# Official Journal C 235/2007

| | ISSN 1725-2423 |
| --- | --- |
| Official Journal
  of the European Union | C 235 |
| | |
| English edition | Information and Notices | Volume 506 October 2007 |

ISSN 1725-2423

Official Journal

of the European Union

C 235

English edition

Information and Notices

Volume 506 October 2007

---

| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | INFORMATION FROM EUROPEAN UNION INSTITUTIONS AND BODIES |
| | Court of Justice |
| 2007/C 235/01 | Last publication of the Court of Justice in the Official Journal of the European Union
  OJ C 223, 22.9.2007 | 1 |

Notice No

Contents

page

IV   Notices

INFORMATION FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Court of Justice

2007/C 235/01

Last publication of the Court of Justice in the Official Journal of the European Union
  OJ C 223, 22.9.2007

Official Journal of the European Union

1

| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2007/C 235/02 | Case C-490/04: Judgment of the Court (First Chamber) of 18 July 2007 — Commission of the European Communities v Federal Republic of Germany (Actions for failure to fulfil obligations — Admissibility — Article 49 EC — Freedom to provide services — Posting of workers — Restrictions — Contribution to the national paid-leave fund — Translation of documents — Declaration concerning the place of employment of posted workers) | 2 |
| 2007/C 235/03 | Case C-501/04: Judgment of the Court (Third Chamber) of 18 July 2007 — Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil obligations — Direct insurance other than life assurance and direct life assurance — Directives 92/49/EEC and 2002/83/EC — Portfolio transfer system — Right to cancel — Admissibility) | 2 |
| 2007/C 235/04 | Case C-134/05: Judgment of the Court (First Chamber) of 18 July 2007 — Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Freedom to provide services — Right of establishment — Extrajudicial debt recovery) | 3 |
| 2007/C 235/05 | Case C-231/05: Judgment of the Court (Grand Chamber) of 18 July 2007 (reference for a preliminary ruling from the Korkein hallinto-oikeus) — Oy AA (Freedom of establishment — Corporate tax legislation — Ability of a company to deduct sums paid by way of intra-group transfer — Obligation on the transferee company also to have its establishment in the Member State concerned) | 3 |
| 2007/C 235/06 | Case C-288/05: Judgment of the Court (Second Chamber) of 18 July 2007 (reference for a preliminary ruling from the Bundesgerichtshof — Germany) — Criminal proceedings against Jürgen Kretzinger (Convention implementing the Schengen Agreement — Article 54 — Ne bis in idem principle — Notion of same acts — Contraband cigarettes — Importation into several Contracting States — Prosecution in different Contracting States — Notion of enforcement of criminal penalties — Suspension of the execution of the sentence — Setting-off of brief periods of detention pending trial — European arrest warrant) | 4 |
| 2007/C 235/07 | Case C-325/05: Judgment of the Court (First Chamber) of 18 July 2007 (reference for a preliminary ruling from the Verwaltungsgericht Darmstadt — Germany) — Ismail Derin v Landkreis Darmstadt-Dieburg (EEC-Turkey Association — Article 59 of the Additional Protocol — Articles 6, 7 and 14 of Decision No 1/80 of the Association Council — Right of free access to employment under the second indent of the first paragraph of Article 7 — Corollary right of residence — Turkish national over the age of 21 years who is no longer dependent on his parents — Criminal convictions — Conditions governing the loss of acquired rights — Compatibility with the rule that the Republic of Turkey is not to receive more favourable treatment than that applicable between Member States) | 5 |
| 2007/C 235/08 | Case C-326/05 P: Judgment of the Court (Third Chamber) of 18 July 2007 — Industrias Químicas del Vallés, SA v Commission of the European Communities (Appeal — Non-inclusion of metalaxyl in Annex I to Directive 91/414/EEC — Withdrawal of authorisations for plant protection products containing that active substance — Distortion of the clear sense of the evidence — Manifest error of appraisal) | 5 |
| 2007/C 235/09 | Case C-367/05: Judgment of the Court (Second Chamber) of 18 July 2007 (reference for a preliminary ruling from the Hof van Cassatie van België — Belgium) — Criminal proceedings against Norma Kraaijenbrink (Convention implementing the Schengen Agreement — Article 54 — Ne bis in idem principle — Notion of same acts — Different acts — Prosecution in two Contracting States — Acts linked together by the same criminal intention) | 6 |
| 2007/C 235/10 | Case C-382/05: Judgment of the Court (Second Chamber) of 18 July 2007 — Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Public service contracts — Directive 92/50/EEC — Agreements concerning the treatment of municipal waste — Classification — Public contract — Service concession — Advertising measures) | 7 |
| 2007/C 235/11 | Case C-131/06 P: Order of the Court (Sixth Chamber) of 24 April 2007 — Castellblanch SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Champagne Louis Roederer SA (Appeal — Figurative mark CRISTAL CASTELLBLANCH — Refusal of registration) | 7 |
| 2007/C 235/12 | Case C-163/06 P: Order of the Court of 21 June 2007 — Republic of Finland v Commission of the European Communities (Appeals — Actions for annulment — Inadmissibility — Act without binding legal effect — Own resources of the European Communities — Infringement proceedings — Article 11 of Regulation (EC, Euratom) No 1150/2000 — Default interest — Negotiation of an agreement concerning a conditional payment — Letters of refusal) | 8 |
| 2007/C 235/13 | Case C-300/07: Reference for a preliminary ruling from the Oberlandesgericht Düsseldorf (Germany) lodged on 27 June 2007 — Hans & Christophorus Oymanns GbR, Orthopädie Schuhtechnik v AOK Rheinland/Hamburg | 8 |
| 2007/C 235/14 | Case C-323/07: Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia (Italy) lodged on 12 July 2007 — Termoraggi SpA v Comune di Monza and Others | 9 |
| 2007/C 235/15 | Case C-335/07: Action brought on 18 July 2007 — Commission of the European Communities v Republic of Finland | 9 |
| 2007/C 235/16 | Case C-348/07: Reference for a preliminary ruling from the Landgericht Hamburg (Germany) lodged on 30 July 2007 — Turgay Semen v Deutsche Tamoil GmbH | 10 |
| 2007/C 235/17 | Case C-349/07: Reference for a preliminary ruling from the Supremo Tribunal Administrativo lodged on 27 July 2007 — Sopropé — Organizações de Calçado, Lda v Direcção Regional de Contencioso e Controlo Aduaneiro | 10 |
| 2007/C 235/18 | Case C-392/07: Action brought on 14 August 2007 — Commission of the European Communities v Kingdom of Belgium | 10 |
| 2007/C 235/19 | Case C-76/07: Order of the President of the Court of 21 June 2007 — Commission of the European Communities v Grand Duchy of Luxembourg | 11 |
| 2007/C 235/20 | Case C-104/07: Order of the President of the Court of 25 June 2007 — Commission of the European Communities v Italian Republic | 11 |
| | Court of First Instance |
| 2007/C 235/21 | Case T-100/06: Action brought on 26 July 2007 — Rajani (Dear!Net Online) v OHIM — Artoz-Papier (ATOZ) | 12 |
| 2007/C 235/22 | Case T-264/07: Action brought on 18 July 2007 — CSL Behring v Commission and EMEA | 12 |
| 2007/C 235/23 | Case T-273/07: Action brought on 16 July 2007 — Torres v OHIM — Vinícola de Tomelloso (TORREGAZATE) | 13 |
| 2007/C 235/24 | Case T-275/07: Action brought on 18 July 2007 — Ebro Puleva v OHIM — Berenguel (BRILLO'S) | 13 |
| 2007/C 235/25 | Case T-277/07: Action brought on 20 July 2007 — Secure Computing v OHIM — Investronica (SECUREOS) | 14 |
| 2007/C 235/26 | Case T-280/07: Action brought on 18 July 2007 — Sepracor v OHIM — Laboratorios Ern (LEVENIA) | 14 |
| 2007/C 235/27 | Case T-281/07: Action brought on 23 July 2007 — ecoblue v OHIM — BBVA (Ecoblue) | 15 |
| 2007/C 235/28 | Case T-282/07: Action brought on 24 July 2007 — Tailor v OHIM (Gesäßtasche links) | 15 |
| 2007/C 235/29 | Case T-283/07: Action brought on 24 July 2007 — Tom Tailor v OHIM (Gesäßtasche rechts) | 16 |
| 2007/C 235/30 | Case T-286/07: Action brought on 24 July 2007 — Torres v OHIM — Torres de Anguix (TORRES de ANGUIX) | 16 |
| 2007/C 235/31 | Case T-288/07: Action brought on 30 July 2007 — Alcan France v Commission | 17 |
| 2007/C 235/32 | Case T-289/07: Action brought on 30 July 2007 — Caisse Nationale des Caisses d'Épargne et de Prévoyance v Commission | 18 |
| 2007/C 235/33 | Case T-290/07: Action brought on 31 July 2007 — MIP Metro v OHIM — Metronia (METRONIA) | 18 |
| 2007/C 235/34 | Case T-291/07: Action brought on 1 August 2007 — Viñedos y Bodegas Príncipe Alfonso de Hohenlohe v OHIM — Byass (ALFONSO) | 19 |
| 2007/C 235/35 | Case T-294/07: Action brought on 27 July 2007 — Stepek v OHIM — Masters Golf Company (GOLF-FASHION MASTERS THE CHOICE TO WIN) | 19 |
| 2007/C 235/36 | Case T-295/07: Action brought on 3 August 2007 — Vitro Corporativo, S.A. de C.V. v OHIM — VKR Holding (Vitro) | 20 |
| 2007/C 235/37 | Case T-296/07: Action brought on 6 August 2007 — Korsch v OHIM (PharmaCheck) | 20 |
| 2007/C 235/38 | Case T-297/07: Action brought on 1 August 2007 — TridonicAtco v OHIM (Intelligent Voltage Guard) | 21 |
| 2007/C 235/39 | Case T-298/07: Action brought on 2 August 2007 — Italy v Commission | 21 |
| 2007/C 235/40 | Case T-300/07: Action brought on 31 July 2007 — Evropaïki Dynamiki v Commission | 22 |
| 2007/C 235/41 | Case T-302/07: Action brought on 6 August 2007 — Motopress v OHIM — Sony Computer Entertainment Europe (BUZZ!) | 22 |
| 2007/C 235/42 | Case T-303/07: Action brought on 7 August 2007 — Nölle v OHIM — Viña Carta Vieja (Puzzle) | 23 |
| 2007/C 235/43 | Case T-304/07: Action brought on 10 August 2007 — Calzaturificio Frau v OHIM — Camper | 23 |
| 2007/C 235/44 | Case T-307/07: Action brought on 14 August 2007 — Hansgrohe v OHIM (AIRSHOWER) | 24 |
| 2007/C 235/45 | Case T-309/07: Action brought on 15 August 2007 — Kingdom of the Netherlands v Commission of the European Communities | 24 |
| 2007/C 235/46 | Case T-313/07: Action brought on 16 August 2007 — Cemex UK Cement v Commission | 25 |
| 2007/C 235/47 | Case T-314/07: Action brought on 22 August 2007 — Simsalagrimm Filmproduktion v Commission and EACEA | 25 |
| 2007/C 235/48 | Case T-315/07: Action brought on 22 August 2007 — Grohe v OHIM — Compañía Roca Radiadores (ALIRA) | 26 |
| 2007/C 235/49 | Case T-316/07: Action brought on 20 August 2007 — Commercy v OHIM — easyGroup IP Licensing (easyHotel) | 26 |
| | European Union Civil Service Tribunal |
| 2007/C 235/50 | Designation of the judge to replace the President of the Civil Service Tribunal for the purpose of dealing with applications for interim measures | 28 |
| 2007/C 235/51 | Criteria for the assignment of cases to chambers | 28 |
| 2007/C 235/52 | Case F-84/06: Action brought on 5 June 2007 — Marcuccio v Commission | 28 |
| 2007/C 235/53 | Case F-69/07: Action brought on 12 July 2007 — U v Commission | 29 |
| 2007/C 235/54 | Case F-73/07: Action brought on 27 July 2007 — Doktor v Council | 29 |
| 2007/C 235/55 | Case F-75/07: Action brought on 29 July 2007 — Brown and Volpato v Commission | 30 |
| 2007/C 235/56 | Case F-76/07: Action brought on 17 July 2007 — Birkhoff v Commission | 30 |
| 2007/C 235/57 | Case F-79/07: Action brought on 31 July 2007 — Braun-Neumann v Parliament | 31 |
| 2007/C 235/58 | Case F-80/07: Action brought on 3 August 2007 — Economidis v Commission | 31 |
| 2007/C 235/59 | Case F-82/07: Action brought on 6 August 2007 — Dittert v Commission | 32 |
| 2007/C 235/60 | Case F-83/07: Action brought on 14 August 2007 — Zangerl-Posselt v Commission | 32 |
| 2007/C 235/61 | Case F-84/07: Action brought on 17 August 2007 — Islamaj v Commission | 33 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2007/C 235/02

Case C-490/04: Judgment of the Court (First Chamber) of 18 July 2007 — Commission of the European Communities v Federal Republic of Germany (Actions for failure to fulfil obligations — Admissibility — Article 49 EC — Freedom to provide services — Posting of workers — Restrictions — Contribution to the national paid-leave fund — Translation of documents — Declaration concerning the place of employment of posted workers)

2

2007/C 235/03

Case C-501/04: Judgment of the Court (Third Chamber) of 18 July 2007 — Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil obligations — Direct insurance other than life assurance and direct life assurance — Directives 92/49/EEC and 2002/83/EC — Portfolio transfer system — Right to cancel — Admissibility)

2

2007/C 235/04

Case C-134/05: Judgment of the Court (First Chamber) of 18 July 2007 — Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Freedom to provide services — Right of establishment — Extrajudicial debt recovery)

3

2007/C 235/05

Case C-231/05: Judgment of the Court (Grand Chamber) of 18 July 2007 (reference for a preliminary ruling from the Korkein hallinto-oikeus) — Oy AA (Freedom of establishment — Corporate tax legislation — Ability of a company to deduct sums paid by way of intra-group transfer — Obligation on the transferee company also to have its establishment in the Member State concerned)

3

2007/C 235/06

Case C-288/05: Judgment of the Court (Second Chamber) of 18 July 2007 (reference for a preliminary ruling from the Bundesgerichtshof — Germany) — Criminal proceedings against Jürgen Kretzinger (Convention implementing the Schengen Agreement — Article 54 — Ne bis in idem principle — Notion of same acts — Contraband cigarettes — Importation into several Contracting States — Prosecution in different Contracting States — Notion of enforcement of criminal penalties — Suspension of the execution of the sentence — Setting-off of brief periods of detention pending trial — European arrest warrant)

Ne bis in idem

4

2007/C 235/07

Case C-325/05: Judgment of the Court (First Chamber) of 18 July 2007 (reference for a preliminary ruling from the Verwaltungsgericht Darmstadt — Germany) — Ismail Derin v Landkreis Darmstadt-Dieburg (EEC-Turkey Association — Article 59 of the Additional Protocol — Articles 6, 7 and 14 of Decision No 1/80 of the Association Council — Right of free access to employment under the second indent of the first paragraph of Article 7 — Corollary right of residence — Turkish national over the age of 21 years who is no longer dependent on his parents — Criminal convictions — Conditions governing the loss of acquired rights — Compatibility with the rule that the Republic of Turkey is not to receive more favourable treatment than that applicable between Member States)

5

2007/C 235/08

Case C-326/05 P: Judgment of the Court (Third Chamber) of 18 July 2007 — Industrias Químicas del Vallés, SA v Commission of the European Communities (Appeal — Non-inclusion of metalaxyl in Annex I to Directive 91/414/EEC — Withdrawal of authorisations for plant protection products containing that active substance — Distortion of the clear sense of the evidence — Manifest error of appraisal)

5

2007/C 235/09

Case C-367/05: Judgment of the Court (Second Chamber) of 18 July 2007 (reference for a preliminary ruling from the Hof van Cassatie van België — Belgium) — Criminal proceedings against Norma Kraaijenbrink (Convention implementing the Schengen Agreement — Article 54 — Ne bis in idem principle — Notion of same acts — Different acts — Prosecution in two Contracting States — Acts linked together by the same criminal intention)

Ne bis in idem

6

2007/C 235/10

Case C-382/05: Judgment of the Court (Second Chamber) of 18 July 2007 — Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Public service contracts — Directive 92/50/EEC — Agreements concerning the treatment of municipal waste — Classification — Public contract — Service concession — Advertising measures)

7

2007/C 235/11

Case C-131/06 P: Order of the Court (Sixth Chamber) of 24 April 2007 — Castellblanch SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Champagne Louis Roederer SA (Appeal — Figurative mark CRISTAL CASTELLBLANCH — Refusal of registration)

7

2007/C 235/12

Case C-163/06 P: Order of the Court of 21 June 2007 — Republic of Finland v Commission of the European Communities (Appeals — Actions for annulment — Inadmissibility — Act without binding legal effect — Own resources of the European Communities — Infringement proceedings — Article 11 of Regulation (EC, Euratom) No 1150/2000 — Default interest — Negotiation of an agreement concerning a conditional payment — Letters of refusal)

8

2007/C 235/13

Case C-300/07: Reference for a preliminary ruling from the Oberlandesgericht Düsseldorf (Germany) lodged on 27 June 2007 — Hans & Christophorus Oymanns GbR, Orthopädie Schuhtechnik v AOK Rheinland/Hamburg

8

2007/C 235/14

Case C-323/07: Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia (Italy) lodged on 12 July 2007 — Termoraggi SpA v Comune di Monza and Others

9

2007/C 235/15

Case C-335/07: Action brought on 18 July 2007 — Commission of the European Communities v Republic of Finland

9

2007/C 235/16

Case C-348/07: Reference for a preliminary ruling from the Landgericht Hamburg (Germany) lodged on 30 July 2007 — Turgay Semen v Deutsche Tamoil GmbH

10

2007/C 235/17

Case C-349/07: Reference for a preliminary ruling from the Supremo Tribunal Administrativo lodged on 27 July 2007 — Sopropé — Organizações de Calçado, Lda v Direcção Regional de Contencioso e Controlo Aduaneiro

10

2007/C 235/18

Case C-392/07: Action brought on 14 August 2007 — Commission of the European Communities v Kingdom of Belgium

10

2007/C 235/19

Case C-76/07: Order of the President of the Court of 21 June 2007 — Commission of the European Communities v Grand Duchy of Luxembourg

11

2007/C 235/20

Case C-104/07: Order of the President of the Court of 25 June 2007 — Commission of the European Communities v Italian Republic

