# Official Journal C 195/2010

| | ISSN 1725-2423
  doi:10.3000/17252423.C_2010.195.eng |
| --- | --- |
| Official Journal
  of the European Union | C 195 |
| | |
| English edition | Information and Notices | Volume 5317 July 2010 |

ISSN 1725-2423

doi:10.3000/17252423.C_2010.195.eng

Official Journal

of the European Union

C 195

English edition

Information and Notices

Volume 5317 July 2010

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| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | Court of Justice of the European Union |
| 2010/C 195/01 | Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 179, 3.7.2010 | 1 |

Notice No

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

2010/C 195/01

Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 179, 3.7.2010

Official Journal of the European Union

1

| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2010/C 195/02 | Case C-228/09: Judgement of the Court (Third Chamber) of 20 May 2010 — European Commission v Republic of Poland (Failure of a Member State to fulfil its obligations — VAT — Directive 2006/112/EC — Articles 78, 79, 83 and 86 — Taxable amount — Sale of a car — Inclusion in the taxable amount of a duty applicable to non-registered cars) | 2 |
| 2010/C 195/03 | Case C-187/10: Reference for a preliminary ruling from the Raad van State (Netherlands), lodged on 16 April 2010 — Baris Unal v Staatssecretaris van Justitie | 2 |
| 2010/C 195/04 | Case C-190/10: Reference for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 16 April 2010 — Génesis Seguros Generales Sociedad Anónima de Seguros y Reaseguros (GENESIS) v Boys Toys S.A., Administración del Estado | 3 |
| 2010/C 195/05 | Case C-192/10: Action brought on 19 April 2010 — European Commission v Kingdom of Spain | 3 |
| 2010/C 195/06 | Case C-194/10: Reference for a preliminary ruling from the Landgericht Munich I (Germany) lodged on 21 April 2010 — Robert Nicolaus Abt, Daniela Kalwarowskyj, Mangusta Beteiligungs GmbH, Karsten Trippel, VC-Services GmbH, Henning Hahmann v Hypo Real Estate Holding AG | 3 |
| 2010/C 195/07 | Case C-197/10: Reference for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 23 April 2010 — Unió de Pagesos de Catalunya v Administración del Estado and Coordinadora de Organizaciones Agricultores y Ganaderos — Iniciativa Rural del Estado Español | 4 |
| 2010/C 195/08 | Case C-199/10: Reference for a preliminary ruling from the Supremo Tribunal Administrativo lodged on 26 April 2010 — Secilpar v Fazenda Pública | 4 |
| 2010/C 195/09 | Case C-203/10: Reference for a preliminary ruling from the Varhoven administrativen sad na Republika Balgaria (Bulgaria) lodged on 26 April 2010 — Deputy Director of the Appeals and Enforcement Management Directorate at the Central Administration of the National Revenue Agency v Auto Nikolovi OOD | 5 |
| 2010/C 195/10 | Case C-205/10 P: Appeal brought on 30 April 2010 by Heinz Helmuth Eriksen against the order of the General Court (Fourth Chamber) delivered on 24 March 2010 in Case T-516/08: Heinz Helmuth Eriksen v European Commission | 6 |
| 2010/C 195/11 | Case C-210/10: Reference for a preliminary ruling from the Hajdú-Bihar Megyei Biróság (Hungary) lodged on 3 May 2010 — Márton Urbán v Vám- és Pénzügyörség Észak-alföldi regionális Parancsnoksága | 7 |
| 2010/C 195/12 | Case C-213/10: Reference for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas (Republic of Lithuania) lodged on 4 May 2010 — F-Tex SIA v Lietuvos-Anglijos UAB Jadecloud-Vilma | 7 |
| 2010/C 195/13 | Case C-217/10 P: Appeal brought on 5 May 2010 by Bent Hansen against the order of the General Court (Fourth Chamber) delivered on 24 March 2010 in Case T-6/09: Bent Hansen v European Commission | 8 |
| 2010/C 195/14 | Case C-221/10 P: Appeal brought on 7 May 2010 by Artegodan GmbH against the judgment of the General Court (Sixth Chamber) delivered on 3 March 2010 in Case T-429/05 Artegodan GmbH v European Commission, other party to the proceedings: Federal Republic of Germany | 9 |
| 2010/C 195/15 | Case C-222/10 P: Appeal brought on 7 May 2010 by Brigit Lind against the order of the General Court (Fourth Chamber) delivered on 24 March 2010 in Case T-5/09: Brigit Lind v European Commission | 10 |
| 2010/C 195/16 | Case C-223/10: Action brought on 7 May 2010 — European Commission v Republic of Austria | 12 |
| 2010/C 195/17 | Case C-229/10: Reference for a preliminary ruling from the Tribunal Cível da Comarca do Porto (Portugal) lodged on 10 May 2010 — Maria Alice Pendão Lapa Costa Ferreira, Alexandra Pendão Lapa Ferreira v Companhia de Seguros Tranquilidade SA | 12 |
| 2010/C 195/18 | Case C-233/10: Action brought on 11 May 2010 — European Commission v Kingdom of the Netherlands | 13 |
| 2010/C 195/19 | Case C-246/01: Action brought on 18 May 2010 — European Commission v Grand Duchy of Luxembourg | 13 |
| 2010/C 195/20 | Case C-251/10 P: Appeal brought on 20 May 2010 by KEK Diavlos against the judgment delivered on 18 March 2010 in Case T-190/07 KEK Diavlos v European Commission | 14 |
| 2010/C 195/21 | Case C-253/10: Action brought on 19 May 2010 — European Commission v Slovak Republic | 14 |
| 2010/C 195/22 | Case C-257/10: Reference for a preliminary ruling from the Regeringsrätten (Sweden) lodged on 25 May 2010 — Försäkringskässan v Elisabeth Bergström | 15 |
| 2010/C 195/23 | Case C-146/09: Order of the President of the Fourth Chamber of the Court of 22 April 2010 (reference for a preliminary ruling from the Bundesgerichtshof (Germany)) — Prof. Dr. Claus Scholl v Stadtwerke Aachen AG | 15 |
| 2010/C 195/24 | Case C-491/09: Order of the President of the Court of 6 April 2010 — European Commission v Kingdom of Belgium | 16 |
| 2010/C 195/25 | Case C-553/09 P: Order of the President of the Court of 21 April 2010 — BCS SpA v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Deere & Company | 16 |
| | General Court |
| 2010/C 195/26 | Case T-35/09: Judgment of the General Court of 2 June 2010 — Procaps v OHIM — Biofarma (PROCAPS) (Community trade mark — Opposition procedure — Application for the Community word mark PROCAPS — Earlier national and international word marks PROCAPTAN — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Similarity of the goods and services — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009)) | 17 |
| 2010/C 195/27 | Case T-128/08 and Case T-241/08: Order of the General Court of 5 May 2010 — CBI and ABISP v Commission (State aid — Subsidies granted to public hospitals by the Belgian authorities — Service of general economic interest — Complaint — Alleged decision to take no further action on the complaint — Subsequent adoption of a decision declaring the aid to be compatible with the common market — No need to adjudicate) | 17 |
| 2010/C 195/28 | Case T-441/08: Order of the General Court of 21 May 2010 — ICO Services v Parliament and Council (Actions for annulment — Decision No 626/2008/EC — Common framework for the selection and authorisation of operators of systems providing mobile satellite services — Absence of direct concern — Inadmissibility) | 18 |
| 2010/C 195/29 | Case T-502/08: Order of the General Court of 17 May 2010 — Volkswagen v OHIM — Deutsche BP (SunGasoline) (Community trade mark — Opposition — Withdrawal of opposition — No need to rule) | 18 |
| 2010/C 195/30 | Case T-200/09: Order of the General Court of 18 May 2010 — Abertis Infraestructuras v Commission (Action for annulment — Concentrations — Decision to close the procedure initiated under Article 21(4) of Regulation (EC) No 139/2004 — Period within which proceedings must be brought — Starting point — Inadmissibility) | 18 |
| 2010/C 195/31 | Case T-15/10 R: Order of the General Court of 26 May 2010 — Noko Ngele v Commission (Application for interim measures — Formal requirements — Inadmissibility) | 19 |
| 2010/C 195/32 | Case T-194/10: Action brought on 28 April 2010 — Hungary v Commission | 19 |
| 2010/C 195/33 | Case T-207/10: Action brought on 6 May 2010 — Deutsche Telekom v Commission | 20 |
| 2010/C 195/34 | Case T-211/10: Action brought on 3 May 2010 — Strålfors Aktiebolag v OHMI (ID SOLUTIONS) | 21 |
| 2010/C 195/35 | Case T-212/10: Action brought on 3 May 2010 — Strålfors Aktiebolag v OHMI (IDENTIFICATION SOLUTIONS) | 21 |
| 2010/C 195/36 | Case T-213/10 P: Appeal brought on 10 May 2010 by P against the judgment of the Civil Service Tribunal delivered on 24 February 2010 in Case F-89/08 P v Parliament | 22 |
| 2010/C 195/37 | Case T-214/10: Action brought on 7 May 2010 — Moselland v OHIM — Renta Siete (DIVINUS) | 23 |
| 2010/C 195/38 | Case T-215/10: Action brought on 11 May 2010 — Hellenic Republic v Commission | 23 |
| 2010/C 195/39 | Case T-216/10: Action brought on 10 May 2010 — Monster Cable Products v OHIM — Live Nation (Music) UK Ltd (MONSTER ROCK) | 25 |
| 2010/C 195/40 | Case T-217/10: Action brought on 11 May 2010 — Rautaruukki Oyj v OHIM — Manuel Vigil Pérez (MONTERREY) | 26 |
| 2010/C 195/41 | Case T-218/10: Action brought on 12 May 2010 — DHL International v OHIM — Service Point Solutions (SERVICEPOINT) | 26 |
| 2010/C 195/42 | Case T-222/10: Action brought on 12 May 2010 — ratiopharm v OHIM — nycomed (ZUFAL) | 27 |
| 2010/C 195/43 | Case T-227/10: Action brought on 18 May 2010 — Banco Santander v Commission | 28 |
| 2010/C 195/44 | Case T-228/10: Action brought on 21 May 2010 — Telefónica v Commission | 28 |
| 2010/C 195/45 | Case T-229/10: Action brought on 21 May 2010 — Graf-Syteco v OHIM — Teco Electric & Machinery (SYTECO) | 28 |
| 2010/C 195/46 | Case T-232/10: Action brought on 21 May 2010 — Couture Tech Limited v OHMI (representation of an escutcheon containing the globe, a star, the hammer and sickle) | 29 |
| 2010/C 195/47 | Case T-233/10: Action brought on 20 May 2010 — Nike International Ltd v OHIM — Intermar Simanto Nahmias (JUMPMAN) | 30 |
| 2010/C 195/48 | Case T-234/10: Action brought on 18 May 2010 — Ebro Puleva v Commission | 30 |
| 2010/C 195/49 | Case T-236/10: Action brought on 21 May 2010 — Asociación Española de Banca v Commission | 31 |
| 2010/C 195/50 | Case T-239/10: Action brought on 20 May 2010 — Italy v Commission | 31 |
| 2010/C 195/51 | Case T-246/10: Action brought on 25 May 2010 — Industrias Francisco Ivars v OHIM — Motive (Speed reducers) | 31 |
| 2010/C 195/52 | Case T-74/09: Order of the General Court of 17 May 2010 — France v Commission | 32 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2010/C 195/02

