger, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul, on the basis of Article 263 TFEU, the entirety of European Commission Decision No C(2010) 7694 final of 9 November 2010 relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union, Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (Case COMP/39.258 — Airfreight) in so far as it concerns Société Air France, as well the grounds underlying the operative part of the Decision; |
| --- | --- |

—

annul, on the basis of Article 263 TFEU, the entirety of European Commission Decision No C(2010) 7694 final of 9 November 2010 relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union, Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (Case COMP/39.258 — Airfreight) in so far as it concerns Société Air France, as well the grounds underlying the operative part of the Decision;

| — | at the very least, annul Article 5(b) and (d) of Decision No C(2010) 7694 final of 9 November 2010 which imposes a fine on Société Air France, and the grounds underlying those provisions or reduce, on the basis of Article 261 TFEU, that fine to an appropriate amount; |
| --- | --- |

—

at the very least, annul Article 5(b) and (d) of Decision No C(2010) 7694 final of 9 November 2010 which imposes a fine on Société Air France, and the grounds underlying those provisions or reduce, on the basis of Article 261 TFEU, that fine to an appropriate amount;

| — | in any event, order the European Commission to pay all the costs. |
| --- | --- |

—

in any event, order the European Commission to pay all the costs.

Pleas in law and main arguments

In support of its action, the applicant puts forward ten pleas which are essentially identical or similar to those raised in Case T-62/11 Air France — KLM v Commission.

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| 26.3.2011 | EN | Official Journal of the European Union | C 95/9 |
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Action brought on 24 January 2011 — Martinair Holland v Commission

(Case T-67/11)

2011/C 95/15

Language of the case: English

Parties

Applicant: Martinair Holland NV (Haarlemmermeer, the Netherlands) (represented by: R. Wesseling, lawyer)

Defendant: European Commission

Form of order sought

| — | annul Articles 1, 2, 3, 4, 5, 6 and 7 of the decision in whole or in part, or |
| --- | --- |

—

annul Articles 1, 2, 3, 4, 5, 6 and 7 of the decision in whole or in part, or

| — | reduce the fines imposed by Article 5 of the decision, and |
| --- | --- |

—

reduce the fines imposed by Article 5 of the decision, and

| — | condemn the Commission to the costs of the proceedings. |
| --- | --- |

—

condemn the Commission to the costs of the proceedings.

Pleas in law and main arguments

Application under Articles 263 and 261 TFEU and Article 31 of Regulation 1/2003 for the review and annulment of Commission Decision C(2010) 7694 final of 9 November 2010 relating to a proceeding under Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (Case COMP/39.258 — Airfreight) addressed to Martinair Holland N.V. and, in subsidiary order, for the reduction of the fine imposed.

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

| 1. | First plea in law, alleging that:






  — | the Commission violated its duty to state reasons pursuant to Article 296 TFEU and Article 41 of the Charter (the right to good administration) insofar as it is not possible to ascertain from the decision the nature and scope of the infringement(s); on the one hand, the operative part of the decision clearly identifies four (presumably single and continuous) infringements relating to distinct sets of addressees, different time periods and geographic routes. On the other hand, the statement of reasons is not based on nor refers to any of these four specific infringements; |
| --- | --- | --- |

1.

First plea in law, alleging that:

—

the Commission violated its duty to state reasons pursuant to Article 296 TFEU and Article 41 of the Charter (the right to good administration) insofar as it is not possible to ascertain from the decision the nature and scope of the infringement(s); on the one hand, the operative part of the decision clearly identifies four (presumably single and continuous) infringements relating to distinct sets of addressees, different time periods and geographic routes. On the other hand, the statement of reasons is not based on nor refers to any of these four specific infringements;

| — | to the extent the Court is unable to review in full the grounds underlying the decision due to the deficiency of (sufficiently clear) reasoning, the Commission violated essential procedural rights of the applicant; in particular, the applicant submits that the decision breaches the right to good administration; the right to an effective remedy and to a fair trial and the presumption of innocence and rights of defense pursuant to Articles 41, 47, and 48 of the Charter of Fundamental Rights of the European Union. |
| --- | --- |

—

to the extent the Court is unable to review in full the grounds underlying the decision due to the deficiency of (sufficiently clear) reasoning, the Commission violated essential procedural rights of the applicant; in particular, the applicant submits that the decision breaches the right to good administration; the right to an effective remedy and to a fair trial and the presumption of innocence and rights of defense pursuant to Articles 41, 47, and 48 of the Charter of Fundamental Rights of the European Union.

