# Official Journal C 145/2011

| | ISSN 1725-2423
  doi:10.3000/17252423.C_2011.145.eng |
| --- | --- |
| Official Journal
  of the European Union | C 145 |
| | |
| English edition | Information and Notices | Volume 5414 May 2011 |

ISSN 1725-2423

doi:10.3000/17252423.C_2011.145.eng

Official Journal

of the European Union

C 145

English edition

Information and Notices

Volume 5414 May 2011

---

| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | Court of Justice of the European Union |
| 2011/C 145/01 | Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 139, 7.5.2011 | 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 145/01

Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 139, 7.5.2011

Official Journal of the European Union

1

| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2011/C 145/02 | Case C-385/08: Judgment of the Court (Fourth Chamber) of 22 December 2010 — European Commission v Republic of Poland (Failure of a Member State to fulfil obligations — Accession of new Member States — Marketing authorisations for medicinal products that are generics of the reference product Plavix — Conditional decisions authorising the marketing of pharmaceutical products — Infringement of the acquis) | 2 |
| 2011/C 145/03 | Case C-27/11: Reference for a preliminary ruling from the Administrativen sad Sofia — grad (Bulgaria) lodged on 17 January 2011 — Anton Vinkov v Nachalnik Administrativno-nakazatelna deynost | 3 |
| 2011/C 145/04 | Case C-32/11: Reference for a preliminary ruling from the Magyar Köztársaság Legfelsőbb Bírósága (Hungary) lodged on 21 January 2011 — Allianz Hungária Biztosító Zrt., Generali-Providencia Biztosító Zrt., Gépjármű Márkakereskedők Országos Szövetsége, Magyar Peugeot Márkakereskedők Biztosítási Alkusz Kft. And Paragon-Alkusz Zrt., legal successor of Magyar Opelkereskedők Bróker Kft. v Gazdasági Versenyhivatal | 4 |
| 2011/C 145/05 | Case C-40/11: Reference for a preliminary ruling from the Verwaltungsgerichtshof Baden-Württemberg (Germany) lodged on 28 January 2011 — Yoshikazu Iida v City of Ulm | 4 |
| 2011/C 145/06 | Case C-44/11: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 31 January 2011 — Finanzamt Frankfurt am Main V-Höchst v Deutsche Bank AG | 6 |
| 2011/C 145/07 | Case C-49/11: Reference for a preliminary ruling from the Oberlandesgericht Wien (Austria) lodged on 3 February 2011 — Content Services Ltd v Bundesarbeitskammer | 6 |
| 2011/C 145/08 | Case C-56/11: Reference for a preliminary ruling from the Oberlandesgericht Düsseldorf (Germany) lodged on 8 February 2011 — Raiffeisen-Waren-Zentrale Rhein-Main e.G. v Saatgut-Treuhandverwaltungs GmbH | 7 |
| 2011/C 145/09 | Case C-62/11: Reference for a preliminary ruling from the Hessisches Landessozialgericht, Darmstadt (Germany) lodged on 10 February 2011 — Florence Feyerbacher v Land Hessen, represented by the Regierungspräsidium Gießen | 7 |
| 2011/C 145/10 | Case C-68/11: Action brought on 16 February 2011 — European Commission v Italian Republic | 8 |
| 2011/C 145/11 | Case C-69/11: Reference for a preliminary ruling from the Rechtbank van eerste aanleg te Brugge (Belgium), lodged on 16 February 2011 — Connoisseur Belgium BVBA v Belgische Staat | 8 |
| 2011/C 145/12 | Case C-83/11: Reference for a preliminary ruling from Upper Tribunal (Immigration and Asylum Chamber) London (United Kingdom) made on 22 February 2011 — Secretary of State for the Home Department v Muhammad Sazzadur Rahman, Fazly Rabby Islam, Mohibullah Rahman | 9 |
| 2011/C 145/13 | Case C-84/11: Reference for a preliminary ruling from the Korkein hallinto-oikeus (Finland) lodged on 24 February 2011 — Marja-Liisa Susisalo, Olli Tuomaala, Merja Ritala | 9 |
| 2011/C 145/14 | Case C-85/11: Action brought on 24 February 2011 — European Commission v Ireland | 10 |
| 2011/C 145/15 | Case C-86/11: Action brought on 24 February 2011 — European Commission v United Kingdom of Great Britain and Northern Ireland | 11 |
| 2011/C 145/16 | Case C-98/11 P: Appeal brought on 1 March 2011 by Chocoladefabriken Lindt & Sprüngli AG against the judgment of the General Court (FirstChamber) delivered on 17 December 2010 in Case T-336/08 Chocoladefabriken Lindt & Sprüngli AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) | 11 |
| 2011/C 145/17 | Case C-100/11 P: Appeal brought on 2 March 2011 by Helena Rubinstein, L'Oréal against the judgment of the General Court (Third Chamber) delivered on 16 December 2010 in Case T-345/08: Helena Rubinstein SNC, L'Oréal SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Allergan, Inc. | 12 |
| 2011/C 145/18 | Case C-103/11 P: Appeal brought on 2 March 2011 by the European Commission against the judgment of the General Court (Third Chamber) delivered on 16 December 2010 in Case T-19/07 Systran and Systran Luxembourg v Commission | 13 |
| 2011/C 145/19 | Case C-108/11: Action brought on 2 March 2011 — European Commission v Ireland | 13 |
| 2011/C 145/20 | Case C-117/11: Reference for a preliminary ruling from Upper Tribunal (Tax and Chancery Chamber) (United Kingdom) made on 4 March 2011 — Purple Parking Ltd, Airparks Services Ltd v The Commissioners for Her Majesty's Revenue & Customs | 14 |
| 2011/C 145/21 | Case C-118/11: Reference for a preliminary ruling from the Administrativen sad Varna (Bulgaria) lodged on 7 March 2011 — Eon Asset Management OOD v Direktor na Direktsia Obzhalvane i upravlenie na izpalnenieto | 15 |
| 2011/C 145/22 | Case C-119/11: Action brought on 4 March 2011 — European Commission v French Republic | 16 |
| 2011/C 145/23 | Case C-120/11: Reference for a preliminary ruling from the Tribunale di Santa Maria Capua Vetere (Italy) lodged on 7 March 2011 — Criminal proceedings against Yeboah Kwadwo | 17 |
| 2011/C 145/24 | Case C-123/11: Reference for a preliminary ruling from the Korkein hallinto-oikeus (Finland) lodged on 9 March 2011 — A Oy | 17 |
| 2011/C 145/25 | Case C-129/11: Reference for a preliminary ruling from the Administrativen Sad Varna (Bulgaria) lodged on 14 March 2011 — OOD Provadiinvest v Direktor na Direktsia Obzhalvane i upravlenie na izpalnenieto | 17 |
| | General Court |
| 2011/C 145/26 | Case T-375/06: Judgment of the General Court of 24 March 2011 — Viega v Commission (Competition — Agreements, decisions and concerted practices — Copper and copper alloy fittings sector — Decision finding an infringement of Article 81 EC — Participation in the infringement — Obligation to state reasons — Fines — Relevant turnover — Attenuating circumstances) | 19 |
| 2011/C 145/27 | Case T-376/06: Judgment of the General Court of 24 March 2011 — Legris Industries v Commission (Competition — Agreements, decisions and concerted practices — Copper and copper alloy fittings sector — Decision finding an infringement of Article 81 EC — Imputability of the infringement) | 19 |
| 2011/C 145/28 | Case T-377/06: Judgment of the General Court of 24 March 2011 — Comap v Commission (Competition — Agreements, decisions and concerted practices — Copper and copper alloy fittings sector — Decision finding an infringement of Article 81 EC — Duration of participation in the infringement — Fines — Determination of the starting amount of the fine — Proportionality) | 19 |
| 2011/C 145/29 | Case T-378/06: Judgment of the General Court of 24 March 2011 — IMI and Others v Commission (Competition — Agreements, decisions and concerted practices — Copper and copper alloy fittings sector — Decision finding an infringement of Article 81 EC — Fines — Relevant turnover — Leniency Notice — Guidelines on the method of setting fines — Equal treatment) | 20 |
| 2011/C 145/30 | Case T-379/06: Judgment of the General Court of 24 March 2011 — Kaimer and Others v Commission (Competition — Agreements, decisions and concerted practices — Copper and copper alloy fittings sector — Decision finding an infringement of Article 81 EC — Rights of the defence — Participation in the infringement — Duration of the infringement — Fines — Attenuating circumstances — Proportionality — Equal treatment) | 20 |
| 2011/C 145/31 | Case T-381/06: Judgment of the General Court of 24 March 2011 — FRA.BO v Commission (Competition — Agreements, decisions and concerted practices — Copper and copper alloy fittings sector — Decision finding an infringement of Article 81 EC — Fines — Leniency Notice — Guidelines on the method of setting fines — Attenuating circumstances — Immunity from fines — Legitimate expectations — Equal treatment) | 21 |
| 2011/C 145/32 | Case T-382/06: Judgment of the General Court of 24 March 2011 — Tomkins v Commission (Competition — Agreements, decisions and concerted practices — Copper and copper alloy fittings sector — Decision finding an infringement of Article 81 EC — Imputability of the infringement — Duration of the infringement) | 21 |
| 2011/C 145/33 | Case T-384/06: Judgment of the General Court of 24 March 2011 — IBP and International Building Products France v Commission (Competition — Agreements, decisions and concerted practices — Copper and copper alloy fittings sector — Decision finding an infringement of Article 81 EC — Duration of participation in the infringement — Fines — Aggravating circumstances) | 22 |
| 2011/C 145/34 | Case T-385/06: Judgment of the General Court of 24 March 2011 — Aalberts Industries and Others v Commission (Competition — Agreements, decisions and concerted practices — Copper and copper alloy fittings sector — Decision finding an infringement of Article 81 EC — Single and continuous infringement — Participation in the infringement) | 22 |
| 2011/C 145/35 | Case T-386/06: Judgment of the General Court of 24 March 2011 — Pegler v Commission (Competition — Agreements, decisions and concerted practices — Copper and copper alloy fittings sector — Decision finding an infringement of Article 81 EC — Imputability of the infringement — Fines — Deterrent effect) | 23 |
| 2011/C 145/36 | Case T-214/07: Judgment of the General Court of 31 March 2011 — Greece v Commission (EAGGF — Guarantee Section — Expenditure excluded from Community financing — Arable crops — Specific measures for certain agricultural products in favour of the smaller Aegean islands) | 23 |
| 2011/C 145/37 | Case T-117/08: Judgment of the General Court of 31 March 2011 — Italy v EESC (Rules on the use of languages — Vacancy notice concerning the recruitment of the Secretary-General of the EESC — Publication in three official languages — Information relating to the vacancy notice — Publication in all official languages — Action for annulment — Admissibility — Articles 12 EC and 290 EC — Article 12 of the CEOS — Regulation No 1) | 23 |
| 2011/C 145/38 | Joined Cases T-443/08 and T-455/08: Judgment of the General Court of 24 March 2011 — Freistaat Sachsen and Others v Commission (State aid — Aid for Leipzig/Halle Airport — Funding of investments relating to the construction of the new southern runway — Decision declaring aid compatible with the common market — Actions for annulment — No interest in bringing proceedings — Inadmissibility — Concept of undertaking — Concept of economic activity — Airport infrastructure) | 24 |
| 2011/C 145/39 | Case T-33/09: Judgment of the General Court of 29 March 2011 — Portugal v Commission (Non-compliance with a judgment of the Court of Justice establishing a failure to fulfil obligations — Penalty payment — Claim for payment — Repeal of the legislation at issue) | 24 |
| 2011/C 145/40 | Case T-54/09: Judgment of the General Court of 24 March 2011 — XXXLutz Marken v OHIM — Natura Selection (Linea Natura Natur hat immer Stil) (Community trade mark — Opposition proceedings — Application for Community figurative mark Linea Natura Natur hat immer Stil — Earlier Community figurative mark natura selection — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009)) | 25 |
| 2011/C 145/41 | Case T-149/09: Judgment of the General Court of 24 March 2011 — Dover v Parliament (Rules governing the payment of expenses and allowances to Members of the European Parliament — Review of the use of allowances — Parliamentary assistance allowance — Justification of expenditure — Recovery of undue payments) | 25 |
| 2011/C 145/42 | Case T-184/09: Judgment of the General Court of 24 March 2011 — Greece v Commission (EAGGF — Guarantee Section — Expenditure excluded from Community financing — Common organisation of the markets in the sugar sector — Article 8(1) of Regulation (EC) No 1663/95 and Article 11(1) and (2) of Regulation (EC) No 885/2006 — Assessment of the risk of financial loss to the EAGGF — Principle of proportionality) | 26 |
| 2011/C 145/43 | Case T-419/09: Judgment of the General Court of 24 March 2011 — Cybergun v OHIM — Umarex Sportwaffen (AK 47) (Community trade mark — Invalidity proceedings — Community word mark AK 47 — Absolute ground for refusal — Descriptive character — Article 7(1)(c) and Article 52(1)(a) of Regulation (EC) No 207/2009) | 26 |
| 2011/C 145/44 | Case T-503/09: Judgment of the General Court of 24 March 2011 — Cybergun v OHIM — Umarex Sportwaffen (AK 47) (Community trade mark — Invalidity proceedings — Community word mark AK 47 — Absolute ground for refusal — Descriptive character — Article 7(1)(c) and Article 52(1)(a) of Regulation (EC) No 207/2009) | 26 |
| 2011/C 145/45 | Case T-14/10: Judgment of the General Court of 24 March 2011 — CheckMobile v OHIM (carcheck) (Community trade mark — Application for Community word mark carcheck — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009) | 27 |
| 2011/C 145/46 | Joined Cases T-139/10, T-280/10 to T-285/10 and T-349/10 to T-352/10: Order of the General Court of 21 March 2011 — Milux v OHIM (REFLUXCONTROL and Others) (Community trade mark — Representation of the applicant by a lawyer who is not a third party — Inadmissibility) | 27 |
| 2011/C 145/47 | Case T-175/10: Order of the General Court of 21 March 2011 — Milux v OHIM (FERTILITYINVIVO) (Community trade mark — Representation of the applicant by a lawyer who is not a third party — Inadmissibility) | 28 |
| 2011/C 145/48 | Case T-100/11: Action brought on 17 February 2011 — MSE Pharmazeutika v OHIM — Merck Sharp & Dohme (SINAMIT) | 28 |
| 2011/C 145/49 | Case T-112/11: Action brought on 23 February 2011 — Schutzgemeinschaft Milch und Milcherzeugnisse v Commission | 29 |
| 2011/C 145/50 | Case T-113/11: Action brought on 23 February 2011 — Schutzgemeinschaft Milch und Milcherzeugnisse v Commission | 30 |
| 2011/C 145/51 | Case T-125/11: Action brought on 28 February 2011 — Centre national de la recherche scientifique v Commission | 31 |
| 2011/C 145/52 | Case T-149/11: Action brought on 11 March 2011 — GS v Parliament and Council | 31 |
| 2011/C 145/53 | Case T-151/11: Action brought on 11 March 2011 — Telefónica de España and Telefónica Móviles España v Commission | 32 |
| 2011/C 145/54 | Case T-159/11: Action brought on 10 March 2011 — Marszałkowski v OHIM — Mar-Ko Fleischwaren (WALICHNOWY MARKO) | 33 |
| 2011/C 145/55 | Case T-166/11: Action brought on 17 March 2011 — Häfele v OHIM (Infront) | 33 |
| 2011/C 145/56 | Case T-167/11: Action brought on 15 March 2011 — Centre national de la recherche scientifique v Commission | 34 |
| 2011/C 145/57 | Case T-170/11: Action brought on 17 March 2011 — Rivella International v OHIM — Baskaya di Baskaya & C. (BASKAYA) | 34 |
| 2011/C 145/58 | Case T-171/11: Action brought on 21 March 2011 — Hopf v OHIM (Clampflex) | 35 |
| 2011/C 145/59 | Case T-173/11: Action brought on 22 March 2011 — Hesse v OHIM — Porsche (Carrera) | 35 |
| 2011/C 145/60 | Case T-177/11: Action brought on 25 March 2011 — PASP and Others v Council | 36 |
| 2011/C 145/61 | Case T-178/11: Action brought on 18 March 2011 — Voss of Norway v OHIM — Nordic Spirit (Three-dimensional bottle) | 36 |
| 2011/C 145/62 | Case T-183/11: Action brought on 28 March 2011 — MIP Metro v OHIM — Jacinto (My Little Bear) | 37 |
| 2011/C 145/63 | Case T-186/11: Action brought on 26 March 2011 — Schönberger v Parliament | 37 |
| 2011/C 145/64 | Case T-188/11: Action brought on 1 April 2011 — Chiboub v Council | 38 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2011/C 145/02

Case C-385/08: Judgment of the Court (Fourth Chamber) of 22 December 2010 — European Commission v Republic of Poland (Failure of a Member State to fulfil obligations — Accession of new Member States — Marketing authorisations for medicinal products that are generics of the reference product Plavix — Conditional decisions authorising the marketing of pharmaceutical products — Infringement of the acquis)

2

2011/C 145/03

Case C-27/11: Reference for a preliminary ruling from the Administrativen sad Sofia — grad (Bulgaria) lodged on 17 January 2011 — Anton Vinkov v Nachalnik Administrativno-nakazatelna deynost

3

2011/C 145/04

Case C-32/11: Reference for a preliminary ruling from the Magyar Köztársaság Legfelsőbb Bírósága (Hungary) lodged on 21 January 2011 — Allianz Hungária Biztosító Zrt., Generali-Providencia Biztosító Zrt., Gépjármű Márkakereskedők Országos Szövetsége, Magyar Peugeot Márkakereskedők Biztosítási Alkusz Kft. And Paragon-Alkusz Zrt., legal successor of Magyar Opelkereskedők Bróker Kft. v Gazdasági Versenyhivatal

4

2011/C 145/05

Case C-40/11: Reference for a preliminary ruling from the Verwaltungsgerichtshof Baden-Württemberg (Germany) lodged on 28 January 2011 — Yoshikazu Iida v City of Ulm

4

2011/C 145/06

Case C-44/11: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 31 January 2011 — Finanzamt Frankfurt am Main V-Höchst v Deutsche Bank AG

6

2011/C 145/07

Case C-49/11: Reference for a preliminary ruling from the Oberlandesgericht Wien (Austria) lodged on 3 February 2011 — Content Services Ltd v Bundesarbeitskammer

6

2011/C 145/08

Case C-56/11: Reference for a preliminary ruling from the Oberlandesgericht Düsseldorf (Germany) lodged on 8 February 2011 — Raiffeisen-Waren-Zentrale Rhein-Main e.G. v Saatgut-Treuhandverwaltungs GmbH

7

2011/C 145/09

Case C-62/11: Reference for a preliminary ruling from the Hessisches Landessozialgericht, Darmstadt (Germany) lodged on 10 February 2011 — Florence Feyerbacher v Land Hessen, represented by the Regierungspräsidium Gießen

7

2011/C 145/10

Case C-68/11: Action brought on 16 February 2011 — European Commission v Italian Republic

8

2011/C 145/11

Case C-69/11: Reference for a preliminary ruling from the Rechtbank van eerste aanleg te Brugge (Belgium), lodged on 16 February 2011 — Connoisseur Belgium BVBA v Belgische Staat

8

2011/C 145/12

Case C-83/11: Reference for a preliminary ruling from Upper Tribunal (Immigration and Asylum Chamber) London (United Kingdom) made on 22 February 2011 — Secretary of State for the Home Department v Muhammad Sazzadur Rahman, Fazly Rabby Islam, Mohibullah Rahman

9

2011/C 145/13

Case C-84/11: Reference for a preliminary ruling from the Korkein hallinto-oikeus (Finland) lodged on 24 February 2011 — Marja-Liisa Susisalo, Olli Tuomaala, Merja Ritala

9

2011/C 145/14

Case C-85/11: Action brought on 24 February 2011 — European Commission v Ireland

10

2011/C 145/15

Case C-86/11: Action brought on 24 February 2011 — European Commission v United Kingdom of Great Britain and Northern Ireland

11

2011/C 145/16

Case C-98/11 P: Appeal brought on 1 March 2011 by Chocoladefabriken Lindt & Sprüngli AG against the judgment of the General Court (FirstChamber) delivered on 17 December 2010 in Case T-336/08 Chocoladefabriken Lindt & Sprüngli AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Chocoladefabriken Lindt & Sprüngli AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

11

2011/C 145/17

Case C-100/11 P: Appeal brought on 2 March 2011 by Helena Rubinstein, L'Oréal against the judgment of the General Court (Third Chamber) delivered on 16 December 2010 in Case T-345/08: Helena Rubinstein SNC, L'Oréal SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Allergan, Inc.

12

2011/C 145/18

Case C-103/11 P: Appeal brought on 2 March 2011 by the European Commission against the judgment of the General Court (Third Chamber) delivered on 16 December 2010 in Case T-19/07 Systran and Systran Luxembourg v Commission

Systran and Systran Luxembourg v Commission

13

2011/C 145/19

Case C-108/11: Action brought on 2 March 2011 — European Commission v Ireland

13

2011/C 145/20

Case C-117/11: Reference for a preliminary ruling from Upper Tribunal (Tax and Chancery Chamber) (United Kingdom) made on 4 March 2011 — Purple Parking Ltd, Airparks Services Ltd v The Commissioners for Her Majesty's Revenue & Customs

14

2011/C 145/21

Case C-118/11: Reference for a preliminary ruling from the Administrativen sad Varna (Bulgaria) lodged on 7 March 2011 — Eon Asset Management OOD v Direktor na Direktsia Obzhalvane i upravlenie na izpalnenieto

15

2011/C 145/22

Case C-119/11: Action brought on 4 March 2011 — European Commission v French Republic

16

2011/C 145/23

Case C-120/11: Reference for a preliminary ruling from the Tribunale di Santa Maria Capua Vetere (Italy) lodged on 7 March 2011 — Criminal proceedings against Yeboah Kwadwo

17

2011/C 145/24

Case C-123/11: Reference for a preliminary ruling from the Korkein hallinto-oikeus (Finland) lodged on 9 March 2011 — A Oy

17

2011/C 145/25

Case C-129/11: Reference for a preliminary ruling from the Administrativen Sad Varna (Bulgaria) lodged on 14 March 2011 — OOD Provadiinvest v Direktor na Direktsia Obzhalvane i upravlenie na izpalnenieto

17

General Court

2011/C 145/26

Case T-375/06: Judgment of the General Court of 24 March 2011 — Viega v Commission (Competition — Agreements, decisions and concerted practices — Copper and copper alloy fittings sector — Decision finding an infringement of Article 81 EC — Participation in the infringement — Obligation to state reasons — Fines — Relevant turnover — Attenuating circumstances)

19

2011/C 145/27

Case T-376/06: Judgment of the General Court of 24 March 2011 — Legris Industries v Commission (Competition — Agreements, decisions and concerted practices — Copper and copper alloy fittings sector — Decision finding an infringement of Article 81 EC — Imputability of the infringement)

19

2011/C 145/28

Case T-377/06: Judgment of the General Court of 24 March 2011 — Comap v Commission (Competition — Agreements, decisions and concerted practices — Copper and copper alloy fittings sector — Decision finding an infringement of Article 81 EC — Duration of participation in the infringement — Fines — Determination of the starting amount of the fine — Proportionality)

19

2011/C 145/29

Case T-378/06: Judgment of the General Court of 24 March 2011 — IMI and Others v Commission (Competition — Agreements, decisions and concerted practices — Copper and copper alloy fittings sector — Decision finding an infringement of Article 81 EC — Fines — Relevant turnover — Leniency Notice — Guidelines on the method of setting fines — Equal treatment)

20

2011/C 145/30

Case T-379/06: Judgment of the General Court of 24 March 2011 — Kaimer and Others v Commission (Competition — Agreements, decisions and concerted practices — Copper and copper alloy fittings sector — Decision finding an infringement of Article 81 EC — Rights of the defence — Participation in the infringement — Duration of the infringement — Fines — Attenuating circumstances — Proportionality — Equal treatment)

20

2011/C 145/31

Case T-381/06: Judgment of the General Court of 24 March 2011 — FRA.BO v Commission (Competition — Agreements, decisions and concerted practices — Copper and copper alloy fittings sector — Decision finding an infringement of Article 81 EC — Fines — Leniency Notice — Guidelines on the method of setting fines — Attenuating circumstances — Immunity from fines — Legitimate expectations — Equal treatment)

21

2011/C 145/32

Case T-382/06: Judgment of the General Court of 24 March 2011 — Tomkins v Commission (Competition — Agreements, decisions and concerted practices — Copper and copper alloy fittings sector — Decision finding an infringement of Article 81 EC — Imputability of the infringement — Duration of the infringement)

21

2011/C 145/33

Case T-384/06: Judgment of the General Court of 24 March 2011 — IBP and International Building Products France v Commission (Competition — Agreements, decisions and concerted practices — Copper and copper alloy fittings sector — Decision finding an infringement of Article 81 EC — Duration of participation in the infringement — Fines — Aggravating circumstances)

22

2011/C 145/34

Case T-385/06: Judgment of the General Court of 24 March 2011 — Aalberts Industries and Others v Commission (Competition — Agreements, decisions and concerted practices — Copper and copper alloy fittings sector — Decision finding an infringement of Article 81 EC — Single and continuous infringement — Participation in the infringement)

22

2011/C 145/35

Case T-386/06: Judgment of the General Court of 24 March 2011 — Pegler v Commission (Competition — Agreements, decisions and concerted practices — Copper and copper alloy fittings sector — Decision finding an infringement of Article 81 EC — Imputability of the infringement — Fines — Deterrent effect)

23

2011/C 145/36

Case T-214/07: Judgment of the General Court of 31 March 2011 — Greece v Commission (EAGGF — Guarantee Section — Expenditure excluded from Community financing — Arable crops — Specific measures for certain agricultural products in favour of the smaller Aegean islands)