Case C-228/09: Judgement of the Court (Third Chamber) of 20 May 2010 — European Commission v Republic of Poland (Failure of a Member State to fulfil its obligations — VAT — Directive 2006/112/EC — Articles 78, 79, 83 and 86 — Taxable amount — Sale of a car — Inclusion in the taxable amount of a duty applicable to non-registered cars)

2

2010/C 195/03

Case C-187/10: Reference for a preliminary ruling from the Raad van State (Netherlands), lodged on 16 April 2010 — Baris Unal v Staatssecretaris van Justitie

2

2010/C 195/04

Case C-190/10: Reference for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 16 April 2010 — Génesis Seguros Generales Sociedad Anónima de Seguros y Reaseguros (GENESIS) v Boys Toys S.A., Administración del Estado

3

2010/C 195/05

Case C-192/10: Action brought on 19 April 2010 — European Commission v Kingdom of Spain

3

2010/C 195/06

Case C-194/10: Reference for a preliminary ruling from the Landgericht Munich I (Germany) lodged on 21 April 2010 — Robert Nicolaus Abt, Daniela Kalwarowskyj, Mangusta Beteiligungs GmbH, Karsten Trippel, VC-Services GmbH, Henning Hahmann v Hypo Real Estate Holding AG

3

2010/C 195/07

Case C-197/10: Reference for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 23 April 2010 — Unió de Pagesos de Catalunya v Administración del Estado and Coordinadora de Organizaciones Agricultores y Ganaderos — Iniciativa Rural del Estado Español

4

2010/C 195/08

Case C-199/10: Reference for a preliminary ruling from the Supremo Tribunal Administrativo lodged on 26 April 2010 — Secilpar v Fazenda Pública

4

2010/C 195/09

Case C-203/10: Reference for a preliminary ruling from the Varhoven administrativen sad na Republika Balgaria (Bulgaria) lodged on 26 April 2010 — Deputy Director of the Appeals and Enforcement Management Directorate at the Central Administration of the National Revenue Agency v Auto Nikolovi OOD

5

2010/C 195/10

Case C-205/10 P: Appeal brought on 30 April 2010 by Heinz Helmuth Eriksen against the order of the General Court (Fourth Chamber) delivered on 24 March 2010 in Case T-516/08: Heinz Helmuth Eriksen v European Commission

6

2010/C 195/11

Case C-210/10: Reference for a preliminary ruling from the Hajdú-Bihar Megyei Biróság (Hungary) lodged on 3 May 2010 — Márton Urbán v Vám- és Pénzügyörség Észak-alföldi regionális Parancsnoksága

7

2010/C 195/12

Case C-213/10: Reference for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas (Republic of Lithuania) lodged on 4 May 2010 — F-Tex SIA v Lietuvos-Anglijos UAB Jadecloud-Vilma

7

2010/C 195/13

Case C-217/10 P: Appeal brought on 5 May 2010 by Bent Hansen against the order of the General Court (Fourth Chamber) delivered on 24 March 2010 in Case T-6/09: Bent Hansen v European Commission

8

2010/C 195/14

Case C-221/10 P: Appeal brought on 7 May 2010 by Artegodan GmbH against the judgment of the General Court (Sixth Chamber) delivered on 3 March 2010 in Case T-429/05 Artegodan GmbH v European Commission, other party to the proceedings: Federal Republic of Germany

9

2010/C 195/15

Case C-222/10 P: Appeal brought on 7 May 2010 by Brigit Lind against the order of the General Court (Fourth Chamber) delivered on 24 March 2010 in Case T-5/09: Brigit Lind v European Commission

10

2010/C 195/16

Case C-223/10: Action brought on 7 May 2010 — European Commission v Republic of Austria

12

2010/C 195/17

Case C-229/10: Reference for a preliminary ruling from the Tribunal Cível da Comarca do Porto (Portugal) lodged on 10 May 2010 — Maria Alice Pendão Lapa Costa Ferreira, Alexandra Pendão Lapa Ferreira v Companhia de Seguros Tranquilidade SA

12

2010/C 195/18

Case C-233/10: Action brought on 11 May 2010 — European Commission v Kingdom of the Netherlands

13

2010/C 195/19

Case C-246/01: Action brought on 18 May 2010 — European Commission v Grand Duchy of Luxembourg

13

2010/C 195/20

Case C-251/10 P: Appeal brought on 20 May 2010 by KEK Diavlos against the judgment delivered on 18 March 2010 in Case T-190/07 KEK Diavlos v European Commission

14

2010/C 195/21

Case C-253/10: Action brought on 19 May 2010 — European Commission v Slovak Republic

14

2010/C 195/22

Case C-257/10: Reference for a preliminary ruling from the Regeringsrätten (Sweden) lodged on 25 May 2010 — Försäkringskässan v Elisabeth Bergström

15

2010/C 195/23

Case C-146/09: Order of the President of the Fourth Chamber of the Court of 22 April 2010 (reference for a preliminary ruling from the Bundesgerichtshof (Germany)) — Prof. Dr. Claus Scholl v Stadtwerke Aachen AG

15

2010/C 195/24

Case C-491/09: Order of the President of the Court of 6 April 2010 — European Commission v Kingdom of Belgium

16

2010/C 195/25

Case C-553/09 P: Order of the President of the Court of 21 April 2010 — BCS SpA v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Deere & Company

16

General Court

2010/C 195/26

Case T-35/09: Judgment of the General Court of 2 June 2010 — Procaps v OHIM — Biofarma (PROCAPS) (Community trade mark — Opposition procedure — Application for the Community word mark PROCAPS — Earlier national and international word marks PROCAPTAN — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Similarity of the goods and services — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))