| 2. | Second plea in law, alleging that the Commission committed manifest errors of assessment in the calculation of the fine in violation of Regulation 1/2003 (1), the fining guidelines and violated the principles of proportionality, equal treatment and the duty to state reasons contrary to Articles 41 and 49 of the Charter on Human Right of the European Union, Article 296 TFEU and other general principles of EU law. In this regard, the applicant argues that:






  — | first, the Commission committed manifest errors of assessment in violation of the fining guidelines and the principles of proportionality and equal treatment, by including turnover related to the rates and inbound flights in the calculation of the value of sales; |
| --- | --- | --- |

2.

Second plea in law, alleging that the Commission committed manifest errors of assessment in the calculation of the fine in violation of Regulation 1/2003 (1), the fining guidelines and violated the principles of proportionality, equal treatment and the duty to state reasons contrary to Articles 41 and 49 of the Charter on Human Right of the European Union, Article 296 TFEU and other general principles of EU law. In this regard, the applicant argues that:

—

first, the Commission committed manifest errors of assessment in violation of the fining guidelines and the principles of proportionality and equal treatment, by including turnover related to the rates and inbound flights in the calculation of the value of sales;

| — | second, the Commission committed manifest errors in the assessment of the gravity of the infringement in violation of Regulation 1/2003, the fining guidelines and the principle of proportionality; |
| --- | --- |

—

second, the Commission committed manifest errors in the assessment of the gravity of the infringement in violation of Regulation 1/2003, the fining guidelines and the principle of proportionality;

| — | third, the Commission violated Regulation 1/2003, the fining guidelines and the principle of proportionality in taking into account the regulatory regimes as mitigating circumstance to only reduce the fine by 15 %; |
| --- | --- |

—

third, the Commission violated Regulation 1/2003, the fining guidelines and the principle of proportionality in taking into account the regulatory regimes as mitigating circumstance to only reduce the fine by 15 %;

| — | fourth, the Commission violated its duty to state reasons in relation to the calculation of the fine contrary to Article 296 TFEU and Article 41 of the Charter. |
| --- | --- |

—

fourth, the Commission violated its duty to state reasons in relation to the calculation of the fine contrary to Article 296 TFEU and Article 41 of the Charter.

---

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

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| 26.3.2011 | EN | Official Journal of the European Union | C 95/10 |
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Action brought on 1 February 2011 — Omnis Group Srl v European Commission

(Case T-74/11)

2011/C 95/16

Language of the case: Romanian

Parties

Applicant(s): Omnis Group Srl (Bucarest, Romania) (represented by: D.-A.-F. Tarara, lawyer)

Defendant(s): European Commission

Form of order sought

| — | Grant this application for annulment of the decision of the defendant of 1 December 2010 in case COMP/39.784 — Omnis/Microsoft; |
| --- | --- |

—

Grant this application for annulment of the decision of the defendant of 1 December 2010 in case COMP/39.784 — Omnis/Microsoft;

| — | Refer the case back to the defendant for a decision; |
| --- | --- |

—

Refer the case back to the defendant for a decision;

| — | In the alternative, the General Court should decide the case and uphold the applicant's complaint. |
| --- | --- |

—

In the alternative, the General Court should decide the case and uphold the applicant's complaint.

Pleas in law and main arguments

By its application, the applicant is seeking, pursuant to Article 263 TFEU, the annulment of the decision of the defendant of 1 December 2010 in Case COMP/39.784 — Omnis/Microsoft, which rejected the complaint made by the applicant concerning alleged anti-competitive conduct by M9icrosoft.

In support of its application, the applicant relies on the following pleas:

| 1. | The first plea in law is based on the fact that the refusal by the defendant to investigate the abuses by Microsoft on the EAS/ERP (Enterprise Application Software/Enterprise Resource Planning) market is based on unfounded arguments. |
| --- | --- |

1.

The first plea in law is based on the fact that the refusal by the defendant to investigate the abuses by Microsoft on the EAS/ERP (Enterprise Application Software/Enterprise Resource Planning) market is based on unfounded arguments.

| 2. | The second plea in law is based on the fact that the defendant assessed the importance of the case wrongly, reaching the unfounded and unlawful conclusion that the issue raised by the applicant was of no interest to the EU. |
| --- | --- |

2.