11

Court of First Instance

2007/C 235/21

Case T-100/06: Action brought on 26 July 2007 — Rajani (Dear!Net Online) v OHIM — Artoz-Papier (ATOZ)

12

2007/C 235/22

Case T-264/07: Action brought on 18 July 2007 — CSL Behring v Commission and EMEA

12

2007/C 235/23

Case T-273/07: Action brought on 16 July 2007 — Torres v OHIM — Vinícola de Tomelloso (TORREGAZATE)

13

2007/C 235/24

Case T-275/07: Action brought on 18 July 2007 — Ebro Puleva v OHIM — Berenguel (BRILLO'S)

13

2007/C 235/25

Case T-277/07: Action brought on 20 July 2007 — Secure Computing v OHIM — Investronica (SECUREOS)

14

2007/C 235/26

Case T-280/07: Action brought on 18 July 2007 — Sepracor v OHIM — Laboratorios Ern (LEVENIA)

14

2007/C 235/27

Case T-281/07: Action brought on 23 July 2007 — ecoblue v OHIM — BBVA (Ecoblue)

15

2007/C 235/28

Case T-282/07: Action brought on 24 July 2007 — Tailor v OHIM (Gesäßtasche links)

15

2007/C 235/29

Case T-283/07: Action brought on 24 July 2007 — Tom Tailor v OHIM (Gesäßtasche rechts)

16

2007/C 235/30

Case T-286/07: Action brought on 24 July 2007 — Torres v OHIM — Torres de Anguix (TORRES de ANGUIX)

16

2007/C 235/31

Case T-288/07: Action brought on 30 July 2007 — Alcan France v Commission

17

2007/C 235/32

Case T-289/07: Action brought on 30 July 2007 — Caisse Nationale des Caisses d'Épargne et de Prévoyance v Commission

18

2007/C 235/33

Case T-290/07: Action brought on 31 July 2007 — MIP Metro v OHIM — Metronia (METRONIA)

18

2007/C 235/34

Case T-291/07: Action brought on 1 August 2007 — Viñedos y Bodegas Príncipe Alfonso de Hohenlohe v OHIM — Byass (ALFONSO)

19

2007/C 235/35

Case T-294/07: Action brought on 27 July 2007 — Stepek v OHIM — Masters Golf Company (GOLF-FASHION MASTERS THE CHOICE TO WIN)

19

2007/C 235/36

Case T-295/07: Action brought on 3 August 2007 — Vitro Corporativo, S.A. de C.V. v OHIM — VKR Holding (Vitro)

20

2007/C 235/37

Case T-296/07: Action brought on 6 August 2007 — Korsch v OHIM (PharmaCheck)

20

2007/C 235/38

Case T-297/07: Action brought on 1 August 2007 — TridonicAtco v OHIM (Intelligent Voltage Guard)

21

2007/C 235/39

Case T-298/07: Action brought on 2 August 2007 — Italy v Commission

21

2007/C 235/40

Case T-300/07: Action brought on 31 July 2007 — Evropaïki Dynamiki v Commission

22

2007/C 235/41

Case T-302/07: Action brought on 6 August 2007 — Motopress v OHIM — Sony Computer Entertainment Europe (BUZZ!)

22

2007/C 235/42

Case T-303/07: Action brought on 7 August 2007 — Nölle v OHIM — Viña Carta Vieja (Puzzle)

23

2007/C 235/43

Case T-304/07: Action brought on 10 August 2007 — Calzaturificio Frau v OHIM — Camper

23

2007/C 235/44

Case T-307/07: Action brought on 14 August 2007 — Hansgrohe v OHIM (AIRSHOWER)

24

2007/C 235/45

Case T-309/07: Action brought on 15 August 2007 — Kingdom of the Netherlands v Commission of the European Communities

24

2007/C 235/46

Case T-313/07: Action brought on 16 August 2007 — Cemex UK Cement v Commission

25

2007/C 235/47

Case T-314/07: Action brought on 22 August 2007 — Simsalagrimm Filmproduktion v Commission and EACEA

25

2007/C 235/48

Case T-315/07: Action brought on 22 August 2007 — Grohe v OHIM — Compañía Roca Radiadores (ALIRA)

26

2007/C 235/49

Case T-316/07: Action brought on 20 August 2007 — Commercy v OHIM — easyGroup IP Licensing (easyHotel)

26

European Union Civil Service Tribunal

2007/C 235/50

Designation of the judge to replace the President of the Civil Service Tribunal for the purpose of dealing with applications for interim measures

28

2007/C 235/51

Criteria for the assignment of cases to chambers

28

2007/C 235/52

Case F-84/06: Action brought on 5 June 2007 — Marcuccio v Commission

28

2007/C 235/53

Case F-69/07: Action brought on 12 July 2007 — U v Commission

29

2007/C 235/54

Case F-73/07: Action brought on 27 July 2007 — Doktor v Council

29

2007/C 235/55

Case F-75/07: Action brought on 29 July 2007 — Brown and Volpato v Commission

30

2007/C 235/56

Case F-76/07: Action brought on 17 July 2007 — Birkhoff v Commission

30

2007/C 235/57

Case F-79/07: Action brought on 31 July 2007 — Braun-Neumann v Parliament

31

2007/C 235/58

Case F-80/07: Action brought on 3 August 2007 — Economidis v Commission

31

2007/C 235/59

Case F-82/07: Action brought on 6 August 2007 — Dittert v Commission

32

2007/C 235/60

Case F-83/07: Action brought on 14 August 2007 — Zangerl-Posselt v Commission

32

2007/C 235/61

Case F-84/07: Action brought on 17 August 2007 — Islamaj v Commission

33

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

EN

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IV Notices

INFORMATION FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Court of Justice

| 6.10.2007 | EN | Official Journal of the European Union | C 235/1 |
| --- | --- | --- | --- |

6.10.2007

EN

Official Journal of the European Union

C 235/1

---

(2007/C 235/01)

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

OJ C 223, 22.9.2007

Past publications

OJ C 211, 8.9.2007

OJ C 183, 4.8.2007

OJ C 170, 21.7.2007

OJ C 155, 7.7.2007

OJ C 140, 9.6.2007

OJ C 129, 9.6.2007

These texts are available on:

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

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

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V Announcements

COURT PROCEEDINGS

Court of Justice

| 6.10.2007 | EN | Official Journal of the European Union | C 235/2 |
| --- | --- | --- | --- |

6.10.2007

EN

Official Journal of the European Union

C 235/2

---

Judgment of the Court (First Chamber) of 18 July 2007 — Commission of the European Communities v Federal Republic of Germany

(Case C-490/04) (1)

(Actions for failure to fulfil obligations - Admissibility - Article 49 EC - Freedom to provide services - Posting of workers - Restrictions - Contribution to the national paid-leave fund - Translation of documents - Declaration concerning the place of employment of posted workers)

(2007/C 235/02)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: E. Traversa, G. Braun and H. Kreppel, acting as Agents)

Defendant: Federal Republic of Germany (represented by: W.-D. Plessing, M. Lumma and C. Schulze-Bahr, Agents, T. Lübbig, Rechtsanwalt)

Intervenre: French Republic (represented by G. de Bergues and O. Christmann, acting as Agents)

Re:

Failure of a Member State to fulfil its obligations — Article 49 EC — Posting of workers in the framework of the provision of services by undertakings established on the territory of another Member State made subject to restrictions which do not apply to national undertakings — Obligation for foreign undertakings to pay contributions to the national paid-leave fund even if they are already subject to similar obligations in the State of origin and to have a large number of employment documents translated into the language of the host State — Obligation for foreign employment agencies to register with the National Employment Inspectorate every worker made available to a national customer before work commences on each individual building site.

Operative part of the judgment

The Court declares that

| 1. | In enacting a provision, such as Paragraph 3(2) of the law on posting workers (Arbeitsnehmer-Entsendegesetz) of 26 February 1996, under which foreign temporary employment agencies are required to declare, not only the placement of a worker with a user of his services in Germany, but also any change relating to the place of employment of that worker, the Federal Republic of Germany has failed to fulfil its obligations under Article 49 EC; |
| --- | --- |

1.

In enacting a provision, such as Paragraph 3(2) of the law on posting workers (Arbeitsnehmer-Entsendegesetz) of 26 February 1996, under which foreign temporary employment agencies are required to declare, not only the placement of a worker with a user of his services in Germany, but also any change relating to the place of employment of that worker, the Federal Republic of Germany has failed to fulfil its obligations under Article 49 EC;

| 2. | Dismisses the remainder of the action; |
| --- | --- |

2.

Dismisses the remainder of the action;

| 3. | Orders the Commission of the European Communities to bear two thirds of the costs and the Federal Republic of Germany to bear one third of the costs; |
| --- | --- |

3.

Orders the Commission of the European Communities to bear two thirds of the costs and the Federal Republic of Germany to bear one third of the costs;

| 4. | Orders the French Republic to bear its own costs. |
| --- | --- |

4.

Orders the French Republic to bear its own costs.

---

(1)  OJ C 45, 19.2.2005.

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| 6.10.2007 | EN | Official Journal of the European Union | C 235/2 |
| --- | --- | --- | --- |

6.10.2007

EN

Official Journal of the European Union

C 235/2

---

Judgment of the Court (Third Chamber) of 18 July 2007 — Commission of the European Communities v Kingdom of Spain

(Case C-501/04) (1)

(Failure of a Member State to fulfil obligations - Direct insurance other than life assurance and direct life assurance - Directives 92/49/EEC and 2002/83/EC - Portfolio transfer system - Right to cancel - Admissibility)

(2007/C 235/03)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (represented by: E. Traversa and R. Vidal Puig, acting as Agents)

Defendant: Kingdom of Spain (represented by: J.M Rodríguez Cárcamo, acting as Agent)

Re:

Failure of a Member State to fulfil obligations — Failure to fulfil obligations resulting from Article 12(6) of Council Directive 92/49/EEC of 18 June 1992 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and amending Directives 73/239/EEC and 88/357/EEC (third non-life insurance Directive) (OJ 1992 L 228, p. 1) and Article 14(5) of Directive 2002/83/EC of the European Parliament and of the Council of 5 November 2002 concerning life assurance (OJ 2002 L 345, p. 1) — National legislation which is discriminatory towards insurers in other Member States

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

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

2.

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

---

(1)  OJ C 19, 22.1.2005.

---

| 6.10.2007 | EN | Official Journal of the European Union | C 235/3 |
| --- | --- | --- | --- |

6.10.2007

EN

Official Journal of the European Union

C 235/3

---

Judgment of the Court (First Chamber) of 18 July 2007 — Commission of the European Communities v Italian Republic

(Case C-134/05) (1)

(Failure of a Member State to fulfil obligations - Freedom to provide services - Right of establishment - Extrajudicial debt recovery)

(2007/C 235/04)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: E. Traversa, Agent)

Defendant: Italian Republic (represented by: I.M. Braguglia and P. Gentili, Agents)

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 43 EC and 49 EC — National law making it compulsory to obtain a licence in order to carry on the business of extra-judicial credit recovery the validity of which is restricted to the province in which it was granted.

Operative part of the judgment

| 1. | Declares that, by requiring, within the context of the Consolidated Law on public security (Testo unico delle leggi di pubblica sicurezza), approved by Royal Decree No 773 of 18 June 1931, every undertaking pursuing the activity of extrajudicial debt recovery:






  — | to apply, even though the undertaking holds a licence issued by the Questore of a province, for a new licence for each other province in which it wishes to carry on its activities, unless it confers authority on an authorised agent in that other province, the Italian Republic has failed to fulfil its obligations under Articles 43 EC and 49 EC; |
| --- | --- | --- |

1.

Declares that, by requiring, within the context of the Consolidated Law on public security (Testo unico delle leggi di pubblica sicurezza), approved by Royal Decree No 773 of 18 June 1931, every undertaking pursuing the activity of extrajudicial debt recovery:

—

to apply, even though the undertaking holds a licence issued by the Questore of a province, for a new licence for each other province in which it wishes to carry on its activities, unless it confers authority on an authorised agent in that other province, the Italian Republic has failed to fulfil its obligations under Articles 43 EC and 49 EC;

| — | to have premises in the territory covered by the licence and to display in those premises a list of the services which may be provided for clients, the Italian Republic has failed to fulfil its obligations under Article 49 EC; |
| --- | --- |

—

to have premises in the territory covered by the licence and to display in those premises a list of the services which may be provided for clients, the Italian Republic has failed to fulfil its obligations under Article 49 EC;

| — | to have premises in each province in which it intends to carry on its activities, the Italian Republic has failed to fulfil its obligations under Article 43 EC; |
| --- | --- |

—

to have premises in each province in which it intends to carry on its activities, the Italian Republic has failed to fulfil its obligations under Article 43 EC;

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

2.

Dismisses the action as to the remainder;

| 3. | Orders the Commission of the European Communities and the Italian Republic to bear their own respective costs. |
| --- | --- |

3.

Orders the Commission of the European Communities and the Italian Republic to bear their own respective costs.

---

(1)  OJ C 143, 11.6.2005.

---

| 6.10.2007 | EN | Official Journal of the European Union | C 235/3 |
| --- | --- | --- | --- |

6.10.2007

EN

Official Journal of the European Union

C 235/3

---

Judgment of the Court (Grand Chamber) of 18 July 2007 (reference for a preliminary ruling from the Korkein hallinto-oikeus) — Oy AA

(Case C-231/05) (1)

(Freedom of establishment - Corporate tax legislation - Ability of a company to deduct sums paid by way of intra-group transfer - Obligation on the transferee company also to have its establishment in the Member State concerned)

(2007/C 235/05)

Language of the case: Finnish

Referring court

Korkein hallinto-oikeu

Parties to the main proceedings

Applicant: Oy AA

Re:

Reference for a preliminary ruling — Korkein hallinto-oikeus — Interpretation of Articles 43, 56 and 58 EC — Income tax legislation — Deductibility by a company of sums paid as an intra-group transfer conditional on the transferee company also having its establishment in the Member State concerned

Operative part of the judgment

Article 43 EC does not preclude a system instituted by legislation of a Member State, such as that at issue in the main proceedings, whereby a subsidiary resident in that Member State may not deduct an intra-group financial transfer which it makes in favour of its parent company from its taxable income unless that parent company has its establishment in that same Member State.

---

(1)  OJ C 193, 6.8.2005.

---

| 6.10.2007 | EN | Official Journal of the European Union | C 235/4 |
| --- | --- | --- | --- |

6.10.2007

EN

Official Journal of the European Union

C 235/4

---

Judgment of the Court (Second Chamber) of 18 July 2007 (reference for a preliminary ruling from the Bundesgerichtshof — Germany) — Criminal proceedings against Jürgen Kretzinger

(Case C-288/05) (1)

(Convention implementing the Schengen Agreement - Article 54 - Ne bis in idem principle - Notion of ‘same acts’ - Contraband cigarettes - Importation into several Contracting States - Prosecution in different Contracting States - Notion of ‘enforcement’ of criminal penalties - Suspension of the execution of the sentence - Setting-off of brief periods of detention pending trial - European arrest warrant)

(2007/C 235/06)

Language of the case: German

Referring court

Bundesgerichtshof

Party in the main proceedings

Jürgen Kretzinger

in the presence of: Hauptzollamt Augsburg

Re:

Reference for a preliminary ruling — Bundesgerichtshof — Interpretation of Article 54 of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders (OJ 2000 L 239, p. 19) — Ne bis in idem principle — Conditions governing the expiry of the right to bring criminal proceedings — Notion of ‘same acts’ — Transportation of contraband cigarettes across the territory of several Member States — Conviction, in two Member States, in respect of tax evasion and handling the profits of tax evasion, respectively — Notion of ‘enforcement’ — Stay in enforcement of the sentence — Inclusion of periods of detention on remand

Operative part of the judgment

| 1. | Article 54 of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, signed on 19 June 1990, in Schengen, must be interpreted as meaning that:






  — | the relevant criterion for the purposes of the application of that article is identity of the material acts, understood as the existence of a set of facts which are inextricably linked together, irrespective of the legal classification given to them or the legal interest protected; |
| --- | --- | --- |

1.

Article 54 of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, signed on 19 June 1990, in Schengen, must be interpreted as meaning that:

—

the relevant criterion for the purposes of the application of that article is identity of the material acts, understood as the existence of a set of facts which are inextricably linked together, irrespective of the legal classification given to them or the legal interest protected;

| — | acts consisting in receiving contraband foreign tobacco in one Contracting State and of importing that tobacco into another Contracting State and being in possession of it there, characterised by the fact that the defendant, who was prosecuted in two Contracting States, had intended from the outset to transport the tobacco, after first taking possession of it, to a final destination, passing through several Contracting States in the process, constitute conduct which may be covered by the notion of ‘same acts’ within the meaning of Article 54. It is for the competent national courts to make the final assessment in that respect. |
| --- | --- |

—

acts consisting in receiving contraband foreign tobacco in one Contracting State and of importing that tobacco into another Contracting State and being in possession of it there, characterised by the fact that the defendant, who was prosecuted in two Contracting States, had intended from the outset to transport the tobacco, after first taking possession of it, to a final destination, passing through several Contracting States in the process, constitute conduct which may be covered by the notion of ‘same acts’ within the meaning of Article 54. It is for the competent national courts to make the final assessment in that respect.

| 2. | For the purposes of Article 54 of the CISA, a penalty imposed by a court of a Contracting State ‘has been enforced’ or is ‘actually in the process of being enforced’ if the defendant has been given a suspended custodial sentence. |
| --- | --- |

2.

For the purposes of Article 54 of the CISA, a penalty imposed by a court of a Contracting State ‘has been enforced’ or is ‘actually in the process of being enforced’ if the defendant has been given a suspended custodial sentence.

| 3. | For the purposes of Article 54 of the CISA, a penalty imposed by a court of a Contracting State is not to be regarded as ‘having been enforced’ or ‘actually in the process of being enforced’ where the defendant was for a short time taken into police custody and/or held on remand pending trial and that detention would count towards any subsequent enforcement of the custodial sentence under the law of the State in which judgment was given. |
| --- | --- |

3.

For the purposes of Article 54 of the CISA, a penalty imposed by a court of a Contracting State is not to be regarded as ‘having been enforced’ or ‘actually in the process of being enforced’ where the defendant was for a short time taken into police custody and/or held on remand pending trial and that detention would count towards any subsequent enforcement of the custodial sentence under the law of the State in which judgment was given.

| 4. | The fact that a Member State in which a person has been sentenced by a final and binding judgment under its national law may issue a European arrest warrant for the arrest of that person in order to enforce the sentence under Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States cannot affect the interpretation of the notion of ‘enforcement’ within the meaning of Article 54 of the CISA. |
| --- | --- |

4.