17

2010/C 195/27

Case T-128/08 and Case T-241/08: Order of the General Court of 5 May 2010 — CBI and ABISP v Commission (State aid — Subsidies granted to public hospitals by the Belgian authorities — Service of general economic interest — Complaint — Alleged decision to take no further action on the complaint — Subsequent adoption of a decision declaring the aid to be compatible with the common market — No need to adjudicate)

17

2010/C 195/28

Case T-441/08: Order of the General Court of 21 May 2010 — ICO Services v Parliament and Council (Actions for annulment — Decision No 626/2008/EC — Common framework for the selection and authorisation of operators of systems providing mobile satellite services — Absence of direct concern — Inadmissibility)

18

2010/C 195/29

Case T-502/08: Order of the General Court of 17 May 2010 — Volkswagen v OHIM — Deutsche BP (SunGasoline) (Community trade mark — Opposition — Withdrawal of opposition — No need to rule)

18

2010/C 195/30

Case T-200/09: Order of the General Court of 18 May 2010 — Abertis Infraestructuras v Commission (Action for annulment — Concentrations — Decision to close the procedure initiated under Article 21(4) of Regulation (EC) No 139/2004 — Period within which proceedings must be brought — Starting point — Inadmissibility)

18

2010/C 195/31

Case T-15/10 R: Order of the General Court of 26 May 2010 — Noko Ngele v Commission (Application for interim measures — Formal requirements — Inadmissibility)

19

2010/C 195/32

Case T-194/10: Action brought on 28 April 2010 — Hungary v Commission

19

2010/C 195/33

Case T-207/10: Action brought on 6 May 2010 — Deutsche Telekom v Commission

20

2010/C 195/34

Case T-211/10: Action brought on 3 May 2010 — Strålfors Aktiebolag v OHMI (ID SOLUTIONS)

21

2010/C 195/35

Case T-212/10: Action brought on 3 May 2010 — Strålfors Aktiebolag v OHMI (IDENTIFICATION SOLUTIONS)

21

2010/C 195/36

Case T-213/10 P: Appeal brought on 10 May 2010 by P against the judgment of the Civil Service Tribunal delivered on 24 February 2010 in Case F-89/08 P v Parliament

22

2010/C 195/37

Case T-214/10: Action brought on 7 May 2010 — Moselland v OHIM — Renta Siete (DIVINUS)

23

2010/C 195/38

Case T-215/10: Action brought on 11 May 2010 — Hellenic Republic v Commission

23

2010/C 195/39

Case T-216/10: Action brought on 10 May 2010 — Monster Cable Products v OHIM — Live Nation (Music) UK Ltd (MONSTER ROCK)

25

2010/C 195/40

Case T-217/10: Action brought on 11 May 2010 — Rautaruukki Oyj v OHIM — Manuel Vigil Pérez (MONTERREY)

26

2010/C 195/41

Case T-218/10: Action brought on 12 May 2010 — DHL International v OHIM — Service Point Solutions (SERVICEPOINT)

26

2010/C 195/42

Case T-222/10: Action brought on 12 May 2010 — ratiopharm v OHIM — nycomed (ZUFAL)

27

2010/C 195/43

Case T-227/10: Action brought on 18 May 2010 — Banco Santander v Commission

28

2010/C 195/44

Case T-228/10: Action brought on 21 May 2010 — Telefónica v Commission

28

2010/C 195/45

Case T-229/10: Action brought on 21 May 2010 — Graf-Syteco v OHIM — Teco Electric & Machinery (SYTECO)

28

2010/C 195/46

Case T-232/10: Action brought on 21 May 2010 — Couture Tech Limited v OHMI (representation of an escutcheon containing the globe, a star, the hammer and sickle)

29

2010/C 195/47

Case T-233/10: Action brought on 20 May 2010 — Nike International Ltd v OHIM — Intermar Simanto Nahmias (JUMPMAN)

30

2010/C 195/48

Case T-234/10: Action brought on 18 May 2010 — Ebro Puleva v Commission

30

2010/C 195/49

Case T-236/10: Action brought on 21 May 2010 — Asociación Española de Banca v Commission

31

2010/C 195/50

Case T-239/10: Action brought on 20 May 2010 — Italy v Commission

31

2010/C 195/51

Case T-246/10: Action brought on 25 May 2010 — Industrias Francisco Ivars v OHIM — Motive (Speed reducers)

31

2010/C 195/52

Case T-74/09: Order of the General Court of 17 May 2010 — France v Commission

32

| EN | |
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EN

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

| 17.7.2010 | EN | Official Journal of the European Union | C 195/1 |
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17.7.2010

EN

Official Journal of the European Union

C 195/1

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2010/C 195/01

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

OJ C 179, 3.7.2010

Past publications

OJ C 161, 19.6.2010

OJ C 148, 5.6.2010

OJ C 134, 22.5.2010

OJ C 113, 1.5.2010

OJ C 100, 17.4.2010

OJ C 80, 27.3.2010

These texts are available on:

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

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V Announcements

COURT PROCEEDINGS

Court of Justice

| 17.7.2010 | EN | Official Journal of the European Union | C 195/2 |
| --- | --- | --- | --- |

17.7.2010

EN

Official Journal of the European Union

C 195/2

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Judgement of the Court (Third Chamber) of 20 May 2010 — European Commission v Republic of Poland

(Case C-228/09) (1)

(Failure of a Member State to fulfil its obligations - VAT - Directive 2006/112/EC - Articles 78, 79, 83 and 86 - Taxable amount - Sale of a car - Inclusion in the taxable amount of a duty applicable to non-registered cars)

2010/C 195/02

Language of the case: Polish

Parties

Applicant: European Commission (represented by: D. Triantafyllou and A. Stobiecka-Kuik, acting as Agents)

Defendant: Republic of Poland (represented by: M. Dowgielewicz, M. Jarosz and A. Rutkowska, acting as Agents)

Re:

Failure of a Member State to fulfil its obligations — Infringement of Articles 78, 79, 83 and 86 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — Sale of a motor vehicle — Inclusion in the taxable amount of a duty payable on the registration of a vehicle

Operative part of the judgment

The Court:

| 1. | Dismisses the application. |
| --- | --- |

1.

Dismisses the application.

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

2.

Orders the European Commission to pay the costs.

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(1)  OJ C 233 of 26.9.2009.

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| 17.7.2010 | EN | Official Journal of the European Union | C 195/2 |
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17.7.2010

EN

Official Journal of the European Union

C 195/2

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Reference for a preliminary ruling from the Raad van State (Netherlands), lodged on 16 April 2010 — Baris Unal v Staatssecretaris van Justitie

(Case C-187/10)

2010/C 195/03

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Appellant: Baris Unal

Respondent: Staatssecretaris van Justitie

Question referred

Does the first indent of Article 6(1) of Decision No 1/80 of the Association Council of 19 September 1980 on the development of the Association [adopted by the Association Council established pursuant to the Association Agreement between the European Economic Community and Turkey], having regard also to the principle of legal certainty, in a situation in which there is no question of fraudulent conduct, preclude the competent national authorities from withdrawing, after the expiry of the one-year period referred to in the aforementioned first indent of Article 6(1), the residence permit of a Turkish worker with retroactive effect from the point in time at which there was no longer compliance with the ground on the basis of which the residence permit had been issued under national law?

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| 17.7.2010 | EN | Official Journal of the European Union | C 195/3 |
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17.7.2010

EN

Official Journal of the European Union

C 195/3

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Reference for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 16 April 2010 — Génesis Seguros Generales Sociedad Anónima de Seguros y Reaseguros (GENESIS) v Boys Toys S.A., Administración del Estado

(Case C-190/10)

2010/C 195/04

Language of the case: Spanish

Referring court

Tribunal Supremo

Parties to the main proceedings

Applicant: Génesis Seguros Generales Sociedad Anónima de Seguros y Reaseguros (GENESIS)

Defendant: Boys Toys S.A. y Administración del Estado

Question referred

May Article 27 of Council Regulation (EC) No 40/94 (1) of 20 December 1993 on the Community trade mark be interpreted in such a way as to enable account to be taken not only of the day but also of the hour and minute of filing of an application for registration of a Community trade mark with OHIM (provided that such information has been recorded) for the purposes of establishing temporal priority over a national trade mark application filed on the same day, where the national legislation governing the registration of national trade marks considers the time of filing to be relevant?

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(1)  OJ 1994 L 11, p. 1.