The second plea in law is based on the fact that the defendant assessed the importance of the case wrongly, reaching the unfounded and unlawful conclusion that the issue raised by the applicant was of no interest to the EU.

| 3. | The third plea in law is based on the fact that the decision of the defendant not to follow up the applicant’s complaint is unlawful and unfounded in that it infringes the rights of the applicant. |
| --- | --- |

3.

The third plea in law is based on the fact that the decision of the defendant not to follow up the applicant’s complaint is unlawful and unfounded in that it infringes the rights of the applicant.

| 4. | The fourth plea in law is based on the fact that the decision of the defendant was made without documentation to corroborate Microsoft’s statements being available, so that, as a result of that decision, the anti-competitive conduct complained of persists, and the development of the applicant is impeded. |
| --- | --- |

4.

The fourth plea in law is based on the fact that the decision of the defendant was made without documentation to corroborate Microsoft’s statements being available, so that, as a result of that decision, the anti-competitive conduct complained of persists, and the development of the applicant is impeded.

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| 26.3.2011 | EN | Official Journal of the European Union | C 95/11 |
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Action brought on 31 January 2011 — Truvo Belgium v OHIM — AOL (TRUVO)

(Case T-77/11)

2011/C 95/17

Language in which the application was lodged: English

Parties

Applicant: Truvo Belgium (Antwerp, Belgium) (represented by: O.F.A.W. van Haperen, lawyer)

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

Other party to the proceedings before the Board of Appeal: AOL LLC (Dulles, United States)

Form of order sought

| — | Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 7 November 2010 in case R 923/2009-2; and |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 7 November 2010 in case R 923/2009-2; and

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

—

Order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘TRUVO’, for goods and services in classes 9, 16, 35, 38, 41 and 42 — Community trade mark application No 5560099

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

Mark or sign cited in opposition: Community trade mark registration No 4756169 of the figurative mark ‘TRUVEO’ for services in class 42

Decision of the Opposition Division: Upheld the opposition for all the contested services in class 38 and 42, and rejected the Community trade mark application for all the contested services

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: The applicant considers that the contested decision infringes Article 8(1)(b) of Council Regulation (EC) No 207/2009, as well as it lacks proper motivation or is otherwise impaired to fulfil lawful demands on European Legal proceedings, as the Board of Appeal erred (i) in its comparison of the services, (ii) in its comparison of the signs, (iii) in its assessment of the relevant public, and (iv) in its assessment of likelihood of confusion.

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| 26.3.2011 | EN | Official Journal of the European Union | C 95/11 |
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Action brought on 14 February 2011 — Bamba v Council

(Case T-86/11)

2011/C 95/18

Language of the case: French

Parties

Applicant: Nadiany Bamba (Abidjan, Côte d’Ivoire) (represented by: P. Haïk, lawyer)

Defendant: Council of the European Union

Form of order sought

declare Mrs Nadiany BAMBA’s action admissible;

| — | annul Council Regulation (EU) No 25/2011 of 14 January 2011 amending Regulation (EC) No 560/2005 imposing certain specific restrictive measures directed against certain persons and entities in view of the situation in Côte d’Ivoire to the extent that it concerns the applicant; |
| --- | --- |

—

annul Council Regulation (EU) No 25/2011 of 14 January 2011 amending Regulation (EC) No 560/2005 imposing certain specific restrictive measures directed against certain persons and entities in view of the situation in Côte d’Ivoire to the extent that it concerns the applicant;

| — | annul Council Decision 2011/18/CFSP of 14 January 2011 amending Council Decision 2010/656/CFSP renewing the restrictive measures against Côte d'Ivoire to the extent that it concerns the applicant; |
| --- | --- |

—

annul Council Decision 2011/18/CFSP of 14 January 2011 amending Council Decision 2010/656/CFSP renewing the restrictive measures against Côte d'Ivoire to the extent that it concerns the applicant;

| — | order the Council of the European Union to pay the costs in accordance with Articles 87 and 91 of the Rules of Procedure of the General Court. |
| --- | --- |

—

order the Council of the European Union to pay the costs in accordance with Articles 87 and 91 of the Rules of Procedure of the General Court.