The fact that a Member State in which a person has been sentenced by a final and binding judgment under its national law may issue a European arrest warrant for the arrest of that person in order to enforce the sentence under Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States cannot affect the interpretation of the notion of ‘enforcement’ within the meaning of Article 54 of the CISA.

---

(1)  OJ C 257, 15.10.2005.

---

| 6.10.2007 | EN | Official Journal of the European Union | C 235/5 |
| --- | --- | --- | --- |

6.10.2007

EN

Official Journal of the European Union

C 235/5

---

Judgment of the Court (First Chamber) of 18 July 2007 (reference for a preliminary ruling from the Verwaltungsgericht Darmstadt — Germany) — Ismail Derin v Landkreis Darmstadt-Dieburg

(Case C-325/05) (1)

(EEC-Turkey Association - Article 59 of the Additional Protocol - Articles 6, 7 and 14 of Decision No 1/80 of the Association Council - Right of free access to employment under the second indent of the first paragraph of Article 7 - Corollary right of residence - Turkish national over the age of 21 years who is no longer dependent on his parents - Criminal convictions - Conditions governing the loss of acquired rights - Compatibility with the rule that the Republic of Turkey is not to receive more favourable treatment than that applicable between Member States)

(2007/C 235/07)

Language of the case: German

Referring court

Verwaltungsgericht Darmstadt

Parties to the main proceedings

Applicant: Ismail Derin

Defendant: Landkreis Darmstadt-Dieburg

Re:

Reference for a preliminary ruling — Verwaltungsgericht Darmstadt — Interpretation of the second indent of the first paragraph of Article 7 of Decision No 1/80 of the EEC-Turkey Association Council and of Article 59 of the Additional Protocol relating to the transitional stage provided for in the Agreement establishing an Association between the European Economic Community and Turkey signed on 23 November 1970 (OJ 1973 C 113, p. 17) — No loss of right of free access to any paid employment and of the resulting right of residence for a Turkish national who entered the national territory in order to join his family, in circumstances where he is now over 21 years of age and no longer maintained by his parents — More favourable treatment than that given to nationals of the Member States

Operative part of the judgment

A Turkish national, who was authorised while he was a child to enter the territory of a Member State in order to join his family and who has acquired the right of free access to any paid employment of his choice under the second indent of the first paragraph of Article 7 of Decision No 1/80 of 19 September 1980 on the development of the Association, adopted by the Association Council set up by the Association Agreement between the European Economic Community and Turkey, loses the right of residence in the host Member State which is a corollary of that right of free access only in two situations, that is:

| — | in the circumstances provided for in Article 14(1) of that decision, or |
| --- | --- |

—

in the circumstances provided for in Article 14(1) of that decision, or

| — | if he leaves the territory of the Member State concerned for a significant length of time without legitimate reason, |
| --- | --- |

—

if he leaves the territory of the Member State concerned for a significant length of time without legitimate reason,

even though he is over 21 years of age, is no longer dependent on his parents, but lives independently in the Member State concerned, and was not available to join the labour force for several years because he was during that period serving an unsuspended sentence of imprisonment. Such an interpretation is not inconsistent with the requirements of Article 59 of the Additional Protocol signed at Brussels on 23 November 1970 and concluded, approved and confirmed on behalf of the Community by Council Regulation (EEC) No 2760/72 of 19 December 1972.

---

(1)  OJ C 281, 12.11.2005.

---

| 6.10.2007 | EN | Official Journal of the European Union | C 235/5 |
| --- | --- | --- | --- |

6.10.2007

EN

Official Journal of the European Union

C 235/5

---

Judgment of the Court (Third Chamber) of 18 July 2007 — Industrias Químicas del Vallés, SA v Commission of the European Communities

(Case C-326/05 P) (1)

(Appeal - Non-inclusion of metalaxyl in Annex I to Directive 91/414/EEC - Withdrawal of authorisations for plant protection products containing that active substance - Distortion of the clear sense of the evidence - Manifest error of appraisal)

(2007/C 235/08)

Language of the case: Spanish

Parties

Appellant: Industrias Químicas del Vallés, SA, (represented by: C. Fernández Vicién, I. Moreno-Tapia Rivas and J. Sabater Marotias, abogados)

Other party to the proceedings: Commission of the European Communities (represented by: B. Doherty and S. Pardo Quintillán, Agents)

Re:

Appeal against the judgment of the Court of First Instance (Second Chamber) of 28 June 2005 in Case T-158/03 Industrias Químicas del Vallés v Commission dismissing an action for annulment of Commission Decision 2003/308/EC of 2 May 2003 concerning the non-inclusion of metalaxyl in Annex I to Council Directive 91/414/EEC and the withdrawal of authorisations for plant-protection products containing this active substance (OJ 2003 L 113, p. 8)

Operative part of the judgment

The Court:

| 1) | Sets aside the judgment of the Court of First Instance of the European Communities of 28 June 2005 in Case T-158/03 Industrias Químicas del Vallés v Commission; |
| --- | --- |

1)

Sets aside the judgment of the Court of First Instance of the European Communities of 28 June 2005 in Case T-158/03 Industrias Químicas del Vallés v Commission;

| 2) | Annuls Commission Decision 2003/308/EC of 2 May 2003 concerning the non-inclusion of metalaxyl in Annex I to Council Directive 91/414/EEC and the withdrawal of authorisations for plant-protection products containing this active substance; |
| --- | --- |

2)

Annuls Commission Decision 2003/308/EC of 2 May 2003 concerning the non-inclusion of metalaxyl in Annex I to Council Directive 91/414/EEC and the withdrawal of authorisations for plant-protection products containing this active substance;

| 3) | Orders the Commission of the European Communities to pay the costs of the present proceedings and of the proceedings at first instance, including those relating to the proceedings for interim measures before both the Court of Justice and the Court of First Instance. |
| --- | --- |

3)

Orders the Commission of the European Communities to pay the costs of the present proceedings and of the proceedings at first instance, including those relating to the proceedings for interim measures before both the Court of Justice and the Court of First Instance.

---

(1)  OJ C 271, 29.10.2005.

---

| 6.10.2007 | EN | Official Journal of the European Union | C 235/6 |
| --- | --- | --- | --- |

6.10.2007

EN

Official Journal of the European Union

C 235/6

---

Judgment of the Court (Second Chamber) of 18 July 2007 (reference for a preliminary ruling from the Hof van Cassatie van België — Belgium) — Criminal proceedings against Norma Kraaijenbrink

(Case C-367/05) (1)

(Convention implementing the Schengen Agreement - Article 54 - Ne bis in idem principle - Notion of ‘same acts’ - Different acts - Prosecution in two Contracting States - Acts linked together by the same criminal intention)

(2007/C 235/09)

Language of the case: Dutch

Referring court

Hof van Cassatie van België

Party in the main proceedings

Norma Kraaijenbrink

Re:

Reference for a preliminary ruling — Hof van Cassatie van België — Interpretation of Article 54 of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany, and the French Republic on the gradual abolition of checks at their common borders (OJ 2000 L 239, p. 19) — Ne bis in idem principle — Acts different but sharing a common intention and thus legally constituting a single act — Whether or not these are ‘the same acts’ for the purposes of Article 54 — Discovery, subsequent to conviction in one State, of other acts committed during the same period as the acts sanctioned and committed with the same criminal intention — Right to prosecute these additional acts in another State — Account to be taken of sentences already imposed in the first State

Operative part of the judgment

Article 54 of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, signed on 19 June 1990 in Schengen (Luxembourg), must be interpreted as meaning that:

| — | the relevant criterion for the purposes of the application of that article is identity of the material acts, understood as the existence of a set of facts which are inextricably linked together, irrespective of the legal classification given to them or the legal interest protected; |
| --- | --- |

—

the relevant criterion for the purposes of the application of that article is identity of the material acts, understood as the existence of a set of facts which are inextricably linked together, irrespective of the legal classification given to them or the legal interest protected;

| — | different acts consisting, in particular, first, in holding in one Contracting State the proceeds of drug trafficking and, second, in the exchanging at exchange bureaux in another Contracting State of sums of money also originating from such trafficking should not be regarded as ‘the same acts’ within the meaning of Article 54 of the Convention implementing the Schengen Agreement merely because the competent national court finds that those acts are linked together by the same criminal intention; |
| --- | --- |

—

different acts consisting, in particular, first, in holding in one Contracting State the proceeds of drug trafficking and, second, in the exchanging at exchange bureaux in another Contracting State of sums of money also originating from such trafficking should not be regarded as ‘the same acts’ within the meaning of Article 54 of the Convention implementing the Schengen Agreement merely because the competent national court finds that those acts are linked together by the same criminal intention;

| — | it is for that national court to assess whether the degree of identity and connection between all the facts to be compared is such that it is possible, in the light of the said relevant abovementioned criterion, to find that they are ‘the same acts’ within the meaning of Article 54 of the Convention implementing the Schengen Agreement. |
| --- | --- |

—

it is for that national court to assess whether the degree of identity and connection between all the facts to be compared is such that it is possible, in the light of the said relevant abovementioned criterion, to find that they are ‘the same acts’ within the meaning of Article 54 of the Convention implementing the Schengen Agreement.

---

(1)  OJ C 48, 25.02.2007.

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| 6.10.2007 | EN | Official Journal of the European Union | C 235/7 |
| --- | --- | --- | --- |

6.10.2007

EN

Official Journal of the European Union

C 235/7

---

Judgment of the Court (Second Chamber) of 18 July 2007 — Commission of the European Communities v Italian Republic

(Case C-382/05) (1)

(Failure of a Member State to fulfil obligations - Public service contracts - Directive 92/50/EEC - Agreements concerning the treatment of municipal waste - Classification - Public contract - Service concession - Advertising measures)

(2007/C 235/10)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: A. Aresu and X. Lewis, Agents)

Defendant: Italian Republic (represented by: I.M. Braguglia and G. Fiengo, Agents)

Re:

Failure of a Member State to fulfil its obligations — Infringement of Articles 11, 15 and 17 of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1) — Award of a contract without publication of the appropriate notice — Agreements concluded for the use of the remaining part of municipal waste produced in the municipalities of the Region of Sicily

Operative part of the judgment

The Court:

| 1. | Declares that, owing to the fact that the Presidenza del Consiglio dei Ministri — Dipartimento per la protezione civile — Ufficio del Commissario delegato per l'emergenza rifiuti e la tutela delle acque in Sicilia (i) initiated the procedure for the conclusion of agreements concerning the use of that part of municipal waste produced in the municipalities of the Region of Sicily and remaining after the collection of selected material and (ii) concluded those agreements, without following the procedures laid down by Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, as amended by Commission Directive 2001/78/EC of 13 September 2001, and, in particular, without publishing the appropriate contract notice in the Official Journal of the European Communities, the Italian Republic failed to fulfil its obligations under that directive, in particular under Articles 11, 15 and 17 thereof; |
| --- | --- |

1.

Declares that, owing to the fact that the Presidenza del Consiglio dei Ministri — Dipartimento per la protezione civile — Ufficio del Commissario delegato per l'emergenza rifiuti e la tutela delle acque in Sicilia (i) initiated the procedure for the conclusion of agreements concerning the use of that part of municipal waste produced in the municipalities of the Region of Sicily and remaining after the collection of selected material and (ii) concluded those agreements, without following the procedures laid down by Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, as amended by Commission Directive 2001/78/EC of 13 September 2001, and, in particular, without publishing the appropriate contract notice in the Official Journal of the European Communities, the Italian Republic failed to fulfil its obligations under that directive, in particular under Articles 11, 15 and 17 thereof;

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

2.

Orders the Italian Republic to pay the costs.

---

(1)  OJ C 22, 28.1.2006.

---

| 6.10.2007 | EN | Official Journal of the European Union | C 235/7 |
| --- | --- | --- | --- |

6.10.2007

EN

Official Journal of the European Union

C 235/7

---

Order of the Court (Sixth Chamber) of 24 April 2007 — Castellblanch SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Champagne Louis Roederer SA

(Case C-131/06 P) (1)

(Appeal - Figurative mark CRISTAL CASTELLBLANCH - Refusal of registration)

(2007/C 235/11)

Language of the case: English

Parties

Applicant: Castellblanch SA (represented by: F. de Visscher, E. Cornu, E. De Gryse and D. Moreau, avocats)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: I. de Medrano Caballero, Agent), Champagne Louis Roederer SA (represented by: P. Cousin, avocat)

Re:

Appeal against the judgment of the Court of First Instance (Third Chamber) of 8 December 2005 in Case T-29/04 Castellblanch SA v OHIM in which the Court of First Instance dismissed the action brought by the applicant for the figurative mark ‘CRISTAL CASTELLBLANCH’ for goods in Class 33 for annulment of Decision R 0037/2002-2 of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 17 November 2003 dismissing the appeal brought against the decision of the Opposition Division refusing to register that mark in the context of the opposition brought by the proprietor of national and international word marks containing the word ‘CRISTAL’ for goods in Class 33

Operative part of the order

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

1.

The appeal is dismissed.

| 2. | Castellblanch SA shall pay the costs. |
| --- | --- |

2.

Castellblanch SA shall pay the costs.

---

(1)  OJ C 108, 6.5.2006.

---

| 6.10.2007 | EN | Official Journal of the European Union | C 235/8 |
| --- | --- | --- | --- |

6.10.2007

EN

Official Journal of the European Union

C 235/8

---

Order of the Court of 21 June 2007 — Republic of Finland v Commission of the European Communities

(Case C-163/06 P) (1)

(Appeals - Actions for annulment - Inadmissibility - Act without binding legal effect - Own resources of the European Communities - Infringement proceedings - Article 11 of Regulation (EC, Euratom) No 1150/2000 - Default interest - Negotiation of an agreement concerning a conditional payment - Letters of refusal)

(2007/C 235/12)

Language of the case: Finish

Parties

Applicant: Republic of Finland (represented by: E. Bygglin, Agent)

Other party to the proceedings: Commission of the European Communities (represented by: G. Wilms and P. Aalto, Agents)

Re:

Appeal against the order of the Court of First Instance (Fourth Chamber) of 9 January 2006 in Case T-177/05 Republic of Finland v Commission dismissing as inadmissible the action for annulment of a Commission decision allegedly contained in two letters of the Commission by which it refused to enter into negotiations on the conditional payment of retroactive customs duties claimed by the Commission as own resources of the Community (duties on imports of military equipment)

Operative part of the order

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

1.

The appeal is dismissed.

| 2. | The Republic of Finland is ordered to pay the costs. |
| --- | --- |

2.

The Republic of Finland is ordered to pay the costs.

---

(1)  OJ C 154, 1.7.2006.

---

| 6.10.2007 | EN | Official Journal of the European Union | C 235/8 |
| --- | --- | --- | --- |

6.10.2007

EN

Official Journal of the European Union

C 235/8

---

Reference for a preliminary ruling from the Oberlandesgericht Düsseldorf (Germany) lodged on 27 June 2007 — Hans & Christophorus Oymanns GbR, Orthopädie Schuhtechnik v AOK Rheinland/Hamburg

(Case C-300/07)

(2007/C 235/13)

Language of the case: German

Referring court

Oberlandesgericht Düsseldorf

Parties to the main proceedings

Applicants: Hans & Christophorus Oymanns GbR, Orthopädie Schuhtechnik

Defendant: AOK Rheinland/Hamburg

Questions referred

| 1. | (a) | Is the requirement of ‘financing by the State’ as referred to in the first alternative of letter (c) of the second subparagraph of Article 1(9) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts public supply contracts and public service contracts (1) to be interpreted as including a situation where the State prescribes membership of a sickness insurance fund and the duty to pay contributions — whose amount is dependent on income — to the relevant sickness insurance fund, which sets the contribution rate, but the sickness insurance funds are linked to one another by a system of solidarity-based financing described in greater detail in the grounds hereof and the satisfaction of the liabilities of each individual sickness insurance fund is guaranteed? |
| --- | --- | --- |

1.

(a)

Is the requirement of ‘financing by the State’ as referred to in the first alternative of letter (c) of the second subparagraph of Article 1(9) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts public supply contracts and public service contracts (1) to be interpreted as including a situation where the State prescribes membership of a sickness insurance fund and the duty to pay contributions — whose amount is dependent on income — to the relevant sickness insurance fund, which sets the contribution rate, but the sickness insurance funds are linked to one another by a system of solidarity-based financing described in greater detail in the grounds hereof and the satisfaction of the liabilities of each individual sickness insurance fund is guaranteed?

| (b) | Is the requirement referred to in the second alternative of letter (c) of the second subparagraph of Article 1(9) that the body be ‘subject to management supervision by those bodies’ to be interpreted to the effect that State legal supervision which concerns current or future transactions — with other possible means of State intervention described in the grounds hereof — is sufficient to satisfy that requirement? |
| --- | --- |

(b)

Is the requirement referred to in the second alternative of letter (c) of the second subparagraph of Article 1(9) that the body be ‘subject to management supervision by those bodies’ to be interpreted to the effect that State legal supervision which concerns current or future transactions — with other possible means of State intervention described in the grounds hereof — is sufficient to satisfy that requirement?

| 2. | If the first question — in part (a) or (b) — is answered in the affirmative, are letters (c) and (d) of Article 1(2) of the directive to be interpreted as meaning that the provision of goods which are individually manufactured and tailored, in terms of their form, to meet the needs of the particular customer, and on whose use the individual customer is to be advised, are to be classified as ‘supply contracts’ or as ‘service contracts’? Is only the value of the particular services to be taken into consideration? |
| --- | --- |

2.

If the first question — in part (a) or (b) — is answered in the affirmative, are letters (c) and (d) of Article 1(2) of the directive to be interpreted as meaning that the provision of goods which are individually manufactured and tailored, in terms of their form, to meet the needs of the particular customer, and on whose use the individual customer is to be advised, are to be classified as ‘supply contracts’ or as ‘service contracts’? Is only the value of the particular services to be taken into consideration?

| 3. | If the provision referred to in the second question is to be or could be classified as a ‘service’, is Article 1(4) of the directive — as distinct from a ‘framework agreement’ within the meaning of Article 1(5) of the directive — to be interpreted as meaning that a ‘service concession’ also includes the award of a contract in the form where






  — | the decision on whether and in what cases the contractor is awarded specific contracts is taken not by the contracting authority, but by third parties, |
| --- | --- | --- |

3.