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| 17.7.2010 | EN | Official Journal of the European Union | C 195/3 |
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17.7.2010

EN

Official Journal of the European Union

C 195/3

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Action brought on 19 April 2010 — European Commission v Kingdom of Spain

(Case C-192/10)

2010/C 195/05

Language of the case: Spanish

Parties

Applicant: European Commission (represented by: S. Pardo Quintillán and A. Marghelis, Agents)

Defendant: Kingdom of Spain

Form of order sought

| — | declare that the Kingdom of Spain, by failing to adopt the measures necessary to ensure the fulfilment of the obligations relating to the closure and monitoring and control in the aftercare phase of the Cova da Loba landfill site, situated in O Grove (Pontevedra, Galicia), has not complied with its obligations under Articles 13 and 14 of Council Directive 1999/31/EC (1) of 26 April 1999 on the landfill of waste; |
| --- | --- |

—

declare that the Kingdom of Spain, by failing to adopt the measures necessary to ensure the fulfilment of the obligations relating to the closure and monitoring and control in the aftercare phase of the Cova da Loba landfill site, situated in O Grove (Pontevedra, Galicia), has not complied with its obligations under Articles 13 and 14 of Council Directive 1999/31/EC (1) of 26 April 1999 on the landfill of waste;

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

—

order Kingdom of Spain to pay the costs.

Pleas in law and main arguments

| 1. | The main purpose of Directive 1999/31/EC is to prevent or reduce as far as possible negative effects on the environment, in particular the pollution of surface water, groundwater, soil and air, and on the global environment, including the greenhouse effect, as well as any resulting risk to human health, from landfilling of waste, during the whole life-cycle of the landfill. |
| --- | --- |

1.

The main purpose of Directive 1999/31/EC is to prevent or reduce as far as possible negative effects on the environment, in particular the pollution of surface water, groundwater, soil and air, and on the global environment, including the greenhouse effect, as well as any resulting risk to human health, from landfilling of waste, during the whole life-cycle of the landfill.

| 2. | As is apparent from the information communicated by the competent Spanish authorities, the Cova da Loba landfill site was authorised in 2000. It is, thus, an existing landfill site for the purposes of Article 14 of Directive 1999/31/EC. |
| --- | --- |

2.

As is apparent from the information communicated by the competent Spanish authorities, the Cova da Loba landfill site was authorised in 2000. It is, thus, an existing landfill site for the purposes of Article 14 of Directive 1999/31/EC.

| 3. | The Cova da Loba landfill site was abandoned without closure or ensuring its monitoring and control in the aftercare phase, as laid down in Article 13 of the directive. |
| --- | --- |

3.

The Cova da Loba landfill site was abandoned without closure or ensuring its monitoring and control in the aftercare phase, as laid down in Article 13 of the directive.

| 4. | Thus, it follows from the information transmitted by the Spanish authorities that the closure of the Cova da Loba landfill site has not yet been completed. The situation of that landfill site thus infringes, on the basis of the foregoing considerations, what is laid down in Article 14 of Directive 1999/31/EC. |
| --- | --- |

4.

Thus, it follows from the information transmitted by the Spanish authorities that the closure of the Cova da Loba landfill site has not yet been completed. The situation of that landfill site thus infringes, on the basis of the foregoing considerations, what is laid down in Article 14 of Directive 1999/31/EC.

---

(1)  OJ 1999 L 182, p. 1.

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| 17.7.2010 | EN | Official Journal of the European Union | C 195/3 |
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Reference for a preliminary ruling from the Landgericht Munich I (Germany) lodged on 21 April 2010 — Robert Nicolaus Abt, Daniela Kalwarowskyj, Mangusta Beteiligungs GmbH, Karsten Trippel, VC-Services GmbH, Henning Hahmann v Hypo Real Estate Holding AG

(Case C-194/10)

2010/C 195/06

Language of the case: German

Referring court

Landgericht Munich I

Parties to the main proceedings

Applicants: Robert Nicolaus Abt, Daniela Kalwarowskyj, Mangusta Beteiligungs GmbH, Karsten Trippel, VC-Services GmbH, Henning Hahmann

Defendant: Hypo Real Estate Holding AG

Interveners: Klaus E.H. Zapf, Inge Jung-Arend

Questions referred

| 1. | Is Article 5(1) of Directive 2007/36/EC (1) already to be applied, on account of the requirement under European law to refrain from measures liable to compromise a directive, where the national legislature has enacted a measure that will cease to have effect on the expiry of the transposition period but which, during that period, permits the period for convening a general meeting to be shortened to one day, where the general meeting passes a resolution (to increase the capital, subscriptions rights being excluded) that, on statutory grounds, remains valid after registration in the commercial register even if that resolution is annulled on the basis of a successful action for annulment? |
| --- | --- |

1.

Is Article 5(1) of Directive 2007/36/EC (1) already to be applied, on account of the requirement under European law to refrain from measures liable to compromise a directive, where the national legislature has enacted a measure that will cease to have effect on the expiry of the transposition period but which, during that period, permits the period for convening a general meeting to be shortened to one day, where the general meeting passes a resolution (to increase the capital, subscriptions rights being excluded) that, on statutory grounds, remains valid after registration in the commercial register even if that resolution is annulled on the basis of a successful action for annulment?

| 2. | If that question is answered in the affirmative: may the infringement of Article 5(1) of Directive 2007/36/EC be justified by Community law requirements, in particular Article 297 EC? |
| --- | --- |

2.

If that question is answered in the affirmative: may the infringement of Article 5(1) of Directive 2007/36/EC be justified by Community law requirements, in particular Article 297 EC?

---

(1)  Directive 2007/36/EC of the European Parliament and of the Council of 11 July 2007 on the exercise of certain rights of shareholders in listed companies; OJ 2007 L 184, p. 17.

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| 17.7.2010 | EN | Official Journal of the European Union | C 195/4 |
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C 195/4

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Reference for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 23 April 2010 — Unió de Pagesos de Catalunya v Administración del Estado and Coordinadora de Organizaciones Agricultores y Ganaderos — Iniciativa Rural del Estado Español

(Case C-197/10)

2010/C 195/07

Language of the case: Spanish

Referring court

Tribunal Supremo

Parties to the main proceedings

Applicant: Unió de Pagesos de Catalunya

Defendants: Administración del Estado and Coordinadora de Organizaciones Agricultores y Ganaderos — Iniciativa Rural del Estado Español

Question referred

Is Article 9(2)(b) of Royal Decree 1470/2007 of 2 November 2007, which makes the opportunity to acquire entitlement to single payments from the national reserve subject to the condition that young farmers should have set up their first business under a Rural Development Programme established under Council Regulation No 1698/2005 (1) of 20 September 2005, compatible with Article 42(3) of Council Regulation (EC) No 1782/2003 (2) of 29 September 2003?

---

(1)  Council Regulation (EC) No 1698/2005 of 20 September 2005 on support for rural development by the European Agricultural Fund for Rural Development (EAFRD) (OJ 2005 L 277, p. 1).

(2)  Council Regulation (EC) No 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers and amending Regulations (EEC) No 2019/93, (EC) No 1452/2001, (EC) No 1453/2001, (EC) No 1454/2001, (EC) 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, (EC) No 1673/2000, (EEC) No 2358/71 and (EC) No 2529/2001 (OJ 2003 L 270, p. 1).

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| 17.7.2010 | EN | Official Journal of the European Union | C 195/4 |
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Reference for a preliminary ruling from the Supremo Tribunal Administrativo lodged on 26 April 2010 — Secilpar v Fazenda Pública

(Case C-199/10)

2010/C 195/08

Language of the case: Portuguese

Referring court

Supremo Tribunal Administrativo

Parties to the main proceedings

Applicant: Secilpar

Defendant: Fazenda Pública

Question referred

Having regard to the provisions of the Double Taxation Convention concluded between Portugal and Spain, does the deduction at source of [corporate] income tax for the year 2003, applied to a company not resident within national territory at the rate of 15 %, as the result of cash dividends made available to it in its capacity of shareholder of a company resident in a Member State, in accordance with Articles 80(2)(c) and 88(3)(b), (4) and (5) of the Código do IRC, Article 71(a) and (d) of the Código do IRS and Article 59 of the EBF as then worded, breach the principles of non-discrimination, freedom of establishment and free movement of capital embodied in Articles 12, 43, 46, 56 and 58(3) of the EC Treaty and Article 5(1) of Directive 90/435/EEC? (1)

---

(1)  Council Directive 90/435/EEC of 23 July 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States — OJ 1990 L 225, p. 6.