Pleas in law and main arguments

In support of the action, the applicant puts forward two pleas in law.

| 1. | First plea in law alleging an infringement of the rights of the defence and of the right to a fair hearing provided for in Article 47 of the Charter of Fundamental Rights of the European Union and Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), in that the contested measures: | do not provide for a procedure allowing the applicant to be guaranteed effective exercise of his rights of defence, in particular the right to be heard and the right to the benefit of a procedure allowing her to effectively request her removal from the list of persons covered by the restrictive measures; |
| --- | --- | --- |

1.

First plea in law alleging an infringement of the rights of the defence and of the right to a fair hearing provided for in Article 47 of the Charter of Fundamental Rights of the European Union and Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), in that the contested measures:

do not provide for a procedure allowing the applicant to be guaranteed effective exercise of his rights of defence, in particular the right to be heard and the right to the benefit of a procedure allowing her to effectively request her removal from the list of persons covered by the restrictive measures;

| | at no time provide for the communication of detailed reasons for the inclusion on the list of persons subject to the restrictive measures; |
| --- | --- |

at no time provide for the communication of detailed reasons for the inclusion on the list of persons subject to the restrictive measures;

| | at no time provide for the interested person to be notified of the methods and time-limits of actions against the decision to include on the list. |
| --- | --- |

at no time provide for the interested person to be notified of the methods and time-limits of actions against the decision to include on the list.

| 2. | Second plea in law alleging an infringement of the fundamental right to respect for property enshrined in Article 1 of Additional Protocol No 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms. |
| --- | --- |

2.

Second plea in law alleging an infringement of the fundamental right to respect for property enshrined in Article 1 of Additional Protocol No 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms.

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European Union Civil Service Tribunal

| 26.3.2011 | EN | Official Journal of the European Union | C 95/13 |
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Judgment of the Civil Service Tribunal (First Chamber) of 15 February 2011 AH v Commission

(Case F-76/09) (1)

(Civil service - Social security - Articles 72 and 76a of the Staff Regulations - General Implementing Provisions - Reliance on care - Surviving spouse of a retired official - Rejection of the request for reimbursement in full of nursing attendance costs and for financial assistance - Action out of time - Inadmissibility)

2011/C 95/19

Language of the case: English

Parties

Applicant: AH (Wavre, Belgium) (represented by: J. Temple Lang, solicitor)

Defendant: European Commission (represented by: D. Martin and J. Baquero Cruz, agents)

Re:

Application for annulment of the decision of 22 June 2009 rejecting the applicant’s request for reimbursement in full of the costs resulting from the treatment of her illness.

Operative part of the judgment

The Tribunal:

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

1.

dismisses the action as inadmissible;

| 2. | orders AH to pay all the costs. |
| --- | --- |

2.

orders AH to pay all the costs.

---

(1)  OJ C 297, 05.12.09, p. 36.

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| 26.3.2011 | EN | Official Journal of the European Union | C 95/13 |
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Judgment of the Civil Service Tribunal (First Chamber) of 15 February 2011 — Marcuccio v Commission

(Case F-81/09) (1)

(Civil service - Officials - Invalidity allowance - Error in the calculation - Payment of arrears - Default interest due - Rate applicable - Annual capitalisation Material and non-material damage)

2011/C 95/20

Language of the case: Italian

Parties

Applicant: Luigi Marcuccio (Tricase, Italy) (represented by: G. Cipressa, lawyer)

Defendant: European Commission (represented by: J. Currall and C. Berardis-Kayser, agents, and A. Dal Ferro, lawyer)

Re:

Application for annulment of the Commission’s decision rejecting in part the applicant’s request for default interest in respect of the payment of the invalidity allowance awarded to him.

Operative part of the judgment

The Tribunal:

| 1. | dismisses the action; |
| --- | --- |

1.

dismisses the action;

| 2. | orders the Commission, in addition to bearing its own costs, to pay one quarter of the costs incurred by Mr Marcuccio |
| --- | --- |

2.

orders the Commission, in addition to bearing its own costs, to pay one quarter of the costs incurred by Mr Marcuccio

| 3. | orders Mr Marcuccio to bear three-quarters of his own costs.. |
| --- | --- |

3.

orders Mr Marcuccio to bear three-quarters of his own costs..

---

(1)  OJ C 312, 19.12.09, p. 44.