If the provision referred to in the second question is to be or could be classified as a ‘service’, is Article 1(4) of the directive — as distinct from a ‘framework agreement’ within the meaning of Article 1(5) of the directive — to be interpreted as meaning that a ‘service concession’ also includes the award of a contract in the form where

—

the decision on whether and in what cases the contractor is awarded specific contracts is taken not by the contracting authority, but by third parties,

| — | the contractor is paid by the contracting authority because by law only that authority is liable to pay remuneration and is required to provide the service to third parties, and |
| --- | --- |

—

the contractor is paid by the contracting authority because by law only that authority is liable to pay remuneration and is required to provide the service to third parties, and

| — | the contractor does not have to provide, or offer as available, services of any kind prior to their use by the third parties? |
| --- | --- |

—

the contractor does not have to provide, or offer as available, services of any kind prior to their use by the third parties?

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(1)  OJ L 134, p. 114.

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| 6.10.2007 | EN | Official Journal of the European Union | C 235/9 |
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Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia (Italy) lodged on 12 July 2007 — Termoraggi SpA v Comune di Monza and Others

(Case C-323/07)

(2007/C 235/14)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per la Lombardia

Parties to the main proceedings

Applicant: Termoraggi SpA

Defendant: Comune di Monza and Others

Question referred

Is Article 6 of Directive 92/50/EEC (1) of 18 June 1992 to be regarded as applying to the question at issue in the present proceedings, and what interpretation is to be given to that article for the purposes of determining whether the contested measures are compatible with the Community legislation, in the terms stated in the grounds [of the Order]?

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(1)  OJ L 209, 24.7.1992, p. 1.

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| 6.10.2007 | EN | Official Journal of the European Union | C 235/9 |
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Action brought on 18 July 2007 — Commission of the European Communities v Republic of Finland

(Case C-335/07)

(2007/C 235/15)

Language of the case: Finnish

Parties

Applicant: Commission of the European Communities (represented by: I. Koskinen, M. Patakia and S. Pardo Quintillán, acting as Agents)

Defendant: Republic of Finland

Form of order sought

| — | declare that, by failing to require that urban waste water entering collecting systems from all agglomerations of more than 10 000 p.e be subject to more stringent treatment, the Republic of Finland has failed to fulfil its obligations under Article 5(2), (3) and (5) of Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment (1); |
| --- | --- |

—

declare that, by failing to require that urban waste water entering collecting systems from all agglomerations of more than 10 000 p.e be subject to more stringent treatment, the Republic of Finland has failed to fulfil its obligations under Article 5(2), (3) and (5) of Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment (1);

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

—

order the Republic of Finland to pay the costs.

Pleas in law and main arguments

All aquatic environments in Finland must be regarded as ‘sensitive areas’ within the meaning of Directive 91/271/EEC. It follows that the obligation to ensure that all urban waste waters entering collecting systems which originate from agglomerations of more than 10 000 p.e are to be subject to more stringent treatment is applicable to all Finnish territory. Nitrogen is an important factor in eutrophication in parts of Selkämeri and a dominant factor in Saaristomeri and the Gulf of Finland. In the springtime, the capacity to treat nitrogen is reduced in the central area of the Baltic Sea. The eutrophication in those areas is indisputable. A reduction in the nitrogen and phosphorus loads would help to prevent phytoplankton bloom in the spring and summer. The Republic of Finland has infringed Article 5(2), (3) and (5) of Directive 91/271/EEC in that it failed to ensure that all nitrogen was removed from all urban waste water entering collection systems and which originate from agglomerations of more than 10 000 p.e.

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(1)  OJ 1991 L 135, p. 40.

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| 6.10.2007 | EN | Official Journal of the European Union | C 235/10 |
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Reference for a preliminary ruling from the Landgericht Hamburg (Germany) lodged on 30 July 2007 — Turgay Semen v Deutsche Tamoil GmbH

(Case C-348/07)

(2007/C 235/16)

Language of the case: German

Referring court

Landgericht Hamburg

Parties to the main proceedings

Applicant: Turgay Semen

Defendant: Deutsche Tamoil GmbH

Questions referred

| 1. | Is it compatible with Article 17(2)(a) of Council Directive 86/653/EEC (1) of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents to limit the indemnity to which a commercial agent is entitled by the amount of commission lost as a result of the termination of the agency contract, even though the benefits which the principal continues to derive have to be given a higher monetary value? |
| --- | --- |

1.

Is it compatible with Article 17(2)(a) of Council Directive 86/653/EEC (1) of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents to limit the indemnity to which a commercial agent is entitled by the amount of commission lost as a result of the termination of the agency contract, even though the benefits which the principal continues to derive have to be given a higher monetary value?

| 2. | Are benefits accruing to other companies within the group to which the principal belongs also to be taken into consideration for the purposes of the above calculation? |
| --- | --- |

2.

Are benefits accruing to other companies within the group to which the principal belongs also to be taken into consideration for the purposes of the above calculation?

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(1)  OJ L 382, p. 17.

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| 6.10.2007 | EN | Official Journal of the European Union | C 235/10 |
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Reference for a preliminary ruling from the Supremo Tribunal Administrativo lodged on 27 July 2007 — Sopropé — Organizações de Calçado, Lda v Direcção Regional de Contencioso e Controlo Aduaneiro

(Case C-349/07)

(2007/C 235/17)

Language of the case: Portuguese

Referring court

Supremo Tribunal Administrativo

Parties to the main proceedings

Applicant: Sopropé — Organizações de Calçado, Lda

Defendant: Direcção Regional de Contencioso e Controlo Aduaneiro

Question referred

| 1. | Is the period of 8 (eight) to 15 (fifteen) days set by Article 60(6) of the Lei Geral Tributária (General Tax Law) and by Article 60(2) of the Regime Complementar do Procedimento de Inspecção Tributária (Supplementary Rules of Procedure of the Tax Inspectorate), approved by Decree-Law No 413/98 of 31 de December 1998, for the exercise by the taxpayer either orally or in writing of the right to a hearing compatible with the principle of respect for the rights of the defence? |
| --- | --- |

1.

Is the period of 8 (eight) to 15 (fifteen) days set by Article 60(6) of the Lei Geral Tributária (General Tax Law) and by Article 60(2) of the Regime Complementar do Procedimento de Inspecção Tributária (Supplementary Rules of Procedure of the Tax Inspectorate), approved by Decree-Law No 413/98 of 31 de December 1998, for the exercise by the taxpayer either orally or in writing of the right to a hearing compatible with the principle of respect for the rights of the defence?

| 2. | May a period of 13 (thirteen) days, reckoned from the notification made by the customs authority to a Community importer (in this case a small undertaking dealing in footwear) to exercise its right to a prior hearing in 8 (eight) days and the date of notification to pay import duties in 10 (ten) days in relation to 52 imports of footwear from the far east under the GSP made over a period of two-and-a-half years (between 2000 and mid-2002), be considered reasonable for an importer to exercise its rights of defence? |
| --- | --- |

2.

May a period of 13 (thirteen) days, reckoned from the notification made by the customs authority to a Community importer (in this case a small undertaking dealing in footwear) to exercise its right to a prior hearing in 8 (eight) days and the date of notification to pay import duties in 10 (ten) days in relation to 52 imports of footwear from the far east under the GSP made over a period of two-and-a-half years (between 2000 and mid-2002), be considered reasonable for an importer to exercise its rights of defence?

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| 6.10.2007 | EN | Official Journal of the European Union | C 235/10 |
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Action brought on 14 August 2007 — Commission of the European Communities v Kingdom of Belgium

(Case C-392/07)

(2007/C 235/18)

Language of the case: Dutch

Parties

Applicant: Commission of the European Communities (represented by: R. Lyal, acting as Agent)

Defendant: Kingdom of Belgium

Form of order sought

| — | Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2005/19/EC of 17 February 2005 amending Directive 90/434/EEC on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States (1) in so far as it relates to the transfer of the registered office of a European Company (SE) or a European Cooperative Society (SCE) and the inclusion of the SE and the SCE in the list of companies covered by the Directive, or in any event by not communicating such measures to the Commission, the Kingdom of Belgium has failed to fulfil its obligations under that Directive; |
| --- | --- |

—

Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2005/19/EC of 17 February 2005 amending Directive 90/434/EEC on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States (1) in so far as it relates to the transfer of the registered office of a European Company (SE) or a European Cooperative Society (SCE) and the inclusion of the SE and the SCE in the list of companies covered by the Directive, or in any event by not communicating such measures to the Commission, the Kingdom of Belgium has failed to fulfil its obligations under that Directive;

| — | order the Kingdom of Belgium to pay the costs. |
| --- | --- |

—

order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

The period prescribed for transposing into national law the provisions of the Directive regarding the transfer of the registered office of an SE or of an SCE and the entry (a) in the Annex expired on 1 January 2006.

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(1)  OJ 2005 L 58, p. 19.

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| 6.10.2007 | EN | Official Journal of the European Union | C 235/11 |
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Order of the President of the Court of 21 June 2007 — Commission of the European Communities v Grand Duchy of Luxembourg

(Case C-76/07) (1)

(2007/C 235/19)

Language of the case: French

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

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(1)  OJ C 95, 28.4.2007.

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| 6.10.2007 | EN | Official Journal of the European Union | C 235/11 |
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Order of the President of the Court of 25 June 2007 — Commission of the European Communities v Italian Republic

(Case C-104/07) (1)

(2007/C 235/20)

Language of the case: Italian

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

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(1)  OJ C 82, 14.4.2007.

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Court of First Instance

| 6.10.2007 | EN | Official Journal of the European Union | C 235/12 |
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Action brought on 26 July 2007 — Rajani (Dear!Net Online) v OHIM — Artoz-Papier (ATOZ)

(Case T-100/06)

(2007/C 235/21)

Language in which the application was lodged: English

Parties

Applicant: Deepak Rajani (Berlin, Germany) (represented by: A. Dustmann, lawyer)

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

Other party to the proceedings before the Board of Appeal: Artoz-Papier AG (Lenzburg, Switzerland)

Form of order sought

| — | Annulment of the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 11 January 2006 (case R 1126/2004-2) |
| --- | --- |

—

Annulment of the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 11 January 2006 (case R 1126/2004-2)

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: Deepak Rajani

Community trade mark concerned: The Community word mark ‘ATOZ’ for services in classes 35 and 41 — application No 1 319 961

Proprietor of the mark or sign cited in the opposition proceedings: Artoz-Papier AG

Mark or sign cited: The international and national word mark ‘ARTOZ’ for services in classes 35 and 41

Decision of the Opposition Division: Upheld the opposition in its entirety

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: The applicant alleges that the contested decision was rendered in violation of Article 43(2) and (3) of the CTMR insofar as it adopted an undue interpretation of the trademark's registration term. According to the applicant such ultra vires interpretation of Community, national and international laws amounts to a misuse of power. Furthermore, the applicant claims that the Board's decision is in breach of Article 8(1)(b) CTMR. Finally, the applicant contends that both the opposition division and the Board of Appeal have substantially infringed the procedural safeguards of Articles 73 and 79 of the CTMR due to an alleged lack of reasoning and a violation of the right to be heard.

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| 6.10.2007 | EN | Official Journal of the European Union | C 235/12 |
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Action brought on 18 July 2007 — CSL Behring v Commission and EMEA

(Case T-264/07)

(2007/C 235/22)

Language of the case: German

Parties

Applicant: CSL Behring GmbH (Marburg, Federal Republic of Germany) (represented by: Professor C. König and F. Leinen, Rechtsanwalt)

Defendants: Commission of the European Communities and European Medicines Agency (EMEA)

Form of order sought

| — | annul, pursuant to the first paragraph of Article 231 EC, EMEA's decision of 24 May 2007 in the ‘Human Fibrinogen — Application for Orphan Medicinal Product Designation — EMEA/OD/018/07’ case, received by the applicant on 24 May 2007; |
| --- | --- |

—

annul, pursuant to the first paragraph of Article 231 EC, EMEA's decision of 24 May 2007 in the ‘Human Fibrinogen — Application for Orphan Medicinal Product Designation — EMEA/OD/018/07’ case, received by the applicant on 24 May 2007;

| — | order the defendant to pay the costs pursuant to Article 87(2) of the Rules of Procedure of the Court of First Instance. |
| --- | --- |

—

order the defendant to pay the costs pursuant to Article 87(2) of the Rules of Procedure of the Court of First Instance.

Pleas in law and main arguments

The applicant contests EMEA's letter of 24 May 2007. The applicant takes the view that, by that letter, the EMEA refuses in a legally binding manner to continue the procedure for the designation of the applicant's medicinal product as an orphan medicinal product pursuant to Article 5(1) of Regulation (EC) No 141/2000 (1).

The applicant relies on two pleas in law in support of its action.

The applicant submits, first, that an interpretation of Article 5(1) of Regulation No 141/2000 to the effect that the application for designation of a medicinal product as an orphan medicinal product must be submitted before the application for marketing authorisation for that medicinal product is incorrect. That provision was therefore applied incorrectly.

Second, the applicant asserts that Article 5(1) of Regulation No 141/2000 is contrary to primary law and should be declared inapplicable pursuant to Article 241 EC in the event that it is to be interpreted as meaning that the application for designation of a medicinal product as an orphan medicinal product must be submitted before the application for marketing authorisation for that medicinal product. In that connection, it is submitted that that interpretation infringes the fundamental Community law principles of freedom to enjoy property rights and pursue a trade or profession, the principle of equal treatment and the principle of good faith.

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(1)  Regulation (EC) No 141/2000 of the European Parliament and of the Council of 16 December 1999 on orphan medicinal products (OJ 2000 L 18, p. 1).

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| 6.10.2007 | EN | Official Journal of the European Union | C 235/13 |
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Action brought on 16 July 2007 — Torres v OHIM — Vinícola de Tomelloso (TORREGAZATE)

(Case T-273/07)

(2007/C 235/23)

Language in which the application was lodged: Spanish

Parties

Applicant: Miguel Torres, SA (Barcelona, Spain) (represented by: E. Armijo Chávarri, M. Baz de San Ceferino and A. Castán Pérez-Gómez, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Vinícola de Tomelloso S.C.L.

Form of order sought

| — | annul the decision of the Second Board of Appeal of the OHIM of 2 May 2007 in case No R 610/2006-2 and order the OHIM to pay the costs. |
| --- | --- |

—

annul the decision of the Second Board of Appeal of the OHIM of 2 May 2007 in case No R 610/2006-2 and order the OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Vinícola de Tomelloso S.C.L.

Community trade mark concerned: the word mark ‘TORREGAZATE’ (application No 3.134.665) for products in class 33 (wines, spirits and liqueurs).

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

Mark or sign cited in opposition: the various national word marks ‘TORRES’ for products in class 33 and other Community, international and national word and figurative marks which consist of or include the term ‘TORRES’ and cover the same products as the former.

Decision of the Opposition Division: opposition dismissed.

Decision of the Board of Appeal: appeal dismissed.

Pleas in law: incorrect application of Article 8(1)(b) of Regulation (EC) No 40/94 on the Community trade mark.

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| 6.10.2007 | EN | Official Journal of the European Union | C 235/13 |
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Action brought on 18 July 2007 — Ebro Puleva v OHIM — Berenguel (BRILLO'S)

(Case T-275/07)

(2007/C 235/24)

Language in which the application was lodged: Spanish

Parties

Applicant: Ebro Puleva, SA (Madrid, Spain) (represented by: P. Casamitjana Lleonart, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Luis Berenguel, S.L.

Form of order sought

| — | annul the decision of the Second Board of Appeal of the OHIM of 21 May 2007 in case No R 493/2006-2 (concerning opposition proceedings No B 705 790). |
| --- | --- |

—

annul the decision of the Second Board of Appeal of the OHIM of 21 May 2007 in case No R 493/2006-2 (concerning opposition proceedings No B 705 790).

Pleas in law and main arguments

Applicant for a Community trade mark: LUIS BERENGUEL, S.L.

Community trade mark concerned: the word mark ‘BRILLO'S’ for goods in classes 29, 30 and 31 (application No 2.984.995).

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

Mark or sign cited in opposition: the Spanish figurative mark ‘brillante’ (mark No 922.772) for products in class 30 and the Spanish figurative mark ‘brillante’ (mark No 2.413.459) for goods in class 29.

Decision of the Opposition Division: opposition dismissed.

Decision of the Board of Appeal: appeal dismissed.

Pleas in law: incorrect application of Article 8(1)(b) of Regulation (EC) No 40/94 on the Community trade mark (1), inasmuch as it found that the signs in conflict are phonetically, conceptually and visually different.

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

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| 6.10.2007 | EN | Official Journal of the European Union | C 235/14 |
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Action brought on 20 July 2007 — Secure Computing v OHIM — Investronica (SECUREOS)

(Case T-277/07)

(2007/C 235/25)

Language in which the application was lodged: German

Parties

Applicant: Secure Computing Corporation (Minnesota, United States) (represented by: H. P. Kunz-Hallstein and R. Kunz-Hallstein, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Investronica, SA

Form of order sought

| — | annul the decision of the First Board of Appeal of OHIM of 25 April 2007 in Case R 1063/2006-1; |
| --- | --- |

—

annul the decision of the First Board of Appeal of OHIM of 25 April 2007 in Case R 1063/2006-1;

| — | 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: The applicant.

Community trade mark concerned: The word mark ‘SECUREOS’ for goods in Class 9 (Application No 2 659 944).

Proprietor of the mark or sign cited in the opposition proceedings: Investronica, S.A.

Mark or sign cited in opposition: The word mark ‘SECUREURO’ (Community trade mark No 2 126 290) for goods and services in Classes 7, 9, 16, 35, 36, 37 and 42 and the figurative mark ‘secureuro’ (Community trade mark No 2 418 135) for goods and services in Classes 7, 9, 16, 35 and 36.

Decision of the Opposition Division: Grant of the opposition and rejection of the application.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law: Infringement of Article 8(1), Article 73 and Article 74(1), in fine, of Regulation (EC) No 40/94 (1).

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

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| 6.10.2007 | EN | Official Journal of the European Union | C 235/14 |
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Action brought on 18 July 2007 — Sepracor v OHIM — Laboratorios Ern (LEVENIA)

(Case T-280/07)

(2007/C 235/26)

Language in which the application was lodged: English

Parties

Applicant: Sepracor, Inc. (Malborough, United States) (represented by: E. De Gryse, E. Cornu, D. Moreau, lawyers)

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

Other party to the proceedings before the Board of Appeal: Laboratorios Ern, SA (Barcelona, Spain)

Form of order sought

| — | Annul the decision of the First Board of Appeal of the Office of Harmonisation in the Internal Market of 18 April 2007 in Case R 155/2006-1; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office of Harmonisation in the Internal Market of 18 April 2007 in Case R 155/2006-1;

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

—

order the Office to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: Sepracor, Inc.