23

2011/C 145/37

Case T-117/08: Judgment of the General Court of 31 March 2011 — Italy v EESC (Rules on the use of languages — Vacancy notice concerning the recruitment of the Secretary-General of the EESC — Publication in three official languages — Information relating to the vacancy notice — Publication in all official languages — Action for annulment — Admissibility — Articles 12 EC and 290 EC — Article 12 of the CEOS — Regulation No 1)

23

2011/C 145/38

Joined Cases T-443/08 and T-455/08: Judgment of the General Court of 24 March 2011 — Freistaat Sachsen and Others v Commission (State aid — Aid for Leipzig/Halle Airport — Funding of investments relating to the construction of the new southern runway — Decision declaring aid compatible with the common market — Actions for annulment — No interest in bringing proceedings — Inadmissibility — Concept of undertaking — Concept of economic activity — Airport infrastructure)

24

2011/C 145/39

Case T-33/09: Judgment of the General Court of 29 March 2011 — Portugal v Commission (Non-compliance with a judgment of the Court of Justice establishing a failure to fulfil obligations — Penalty payment — Claim for payment — Repeal of the legislation at issue)

24

2011/C 145/40

Case T-54/09: Judgment of the General Court of 24 March 2011 — XXXLutz Marken v OHIM — Natura Selection (Linea Natura Natur hat immer Stil) (Community trade mark — Opposition proceedings — Application for Community figurative mark Linea Natura Natur hat immer Stil — Earlier Community figurative mark natura selection — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))

25

2011/C 145/41

Case T-149/09: Judgment of the General Court of 24 March 2011 — Dover v Parliament (Rules governing the payment of expenses and allowances to Members of the European Parliament — Review of the use of allowances — Parliamentary assistance allowance — Justification of expenditure — Recovery of undue payments)

25

2011/C 145/42

Case T-184/09: Judgment of the General Court of 24 March 2011 — Greece v Commission (EAGGF — Guarantee Section — Expenditure excluded from Community financing — Common organisation of the markets in the sugar sector — Article 8(1) of Regulation (EC) No 1663/95 and Article 11(1) and (2) of Regulation (EC) No 885/2006 — Assessment of the risk of financial loss to the EAGGF — Principle of proportionality)

26

2011/C 145/43

Case T-419/09: Judgment of the General Court of 24 March 2011 — Cybergun v OHIM — Umarex Sportwaffen (AK 47) (Community trade mark — Invalidity proceedings — Community word mark AK 47 — Absolute ground for refusal — Descriptive character — Article 7(1)(c) and Article 52(1)(a) of Regulation (EC) No 207/2009)

26

2011/C 145/44

Case T-503/09: Judgment of the General Court of 24 March 2011 — Cybergun v OHIM — Umarex Sportwaffen (AK 47) (Community trade mark — Invalidity proceedings — Community word mark AK 47 — Absolute ground for refusal — Descriptive character — Article 7(1)(c) and Article 52(1)(a) of Regulation (EC) No 207/2009)

26

2011/C 145/45

Case T-14/10: Judgment of the General Court of 24 March 2011 — CheckMobile v OHIM (carcheck) (Community trade mark — Application for Community word mark carcheck — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009)

27

2011/C 145/46

Joined Cases T-139/10, T-280/10 to T-285/10 and T-349/10 to T-352/10: Order of the General Court of 21 March 2011 — Milux v OHIM (REFLUXCONTROL and Others) (Community trade mark — Representation of the applicant by a lawyer who is not a third party — Inadmissibility)

27

2011/C 145/47

Case T-175/10: Order of the General Court of 21 March 2011 — Milux v OHIM (FERTILITYINVIVO) (Community trade mark — Representation of the applicant by a lawyer who is not a third party — Inadmissibility)

28

2011/C 145/48

Case T-100/11: Action brought on 17 February 2011 — MSE Pharmazeutika v OHIM — Merck Sharp & Dohme (SINAMIT)

28

2011/C 145/49

Case T-112/11: Action brought on 23 February 2011 — Schutzgemeinschaft Milch und Milcherzeugnisse v Commission

29

2011/C 145/50

Case T-113/11: Action brought on 23 February 2011 — Schutzgemeinschaft Milch und Milcherzeugnisse v Commission

30

2011/C 145/51

Case T-125/11: Action brought on 28 February 2011 — Centre national de la recherche scientifique v Commission

31

2011/C 145/52

Case T-149/11: Action brought on 11 March 2011 — GS v Parliament and Council

31

2011/C 145/53

Case T-151/11: Action brought on 11 March 2011 — Telefónica de España and Telefónica Móviles España v Commission

32

2011/C 145/54

Case T-159/11: Action brought on 10 March 2011 — Marszałkowski v OHIM — Mar-Ko Fleischwaren (WALICHNOWY MARKO)

33

2011/C 145/55

Case T-166/11: Action brought on 17 March 2011 — Häfele v OHIM (Infront)

33

2011/C 145/56

Case T-167/11: Action brought on 15 March 2011 — Centre national de la recherche scientifique v Commission

34

2011/C 145/57

Case T-170/11: Action brought on 17 March 2011 — Rivella International v OHIM — Baskaya di Baskaya & C. (BASKAYA)

34

2011/C 145/58

Case T-171/11: Action brought on 21 March 2011 — Hopf v OHIM (Clampflex)

35

2011/C 145/59

Case T-173/11: Action brought on 22 March 2011 — Hesse v OHIM — Porsche (Carrera)

35

2011/C 145/60

Case T-177/11: Action brought on 25 March 2011 — PASP and Others v Council

36

2011/C 145/61

Case T-178/11: Action brought on 18 March 2011 — Voss of Norway v OHIM — Nordic Spirit (Three-dimensional bottle)

36

2011/C 145/62

Case T-183/11: Action brought on 28 March 2011 — MIP Metro v OHIM — Jacinto (My Little Bear)

37

2011/C 145/63

Case T-186/11: Action brought on 26 March 2011 — Schönberger v Parliament

37

2011/C 145/64

Case T-188/11: Action brought on 1 April 2011 — Chiboub v Council

38

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

EN

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

| 14.5.2011 | EN | Official Journal of the European Union | C 145/1 |
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14.5.2011

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2011/C 145/01

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

OJ C 139, 7.5.2011

Past publications

OJ C 130, 30.4.2011

OJ C 120, 16.4.2011

OJ C 113, 9.4.2011

OJ C 103, 2.4.2011

OJ C 95, 26.3.2011

OJ C 89, 19.3.2011

These texts are available on:

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

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V Announcements

COURT PROCEEDINGS

Court of Justice

| 14.5.2011 | EN | Official Journal of the European Union | C 145/2 |
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14.5.2011

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Official Journal of the European Union

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Judgment of the Court (Fourth Chamber) of 22 December 2010 — European Commission v Republic of Poland

(Case C-385/08) (1)

(Failure of a Member State to fulfil obligations - Accession of new Member States - Marketing authorisations for medicinal products that are generics of the reference product Plavix - Conditional decisions authorising the marketing of pharmaceutical products - Infringement of the acquis)

2011/C 145/02

Language of the case: Polish

Parties

Applicant: European Commission (represented by: M. Šimerdová and K. Herrmann, agents, acting as Agents

Defendant: Republic of Poland (represented by: M. Dowgielewicz and B. Majczyna, agents)

Intervener in support of the defendant: Republic of Lithuania (represented by: D. Kriaučiūnas and R. Mackevičienė, agents)

Re:

Failure of a Member State to fulfil obligations — Infringement of Article 6(1) of Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use (OJ 2001 L 311, p. 67), read in conjunction with Article 13(4) of Council Regulation (EEC) No 2309/93 of 22 July 1993 laying down Community procedures for the authorisation and supervision of medicinal products for human and veterinary use and establishing a European Agency for the Evaluation of Medicinal Products (OJ 1993 L 214, p. 1) and with Articles 89 and 90 of Regulation (EC) No 726/2004 of the European Parliament and of the Council of 31 March 2004 laying down Community procedures for the authorisation and supervision of medicinal products for human and veterinary use and establishing a European Medicines Agency (OJ 2004 L 136, p. 1) — Marketing authorisations for medicinal products that are generics of the reference product Plavix, in breach of the 10-year period of protection enjoyed by the latter — Conditional decisions authorising the marketing of pharmaceutical products, issued before the date of Poland’s accession to the European Union but not becoming effective until after that date — Decisions inconsistent with the provisions of Directive 2001/83/EC

Operative part of the judgment

The Court:

| 1. | Declares that,






  — | by retaining in force the decisions of the Minister for Health concerning marketing authorisations for medicinal products that are generics of the reference product Plavix, and |
| --- | --- | --- |

1.

Declares that,

—

by retaining in force the decisions of the Minister for Health concerning marketing authorisations for medicinal products that are generics of the reference product Plavix, and

| — | by placing and keeping on the market, after 1 May 2004, medicinal products whose marketing authorisation was not issued in accordance with Article 6(1) of Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use, |
| --- | --- |

—

by placing and keeping on the market, after 1 May 2004, medicinal products whose marketing authorisation was not issued in accordance with Article 6(1) of Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use,

the Republic of Poland has failed to fulfil its obligations, as regards the first indent above, under Article 6(1) of Directive 2001/83, in conjunction with Article 13(4) of Council Regulation (EEC) No 2309/93 of 22 July 1993 laying down Community procedures for the authorisation and supervision of medicinal products for human and veterinary use and establishing a European Agency for the Evaluation of Medicinal Products and with Articles 89 and 90 of Regulation (EC) No 726/2004 of the European Parliament and of the Council of 31 March 2004 laying down Community procedures for the authorisation and supervision of medicinal products for human and veterinary use and establishing a European Medicines Agency and, as regards the second indent above, under Article 6(1) of Directive 2001/83.

| 2. | Orders the Republic of Poland to pay the costs. |
| --- | --- |

2.

Orders the Republic of Poland to pay the costs.

| 3. | Orders the Republic of Lithuania to bear its own costs. |
| --- | --- |

3.

Orders the Republic of Lithuania to bear its own costs.

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(1)  OJ C 313, 6.12.2008.

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| 14.5.2011 | EN | Official Journal of the European Union | C 145/3 |
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14.5.2011

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Reference for a preliminary ruling from the Administrativen sad Sofia — grad (Bulgaria) lodged on 17 January 2011 — Anton Vinkov v Nachalnik Administrativno-nakazatelna deynost

(Case C-27/11)

2011/C 145/03

Language of the case: Bulgarian

Referring court

Administrativen sad Sofia — grad

Parties to the main proceedings

Applicant: Anton Vinkov

Defendant: Nachalnik Administrativno-nakazatelna deynost

Questions referred

| 1. | Must applicable provisions of national law, such as those in the main proceedings, which relate to the legal consequences of a decision issued by an administrative authority concerning the imposition of a financial penalty due to an administrative offence consisting in a traffic accident, be interpreted to the effect that they are compatible with the provisions provided for in the Treaties and the European Union law measures adopted on the basis of those provisions in the area of freedom, security and justice and/or if appropriate in the area of transport? |
| --- | --- |

1.

Must applicable provisions of national law, such as those in the main proceedings, which relate to the legal consequences of a decision issued by an administrative authority concerning the imposition of a financial penalty due to an administrative offence consisting in a traffic accident, be interpreted to the effect that they are compatible with the provisions provided for in the Treaties and the European Union law measures adopted on the basis of those provisions in the area of freedom, security and justice and/or if appropriate in the area of transport?

| 2. | Does it follow from the provisions of the Treaties and European Union law measures adopted on the basis of those provisions in the area of freedom, security and justice in connection with judicial cooperation in criminal matters under Article 82(1)(a) of the Treaty on the Functioning of the European Union and in the area of transport under Article 91(1)(c) of that Treaty that administrative road traffic offences which can be characterised as ‘minor’ for the purposes of and in connection with Article 2 of Protocol No 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms are included in the scope of European Union law? |
| --- | --- |

2.

Does it follow from the provisions of the Treaties and European Union law measures adopted on the basis of those provisions in the area of freedom, security and justice in connection with judicial cooperation in criminal matters under Article 82(1)(a) of the Treaty on the Functioning of the European Union and in the area of transport under Article 91(1)(c) of that Treaty that administrative road traffic offences which can be characterised as ‘minor’ for the purposes of and in connection with Article 2 of Protocol No 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms are included in the scope of European Union law?

| 3. | If the second question is answered in the affirmative, the answers to the following questions are requested:






  3.1. | Does an administrative road traffic offence in the circumstances of the main proceedings constitute a minor offence for the purposes of European Union law if at the same time the following circumstances exist:






  (a) | The offence is a traffic accident which has caused financial loss, must be characterised as having been committed intentionally or negligently, and is punishable as an administrative offence. |
| --- | --- | --- | --- |

3.

If the second question is answered in the affirmative, the answers to the following questions are requested:

3.1.

Does an administrative road traffic offence in the circumstances of the main proceedings constitute a minor offence for the purposes of European Union law if at the same time the following circumstances exist:

(a)

The offence is a traffic accident which has caused financial loss, must be characterised as having been committed intentionally or negligently, and is punishable as an administrative offence.

| (b) | In accordance with the amount of the financial penalty provided for, the decision about its imposition cannot be challenged in court and the person concerned does not have the opportunity to prove that the offence with which he has been charged was not committed intentionally or negligently. |
| --- | --- |

(b)

In accordance with the amount of the financial penalty provided for, the decision about its imposition cannot be challenged in court and the person concerned does not have the opportunity to prove that the offence with which he has been charged was not committed intentionally or negligently.

| (c) | The number of points stated in the decision is deducted as an automatic legal consequence of the decision becoming final. |
| --- | --- |

(c)

The number of points stated in the decision is deducted as an automatic legal consequence of the decision becoming final.

| (d) | In the context of the system of driving licences which has been introduced, in which when they are issued a certain number of points is allocated to take into account offences committed, the deduction of points is also taken into account as an automatic legal consequence on the basis of penalty orders which cannot be challenged. |
| --- | --- |

(d)

In the context of the system of driving licences which has been introduced, in which when they are issued a certain number of points is allocated to take into account offences committed, the deduction of points is also taken into account as an automatic legal consequence on the basis of penalty orders which cannot be challenged.

| (e) | If the withdrawal of the driving licence due to disqualification from driving, which occurs as an automatic legal consequence of the deduction of the number of points granted on issue of the licence, is challenged in court, there is no incidental judicial review of the legality of the penalty orders, by which points have been deducted and which are not subject to challenge. |
| --- | --- |

(e)

If the withdrawal of the driving licence due to disqualification from driving, which occurs as an automatic legal consequence of the deduction of the number of points granted on issue of the licence, is challenged in court, there is no incidental judicial review of the legality of the penalty orders, by which points have been deducted and which are not subject to challenge.

| 3.2. | Do Article 82 of the Treaty on the Functioning of the European Union, if appropriate Article 91(1)(c) of that Treaty, and the measures adopted on the basis of the provisions mentioned and the Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties, allow the principle of mutual recognition of judgments and judicial decisions or the measures to improve road safety to not be applied to a decision on the imposition of a financial penalty arising from a road traffic offence which is capable of being characterised as ‘minor’ in European Union law in the circumstances in the main proceedings because the Member State has provided that the requirements of being able to challenge a decision before a court having jurisdiction in particular in criminal matters and the applicability of the procedural rules of national law on appeals in the event of being charged for committing a criminal offence are to be disregarded. |
| --- | --- |

3.2.

Do Article 82 of the Treaty on the Functioning of the European Union, if appropriate Article 91(1)(c) of that Treaty, and the measures adopted on the basis of the provisions mentioned and the Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties, allow the principle of mutual recognition of judgments and judicial decisions or the measures to improve road safety to not be applied to a decision on the imposition of a financial penalty arising from a road traffic offence which is capable of being characterised as ‘minor’ in European Union law in the circumstances in the main proceedings because the Member State has provided that the requirements of being able to challenge a decision before a court having jurisdiction in particular in criminal matters and the applicability of the procedural rules of national law on appeals in the event of being charged for committing a criminal offence are to be disregarded.

| 4. | If the second question is answered in the negative, the answers to the following questions are requested:
  Do Article 82 of the Treaty on the Functioning of the European Union, if appropriate Article 91(1)(c) of that Treaty, and the measures adopted on the basis of the provisions mentioned and the Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties, allow the principle of mutual recognition of judgments and judicial decisions or the European Union law measures to improve road safety to not be applied to a decision on the imposition of a financial penalty arising from a road traffic offence according to the discretion of the Member State — the Member State having provided in a legislative act that the requirements of being able to challenge a decision before a court having jurisdiction in particular in criminal matters and the applicability of the procedural rules of national law on appeals in the event of being charged for committing a criminal offence are be disregarded — where at the same time the following applies to the decision in the circumstances of the main proceedings:






  (a) | The offence is a traffic accident which has caused financial loss, must be characterised as having been committed intentionally or negligently, and is punishable as an administrative offence. |
| --- | --- | --- |

4.

If the second question is answered in the negative, the answers to the following questions are requested:

Do Article 82 of the Treaty on the Functioning of the European Union, if appropriate Article 91(1)(c) of that Treaty, and the measures adopted on the basis of the provisions mentioned and the Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties, allow the principle of mutual recognition of judgments and judicial decisions or the European Union law measures to improve road safety to not be applied to a decision on the imposition of a financial penalty arising from a road traffic offence according to the discretion of the Member State — the Member State having provided in a legislative act that the requirements of being able to challenge a decision before a court having jurisdiction in particular in criminal matters and the applicability of the procedural rules of national law on appeals in the event of being charged for committing a criminal offence are be disregarded — where at the same time the following applies to the decision in the circumstances of the main proceedings:

(a)

The offence is a traffic accident which has caused financial loss, must be characterised as having been committed intentionally or negligently, and is punishable as an administrative offence.

| (b) | In accordance with the amount of the financial penalty provided for, the decision about its imposition cannot be challenged in court and the person concerned does not have the opportunity to prove that the offence with which he has been charged was not committed intentionally or negligently. |
| --- | --- |

(b)

In accordance with the amount of the financial penalty provided for, the decision about its imposition cannot be challenged in court and the person concerned does not have the opportunity to prove that the offence with which he has been charged was not committed intentionally or negligently.

| (c) | The number of points stated in the decision is deducted as an automatic legal consequence of the decision becoming final. |
| --- | --- |

(c)

The number of points stated in the decision is deducted as an automatic legal consequence of the decision becoming final.

| (d) | In the context of the system of driving licences which has been introduced, in which when they are issued a certain number of points is allocated to take into account offences committed, the deduction of points is also taken into account as an automatic legal consequence on the basis of penalty orders which cannot be challenged. |
| --- | --- |

(d)

In the context of the system of driving licences which has been introduced, in which when they are issued a certain number of points is allocated to take into account offences committed, the deduction of points is also taken into account as an automatic legal consequence on the basis of penalty orders which cannot be challenged.

| (e) | If the withdrawal of the driving licence due to disqualification from driving, which occurs as an automatic legal consequence of the deduction of the number of points granted on issue of the licence is challenged in court, there is no incidental judicial review of the legality of the penalty orders, by which points have been deducted and which are not subject to challenge. |
| --- | --- |

(e)

If the withdrawal of the driving licence due to disqualification from driving, which occurs as an automatic legal consequence of the deduction of the number of points granted on issue of the licence is challenged in court, there is no incidental judicial review of the legality of the penalty orders, by which points have been deducted and which are not subject to challenge.

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| 14.5.2011 | EN | Official Journal of the European Union | C 145/4 |
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14.5.2011

EN

Official Journal of the European Union

C 145/4

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Reference for a preliminary ruling from the Magyar Köztársaság Legfelsőbb Bírósága (Hungary) lodged on 21 January 2011 — Allianz Hungária Biztosító Zrt., Generali-Providencia Biztosító Zrt., Gépjármű Márkakereskedők Országos Szövetsége, Magyar Peugeot Márkakereskedők Biztosítási Alkusz Kft. And Paragon-Alkusz Zrt., legal successor of Magyar Opelkereskedők Bróker Kft. v Gazdasági Versenyhivatal

(Case C-32/11)

2011/C 145/04

Language of the case: Hungarian

Referring court

Magyar Köztársaság Legfelsőbb Bírósága

Parties to the main proceedings

Applicants: Allianz Hungária Biztosító Zrt., Generali-Providencia Biztosító Zrt., Gépjármű Márkakereskedők Országos Szövetsége, Magyar Peugeot Márkakereskedők Biztosítási Alkusz Kft., Paragon-Alkusz Zrt., legal successor of Magyar Opelkereskedők Bróker Kft.

Defendant: Gazdasági Versenyhivatal

Question referred

Do bilateral agreements between an insurance company and individual car repairers, or between an insurance company and a car repairers’ association, under which the hourly repair charge paid by the insurance company to the repairer for the repair of vehicles insured by the insurance company depends, among other things, on the number and scale of insurance policies taken out with the insurance company by the repairer, as the insurance broker for the insurance company in question, qualify as agreements which have as their object the prevention, restriction or distortion of competition, and thus contravene Article 101(1) TFEU?

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| 14.5.2011 | EN | Official Journal of the European Union | C 145/4 |
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14.5.2011

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Official Journal of the European Union

C 145/4

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Reference for a preliminary ruling from the Verwaltungsgerichtshof Baden-Württemberg (Germany) lodged on 28 January 2011 — Yoshikazu Iida v City of Ulm

(Case C-40/11)

2011/C 145/05

Language of the case: German

Referring court

Verwaltungsgerichtshof Baden-Württemberg

Parties to the main proceedings

Applicant: Yoshikazu Iida

Defendant: City of Ulm

Questions referred

A.   Articles 2, 3 and 7 of Directive 2004/38/EC (1)

| 1. | Does ‘family member’ include, in particular in the light of Articles 7 and 24 of the Charter of Fundamental Rights (‘the Charter’) and Article 8 of the ECHR on a broad interpretation of Article 2(2)(d) of Directive 2004/38/EC, a parent who is a third-country national and has custody of a non-dependent child who is a Union citizen enjoying freedom of movement? |
| --- | --- |

1.

Does ‘family member’ include, in particular in the light of Articles 7 and 24 of the Charter of Fundamental Rights (‘the Charter’) and Article 8 of the ECHR on a broad interpretation of Article 2(2)(d) of Directive 2004/38/EC, a parent who is a third-country national and has custody of a non-dependent child who is a Union citizen enjoying freedom of movement?

| 2. | If so, does Directive 2004/38/EC apply to that parent, in particular in the light of Articles 7 and 24 of the Charter and Article 8 of the ECHR on a broad interpretation of Article 3(1) of the directive, even if he does not ‘accompany’ or ‘join’ the child who is a Union citizen and who has moved away from the Member State of origin? |
| --- | --- |

2.

If so, does Directive 2004/38/EC apply to that parent, in particular in the light of Articles 7 and 24 of the Charter and Article 8 of the ECHR on a broad interpretation of Article 3(1) of the directive, even if he does not ‘accompany’ or ‘join’ the child who is a Union citizen and who has moved away from the Member State of origin?

| 3. | If so, does that parent, in particular in the light of Articles 7 and 24 of the Charter and Article 8 of the ECHR, have a right of residence for more than three months in the Member State of origin of the child who is a Union citizen, on a broad interpretation of Article 7(2) of Directive 2004/38/EC, at least where a right of custody exists and is actually exercised? |
| --- | --- |

3.

If so, does that parent, in particular in the light of Articles 7 and 24 of the Charter and Article 8 of the ECHR, have a right of residence for more than three months in the Member State of origin of the child who is a Union citizen, on a broad interpretation of Article 7(2) of Directive 2004/38/EC, at least where a right of custody exists and is actually exercised?

B.   Article 6(1) EU in conjunction with the Charter

| 1.(a) | Is the Charter applicable pursuant to the second alternative of the first sentence of Article 51(1) of the Charter if the subject-matter of the dispute depends on a national law (or part of a law) which partly — but not only — transposed directives? |
| --- | --- |

1.(a)

Is the Charter applicable pursuant to the second alternative of the first sentence of Article 51(1) of the Charter if the subject-matter of the dispute depends on a national law (or part of a law) which partly — but not only — transposed directives?

| 1.(b) | If not, is the Charter applicable pursuant to the second alternative of the first sentence of Article 51(1) of the Charter because the applicant could enjoy a right of residence under Union law and could accordingly claim, under the first sentence of Paragraph 5(2) of the Freizügigkeitsgesetz/EU (Law on the Freedom of Movement of Union Citizens), a residence card of a family member of a Union citizen which has its legal basis in the first sentence of Article 10(1) of Directive 2004/38/EC? |
| --- | --- |

1.(b)

If not, is the Charter applicable pursuant to the second alternative of the first sentence of Article 51(1) of the Charter because the applicant could enjoy a right of residence under Union law and could accordingly claim, under the first sentence of Paragraph 5(2) of the Freizügigkeitsgesetz/EU (Law on the Freedom of Movement of Union Citizens), a residence card of a family member of a Union citizen which has its legal basis in the first sentence of Article 10(1) of Directive 2004/38/EC?

| 1.(c) | If not, is the Charter applicable pursuant to the second alternative of the first sentence of Article 51(1) of the Charter, in accordance with the ERT case-law (Case C-260/89, paragraphs 41-45), where a Member State restricts the right of residence of the father who is a third-country national and has custody of a Union citizen who is a minor and resides predominantly in another EU Member State with her mother on account of the latter’s occupation? |
| --- | --- |

1.(c)

If not, is the Charter applicable pursuant to the second alternative of the first sentence of Article 51(1) of the Charter, in accordance with the ERT case-law (Case C-260/89, paragraphs 41-45), where a Member State restricts the right of residence of the father who is a third-country national and has custody of a Union citizen who is a minor and resides predominantly in another EU Member State with her mother on account of the latter’s occupation?

| 2.(a) | If the Charter does apply, does Article 24(3) of the Charter directly accord a right of residence under European Union law to the father who is a third-country national, at least if he holds and actually exercises the right of custody of his child who is a Union citizen, even though the child resides predominantly in another EU Member State? |
| --- | --- |

2.(a)

If the Charter does apply, does Article 24(3) of the Charter directly accord a right of residence under European Union law to the father who is a third-country national, at least if he holds and actually exercises the right of custody of his child who is a Union citizen, even though the child resides predominantly in another EU Member State?

| 2.(b) | If not, does it follow from the freedom of movement of the child who is a Union citizen that under Article 45(1) of the Charter, possibly in conjunction with Article 24(3) of the Charter, the father who is a third-country national has a right of residence under European Union law, at least if he holds and actually exercises the right of custody of his child who is a Union citizen, so that in particular the freedom of movement of the child who is a Union citizen is not deprived of its practical effect? |
| --- | --- |

2.(b)

If not, does it follow from the freedom of movement of the child who is a Union citizen that under Article 45(1) of the Charter, possibly in conjunction with Article 24(3) of the Charter, the father who is a third-country national has a right of residence under European Union law, at least if he holds and actually exercises the right of custody of his child who is a Union citizen, so that in particular the freedom of movement of the child who is a Union citizen is not deprived of its practical effect?