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| 26.3.2011 | EN | Official Journal of the European Union | C 95/13 |
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Judgment of the Civil Service Tribunal (Second Chamber) of 8 February 2011 — Skareby v Commission

(Case F-95/09) (1)

(Civil service - Officials - Psychological harassment by a hierarchical superior - Articles 12a and 24 of the Staff Regulations - Request for assistance - Reasonable period - Point from which time starts to run - Length of time)

2011/C 95/21

Language of the case: English

Parties

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

Defendant: European Commission (represented by: J. Currall and J. Baquero Cruz, Agents)

Re:

Annulment of the defendant’s decision not to open an enquiry into the psychological harassment of which the applicant alleges to have been a victim

Operative part of the judgment

The Tribunal:

| 1. | Annuls the decision of the European Commission of 4 March 2009 refusing to open an administrative enquiry into allegations of psychological harassment by one of Ms Skareby’s former hierarchical superiors; |
| --- | --- |

1.

Annuls the decision of the European Commission of 4 March 2009 refusing to open an administrative enquiry into allegations of psychological harassment by one of Ms Skareby’s former hierarchical superiors;

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

2.

Orders the European Commission to pay all the costs.

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(1)  OJ C 24, 30.1.2010, p. 81.

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| 26.3.2011 | EN | Official Journal of the European Union | C 95/14 |
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Action brought on 7 February 2011 — Nieminen v Council

(Case F-8/11)

2011/C 95/22

Language of the case: French

Parties

Applicant: Risto Nieminen (Kraainen, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal, lawyers)

Defendant: Council of the European Union

Subject-matter and description of the proceedings

Annulment of the decision of the appointing authority not to promote the applicant to Grade AD12 under the 2010 promotion procedure.

Form of order sought

| — | Annul the decision of the appointing authority of 26 October 2010 rejecting the applicant’s complaint against the decision not to promote him to Grade AD 12 under the 2010 promotion procedure; |
| --- | --- |

—

Annul the decision of the appointing authority of 26 October 2010 rejecting the applicant’s complaint against the decision not to promote him to Grade AD 12 under the 2010 promotion procedure;

| — | in so far as necessary, annul the decision of the appointing authority not to promote the applicant to Grade AD12 under the 2010 promotion procedure; |
| --- | --- |

—

in so far as necessary, annul the decision of the appointing authority not to promote the applicant to Grade AD12 under the 2010 promotion procedure;

| — | order the Council of the European Union to pay the costs. |
| --- | --- |

—

order the Council of the European Union to pay the costs.

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| 26.3.2011 | EN | Official Journal of the European Union | C 95/14 |
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26.3.2011

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C 95/14

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Action brought on 7 February 2011 — Bojinova and Ghiba v Commission

(Case F-10/11)

2011/C 95/23

Language of the case: French

Parties

Applicants: Silvia Bojinova (Brussels, Belgium) and Dorina Maria Ghiba (Brussels, Belgium) (represented by: C. Mourato, lawyer)

Defendant: European Commission

Subject-matter and description of the proceedings

Annulment of the decisions of the selection boards for competitions COM/INT/EU2/10/AD5 and COM/INT/EU2/AST3 to reject the applicants’ candidatures on the ground that they did not meet the eligibility requirements stipulated in the notices of competition.

Form of order sought

| — | Annul the decision of 11 May 2010 of the selection board rejecting Mrs Silvia Bojinova’s candidature for internal competition COM/INT/EU2/10/AD5 and the confirmatory decision of the appointing authority of 26 October 2010 rejecting the related complaint lodged on 16 August 2010: |
| --- | --- |

—

Annul the decision of 11 May 2010 of the selection board rejecting Mrs Silvia Bojinova’s candidature for internal competition COM/INT/EU2/10/AD5 and the confirmatory decision of the appointing authority of 26 October 2010 rejecting the related complaint lodged on 16 August 2010:

| — | annul the decision of 10 Mau 2010 of the selection board rejecting Mrs Dorina Maria Ghiba’s candidature for internal competition COM/INT/EU2/AST3 and the confirmatory decision of the appointing authority of 26 October 2010 rejecting the related complaint lodged on 4 August 2010; |
| --- | --- |

—

annul the decision of 10 Mau 2010 of the selection board rejecting Mrs Dorina Maria Ghiba’s candidature for internal competition COM/INT/EU2/AST3 and the confirmatory decision of the appointing authority of 26 October 2010 rejecting the related complaint lodged on 4 August 2010;

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

—

order the European Commission to pay the costs.

---