Community trade mark concerned: The Community word mark ‘LEVENIA’ for goods in class 5 — application No 2 563 799

Proprietor of the mark or sign cited in the opposition proceedings: Laboratorios Ern, SA

Mark or sign cited: The national word mark ‘LEVELINA’ for goods in classes 1 and 5

Decision of the Opposition Division: Rejected the opposition in its entirety

Decision of the Board of Appeal: Upheld the appeal

Pleas in law: The applicant claims that the contested decision infringes Article 43 CTMR and Rule 22 CTMIR since the justification of the First Board of Appeal, which held that the non-use of the national trademark ‘LEVELINA’ was justified for a certain type of pharmaceutical products and preparations, cannot constitute a ‘proper reason’ for non-use in the sense of Article 43(2) CTMR. Moreover, the applicant contends that even if the Court were to consider that the finding of the Board was correct and that non-use was sufficiently justified, the contested decision allegedly infringes Article 8(1)(b) CTMR.

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| 6.10.2007 | EN | Official Journal of the European Union | C 235/15 |
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Action brought on 23 July 2007 — ecoblue v OHIM — BBVA (Ecoblue)

(Case T-281/07)

(2007/C 235/27)

Language in which the application was lodged: German

Parties

Applicant: ecoblue AG (Munich, Germany) (represented by: C. Osterrieth and T. Schmitz, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Banco Bilbao Vizcaya Argentaria, SA

Form of order sought

| — | annul the decision of the First Board of Appeal of OHIM of 25 April 2007 in Case No R 844/2006-1; |
| --- | --- |

—

annul the decision of the First Board of Appeal of OHIM of 25 April 2007 in Case No R 844/2006-1;

| — | reject the opposition filed by Banco Bilbao Vizcaya Argentaria, S.A. against the ‘Ecoblue’ word mark applied for; |
| --- | --- |

—

reject the opposition filed by Banco Bilbao Vizcaya Argentaria, S.A. against the ‘Ecoblue’ word mark applied for;

| — | 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: The applicant.

Community trade mark concerned: The word mark ‘Ecoblue’ for services in Classes 35, 36 and 38 (application No 2 871 598).

Proprietor of the mark or sign cited in the opposition proceedings: Banco Bilbao Vizcaya Argentaria, SA.

Mark or sign cited in opposition: The word marks ‘BLUE’ (Community trade mark No 1 345 974), ‘BLUE JOVEN’ (Community trade mark No 2 065 100), ‘BLUE BBVA’ (Community trade mark No 2 065 621), ‘TARJETA BLUE BBVA’ (Community trade mark No 2 277 291), ‘QNTAME BLUE’ (Community trade mark No 2 391 878), ‘HIPOTECA BLUE’ (Community trade mark No 2 392 181), ‘HIPOTECA BLUE JOVEN’ (Community trade mark No 2 794 998) and ‘MOTOR BLUE JOVEN’ (Community trade mark No 3 060 878).

Decision of the Opposition Division: Opposition upheld and application for registration rejected.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 40/94 (1), since the opposing marks are not similar and there is therefore no likelihood of confusion.

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

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| 6.10.2007 | EN | Official Journal of the European Union | C 235/15 |
| --- | --- | --- | --- |

6.10.2007

EN

Official Journal of the European Union

C 235/15

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Action brought on 24 July 2007 — Tailor v OHIM (Gesäßtasche links)

(Case T-282/07)

(2007/C 235/28)

Language of the case: German

Parties

Applicant: Tom Tailor GmbH (Hamburg, Germany) (represented by: S.O. Gillert, K. Vanden Bossche and F. Schiwek, 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 15 May 2007 (Case R 669/2006-1); |
| --- | --- |

—

annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 May 2007 (Case R 669/2006-1);

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The figurative mark ‘Gesäßtasche links’ for goods in Class 25 (Application No 4 287 751).

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) of Regulation (EC) No 40/94 (1), as the figurative mark applied for is sufficiently distinctive.

---

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

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| 6.10.2007 | EN | Official Journal of the European Union | C 235/16 |
| --- | --- | --- | --- |

6.10.2007

EN

Official Journal of the European Union

C 235/16

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Action brought on 24 July 2007 — Tom Tailor v OHIM (Gesäßtasche rechts)

(Case T-283/07)

(2007/C 235/29)

Language of the case: German

Parties

Applicant: Tom Tailor GmbH (Hamburg, Germany) (represented by: S.O. Gillert, K. Vanden Bossche and F. Schiwek)

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 15 May 2007 (Case R 668/2006-1); |
| --- | --- |

—

annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 May 2007 (Case R 668/2006-1);

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The figurative mark ‘Gesäßtasche rechts’ for goods in Class 25 (Application No 4 287 769).

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) of Regulation (EC) No 40/94 (1), as the figurative mark applied for is sufficiently distinctive.

---

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

---

| 6.10.2007 | EN | Official Journal of the European Union | C 235/16 |
| --- | --- | --- | --- |

6.10.2007

EN

Official Journal of the European Union

C 235/16

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Action brought on 24 July 2007 — Torres v OHIM — Torres de Anguix (TORRES de ANGUIX)

(Case T-286/07)

(2007/C 235/30)

Language in which the application was lodged: Spanish

Parties

Applicant: Miguel Torres, S.A. (Barcelona, Spain) (represented by: E Armijo Chávarri, M. Baz de San Ceferino and A. Castán Pérez-Gómez, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Torres de Anguix, S.L.

Form of order sought

| — | Annul the decision of the Second Board of Appeal of OHIM of 2 May 2007 in the case No R 707/2006-2; |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of OHIM of 2 May 2007 in the case No R 707/2006-2;

| — | Order expressly that OHIM pay the costs. |
| --- | --- |

—

Order expressly that OHIM pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: TORRES DE ANGUIX S.L.

Community trade mark concerned: Figurative mark ‘TORRES de ANGUIX’ for goods and services in Classes 33, 35and 39 (application No 3283652)

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

Mark or sign cited in opposition: Word mark ‘TORRES’ (Community trade mark No 1752526) for goods in class 33 and various other Community, national and international trade marks which include the word ‘TORRES’ alone or accompanied by other words or graphics.

Decision of the Opposition Division: Opposition upheld and application for registration of the mark applied for refused.

Decision of the Board of Appeal: Appeal upheld and decision under appeal which refused the mark applied for annulled.

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 40/94 (1) given that there is a likelihood of confusion of the conflicting marks.

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

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| 6.10.2007 | EN | Official Journal of the European Union | C 235/17 |
| --- | --- | --- | --- |

6.10.2007

EN

Official Journal of the European Union

C 235/17

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Action brought on 30 July 2007 — Alcan France v Commission

(Case T-288/07)

(2007/C 235/31)

Language of the case: French

Parties

Applicant: Alcan France SAS (Paris, France) (represented by: M. Thill-Tayara, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul the contested decision of the Commission and find that the measure in dispute does not constitute State aid or, in the alternative, find that that aid may not be recovered since the Commission infringed the principle of legitimate expectations and did not order that the aid be recovered within a reasonable time limit; |
| --- | --- |

—

Annul the contested decision of the Commission and find that the measure in dispute does not constitute State aid or, in the alternative, find that that aid may not be recovered since the Commission infringed the principle of legitimate expectations and did not order that the aid be recovered within a reasonable time limit;

| — | Annul Article 1 of the contested decision classing the contested measure as aid; |
| --- | --- |

—

Annul Article 1 of the contested decision classing the contested measure as aid;

| — | Annul Articles 2 and 3 of the contested decision classing the aid measure as incompatible; |
| --- | --- |

—

Annul Articles 2 and 3 of the contested decision classing the aid measure as incompatible;

| — | Annul Articles 4 to 6 of the contested decision ordering recovery of the aid; |
| --- | --- |

—

Annul Articles 4 to 6 of the contested decision ordering recovery of the aid;

| — | Order the Commission to pay the applicant the expenses and costs resulting from the contested decision. |
| --- | --- |

—

Order the Commission to pay the applicant the expenses and costs resulting from the contested decision.

Pleas in law and main arguments

By decision of 30 June 1997, adopted following a proposal from the Commission and in accordance with the procedure laid down in Council Directive 92/81/EEC (1), the Council authorised the Member States to apply or to continue to apply the existing reduced rates of excise duty or exemptions from excise duty to certain mineral oils when used for specific purposes. By four subsequent decisions, the Council extended that authorisation, the final authorisation period expiring on 31 December 2006. France was authorised to apply those reduced rates or exemptions to heavy fuel oil used as fuel for the production of alumina in the Gardanne region.

In a letter of 30 December 2001, the Commission notified France of its decision to initiate proceedings under Article 88(2) of the EC Treaty relating to the exemption from excise duty on mineral oils used as fuel for alumina production in the Gardanne region (2). On 7 December 2005, in consequence of this procedure, the Commission adopted Decision 2006/323/EC finding that exemptions from excise duty on mineral oils used as fuel for alumina production in the Gardanne region, the Shannon region and Sardinia, implemented by France, Ireland and Italy respectively, constituted State aid within the meaning of Article 87(1) EC that is in part incompatible with the common market, and thus ordered the Member States concerned to recover all such aid (3).

The Commission decided to extend the formal investigation procedure regarding the exemption from excise duty on heavy mineral oils used for alumina production for the period commencing 1 January 2004. After giving the Member States and the third parties concerned the opportunity to submit their observations on that matter, the Commission adopted Decision C (2007) 286 final of 7 February 2007 concerning the exemption from excise duty on mineral oils used as fuel for alumina production in the Gardanne region, the Shannon region and Sardinia, applied by France, Ireland and Italy respectively (State aid No C 78-79-80/2001). That is the decision which is contested in the present action.

In support of its action the applicant claims, at the outset, that the decision is invalid as a result of a formal defect in that France was not given notice to submit its comments pursuant to Article 88 EC, since the second procedure for the period after 2004 was opened, in its view, on the basis of recitals in the preamble to the decision of 7 December 2005.

As regards the merits the applicant relies on two pleas in support of its action for annulment.

By its first plea it submits that the Commission found there to be State aid in infringement of Articles 87 and 88 EC both at the stage of classifying the use of the aid and at the stage of examining its compatibility. In addition, in the context of that plea, it alleges that the Commission infringed Article 1(c) of Regulation No 659/1999 (4) and erroneously applied the criterion of selectivity of the aid. It also claims that the grounds of the contested decision are contradictory and insufficient and thus infringe Article 253 EC. Moreover, the applicant submits that the Commission based its finding that the aid was incompatible on the wrong legal basis since, in its view, the conditions for the applicability of the Community guidelines on State aid for environmental protection (5) were not met.

In the alternative, the applicant claims by its second plea that the recovery of the aid ordered by the Commission infringes the principles of legitimate expectation and legal certainty.

---

(1)  Council Directive of 19 October 1992 on the harmonisation of the structures of excise duties on mineral oils.

(2)  Published in OJ 2002 C 30.

(3)  Decision C(2005) 4436 final, State aid Nos C 78-79-80/2001, OJ 2006 L 119, p. 12.

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

(5)  Community guidelines on State aid for environmental protection (OJ 2001 C 37, p. 3).

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| 6.10.2007 | EN | Official Journal of the European Union | C 235/18 |
| --- | --- | --- | --- |

6.10.2007

EN

Official Journal of the European Union

C 235/18

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Action brought on 30 July 2007 — Caisse Nationale des Caisses d'Épargne et de Prévoyance v Commission

(Case T-289/07)

(2007/C 235/32)

Language of the case: French

Parties

Applicant: Caisse Nationale des Caisses d'Épargne et de Prévoyance (CNCEP) (Paris, France) (represented by: F. Sureau, D. Théophile and É. Renaudeau, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Annulment of Commission Decision C(2007) 2110 final of 10 May 2007 pursuant to Article 86(3) of the EC Treaty on the special rights granted to La Banque Postale, Caisses d'Épargne and Crédit Mutuel for the distribution of the livret A and livret bleu; |
| --- | --- |

—

Annulment of Commission Decision C(2007) 2110 final of 10 May 2007 pursuant to Article 86(3) of the EC Treaty on the special rights granted to La Banque Postale, Caisses d'Épargne and Crédit Mutuel for the distribution of the livret A and livret bleu;

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

—

Order the Commission to pay the costs.

Pleas in law and main arguments

By this action, the applicant seeks annulment of Commission Decision C(2007) 2110 final of 10 May 2007 declaring the provisions of the French Code Monétaire et Financier which give three credit institutions, La Banque Postale, Caisses d'Épargne et de Prévoyance and Crédit Mutuel, special rights for the distribution of the livret A and livret bleu to be incompatible with Article 86(1) EC in conjunction with Articles 43 EC and 49 EC.

In support of its action, the applicant raises six pleas in law.

The first plea alleges infringement of essential procedural requirements in that the Commission did not respect the applicant's rights of the defence and in that the decision is vitiated by a lack of reasoning.

On the substance, the applicant alleges that the Commission erred in law in taking the view that the special rights for the distribution of the livret A and livret bleu constituted, per se, a restriction on the freedom of establishment. According to the applicant, the Commission committed an error of assessment in taking the view that those special rights, in practice, rendered the exercise of Community freedoms in France less attractive.

Furthermore, the applicant alleges that the contested decision is vitiated by errors of law and of assessment in that the Commission took the view that the special rights could not be justified under Article 86(2) EC, and by a error of assessment in that it took the view that they could not be justified on grounds of compelling reasons in the public interest.

Finally, the applicant submits that the Commission erred by evaluating the national measure at issue in the light of the principle of the freedom to supply services.

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| 6.10.2007 | EN | Official Journal of the European Union | C 235/18 |
| --- | --- | --- | --- |

6.10.2007

EN

Official Journal of the European Union

C 235/18

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Action brought on 31 July 2007 — MIP Metro v OHIM — Metronia (METRONIA)

(Case T-290/07)

(2007/C 235/33)

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, lawyer)

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

Other party to the proceedings before the Board of Appeal: Metronia, S. A. (Madrid, Spain)

Form of order sought

| — | Annul the decision of the Second Board of Appeal of the OHIM of 29 May 2007 in Case R 1315/2006-2 as far as the appeal has been dismissed on the ground that it does not comply with Article 8(1)(b) of Regulation No 40/94; |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of the OHIM of 29 May 2007 in Case R 1315/2006-2 as far as the appeal has been dismissed on the ground that it does not comply with Article 8(1)(b) of Regulation No 40/94;

| — | order the defendant to pay the costs, including the costs of the opposition and appeal proceedings. |
| --- | --- |

—

order the defendant to pay the costs, including the costs of the opposition and appeal proceedings.

Pleas in law and main arguments

Applicant for the Community trade mark: Metronia, S.A.

Community trade mark concerned: The figurative Community trade mark ‘METRONIA’ for goods in class 9 and goods and services in classes 20, 28 and 41 — application No 3 387 834

Proprietor of the mark or sign cited in the opposition proceedings: MIP Metro Group Intellectual Property GmbH & Co. KG

Mark or sign cited: The national figurative trade mark ‘METRO’ for goods and services in classes 9, 20, 28 and 41, among others

Decision of the Opposition Division: Upheld the opposition and rejected the application in its entirety

Decision of the Board of Appeal: Dismissed the opposition and allowed the application to proceed

Pleas in law: Infringement of Article 8(1)(b) CTMR

The applicant claims that the contested decision is inconsistent with Article 8(1)(b) CTMR insofar as the Board held there was no likelihood of confusion between the conflicting marks, due to a lack of similarity of the signs concerned.

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| 6.10.2007 | EN | Official Journal of the European Union | C 235/19 |
| --- | --- | --- | --- |

6.10.2007

EN

Official Journal of the European Union

C 235/19

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Action brought on 1 August 2007 — Viñedos y Bodegas Príncipe Alfonso de Hohenlohe v OHIM — Byass (ALFONSO)

(Case T-291/07)

(2007/C 235/34)

Language in which the application was lodged: Spanish

Parties

Applicant: Viñedos y Bodegas Príncipe Alfonso de Hohenlohe (Cenicero, Spain) (represented by: M Lobato García-Miján and B. Díaz de Escauriaza, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: González Byass, S. A.

Form of order sought

| — | Annul the decision of the Second Board of Appeal of the Office of 29 May 2007 upholding the appeal brought by GONZÁLEZ BYASS, S.A. against the decision of the Opposition Division of 6 July 2007 which upheld the opposition filed by the applicant against the application for the Community trade mark ALFONSO; |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of the Office of 29 May 2007 upholding the appeal brought by GONZÁLEZ BYASS, S.A. against the decision of the Opposition Division of 6 July 2007 which upheld the opposition filed by the applicant against the application for the Community trade mark ALFONSO;

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

—

Order the Office to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: GONZÁLEZ BYASS, S.A.

Community trade mark concerned: Word mark ‘ALFONSO’ (application for registration No 3398278) for goods in Classes 30 (vinegars), 32 (beers, mineral and aerated waters and other non-alcoholic drinks, fruit drinks and fruit juices, syrups and other preparations for making beverages) and 33 (sherries).

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

Mark or sign cited in opposition: Community and national word marks ‘PRÍNCIPE ALFONSO’, for goods in Class 33.

Decision of the Opposition Division: Opposition in relation to ‘sherries’ upheld and application for registration for those goods refused.

Decision of the Board of Appeal: Appeal upheld and decision appealed annulled.

Pleas in law: Incorrect application of Article 8(1)(b) of Regulation (EC) No 40/94 (1) on the Community trade mark.

---

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

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| 6.10.2007 | EN | Official Journal of the European Union | C 235/19 |
| --- | --- | --- | --- |

6.10.2007

EN

Official Journal of the European Union

C 235/19

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Action brought on 27 July 2007 — Stepek v OHIM — Masters Golf Company (GOLF-FASHION MASTERS THE CHOICE TO WIN)

(Case T-294/07)

(2007/C 235/35)

Language in which the application was lodged: German

Parties

Applicant: Wilhelm Stepek (Stadl-Paura, Austria) (represented by: H. Heigl, W. Berger and G. Lehner, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: The Masters Golf Company Ltd.

Form of order sought

| — | acknowledgement that the First Board of Appeal of the Office for Harmonisation in the Internal Market was wrong to adopt the decision of 23 May 2007 in Case R 95/2007-1; |
| --- | --- |

—

acknowledgement that the First Board of Appeal of the Office for Harmonisation in the Internal Market was wrong to adopt the decision of 23 May 2007 in Case R 95/2007-1;

| — | annulment of the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 23 May 2007 in Case R 95/2007-1; |
| --- | --- |

—

annulment of the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 23 May 2007 in Case R 95/2007-1;

| — | an order that The Masters Golf Company Ltd pays the applicant the costs of the proceedings. |
| --- | --- |

—

an order that The Masters Golf Company Ltd pays the applicant the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: Wilhelm Stepek.