C.   Article 6(3) EU in conjunction with the general principles of Union law

| 1. | Can the ‘unwritten’ EU fundamental rights developed in the Court’s case-law from the Stuttgart Stauder case (Case 29/69, paragraph 7) to, for example, Mangold (Case C-144/04, paragraph 75) be fully applied even if the Charter is not applicable in the specific case? In other words, do the fundamental rights which continue to apply as general principles of Union law under Article 6(3) EU stand autonomously and independently alongside the new fundamental rights laid down in the Charter in accordance with Article 6(1) EU? |
| --- | --- |

1.

Can the ‘unwritten’ EU fundamental rights developed in the Court’s case-law from the Stuttgart Stauder case (Case 29/69, paragraph 7) to, for example, Mangold (Case C-144/04, paragraph 75) be fully applied even if the Charter is not applicable in the specific case? In other words, do the fundamental rights which continue to apply as general principles of Union law under Article 6(3) EU stand autonomously and independently alongside the new fundamental rights laid down in the Charter in accordance with Article 6(1) EU?

| 2. | If so, can a right of residence under European Union law be inferred, with a view to the effective exercise of the right of custody, from the general principles of Union law, in particular in the light of the right to respect for family life under Article 8 of the ECHR, for a father, who is a third-country national, of a Union citizen who is a minor and resides predominantly in another EU Member State with her mother on account of the latter’s occupation? |
| --- | --- |

2.

If so, can a right of residence under European Union law be inferred, with a view to the effective exercise of the right of custody, from the general principles of Union law, in particular in the light of the right to respect for family life under Article 8 of the ECHR, for a father, who is a third-country national, of a Union citizen who is a minor and resides predominantly in another EU Member State with her mother on account of the latter’s occupation?

D.   Article 21(1) TFEU in conjunction with Article 8 of the ECHR

If Article 6(1) or (3) EU does not accord the applicant a right of residence under European Union law, in accordance with the ruling in Zhu and Chen (Case C-200/02, paragraphs 45-47) can a right of residence under European Union law be inferred, with a view to the effective exercise of the right of custody, from the freedom of movement enjoyed by a Union citizen who is a minor and resides predominantly in another EU Member State with her mother on account of the latter’s occupation, for the father, who is a third-country national, in the Member State of origin of the child?

E.   Article 10 of Directive 2004/38/EC

If a right of residence under European Union law is taken to exist, is a parent who is a third-country national in the applicant’s situation entitled to the issue of a ‘residence card of a family member of a Union citizen’, if necessary in accordance with the first sentence of Article 10(1) of the directive?

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(1)  Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (Text with EEA relevance) (OJ 2004 L 158, p. 77).

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| 14.5.2011 | EN | Official Journal of the European Union | C 145/6 |
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Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 31 January 2011 — Finanzamt Frankfurt am Main V-Höchst v Deutsche Bank AG

(Case C-44/11)

2011/C 145/06

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: Finanzamt Frankfurt am Main V-Höchst

Defendant: Deutsche Bank

Questions referred

| 1. | Is the management of securities-based assets (portfolio management), where a taxable person determines for remuneration the purchase and sale of securities and implements that determination by buying and selling the securities, exempt from tax






  — | only in so far as it consists in the management of investment funds for a number of investors collectively within the meaning of Article 135(g) of Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (1) or also |
| --- | --- | --- |

1.

Is the management of securities-based assets (portfolio management), where a taxable person determines for remuneration the purchase and sale of securities and implements that determination by buying and selling the securities, exempt from tax

—

only in so far as it consists in the management of investment funds for a number of investors collectively within the meaning of Article 135(g) of Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (1) or also

| — | in so far as it consists in individual portfolio management for individual investors within the meaning of Article 135(1)(f) of Directive 2006/112/EC (transactions in securities or the negotiation of such transactions)? |
| --- | --- |

—

in so far as it consists in individual portfolio management for individual investors within the meaning of Article 135(1)(f) of Directive 2006/112/EC (transactions in securities or the negotiation of such transactions)?

| 2. | For the purposes of defining principal and ancillary services, what significance is to be attached to the criterion that the ancillary service does not constitute for customers an aim in itself, but a means of better enjoying the principal service supplied, in the context of separate invoicing for the ancillary service and the fact that the ancillary service can be provided by third parties? |
| --- | --- |

2.

For the purposes of defining principal and ancillary services, what significance is to be attached to the criterion that the ancillary service does not constitute for customers an aim in itself, but a means of better enjoying the principal service supplied, in the context of separate invoicing for the ancillary service and the fact that the ancillary service can be provided by third parties?

| 3. | Does Article 56(1)(e) of Directive 2006/112/EC cover only the services referred to in Article 135(1)(a) to (g) of Directive 2006/112/EC or also the management of securities-based assets (portfolio management), even if that transaction is not subject to the latter provision? |
| --- | --- |

3.

Does Article 56(1)(e) of Directive 2006/112/EC cover only the services referred to in Article 135(1)(a) to (g) of Directive 2006/112/EC or also the management of securities-based assets (portfolio management), even if that transaction is not subject to the latter provision?

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(1)  OJ L 347, p. 1.

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| 14.5.2011 | EN | Official Journal of the European Union | C 145/6 |
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Reference for a preliminary ruling from the Oberlandesgericht Wien (Austria) lodged on 3 February 2011 — Content Services Ltd v Bundesarbeitskammer

(Case C-49/11)

2011/C 145/07

Language of the case: German

Referring court

Oberlandesgericht Wien

Parties to the main proceedings

Applicant: Content Services Ltd

Defendant: Bundesarbeitskammer

Question referred

| 1. | Is the requirement in Article 5(1) of [Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers (1) in respect of distance contracts] to the effect that a consumer must receive confirmation of the information specified there in a durable medium available and accessible to him, unless the information has already been given to him on conclusion of the contract in a durable medium available and accessible to him, satisfied, where that information is made available to the consumer by means of a hyperlink on the trader’s website which is contained in a line of text that the consumer must mark as read by ticking a box in order to be able to enter into a contractual relationship? |
| --- | --- |

1.

Is the requirement in Article 5(1) of [Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers (1) in respect of distance contracts] to the effect that a consumer must receive confirmation of the information specified there in a durable medium available and accessible to him, unless the information has already been given to him on conclusion of the contract in a durable medium available and accessible to him, satisfied, where that information is made available to the consumer by means of a hyperlink on the trader’s website which is contained in a line of text that the consumer must mark as read by ticking a box in order to be able to enter into a contractual relationship?

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(1)  Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts — Statement by the Council and the Parliament re Article 6 (1) — Statement by the Commission re Article 3 (1), first indent (OJ 1997 L 144, p. 19).

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| 14.5.2011 | EN | Official Journal of the European Union | C 145/7 |
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Reference for a preliminary ruling from the Oberlandesgericht Düsseldorf (Germany) lodged on 8 February 2011 — Raiffeisen-Waren-Zentrale Rhein-Main e.G. v Saatgut-Treuhandverwaltungs GmbH

(Case C-56/11)

2011/C 145/08

Language of the case: German

Referring court

Oberlandesgericht Düsseldorf

Parties to the main proceedings

Applicant: Raiffeisen-Waren-Zentrale Rhein-Main e.G.

Defendant: Saatgut-Treuhandverwaltungs GmbH

Questions referred

| 1. | Does the obligation of the supplier of processing services to provide information laid down in the sixth indent of Article 14(3) of Regulation No 2100/94 (1) and Article 9(2) and (3) of Regulation No 1768/95 (2) become established only if the request for information from the holder of the variety right is received by the supplier of processing services before the expiry of the marketing year (or the most recent marketing year where there are several) concerned by the request? |
| --- | --- |

1.

Does the obligation of the supplier of processing services to provide information laid down in the sixth indent of Article 14(3) of Regulation No 2100/94 (1) and Article 9(2) and (3) of Regulation No 1768/95 (2) become established only if the request for information from the holder of the variety right is received by the supplier of processing services before the expiry of the marketing year (or the most recent marketing year where there are several) concerned by the request?

| 2. | If Question 1 is answered in the affirmative:
  Is there a request for information ‘complying with the time-limit’ where the holder claims in his request that he has some indication that the supplier of processing services has processed or intends to process for planting harvested material of the protected variety which the farmer named in the request has obtained by planting from propagating material of the protected variety, or must the supplier of the processing services also be furnished with evidence of the claimed indication in the request for information (for example, by providing a copy of the farmer’s statements of planting the product of the harvest)? |
| --- | --- |

2.

If Question 1 is answered in the affirmative:

Is there a request for information ‘complying with the time-limit’ where the holder claims in his request that he has some indication that the supplier of processing services has processed or intends to process for planting harvested material of the protected variety which the farmer named in the request has obtained by planting from propagating material of the protected variety, or must the supplier of the processing services also be furnished with evidence of the claimed indication in the request for information (for example, by providing a copy of the farmer’s statements of planting the product of the harvest)?

| 3. | Can indications establishing the obligation of the supplier of processing services to provide information be derived from the fact that the supplier of processing services, as the agent of the holder of the plant variety right, performs a propagation contract for the production of consumption-related seed of the protected variety, which the holder of the plant variety right has concluded with the farmer effecting propagation, where and because the farmer is in fact granted the possibility, in performing the propagation contract, of using some of the propagation seed for planting? |
| --- | --- |

3.

Can indications establishing the obligation of the supplier of processing services to provide information be derived from the fact that the supplier of processing services, as the agent of the holder of the plant variety right, performs a propagation contract for the production of consumption-related seed of the protected variety, which the holder of the plant variety right has concluded with the farmer effecting propagation, where and because the farmer is in fact granted the possibility, in performing the propagation contract, of using some of the propagation seed for planting?

---

(1)  Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ 1994 L 227, p. 1)

(2)  Commission Regulation (EC) No 1768/95 of 24 July 1995 implementing rules on the agricultural exemption provided for in Article 14 (3) of Council Regulation (EC) No 2100/94 on Community plant variety rights (OJ 1995 L 173, p. 14)

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| 14.5.2011 | EN | Official Journal of the European Union | C 145/7 |
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Reference for a preliminary ruling from the Hessisches Landessozialgericht, Darmstadt (Germany) lodged on 10 February 2011 — Florence Feyerbacher v Land Hessen, represented by the Regierungspräsidium Gießen

(Case C-62/11)

2011/C 145/09

Language of the case: German

Referring court

Hessisches Landessozialgericht, Darmstadt

Parties to the main proceedings

Applicant: Florence Feyerbacher

Defendant: Land Hessen, represented by the Regierungspräsidium Gießen (Regional Administration, Gießen)

Questions referred

| 1. | Is the Agreement of 18 September 1998 between the Government of the Federal Republic of Germany and the European Central Bank (ECB) on the Headquarters of the ECB (‘Headquarters Agreement’) part of European Union law which takes precedence over national law or does it constitute an international treaty? |
| --- | --- |

1.

Is the Agreement of 18 September 1998 between the Government of the Federal Republic of Germany and the European Central Bank (ECB) on the Headquarters of the ECB (‘Headquarters Agreement’) part of European Union law which takes precedence over national law or does it constitute an international treaty?

| 2. | Must Article 15 of the Headquarters Agreement in conjunction with Article 36 of the Statute of the European System of Central Banks (ESCB) and the ECB be interpreted restrictively with the result that the applicability of German social security law conferring the benefit in question is excluded only where pursuant to the ‘Conditions of Employment’ the ECB confers a comparable social benefit on its staff? |
| --- | --- |

2.

Must Article 15 of the Headquarters Agreement in conjunction with Article 36 of the Statute of the European System of Central Banks (ESCB) and the ECB be interpreted restrictively with the result that the applicability of German social security law conferring the benefit in question is excluded only where pursuant to the ‘Conditions of Employment’ the ECB confers a comparable social benefit on its staff?

If Question 2 is answered in the negative:

| (a) | Must the abovementioned provisions be interpreted as meaning that they preclude the application of a national provision which grants family benefits only on the basis of the territorial principle? |
| --- | --- |

(a)

Must the abovementioned provisions be interpreted as meaning that they preclude the application of a national provision which grants family benefits only on the basis of the territorial principle?

| (b) | Is the reasoning of the Court of Justice in Case C-352/06 Bosmann [2008] ECR I-3827, paragraphs 31 to 33, relevant to the application of the abovementioned provisions? Does Article 15 of the Headquarters Agreement in conjunction with Article 36 of the Statute of the ESCB and ECB not deprive the Federal Republic of Germany of the power to grant family benefits to employees of the ECB resident in Germany? |
| --- | --- |

(b)

Is the reasoning of the Court of Justice in Case C-352/06 Bosmann [2008] ECR I-3827, paragraphs 31 to 33, relevant to the application of the abovementioned provisions? Does Article 15 of the Headquarters Agreement in conjunction with Article 36 of the Statute of the ESCB and ECB not deprive the Federal Republic of Germany of the power to grant family benefits to employees of the ECB resident in Germany?

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| 14.5.2011 | EN | Official Journal of the European Union | C 145/8 |
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Action brought on 16 February 2011 — European Commission v Italian Republic

(Case C-68/11)

2011/C 145/10

Language of the case: Italian

Parties

Applicant: European Commission (represented by: A. Alcover San Pedro and S. Mortoni, acting as Agents)

Defendant: Italian Republic

Form of order sought

The applicant claims that the Court should:

| — | declare that, by exceeding for a number of consecutive years the limit values for PM10 particles in ambient air throughout Italian territory, the Italian Republic has failed to fulfil its obligations under Article 5(1) of Council Directive 1999/30/EC (1) of 22 April 1999 relating to limit values for sulphur dioxide, nitrogen dioxide and oxides of nitrogen, particulate matter and lead in ambient air (now Article 13(1) of Directive 2008/50/EC (2) of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe; |
| --- | --- |

—

declare that, by exceeding for a number of consecutive years the limit values for PM10 particles in ambient air throughout Italian territory, the Italian Republic has failed to fulfil its obligations under Article 5(1) of Council Directive 1999/30/EC (1) of 22 April 1999 relating to limit values for sulphur dioxide, nitrogen dioxide and oxides of nitrogen, particulate matter and lead in ambient air (now Article 13(1) of Directive 2008/50/EC (2) of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe;

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

—

order the Italian Republic to pay the costs.

Pleas in law and main arguments

Under Article 5(1) of Directive 1999/30, Member States are to take the measures necessary to ensure that concentrations of PM10 in ambient air do not exceed the limit values laid down in Section I of Annex III to that directive as from the dates specified therein. The relevant date in the present context is 1 January 2005.

The assessment made by the Commission in the annual reports for the years 2005 to 2007 revealed that the limit values for PM10 particles had been exceeded in a great number of urban zones and agglomerations. Moreover, the most recent data forwarded by Italy, which relate to the year 2009, indicate that the exceeding of daily and/or annual limit values has continued in 70 zones at least.

It follows that Italy has failed to fulfil its obligations under Article 5(1) of Directive 1999/30 in terms both of zones and of years.

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(1)  OJ 1999 L 163, p. 41.

(2)  OJ 2008 L 152, p. 1.

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Reference for a preliminary ruling from the Rechtbank van eerste aanleg te Brugge (Belgium), lodged on 16 February 2011 — Connoisseur Belgium BVBA v Belgische Staat

(Case C-69/11)

2011/C 145/11

Language of the case: Dutch

Referring court

Rechtbank van eerste aanleg te Brugge

Parties to the main proceedings

Applicant: Connoisseur Belgium BVBA

Defendant: Belgische Staat

Question referred

Does Article 26 of the Wetboek van de BTW (the Belgian VAT Code) infringe Article 11.A(1)(a) of the Sixth VAT Directive, (1) now incorporated in Article 73 of Council Directive 2006/112/EC (2) of 28 November 2006 on the common system of value added tax, and the principle of the neutrality of VAT, if that provision is interpreted as meaning that VAT is due on costs or amounts which could contractually be charged to the other contracting party but which are not so charged?

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

(2)  OJ 2006 L 347, p. 1.

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| 14.5.2011 | EN | Official Journal of the European Union | C 145/9 |
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Reference for a preliminary ruling from Upper Tribunal (Immigration and Asylum Chamber) London (United Kingdom) made on 22 February 2011 — Secretary of State for the Home Department v Muhammad Sazzadur Rahman, Fazly Rabby Islam, Mohibullah Rahman

(Case C-83/11)

2011/C 145/12

Language of the case: English

Referring court

Upper Tribunal (Immigration and Asylum Chamber) London

Parties to the main proceedings

Applicant: Secretary of State for the Home Department

Defendants: Muhammad Sazzadur Rahman, Fazly Rabby Islam, Mohibullah Rahman

Questions referred

| 1. | Does Article 3(2) of Directive 2004/38/EC (1) require a Member State to make legislative provision to facilitate entry to and or residence in a Member state to the class of other family members who are not nationals of the European Union who can meet the requirements of Article 10(2)? |
| --- | --- |

1.

Does Article 3(2) of Directive 2004/38/EC (1) require a Member State to make legislative provision to facilitate entry to and or residence in a Member state to the class of other family members who are not nationals of the European Union who can meet the requirements of Article 10(2)?

| 2. | Can such other family member referred to in Question 1 rely on the direct applicability of Article 3(2) of Directive 2004/38/EC in the event that he cannot comply with any requirements imposed by national legislative provisions? |
| --- | --- |

2.

Can such other family member referred to in Question 1 rely on the direct applicability of Article 3(2) of Directive 2004/38/EC in the event that he cannot comply with any requirements imposed by national legislative provisions?

| 3. | Is the class of other family members referred to in Article 3(2) and Article 10(2) of Directive 2004/38/EC limited to those who have resided in the same country as the Union national and his or her spouse, before the Union national came to the host state? |
| --- | --- |

3.

Is the class of other family members referred to in Article 3(2) and Article 10(2) of Directive 2004/38/EC limited to those who have resided in the same country as the Union national and his or her spouse, before the Union national came to the host state?

| 4. | Must any dependency referred to in Article 3(2) of Directive 2004/38/EC on which the other family member relies to secure entry to the host state be dependency that existed shortly before the Union citizen moved to the host state? |
| --- | --- |

4.

Must any dependency referred to in Article 3(2) of Directive 2004/38/EC on which the other family member relies to secure entry to the host state be dependency that existed shortly before the Union citizen moved to the host state?

| 5. | Can a Member State impose particular requirements as to the nature or duration of dependency referred to in Article 3(2) of Directive 2004/38/EC by such other family member so as to prevent such dependency being contrived or unnecessary to enable a non national to be admitted to or continue to reside in its territory? |
| --- | --- |

5.

Can a Member State impose particular requirements as to the nature or duration of dependency referred to in Article 3(2) of Directive 2004/38/EC by such other family member so as to prevent such dependency being contrived or unnecessary to enable a non national to be admitted to or continue to reside in its territory?

| 6. | Must the dependency on which the other family member relies in order to be admitted to the Member state continue for a period or indefinitely in the host state for a residence card to be issued or renewed pursuant to Article 10 of Directive 2004/38/EC and if so how should such dependency be demonstrated? |
| --- | --- |

6.

Must the dependency on which the other family member relies in order to be admitted to the Member state continue for a period or indefinitely in the host state for a residence card to be issued or renewed pursuant to Article 10 of Directive 2004/38/EC and if so how should such dependency be demonstrated?

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(1)  Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC

OJ L 158, p. 77

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| 14.5.2011 | EN | Official Journal of the European Union | C 145/9 |
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Reference for a preliminary ruling from the Korkein hallinto-oikeus (Finland) lodged on 24 February 2011 — Marja-Liisa Susisalo, Olli Tuomaala, Merja Ritala

(Case C-84/11)

2011/C 145/13

Language of the case: Finnish

Referring court

Korkein hallinto-oikeus

Parties to the main proceedings

Applicants: Marja-Liisa Susisalo, Olli Tuomaala, Merja Ritala

Other parties: Helsingin yliopiston apteekki, Lääkealan turvallisuus- ja kehittämiskeskus FIMEA

Questions referred

| 1. | Is Article 49 TFEU, which deals with the right of establishment under EU law, to be interpreted to mean that it precludes application of the provisions of Finland’s Law on Medicines with respect to the pharmacies operating licence scheme, for the reason that conditions set for Helsinki University Pharmacy to set up branch pharmacies differ from the conditions set for private pharmacies as follows:






  (a) | By a licence granted by Finnish Medicines Agency (‘FIMEA’) on the basis of Paragraph 52(1) of the Law on Medicines, a private branch pharmacy may be set up in an area which (because of the sparseness of its population) cannot be regarded as having adequate operational prerequisites for an independent pharmacy, but where (for the availability of medicines) a pharmacy business is required; and a private pharmacist may, on the basis of a separate licence granted for each branch pharmacy, operate a maximum of three branch pharmacies. On the other hand, a branch pharmacy of Helsinki University Pharmacy may be set up by a licence granted in each case by FIMEA on the basis of Paragraph 52(3) of the Law on Medicines, and discretion in the granting of such a licence is not limited by the provisions of the Law on Medicines or by other national regulations in any way other than that Helsinki University may have a maximum of 16 branch pharmacies. |
| --- | --- | --- |

1.

Is Article 49 TFEU, which deals with the right of establishment under EU law, to be interpreted to mean that it precludes application of the provisions of Finland’s Law on Medicines with respect to the pharmacies operating licence scheme, for the reason that conditions set for Helsinki University Pharmacy to set up branch pharmacies differ from the conditions set for private pharmacies as follows:

(a)

By a licence granted by Finnish Medicines Agency (‘FIMEA’) on the basis of Paragraph 52(1) of the Law on Medicines, a private branch pharmacy may be set up in an area which (because of the sparseness of its population) cannot be regarded as having adequate operational prerequisites for an independent pharmacy, but where (for the availability of medicines) a pharmacy business is required; and a private pharmacist may, on the basis of a separate licence granted for each branch pharmacy, operate a maximum of three branch pharmacies. On the other hand, a branch pharmacy of Helsinki University Pharmacy may be set up by a licence granted in each case by FIMEA on the basis of Paragraph 52(3) of the Law on Medicines, and discretion in the granting of such a licence is not limited by the provisions of the Law on Medicines or by other national regulations in any way other than that Helsinki University may have a maximum of 16 branch pharmacies.

| (b) | When determining the place of establishment of a private branch pharmacy, FIMEA must take account of the location of the pharmacy. There is no corresponding regulation regarding the places of location of Helsinki University Pharmacy branch pharmacies, and these branch pharmacies are located in various parts of Finland. |
| --- | --- |

(b)

When determining the place of establishment of a private branch pharmacy, FIMEA must take account of the location of the pharmacy. There is no corresponding regulation regarding the places of location of Helsinki University Pharmacy branch pharmacies, and these branch pharmacies are located in various parts of Finland.

| 2. | If the Court of Justice takes the view that, in the light of the answers to the questions set out above, Article 49 TFEU precludes the branch pharmacy licence scheme as it applies to Helsinki University Pharmacy, the Supreme Administrative Court requests a preliminary ruling from the Court Of Justice on the following questions:






  (a) | is the restriction on the freedom of establishment stemming from Helsinki University Pharmacy’s branch pharmacy licence scheme justified by overriding reasons in the general interest arising from its particular tasks relating to pharmacological services and pharmacy teaching, which are necessary and in accordance with the principle of proportionality, taking account of the fact that no corresponding particular tasks are laid down in the case of its branch pharmacies? |
| --- | --- | --- |

2.

If the Court of Justice takes the view that, in the light of the answers to the questions set out above, Article 49 TFEU precludes the branch pharmacy licence scheme as it applies to Helsinki University Pharmacy, the Supreme Administrative Court requests a preliminary ruling from the Court Of Justice on the following questions:

(a)

is the restriction on the freedom of establishment stemming from Helsinki University Pharmacy’s branch pharmacy licence scheme justified by overriding reasons in the general interest arising from its particular tasks relating to pharmacological services and pharmacy teaching, which are necessary and in accordance with the principle of proportionality, taking account of the fact that no corresponding particular tasks are laid down in the case of its branch pharmacies?

| (b) | do the particular tasks, explained above, laid down in law with respect to Helsinki University Pharmacy mean that it may be regarded as an undertaking providing services of general economic interest as referred to in Article 106(2) TFEU, and if so, does the said TFEU provision give entitlement to derogate from the requirements regarding administrative advance authorisation set by Article 49 TFEU and by the case-law of the Court of Justice in the case of Helsinki University’s branch pharmacies, taking account of the fact that no corresponding particular duties are stipulated in the case of Helsinki University Pharmacy branch pharmacies? |
| --- | --- |

(b)

do the particular tasks, explained above, laid down in law with respect to Helsinki University Pharmacy mean that it may be regarded as an undertaking providing services of general economic interest as referred to in Article 106(2) TFEU, and if so, does the said TFEU provision give entitlement to derogate from the requirements regarding administrative advance authorisation set by Article 49 TFEU and by the case-law of the Court of Justice in the case of Helsinki University’s branch pharmacies, taking account of the fact that no corresponding particular duties are stipulated in the case of Helsinki University Pharmacy branch pharmacies?