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| 17.7.2010 | EN | Official Journal of the European Union | C 195/5 |
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Reference for a preliminary ruling from the Varhoven administrativen sad na Republika Balgaria (Bulgaria) lodged on 26 April 2010 — Deputy Director of the Appeals and Enforcement Management Directorate at the Central Administration of the National Revenue Agency v Auto Nikolovi OOD

(Case C-203/10)

2010/C 195/09

Language of the case: Bulgarian

Referring court

Varhoven administrativen sad na Republika Balgaria

Parties to the main proceedings

Appellant: Deputy Director of the Appeals and Enforcement Management Directorate at the Central Administration of the National Revenue Agency

Respondent: Auto Nikolovi OOD

Questions referred

| 1. | Does the term ‘second-hand goods’ set out in Article 311(1)(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (1) also cover second-hand movable property which is not individualised (by mark, model, serial number, year of manufacture etc.) in such a way that it can be distinguished from goods of the same variety but is instead identified by generic features? |
| --- | --- |

1.

Does the term ‘second-hand goods’ set out in Article 311(1)(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (1) also cover second-hand movable property which is not individualised (by mark, model, serial number, year of manufacture etc.) in such a way that it can be distinguished from goods of the same variety but is instead identified by generic features?

| 2. | Does the phrase ‘as defined by the Member States’ contained in Article 311(1)(1) of Council Regulation 2006/112/EC grant Member States the possibility of defining the term ‘second-hand goods’ themselves, or must the definition of this term in the directive be reproduced strictly in national law? |
| --- | --- |

2.

Does the phrase ‘as defined by the Member States’ contained in Article 311(1)(1) of Council Regulation 2006/112/EC grant Member States the possibility of defining the term ‘second-hand goods’ themselves, or must the definition of this term in the directive be reproduced strictly in national law?

| 3. | Is the requirement, incorporated into national law, that second-goods be individually identified, consistent with the spirit and purpose of the definition of ‘second-hand goods’ in Community law? |
| --- | --- |

3.

Is the requirement, incorporated into national law, that second-goods be individually identified, consistent with the spirit and purpose of the definition of ‘second-hand goods’ in Community law?

| 4. | Having regard to the aims set out in recital (51) of the preamble to Council Directive 2006/112/EC, can it be concluded that the phrase ‘where those goods have been supplied to him within the Community’ contained in Article 314(1) thereof also covers the importation of second-hand goods which the taxable dealer has imported himself? |
| --- | --- |

4.

Having regard to the aims set out in recital (51) of the preamble to Council Directive 2006/112/EC, can it be concluded that the phrase ‘where those goods have been supplied to him within the Community’ contained in Article 314(1) thereof also covers the importation of second-hand goods which the taxable dealer has imported himself?

| 5. | If the arrangements under the margin scheme are also applicable to the supply of second-hand goods by a taxable dealer who has imported those goods himself, must the person from whom the taxable dealer has acquired those goods belong to one of the categories of person referred to in Article 314(a) to (d)? |
| --- | --- |

5.

If the arrangements under the margin scheme are also applicable to the supply of second-hand goods by a taxable dealer who has imported those goods himself, must the person from whom the taxable dealer has acquired those goods belong to one of the categories of person referred to in Article 314(a) to (d)?

| 6. | Is the list of goods contained in Article 320(1) of Council Directive 2006/112/EC exhaustive? |
| --- | --- |

6.

Is the list of goods contained in Article 320(1) of Council Directive 2006/112/EC exhaustive?

| 7. | Are the first subparagraph of Article 320(1) and Article 320(2) of Council Directive 2006/112/EC to be interpreted as meaning that they preclude a national provision under which the taxable dealer’s right to deduct as input tax the VAT paid by him on the importation of second-hand goods arises and is exercised in the period during which those goods were supplied in connection with a subsequent taxable supply to which the taxable dealer applies the normal tax arrangements? |
| --- | --- |

7.

Are the first subparagraph of Article 320(1) and Article 320(2) of Council Directive 2006/112/EC to be interpreted as meaning that they preclude a national provision under which the taxable dealer’s right to deduct as input tax the VAT paid by him on the importation of second-hand goods arises and is exercised in the period during which those goods were supplied in connection with a subsequent taxable supply to which the taxable dealer applies the normal tax arrangements?

| 8. | Do Articles 314(a) to (d), the first subparagraph of Article 320(1), and Article 320(2) of Directive 2006/112/EC have direct effect and can the national court rely on them directly in a case such as the present? |
| --- | --- |

8.

Do Articles 314(a) to (d), the first subparagraph of Article 320(1), and Article 320(2) of Directive 2006/112/EC have direct effect and can the national court rely on them directly in a case such as the present?

---

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

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| 17.7.2010 | EN | Official Journal of the European Union | C 195/6 |
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Appeal brought on 30 April 2010 by Heinz Helmuth Eriksen against the order of the General Court (Fourth Chamber) delivered on 24 March 2010 in Case T-516/08: Heinz Helmuth Eriksen v European Commission

(Case C-205/10 P)

2010/C 195/10

Language of the case: English

Parties

Appellant: Heinz Helmuth Eriksen (represented by: I. Anderson, Advocate)

Other party to the proceedings: European Commission

Form of order sought

The applicant claims that the Court should:

| — | Annul in its entirety the General Court's decision and order of March 24th 2010 dismissing Appellant's Application as manifestly inadmissible with costs. |
| --- | --- |

—

Annul in its entirety the General Court's decision and order of March 24th 2010 dismissing Appellant's Application as manifestly inadmissible with costs.

| — | Retain jurisdiction over Appellant's Appeal and order the Commission to pay Appellant;






  (a) | the sum of EUR 800,000 or such other sum as the Court may consider just and equitable for past, present and future pain and suffering and diminution of enjoyment of life, from serious injury to his health as a result of the Commission's capricious and unlawful refusal to enforce implementation of Directive 96/29’s (1) provisions for precautionary medical monitoring for radiation illnesses in the case of the Thule special intervention teams. |
| --- | --- | --- |

—

Retain jurisdiction over Appellant's Appeal and order the Commission to pay Appellant;

(a)

the sum of EUR 800,000 or such other sum as the Court may consider just and equitable for past, present and future pain and suffering and diminution of enjoyment of life, from serious injury to his health as a result of the Commission's capricious and unlawful refusal to enforce implementation of Directive 96/29’s (1) provisions for precautionary medical monitoring for radiation illnesses in the case of the Thule special intervention teams.

| (b) | Payment to Appellant or his medical treating facilities or his care givers, of the future costs of medical treatments and medications to alleviate and or treat his impaired health, referred to in Para. a) above, which are not available to him through the socialized medical system of his member state. |
| --- | --- |

(b)

Payment to Appellant or his medical treating facilities or his care givers, of the future costs of medical treatments and medications to alleviate and or treat his impaired health, referred to in Para. a) above, which are not available to him through the socialized medical system of his member state.

| (c) | Reasonable legal costs and disbursements incurred by Appellant in the General Court and in the present proceedings. |
| --- | --- |

(c)

Reasonable legal costs and disbursements incurred by Appellant in the General Court and in the present proceedings.

Pleas in law and main arguments

| 1. | The General Court erred in dismissing Appellant's non- contractual liability case as inadmissible by distorting both the nature of his claims and his pleas in law. As a result of such distortion, the Court failed to consider unlawfulness in the context of the Commission's capricious and disingenuous pretexts for refusing to act — which inaction eviscerated the Uniform Health Safety Standards for the protections of workers and the public in cases of radiological accidents caused by the military use of nuclear energy. |
| --- | --- |

1.

The General Court erred in dismissing Appellant's non- contractual liability case as inadmissible by distorting both the nature of his claims and his pleas in law. As a result of such distortion, the Court failed to consider unlawfulness in the context of the Commission's capricious and disingenuous pretexts for refusing to act — which inaction eviscerated the Uniform Health Safety Standards for the protections of workers and the public in cases of radiological accidents caused by the military use of nuclear energy.

| 2. | Failure to Apply Legal Principles Common to Member States The Court failed to assess the unlawfulness of the Commission's lack of care, diligence and sound administration with reference to legal principles common to member state systems for determining administrative accountability for damage caused to individuals, as required under Article 188 of the EAEC Treaty. |
| --- | --- |

2.