Community trade mark concerned: The figurative mark ‘GOLF-FASHION MASTERS THE CHOICE TO WIN’ for goods in Classes 3, 9, 12, 18, 24, 25 and 28 (application No 3 136 041).

Proprietor of the mark or sign cited in the opposition proceedings: The Masters Golf Company Ltd.

Mark or sign cited in opposition: The national figurative mark ‘The Masters’ for goods in Class 25 and the figurative mark ‘The Masters GOLF COMPANY’ (Community trade mark No 1 582 535) for goods in Classes 12, 25 and 28.

Decision of the Opposition Division: Opposition upheld and application for registration in respect of goods in Classes 12, 25 and 28 rejected.

Decision of the Board of Appeal: Termination of proceedings and declaration that the appeal is inadmissible.

Pleas in law: The applicant claims that the finding that the appeal is inadmissible is unlawful and seeks an award of costs against The Masters Golf Company Ltd.

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| 6.10.2007 | EN | Official Journal of the European Union | C 235/20 |
| --- | --- | --- | --- |

6.10.2007

EN

Official Journal of the European Union

C 235/20

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Action brought on 3 August 2007 — Vitro Corporativo, S.A. de C.V. v OHIM — VKR Holding (Vitro)

(Case T-295/07)

(2007/C 235/36)

Language in which the application was lodged: Spanish

Parties

Applicant: Vitro Corporativo, S.A. de C.V. (Nuevo Leon, Mexico) (represented by: J. Botella Reyna, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: VKR Holding A/S

Form of order sought

| — | Permit registration of the Community trade mark No 2669497 for goods in Class 19. |
| --- | --- |

—

Permit registration of the Community trade mark No 2669497 for goods in Class 19.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: Word mark ‘Vitro’ for goods and services in the Classes 1, 7, 8, 9, 12, 16, 17, 19, 20, 21, 22, 27, 30, 35, 39, 40, 41, 42 and 43 (application No 2669497).

Proprietor of the mark or sign cited in the opposition proceedings: VKR Holding A/S

Mark or sign cited in opposition: Word marks ‘Vitral’: Community (No 651745); Danish (No 1956 1415 VR); German (No 725452); and British (No 1436897), for goods, inter alia, in Class 19, to which opposition was directed.

Decision of the Opposition Division: Opposition upheld and application for goods in Class 19 refused.

Decision of the Board of Appeal: Appeal refused.

Pleas in law: Incorrect application of Article 8(1)(b) of Regulation (EC) No 40/94 (1) given that the conflicting signs are phonetically and graphically distinct.

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

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| 6.10.2007 | EN | Official Journal of the European Union | C 235/20 |
| --- | --- | --- | --- |

6.10.2007

EN

Official Journal of the European Union

C 235/20

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Action brought on 6 August 2007 — Korsch v OHIM (PharmaCheck)

(Case T-296/07)

(2007/C 235/37)

Language of the case: German

Parties

Applicant: Korsch AG (Berlin, Germany) (represented by J. Grzam, 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 5 June 2007 (Case R 358/2007-4) concerning the word mark No 5 310 214 ‘PharmaCheck’; |
| --- | --- |

—

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 5 June 2007 (Case R 358/2007-4) concerning the word mark No 5 310 214 ‘PharmaCheck’;

| — | order the defendant to pay the costs of the appeal proceedings and the proceedings before the Board of Appeal. |
| --- | --- |

—

order the defendant to pay the costs of the appeal proceedings and the proceedings before the Board of Appeal.

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘PharmaCheck’ for goods in Class 9 (Application No 5 310 214).

Decision of the Examiner: Rejection of the registration.

Decision of the Board of Appeal: Rejection of the appeal.

Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation (EC) No 40/94 (1).

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(1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ L 11, 14.1.1994, p. 1).

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| 6.10.2007 | EN | Official Journal of the European Union | C 235/21 |
| --- | --- | --- | --- |

6.10.2007

EN

Official Journal of the European Union

C 235/21

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Action brought on 1 August 2007 — TridonicAtco v OHIM (Intelligent Voltage Guard)

(Case T-297/07)

(2007/C 235/38)

Language of the case: German

Parties

Applicant: TridonicAtco GmbH & Co KG (Dornbirn, Austria) (represented by L. Wiltschek, lawyer)

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

Form of order sought

| — | Amend the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 31 May 2007 (Case R 108/2007-2) to the effect that the international word and figurative mark No 874 778 ‘Intelligent Voltage Guard’ is registered for protection in the European Community; |
| --- | --- |

—

Amend the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 31 May 2007 (Case R 108/2007-2) to the effect that the international word and figurative mark No 874 778 ‘Intelligent Voltage Guard’ is registered for protection in the European Community;

| — | in the alternative, annul the contested decision and refer the case back to OHIM; |
| --- | --- |

—

in the alternative, annul the contested decision and refer the case back to OHIM;

| — | order OHIM to pay the costs of the appeal proceedings and the proceedings before the Court of First Instance. |
| --- | --- |

—

order OHIM to pay the costs of the appeal proceedings and the proceedings before the Court of First Instance.

Pleas in law and main arguments

Community trade mark concerned: The figurative mark ‘Intelligent Voltage Guard’ for goods in Classes 9 and 11 (international registration No W 874 778)

Decision of the Examiner: Rejection of the registration

Decision of the Board of Appeal: Rejection of the appeal

Pleas in law: Infringement of Article 7(1)(b) of Regulation (EC) No 40/94 (1), on the basis that the trade mark ‘Intelligent Voltage Guard’ has a distinctive character.

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(1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ L 11, 14.1.1994, p. 1).

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| 6.10.2007 | EN | Official Journal of the European Union | C 235/21 |
| --- | --- | --- | --- |

6.10.2007

EN

Official Journal of the European Union

C 235/21

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Action brought on 2 August 2007 — Italy v Commission

(Case T-298/07)

(2007/C 235/39)

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: P. Gentili, Avvocato dello Stato)

Defendant: Commission of the European Communities

Form of order sought

| — | annul Memorandum No 04980 of 22 May 2007 of the European Commission, Directorate General for Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands, concerning payments made by the Commission which differ from the amount requested; Ref. DOCUP Ob. 2 ‘Lazio’ 2000-2006 (No CCI 2000 IT 16 2DO 009); |
| --- | --- |

—

annul Memorandum No 04980 of 22 May 2007 of the European Commission, Directorate General for Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands, concerning payments made by the Commission which differ from the amount requested; Ref. DOCUP Ob. 2 ‘Lazio’ 2000-2006 (No CCI 2000 IT 16 2DO 009);

| — | annul Memorandum No 05108 of 25 May 2007 of the European Commission, Directorate General for Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands, concerning certification of the intermediate statement of expenses and claim for payment; Ref. DOCUP Veneto Ob. 2 2000-2006 (No CCI 2000 IT 16 2DO 005); |
| --- | --- |

—

annul Memorandum No 05108 of 25 May 2007 of the European Commission, Directorate General for Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands, concerning certification of the intermediate statement of expenses and claim for payment; Ref. DOCUP Veneto Ob. 2 2000-2006 (No CCI 2000 IT 16 2DO 005);

| — | annul Memorandum No 05452 of 4 June 2007 of the European Commission, Directorate General for Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands, concerning payments made by the Commission which differ from the amount requested; Ref. DOCUP Piemonte 2000-2006 (No CCI 2000 IT 16 2DO 007); |
| --- | --- |

—

annul Memorandum No 05452 of 4 June 2007 of the European Commission, Directorate General for Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands, concerning payments made by the Commission which differ from the amount requested; Ref. DOCUP Piemonte 2000-2006 (No CCI 2000 IT 16 2DO 007);

| — | annul Memorandum No 05665 of 8 June 2007 of the European Commission, Directorate General for Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands, concerning payments made by the Commission which differ from the amount requested; Ref. Regional operational programme ‘Campania’ 2000-2006 (No CCI 1999 IT 16 1PO 007); |
| --- | --- |

—

annul Memorandum No 05665 of 8 June 2007 of the European Commission, Directorate General for Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands, concerning payments made by the Commission which differ from the amount requested; Ref. Regional operational programme ‘Campania’ 2000-2006 (No CCI 1999 IT 16 1PO 007);

| — | annul all connected and prior acts and, consequently, order the Commission of the European Communities to pay the costs. |
| --- | --- |

—

annul all connected and prior acts and, consequently, order the Commission of the European Communities to pay the costs.

Pleas in law and main arguments

The pleas in law and main arguments are the same as those relied on in Case T-345/04 Italian Republic v Commission
   (1).

---

(1)  OJ C 262, 23.10.2004, p. 55.

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| 6.10.2007 | EN | Official Journal of the European Union | C 235/22 |
| --- | --- | --- | --- |

6.10.2007

EN

Official Journal of the European Union

C 235/22

---

Action brought on 31 July 2007 — Evropaïki Dynamiki v Commission

(Case T-300/07)

(2007/C 235/40)

Language of the case: English

Parties

Applicant: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (Athens, Greece) (represented by: N. Korogiannakis, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul the Commission's decision of the Direction General for Informatics to reject the bid of the applicant, filed in response to the open Call for Tender ENTR/05/078 — YOUR EUROPE Lot 1 (Editorial Work and Translations) for ‘Your Europe Portal Management and Maintenance’ (OJ 2006/S 143-153057) communicated to the applicant by letter dated 21 May 2007 (‘the decision on Lot 1’) and to award the contracts to the successful contractor, |
| --- | --- |

—

Annul the Commission's decision of the Direction General for Informatics to reject the bid of the applicant, filed in response to the open Call for Tender ENTR/05/078 — YOUR EUROPE Lot 1 (Editorial Work and Translations) for ‘Your Europe Portal Management and Maintenance’ (OJ 2006/S 143-153057) communicated to the applicant by letter dated 21 May 2007 (‘the decision on Lot 1’) and to award the contracts to the successful contractor,

| — | annul the Commission's decision (DIGIT) to reject the bid of the applicant filed in response to the open Call for Tender ENTR/05/078 — YOUR EUROPE Lot 2 (Infrastructure Management) for ‘Your Europe Portal Management and Maintenance’ (OJ 2006/S 143-153057) communicated to the applicant by letter dated 13 July 2007 (‘the decision on Lot 2’) and to award the contracts to the successful contractors; |
| --- | --- |

—

annul the Commission's decision (DIGIT) to reject the bid of the applicant filed in response to the open Call for Tender ENTR/05/078 — YOUR EUROPE Lot 2 (Infrastructure Management) for ‘Your Europe Portal Management and Maintenance’ (OJ 2006/S 143-153057) communicated to the applicant by letter dated 13 July 2007 (‘the decision on Lot 2’) and to award the contracts to the successful contractors;

| — | order the Commission (DIGIT) to pay the applicant's damages suffered on account of the tendering procedure in question for an amount of EUR 1 125 000 Euros for Lot 1 and EUR 825 000 Euros for Lot 2; |
| --- | --- |

—

order the Commission (DIGIT) to pay the applicant's damages suffered on account of the tendering procedure in question for an amount of EUR 1 125 000 Euros for Lot 1 and EUR 825 000 Euros for Lot 2;

| — | order the Commission (DIGIT) to pay the applicant's legal and other costs and expenses incurred in connection with this application, even if the current application is rejected. |
| --- | --- |

—

order the Commission (DIGIT) to pay the applicant's legal and other costs and expenses incurred in connection with this application, even if the current application is rejected.

Pleas in law and main arguments

In support of its claims the applicant argues that, in the framework of the tendering procedure ENTR/05/078 YOUR EUROPE Lot 1 (Editorial Work and Translations) for ‘Your Europe Portal Management and Maintenance’ (OJ 2006/S 143-153057) and ENTR/05/078 — YOUR EUROPE Lot 2 (Infrastructure Management) for ‘Your Europe Portal Management and Maintenance’ (OJ 2006/S 143-153057), the contracting authority, DG DIGIT of the European Commission, failed to comply with its obligations foreseen in the Financial Regulation (1), its Implementing Rules and Directive 2004/18/EC (2) as well as the principles of transparency and equal treatment

The applicant moreover submits that the contracting authority committed several manifest errors of assessment which resulted in the rejection of its bid. Furthermore, the contracting authority allegedly infringed its obligation to state reasons for its decision and, in particular, to inform the applicant on the relative merits of the successful tenderer.

The applicant requests, hence, that the decision of the European Commission to reject its bid and to award the contract to the successful tenderer be annulled and that the defendant is ordered to pay all legal expenses related to the proceedings even in case the application is rejected. In the alternative, if the contract has already been executed by the time the Court reached its decision or if it is no longer possible to annul the decision, the applicant requests monetary compensation (damages) of EUR 1 125 000 for Lot 1 and EUR 825 000 for Lot 2 in accordance with Articles 235 and 288 EC.

---

(1)  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 L 248, p. 1).

(2)  Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ L 134, p. 114).

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| 6.10.2007 | EN | Official Journal of the European Union | C 235/22 |
| --- | --- | --- | --- |

6.10.2007

EN

Official Journal of the European Union

C 235/22

---

Action brought on 6 August 2007 — Motopress v OHIM — Sony Computer Entertainment Europe (BUZZ!)

(Case T-302/07)

(2007/C 235/41)

Language in which the application was lodged: German

Parties

Applicant: Motopress Werbe- und Verlagsgesellschaft mbH (Vienna, Austria) (represented by: L. Wiltschek, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Sony Computer Entertainment Europe Limited

Form of order sought

| — | Amend the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 29 June 2007 (Appeal No R 1468/2006-2) to the extent required in order to grant the opposition to trade mark Application No 4 441 044; |
| --- | --- |

—

Amend the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 29 June 2007 (Appeal No R 1468/2006-2) to the extent required in order to grant the opposition to trade mark Application No 4 441 044;

| — | In the alternative, annul the contested decision and refer the case back to the Office for Harmonisation in the Internal Market; |
| --- | --- |

—

In the alternative, annul the contested decision and refer the case back to the Office for Harmonisation in the Internal Market;

| — | Order the Office for Harmonisation in the Internal Market to pay the costs of the appeal proceedings and of the proceedings before the Court of First Instance. |
| --- | --- |

—

Order the Office for Harmonisation in the Internal Market to pay the costs of the appeal proceedings and of the proceedings before the Court of First Instance.

Pleas in law and main arguments

Applicant for a Community trade mark: Sony Computer Entertainment Europe Limited

Community trade mark concerned: the figurative mark ‘BUZZ!’ for goods and services in classes 9, 16, 28 and 41 (Application No 4 441 044).

Proprietor of the mark or sign cited in the opposition proceedings: the Applicant.

Mark or sign cited in opposition: Austrian word mark ‘BUZZ!’ for goods and services in classes 9, 16, 35 and 38.

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 74(2) of Regulation (EC) No 40/94 (1) caused by disregard of evidence of the existence of the mark on which opposition is based.

---

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

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| 6.10.2007 | EN | Official Journal of the European Union | C 235/23 |
| --- | --- | --- | --- |

6.10.2007

EN

Official Journal of the European Union

C 235/23

---

Action brought on 7 August 2007 — Nölle v OHIM — Viña Carta Vieja (Puzzle)

(Case T-303/07)

(2007/C 235/42)

Language in which the application was lodged: German

Parties

Applicant: Jürgen Nölle (Rheinberg, Germany) (represented by: J. Reinartz, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Viña Carta Vieja S.A.

Form of order sought

| — | Reject in its entirety the opposition of 24 February 2005 brought by Viña Carta Vieja S.A. against the trade mark application made by the applicant on 20 February 2004 in relation to the word mark ‘Puzzle’, and in so doing annul the decision of the Second Board of Appeal of 5 June 2007 in Case R 911/2006-2 and the decision of the Opposition Division of 29 June 2006 No B 802 340; |
| --- | --- |

—

Reject in its entirety the opposition of 24 February 2005 brought by Viña Carta Vieja S.A. against the trade mark application made by the applicant on 20 February 2004 in relation to the word mark ‘Puzzle’, and in so doing annul the decision of the Second Board of Appeal of 5 June 2007 in Case R 911/2006-2 and the decision of the Opposition Division of 29 June 2006 No B 802 340;

| — | Order the defendant to pay the costs of the proceedings including the costs incurred by any intervening party. |
| --- | --- |

—

Order the defendant to pay the costs of the proceedings including the costs incurred by any intervening party.

Pleas in law and main arguments

Applicant for a Community trade mark: The Applicant

Community trade mark concerned: The word mark ‘Puzzle’ for goods in classes 16, 32 and 33 (Application No 3 674 651).

Proprietor of the mark or sign cited in the opposition proceedings: Viña Carta Vieja S.A.

Mark or sign cited in opposition: In particular the word mark ‘MONKEY PUZZLE’ for goods in class 33 (Community trade mark No 3 238 144).

Decision of the Opposition Division: partial grant of the opposition.

Decision of the Board of Appeal: annulment of the decision of the Opposition Division, to the extent that it granted the opposition for goods in class 32.

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 40/94 (1), because there is no likelihood of confusion between the opposing trade marks.

---

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

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| 6.10.2007 | EN | Official Journal of the European Union | C 235/23 |
| --- | --- | --- | --- |

6.10.2007

EN

Official Journal of the European Union

C 235/23

---

Action brought on 10 August 2007 — Calzaturificio Frau v OHIM — Camper

(Case T-304/07)

(2007/C 235/43)

Language in which the application was lodged: Italian

Parties

Applicant: Calzaturificio Frau SpA (San Giovanni Ilarione VR, Italy) (represented by: A. Rizzoli, lawyer)

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

Other part to the proceedings before the Board of Appeal of OHIM: Camper S.L.

Form of order sought

| — | declare that the present application and the annexes thereto are admissible; |
| --- | --- |

—

declare that the present application and the annexes thereto are admissible;

| — | annul the decision of the Board of Appeal (points 1, 2 and 3 of the operative part) in so far as it annuls the contested decision, rejects the application for registration in respect of all the goods in question and orders the applicant to pay the costs incurred by the opposing party in the opposition proceedings and the appeal; |
| --- | --- |

—

annul the decision of the Board of Appeal (points 1, 2 and 3 of the operative part) in so far as it annuls the contested decision, rejects the application for registration in respect of all the goods in question and orders the applicant to pay the costs incurred by the opposing party in the opposition proceedings and the appeal;

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

—

order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Calzaturificio Frau

Community trade mark concerned: The figurative mark consisting of a black arch sloping to the right (application for registration No 3.388.097) for goods in Classes 18 and 25.

Proprietor of the mark or sign cited in the opposition proceedings: Camper S.L.