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| 14.5.2011 | EN | Official Journal of the European Union | C 145/10 |
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Action brought on 24 February 2011 — European Commission v Ireland

(Case C-85/11)

2011/C 145/14

Language of the case: English

Parties

Applicant: European Commission (represented by: R. Lyal, Agent)

Defendant: Ireland

The applicant claims that the Court should:

| — | declare that by permitting non-taxable persons to be members of a VAT group (a single taxable person for VAT purposes), Ireland has failed to comply with its obligations under Articles 9 and 11 of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax; |
| --- | --- |

—

declare that by permitting non-taxable persons to be members of a VAT group (a single taxable person for VAT purposes), Ireland has failed to comply with its obligations under Articles 9 and 11 of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax;

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

—

order Ireland to pay the costs.

Pleas in law and main arguments

For reasons of facility and in order to combat possible abuses, the VAT directive allows Member States to treat two or more taxable persons together as a single taxable person. It is submitted that the directive does not allow them to include non-taxable persons in such a group, thus extending the rights and obligations of taxable persons to non-taxable persons. The Irish legislation which permits the inclusion of non-taxable persons in a VAT group is thus contrary to the directive.

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(1)  OJ L 347, p. 1

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| 14.5.2011 | EN | Official Journal of the European Union | C 145/11 |
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Action brought on 24 February 2011 — European Commission v United Kingdom of Great Britain and Northern Ireland

(Case C-86/11)

2011/C 145/15

Language of the case: English

Parties

Applicant: European Commission (represented by: R. Lyal, Agent)

Defendant: United Kingdom of Great Britain and Northern Ireland

The applicant claims that the Court should:

| — | declare that by permitting non-taxable persons to be members of a VAT group (a single taxable person for VAT purposes), the United Kingdom has failed to comply with its obligations under Articles 9 and 11 of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax; |
| --- | --- |

—

declare that by permitting non-taxable persons to be members of a VAT group (a single taxable person for VAT purposes), the United Kingdom has failed to comply with its obligations under Articles 9 and 11 of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax;

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

—

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

Pleas in law and main arguments

For reasons of facility and in order to combat possible abuses, the VAT directive allows Member States to treat two or more taxable persons together as a single taxable person. It is submitted that the directive does not allow them to include non-taxable persons in such a group, thus extending the rights and obligations of taxable persons to non-taxable persons. The United Kingdom legislation which permits the inclusion of non-taxable persons in a VAT group is thus contrary to the directive.

---

(1)  OJ L 347, p. 1

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| 14.5.2011 | EN | Official Journal of the European Union | C 145/11 |
| --- | --- | --- | --- |

14.5.2011

EN

Official Journal of the European Union

C 145/11

---

Appeal brought on 1 March 2011 by Chocoladefabriken Lindt & Sprüngli AG against the judgment of the General Court (FirstChamber) delivered on 17 December 2010 in Case T-336/08 Chocoladefabriken Lindt & Sprüngli AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-98/11 P)

2011/C 145/16

Language of the case: German

Parties

Appellant: Chocoladefabriken Lindt & Sprüngli AG (represented by: G. Hild and R. Lange, lawyers)

Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Form of order sought

| — | Set aside the judgment of the General Court (First Chamber) of 17 December 2010 in Case T-336/08; |
| --- | --- |

—

Set aside the judgment of the General Court (First Chamber) of 17 December 2010 in Case T-336/08;

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

—

Order OHIM to pay the costs.

Pleas in law and main arguments

The present appeal is brought against the judgment of the General Court, by which it dismissed the appellant’s claim seeking annulment of the Decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 11 June 2008 on the rejection of its application for registration of a three-dimensional mark comprising the shape of a chocolate rabbit with a red band.

The appellant bases its appeal on an infringement of Article 7(1)(b) and Article 7(3) of Regulation No 40/94.

As regards the first ground of appeal, concerning the assessment of the marks’ distinctive character, neither the assessment by OHIM nor the judicial review by the General Court satisfied the requirements in law, since both decisions were based on conjecture. OHIM speculated that the finding that a chocolate Easter bunny is a typical shape for Easter is valid for all Member States of the European Union and that that was not in dispute. That assertion has, however, always been in dispute, since the appellant has expressly disputed that assertion, adducing substantial evidence. OHIM and the General Court should have taken that into account in order correctly to fulfil their obligation of assessment under Article 74(1) of Regulation No 40/94. Further, the General Court reached the conclusion that the use of gold foil to wrap chocolate Easter bunnies is usual on the market, despite the fact that the judgment referred to only three other kinds wrapped in gold foil. Such a small number of goods cannot, in the view of the appellant, lead to that feature being regarded as ‘usual in the market’.

The fact that the assumption made by the General Court, that the mark has no inherent distinctive character throughout the European Union, is unfounded also becomes clear from the fact that the mark in question is registered as a trade mark in 15 Member States of the European Union.

The second ground of appeal concerns the ruling of the General Court that the mark must have acquired distinctive character through use throughout the European Union, which is incorrect for two reasons.

First, the General Court misses the point that distinctive character must be acquired by use only in those places where the mark has no inherent distinctive character. In the 15 Member States where the mark in question has inherent distinctive character, there is no need to require the acquisition of distinctive character through use. If the view were to be accepted that, as part of the assessment, distinctive character had to be ascertained again in the individual Member States, the factual circumstances pertaining there would have to be established. Since, pursuant to Article 74 of the regulation, distinctive character is to be assessed by OHIM of its own motion, OHIM should thus have made specific findings for each individual Member State of the European Union. OHIM and the General Court failed to do so.

Second, the considerations of the General Court cannot be reconciled with the principle of homogeneity of Community trade marks. In an assessment of registrability and, specifically in this case, distinctive character, the European Union is to be regarded as a common homogeneous market. If, as regards a significant part of the total population of the European Union, there is inherent distinctive character, that must also be sufficient for protection throughout the European market.

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| 14.5.2011 | EN | Official Journal of the European Union | C 145/12 |
| --- | --- | --- | --- |

14.5.2011

EN

Official Journal of the European Union

C 145/12

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Appeal brought on 2 March 2011 by Helena Rubinstein, L'Oréal against the judgment of the General Court (Third Chamber) delivered on 16 December 2010 in Case T-345/08: Helena Rubinstein SNC, L'Oréal SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Allergan, Inc.

(Case C-100/11 P)

2011/C 145/17

Language of the case: English

Parties

Appellants: Helena Rubinstein SNC, L'Oréal SA (represented by: A. von Mühlendahl, Rechtsanwalt)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Allergan, Inc.

Form of order sought

The appellants claim that the Court should:

| — | annul the judgment of the General Court of 16 November 2010 in joined cases T-345/08 and T-357/08; |
| --- | --- |

—

annul the judgment of the General Court of 16 November 2010 in joined cases T-345/08 and T-357/08;

| — | to dismiss the appeals filed by Allergan, Inc. against the decisions of the Office's Cancellation Division of 28 March 2007 in Case 1118 C (Helena Rubinstein SNC, BOTOLIST) and 4 April 2007 in Case 1120 C (L'Oréal SA, BOTOCYL); |
| --- | --- |

—

to dismiss the appeals filed by Allergan, Inc. against the decisions of the Office's Cancellation Division of 28 March 2007 in Case 1118 C (Helena Rubinstein SNC, BOTOLIST) and 4 April 2007 in Case 1120 C (L'Oréal SA, BOTOCYL);

| — | to order the Office to bear the costs of the proceedings before the Court of Justice and before the General Court, as well as the costs of the proceedings before the Office's Board of Appeal. |
| --- | --- |

—

to order the Office to bear the costs of the proceedings before the Court of Justice and before the General Court, as well as the costs of the proceedings before the Office's Board of Appeal.

Pleas in law and main arguments

The appellants submit that the contested judgment should be annulled on the following grounds:

| | That the General Court violated Article 52 (1)CTMR (1) in conjunction with Article 8 (5) CTMR in deciding that the Office was justified in finding that the earlier marks relied on by Allergan, Inc. had reputation and that the use of the contested registrations would take unfair advantage of or be detrimental to the distinctiveness or the reputation of the earlier marks. |
| --- | --- |

That the General Court violated Article 52 (1)CTMR (1) in conjunction with Article 8 (5) CTMR in deciding that the Office was justified in finding that the earlier marks relied on by Allergan, Inc. had reputation and that the use of the contested registrations would take unfair advantage of or be detrimental to the distinctiveness or the reputation of the earlier marks.

| | That the General Court violated Article 115 CTMR in conjunction with Article 1 Rule 38 (2) of Commission Regulation (EC) No 2868/95 (2) of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark, as amended (referred to hereafter as ‘Rule 38’ and ‘CTMIR’),in taking into account evidence which was not submitted in the language of the proceedings. |
| --- | --- |

That the General Court violated Article 115 CTMR in conjunction with Article 1 Rule 38 (2) of Commission Regulation (EC) No 2868/95 (2) of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark, as amended (referred to hereafter as ‘Rule 38’ and ‘CTMIR’),in taking into account evidence which was not submitted in the language of the proceedings.

| | That the General Court violated Article 63 CTMR in reviewing and confirming the contested decisions according to erroneous legal standards. |
| --- | --- |

That the General Court violated Article 63 CTMR in reviewing and confirming the contested decisions according to erroneous legal standards.

| | That the General Court violated Articles 73 CTMR in deciding that the contested decisions were not vitiated by absence of sufficient reasons. |
| --- | --- |

That the General Court violated Articles 73 CTMR in deciding that the contested decisions were not vitiated by absence of sufficient reasons.

---

(1)  OJ L 011, p. 1.

(2)  OJ L 303, p. 1

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| 14.5.2011 | EN | Official Journal of the European Union | C 145/13 |
| --- | --- | --- | --- |

14.5.2011

EN

Official Journal of the European Union

C 145/13

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Appeal brought on 2 March 2011 by the European Commission against the judgment of the General Court (Third Chamber) delivered on 16 December 2010 in Case T-19/07 Systran and Systran Luxembourg v Commission

(Case C-103/11 P)

2011/C 145/18

Language of the case: French

Parties

Appellant: European Commission (represented by: T. Van Rijn, E. Montaguti and J. Samnadda, Agents, assisted by A. Berenboom and M. Isgour, laywers)

Other party to the proceedings: Systran SA and Systran Luxembourg SA

Form of order sought

| — | Declare the appeal admissible and well-founded; |
| --- | --- |

—

Declare the appeal admissible and well-founded;

| — | Set aside the judgment of 16 December 2010 in Case T-19/07 Systran and Systran Luxembourg v Commission to the extent that it allows in part the action for damages brought against the Commission and, consequently, by finally ruling on the case dismiss the action on the basis that it is inadmissible or unfounded; |
| --- | --- |

—

Set aside the judgment of 16 December 2010 in Case T-19/07 Systran and Systran Luxembourg v Commission to the extent that it allows in part the action for damages brought against the Commission and, consequently, by finally ruling on the case dismiss the action on the basis that it is inadmissible or unfounded;

| — | Order Systran SA and Systran Luxembourg SA to bear all their own costs and those of the Commission; |
| --- | --- |

—

Order Systran SA and Systran Luxembourg SA to bear all their own costs and those of the Commission;

| — | In the alternative, set aside the judgment of 16 December 2010 in Case T-19/07 Systran and Systran Luxembourg v Commission and refer the case back to the General Court. |
| --- | --- |

—

In the alternative, set aside the judgment of 16 December 2010 in Case T-19/07 Systran and Systran Luxembourg v Commission and refer the case back to the General Court.

Pleas in law and main arguments

The Commission relies on eight pleas in law in support of its appeal. It claims that the judgment is vitiated by a series of errors such as to justify its being set aside. The pleas raised by it relate to the jurisdiction of the General Court to hear the case, its compliance with procedures, and its fulfilment of the three conditions which, according to settled case-law, are cumulatively necessary in order to give rise to the Community’s non-contractual liability: the existence of fault, of damage and of a causal link between the fault and the damage.

By its first plea, the Commission claims that the General Court erred in law by deciding that the dispute was of a non-contractual nature and, accordingly, by declaring that it had jurisdiction to hear the case.

By its second plea, the applicant claims that the General Court infringed the rights of the defence enjoyed by the Commission and disregarded the rules on the taking of evidence.

By its third plea, it maintains that the rules on copyright were incorrectly applied with regard to the ownership of copyright.

By its fourth plea, the Commission maintains that the General Court made a manifest legal error with regard to its assessment of the existence, first, of an infringement of copyright and, second, of an infringement of Systran’s know-how.

Its fifth plea alleges that, by considering that the Commission’s supposed fault constitutes a sufficiently serious breach, the General Court made a manifest error of assessment which led to an infringement of the principles governing the European Union’s non-contractual liability.

By its sixth plea, the applicant submits, first, that the General Court erred in law in its interpretation of the exception laid down in Article 5 of Directive 91/250/EEC and, second, that it failed to fulfil its obligation to state reasons with regard to Article 6 of that directive.

By its seventh plea, the Commission alleges, first, that the General Court made clearly incorrect findings of fact, misinterpreted evidence, and made manifest errors of assessment and, second, that it failed to fulfil its obligation to state reasons with regard to the existence of a causal link.

Finally, the eighth plea alleges that, by awarding Systran damages with interest amounting to EUR 12 001 000, the General Court, first, is guilty of making clearly incorrect findings of fact, misinterpreting evidence, and making manifest errors of assessment and, second, the General Court fails to fulfil its obligation to state reasons concerning the calculation of the damage.

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| 14.5.2011 | EN | Official Journal of the European Union | C 145/13 |
| --- | --- | --- | --- |

14.5.2011

EN

Official Journal of the European Union

C 145/13

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Action brought on 2 March 2011 — European Commission v Ireland

(Case C-108/11)

2011/C 145/19

Language of the case: English

Parties

Applicant: European Commission (represented by: R. Lyal, C. Soulay, agents)

Defendant: Ireland

The applicant claims that the Court should:

| — | Declare that by applying a VAT rate of 4.8% to supplies of greyhounds and horses not normally intended for the preparation of foodstuffs, to the hire of horses and to certain insemination services, Ireland has failed to comply with its obligations under Articles 96, 98 (in conjunction with Annex III) and Article 110 of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax; |
| --- | --- |

—

Declare that by applying a VAT rate of 4.8% to supplies of greyhounds and horses not normally intended for the preparation of foodstuffs, to the hire of horses and to certain insemination services, Ireland has failed to comply with its obligations under Articles 96, 98 (in conjunction with Annex III) and Article 110 of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax;

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

—

order Ireland to pay the costs.

Pleas in law and main arguments

Under article 96 of the VAT directive, the standard rate of VAT fixed by each Member State, subject to a minimum rate of 15 %, is applicable to all supplies of goods and services. A rate other than the standard rate may be applied only in so far as that is permitted by other provisions of the directive.

Article 98 provides that Member States may apply one or two reduced rates to the supplies of goods and services listed in Annex III to the directive. The supplies now in issue do not appear in Annex III.

The VAT directive also contains transitional provisions which permit Member States to continue to apply rates which derogate from the general rules on the structure and level of rates contained in the directive, if the relevant national provisions were in force on 1 January 1991.

Under article 113 of the VAT directive, where a Member State applied, on 1 January 1991, a reduced rate lower than the minimum laid down in article 99, it may apply to those goods and services one of the reduced rates provided for in article 98. However, since the rate applied by Ireland to the goods and services now in issue is lower than the minimum set out in article 99 of the VAT directive, article 113 can be of no avail.

Article 110 of the directive also applies to rates lower than the minimum laid down in article 99. It lays down a transitional arrangement for certain national measures adopted for clearly defined social reasons (i.e. to reduce the tax burden levied on consumption of goods and service which cover basic social needs) and for the benefit of the final consumer. The Commission submits that the supply of horses and greyhounds (other than for use in the preparation of foodstuffs), the hire of horses and insemination services cannot be deemed to be necessary in order to cover basic social needs. The Commission also submits that, since a large proportion of horses and greyhounds are intended for racing or breeding, the benefit of the measure cannot be considered as lying with the final consumer.

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(1)  OJ L 347, p. 1

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| 14.5.2011 | EN | Official Journal of the European Union | C 145/14 |
| --- | --- | --- | --- |

14.5.2011

EN

Official Journal of the European Union

C 145/14

---

Reference for a preliminary ruling from Upper Tribunal (Tax and Chancery Chamber) (United Kingdom) made on 4 March 2011 — Purple Parking Ltd, Airparks Services Ltd v The Commissioners for Her Majesty's Revenue & Customs

(Case C-117/11)

2011/C 145/20

Language of the case: English

Referring court

Upper Tribunal (Tax and Chancery Chamber)

Parties to the main proceedings

Applicants: Purple Parking Ltd, Airparks Services Ltd

Defendant: The Commissioners for Her Majesty's Revenue & Customs

Questions referred

| 1. | What particular factors does the Referring Court have to take into account when deciding whether, in circumstances such as those of the present case, a taxable person is providing a single taxable supply of parking services or two separate supplies, one of parking and one of transport of passengers?
  In particular:






  (a) | Is this case covered by the reasoning adopted by the Court of Justice in Case C-349/96 Card Protection Plan and Case C-41/04 Levob. In particular, can the transport services in question be regarded as ancillary to the parking services or so closely linked to them that they form, objectively, a single indivisible economic supply, which it would be artificial to split? |
| --- | --- | --- |

1.

What particular factors does the Referring Court have to take into account when deciding whether, in circumstances such as those of the present case, a taxable person is providing a single taxable supply of parking services or two separate supplies, one of parking and one of transport of passengers?

In particular:

(a)

Is this case covered by the reasoning adopted by the Court of Justice in Case C-349/96 Card Protection Plan and Case C-41/04 Levob. In particular, can the transport services in question be regarded as ancillary to the parking services or so closely linked to them that they form, objectively, a single indivisible economic supply, which it would be artificial to split?

| (b) | In considering question 1(a), what account should the Referring Court take of the costs of providing the transport services, as opposed to the parking services, in accordance with paragraphs 24-26 of the ECJ's judgment in Joined Cases C-308/96 and C-94/97 Madgett and Baldwin, in assessing whether or not the transport services are ancillary to the parking services? |
| --- | --- |

(b)

In considering question 1(a), what account should the Referring Court take of the costs of providing the transport services, as opposed to the parking services, in accordance with paragraphs 24-26 of the ECJ's judgment in Joined Cases C-308/96 and C-94/97 Madgett and Baldwin, in assessing whether or not the transport services are ancillary to the parking services?

| (c) | In the light of the ECJ's judgment in Case C-572/07 Tellmer, in particular paragraphs 21-24, should the Referring Court when answering question 1(a) take account of the fact that the transport element of the supplies could be (but is not in fact) provided in a variety of ways (for example, the taxable person could provide those transport services using a third party provider who invoices the taxable person or could use a third party provider who contracts directly with the customer and separately charges for the transport services) and to what extent (if at all) is it relevant whether or not the contract gives the customer the right to choose between the different manners in which the transport element could be provided? |
| --- | --- |

(c)

In the light of the ECJ's judgment in Case C-572/07 Tellmer, in particular paragraphs 21-24, should the Referring Court when answering question 1(a) take account of the fact that the transport element of the supplies could be (but is not in fact) provided in a variety of ways (for example, the taxable person could provide those transport services using a third party provider who invoices the taxable person or could use a third party provider who contracts directly with the customer and separately charges for the transport services) and to what extent (if at all) is it relevant whether or not the contract gives the customer the right to choose between the different manners in which the transport element could be provided?

| 2. | When the Referring Court is considering whether or not there is a single indivisible economic supply in answering question 1(a), what account should it take of the principle of fiscal neutrality?
  In particular:






  (a) | Does the answer depend on whether or not the taxable person also provides parking services or transport services separately to other groups of customer? |
| --- | --- | --- |

2.

When the Referring Court is considering whether or not there is a single indivisible economic supply in answering question 1(a), what account should it take of the principle of fiscal neutrality?

In particular:

(a)

Does the answer depend on whether or not the taxable person also provides parking services or transport services separately to other groups of customer?

| (b) | Does the answer depend on how other transport services to and from airports, not provided by operators of parking services, are treated under national law? |
| --- | --- |

(b)

Does the answer depend on how other transport services to and from airports, not provided by operators of parking services, are treated under national law?

| (c) | Does the answer depend on whether or not other instances of the provision by taxable persons of parking and transport services (not involving transport to and from airports) are treated under national law as constituting two distinct supplies, one taxable and one zero-rated? |
| --- | --- |

(c)

Does the answer depend on whether or not other instances of the provision by taxable persons of parking and transport services (not involving transport to and from airports) are treated under national law as constituting two distinct supplies, one taxable and one zero-rated?

| (d) | Does the answer depend on whether or not the taxable person can show that the services it provides are in competition with other similar services involving both a parking and a transport element, whether provided by the same supplier or provided by two separate suppliers? In particular, does the answer depend on whether the taxable person can show that consumers who wish to use their cars to perform part of the journey to the airport can obtain parking and transport to the airport from individual and separate suppliers, for example by parking at a location near a train station and transport by train from that location to the airport or by parking at a location near an airport and another form of public transport to the airport? |
| --- | --- |

(d)

Does the answer depend on whether or not the taxable person can show that the services it provides are in competition with other similar services involving both a parking and a transport element, whether provided by the same supplier or provided by two separate suppliers? In particular, does the answer depend on whether the taxable person can show that consumers who wish to use their cars to perform part of the journey to the airport can obtain parking and transport to the airport from individual and separate suppliers, for example by parking at a location near a train station and transport by train from that location to the airport or by parking at a location near an airport and another form of public transport to the airport?

| (e) | How is the Referring Court to take account of the conclusions reached by the ECJ in Case C-94/09 Commission v France in relation to the principle of fiscal neutrality and transport services in that case? |
| --- | --- |

(e)

How is the Referring Court to take account of the conclusions reached by the ECJ in Case C-94/09 Commission v France in relation to the principle of fiscal neutrality and transport services in that case?

| 3. | Does Community law and, in particular, the principle of fiscal neutrality, preclude a provision of domestic law which excludes zero-rating for transport services between an airport and a car park where the person providing the transport element and the person supplying the car parking element are the same person or connected persons? |
| --- | --- |

3.

Does Community law and, in particular, the principle of fiscal neutrality, preclude a provision of domestic law which excludes zero-rating for transport services between an airport and a car park where the person providing the transport element and the person supplying the car parking element are the same person or connected persons?

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| 14.5.2011 | EN | Official Journal of the European Union | C 145/15 |
| --- | --- | --- | --- |

14.5.2011

EN

Official Journal of the European Union

C 145/15

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Reference for a preliminary ruling from the Administrativen sad Varna (Bulgaria) lodged on 7 March 2011 — Eon Asset Management OOD v Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’

(Case C-118/11)

2011/C 145/21

Language of the case: Bulgarian

Referring court

Administrativen sad Varna

Parties to the main proceedings

Applicant: Eon Asset Management OOD

Defendant: Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’

Questions referred

| 1. | How must the requirement ‘are used’ established in Article 168 of Directive 2006/112 (1) be interpreted and, in the framework of assessing the initial establishment of the right of deduction, when must that requirement be satisfied: in the tax period itself in which the goods were purchased or the services received or does it suffice that the requirement is satisfied in a subsequent tax period? |
| --- | --- |

1.

How must the requirement ‘are used’ established in Article 168 of Directive 2006/112 (1) be interpreted and, in the framework of assessing the initial establishment of the right of deduction, when must that requirement be satisfied: in the tax period itself in which the goods were purchased or the services received or does it suffice that the requirement is satisfied in a subsequent tax period?

| 2. | In the light of Articles 168 and 176 of Directive 2006/112, is a legal rule permissible, such as that established in the domestic provision of Article 70(1)(2) of the Law on VAT, which allows goods and services ‘intended for gratuitous transactions or for activities other than the economic activity of the taxable person’ to be excluded from the outset from the system of input tax deduction? |
| --- | --- |

2.

In the light of Articles 168 and 176 of Directive 2006/112, is a legal rule permissible, such as that established in the domestic provision of Article 70(1)(2) of the Law on VAT, which allows goods and services ‘intended for gratuitous transactions or for activities other than the economic activity of the taxable person’ to be excluded from the outset from the system of input tax deduction?

| 3. | If Question 2 is answered in the affirmative: Must Article 176 of Directive 2006/112 be interpreted as meaning that a Member State which sought to take advantage of the option to exclude certain goods and services from the right of deduction and which defined the category of expenditure as follows: the goods and services intended for gratuitous transactions or for activities other than the economic activity of the taxable person except in the cases mentioned in Article 70(3) of the Law on VAT, satisfied the requirement to adequately define the category of goods and services, that is, to define these by reference to their nature? |
| --- | --- |

3.

If Question 2 is answered in the affirmative: Must Article 176 of Directive 2006/112 be interpreted as meaning that a Member State which sought to take advantage of the option to exclude certain goods and services from the right of deduction and which defined the category of expenditure as follows: the goods and services intended for gratuitous transactions or for activities other than the economic activity of the taxable person except in the cases mentioned in Article 70(3) of the Law on VAT, satisfied the requirement to adequately define the category of goods and services, that is, to define these by reference to their nature?

| 4. | Depending on the answer given to Question 3: In the light of Articles 168 and 173 of Directive 2006/112, how must the purpose (the use or future use) of the goods or services acquired by the taxable person be assessed: as a prerequisite for the initial establishment of the right of deduction or as grounds for the adjustment of the amount of input tax deducted? |
| --- | --- |

4.

Depending on the answer given to Question 3: In the light of Articles 168 and 173 of Directive 2006/112, how must the purpose (the use or future use) of the goods or services acquired by the taxable person be assessed: as a prerequisite for the initial establishment of the right of deduction or as grounds for the adjustment of the amount of input tax deducted?

| 5. | If the purpose (use) must be assessed as grounds for an adjustment to the amount of input tax deducted, how must Article 173 of Directive 2006/112 be interpreted: does it provide for adjustments to be made also in cases in which goods and services are used initially for an activity which is not taxed or following their acquisition not used at all but are at the disposal of the undertaking and in a (tax) period following their acquisition are included in the taxable activity of the taxable person? |
| --- | --- |

5.