Failure to Apply Legal Principles Common to Member States The Court failed to assess the unlawfulness of the Commission's lack of care, diligence and sound administration with reference to legal principles common to member state systems for determining administrative accountability for damage caused to individuals, as required under Article 188 of the EAEC Treaty.

| 3. | Inappropriate Application of Commission's Unique Competition Law Exemption- Powers To Admissibility of Health Standards Complaint The Court further erred by considering the Commission's military exemption of the radiological accident at Thule from the Directive's health protections, in the light of the Commission's wide and unique discretion to formulate EU competition policy by discretionary exemptions of unlawful trade agreements. This ignored admissibility decisions of this Court in other EU areas where the Commission does not possess such a unique discretion and where allegations of the Commission's failure to act did not deem a claim manifestly inadmissible.
  The Court overlooked the fact that Commission does not have a unique and unfettered discretion to enforce the Uniform Health Safety Standards since the EAEC Treaty narrowly defines its exemption- power and specifically provides mechanisms for individuals to complain of its administrative failures to act in areas where protections have been conferred on them. This includes situations where the refusal to act has been addressed to another party. |
| --- | --- |

3.

Inappropriate Application of Commission's Unique Competition Law Exemption- Powers To Admissibility of Health Standards Complaint The Court further erred by considering the Commission's military exemption of the radiological accident at Thule from the Directive's health protections, in the light of the Commission's wide and unique discretion to formulate EU competition policy by discretionary exemptions of unlawful trade agreements. This ignored admissibility decisions of this Court in other EU areas where the Commission does not possess such a unique discretion and where allegations of the Commission's failure to act did not deem a claim manifestly inadmissible.

The Court overlooked the fact that Commission does not have a unique and unfettered discretion to enforce the Uniform Health Safety Standards since the EAEC Treaty narrowly defines its exemption- power and specifically provides mechanisms for individuals to complain of its administrative failures to act in areas where protections have been conferred on them. This includes situations where the refusal to act has been addressed to another party.

| 4. | Failure to Consider Whether Commission's Refusal to Act Violated EAEC Treaty's Designated Object of Protecting the Health of Workers and the Public.
  The Court also erred by failing to enquire into whether the Commission's refusal to act violated the EAEC Treaty's objectives of establishing and ensuring the application of Uniform Health Safety Standards to protect workers and the public from the long term effects of ionizing radiation. In doing so it overlooked the Commission's peremptory duty under the EAEC Treaty to ensure that the provisions of the Treaty are properly applied, including its embodied precautionary principle. |
| --- | --- |

4.

Failure to Consider Whether Commission's Refusal to Act Violated EAEC Treaty's Designated Object of Protecting the Health of Workers and the Public.

The Court also erred by failing to enquire into whether the Commission's refusal to act violated the EAEC Treaty's objectives of establishing and ensuring the application of Uniform Health Safety Standards to protect workers and the public from the long term effects of ionizing radiation. In doing so it overlooked the Commission's peremptory duty under the EAEC Treaty to ensure that the provisions of the Treaty are properly applied, including its embodied precautionary principle.

---

(1)  Council Directive 96/29/Euratom of 13 May 1996 laying down basic safety standards for the protection of the health of workers and the general public against the dangers arising from ionizing radiation

OJ L 159, p. 1

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| 17.7.2010 | EN | Official Journal of the European Union | C 195/7 |
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Reference for a preliminary ruling from the Hajdú-Bihar Megyei Biróság (Hungary) lodged on 3 May 2010 — Márton Urbán v Vám- és Pénzügyörség Észak-alföldi regionális Parancsnoksága

(Case C-210/10)

2010/C 195/11

Language of the case: Hungarian

Referring court

Hajdú-Bihar Megyei Biróság

Parties to the main proceedings

Applicant: Márton Urbán

Defendant: Vám- és Pénzügyörség Észak-alföldi regionális Parancsnoksága

Questions referred

| 1. | Is a system of penalties under which it is mandatory to impose identical financial penalties of up to HUF 100 000 for any breach of the requirements laid down in Articles 13 to 16 of Council Regulation No 3821/85/EEC (1) concerning the use of record sheets for recording equipment in road transport consistent with the requirement of proportionality laid down by Article 19(1) and (4) of Regulation (EC) No 561/2006 (2) of the European Parliament and of the Council of 15 March 2006 on the harmonisation of certain social legislation relating to road transport and amending Council Regulations (EEC) No 3821/85 and (EC) No 2135/98 and repealing Council Regulation (EEC) No 3820/85? |
| --- | --- |

1.

Is a system of penalties under which it is mandatory to impose identical financial penalties of up to HUF 100 000 for any breach of the requirements laid down in Articles 13 to 16 of Council Regulation No 3821/85/EEC (1) concerning the use of record sheets for recording equipment in road transport consistent with the requirement of proportionality laid down by Article 19(1) and (4) of Regulation (EC) No 561/2006 (2) of the European Parliament and of the Council of 15 March 2006 on the harmonisation of certain social legislation relating to road transport and amending Council Regulations (EEC) No 3821/85 and (EC) No 2135/98 and repealing Council Regulation (EEC) No 3820/85?

| 2. | Is a system of penalties which does not adjust the amount of the penalty according to the gravity of the breach of the rules consistent with the requirement of proportionality? |
| --- | --- |

2.

Is a system of penalties which does not adjust the amount of the penalty according to the gravity of the breach of the rules consistent with the requirement of proportionality?

| 3. | Is a system of penalties which does not allow of any possible defence to a breach of the rules consistent with the requirement of proportionality? |
| --- | --- |

3.

Is a system of penalties which does not allow of any possible defence to a breach of the rules consistent with the requirement of proportionality?

| 4. | Is a system of penalties which makes no distinction according to the personal circumstances of the offenders consistent with the requirement of proportionality? |
| --- | --- |

4.

Is a system of penalties which makes no distinction according to the personal circumstances of the offenders consistent with the requirement of proportionality?

---

(1)  Council Regulation (EEC) No 3821/85 of 20 December 1985 on recording equipment in road transport; OJ 1985 L 370, p. 8, Special edition in Hungarian, Chapter 7, Volume 1, p. 227.

(2)  Regulation (EC) No 561/2006 of the European Parliament and of the Council of 15 March 2006 on the harmonisation of certain social legislation relating to road transport and amending Council Regulations (EEC) No 3821/85 and (EC) No 2135/98 and repealing Council Regulation (EEC) No 3820/85 (Text with EEA relevance) — Declaration; OJ 1998 L 102, p. 1.

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| 17.7.2010 | EN | Official Journal of the European Union | C 195/7 |
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Reference for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas (Republic of Lithuania) lodged on 4 May 2010 — F-Tex SIA v Lietuvos-Anglijos UAB ‘Jadecloud-Vilma’

(Case C-213/10)

2010/C 195/12

Language of the case: Lithuanian

Referring court

Lietuvos Aukščiausiasis Teismas

Parties to the main proceedings

Applicant: F-Tex SIA

Defendant: Lietuvos-Anglijos UAB ‘Jadecloud-Vilma’

Questions referred

| 1. | Having regard to the judgments of the Court of Justice in Gourdain and Seagon, do Article 3(1) of Regulation No 1346/2000 (1) and Article 1(2)(b) of Regulation No 44/2001 (2) have to be interpreted in such a way that:






  (a) | a national court hearing insolvency proceedings has exclusive jurisdiction to hear an actio Pauliana which derives directly from the insolvency proceedings or is closely connected with them, and exceptions to such jurisdiction can be founded only on other provisions of Regulation No 1346/2000; |
| --- | --- | --- |

1.

Having regard to the judgments of the Court of Justice in Gourdain and Seagon, do Article 3(1) of Regulation No 1346/2000 (1) and Article 1(2)(b) of Regulation No 44/2001 (2) have to be interpreted in such a way that:

(a)

a national court hearing insolvency proceedings has exclusive jurisdiction to hear an actio Pauliana which derives directly from the insolvency proceedings or is closely connected with them, and exceptions to such jurisdiction can be founded only on other provisions of Regulation No 1346/2000;

| (b) | an actio Pauliana by the sole creditor of an undertaking in respect of which insolvency proceedings have been initiated in one Member State, that:






  — | is brought in another Member State, |
| --- | --- | --- |

(b)

an actio Pauliana by the sole creditor of an undertaking in respect of which insolvency proceedings have been initiated in one Member State, that:

—

is brought in another Member State,

| — | arises from a right of claim against third parties assigned to him by the liquidator on the basis of an agreement for consideration, restricting in that way the extent of the liquidator’s claims in the first Member State, and |
| --- | --- |

—

arises from a right of claim against third parties assigned to him by the liquidator on the basis of an agreement for consideration, restricting in that way the extent of the liquidator’s claims in the first Member State, and

| — | does not give rise to a danger for other possible creditors, |
| --- | --- |

—

does not give rise to a danger for other possible creditors,

is to be classified as a civil and commercial matter under Article 1(1) of Regulation No 44/2001?

| 2. | Does an applicant’s right to judicial protection, which is recognised by the Court of Justice as a general principle of European Union law and which is guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union, have to be understood and interpreted in such a way that:






  (a) | the national courts having jurisdiction to hear an actio Pauliana (depending upon its connection with the insolvency proceedings) either under Article 3(1) of Regulation No 1346/2000 or under Article 2(1) of Regulation No 44/2001 cannot both decline jurisdiction; |
| --- | --- | --- |

2.