Mark or sign cited in opposition: Spanish national three-dimensional trade mark in the form of a shoe for goods in Class 25, a number of English national figurative trade marks representing, in various forms, sloping arches for goods in Class 25 and two figurative Community trade marks also in the shape of an arch for goods in Class 18.

Decision of the Opposition Division: partial rejection of the opposition.

Decision of the Board of Appeal: annulment of the contested decision and refusal of the application for registration.

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 40/94 on the Community trade mark and of Article 73 of that regulation.

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| 6.10.2007 | EN | Official Journal of the European Union | C 235/24 |
| --- | --- | --- | --- |

6.10.2007

EN

Official Journal of the European Union

C 235/24

---

Action brought on 14 August 2007 — Hansgrohe v OHIM (AIRSHOWER)

(Case T-307/07)

(2007/C 235/44)

Language of the case: German

Parties

Applicant: Hansgrohe AG (Schiltach, Germany) (represented by S. Weidert and J. Zehnsdorf, lawyers)

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

Form of order sought

| — | Annul the decision of the Office for Harmonisation in the Internal Market of 31 May 2007 in Appeal No R 1281/2006-1 concerning trade mark Application No 4 869 319; |
| --- | --- |

—

Annul the decision of the Office for Harmonisation in the Internal Market of 31 May 2007 in Appeal No R 1281/2006-1 concerning trade mark Application No 4 869 319;

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

—

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

Pleas in law and main arguments

Community trade mark concerned: the word mark ‘AIRSHOWER’ for goods in class 11 (Application No 4 869 319).

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 40/94 (1), because the sign applied for is of a distinctive character and is not descriptive.

---

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

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| 6.10.2007 | EN | Official Journal of the European Union | C 235/24 |
| --- | --- | --- | --- |

6.10.2007

EN

Official Journal of the European Union

C 235/24

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Action brought on 15 August 2007 — Kingdom of the Netherlands v Commission of the European Communities

(Case T-309/07)

(2007/C 235/45)

Language of the case: Dutch

Parties

Applicant: Kingdom of the Netherlands (represented by C. Wissels, M. de Grave and Y de Vries, as Agents)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul Decision 2007/395 insofar as it is based on the Commission's view that it is necessary for the Commission to approve under Article 95(6) EC the maintenance of the Netherlands rules relating to the use of short-chain chlorinated paraffins that are not listed in Directive 2002/45; |
| --- | --- |

—

Annul Decision 2007/395 insofar as it is based on the Commission's view that it is necessary for the Commission to approve under Article 95(6) EC the maintenance of the Netherlands rules relating to the use of short-chain chlorinated paraffins that are not listed in Directive 2002/45;

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

—

Order the Commission to pay the costs.

Pleas in law and main arguments

The pleas and arguments relied upon are similar to those in Case T-234/04 Netherlands v Commission (previously Case C-103/04) (1).

---

(1)  OJ 2004 C 94, p. 30.

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| 6.10.2007 | EN | Official Journal of the European Union | C 235/25 |
| --- | --- | --- | --- |

6.10.2007

EN

Official Journal of the European Union

C 235/25

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Action brought on 16 August 2007 — Cemex UK Cement v Commission

(Case T-313/07)

(2007/C 235/46)

Language of the case: English

Parties

Applicant: Cemex UK Cement Ltd (Thorpe, United Kingdom), (represented by: S. Tromans, C. Thomann, lawyers, D. Wyatt QC and S. Taylor, Solicitor)

Defendant: Commission of the European Communities

Form of order sought

| — | to annul the Commission Decision of 12 June 2007, notified to the applicant, and received on 21 June 2007, rejecting the complaint made by Cemex UK Cement Limited concerning the national allocation plan for the allocation of greenhouse gas emission allowances notified by the United Kingdom in accordance with Directive 2003/87/EC of the European Parliament and the Council; |
| --- | --- |

—

to annul the Commission Decision of 12 June 2007, notified to the applicant, and received on 21 June 2007, rejecting the complaint made by Cemex UK Cement Limited concerning the national allocation plan for the allocation of greenhouse gas emission allowances notified by the United Kingdom in accordance with Directive 2003/87/EC of the European Parliament and the Council;

| — | order the Commission to pay the applicant's costs. |
| --- | --- |

—

order the Commission to pay the applicant's costs.

Pleas in law and main arguments

This application seeks annulment of a Commission decision contained in a letter dated 12 June 2007 and received by the applicant on 21 June 2007, rejecting a complaint filed by the applicant concerning the national allocation plan for Phase II of the EU Emissions Trading Scheme notified by the United Kingdom in accordance with directive 2003/87/EC (1) of the European Parliament and the Council.

The applicant complained to the European Commission that the reduction of allowances under the latter national allocation plan, in respect of the applicant's Rugby plant, along with the resulting over-allocation in respect of installations operated by the applicant's competitors, amounted to unlawful State aid, which allegedly:

| (a) | unlawfully discriminates against the Rugby plant by failing to take sufficient account of the latter plant's period of commissioning, and by basing the allocation to the plant on a period of emissions which the UK authorities knew to be unrepresentative; |
| --- | --- |

(a)

unlawfully discriminates against the Rugby plant by failing to take sufficient account of the latter plant's period of commissioning, and by basing the allocation to the plant on a period of emissions which the UK authorities knew to be unrepresentative;

| (b) | impedes the right of establishment of the applicant's parent company, Cemex Espana SA. |
| --- | --- |

(b)

impedes the right of establishment of the applicant's parent company, Cemex Espana SA.

The applicant further contends that the Commission was wrong to see no incompatible aid deriving from the ‘First Year Rule’ and accordingly wrong to decline to initiate proceedings under Article 88(2) EC. In that sense, the applicant claims the Commission was wrong to conclude that the allocation methodology of allowances applied by the United Kingdom to the Rugby plant was not discriminatory and was consistent with Commission guidance.

---

(1)  Directive 2003/87/EC of the European Parliament and of the Council concerning the establishment of a scheme for greenhouse gas emission allowance trading in the Community and amending Council Directive 96/61/EC (OJ L 275, p. 32).

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| 6.10.2007 | EN | Official Journal of the European Union | C 235/25 |
| --- | --- | --- | --- |

6.10.2007

EN

Official Journal of the European Union

C 235/25

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Action brought on 22 August 2007 — Simsalagrimm Filmproduktion v Commission and EACEA

(Case T-314/07)

(2007/C 235/47)

Language of the case: German

Parties

Applicant: Simsalagrimm Filmproduktion GmbH (Munich, Germany) (represented by: D. Reich and D. Sharma, lawyers)

Defendants: Commission of the European Communities and Education, Audiovisual and Culture Executive Agency (EACEA)

Form of order sought

| — | Annul the Decision Debit Note No 3240905584 of 20 June 2007; |
| --- | --- |

—

Annul the Decision Debit Note No 3240905584 of 20 June 2007;

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

—

order the defendants to pay the costs.

Pleas in law and main arguments

In 1998, the applicant and the Commission signed a contract relating to support for a computer-animated cartoon series within the framework of the MEDIA II — Development and distribution programme (1). By letter of 20 June 2007, EACEA demanded reimbursement by the applicant of all of the monies advanced pursuant to that contract. The applicant brought the present action to contest that decision.

The applicant claims, first, that EACEA was not formally competent to take the contested decision, as it is the Commission that remains competent in that regard.

Further, the applicant submits that the contested decision is unlawful because of a breach of the duty to provide reasons for the acts of an authority for the purposes of Article 256 EC.

In addition, the applicant's rights of defence have been infringed inasmuch as its application to inspect the file was rejected, thus making it impossible for the applicant to determine the criterion used to justify the demand for repayment.

The applicant complains also that the support contract was not validly terminated, and that the conditions for its termination also did not exist. In that regard, it claims, inter alia, that the termination of the contract and the demand for repayment of the financial support advanced constitute an infringement of the principle of protection of legitimate expectations.

---

(1)  Council Decision 95/563/EC of 10 July 1995 on the implementation of a programme encouraging the development and distribution of European audiovisual works (Media II — Development and distribution) (1996-2000) (OJ 1995 L 321, p. 25).

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| 6.10.2007 | EN | Official Journal of the European Union | C 235/26 |
| --- | --- | --- | --- |

6.10.2007

EN

Official Journal of the European Union

C 235/26

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Action brought on 22 August 2007 — Grohe v OHIM — Compañía Roca Radiadores (ALIRA)

(Case T-315/07)

(2007/C 235/48)

Language in which the application was lodged: German

Parties

Applicant: Grohe AG (Hemer, Germany) (represented by: A. Lensing-Kramer, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Compañía Roca Radiadores, S.A.

Form of order sought

| — | Annul the decision of the Fourth Board of Appeal of 19 June 2007 in Case R 850/2006-4; |
| --- | --- |

—

Annul the decision of the Fourth Board of Appeal of 19 June 2007 in Case R 850/2006-4;

| — | alternatively, annul or amend the contested decision in so far as it finds that there is a similarity of goods between ‘kitchen faucets’ and ‘cast-iron bathtubs’ and, consequently, a likelihood of confusion between the opposing signs; |
| --- | --- |

—

alternatively, annul or amend the contested decision in so far as it finds that there is a similarity of goods between ‘kitchen faucets’ and ‘cast-iron bathtubs’ and, consequently, a likelihood of confusion between the opposing signs;

| — | alternatively, annul or amend the contested decision in so far as it finds that there is a phonetic similarity in Spain between the mark applied for and the opposing mark and, consequently, in that respect a likelihood of confusion between the opposing signs; |
| --- | --- |

—

alternatively, annul or amend the contested decision in so far as it finds that there is a phonetic similarity in Spain between the mark applied for and the opposing mark and, consequently, in that respect a likelihood of confusion between the opposing signs;

| — | alternatively, annul or amend the contested decision in so far as it finds that there is a lack of recognition in Spain of the name AKIRA in relation to a Japanese comic and, consequently, in that respect a likelihood of confusion between the opposing signs; |
| --- | --- |

—

alternatively, annul or amend the contested decision in so far as it finds that there is a lack of recognition in Spain of the name AKIRA in relation to a Japanese comic and, consequently, in that respect a likelihood of confusion between the opposing signs;

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

—

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

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: Word mark ‘ALIRA’ for goods in Class 11 (Application No 2 766 640).

Proprietor of the mark or sign cited in the opposition proceedings: Compañía Roca Radiadores, S.A.

Mark or sign cited in opposition: Spanish word mark ‘AKIRA’ for goods in Class 11 (No 2 045 604).

Decision of the Opposition Division: Opposition allowed; registration refused.

Decision of the Board of Appeal: Appeal dismissed.

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

---

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

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| 6.10.2007 | EN | Official Journal of the European Union | C 235/26 |
| --- | --- | --- | --- |

6.10.2007

EN

Official Journal of the European Union

C 235/26

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Action brought on 20 August 2007 — Commercy v OHIM — easyGroup IP Licensing (easyHotel)

(Case T-316/07)

(2007/C 235/49)

Language in which the application was lodged: German

Parties

Applicant: Commercy AG (Weimar, Germany) (represented by: F. Jaschke, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: easyGroup IP Licensing Limited

Form of order sought

| — | Declaration that Community trade mark No 1 866 706 ‘easyHotel’ is invalid |
| --- | --- |

—

Declaration that Community trade mark No 1 866 706 ‘easyHotel’ is invalid

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The word mark ‘easyHotel’ for goods and services in Classes 16, 25, 32, 33, 35, 36, 39, 41 and 42 (Community trade mark No 1 866 706)

Proprietor of the Community trade mark: easyGroup IP Licensing Limited

Applicant for the declaration of invalidity: Bettina Breitenbücher, Sozietät Kübler

Trade mark right of the applicant for the declaration of invalidity: The German word mark ‘EASYHOTEL’ for goods and services in Classes 9, 38 and 42 (No 30 043 724)

Decision of the Cancellation Division: Rejection of the application for a declaration of invalidity

Decision of the Board of Appeal: Dismissal of the appeal in Case R 1295/2006-2

Pleas in law: Infringement of Article 8(1)(a) of Regulation (EC) No 40/94 (1), as that provision was interpreted too strictly. On the basis of the identity of the signs there is a likelihood of confusion even though the goods and services are more remotely similar.

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

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European Union Civil Service Tribunal

| 6.10.2007 | EN | Official Journal of the European Union | C 235/28 |
| --- | --- | --- | --- |

6.10.2007

EN

Official Journal of the European Union

C 235/28

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Designation of the judge to replace the President of the Civil Service Tribunal for the purpose of dealing with applications for interim measures

(2007/C 235/50)

On 19 September 2007, in accordance with Article 3(4) of Decision 2004/752 and Article 106 of the Rules of Procedure of the Court of First Instance, the Tribunal decided that, for the period from 1 October 2007 to 30 September 2008, Judge Van Raepenbusch, President of the Second Chamber, shall replace the President of the Tribunal for the purpose of dealing with applications for interim measures in the event of the President's absence or his being prevented from attending.

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| 6.10.2007 | EN | Official Journal of the European Union | C 235/28 |
| --- | --- | --- | --- |

6.10.2007

EN

Official Journal of the European Union

C 235/28

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Criteria for the assignment of cases to chambers

(2007/C 235/51)

On 19 September 2007, in accordance with Article 4 of Annex I to the Statute of the Court of Justice and Article 12 of the Rules of Procedure of the Court of First Instance, the Civil Service Tribunal decided to maintain in force until 30 September 2008 the following conditions for the assignment of cases to chambers:

| — | the First Chamber shall hear all cases, with the exception of those principally concerning questions of recruitment, assessment/promotion and final termination of service, which shall be heard by the Second Chamber; |
| --- | --- |

—

the First Chamber shall hear all cases, with the exception of those principally concerning questions of recruitment, assessment/promotion and final termination of service, which shall be heard by the Second Chamber;

| — | a number of cases shall be assigned to the Third Chamber, regardless of the subject-matter involved, at regular intervals to be determined at a plenary meeting of the Tribunal; |
| --- | --- |

—

a number of cases shall be assigned to the Third Chamber, regardless of the subject-matter involved, at regular intervals to be determined at a plenary meeting of the Tribunal;

| — | derogations from the above rules on assignment may be made for reasons of connections between cases and to ensure a balanced and reasonably varied workload within the Tribunal. |
| --- | --- |

—

derogations from the above rules on assignment may be made for reasons of connections between cases and to ensure a balanced and reasonably varied workload within the Tribunal.

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| 6.10.2007 | EN | Official Journal of the European Union | C 235/28 |
| --- | --- | --- | --- |

6.10.2007

EN

Official Journal of the European Union

C 235/28

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Action brought on 5 June 2007 — Marcuccio v Commission

(Case F-84/06)

(2007/C 235/52)

Language of the case: Italian

Parties

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

Defendant: Commission of the European Communities

Form of order sought

| — | annul the decision rejecting the claim of 20 June 2005 submitted by the applicant on 21 June 2005 to the office responsible for settling claims of the Joint Sickness Insurance Scheme of the European Communities; |
| --- | --- |

—

annul the decision rejecting the claim of 20 June 2005 submitted by the applicant on 21 June 2005 to the office responsible for settling claims of the Joint Sickness Insurance Scheme of the European Communities;

| — | annul, in so far as is necessary, the statement of reimbursement of 18 July 2005; |
| --- | --- |

—

annul, in so far as is necessary, the statement of reimbursement of 18 July 2005;

| — | annul, in so far as is necessary, the implied decision of the Appointing Authority rejecting the applicant's claim of 23 December 2005; |
| --- | --- |

—

annul, in so far as is necessary, the implied decision of the Appointing Authority rejecting the applicant's claim of 23 December 2005;

| — | order the defendant to pay the applicant, by way of reimbursement of the additional sum needed to make up 100 % reimbursement of medical expenses incurred by him and in respect of which he claimed reimbursement from the Joint Scheme on 20 June 2005, or by way of compensation for the damage arising as a result of the defendant's unlawful conduct in relation to the applicant, the difference between the sum already paid to the applicant by way of reimbursement of medical expenses and the total cost of the medical expenses, namely the sum of EUR 89,56, or such other sum as the Tribunal may consider just in respect of either or both of those heads; |
| --- | --- |

—

order the defendant to pay the applicant, by way of reimbursement of the additional sum needed to make up 100 % reimbursement of medical expenses incurred by him and in respect of which he claimed reimbursement from the Joint Scheme on 20 June 2005, or by way of compensation for the damage arising as a result of the defendant's unlawful conduct in relation to the applicant, the difference between the sum already paid to the applicant by way of reimbursement of medical expenses and the total cost of the medical expenses, namely the sum of EUR 89,56, or such other sum as the Tribunal may consider just in respect of either or both of those heads;

| — | order the defendant to pay the applicant default interest at the rate of 10 % per annum, to be compounded annually from 21 June 2005 until actual payment, or at a rate to be compounded and from the starting date which the Tribunal may consider just, on the sum of EUR 89,56 or such other sum as the Tribunal may consider just in order to make up 100 % reimbursement of medical expenses; |
| --- | --- |

—

order the defendant to pay the applicant default interest at the rate of 10 % per annum, to be compounded annually from 21 June 2005 until actual payment, or at a rate to be compounded and from the starting date which the Tribunal may consider just, on the sum of EUR 89,56 or such other sum as the Tribunal may consider just in order to make up 100 % reimbursement of medical expenses;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

In support of his arguments, the applicant relies on the following three pleas in law:

| (1) | absolute failure to state grounds also by reason of a total failure to make preliminary inquiries inasmuch as it cannot be understood why the Community did not grant the applicant 100 % reimbursement of medical expenses, but only reimbursement in part. It is clear, moreover, that the administration failed properly to open a file relating to the applicant's claim of 20 June 2005, if necessary by taking into account all of the information provided by him; |
| --- | --- |

(1)

absolute failure to state grounds also by reason of a total failure to make preliminary inquiries inasmuch as it cannot be understood why the Community did not grant the applicant 100 % reimbursement of medical expenses, but only reimbursement in part. It is clear, moreover, that the administration failed properly to open a file relating to the applicant's claim of 20 June 2005, if necessary by taking into account all of the information provided by him;

| (2) | infringement of the law on the basis that the applicant's medical condition was such as to give rise, within the meaning and for the purposes of Article 72 of the Staff Regulations, to a right in his part to 100 % reimbursement of medical expenses; |
| --- | --- |

(2)

infringement of the law on the basis that the applicant's medical condition was such as to give rise, within the meaning and for the purposes of Article 72 of the Staff Regulations, to a right in his part to 100 % reimbursement of medical expenses;

| (3) | breach of the obligation to have due regard to the welfare of officials and of the principle of sound administration, given that it is apparent from the matter as a whole that the defendant failed to have due regard to the applicant's interests and did several acts and related deeds which, as a result of their grave unlawfulness and the considerable period of time during which they were committed, constituted a breach of that obligation and principle, the latter, moreover, being enshrined in Article 41 of the Charter of Fundamental Rights of the European Union. |
| --- | --- |

(3)

breach of the obligation to have due regard to the welfare of officials and of the principle of sound administration, given that it is apparent from the matter as a whole that the defendant failed to have due regard to the applicant's interests and did several acts and related deeds which, as a result of their grave unlawfulness and the considerable period of time during which they were committed, constituted a breach of that obligation and principle, the latter, moreover, being enshrined in Article 41 of the Charter of Fundamental Rights of the European Union.