If the purpose (use) must be assessed as grounds for an adjustment to the amount of input tax deducted, how must Article 173 of Directive 2006/112 be interpreted: does it provide for adjustments to be made also in cases in which goods and services are used initially for an activity which is not taxed or following their acquisition not used at all but are at the disposal of the undertaking and in a (tax) period following their acquisition are included in the taxable activity of the taxable person?

| 6. | If Article 173 of Directive 2006/112 must be interpreted as meaning that the adjustment envisaged also applies to cases in which, following their acquisition, goods and services are used initially for an activity which is not taxed or not used at all but subsequently are included in the taxable activity of the taxable person, in the light of the restriction established by Article 70(1)(2) of the Law on VAT and the fact that, pursuant to Article 79(1) and (2) of the Law on VAT, adjustments may be made only in cases in which goods whose initial use satisfies the requirement for deduction of input tax are subsequently included in a use which does not satisfy those requirements, must it be presumed that the Member State has satisfied its obligation, in relation to all taxable persons, to structure the right of deduction as soundly and fairly as possible? |
| --- | --- |

6.

If Article 173 of Directive 2006/112 must be interpreted as meaning that the adjustment envisaged also applies to cases in which, following their acquisition, goods and services are used initially for an activity which is not taxed or not used at all but subsequently are included in the taxable activity of the taxable person, in the light of the restriction established by Article 70(1)(2) of the Law on VAT and the fact that, pursuant to Article 79(1) and (2) of the Law on VAT, adjustments may be made only in cases in which goods whose initial use satisfies the requirement for deduction of input tax are subsequently included in a use which does not satisfy those requirements, must it be presumed that the Member State has satisfied its obligation, in relation to all taxable persons, to structure the right of deduction as soundly and fairly as possible?

| 7. | Depending on the answers given to the previous questions: Must it be presumed, having regard to the rules established in the Bulgarian Law on VAT governing restrictions on the right of deduction and adjustments to the amount of input tax deducted, in circumstances such as those of the main proceedings, and in the light of Article 168 of Directive 2006/112, that, in relation to goods supplied and services carried out by another taxable person, a taxable person registered pursuant to the Bulgarian Law on VAT may deduct the input tax in the (tax) period in which these were supplied to him or carried out on his behalf and in which the VAT became chargeable? |
| --- | --- |

7.

Depending on the answers given to the previous questions: Must it be presumed, having regard to the rules established in the Bulgarian Law on VAT governing restrictions on the right of deduction and adjustments to the amount of input tax deducted, in circumstances such as those of the main proceedings, and in the light of Article 168 of Directive 2006/112, that, in relation to goods supplied and services carried out by another taxable person, a taxable person registered pursuant to the Bulgarian Law on VAT may deduct the input tax in the (tax) period in which these were supplied to him or carried out on his behalf and in which the VAT became chargeable?

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(1)  OJ 2006 L 347, p. 1.

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| 14.5.2011 | EN | Official Journal of the European Union | C 145/16 |
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14.5.2011

EN

Official Journal of the European Union

C 145/16

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Action brought on 4 March 2011 — European Commission v French Republic

(Case C-119/11)

2011/C 145/22

Language of the case: French

Parties

Applicant: European Commission (represented by: F. Dintilhac and C. Soulay, agents)

Defendant: French Republic

Form of order sought

| — | Declare that, by applying, since 1 January 2007, a VAT rate of 2,10 % to income from charges for admission to the first performances of concerts held in establishments where refreshments may be obtained during the performance, the French Republic has failed to fulfil its obligations under Articles 99 and 110 of the VAT Directive; (1) |
| --- | --- |

—

Declare that, by applying, since 1 January 2007, a VAT rate of 2,10 % to income from charges for admission to the first performances of concerts held in establishments where refreshments may be obtained during the performance, the French Republic has failed to fulfil its obligations under Articles 99 and 110 of the VAT Directive; (1)

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

—

order French Republic to pay the costs.

Pleas in law and main arguments

By the present action, the Commission complains that, since 1 January 2007, the defendant has applied a VAT rate of 2,10 % to income from charges for admission to the first performances of concerts held in establishments where refreshments may be obtained during the performance, instead of the earlier rate of 5,5 %.

The Commission points out that, under Article 110 of the VAT Directive, Member States which, at 1 January 1991, were applying reduced rates of VAT lower than the minimum rate of 5 % may continue to apply those rates. However, Member States are not permitted under that provision to introduce new derogations or extend the scope of the derogations existing as at 1 January 1991 where they have restricted the scope of the derogations after that date. However, that is exactly what occurred in this case, since, as from 1 January 1997, the defendant restricted the scope of the derogation existing as at 1 January 1991 in connection with reduced rates of VAT and expressly excluded from this income relating to first performances generated by the sale of tickets ‘which give access solely to concerts held in establishments where refreshments may be obtained during the performance’. By extending the scope of a derogation from the Directive, the French Republic has therefore disregarded the purpose of the Directive.

---

(1)  Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).

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| 14.5.2011 | EN | Official Journal of the European Union | C 145/17 |
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14.5.2011

EN

Official Journal of the European Union

C 145/17

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Reference for a preliminary ruling from the Tribunale di Santa Maria Capua Vetere (Italy) lodged on 7 March 2011 — Criminal proceedings against Yeboah Kwadwo

(Case C-120/11)

2011/C 145/23

Language of the case: Italian

Referring court

Tribunale di Santa Maria Capua Vetere

Party to the main proceedings

Yeboah Kwadwo

Question referred

In the light of the principles of sincere cooperation, the effectiveness of directives and the proportionality and effectiveness of coercive measures for the return of illegally staying foreign nationals, do Articles 2, 15 and 16 of Directive 2008/115/EC (1) preclude an illegally staying foreign national who has simply failed to comply with the deportation order and the removal order issued by the administrative authorities from incurring criminal liability and being sentenced to a term of imprisonment of up to four years if he fails to comply with the first removal order and up to five years if he fails to comply with subsequent orders issued by the Questore?

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

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| 14.5.2011 | EN | Official Journal of the European Union | C 145/17 |
| --- | --- | --- | --- |

14.5.2011

EN

Official Journal of the European Union

C 145/17

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Reference for a preliminary ruling from the Korkein hallinto-oikeus (Finland) lodged on 9 March 2011 — A Oy

(Case C-123/11)

2011/C 145/24

Language of the case: Finish

Referring court

Korkein hallinto-oikeus

Parties to the main proceedings

Applicant: A Oy

Defendant: Veronsaajien oikeudenvalvontayksikkö and Valtiovarainministerio

Questions referred

| 1. | Do Article 49 TFEU and Article 54 TFEU require that the acquiring company is entitled to deduct in its taxation losses incurred in previous years by a company merging with it, which has resided in another Member State where it has incurred the losses in connection with business activities, when the acquiring company will not have a fixed place of business in the resident state of the acquired company and when, under national legislation, the acquiring company is entitled to deduct the losses of an acquired company, if the acquired company was Finnish or if the losses had been incurred in a fixed place of business located in this state? |
| --- | --- |

1.

Do Article 49 TFEU and Article 54 TFEU require that the acquiring company is entitled to deduct in its taxation losses incurred in previous years by a company merging with it, which has resided in another Member State where it has incurred the losses in connection with business activities, when the acquiring company will not have a fixed place of business in the resident state of the acquired company and when, under national legislation, the acquiring company is entitled to deduct the losses of an acquired company, if the acquired company was Finnish or if the losses had been incurred in a fixed place of business located in this state?

| 2. | If the answer to the first question is affirmative, do Article 49 TFEU and Article 54 TFEU have a bearing on whether the loss to be deducted is calculated in accordance with the tax legislation of the acquiring company’s state of residence, or should the losses consolidated in the acquired company’s state of residence be considered as the deductible losses? |
| --- | --- |

2.

If the answer to the first question is affirmative, do Article 49 TFEU and Article 54 TFEU have a bearing on whether the loss to be deducted is calculated in accordance with the tax legislation of the acquiring company’s state of residence, or should the losses consolidated in the acquired company’s state of residence be considered as the deductible losses?

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| 14.5.2011 | EN | Official Journal of the European Union | C 145/17 |
| --- | --- | --- | --- |

14.5.2011

EN

Official Journal of the European Union

C 145/17

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Reference for a preliminary ruling from the Administrativen Sad Varna (Bulgaria) lodged on 14 March 2011 — OOD Provadiinvest v Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’

(Case C-129/11)

2011/C 145/25

Language of the case: Bulgarian

Referring court

Administrativen Sad Varna

Parties to the main proceedings

Applicant: OOD Provadiinvest

Defendant: Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’

Questions referred

| 1. | Is Article 80(1)(a) and (b) of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax to be interpreted as meaning that, where there are supplies between connected persons, in so far as the consideration is lower than the open market value, the taxable amount is the open market value of the transaction only if the supplier or the acquirer does not qualify for the full right to deduct the input tax chargeable on the purchase or production of the goods which are supplied? |
| --- | --- |

1.

Is Article 80(1)(a) and (b) of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax to be interpreted as meaning that, where there are supplies between connected persons, in so far as the consideration is lower than the open market value, the taxable amount is the open market value of the transaction only if the supplier or the acquirer does not qualify for the full right to deduct the input tax chargeable on the purchase or production of the goods which are supplied?

| 2. | Is Article 80(1)(a) and (b) of Directive 2006/112 to be interpreted as meaning that, if the supplier has exercised the full right to deduct the input tax on goods and services which are the subject of subsequent supplies between connected persons at a value which is lower than the open market value, and that right to deduct input tax has not been corrected under Articles 173 to 177 of the Directive and the supply is not subject to a tax exemption within the meaning of Articles 132, 135, 136, 371, 375, 376, 377, 378(2), 379(2) and 380 to 390 of the Directive, a Member State is not permitted to adopt measures whereby the taxable amount is exclusively the open market value? |
| --- | --- |

2.

Is Article 80(1)(a) and (b) of Directive 2006/112 to be interpreted as meaning that, if the supplier has exercised the full right to deduct the input tax on goods and services which are the subject of subsequent supplies between connected persons at a value which is lower than the open market value, and that right to deduct input tax has not been corrected under Articles 173 to 177 of the Directive and the supply is not subject to a tax exemption within the meaning of Articles 132, 135, 136, 371, 375, 376, 377, 378(2), 379(2) and 380 to 390 of the Directive, a Member State is not permitted to adopt measures whereby the taxable amount is exclusively the open market value?

| 3. | Is Article 80(1)(a) and (b) of Council Directive 2006/112 to be interpreted as meaning that, if the acquirer has exercised the right to deduct in full the input tax on goods and services which are the subject of supplies between connected persons with a lower value than the open market value, a Member State is not permitted to adopt measures whereby the taxable amount is exclusively the open market value? |
| --- | --- |

3.

Is Article 80(1)(a) and (b) of Council Directive 2006/112 to be interpreted as meaning that, if the acquirer has exercised the right to deduct in full the input tax on goods and services which are the subject of supplies between connected persons with a lower value than the open market value, a Member State is not permitted to adopt measures whereby the taxable amount is exclusively the open market value?

| 4. | Does Article 80(1) of Directive 2006/112 constitute an exhaustive list of cases representing the circumstances in which a Member State is permitted to take measures whereby the taxable amount in respect of supplies is to be the open market value of the transaction? |
| --- | --- |

4.

Does Article 80(1) of Directive 2006/112 constitute an exhaustive list of cases representing the circumstances in which a Member State is permitted to take measures whereby the taxable amount in respect of supplies is to be the open market value of the transaction?

| 5. | Is a provision of national law such as Article 27(3)(1) of the Zakon za danak varhu dobavenata stoynost (Law on VAT) permissible in cases other than those listed in Article 80(1)(a), (b) and (c) of Directive 2006/112? |
| --- | --- |

5.

Is a provision of national law such as Article 27(3)(1) of the Zakon za danak varhu dobavenata stoynost (Law on VAT) permissible in cases other than those listed in Article 80(1)(a), (b) and (c) of Directive 2006/112?

| 6. | In a case such as the present does Article 80(1)(a) and (b) of Directive 2006/112 have direct effect, and may the domestic court apply it directly? |
| --- | --- |

6.

In a case such as the present does Article 80(1)(a) and (b) of Directive 2006/112 have direct effect, and may the domestic court apply it directly?

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(1)  OJ 2006 L 347, p. 1.

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General Court

| 14.5.2011 | EN | Official Journal of the European Union | C 145/19 |
| --- | --- | --- | --- |

14.5.2011

EN

Official Journal of the European Union

C 145/19

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Judgment of the General Court of 24 March 2011 — Viega v Commission

(Case T-375/06) (1)

(Competition - Agreements, decisions and concerted practices - Copper and copper alloy fittings sector - Decision finding an infringement of Article 81 EC - Participation in the infringement - Obligation to state reasons - Fines - Relevant turnover - Attenuating circumstances)

2011/C 145/26

Language of the case: German

Parties

Applicant: Viega GmbH & Co. KG (Attendorn, Germany) (represented initially by J. Burrichter, T. Mäger and F. Bulst, and subsequently by J. Burrichter, T. Mäger and M. Röhrig, lawyers)

Defendant: European Commission (represented by: A. Nijenhuis and V. Bottka, acting as Agents, and by A. Böhlke, lawyer)

Re:

Application for annulment in part of Commission Decision C(2006) 4180 of 20 September 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F-1/38.121 — Fittings), and also, in the alternative, for a reduction in the fine imposed on the applicant in that decision.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

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

2.

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

---

(1)  OJ C 42, 24.2.2007.

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| 14.5.2011 | EN | Official Journal of the European Union | C 145/19 |
| --- | --- | --- | --- |

14.5.2011

EN

Official Journal of the European Union

C 145/19

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Judgment of the General Court of 24 March 2011 — Legris Industries v Commission

(Case T-376/06) (1)

(Competition - Agreements, decisions and concerted practices - Copper and copper alloy fittings sector - Decision finding an infringement of Article 81 EC - Imputability of the infringement)

2011/C 145/27

Language of the case: French

Parties

Applicant: Legris Industries SA (Rennes, France) (represented initially by A. Wachsmann and C. Pommiès, and subsequently by A. Wachsmann and A. Carré, lawyers)

Defendant: European Commission (represented by: V. Bottka and A. Nijenhuis, acting as Agents, and by N. Coutrelis, lawyer)

Re:

Application for annulment in part of Commission Decision C(2006) 4180 of 20 September 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F-1/38.121 — Fittings).

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Legris Industries SA to pay the costs. |
| --- | --- |

2.

Orders Legris Industries SA to pay the costs.

---

(1)  OJ C 42, 24.2.2007.

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| 14.5.2011 | EN | Official Journal of the European Union | C 145/19 |
| --- | --- | --- | --- |

14.5.2011

EN

Official Journal of the European Union

C 145/19

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Judgment of the General Court of 24 March 2011 — Comap v Commission

(Case T-377/06) (1)

(Competition - Agreements, decisions and concerted practices - Copper and copper alloy fittings sector - Decision finding an infringement of Article 81 EC - Duration of participation in the infringement - Fines - Determination of the starting amount of the fine - Proportionality)

2011/C 145/28

Language of the case: French

Parties

Applicant: Comap SA (Paris, France) (represented initially by A. Wachsmann and C. Pommiès, subsequently by A. Wachsmann and D. Nourissier, and finally by A. Wachsmann and S. de Guigné, lawyers)

Defendant: European Commission (represented by: A. Nijenhuis and V. Bottka, acting as Agents, and by N. Coutrelis, lawyer)

Re:

Application for annulment in part of Commission Decision C(2006) 4180 of 20 September 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F-1/38.121 — Fittings), and also for a reduction in the fine imposed on the applicant in that decision.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Comap SA to pay the costs. |
| --- | --- |

2.

Orders Comap SA to pay the costs.

---

(1)  OJ C 42, 24.2.2007.

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| 14.5.2011 | EN | Official Journal of the European Union | C 145/20 |
| --- | --- | --- | --- |

14.5.2011

EN

Official Journal of the European Union

C 145/20

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Judgment of the General Court of 24 March 2011 — IMI and Others v Commission

(Case T-378/06) (1)

(Competition - Agreements, decisions and concerted practices - Copper and copper alloy fittings sector - Decision finding an infringement of Article 81 EC - Fines - Relevant turnover - Leniency Notice - Guidelines on the method of setting fines - Equal treatment)

2011/C 145/29

Language of the case: English

Parties

Applicants: IMI plc (Birmingham, United Kingdom); IMI Kynoch Ltd (Birmingham); Yorkshire Fittings Ltd (Leeds, United Kingdom); VSH Italia Srl (Bregnano, Italy); Comap SA, formerly Aquatis France SAS (La Chapelle-Saint-Mesmin, France); and Simplex Armaturen + Fittings GmbH & Co. KG (Argenbühl-Eisenharz, Germany) (represented by: M. Struys and D. Arts, lawyers)

Defendant: European Commission (represented by: A. Nijenhuis and V. Bottka, acting as Agents, and by S. Kinsella, Solicitor, and K. Nordlander, lawyer)

Re:

Application for annulment in part of Commission Decision C(2006) 4180 of 20 September 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F-1/38.121 — Fittings), and also, in the alternative, for a reduction in the fine imposed on the applicants in that decision.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders IMI plc, IMI Kynoch Ltd, Yorkshire Fittings Ltd, VSH Italia Srl, Comap SA and Simplex Armaturen + Fittings GmbH & Co. KG to pay the costs. |
| --- | --- |

2.

Orders IMI plc, IMI Kynoch Ltd, Yorkshire Fittings Ltd, VSH Italia Srl, Comap SA and Simplex Armaturen + Fittings GmbH & Co. KG to pay the costs.

---

(1)  OJ C 20, 27.1.2007.

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| 14.5.2011 | EN | Official Journal of the European Union | C 145/20 |
| --- | --- | --- | --- |

14.5.2011

EN

Official Journal of the European Union

C 145/20

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Judgment of the General Court of 24 March 2011 — Kaimer and Others v Commission

(Case T-379/06) (1)

(Competition - Agreements, decisions and concerted practices - Copper and copper alloy fittings sector - Decision finding an infringement of Article 81 EC - Rights of the defence - Participation in the infringement - Duration of the infringement - Fines - Attenuating circumstances - Proportionality - Equal treatment)

2011/C 145/30

Language of the case: German

Parties

Applicants: Kaimer GmbH & Co. Holding KG (Essen, Germany); Sanha Kaimer GmbH & Co. KG (Essen); and Sanha Italia Srl (Milan, Italy) (represented by: J. Brück, lawyer)

Defendant: European Commission (represented by: A. Nijenhuis and V. Bottka, acting as Agents, and by A. Böhlke, lawyer)

Re:

Application for annulment in part of Commission Decision C(2006) 4180 of 20 September 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F-1/38.121 — Fittings), and also, in the alternative, for a reduction in the fine imposed on the applicants in that decision.

Operative part of the judgment

The Court:

| 1. | Annuls Article 1 of Commission Decision C(2006) 4180 of 20 September 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F-1/38.121 — Fittings) in so far as it relates to the period from 30 July 1996 to 31 July 1997 as regards the participation of Kaimer GmbH & Co. Holding KG and Sanha Kaimer GmbH & Co. KG and the period from 1 January 1998 to 14 July 1999 as regards the participation of Sanha Italia Srl; |
| --- | --- |

1.

Annuls Article 1 of Commission Decision C(2006) 4180 of 20 September 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F-1/38.121 — Fittings) in so far as it relates to the period from 30 July 1996 to 31 July 1997 as regards the participation of Kaimer GmbH & Co. Holding KG and Sanha Kaimer GmbH & Co. KG and the period from 1 January 1998 to 14 July 1999 as regards the participation of Sanha Italia Srl;

| 2. | Sets the amount of the fine imposed on Kaimer at EUR 7,15 million, in respect of which it is jointly and severally liable with Sanha Kaimer as to EUR 7,15 million and with Sanha Italia as to EUR 6 325 million; |
| --- | --- |

2.

Sets the amount of the fine imposed on Kaimer at EUR 7,15 million, in respect of which it is jointly and severally liable with Sanha Kaimer as to EUR 7,15 million and with Sanha Italia as to EUR 6 325 million;

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

3.

Dismisses the action as to the remainder;

| 4. | Orders Kaimer, Sanha Kaimer and Sanha Italia to bear their own costs and to pay 50 % of the costs of the European Commission; |
| --- | --- |

4.

Orders Kaimer, Sanha Kaimer and Sanha Italia to bear their own costs and to pay 50 % of the costs of the European Commission;

| 5. | Orders the Commission to bear 50 % of its own costs. |
| --- | --- |

5.

Orders the Commission to bear 50 % of its own costs.

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(1)  OJ C 42, 24.2.2007.

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| 14.5.2011 | EN | Official Journal of the European Union | C 145/21 |
| --- | --- | --- | --- |

14.5.2011

EN

Official Journal of the European Union

C 145/21

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Judgment of the General Court of 24 March 2011 — FRA.BO v Commission

(Case T-381/06) (1)

(Competition - Agreements, decisions and concerted practices - Copper and copper alloy fittings sector - Decision finding an infringement of Article 81 EC - Fines - Leniency Notice - Guidelines on the method of setting fines - Attenuating circumstances - Immunity from fines - Legitimate expectations - Equal treatment)

2011/C 145/31

Language of the case: English

Parties

Applicant: FRA.BO SpA (Bordolano, Italy) (represented initially by R. Celli, Solicitor, and F. Distefano, lawyer, and subsequently by F. Distefano)

Defendant: European Commission (represented by: A. Nijenhuis and V. Bottka, acting as Agents, and by S. Kinsella, Solicitor, and K. Nordlander, lawyer)

Re:

Application for annulment in part of Commission Decision C(2006) 4180 of 20 September 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F-1/38.121 — Fittings), and also, in the alternative, for a reduction in the fine imposed on the applicant in that decision.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders FRA.BO SpA to pay the costs. |
| --- | --- |

2.

Orders FRA.BO SpA to pay the costs.

---

(1)  OJ C 42, 24.2.2007.

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| 14.5.2011 | EN | Official Journal of the European Union | C 145/21 |
| --- | --- | --- | --- |

14.5.2011

EN

Official Journal of the European Union

C 145/21

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Judgment of the General Court of 24 March 2011 — Tomkins v Commission

(Case T-382/06) (1)

(Competition - Agreements, decisions and concerted practices - Copper and copper alloy fittings sector - Decision finding an infringement of Article 81 EC - Imputability of the infringement - Duration of the infringement)

2011/C 145/32

Language of the case: English

Parties

Applicant: Tomkins plc (London, United Kingdom) (represented by: T. Soames, S. Jordan, Solicitors, and J. Joshua, Barrister)

Defendant: European Commission (represented by: A. Nijenhuis and V. Bottka, acting as Agents, and by S. Kinsella and K. Daly, Solicitors)

Re:

Application for annulment in part of Commission Decision C(2006) 4180 of 20 September 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F-1/38.121 — Fittings), and also for a reduction in the fine imposed on the applicant in that decision.

Operative part of the judgment

The Court:

| 1. | Annuls Article 1 of Commission Decision C(2006) 4180 of 20 September 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F-1/38.121 — Fittings) in so far as it relates to the period from 31 December 1988 to 29 October 1993 with respect to Tomkins plc; |
| --- | --- |

1.

Annuls Article 1 of Commission Decision C(2006) 4180 of 20 September 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F-1/38.121 — Fittings) in so far as it relates to the period from 31 December 1988 to 29 October 1993 with respect to Tomkins plc;

| 2. | Sets the amount of the fine imposed on Tomkins plc under Article 2(h) of Decision C(2006) 4180 at EUR 4,25 million, in respect of which it is jointly and severally liable with Pegler Ltd as to EUR 3,4 million; |
| --- | --- |

2.

Sets the amount of the fine imposed on Tomkins plc under Article 2(h) of Decision C(2006) 4180 at EUR 4,25 million, in respect of which it is jointly and severally liable with Pegler Ltd as to EUR 3,4 million;

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

3.

Dismisses the action as to the remainder;

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

4.

Orders each party to bear its own costs.

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(1)  OJ C 42, 24.2.2007.

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| 14.5.2011 | EN | Official Journal of the European Union | C 145/22 |
| --- | --- | --- | --- |

14.5.2011

EN

Official Journal of the European Union

C 145/22

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Judgment of the General Court of 24 March 2011 — IBP and International Building Products France v Commission

(Case T-384/06) (1)

(Competition - Agreements, decisions and concerted practices - Copper and copper alloy fittings sector - Decision finding an infringement of Article 81 EC - Duration of participation in the infringement - Fines - Aggravating circumstances)

2011/C 145/33

Language of the case: English

Parties

Applicants: IBP Ltd (Tipton, United Kingdom); and International Building Products France SA (Sartrouville, France) (represented by: M. Clough QC and A. Aldred, Solicitor)

Defendant: European Commission (represented by: F. Castillo de la Torre and V. Bottka, acting as Agents)

Re:

Application for annulment in part of Commission Decision C(2006) 4180 of 20 September 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F-1/38.121 — Fittings) and also, in the alternative, for a reduction in the fine imposed on the applicants in that decision.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders IBP Ltd and International Building Products France SA to bear their own costs and to pay 80 % of the European Commission’s costs, and also to bear their own costs and to pay the Commission’s costs relating to the interim measures proceedings; |
| --- | --- |

2.

Orders IBP Ltd and International Building Products France SA to bear their own costs and to pay 80 % of the European Commission’s costs, and also to bear their own costs and to pay the Commission’s costs relating to the interim measures proceedings;

| 3. | Orders the Commission to bear 20 % of its own costs. |
| --- | --- |

3.

Orders the Commission to bear 20 % of its own costs.

---

(1)  OJ C 20, 27.1.2007.