Does an applicant’s right to judicial protection, which is recognised by the Court of Justice as a general principle of European Union law and which is guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union, have to be understood and interpreted in such a way that:

(a)

the national courts having jurisdiction to hear an actio Pauliana (depending upon its connection with the insolvency proceedings) either under Article 3(1) of Regulation No 1346/2000 or under Article 2(1) of Regulation No 44/2001 cannot both decline jurisdiction;

| (b) | where a court of one Member State has decided to leave an actio Pauliana unheard for want of jurisdiction, a court of another Member State, seeking to safeguard the applicant’s right to a court, has the right to find of its own motion that it itself has jurisdiction, regardless of the fact that according to the provisions of European Union law concerning the determination of international jurisdiction it cannot so decide? |
| --- | --- |

(b)

where a court of one Member State has decided to leave an actio Pauliana unheard for want of jurisdiction, a court of another Member State, seeking to safeguard the applicant’s right to a court, has the right to find of its own motion that it itself has jurisdiction, regardless of the fact that according to the provisions of European Union law concerning the determination of international jurisdiction it cannot so decide?

---

(1)  Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings (OJ 2000 L 160, p. 1).

(2)  Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2004 L 12, p. 1).

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| 17.7.2010 | EN | Official Journal of the European Union | C 195/8 |
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Appeal brought on 5 May 2010 by Bent Hansen against the order of the General Court (Fourth Chamber) delivered on 24 March 2010 in Case T-6/09: Bent Hansen v European Commission

(Case C-217/10 P)

2010/C 195/13

Language of the case: English

Parties

Appellant: Bent Hansen (represented by: I. Anderson, Advocate)

Other party to the proceedings: European Commission

Form of order sought

The applicant claims that the Court should:

| — | Annul in its entirety the General Court's decision and order of March 24th 2010 dismissing Appellant's Application as manifestly inadmissible with costs. |
| --- | --- |

—

Annul in its entirety the General Court's decision and order of March 24th 2010 dismissing Appellant's Application as manifestly inadmissible with costs.

| — | Retain jurisdiction over Appellant's Appeal and order the Commission to pay Appellant;






  (a) | the sum of EUR 800 000 or such other sum as the Court may consider just and equitable for past, present and future pain and suffering and diminution of enjoyment of life, from serious injury to his health as a result of the Commission's capricious and unlawful refusal to enforce implementation of Directive 96/29’s (1) provisions for precautionary medical monitoring for radiation illnesses in the case of the Thule special intervention teams. |
| --- | --- | --- |

—

Retain jurisdiction over Appellant's Appeal and order the Commission to pay Appellant;

(a)

the sum of EUR 800 000 or such other sum as the Court may consider just and equitable for past, present and future pain and suffering and diminution of enjoyment of life, from serious injury to his health as a result of the Commission's capricious and unlawful refusal to enforce implementation of Directive 96/29’s (1) provisions for precautionary medical monitoring for radiation illnesses in the case of the Thule special intervention teams.

| (b) | Payment to Appellant or his medical treating facilities or his care givers, of the future costs of medical treatments and medications to alleviate and or treat his impaired health, referred to in Para. a) above, which are not available to him through the socialized medical system of his member state. |
| --- | --- |

(b)

Payment to Appellant or his medical treating facilities or his care givers, of the future costs of medical treatments and medications to alleviate and or treat his impaired health, referred to in Para. a) above, which are not available to him through the socialized medical system of his member state.

| (c) | Reasonable legal costs and disbursements incurred by Appellant in the General Court and in the present proceedings. |
| --- | --- |

(c)

Reasonable legal costs and disbursements incurred by Appellant in the General Court and in the present proceedings.

Pleas in law and main arguments

| 1. | The General Court erred in dismissing Appellant's non- contractual liability case as inadmissible by distorting both the nature of his claims and his pleas in law. As a result of such distortion, the Court failed to consider unlawfulness in the context of the Commission's capricious and disingenuous pretexts for refusing to act — which inaction eviscerated the Uniform Health Safety Standards for the protections of workers and the public in cases of radiological accidents caused by the military use of nuclear energy. |
| --- | --- |

1.

The General Court erred in dismissing Appellant's non- contractual liability case as inadmissible by distorting both the nature of his claims and his pleas in law. As a result of such distortion, the Court failed to consider unlawfulness in the context of the Commission's capricious and disingenuous pretexts for refusing to act — which inaction eviscerated the Uniform Health Safety Standards for the protections of workers and the public in cases of radiological accidents caused by the military use of nuclear energy.

| 2. | Failure to Apply Legal Principles Common to Member States The Court failed to assess the unlawfulness of the Commission's lack of care, diligence and sound administration with reference to legal principles common to member state systems for determining administrative accountability for damage caused to individuals, as required under Article 188 of the EAEC Treaty. |
| --- | --- |

2.

Failure to Apply Legal Principles Common to Member States The Court failed to assess the unlawfulness of the Commission's lack of care, diligence and sound administration with reference to legal principles common to member state systems for determining administrative accountability for damage caused to individuals, as required under Article 188 of the EAEC Treaty.

| 3. | Inappropriate Application of Commission's Unique Competition Law Exemption- Powers To Admissibility of Health Standards Complaint The Court further erred by considering the Commission's military exemption of the radiological accident at Thule from the Directive's health protections, in the light of the Commission's wide and unique discretion to formulate EU competition policy by discretionary exemptions of unlawful trade agreements. This ignored admissibility decisions of this Court in other EU areas where the Commission does not possess such a unique discretion and where allegations of the Commission's failure to act did not deem a claim manifestly inadmissible.
  The Court overlooked the fact that Commission does not have a unique and unfettered discretion to enforce the Uniform Health Safety Standards since the EAEC Treaty narrowly defines its exemption- power and specifically provides mechanisms for individuals to complain of its administrative failures to act in areas where protections have been conferred on them. This includes situations where the refusal to act has been addressed to another party. |
| --- | --- |

3.

Inappropriate Application of Commission's Unique Competition Law Exemption- Powers To Admissibility of Health Standards Complaint The Court further erred by considering the Commission's military exemption of the radiological accident at Thule from the Directive's health protections, in the light of the Commission's wide and unique discretion to formulate EU competition policy by discretionary exemptions of unlawful trade agreements. This ignored admissibility decisions of this Court in other EU areas where the Commission does not possess such a unique discretion and where allegations of the Commission's failure to act did not deem a claim manifestly inadmissible.

The Court overlooked the fact that Commission does not have a unique and unfettered discretion to enforce the Uniform Health Safety Standards since the EAEC Treaty narrowly defines its exemption- power and specifically provides mechanisms for individuals to complain of its administrative failures to act in areas where protections have been conferred on them. This includes situations where the refusal to act has been addressed to another party.

| 4. | Failure to Consider Whether Commission's Refusal to Act Violated EAEC Treaty's Designated Object of Protecting the Health of Workers and the Public.
  The Court also erred by failing to enquire into whether the Commission's refusal to act violated the EAEC Treaty's objectives of establishing and ensuring the application of Uniform Health Safety Standards to protect workers and the public from the long term effects of ionizing radiation. In doing so it overlooked the Commission's peremptory duty under the EAEC Treaty to ensure that the provisions of the Treaty are properly applied, including its embodied precautionary principle. |
| --- | --- |

4.

Failure to Consider Whether Commission's Refusal to Act Violated EAEC Treaty's Designated Object of Protecting the Health of Workers and the Public.

The Court also erred by failing to enquire into whether the Commission's refusal to act violated the EAEC Treaty's objectives of establishing and ensuring the application of Uniform Health Safety Standards to protect workers and the public from the long term effects of ionizing radiation. In doing so it overlooked the Commission's peremptory duty under the EAEC Treaty to ensure that the provisions of the Treaty are properly applied, including its embodied precautionary principle.