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| 6.10.2007 | EN | Official Journal of the European Union | C 235/29 |
| --- | --- | --- | --- |

6.10.2007

EN

Official Journal of the European Union

C 235/29

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Action brought on 12 July 2007 — U v Commission

(Case F-69/07)

(2007/C 235/53)

Language of the case: French

Parties

Applicant: U (Brussels, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | annul the Commission's decisions fixing the conditions of employment of the applicant as a member of the contract staff in so far as they provide for, first, the application of the proviso laid down in Article 100 of the Conditions of Employment of Other Servants (‘the CEOS’) and in Article 1 of Annex VIII to the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’), and, secondly, the duration of the contract to be the period from 16 September 2006 to 15 September 2009; |
| --- | --- |

—

annul the Commission's decisions fixing the conditions of employment of the applicant as a member of the contract staff in so far as they provide for, first, the application of the proviso laid down in Article 100 of the Conditions of Employment of Other Servants (‘the CEOS’) and in Article 1 of Annex VIII to the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’), and, secondly, the duration of the contract to be the period from 16 September 2006 to 15 September 2009;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

The applicant, after having worked for the Commission from 1 May 2001 to 15 September 2006 as a member of the local staff and member of the auxiliary staff under 14 successive separate fixed-term contracts of employment, was recruited as a member of the contract staff for the period from 16 September 2006 to 15 September 2009. Having established during the medical visit prior to recruitment that the applicant was suffering from a sickness, the Appointing Authority applied the proviso laid down in Article 100 of the CEOS and Article 1 of Annex VIII to the Staff Regulations.

In support of her appeal, the applicant first submits that by limiting the duration of her contract as a member of the contract staff, the Commission infringed the principle of stability of the employment relationship such as it follows from the general principles of law relating to the protection of workers. In so far as it is necessary, she pleads that Article 88 of the CEOS is unlawful.

In addition, the applicant claims that the proviso clause not to grant her guaranteed benefits in respect of invalidity or death fails to take account of the scope of Article 100 of the CEOS, inasmuch as the administration is imposing on her a new exclusion period of 5 years even though she has been in the Commission's service since 1 May 2001. In so far as it is necessary, she pleads that Article 100 of the CEOS is unlawful.

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| 6.10.2007 | EN | Official Journal of the European Union | C 235/29 |
| --- | --- | --- | --- |

6.10.2007

EN

Official Journal of the European Union

C 235/29

---

Action brought on 27 July 2007 — Doktor v Council

(Case F-73/07)

(2007/C 235/54)

Language of the case: French

Parties

Applicant: František Doktor (Bratislava, Slovakia) (represented by: S. Rodrigues, R. Albelice and C. Bernard-Glanz, lawyers)

Defendant: Council of the European Union

Form of order sought

| — | annul the decision to dismiss the applicant at the end of his probationary period adopted on 24 October 2006 by the appointing authority of the Council, taken together with the decision adopted on 16 May 2007 by the appointing authority dismissing the complaint brought by the applicant; |
| --- | --- |

—

annul the decision to dismiss the applicant at the end of his probationary period adopted on 24 October 2006 by the appointing authority of the Council, taken together with the decision adopted on 16 May 2007 by the appointing authority dismissing the complaint brought by the applicant;

| — | direct the appointing authority as to the consequences of the annulment of the contested decisions and in particular the possibility of completing a second probationary period in another service or the prolongation of the probationary period with the transfer to a post without head-of-unit responsibility at the end of which there would be a new assessment of the applicant's qualifications; |
| --- | --- |

—

direct the appointing authority as to the consequences of the annulment of the contested decisions and in particular the possibility of completing a second probationary period in another service or the prolongation of the probationary period with the transfer to a post without head-of-unit responsibility at the end of which there would be a new assessment of the applicant's qualifications;

| — | order the defendant to compensate the applicant for the loss suffered, both professional and financial (salary and associated benefits which he would have received from 1 November 2006 to the date of his re-employment resulting from the annulment of the contested decision) and non-pecuniary (by reference to an indicative sum of EUR 50 000); |
| --- | --- |

—

order the defendant to compensate the applicant for the loss suffered, both professional and financial (salary and associated benefits which he would have received from 1 November 2006 to the date of his re-employment resulting from the annulment of the contested decision) and non-pecuniary (by reference to an indicative sum of EUR 50 000);

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

In support of his action the applicant relies on four pleas in law, the first of which alleges (i) infringement of Article 34 of the Staff Regulations of Officials of the European Communities, (ii) breach of the duty of have regard to the welfare of officials and (iii) breach of the principle of sound administration. In particular, his probationary period took place in conditions which were unusual and contrary to various internal procedural rules.

The second plea in law alleges breach of the obligation to state reasons, in that the decision to dismiss did not contain explanations and relied on statements which were contradictory and less favourable than those which appeared in the first probationary report.

In the third plea in law, the applicant submits that the decision to dismiss was disproportionate and vitiated by a manifest error of assessment, in that, first, it did not take into account the results of certain personality tests and, secondly, a negative evaluation as head of unit, even were it to be well founded, should have led only to transfer to a post without such responsibilities.

In his fourth plea in law, the applicant relies on breach of the rights of the defence and of the principle of equal treatment, in that the decision to dismiss was taken on the basis of reports adopted without his first being heard and of which the last was finalised in breach of the applicable procedural rules.

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| 6.10.2007 | EN | Official Journal of the European Union | C 235/30 |
| --- | --- | --- | --- |

6.10.2007

EN

Official Journal of the European Union

C 235/30

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Action brought on 29 July 2007 — Brown and Volpato v Commission

(Case F-75/07)

(2007/C 235/55)

Language of the case: French

Parties

Applicants: Colin Brown (Brussels, Belgium) and Alberto Volpato (Moscow, Russia) (represented by: B. Cortese and C. Cortese, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | annul the decision of the Commission of the European Communities published in Administrative Notices No 55-2006 of 17 November 2006 inasmuch as it promoted the applicants to grade AD9, step 1, under the 2006 promotion exercise; |
| --- | --- |

—

annul the decision of the Commission of the European Communities published in Administrative Notices No 55-2006 of 17 November 2006 inasmuch as it promoted the applicants to grade AD9, step 1, under the 2006 promotion exercise;

| — | in so far as is necessary, annul the Commission decisions of 23 April 2007 inasmuch as they dismissed the complaints brought by the applicants; |
| --- | --- |

—

in so far as is necessary, annul the Commission decisions of 23 April 2007 inasmuch as they dismissed the complaints brought by the applicants;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

The applicants, Commission officials, challenge the decision to promote them, under the 2006 promotion exercise, to grade AD9, a new grade inserted, since 1 May 2004 between grades AD8 (formerly A7) and AD10 (formerly A6). They submit that they should have been promoted not to grade AD9 but to grade AD10, following the example of what had been done in the 2004 promotion exercise in respect of officials who, like the applicants, were in grade A7 on 30 April 2004 and were eligible for promotion to the next grade, A6.

The applicants rely on very similar pleas in law to the first and third pleas in law relied on in Case F-105/06 (1).

---

(1)  OJ C 281, 18.11.2006, p. 45.

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| 6.10.2007 | EN | Official Journal of the European Union | C 235/30 |
| --- | --- | --- | --- |

6.10.2007

EN

Official Journal of the European Union

C 235/30

---

Action brought on 17 July 2007 — Birkhoff v Commission

(Case F-76/07)

(2007/C 235/56)

Language of the case: German

Parties

Applicant: Gerhard Birkhoff (Weitnau, Germany) (represented by: K. Hösgen, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | annul the Appointing Authority's decision of 18 April 2007 concerning the applicant's complaint (No R/16/07); |
| --- | --- |

—

annul the Appointing Authority's decision of 18 April 2007 concerning the applicant's complaint (No R/16/07);

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

The applicant, a retired official of the European Communities, has a dependent daughter who needs a wheelchair on account of her paraplegia. The applicant submits that the wheelchair can no longer be used since it has broken due to wear. The applicant sought reimbursement of the cost of a new wheelchair, which the Commission refused.

The applicant asserts that its rights under Articles 72 and 110 of the Staff Regulations of the European Communities, read in conjunction with Section XII(F)(4) of Annex I to the Joint Rules on sickness insurance for officials of the European Communities, were infringed.

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| 6.10.2007 | EN | Official Journal of the European Union | C 235/31 |
| --- | --- | --- | --- |

6.10.2007

EN

Official Journal of the European Union

C 235/31

---

Action brought on 31 July 2007 — Braun-Neumann v Parliament

(Case F-79/07)

(2007/C 235/57)

Language of the case: German

Parties

Applicant: Kurt-Wolfgang Braun-Neumann (Merzig, Germany) (represented by: P. Ames, lawyer)

Defendant: European Parliament

Form of order sought

| — | order the defendant to pay with retroactive effect from 1 August 2004 the other half of the survivor's pension in right of his wife Gisela Mandt, née Neumann, who died on 25 July 2004, in the monthly sum of EUR 1 670,84 plus interest at the rate applied by the European Central Bank on the marginal lending facility, increased by 3 %; |
| --- | --- |

—

order the defendant to pay with retroactive effect from 1 August 2004 the other half of the survivor's pension in right of his wife Gisela Mandt, née Neumann, who died on 25 July 2004, in the monthly sum of EUR 1 670,84 plus interest at the rate applied by the European Central Bank on the marginal lending facility, increased by 3 %;

| — | 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

The European Parliament undertook to pay the applicant 50 % of the survivor's pension in his capacity as widower of Ms Gisela Mandt, née Neumann. The applicant seeks payment of the survivor's pension in full.

The complaint is directed against the European Parliament's decision to recognise the second marriage of the deceased, even though the decree of divorce of the Tribunal de première instance de Namur of 6 September 1995 in relation to the first marriage was not recognised by the Bayerisches Oberstes Landesgericht in its decision of 11 October 1999. The applicant states that he is therefore the sole ‘surviving spouse’, since the second marriage of the deceased to Mr Wolfgang Mandt was not legally valid.

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| 6.10.2007 | EN | Official Journal of the European Union | C 235/31 |
| --- | --- | --- | --- |

6.10.2007

EN

Official Journal of the European Union

C 235/31

---

Action brought on 3 August 2007 — Economidis v Commission

(Case F-80/07)

(2007/C 235/58)

Language of the case: French

Parties

Applicant: Ioannis Economidis (Woluwé-St-Étienne, Belgium) (represented by: S. Orlandi, J.-N. Louis, A. Coolen and E. Marchal, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | annul the decision reorganising the directorate-general for RTD inasmuch as that decision fills, in particular, the posts of head of unit for F.1 ‘Horizontal aspects and coordination’ and for F.5 ‘Health biotechnology’; |
| --- | --- |

—

annul the decision reorganising the directorate-general for RTD inasmuch as that decision fills, in particular, the posts of head of unit for F.1 ‘Horizontal aspects and coordination’ and for F.5 ‘Health biotechnology’;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

In October 2006, the Commission, in the context of a reorganisation of DG RTD, appointed Mr H and Mr X as heads of unit for F.1 and F.5 respectively. By judgment of 14 December 2006 in Case F-122/05 Economidis v Commission
   (1), the Civil Service Tribunal annulled the Commission decision of 23 December 2004, appointing Mr H to the post of Head of Unit ‘Health biotechnology’, one of the units of the same DG before the reorganisation.

In support of his action, the applicant relies first on an infringement of Article 233 EC, in that the Commission, by virtue of the reorganisation of the DG, maintains that it is not possible to execute the judgment of 14 December 2006. According to the applicant, the decision of 23 December 2004 having been annulled, Mr H cannot be reemployed in the post of Head of Unit in the framework of the reorganisation of the DG concerned.

Moreover, the applicant submits that there are two possibilities, either the Unit ‘Health biotechnology’ still exists, but under another name and with its tasks redefined, or it has indeed been abolished. In the first case, the administration should have executed the judgment of 14 December and, in the second case, the administration should have opened the procedure to fill the posts of head of unit created by the reorganisation and, accordingly, permitted him to submit his candidature. In not having followed that procedure, the defendant infringed Articles 4, 7, 24 and 29 of the Staff Regulations of Officials of the European Communities and the principle of reasonable career prospects.

---

(1)  OJ C 331, 30.12.2006, p. 47.

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| 6.10.2007 | EN | Official Journal of the European Union | C 235/32 |
| --- | --- | --- | --- |

6.10.2007

EN

Official Journal of the European Union

C 235/32

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Action brought on 6 August 2007 — Dittert v Commission

(Case F-82/07)

(2007/C 235/59)

Language of the case: French

Parties

Applicant: Daniel Dittert (Luxembourg, Luxembourg) (represented by: B. Cortese and C. Cortese, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | annul the decision of the Commission of the European Communities to promote the applicant to grade AD 9, and not AD 10, under the 2006 promotion procedure, as confirmed by that Institution's decision of 23 April 2007, rejecting the applicant's complaint No R/132/07; |
| --- | --- |

—

annul the decision of the Commission of the European Communities to promote the applicant to grade AD 9, and not AD 10, under the 2006 promotion procedure, as confirmed by that Institution's decision of 23 April 2007, rejecting the applicant's complaint No R/132/07;

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

—

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

Pleas in law and main arguments

The applicant, an established official at the Commission, having been promoted to the old grade A 7 with effect from 1 April 2002, was on 30 April 2004 eligible for promotion to grade A 6. On 1 May 2004, the Appointing Authority replaced grade A 7 in the applicant's staff file with the new grade A*8, stating the reason for the amendment to be the ‘career reform of 1 May 2004’. Subsequently, grade A*8 was renamed AD 8 with effect from 1 May 2006.

The applicant submits that though the officials promoted in 2004 and those promoted in 2005 or 2006 from the old grade A 7 were all promoted after the entry into force of the amendments to the Staff Regulations, some were appointed to grade A*10/AD 10 while others, including the applicant, were appointed to grade A*9/AD 9. The applicant pleads an infringement of the principles of equal treatment and reasonable career prospects for officials.

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| 6.10.2007 | EN | Official Journal of the European Union | C 235/32 |
| --- | --- | --- | --- |

6.10.2007

EN

Official Journal of the European Union

C 235/32

---

Action brought on 14 August 2007 — Zangerl-Posselt v Commission

(Case F-83/07)

(2007/C 235/60)

Language of the case: German

Parties

Applicant: Brigitte Zangerl-Posselt (Saarbrücken, Germany) (represented by: S. Paulmann, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | annul the decision of the selection board for competition EPSO/AST/27/06 (Assistants (AST 1) having as their main language German) not to admit the applicant to the practical and oral tests for that competition, communicated to the applicant by a letter from EPSO of 18 June 2007 and confirmed by letter of 25 July 2007; |
| --- | --- |

—

annul the decision of the selection board for competition EPSO/AST/27/06 (Assistants (AST 1) having as their main language German) not to admit the applicant to the practical and oral tests for that competition, communicated to the applicant by a letter from EPSO of 18 June 2007 and confirmed by letter of 25 July 2007;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

The selection board for competition EPSO/AST/27/06 (Assistants (AST 1) having as their main language German) did not admit the applicant to the practical and oral tests, since she did not have the required level of education (Abitur).

The applicant claims, in particular, that her level of education (Realschulabschluss) meets the requirements of Section A.II.1(ii) of the competition notice. The classification of diplomas is based, both in Germany and at European level, on the International Standard Classification of Education of 1997 (ISCED), drawn up by UNESCO, the terminology of which was also reproduced in the competition notice. According to that classification, the Realschulabschluss is a diploma attesting to a level of secondary education (ISCED level 2) and gives access to post-secondary education (ISCED level 4).

In addition, the applicant pleads that the defendant's decision is insufficiently and incorrectly reasoned.

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| 6.10.2007 | EN | Official Journal of the European Union | C 235/33 |
| --- | --- | --- | --- |

6.10.2007

EN

Official Journal of the European Union

C 235/33

---

Action brought on 17 August 2007 — Islamaj v Commission

(Case F-84/07)

(2007/C 235/61)

Language of the case: French

Parties

Applicant: Agim Islamaj (Grimbergen, Belgium) (represented by: S. Orlandi, J.-N. Louis, A. Coolen and E. Marchal, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | declare unlawful Article 2 of the Commission decision on detailed rules governing the promotion procedure for officials paid from research appropriations in the general budget (in both the version of 16 June 2004 and that of 20 July 2005); |
| --- | --- |

—

declare unlawful Article 2 of the Commission decision on detailed rules governing the promotion procedure for officials paid from research appropriations in the general budget (in both the version of 16 June 2004 and that of 20 July 2005);

| — | annul the Commission decision to cancel the 38.5 points from the applicant's accrued promotion points which he had accumulated as a member of the temporary staff; |
| --- | --- |

—

annul the Commission decision to cancel the 38.5 points from the applicant's accrued promotion points which he had accumulated as a member of the temporary staff;

| — | annul the Commission decision not to promote the applicant to grade AST 5 in the 2006 promotion exercise and, in so far as it is necessary, that dismissing his appeal to the Promotion Committee for the purpose of reconstituting his accrued promotion points; |
| --- | --- |

—

annul the Commission decision not to promote the applicant to grade AST 5 in the 2006 promotion exercise and, in so far as it is necessary, that dismissing his appeal to the Promotion Committee for the purpose of reconstituting his accrued promotion points;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

The applicant, who started working at the Commission on 1 May 2000 as a member of the temporary staff and who was posted to the Joint Research Centre, Ispra (Italy), was appointed an official in that centre with effect from 16 April 2004. On 16 April 2005, he was transferred to DG Trade. By letter of 16 June 2006, he was informed that the points which he had accrued as a member of the temporary staff had been cancelled, pursuant to the first contested decision, because he had effected a transfer to a post coming under the ‘administration’ part of the general budget before a period of two years had expired from his recruitment as a probationary official in respect of a post coming under the ‘research’ part of that budget.

In support of his action, the applicant relies on very similar pleas in law to those relied on in Case F-33/07 (1).

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(1)  OJ C 129, 9.6.2007, p. 26.

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