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| 14.5.2011 | EN | Official Journal of the European Union | C 145/22 |
| --- | --- | --- | --- |

14.5.2011

EN

Official Journal of the European Union

C 145/22

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Judgment of the General Court of 24 March 2011 — Aalberts Industries and Others v Commission

(Case T-385/06) (1)

(Competition - Agreements, decisions and concerted practices - Copper and copper alloy fittings sector - Decision finding an infringement of Article 81 EC - Single and continuous infringement - Participation in the infringement)

2011/C 145/34

Language of the case: English

Parties

Applicants: Aalberts Industries NV (Utrecht, Netherlands); Comap SA, formerly Aquatis France SAS (La Chapelle-Saint-Mesmin, France); and Simplex Armaturen + Fittings GmbH & Co. KG (Argenbühl-Eisenharz, Germany) (represented initially by R. Wesseling and M. van der Woude, and subsequently by R. Wesseling, lawyers)

Defendant: European Commission (represented by: A. Nijenhuis, R. Sauer and V. Bottka, acting as Agents)

Re:

Application for annulment of Commission Decision C(2006) 4180 of 20 September 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F-1/38.121 — Fittings), and also, in the alternative, for a reduction in the fine imposed on the applicants in that decision.

Operative part of the judgment

The Court:

| 1. | Annuls Article 1 of Commission Decision C(2006) 4180 of 20 September 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F-1/38.121 — Fittings) in so far as it finds that Aalberts Industries NV, Comap SA, formerly Aquatis France SAS, and Simplex Armaturen + Fittings GmbH & Co. KG participated in the infringement during the period from 25 June 2003 to 1 April 2004; |
| --- | --- |

1.

Annuls Article 1 of Commission Decision C(2006) 4180 of 20 September 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F-1/38.121 — Fittings) in so far as it finds that Aalberts Industries NV, Comap SA, formerly Aquatis France SAS, and Simplex Armaturen + Fittings GmbH & Co. KG participated in the infringement during the period from 25 June 2003 to 1 April 2004;

| 2. | Annuls Article 2(a) and (b)(2) of Decision C(2006) 4180; |
| --- | --- |

2.

Annuls Article 2(a) and (b)(2) of Decision C(2006) 4180;

| 3. | Orders the European Commission to pay the costs. |
| --- | --- |

3.

Orders the European Commission to pay the costs.

---

(1)  OJ C 20, 27.1.2007.

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| 14.5.2011 | EN | Official Journal of the European Union | C 145/23 |
| --- | --- | --- | --- |

14.5.2011

EN

Official Journal of the European Union

C 145/23

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Judgment of the General Court of 24 March 2011 — Pegler v Commission

(Case T-386/06) (1)

(Competition - Agreements, decisions and concerted practices - Copper and copper alloy fittings sector - Decision finding an infringement of Article 81 EC - Imputability of the infringement - Fines - Deterrent effect)

2011/C 145/35

Language of the case: English

Parties

Applicant: Pegler Ltd (Doncaster, United Kingdom) (represented by: R. Thompson QC and A. Collinson, Solicitor)

Defendant: European Commission (represented by: A. Nijenhuis and V. Bottka, acting as Agents, and by S. Kinsella and K. Daly, Solicitors)

Re:

Application for annulment in part of Commission Decision C(2006) 4180 of 20 September 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F-1/38.121 — Fittings), and also, in the alternative, for a reduction in the fine imposed on the applicant in that decision.

Operative part of the judgment

The Court:

| 1. | Annuls Article 1 of Commission Decision C(2006) 4180 of 20 September 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F-1/38.121 — Fittings) in so far as it finds that Pegler Ltd participated in the infringement in the period from 31 December 1988 to 29 October 1993; |
| --- | --- |

1.

Annuls Article 1 of Commission Decision C(2006) 4180 of 20 September 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F-1/38.121 — Fittings) in so far as it finds that Pegler Ltd participated in the infringement in the period from 31 December 1988 to 29 October 1993;

| 2. | Sets the amount of the fine for which Pegler Ltd is jointly and severally liable under Article 2(h) of Decision C(2006) 4180 at EUR 3,4 million; |
| --- | --- |

2.

Sets the amount of the fine for which Pegler Ltd is jointly and severally liable under Article 2(h) of Decision C(2006) 4180 at EUR 3,4 million;

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

3.

Dismisses the action as to the remainder;

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

4.

Orders each party to bear its own costs.

---

(1)  OJ C 20, 27.1.2007.

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| 14.5.2011 | EN | Official Journal of the European Union | C 145/23 |
| --- | --- | --- | --- |

14.5.2011

EN

Official Journal of the European Union

C 145/23

---

Judgment of the General Court of 31 March 2011 — Greece v Commission

(Case T-214/07) (1)

(EAGGF - Guarantee Section - Expenditure excluded from Community financing - Arable crops - Specific measures for certain agricultural products in favour of the smaller Aegean islands)

2011/C 145/36

Language of the case: Greek

Parties

Applicant: Hellenic Republic (represented by: V. Kontolaimos and I. Chalikias, Agents)

Defendant: European Commission (represented by: H. Tserepa-Lacombe, Agent and N. Korogiannakis, lawyer)

Re:

Application for annulment of Commission Decision 2007/243/EC of 18 April 2007 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 2007 L 106, p. 55).

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders the Hellenic Republic to pay the costs. |
| --- | --- |

2.

Orders the Hellenic Republic to pay the costs.

---

(1)  OJ C 199, 25.8.2007.

---

| 14.5.2011 | EN | Official Journal of the European Union | C 145/23 |
| --- | --- | --- | --- |

14.5.2011

EN

Official Journal of the European Union

C 145/23

---

Judgment of the General Court of 31 March 2011 — Italy v EESC

(Case T-117/08) (1)

(Rules on the use of languages - Vacancy notice concerning the recruitment of the Secretary-General of the EESC - Publication in three official languages - Information relating to the vacancy notice - Publication in all official languages - Action for annulment - Admissibility - Articles 12 EC and 290 EC - Article 12 of the CEOS - Regulation No 1)

2011/C 145/37

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: R. Adam, Agent, and by P. Gentili, lawyer)

Defendant: European Economic and Social Committee (EESC) (represented initially by: M. Bermejo Garde, and subsequently by: M. Arsène, Agents, and by A. Dal Ferro, lawyer)

Intervener in support of the applicant: Kingdom of Spain, (represented by: F. Díez Moreno, Agent)

Re:

ACTION for annulment, firstly, of vacancy notice No 73/07 concerning a post of Secretary-General in the Secretariat of the EESC, published in the English, French and German versions of the Official Journal of the European Union of 28 December 2007 (OJ 2007 C 316 A, p. 1), and, secondly, of the corrigendum to that vacancy notice published in the English, French and German versions of the Official Journal of the European Union of 30 January 2008 (OJ 2008 C 25 A, p. 19)

Operative part of the judgment

The Court:

| 1. | Annuls vacancy notice No 73/07 concerning a post of Secretary-General in the Secretariat of the European Economic and Social Committee (EESC), published on 28 December 2007, as corrected on 30 January 2008; |
| --- | --- |

1.

Annuls vacancy notice No 73/07 concerning a post of Secretary-General in the Secretariat of the European Economic and Social Committee (EESC), published on 28 December 2007, as corrected on 30 January 2008;

| 2. | Orders each party to bear its own costs. |
| --- | --- |

2.

Orders each party to bear its own costs.

---

(1)  OJ C 116, 9.5.2008.

---

| 14.5.2011 | EN | Official Journal of the European Union | C 145/24 |
| --- | --- | --- | --- |

14.5.2011

EN

Official Journal of the European Union

C 145/24

---

Judgment of the General Court of 24 March 2011 — Freistaat Sachsen and Others v Commission

(Joined Cases T-443/08 and T-455/08) (1)

(State aid - Aid for Leipzig/Halle Airport - Funding of investments relating to the construction of the new southern runway - Decision declaring aid compatible with the common market - Actions for annulment - No interest in bringing proceedings - Inadmissibility - Concept of ‘undertaking’ - Concept of ‘economic activity’ - Airport infrastructure)

2011/C 145/38

Language of the case: German

Parties

Applicants: Freistaat Sachsen (Germany) and Land Sachsen-Anhalt (Germany) (represented by U. Soltész, lawyer) (Case T-443/08); Mitteldeutsche Flughafen AG (Leipzig, Germany) and Flughafen Leipzig/Halle GmbH) (Leipzig) (represented by: M. Núñez-Müller, lawyer) (Case T-455/08)

Defendant: European Commission (represented by: K. Gross, B. Martenczuk and E. Righini, Agents)

Interveners in support of the applicants: Federal Republic of Germany (represented by M. Lumma and B. Klein, Agents); and Arbeitsgemeinschaft Deutscher Verkehrsflughäfen eV (ADV) (represented by L. Giesberts, lawyer)

Re:

Application for partial annulment of Commission Decision 2008/948/EC of 23 July 2008 on measures by Germany to assist DHL and Leipzig/Halle Airport (OJ 2008 L 346, p. 1).

Operative part of the judgment

The Court:

| 1. | Joins Cases T-443/08 and T-455/08 for the purposes of judgment; |
| --- | --- |

1.

Joins Cases T-443/08 and T-455/08 for the purposes of judgment;

| 2. | Dismisses the action in Case T-443/08 as inadmissible; |
| --- | --- |

2.

Dismisses the action in Case T-443/08 as inadmissible;

| 3. | Annuls Article 1 of Commission Decision 2008/948/EC of 23 July 2008 on measures by Germany to assist DHL and Leipzig/Halle Airport in so far as it fixes at EUR 350 million the amount of State aid which the Federal Republic of Germany intends to grant to Leipzig/Halle Airport for the construction of a new southern runway and related airport infrastructure; |
| --- | --- |

3.

Annuls Article 1 of Commission Decision 2008/948/EC of 23 July 2008 on measures by Germany to assist DHL and Leipzig/Halle Airport in so far as it fixes at EUR 350 million the amount of State aid which the Federal Republic of Germany intends to grant to Leipzig/Halle Airport for the construction of a new southern runway and related airport infrastructure;

| 4. | Dismisses the remainder of the action in Case T-455/08; |
| --- | --- |

4.

Dismisses the remainder of the action in Case T-455/08;

| 5. | Orders Freistaat Sachsen and Land Sachsen-Anhalt to bear their own costs and to pay the European Commission’s costs in Case T-443/08; |
| --- | --- |

5.

Orders Freistaat Sachsen and Land Sachsen-Anhalt to bear their own costs and to pay the European Commission’s costs in Case T-443/08;

| 6. | Orders Mitteldeutsche Flughafen AG and Flughafen Leipzig/Halle GmbH to bear their own costs; |
| --- | --- |

6.

Orders Mitteldeutsche Flughafen AG and Flughafen Leipzig/Halle GmbH to bear their own costs;

| 7. | Orders the Commission bear its own costs in Case T-455/08; |
| --- | --- |

7.

Orders the Commission bear its own costs in Case T-455/08;

| 8. | Orders the Federal Republic of Germany and Arbeitsgemeinschaft Deutscher Verkehrsflughäfen eV (ADV) to bear their own costs in Cases T-443/08 and T-455/08. |
| --- | --- |

8.

Orders the Federal Republic of Germany and Arbeitsgemeinschaft Deutscher Verkehrsflughäfen eV (ADV) to bear their own costs in Cases T-443/08 and T-455/08.

---

(1)  OJ C 237, 20.12.2008.

---

| 14.5.2011 | EN | Official Journal of the European Union | C 145/24 |
| --- | --- | --- | --- |

14.5.2011

EN

Official Journal of the European Union

C 145/24

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Judgment of the General Court of 29 March 2011 — Portugal v Commission

(Case T-33/09) (1)

(Non-compliance with a judgment of the Court of Justice establishing a failure to fulfil obligations - Penalty payment - Claim for payment - Repeal of the legislation at issue)

2011/C 145/39

Language of the case: Portuguese

Parties

Applicant: Portuguese Republic (represented by: L. Inez Fernandes and J.A. de Oliveira, Agents)

Defendant: European Commission (represented by: M. Konstantinidis, P. Guerra e Andrade and P. Costa de Oliveira, Agents)

Re:

APPLICATION for annulment of Commission Decision C(2008) 7419 final of 25 November 2008, requiring payment of the penalty payments due pursuant to the judgment of the Court of Justice in Case C-70/06 Commission v Portugal [2008] ECR I-1

Operative part of the judgment

The Court:

| 1. | Annuls Commission Decision C(2008) 7419 final of 25 November 2008; |
| --- | --- |

1.

Annuls Commission Decision C(2008) 7419 final of 25 November 2008;

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

2.

Orders the European Commission to pay the costs.

---

(1)  OJ C 82, 4.4.2009.

---

| 14.5.2011 | EN | Official Journal of the European Union | C 145/25 |
| --- | --- | --- | --- |

14.5.2011

EN

Official Journal of the European Union

C 145/25

---

Judgment of the General Court of 24 March 2011 — XXXLutz Marken v OHIM — Natura Selection (Linea Natura Natur hat immer Stil)

(Case T-54/09) (1)

(Community trade mark - Opposition proceedings - Application for Community figurative mark Linea Natura Natur hat immer Stil - Earlier Community figurative mark natura selection - Relative ground for refusal - Likelihood of confusion - Similarity of the signs - Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))

2011/C 145/40

Language of the case: German

Parties

Applicant: XXXLutz Marken GmbH (Wels, Austria) (represented by: H. Pannen, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervening before the General Court: Natura Selection, SL (Barcelona, Spain) (represented by: E. Sugrañes Coca, lawyer)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 28 November 2008 (Case R 1787/2007-2) relating to opposition proceedings between Natura Selection, SL and XXXLutz Marken Gmb.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders XXXLutz Marken GmbH to pay the costs. |
| --- | --- |

2.

Orders XXXLutz Marken GmbH to pay the costs.

---

(1)  OJ C 90, 18.4.2009.

---

| 14.5.2011 | EN | Official Journal of the European Union | C 145/25 |
| --- | --- | --- | --- |

14.5.2011

EN

Official Journal of the European Union

C 145/25

---

Judgment of the General Court of 24 March 2011 — Dover v Parliament

(Case T-149/09) (1)

(Rules governing the payment of expenses and allowances to Members of the European Parliament - Review of the use of allowances - Parliamentary assistance allowance - Justification of expenditure - Recovery of undue payments)

2011/C 145/41

Language of the case: English

Parties

Applicant: Densmore Ronald Dover (Borehamwood, Hertfordshire, United Kindgom) (represented by: D. Vaughan QC, M. Lester, Barrister, and M. French, Solicitor)

Defendant: European Parliament (represented by: H. Krück, D. Moore and M. Windisch, Agents)

Re:

Application for annulment of Decision D(2009) 4639 of the Secretary-General of the European Parliament of 29 January 2009 concerning the recovery of sums paid to the applicant by way of parliamentary allowances.

Operative part of the judgment

The Court:

| 1. | Annuls Decision D(2009) 4639 of the Secretary-General of the European Parliament of 29 January 2009 as regards the recovery of the sum of GBP 193 001; |
| --- | --- |

1.

Annuls Decision D(2009) 4639 of the Secretary-General of the European Parliament of 29 January 2009 as regards the recovery of the sum of GBP 193 001;

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

2.

Dismisses the action as to the remainder;

| 3. | Orders the Parliament and Mr Densmore Ronald Dover each to bear their own costs. |
| --- | --- |

3.

Orders the Parliament and Mr Densmore Ronald Dover each to bear their own costs.

---

(1)  OJ C 141, 20.6.2009.

---

| 14.5.2011 | EN | Official Journal of the European Union | C 145/26 |
| --- | --- | --- | --- |

14.5.2011

EN

Official Journal of the European Union

C 145/26

---

Judgment of the General Court of 24 March 2011 — Greece v Commission

(Case T-184/09) (1)

(EAGGF - Guarantee Section - Expenditure excluded from Community financing - Common organisation of the markets in the sugar sector - Article 8(1) of Regulation (EC) No 1663/95 and Article 11(1) and (2) of Regulation (EC) No 885/2006 - Assessment of the risk of financial loss to the EAGGF - Principle of proportionality)

2011/C 145/42

Language of the case: Greek

Parties

Applicant: Hellenic Republic (represented by: V. Kontolaimos, E. Leftheriotou and V. Karra, Agents)

Defendant: European Commission (represented by: F. Jimeno Fernández and A. Markoulli, Agents)

Re:

Application for annulment of Commission Decision 2009/253/EC of 19 March 2009 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) and under the European Agricultural Guarantee Fund (EAGF) (OJ 2009 L 75, p. 15), in so far as it excludes certain expenditure incurred by the Hellenic Republic in the context of the common organisation of the markets in the sugar sector.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders the Hellenic Republic to pay the costs. |
| --- | --- |

2.

Orders the Hellenic Republic to pay the costs.

---

(1)  OJ C 193, 15.8.2009.

---

| 14.5.2011 | EN | Official Journal of the European Union | C 145/26 |
| --- | --- | --- | --- |

14.5.2011

EN

Official Journal of the European Union

C 145/26

---

Judgment of the General Court of 24 March 2011 — Cybergun v OHIM — Umarex Sportwaffen (AK 47)

(Case T-419/09) (1)

(Community trade mark - Invalidity proceedings - Community word mark AK 47 - Absolute ground for refusal - Descriptive character - Article 7(1)(c) and Article 52(1)(a) of Regulation (EC) No 207/2009)

2011/C 145/43

Language of the case: German

Parties

Applicant: Cybergun SA (Bondoufle, France) (represented by: S. Guyot, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervening before the General Court: Umarex Sportwaffen GmbH & Co. KG (Arnsberg, Germany) (represented by: M.-H. Hoffmann, lawyer)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 5 August 2009 (Case R 1101/2007-1) relating to invalidity proceedings between Umarex Sportwaffen GmbH & Co. KG and Cybergun SA.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Cybergun SA to pay the costs. |
| --- | --- |

2.

Orders Cybergun SA to pay the costs.

---

(1)  OJ C 312, 19.12.2009.

---

| 14.5.2011 | EN | Official Journal of the European Union | C 145/26 |
| --- | --- | --- | --- |

14.5.2011

EN

Official Journal of the European Union

C 145/26

---

Judgment of the General Court of 24 March 2011 — Cybergun v OHIM — Umarex Sportwaffen (AK 47)

(Case T-503/09) (1)

(Community trade mark - Invalidity proceedings - Community word mark AK 47 - Absolute ground for refusal - Descriptive character - Article 7(1)(c) and Article 52(1)(a) of Regulation (EC) No 207/2009)

2011/C 145/44

Language of the case: French

Parties

Applicant: Cybergun SA (Bondoufle, France) (represented by: S. Guyot, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervening before the General Court: Umarex Sportwaffen GmbH & Co. KG (Arnsberg, Germany) (represented by: M.-H. Hoffmann, lawyer)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 8 October 2009 (Case R 645/2008-1) relating to invalidity proceedings between Umarex Sportwaffen GmbH & Co. KG and Cybergun SA.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Cybergun SA to pay the costs. |
| --- | --- |

2.

Orders Cybergun SA to pay the costs.

---

(1)  OJ C 51, 27.2.2010.

---

| 14.5.2011 | EN | Official Journal of the European Union | C 145/27 |
| --- | --- | --- | --- |

14.5.2011

EN

Official Journal of the European Union

C 145/27

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Judgment of the General Court of 24 March 2011 — CheckMobile v OHIM (carcheck)

(Case T-14/10) (1)

(Community trade mark - Application for Community word mark ‘carcheck’ - Absolute ground for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 207/2009)

2011/C 145/45

Language of the case: German

Parties

Applicant: CheckMobile GmbH — The Process Solution Company (Hamburg, Germany) (represented by: K. Lodigkeit, lawyer)

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

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 18 November 2009 (Case R 595/2009-4), relating to an application for registration as a Community trade mark of the word sign ‘carcheck’.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders CheckMobile GmbH — The Process Solution Company to pay the costs. |
| --- | --- |

2.

Orders CheckMobile GmbH — The Process Solution Company to pay the costs.

---

(1)  OJ C 80, 27.3.2010.

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| 14.5.2011 | EN | Official Journal of the European Union | C 145/27 |
| --- | --- | --- | --- |

14.5.2011

EN

Official Journal of the European Union

C 145/27

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Order of the General Court of 21 March 2011 — Milux v OHIM (REFLUXCONTROL and Others)

(Joined Cases T-139/10, T-280/10 to T-285/10 and T-349/10 to T-352/10) (1)

(Community trade mark - Representation of the applicant by a lawyer who is not a third party - Inadmissibility)

2011/C 145/46

Language of the case: English

Parties

Applicant: Milux Holding SA (Luxembourg, Luxembourg) (represented by: J. Bojs, lawyer)

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

Re:

Actions against the decisions of the Fourth Board of Appeal of OHIM of 13 January 2010 (Case R 1134/2009-4), concerning the application for registration of the word sign REFLUXCONTROL as a Community trade mark (Case T-139/10); of 29 April 2010 (Case R 1432/2009-4), concerning the application for registration of the word sign ANEURYSMCONTROL as a Community trade mark (Case T-280/10); of 29 April 2010 (Case R 1433/2009-4), concerning the application for registration of the word sign APPETITECONTROL as a Community trade mark (Case T-281/10); of 8 June 2010 (Case R 1434/2009-4), concerning the application for registration of the word sign STOMACONTROL as a Community trade mark (Case T-282/10); of 17 June 2010 (Case R 1435/2009-4), concerning the application for registration of the word sign BMICONTROL as a Community trade mark (Case T-283/10); of 3 June 2010 (Case R 1438/2009-4), concerning the application for registration of the word sign IMPLANTCONTROL as a Community trade mark (Case T-284/10); of 29 April 2010 (Case R 1444/2009-4), concerning the application for registration of the word sign CHEMOCONTROL as a Community trade mark (Case T-285/10); of 29 June 2010 (Case R 1436/2009-4), concerning the application for registration of the word sign OVUMCONTROL as a Community trade mark (Case T-349/10); of 2 July 2010 (Case R 1437/2009-4), concerning the application for registration of the word sign HEARTCONTROL as a Community trade mark (Case T-350/10); of 28 July 2010 (Case R 1439/2009-4), concerning the application for registration of the word sign VESICACONTROL as a Community trade mark (Case T-351/10); and of 28 July 2010 (Case R 1443/2009-4), concerning the application for registration of the word sign RECTALCONTROL as a Community trade mark (Case T-352/10)

Operative part of the order

| 1. | Cases T-139/10, T-280/10 to T-285/10 and T-349/10 to T-352/10 are joined for the purposes of the present order. |
| --- | --- |

1.

Cases T-139/10, T-280/10 to T-285/10 and T-349/10 to T-352/10 are joined for the purposes of the present order.

| 2. | The actions are dismissed as inadmissible. |
| --- | --- |

2.

The actions are dismissed as inadmissible.

| 3. | Milux Holding SA is ordered to pay the costs. |
| --- | --- |

3.

Milux Holding SA is ordered to pay the costs.

---

(1)  OJ C 148, 5.6.2010.

---

| 14.5.2011 | EN | Official Journal of the European Union | C 145/28 |
| --- | --- | --- | --- |

14.5.2011

EN

Official Journal of the European Union

C 145/28

---

Order of the General Court of 21 March 2011 — Milux v OHIM (FERTILITYINVIVO)

(Case T-175/10) (1)

(Community trade mark - Representation of the applicant by a lawyer who is not a third party - Inadmissibility)

2011/C 145/47

Language of the case: English

Parties

Applicant: Milux Holding SA (Luxembourg, Luxembourg) (represented by: J. Bojs, lawyer)

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

Re:

Action against the decision of the Fourth Board of Appeal of OHIM of 2 February 2010 (Case R 1116/2009-4), concerning the application for registration of the word sign FERTILITYINVIVO as a Community trade mark

Operative part of the order

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

1.

The action is dismissed as inadmissible.

| 2. | Milux Holding SA is ordered to pay the costs. |
| --- | --- |

2.

Milux Holding SA is ordered to pay the costs.

---

(1)  OJ C 161, 19.6.2010.

---

| 14.5.2011 | EN | Official Journal of the European Union | C 145/28 |
| --- | --- | --- | --- |

14.5.2011

EN

Official Journal of the European Union

C 145/28

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Action brought on 17 February 2011 — MSE Pharmazeutika v OHIM — Merck Sharp & Dohme (SINAMIT)

(Case T-100/11)

2011/C 145/48

Language in which the application was lodged: English

Parties

Applicant: MSE Pharmazeutika GmbH (Bad Homburg, Germany) (represented by: T. Büttner, lawyer)

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

Other party to the proceedings before the Board of Appeal: Merck Sharp & Dohme Corp. (New Jersey, USA)

Form of order sought

| — | Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 9 December 2010 in case R 724/2010-1; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 9 December 2010 in case R 724/2010-1;

| — | Annul the decision of the Opposition Division of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 3 March 2010, which upheld opposition No B 1441684. |
| --- | --- |

—

Annul the decision of the Opposition Division of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 3 March 2010, which upheld opposition No B 1441684.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘SINAMIT’, for goods in classes 3, 5 and 32 — Community trade mark application No 951596

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: Austrian trade mark registration No 57446 of the word mark ‘SINEMET’, for goods in class 5; Benelux trade mark registration No 320194 of the word mark ‘SINEMET’, for goods in class 5; Danish trade mark registration No VR197302373 of the word mark ‘SINEMET’, for goods in class 5; Finish trade mark registration No 49091 of the word mark ‘SINEMET’, for goods in class 5; Greek trade mark registration No 34959 of the word mark SINEMET, for goods in class 5; Hungarian trade mark registration No 116223 of the word mark ‘SINEMET’, for goods in class 5; Latvian trade mark registration No M18257 of the word mark ‘SINEMET’, for goods in class 5; Lithuanian trade mark registration No 12963 of the word mark ‘SINEMET’, for goods in class 5

Decision of the Opposition Division: Upheld the opposition for part of the contested goods

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly found that there was likelihood of confusion between the conflicting marks, assuming a high similarity of the marks on the one side and an identity and similarity of the goods covered by the trademarks on the other side.

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| 14.5.2011 | EN | Official Journal of the European Union | C 145/29 |
| --- | --- | --- | --- |

14.5.2011

EN

Official Journal of the European Union

C 145/29

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Action brought on 23 February 2011 — Schutzgemeinschaft Milch und Milcherzeugnisse v Commission

(Case T-112/11)

2011/C 145/49

Language of the case: German

Parties

Applicant: Schutzgemeinschaft Milch und Milcherzeugnisse eV (Berlin, Germany) (represented by: M. Loschelder and V. Schoene)

Defendant: European Commission

Form of order sought

| — | Annul Commission Regulation (EU) No 1121/2010 of 2 December 2010 entering a designation in the register of protected designations of origin and protected geographical indications [Edam Holland (PGI)]; |
| --- | --- |

—

Annul Commission Regulation (EU) No 1121/2010 of 2 December 2010 entering a designation in the register of protected designations of origin and protected geographical indications [Edam Holland (PGI)];

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

—

Order the Commission to pay the necessary costs.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging infringement of the division of powers






  — | By its first plea the applicant alleges infringement of the division of powers under Regulation (EC) No 510/2006 (1) as no national procedure was initiated in respect of the protected geographical indication ‘Edam Holland’ registered by means of the contested regulation. |
| --- | --- | --- |

1.

First plea in law, alleging infringement of the division of powers

—

By its first plea the applicant alleges infringement of the division of powers under Regulation (EC) No 510/2006 (1) as no national procedure was initiated in respect of the protected geographical indication ‘Edam Holland’ registered by means of the contested regulation.

| — | The applicant submits that the original application applied for registration of the term ‘Hollandse Edam’ and that the national preliminary procedure which is a necessary requirement pursuant to Article 5 of Regulation No 510/2006 took place only in respect of that name. |
| --- | --- |

—

The applicant submits that the original application applied for registration of the term ‘Hollandse Edam’ and that the national preliminary procedure which is a necessary requirement pursuant to Article 5 of Regulation No 510/2006 took place only in respect of that name.

| 2. | Second plea in law, alleging infringement of Article 3(2) of Regulation (EC) No 1898/2006 (2)







  — | By this plea the applicant submits that ‘Edam Holland’ is not a Dutch expression. |
| --- | --- | --- |

2.

Second plea in law, alleging infringement of Article 3(2) of Regulation (EC) No 1898/2006 (2)

—

By this plea the applicant submits that ‘Edam Holland’ is not a Dutch expression.

| 3. | Third plea in law, alleging infringement of Article 2(1) and (2) of Regulation No 510/2006 and of Article 3(1) of Regulation No 1898/2006






  — | In the context of the third plea the applicant submits that the registered name is not used. |
| --- | --- | --- |

3.

Third plea in law, alleging infringement of Article 2(1) and (2) of Regulation No 510/2006 and of Article 3(1) of Regulation No 1898/2006

—

In the context of the third plea the applicant submits that the registered name is not used.

| 4. | Fourth plea in law, alleging infringement of Article 2(2) of Regulation No 510/2006






  — | The applicant submits that there is infringement of Article 2(2) of Regulation No 510/2006 as ‘Edam Holland’ is not a ‘traditional’ non-geographical name. |
| --- | --- | --- |

4.

Fourth plea in law, alleging infringement of Article 2(2) of Regulation No 510/2006

—

The applicant submits that there is infringement of Article 2(2) of Regulation No 510/2006 as ‘Edam Holland’ is not a ‘traditional’ non-geographical name.

| 5. | Fifth plea in law, alleging infringement of Article 2(1) of Regulation No 510/2006






  — | In the context of the fifth plea the applicant submits that there is infringement of Article 2(1) of Regulation No 510/2006 as ‘Edam Holland’ does not have any specific characteristics or a reputation. |
| --- | --- | --- |

5.

Fifth plea in law, alleging infringement of Article 2(1) of Regulation No 510/2006

—

In the context of the fifth plea the applicant submits that there is infringement of Article 2(1) of Regulation No 510/2006 as ‘Edam Holland’ does not have any specific characteristics or a reputation.

| 6. | Sixth plea in law, alleging infringement of Articles 30 and 36 TFEU






  — | By this plea the applicant submits that the contested regulation unjustifiably restricts the freedom of movement of goods on the basis that the milk from dairy farmers who are resident in the Netherlands, which is the only milk authorised in respect of ‘Edam Holland’, has no special characteristics. |
| --- | --- | --- |

6.

Sixth plea in law, alleging infringement of Articles 30 and 36 TFEU

—

By this plea the applicant submits that the contested regulation unjustifiably restricts the freedom of movement of goods on the basis that the milk from dairy farmers who are resident in the Netherlands, which is the only milk authorised in respect of ‘Edam Holland’, has no special characteristics.

| 7. | Seventh plea in law, alleging infringement of Article 2(1) and (2) of Regulation No 510/2006






  — | By this plea the applicant submits in particular that there is infringement of Article 2(2), in conjunction with Article 2(1) of Regulation No 510/2006, as ‘Holland’ as a synonym for ‘Netherlands’ is the name of a country. Furthermore, there is no exceptional case, which is required in respect of the registration of names of countries. |
| --- | --- | --- |

7.

Seventh plea in law, alleging infringement of Article 2(1) and (2) of Regulation No 510/2006

—

By this plea the applicant submits in particular that there is infringement of Article 2(2), in conjunction with Article 2(1) of Regulation No 510/2006, as ‘Holland’ as a synonym for ‘Netherlands’ is the name of a country. Furthermore, there is no exceptional case, which is required in respect of the registration of names of countries.

| 8. | Eighth plea in law, alleging infringement of Article 3(3) of Regulation No 510/2006






  — | By this plea the applicant submits that, in view of the earlier registration ‘Noord-Hollandse Edammer g.U.’, the registration of ‘Edam Holland’ took place without due regard being had to bona fide and local usage and gives rise to a danger of consumers being misled. |
| --- | --- | --- |

8.

Eighth plea in law, alleging infringement of Article 3(3) of Regulation No 510/2006

—

By this plea the applicant submits that, in view of the earlier registration ‘Noord-Hollandse Edammer g.U.’, the registration of ‘Edam Holland’ took place without due regard being had to bona fide and local usage and gives rise to a danger of consumers being misled.

| 9. | Ninth plea in law, alleging infringement of the principle of proportionality and of procedural principles, and an error of assessment






  — | Lastly, the applicant submits that the defendant did not make it clear in the contested regulation, that the indication ‘Edam’ is generic. The applicant takes the view that such a clarification was possible according to the case-law of the Court and the practice of the Commission and was, in view of the facts and circumstances, necessary. Its absence infringes the principle of proportionality and procedural principles and constitutes an error of assessment. |
| --- | --- | --- |

9.

Ninth plea in law, alleging infringement of the principle of proportionality and of procedural principles, and an error of assessment

—

Lastly, the applicant submits that the defendant did not make it clear in the contested regulation, that the indication ‘Edam’ is generic. The applicant takes the view that such a clarification was possible according to the case-law of the Court and the practice of the Commission and was, in view of the facts and circumstances, necessary. Its absence infringes the principle of proportionality and procedural principles and constitutes an error of assessment.

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(1)  Council Regulation (EC) No 510/2006 of 20 March 2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs (OJ 2006 L 93, p. 12).

(2)  Commission Regulation (EC) No 1898/2006 of 14 December 2006 laying down detailed rules of implementation of Council Regulation (EC) No 510/2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs (OJ 2006 L 369, p. 1).

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| 14.5.2011 | EN | Official Journal of the European Union | C 145/30 |
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14.5.2011

EN

Official Journal of the European Union

C 145/30

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Action brought on 23 February 2011 — Schutzgemeinschaft Milch und Milcherzeugnisse v Commission

(Case T-113/11)

2011/C 145/50

Language of the case: German

Parties

Applicant: Schutzgemeinschaft Milch und Milcherzeugnisse eV (Berlin, Germany) (represented by: M. Loschelder und V. Schoene, lawyers)

Defendant: European Commission

Form of order sought

| — | Annul Commission Regulation (EU) No 1122/2010 of 2 December 2010 entering a designation in the register of protected designations of origin and protected geographical indications [Gouda Holland (PGI)]; |
| --- | --- |

—

Annul Commission Regulation (EU) No 1122/2010 of 2 December 2010 entering a designation in the register of protected designations of origin and protected geographical indications [Gouda Holland (PGI)];

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

—

Order the Commission to pay the necessary costs.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging infringement of the division of powers






  — | By its first plea the applicant alleges infringement of the division of powers under Regulation (EC) No 510/2006 (1) as no national procedure was initiated in respect of the protected geographical indication ‘Gouda Holland’ registered by means of the contested regulation. |
| --- | --- | --- |

1.

First plea in law, alleging infringement of the division of powers

—

By its first plea the applicant alleges infringement of the division of powers under Regulation (EC) No 510/2006 (1) as no national procedure was initiated in respect of the protected geographical indication ‘Gouda Holland’ registered by means of the contested regulation.

| — | The applicant submits that the original application applied for registration of the term ‘Hollandse Gouda’ and that the national preliminary procedure which is a necessary requirement pursuant to Article 5 of Regulation No 510/2006 took place only in respect of that name. |
| --- | --- |

—

The applicant submits that the original application applied for registration of the term ‘Hollandse Gouda’ and that the national preliminary procedure which is a necessary requirement pursuant to Article 5 of Regulation No 510/2006 took place only in respect of that name.

| 2. | Second plea in law, alleging infringement of Article 3(2) of Regulation (EC) No 1898/2006 (2)







  — | By this plea the applicant submits that ‘Gouda Holland’ is not a Dutch expression. |
| --- | --- | --- |

2.

Second plea in law, alleging infringement of Article 3(2) of Regulation (EC) No 1898/2006 (2)

—

By this plea the applicant submits that ‘Gouda Holland’ is not a Dutch expression.

| 3. | Third plea in law, alleging infringement of Article 2(1) and (2) of Regulation No 510/2006 and of Article 3(1) of Regulation No 1898/2006






  — | In the context of the third plea the applicant submits that the registered name is not used. |
| --- | --- | --- |

3.

Third plea in law, alleging infringement of Article 2(1) and (2) of Regulation No 510/2006 and of Article 3(1) of Regulation No 1898/2006

—

In the context of the third plea the applicant submits that the registered name is not used.

| 4. | Fourth plea in law, alleging infringement of Article 2(2) of Regulation No 510/2006






  — | The applicant submits that there is infringement of Article 2(2) of Regulation No 510/2006 as ‘Gouda Holland’ is not a ‘traditional’ non-geographical name. |
| --- | --- | --- |

4.

Fourth plea in law, alleging infringement of Article 2(2) of Regulation No 510/2006

—

The applicant submits that there is infringement of Article 2(2) of Regulation No 510/2006 as ‘Gouda Holland’ is not a ‘traditional’ non-geographical name.

| 5. | Fifth plea in law, alleging infringement of Article 2(1) of Regulation No 510/2006






  — | In the context of the fifth plea the applicant submits that there is infringement of Article 2(1) of Regulation No 510/2006 as ‘Gouda Holland’ does not have any specific characteristics or a reputation. |
| --- | --- | --- |

5.

Fifth plea in law, alleging infringement of Article 2(1) of Regulation No 510/2006

—

In the context of the fifth plea the applicant submits that there is infringement of Article 2(1) of Regulation No 510/2006 as ‘Gouda Holland’ does not have any specific characteristics or a reputation.

| 6. | Sixth plea in law, alleging infringement of Articles 30 and 36 TFEU






  — | By this plea the applicant submits that the contested regulation unjustifiably restricts the freedom of movement of goods on the basis that the milk from dairy farmers who are resident in the Netherlands, which is the only milk authorised in respect of ‘Gouda Holland’, has no special characteristics. |
| --- | --- | --- |

6.

Sixth plea in law, alleging infringement of Articles 30 and 36 TFEU

—

By this plea the applicant submits that the contested regulation unjustifiably restricts the freedom of movement of goods on the basis that the milk from dairy farmers who are resident in the Netherlands, which is the only milk authorised in respect of ‘Gouda Holland’, has no special characteristics.

| 7. | Seventh plea in law, alleging infringement of Article 2(1) and (2) of Regulation No 510/2006






  — | By this plea the applicant submits in particular that there is infringement of Article 2(2), in conjunction with Article 2(1) of Regulation No 510/2006, as ‘Holland’ as a synonym for ‘Netherlands’ is the name of a country. Furthermore, there is no exceptional case, which is required in respect of the registration of names of countries. |
| --- | --- | --- |

7.

Seventh plea in law, alleging infringement of Article 2(1) and (2) of Regulation No 510/2006

—

By this plea the applicant submits in particular that there is infringement of Article 2(2), in conjunction with Article 2(1) of Regulation No 510/2006, as ‘Holland’ as a synonym for ‘Netherlands’ is the name of a country. Furthermore, there is no exceptional case, which is required in respect of the registration of names of countries.

| 8. | Eighth plea in law, alleging infringement of Article 3(3) of Regulation No 510/2006






  — | By this plea the applicant submits that, in view of the earlier registration ‘Noord-Hollandse Gouda g.U.’, the registration of ‘Gouda Holland’ took place without due regard being had to bona fide and local usage and gives rise to a danger of consumers being misled. |
| --- | --- | --- |

8.

Eighth plea in law, alleging infringement of Article 3(3) of Regulation No 510/2006

—

By this plea the applicant submits that, in view of the earlier registration ‘Noord-Hollandse Gouda g.U.’, the registration of ‘Gouda Holland’ took place without due regard being had to bona fide and local usage and gives rise to a danger of consumers being misled.

| 9. | Ninth plea in law, alleging infringement of the principle of proportionality and of procedural principles, and an error of assessment






  — | Lastly, the applicant submits that the defendant did not make it clear in the contested regulation, that the indication ‘Gouda’ is generic. The applicant takes the view that such a clarification was possible according to the case-law of the Court and the practice of the Commission and was, in view of the facts and circumstances, necessary. Its absence infringes the principle of proportionality and procedural principles and constitutes an error of assessment. |
| --- | --- | --- |

9.

Ninth plea in law, alleging infringement of the principle of proportionality and of procedural principles, and an error of assessment

—

Lastly, the applicant submits that the defendant did not make it clear in the contested regulation, that the indication ‘Gouda’ is generic. The applicant takes the view that such a clarification was possible according to the case-law of the Court and the practice of the Commission and was, in view of the facts and circumstances, necessary. Its absence infringes the principle of proportionality and procedural principles and constitutes an error of assessment.

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(1)  Council Regulation (EC) No 510/2006 of 20 March 2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs (OJ 2006 L 93, p. 12).

(2)  Commission Regulation (EC) No 1898/2006 of 14 December 2006 laying down detailed rules of implementation of Council Regulation (EC) No 510/2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs (OJ 2006 L 369, p. 1).

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| 14.5.2011 | EN | Official Journal of the European Union | C 145/31 |
| --- | --- | --- | --- |

14.5.2011

EN

Official Journal of the European Union

C 145/31

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Action brought on 28 February 2011 — Centre national de la recherche scientifique v Commission

(Case T-125/11)

2011/C 145/51

Language of the case: French

Parties

Applicant: Centre national de la recherche scientifique (Paris, France) (represented by: N. Lenoir, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul the decision of 17 December 2010 in so far as it relates to the set-off of the debt owed by the Community to CNRS, arising from the PIEF Contract, and the Community’s alleged claim on the CNRS under the ALLOSTEM Contract; |
| --- | --- |

—

annul the decision of 17 December 2010 in so far as it relates to the set-off of the debt owed by the Community to CNRS, arising from the PIEF Contract, and the Community’s alleged claim on the CNRS under the ALLOSTEM Contract;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging infringement of the rights of defence and in particular of Article 12(4) of Regulation (EC) No 2321/2002, (1) in so far as the Commission failed to obtain the observations of the applicant on the merits of its decision to set-off the alleged debt. |
| --- | --- |

1.

First plea in law, alleging infringement of the rights of defence and in particular of Article 12(4) of Regulation (EC) No 2321/2002, (1) in so far as the Commission failed to obtain the observations of the applicant on the merits of its decision to set-off the alleged debt.

| 2. | Second plea in law, alleging breach of the duty to state reasons for a decision, since the Commission merely referred to the general findings in its audit report of 16 March 2009 without explaining the reasons why it did not take account of the evidence adduced by the applicant in order to establish the eligibility of the costs declared by it. |
| --- | --- |

2.

Second plea in law, alleging breach of the duty to state reasons for a decision, since the Commission merely referred to the general findings in its audit report of 16 March 2009 without explaining the reasons why it did not take account of the evidence adduced by the applicant in order to establish the eligibility of the costs declared by it.

| 3. | Third plea in law alleging manifest errors of assessment, as the Commission took the view that the remuneration of Ms. T., a researcher at CNRS from 1 April 2006 until 31 March 2007 was not covered by eligible costs, despite evidence adduced by the applicant in the form of time sheets and four scientific articles referring to the contract concerned. |
| --- | --- |

3.

Third plea in law alleging manifest errors of assessment, as the Commission took the view that the remuneration of Ms. T., a researcher at CNRS from 1 April 2006 until 31 March 2007 was not covered by eligible costs, despite evidence adduced by the applicant in the form of time sheets and four scientific articles referring to the contract concerned.

| 4. | Fourth plea in law alleging errors of law committed, in so far as the Commission has denied that Ms T.’s time sheets for the period 1 April 2006 until 31 March 2007 have any probative value and has not recognised the eligibility of the remuneration of Ms B., a researcher at CNRS, during her maternity leave and second, the social charge called‘provision for loss of employment’ paid as unemployment insurance for its non-established members of staff. |
| --- | --- |

4.

Fourth plea in law alleging errors of law committed, in so far as the Commission has denied that Ms T.’s time sheets for the period 1 April 2006 until 31 March 2007 have any probative value and has not recognised the eligibility of the remuneration of Ms B., a researcher at CNRS, during her maternity leave and second, the social charge called‘provision for loss of employment’ paid as unemployment insurance for its non-established members of staff.

| 5. | Fifth plea alleging breach of the principle of the protection of legitimate expectations, in so far as the Commission:






  — | contrary to what it stated in its audit report, denied the probative value of four scientific publications; |
| --- | --- | --- |

5.

Fifth plea alleging breach of the principle of the protection of legitimate expectations, in so far as the Commission:

—

contrary to what it stated in its audit report, denied the probative value of four scientific publications;

| — | gave new interpretations to the criteria for the eligibility of costs relating to maternity leave; |
| --- | --- |

—

gave new interpretations to the criteria for the eligibility of costs relating to maternity leave;

| — | notified the decision in spite of assurances given during the process seeking an amicable settlement of the dispute. |
| --- | --- |

—

notified the decision in spite of assurances given during the process seeking an amicable settlement of the dispute.

| 6. | Sixth plea alleging infringement of Article 73(1) of the Financial Regulation, (2) in so far as the debt claimed by the Commission is not certain. |
| --- | --- |

6.

Sixth plea alleging infringement of Article 73(1) of the Financial Regulation, (2) in so far as the debt claimed by the Commission is not certain.

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(1)  Regulation (EC) No 2321/2002 of the European Parliament and of the Council of 16 December 2002 concerning the rules for the participation of undertakings, research centres and universities in, and for the dissemination of research results for, the implementation of the European Community Sixth Framework Programme (2002-2006) (OJ 2002 L 335, p. 23).

(2)  Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1).

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| 14.5.2011 | EN | Official Journal of the European Union | C 145/31 |
| --- | --- | --- | --- |

14.5.2011

EN

Official Journal of the European Union

C 145/31

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Action brought on 11 March 2011 — GS v Parliament and Council

(Case T-149/11)

2011/C 145/52

Language of the case: German

Parties

Applicant: GS Gesellschaft für Umwelt- und Energie-Serviceleistungen mbH (Eigeltingen, Germany) (represented by: J. Schmidt, lawyer)

Defendant: European Parliament and Council of the European Union

Form of order sought

| — | Annul the second sentence of Article 8(2) of Regulation (EU) No 1210/2010 of the European Parliament and of the Council of 15 December 2010 concerning authentication of euro coins and handling of euro coins unfit for circulation; |
| --- | --- |

—

Annul the second sentence of Article 8(2) of Regulation (EU) No 1210/2010 of the European Parliament and of the Council of 15 December 2010 concerning authentication of euro coins and handling of euro coins unfit for circulation;

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

—

Order the defendants to pay the costs.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging that the contested regulation infringes Articles 15 and 16 of the Charter of Fundamental Rights of the European Union






  — | The applicant submits in that regard that Article 8(2) of Regulation (EU) No 1210/2010 (1) infringes its freedom to exercise its professional activities and its commercial freedom, since it suffered a decline in turnover after the entry into force of the contested regulation. |
| --- | --- | --- |

1.

First plea in law, alleging that the contested regulation infringes Articles 15 and 16 of the Charter of Fundamental Rights of the European Union

—

The applicant submits in that regard that Article 8(2) of Regulation (EU) No 1210/2010 (1) infringes its freedom to exercise its professional activities and its commercial freedom, since it suffered a decline in turnover after the entry into force of the contested regulation.

| 2. | Second plea in law, alleging that the contested regulation infringes Article 17 of the Charter of Fundamental Rights of the European Union






  — | The applicant submits that Article 8(2) of Regulation No 1210/2010 also infringes its right of ownership, since that rule restricts the exercise of its right in the established and operating business. |
| --- | --- | --- |

2.

Second plea in law, alleging that the contested regulation infringes Article 17 of the Charter of Fundamental Rights of the European Union

—

The applicant submits that Article 8(2) of Regulation No 1210/2010 also infringes its right of ownership, since that rule restricts the exercise of its right in the established and operating business.

| — | Further, the contested regulation makes possible a direct infringement of the applicant’s property rights, since the euro coins in its possession are being withdrawn without compensation. |
| --- | --- |

—

Further, the contested regulation makes possible a direct infringement of the applicant’s property rights, since the euro coins in its possession are being withdrawn without compensation.

| 3. | Third plea in law, alleging the unsuitability of the contested regulation for the achievement of the aim pursued and the disproportionality of the contested regulation






  — | In that regard, the applicant submits that the freedom to exercise professional activities, commercial freedom and property rights can be subject to restrictions, in so far as they pursue aims in the general interest and do not represent a disproportionate infringement in relation to the aim pursued. The applicant states that the contested regulation is superfluous, unsuitable to achieve the legislature’s aim and not capable of justifying infringement of the applicant’s fundamental rights. |
| --- | --- | --- |

3.

Third plea in law, alleging the unsuitability of the contested regulation for the achievement of the aim pursued and the disproportionality of the contested regulation

—

In that regard, the applicant submits that the freedom to exercise professional activities, commercial freedom and property rights can be subject to restrictions, in so far as they pursue aims in the general interest and do not represent a disproportionate infringement in relation to the aim pursued. The applicant states that the contested regulation is superfluous, unsuitable to achieve the legislature’s aim and not capable of justifying infringement of the applicant’s fundamental rights.

---

(1)  Regulation (EU) No 1210/2010 of the European Parliament and of the Council of 15 December 2010 concerning authentication of euro coins and handling of euro coins unfit for circulation (OJ 2010 L 339, p. 1).

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| 14.5.2011 | EN | Official Journal of the European Union | C 145/32 |
| --- | --- | --- | --- |

14.5.2011

EN

Official Journal of the European Union

C 145/32

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Action brought on 11 March 2011 — Telefónica de España and Telefónica Móviles España v Commission

(Case T-151/11)

2011/C 145/53

Language of the case: Spanish

Parties

Applicants: Telefónica de España Madrid, Spain and Telefónica Móviles España (Madrid, Spain) (represented by: F. González Díaz, F. Salerno, lawyers)

Defendant: European Commission

Form of order sought

| — | annul, in accordance with Article 263 TFEU, the decision of the European Commission of 20 July 2010; |
| --- | --- |

—

annul, in accordance with Article 263 TFEU, the decision of the European Commission of 20 July 2010;

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

—

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

Pleas in law and main arguments

The present case is directed against the Commission decision of 20 July 2010, concerning the aid scheme C 38/09 (ex NN 58/09) which Spain is planning to implement for Corporación de Radio y Televisión Española (RTVE) (OJ 2010 L 1, p. 9) declaring compatible with the internal market on the basis of Article 106(2) TFEU the new financing model for the public television broadcasting body Corporación de Radio y Televisión Española introduced by Law 8/2009 of 28 August 2009.

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

| 1. | First plea in law, alleging an infringement of Article 108(2) TFEU, in so far as the Commission has failed to initiate the procedure provided for in that provision in relation to the separation of the financing from the contested measure as a whole. |
| --- | --- |

1.

First plea in law, alleging an infringement of Article 108(2) TFEU, in so far as the Commission has failed to initiate the procedure provided for in that provision in relation to the separation of the financing from the contested measure as a whole.

| 2. | Second plea in law, alleging infringement of Article 108 TFEU, in so far as the Commission establishes the separation of the financing of the measure as a whole and incorrectly defines as new aid only the additional financing. Acting in this way, the Commission does not comply with the case-law or the Commission’s decision-making practice |
| --- | --- |

2.

Second plea in law, alleging infringement of Article 108 TFEU, in so far as the Commission establishes the separation of the financing of the measure as a whole and incorrectly defines as new aid only the additional financing. Acting in this way, the Commission does not comply with the case-law or the Commission’s decision-making practice

| 3. | Third plea in law, alleging infringement of Article 56 TFEU, since the decision does not provide any explanation as to how it reached the conclusion that the three fiscal measures introduced or amended by Articles 4, 5 and 6 of Law 8/2009 are dissociable from RTVE’s current system of financing. |
| --- | --- |

3.

Third plea in law, alleging infringement of Article 56 TFEU, since the decision does not provide any explanation as to how it reached the conclusion that the three fiscal measures introduced or amended by Articles 4, 5 and 6 of Law 8/2009 are dissociable from RTVE’s current system of financing.

| 4. | Error of law by dissociating the source of financing of the measure, in so far as the incompatibility of the sources of finance with Community law must necessarily involve its incompatibility with the rules on State aid. The applicant asserts in that regard that the contested decision declares compatible an aid linked to financing that the Commission, in parallel proceedings, has held to be contrary to European Union law. |
| --- | --- |

4.

Error of law by dissociating the source of financing of the measure, in so far as the incompatibility of the sources of finance with Community law must necessarily involve its incompatibility with the rules on State aid. The applicant asserts in that regard that the contested decision declares compatible an aid linked to financing that the Commission, in parallel proceedings, has held to be contrary to European Union law.

| 5. | Infringement of Article 106(2) TFEU and/or Article 256 TFEU on the ground that the statement of reasons is inadequate as regards the absence of overcompensation and the impact of the measure on competition in the internal market. In particular, the decision fails to take account of the fact that RTVE’s actual future costs will be less than the costs incurred in the past and declares compatible with the internal market a measure which guarantees protection ‘against the fluctuations in revenue in the advertising market’, in spite of the fact that there is no commercial risk. |
| --- | --- |

5.

Infringement of Article 106(2) TFEU and/or Article 256 TFEU on the ground that the statement of reasons is inadequate as regards the absence of overcompensation and the impact of the measure on competition in the internal market. In particular, the decision fails to take account of the fact that RTVE’s actual future costs will be less than the costs incurred in the past and declares compatible with the internal market a measure which guarantees protection ‘against the fluctuations in revenue in the advertising market’, in spite of the fact that there is no commercial risk.

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| 14.5.2011 | EN | Official Journal of the European Union | C 145/33 |
| --- | --- | --- | --- |

14.5.2011

EN

Official Journal of the European Union

C 145/33

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Action brought on 10 March 2011 — Marszałkowski v OHIM — Mar-Ko Fleischwaren (WALICHNOWY MARKO)

(Case T-159/11)

2011/C 145/54

Language in which the application was lodged: Polish

Parties

Applicant: Marek Marszałkowski (Sokolniki, Poland) (represented by: C. Sadkowski, lawyer)

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

Other party to the proceedings before the Board of Appeal: Mar-Ko Fleischwaren GmbH & Co. KG (Blankenhain, Germany)

Form of order sought

| — | annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 11 January 2011 (Case R 760/2010-4) refusing registration of the mark ‘Marko Walichnowy’ as a Community trade mark in so far as it relates to goods in Class 29: meat, products made from meat and poultry meat, including pies, tripe, sausage with cabbage, meat preserves and products made from meat and vegetables, including bigos, poultry (including packaged poultry), meatballs in a vegetable sauce; |
| --- | --- |

—

annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 11 January 2011 (Case R 760/2010-4) refusing registration of the mark ‘Marko Walichnowy’ as a Community trade mark in so far as it relates to goods in Class 29: meat, products made from meat and poultry meat, including pies, tripe, sausage with cabbage, meat preserves and products made from meat and vegetables, including bigos, poultry (including packaged poultry), meatballs in a vegetable sauce;

| — | alternatively, amend the contested decision by taking account of the sound basis for registration of the Community trade mark ‘Marko Walichnowy’ in so far as it relates to the aforementioned goods in Class 29; |
| --- | --- |

—

alternatively, amend the contested decision by taking account of the sound basis for registration of the Community trade mark ‘Marko Walichnowy’ in so far as it relates to the aforementioned goods in Class 29;

| — | order the defendant to pay the costs of the proceedings, including the costs of the applicant’s representation in the proceedings. |
| --- | --- |

—

order the defendant to pay the costs of the proceedings, including the costs of the applicant’s representation in the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant

Community trade mark concerned: figurative trade mark containing the word element ‘Marko Walichnowy’ for goods in Class 29 — Application No 007161541

Proprietor of the mark or sign cited in the opposition proceedings: Mar-Ko Fleischwaren GmbH & Co. KG

Mark or sign cited in opposition: Community word mark ‘Mar-Ko’ for certain goods in Class 29

Decision of the Opposition Division: dismissal of the opposition

Decision of the Board of Appeal: annulment of the decision of the Opposition Division and rejection of the application for the following goods in Class 29: meat, products made from meat and poultry meat, including pies, tripe, sausage with cabbage, meat preserves and products made from meat and vegetables, including bigos, poultry (including packaged poultry), meatballs in a vegetable sauce

Pleas in law: breach of Article 8(1)(b) of Regulation No 207/2009 (1) in so far as the contested decision establishes a similarity between the trade marks and the possibility that consumers might be misled

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

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| 14.5.2011 | EN | Official Journal of the European Union | C 145/33 |
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14.5.2011

EN

Official Journal of the European Union

C 145/33

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Action brought on 17 March 2011 — Häfele v OHIM (Infront)

(Case T-166/11)

2011/C 145/55

Language of the case: German

Parties

Applicant: Häfele GmbH & Co. KG (Nagold, Germany) (represented by M. Eck and J. Dönch, lawyers)

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

Form of order sought

| — | Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 17 January 2011 in Case R 1711/2010-1; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 17 January 2011 in Case R 1711/2010-1;

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

—

Order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: the word mark ‘Infront’ for goods in Classes 6 and 20

Decision of the Examiner: rejection of the application

Decision of the Board of Appeal: dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b), (c) and (d) of Regulation (EC) No 207/2009 (1) as the Community trade mark in question has distinctive character, is not descriptive and is not a designation which has become customary

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

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| 14.5.2011 | EN | Official Journal of the European Union | C 145/34 |
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14.5.2011

EN

Official Journal of the European Union

C 145/34

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Action brought on 15 March 2011 — Centre national de la recherche scientifique v Commission

(Case T-167/11)

2011/C 145/56

Language of the case: French

Parties

Applicant: Centre national de la recherche scientifique (Paris, France) (represented by: N. Lenoire, lawyer)

Defendant: European Commission

Form of order sought

| — | declare the action admissible and well-founded; |
| --- | --- |

—

declare the action admissible and well-founded;

| — | order the Commission to refund the sum of EUR 20 989,82 allegedly receivable and claimed by the Commission pursuant to the contract in its debit note No 2010-1232 of 26 October 2010 which gave rise to the set-off measure of 17 December 2010 (Ref: BUDG/C3 D(2010) B.2 — 1232) together with interest on late payment at the statutory rate in accordance with Belgian law governing the contract; |
| --- | --- |

—

order the Commission to refund the sum of EUR 20 989,82 allegedly receivable and claimed by the Commission pursuant to the contract in its debit note No 2010-1232 of 26 October 2010 which gave rise to the set-off measure of 17 December 2010 (Ref: BUDG/C3 D(2010) B.2 — 1232) together with interest on late payment at the statutory rate in accordance with Belgian law governing the contract;

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

—

order the Commission to pay all the costs.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging violation of Article II.19(1) of the general conditions of Contract LSHB — CT-2004-503319 concerning the ‘ALLOSTEM’ project under the Sixth Framework Programme for Research and Technological Development (2002-2006) (‘the ALLOSTEM Contract’), as the Commission limited, or deprived, the applicant of the possibility to adduce evidence of the proper performance of the contract with respect to the eligibility of personnel costs by failing to observed the criteria for defining eligible costs. |
| --- | --- |

1.

First plea in law, alleging violation of Article II.19(1) of the general conditions of Contract LSHB — CT-2004-503319 concerning the ‘ALLOSTEM’ project under the Sixth Framework Programme for Research and Technological Development (2002-2006) (‘the ALLOSTEM Contract’), as the Commission limited, or deprived, the applicant of the possibility to adduce evidence of the proper performance of the contract with respect to the eligibility of personnel costs by failing to observed the criteria for defining eligible costs.

| 2. | Second plea in law, alleging breach of the contractual obligations arising from Articles II.19 and II.20 of the general conditions of the ALLOSTEM Contract, as the Commission excluded the eligibility of costs relating to the ‘provision for loss of employment’ and maternity leave for a biologist recruited under a temporary contract. |
| --- | --- |

2.

Second plea in law, alleging breach of the contractual obligations arising from Articles II.19 and II.20 of the general conditions of the ALLOSTEM Contract, as the Commission excluded the eligibility of costs relating to the ‘provision for loss of employment’ and maternity leave for a biologist recruited under a temporary contract.

| 3. | Third plea in law, alleging infringement of Article 12 of the ALLOSTEM Contract by making the assessment of whether all debts arising under the contract were certain subject to Belgian law. The applicant claims that:






  — | The Commission relied only on European Union law and not Belgian law in order to determine whether the debt claimed was certain, and |
| --- | --- | --- |

3.

Third plea in law, alleging infringement of Article 12 of the ALLOSTEM Contract by making the assessment of whether all debts arising under the contract were certain subject to Belgian law. The applicant claims that:

—

The Commission relied only on European Union law and not Belgian law in order to determine whether the debt claimed was certain, and

| — | That the debt was the subject of a serious dispute preventing it from being certain. |
| --- | --- |

—

That the debt was the subject of a serious dispute preventing it from being certain.

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| 14.5.2011 | EN | Official Journal of the European Union | C 145/34 |
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14.5.2011

EN

Official Journal of the European Union

C 145/34

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Action brought on 17 March 2011 — Rivella International v OHIM — Baskaya di Baskaya & C. (BASKAYA)

(Case T-170/11)

2011/C 145/57

Language in which the application was lodged: German

Parties

Applicant: Rivella International AG (Rothrist, Switzerland) (represented by: C. Spintig, U. Sander and H. Förster, lawyers)

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

Other party to the proceedings before the Board of Appeal: Baskaya di Baskaya & C. s.a.s. (Grosseto, Italy)

Form of order sought

| — | Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 10 January 2011 in Case R 534/2010-4; |
| --- | --- |

—

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 10 January 2011 in Case R 534/2010-4;

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Baskaya di Baskaya & C. s.a.s.

Community trade mark concerned: Figurative mark including word element ‘BASKAYA’ for goods in Classes 29, 30 and 32.

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

Mark or sign cited in opposition: International registered figurative mark including the word element ‘Passaia’ for goods in Class 32.

Decision of the Opposition Division: Rejection of the opposition.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law: Infringement of Article 42(2) and (3) of Regulation (EC) No 207/2009, (1) in that the Board of Appeal failed to apply Article 5 of the German-Swiss Agreement of 13 April 1892 on mutual protection of patents, trade marks and designs and for that reason erred in law by failing to have regard to the proof of use adduced by the applicant.

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

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| 14.5.2011 | EN | Official Journal of the European Union | C 145/35 |
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14.5.2011

EN

Official Journal of the European Union

C 145/35

---

Action brought on 21 March 2011 — Hopf v OHIM (Clampflex)

(Case T-171/11)

2011/C 145/58

Language of the case: German

Parties

Applicant: Hans-Jürgen Hopf (Zirndorf, Germany) (represented by V. Mensing, lawyer)

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

Form of order sought

| — | Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 19 January 2011 in Case R 1514/2010-4; |
| --- | --- |

—

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 19 January 2011 in Case R 1514/2010-4;

| — | Order OHIM to pay the costs, including those incurred in the course of the appeal procedure. |
| --- | --- |

—

Order OHIM to pay the costs, including those incurred in the course of the appeal procedure.

Pleas in law and main arguments

Community trade mark concerned: the word mark ‘Clampflex’ for goods in Classes 5, 9, 10, 17 and 20

Decision of the Examiner: partial rejection of the application

Decision of the Board of Appeal: dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation (EC) No 207/2009 (1) as the Community trade mark in question has distinctive character and is not descriptive

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

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| 14.5.2011 | EN | Official Journal of the European Union | C 145/35 |
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14.5.2011

EN

Official Journal of the European Union

C 145/35

---

Action brought on 22 March 2011 — Hesse v OHIM — Porsche (Carrera)

(Case T-173/11)

2011/C 145/59

Language in which the application was lodged: German

Parties

Applicant: Kurt Hesse (Nuremberg, Germany) (represented by: M. Krogmann, lawyer)

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

Other party to the proceedings before the Board of Appeal: Dr. Ing. h.c. F. Porsche AG (Stuttgart, Germany)

Form of order sought

| — | Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 11 January 2011 in Case R 306/2010-4 and reject the opposition against Community trade mark application No 5 723 432 of 16 February 2007; |
| --- | --- |

—

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 11 January 2011 in Case R 306/2010-4 and reject the opposition against Community trade mark application No 5 723 432 of 16 February 2007;

| — | In the alternative,






  (a) | annul the contested decision in so far as it declares that the goods are similar or that unfair advantage is taken of the distinctive character or repute of goods covered by the marks cited in opposition by goods or related services covered by the mark applied for, which are designed to be fitted both inside and outside of mechanical motor vehicles as motor vehicle accessories and come from different markets; |
| --- | --- | --- |

—

In the alternative,

(a)

annul the contested decision in so far as it declares that the goods are similar or that unfair advantage is taken of the distinctive character or repute of goods covered by the marks cited in opposition by goods or related services covered by the mark applied for, which are designed to be fitted both inside and outside of mechanical motor vehicles as motor vehicle accessories and come from different markets;

| (b) | annul the contested decision in so far as it declares that the goods are similar or that unfair advantage is taken of the distinctive character or repute of goods covered by the marks cited in opposition by goods or related services covered by the mark applied for, which due to their nature (electronic equipment as opposed to mechanical motor vehicles), intended purpose (entertainment, listening to music, traffic news) or use exhibit no relevant points of reference to the goods and may not be regarded as complementary (goods between which there is no connection in the sense that goods covered by the mark applied for are essential or important for the use of the marks cited in opposition) and are used entirely independently of each other; |
| --- | --- |

(b)

annul the contested decision in so far as it declares that the goods are similar or that unfair advantage is taken of the distinctive character or repute of goods covered by the marks cited in opposition by goods or related services covered by the mark applied for, which due to their nature (electronic equipment as opposed to mechanical motor vehicles), intended purpose (entertainment, listening to music, traffic news) or use exhibit no relevant points of reference to the goods and may not be regarded as complementary (goods between which there is no connection in the sense that goods covered by the mark applied for are essential or important for the use of the marks cited in opposition) and are used entirely independently of each other;

| (c) | annul the contested decision in so far as it declares that the goods are similar or that unfair advantage is taken of distinctive character or repute in relation to electrical or electronic equipment and apparatus and installations composed of that equipment and apparatus (for example navigation apparatus) in Class 9 or related services, which can be used in the same way in particular to accessorise motor vehicles of any design and origin and come from different markets; |
| --- | --- |

(c)

annul the contested decision in so far as it declares that the goods are similar or that unfair advantage is taken of distinctive character or repute in relation to electrical or electronic equipment and apparatus and installations composed of that equipment and apparatus (for example navigation apparatus) in Class 9 or related services, which can be used in the same way in particular to accessorise motor vehicles of any design and origin and come from different markets;

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

—

Order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant

Community trade mark concerned: the word mark ‘Carrera’ for goods in Class 9

Proprietor of the mark or sign cited in the opposition proceedings: Dr. Ing. h.c. F. Porsche AG

Mark or sign cited in opposition: the national and Community word mark ‘CARRERA’ for goods in Class 12

Decision of the Opposition Division: the opposition was rejected

Decision of the Board of Appeal: the appeal was granted and the application was rejected

Pleas in law: Infringement of Article 8(1)(b) and Article 8(5) of Regulation (EC) No 207/2009 (1) as there is no likelihood of confusion between the marks at issue and no unfair advantage is taken of the distinctive character of the marks cited in opposition

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

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| 14.5.2011 | EN | Official Journal of the European Union | C 145/36 |
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14.5.2011

EN

Official Journal of the European Union

C 145/36

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Action brought on 25 March 2011 — PASP and Others v Council

(Case T-177/11)

2011/C 145/60

Language of the case: French

Parties

Applicants: Port autonome de San Pedro (PASP) (San Pedro, Côte d’Ivoire), Port autonome d’Abidjan (Abidjan, Côte d’Ivoire), Société de gestion du patrimoine du secteur de l'électricité (Sogepe) (Abidjan) (represented by: M. Ceccaldi, lawyer)

Defendant: Council of the European Union

Form of order sought

The applicants claim that the Court should:

| — | annul Council Decision 2011/18/CFSP and Council Regulation (EU) 25/2011 of 14 January 2011 imposing restrictive measures directed against certain persons and entities and in particular as regards the applicants, namely the PORT AUTONOME DE SAN PEDRO, the PORT AUTONOME D’ABIDJAN and the société de gestion du patrimoine du secteur de l’électricité SOGEPE; |
| --- | --- |

—

annul Council Decision 2011/18/CFSP and Council Regulation (EU) 25/2011 of 14 January 2011 imposing restrictive measures directed against certain persons and entities and in particular as regards the applicants, namely the PORT AUTONOME DE SAN PEDRO, the PORT AUTONOME D’ABIDJAN and the société de gestion du patrimoine du secteur de l’électricité SOGEPE;

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

—

order the Council to pay the costs.

Pleas in law and main arguments

The pleas in law and main arguments raised by the applicants are, in essence, identical or similar to those raised in Case T-142/11 SIR v Council.

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| 14.5.2011 | EN | Official Journal of the European Union | C 145/36 |
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14.5.2011

EN

Official Journal of the European Union

C 145/36

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Action brought on 18 March 2011 — Voss of Norway v OHIM — Nordic Spirit (Three-dimensional ‘bottle’)

(Case T-178/11)

2011/C 145/61

Language in which the application was lodged: English

Parties

Applicant: Voss of Norway ASA (Oslo, Norway) (represented by: F. Jacobacci and B. La Tella, lawyers)

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

Other party to the proceedings before the Board of Appeal: Nordic Spirit AB (pubI) (Stockholm, Sweden)

Form of order sought

| — | Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 12 January 2011 in case R 785/2010-1; and |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 12 January 2011 in case R 785/2010-1; 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

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The three-dimensional mark representing a ‘bottle’, for goods in classes 32 and 33 — Community trade mark registration No 3156163

Proprietor of the Community trade mark: The applicant

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

Grounds for the application for a declaration of invalidity: The party requesting the declaration of invalidity grounded its request on absolute grounds for refusal pursuant to Article 52(1)(a) in conjunction with Article 7 of Council Regulation (EC) No 207/2009, and that the proprietor of the Community trade mark acted in bad faith when filing the application pursuant to Article 52(1)(b) of Council Regulation (EC) No 207/2009.

Decision of the Cancellation Division: Rejected the application for invalidity

Decision of the Board of Appeal: Declared the Community trade mark registration invalid

Pleas in law: Infringement of Articles 75, 99 and 7(1)(b) of Council Regulation No 207/2009, as well as infringement of Rule 37(b)(iv) of Commission Regulation (EC) No 2868/95, as the Board of Appeal erred (i) in its motivation by basing it on a new requirement for establishing validity of three-dimensional trademarks, on which the applicant did not had the opportunity to present its comments; (ii) in shifting the onus of proof in violation of fair trials principles; (iii) in misinterpreting and misapplying Article 7(1)(b) of the CTMR; and (iv) by seriously distorting the facts in order to arrive at the wrong conclusion.

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| 14.5.2011 | EN | Official Journal of the European Union | C 145/37 |
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14.5.2011

EN

Official Journal of the European Union

C 145/37

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Action brought on 28 March 2011 — MIP Metro v OHIM — Jacinto (My Little Bear)

(Case T-183/11)

2011/C 145/62

Language in which the application was lodged: English

Parties

Applicant: MIP Metro Group Intellectual Property GmbH & Co. KG (Düsseldorf, Germany) (represented by: J.-C. Plate and R. Kaase, lawyers)

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

Other party to the proceedings before the Board of Appeal: Manuel Jacinto, Lda (S.Paio de Oleiros, Portugal)

Form of order sought

| — | Stay the proceedings until the final decision of the Portuguese Trademark Office on the request of revocation which has been filed by the applicant against the earlier Portuguese trademark registration No 384674 on 23 March 2011; |
| --- | --- |

—

Stay the proceedings until the final decision of the Portuguese Trademark Office on the request of revocation which has been filed by the applicant against the earlier Portuguese trademark registration No 384674 on 23 March 2011;

| — | In case that the request for the stay of proceedings is not granted, to continue the proceeding and to; |
| --- | --- |

—

In case that the request for the stay of proceedings is not granted, to continue the proceeding and to;

| — | Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 20 January 2011 in case R 494/2010-1; and |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 20 January 2011 in case R 494/2010-1; and

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

—

Order the defendant to pay the costs, including the costs of the appeal proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘My Little Bear’, in brown, black, white and red, for goods in classes 12, 18, 20, 24, 25 and 28 — Community trade mark application No W00962622

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: Portuguese trade mark registration No 384674 of the figurative mark ‘Little Bear’, for goods in class 18

Decision of the Opposition Division: Rejected the application for all the contested goods

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly assumed that there would be a likelihood of confusion between the applied mark and the opposed mark, due to the fact that the verbal elements would be the dominant elements in the complex marks.

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| 14.5.2011 | EN | Official Journal of the European Union | C 145/37 |
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14.5.2011

EN

Official Journal of the European Union

C 145/37

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Action brought on 26 March 2011 — Schönberger v Parliament

(Case T-186/11)

2011/C 145/63

Language of the case: German

Parties

Applicant: Peter Schönberger (Luxembourg, Luxembourg) (represented by: O. Mader, lawyer)

Defendant: European Parliament

Form of order sought

| — | Annul the defendant’s decision, of which the applicant was informed by letter of 25 January 2011, with which the examination of his petition No 1188/2010 was concluded without the content of the petition having been addressed by the Committee on Petitions; |
| --- | --- |

—

Annul the defendant’s decision, of which the applicant was informed by letter of 25 January 2011, with which the examination of his petition No 1188/2010 was concluded without the content of the petition having been addressed by the Committee on Petitions;

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

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

| 1. | The contested decision was adopted in infringement of the applicant’s fundamental right to petition, since, despite the admissibility of the applicant’s petition, the Parliament Committee on Petitions refused to hear the concerns submitted therein, and so the applicant’s right to have the content of his petition considered was refused. |
| --- | --- |

1.

The contested decision was adopted in infringement of the applicant’s fundamental right to petition, since, despite the admissibility of the applicant’s petition, the Parliament Committee on Petitions refused to hear the concerns submitted therein, and so the applicant’s right to have the content of his petition considered was refused.

| 2. | The Parliament breached the applicant’s right to a statement of reasons, since the decision challenged makes no reference to the grounds for the refusal of the Committee on Petitions to hear the petition. |
| --- | --- |

2.

The Parliament breached the applicant’s right to a statement of reasons, since the decision challenged makes no reference to the grounds for the refusal of the Committee on Petitions to hear the petition.

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| 14.5.2011 | EN | Official Journal of the European Union | C 145/38 |
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14.5.2011

EN

Official Journal of the European Union

C 145/38

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Action brought on 1 April 2011 — Chiboub v Council

(Case T-188/11)

2011/C 145/64

Language of the case: French

Parties

Applicant: Mohamed Slim Ben Mohamed Hassen Ben Salah Chiboub (Abu Dhabi, United Arab Emirates) (represented by: G. Perrot, lawyer)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

| — | annul Council Decision 2011/72/CFSP of 31 January 2011, in so far as it adversely affects Mr CHIBOUB; |
| --- | --- |

—

annul Council Decision 2011/72/CFSP of 31 January 2011, in so far as it adversely affects Mr CHIBOUB;

| — | annul Implementing Decision 2011/79/CFSP of 4 February 2011 adopted on the basis of Council Implementing Decision 2011/72/CFSP of 31 January 2011, in so far as it adversely affects Mr CHIBOUB; |
| --- | --- |

—

annul Implementing Decision 2011/79/CFSP of 4 February 2011 adopted on the basis of Council Implementing Decision 2011/72/CFSP of 31 January 2011, in so far as it adversely affects Mr CHIBOUB;

| — | annul Regulation (EU) No 101/2011 of 4 February 2011, adopted on the basis of Council Implementing Decision 2011/72/CFSP of 31 January 2011, in so far as it adversely affects Mr CHIBOUB; |
| --- | --- |

—

annul Regulation (EU) No 101/2011 of 4 February 2011, adopted on the basis of Council Implementing Decision 2011/72/CFSP of 31 January 2011, in so far as it adversely affects Mr CHIBOUB;

| — | declare in consequence that the Council is to pay the costs. |
| --- | --- |

—

declare in consequence that the Council is to pay the costs.

Pleas in law and main arguments

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

| 1. | The first plea in law alleges an infringement of fundamental rights and in particular the rights of the defence, in so far as Decision 2011/72/CFSP imposes sanctions and causes considerable damage to the applicant without his having first been heard and without his even having been able to make his point of view effectively known thereafter. |
| --- | --- |

1.

The first plea in law alleges an infringement of fundamental rights and in particular the rights of the defence, in so far as Decision 2011/72/CFSP imposes sanctions and causes considerable damage to the applicant without his having first been heard and without his even having been able to make his point of view effectively known thereafter.

| 2. | The second plea in law alleges infringement of the duty to state reasons, of the right to effective judicial protection and of the presumption of innocence, since the applicant was included in the disputed list without first being heard and without indicating the factual or legal grounds which justified such inclusion. |
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2.

The second plea in law alleges infringement of the duty to state reasons, of the right to effective judicial protection and of the presumption of innocence, since the applicant was included in the disputed list without first being heard and without indicating the factual or legal grounds which justified such inclusion.

| 3. | The third plea in law alleges a manifest error of assessment, it not being possible to accuse the applicant of misappropriation of funds for the purposes of money laundering, since those funds originated from FIFA by whom the applicant was remunerated from 2006 to 2010 under various contracts. |
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3.

The third plea in law alleges a manifest error of assessment, it not being possible to accuse the applicant of misappropriation of funds for the purposes of money laundering, since those funds originated from FIFA by whom the applicant was remunerated from 2006 to 2010 under various contracts.

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