---

(1)  Council Directive 96/29/Euratom of 13 May 1996 laying down basic safety standards for the protection of the health of workers and the general public against the dangers arising from ionizing radiation

OJ L 159, p. 1

---

| 17.7.2010 | EN | Official Journal of the European Union | C 195/9 |
| --- | --- | --- | --- |

17.7.2010

EN

Official Journal of the European Union

C 195/9

---

Appeal brought on 7 May 2010 by Artegodan GmbH against the judgment of the General Court (Sixth Chamber) delivered on 3 March 2010 in Case T-429/05 Artegodan GmbH v European Commission, other party to the proceedings: Federal Republic of Germany

(Case C-221/10 P)

2010/C 195/14

Language of the case: German

Parties

Appellant: Artegodan GmbH (represented by: U. Reese and A. Meyer-Sandrock, lawyers)

Other parties to the proceedings: European Commission, Federal Republic of Germany

Form of order sought

| — | Annulment of the judgment of the General Court of the European Union of 3 March 2010 in Case T-429/05; |
| --- | --- |

—

Annulment of the judgment of the General Court of the European Union of 3 March 2010 in Case T-429/05;

| — | Order that the defendant pay the applicant the sum of EUR 1 430 821,36 plus interest at 8 % per annum in respect of the period from the delivery of judgment until payment in full; alternatively that the dispute as to quantum be referred back to the General Court of the European Union; |
| --- | --- |

—

Order that the defendant pay the applicant the sum of EUR 1 430 821,36 plus interest at 8 % per annum in respect of the period from the delivery of judgment until payment in full; alternatively that the dispute as to quantum be referred back to the General Court of the European Union;

| — | Declare the defendant liable to compensate the applicant for all damage arising in the future from the marketing efforts necessary to restore the market position of the medicinal product Tenuate Retard to that which it had prior to the withdrawal of authorisation; |
| --- | --- |

—

Declare the defendant liable to compensate the applicant for all damage arising in the future from the marketing efforts necessary to restore the market position of the medicinal product Tenuate Retard to that which it had prior to the withdrawal of authorisation;

| — | Order that the defendant pay the costs |
| --- | --- |

—

Order that the defendant pay the costs

Pleas in law and main arguments

By judgment of 3 March 2010, the General Court of the European Union dismissed the appellant's claim for compensation in respect of the unlawful withdrawal of marketing authorisations for medicinal products. The dismissal was based on arguments that there was an insufficiently serious breach of provisions of Union law by the Commission, and that the infringement of rules on the delimitation of competence does not give rise to liability on the part of Union institutions because such rules are not designed to protect the economic interests of undertakings. The General Court also held that the relevant provision in Article 11 of Directive 65/65 was imprecise. There was hitherto no precedent for the situation which had arisen, which might logically explain the legal error which the Commission is alleged to have committed. It was also necessary to take account of the complexity of examining the expert medical and scientific report. Viewed as a whole, the legal and factual assessments to be undertaken were so complex that the infringement of Article 11 of Directive 65/65 could not be regarded as a sufficiently serious breach.

In its appeal, the appellant argues that rules on the delimitation of competence, which limit the power of European sovereign bodies to remove existing legal positions, are designed to protect citizens and undertakings in their rights. Therefore, in the appellant's submission, infringement of the rules on the delimitation of competence should have been taken into account in the assessment as to whether a sufficiently serious breach had taken place.

It should also be noted that the Commission had no margin of discretion in taking its decision. Moreover, the Commission did not merely enact an abstract rule, but purposely removed an existing legal position from the appellant by means of administrative action. Thus, the appellant's losses were not merely the indirect result of an abstact rule but the purpose and content of the concrete administrative measure itself. In the appellant's submission, the Commission should therefore have examined with particular thoroughness whether there was a sufficient basis for the withdrawal of the authorisation.

That is not prevented by the priority of protecting health and the particular significance of the precautionary principle. The appellant acknowledges that those principles can justify taking and implementing immediately invasive measures against undertakings, but argues that, in order to restore balance in a State governed by the rule of law and to safeguard the proportionality principle, the possibility of appropriate compensation must be given by way of secondary legal protection.

Nor can it be objected that it is necessary for secondary legal protection to be refused in order to enable the precautionary principle to be effectively implemented. That is because, in the circumstances of this case, the Commission had no margin for discretion. In such cases, there is no danger at the outset that implementation of the precautionary principle could be hindered by possible liability consequences.

Nor can the lack of precision of Article 11 of Directive 65/65 be relied upon in order to deny the claim for liability. That is because, in the appellant's submission, the onus of such imprecision must be borne not by the undertaking in question but by the Community as a whole. The Community should not be allowed to defend itself against claims for compensation on the ground that it itself failed, in dereliction of its duty, to enact sufficiently clear and unambiguous rules.

The lack of precedent cannot have an exculpatory effect either. In compensation matters, the Community organs have no privilege in the form of a ‘right to a first error’. Moreover, the General Court had already legally determined that the Commission's decision was unlawful in form and substance. Thus, at the time the Commission's decision was implemented, there was already a decision by way of precedent.

The complexity of the factual and legal position is also not sufficient on its own to prevent there being a sufficiently serious breach. That will in any event apply in the case of a purely administrative measure, without any margin for discretion, whereby deliberate incursion is made into existing legal positions and significant material damage is thereby directly and foreseeably caused.

Moreover, the authorities having competence for questions arising in the law of medicinal products have suitable factual and legal competence. Thus merely average complexity, which is typically inherent in disputes concerning the safety and effectiveness of medicinal products, is not sufficient to prevent there being a sufficiently serious breach.

---

| 17.7.2010 | EN | Official Journal of the European Union | C 195/10 |
| --- | --- | --- | --- |

17.7.2010

EN

Official Journal of the European Union

C 195/10

---

Appeal brought on 7 May 2010 by Brigit Lind against the order of the General Court (Fourth Chamber) delivered on 24 March 2010 in Case T-5/09: Brigit Lind v European Commission

(Case C-222/10 P)

2010/C 195/15

Language of the case: English

Parties

Appellant: Brigit Lind (represented by: I. Anderson, Advocate)

Other party to the proceedings: European Commission

Form of order sought

The applicant claims that the Court should:

| — | Annul in its entirety the General Court's decision and order of March 24th 2010 dismissing her Application as manifestly inadmissible with costs. |
| --- | --- |

—

Annul in its entirety the General Court's decision and order of March 24th 2010 dismissing her Application as manifestly inadmissible with costs.

| — | Retain jurisdiction over Appellant's Appeal and ordering the Commission to pay Appellant;






  (a) | the sum of EUR 50,000 or such other sum as the Court may consider just and equitable for her shock and distress at her brother's suffering and death as a result of the Commission's capricious and unlawful refusal to enforce implementation of Directive 96/29’s (1) precautionary medical monitoring protections for long- term radiation illnesses in the case of the Thule special intervention teams. |
| --- | --- | --- |

—

Retain jurisdiction over Appellant's Appeal and ordering the Commission to pay Appellant;

(a)

the sum of EUR 50,000 or such other sum as the Court may consider just and equitable for her shock and distress at her brother's suffering and death as a result of the Commission's capricious and unlawful refusal to enforce implementation of Directive 96/29’s (1) precautionary medical monitoring protections for long- term radiation illnesses in the case of the Thule special intervention teams.

| (b) | Payment to the Estate of John Erling Nochen;






  (i) | the sum of EUR 250,000, or such other sum as the Court may consider just and equitable for his suffering from 2006 until his death in 2008 from lung cancer as a result of the Commission's capricious and unlawful refusal to enforce implementation of Directive 96/29’s precautionary medical monitoring protections for long- term radiation illnesses in the case of the Thule intervention teams. |
| --- | --- | --- |

(b)

Payment to the Estate of John Erling Nochen;

(i)

the sum of EUR 250,000, or such other sum as the Court may consider just and equitable for his suffering from 2006 until his death in 2008 from lung cancer as a result of the Commission's capricious and unlawful refusal to enforce implementation of Directive 96/29’s precautionary medical monitoring protections for long- term radiation illnesses in the case of the Thule intervention teams.

| (ii) | Funeral costs in the amount of EUR 6,000. |
| --- | --- |

(ii)

Funeral costs in the amount of EUR 6,000.

Pleas in law and main arguments

| 1. | The General Court erred in dismissing Appellant's non- contractual liability case as inadmissible by distorting both the nature of her claims and her pleas in law. As a result of such distortion, the Court failed to consider unlawfulness in the context of the Commission's capricious and disingenuous pretexts for refusing to act — which inaction eviscerated the Uniform Health Safety Standards for the protections of workers and the public in cases of radiological accidents caused by the military use of nuclear energy. |
| --- | --- |

1.

The General Court erred in dismissing Appellant's non- contractual liability case as inadmissible by distorting both the nature of her claims and her pleas in law. As a result of such distortion, the Court failed to consider unlawfulness in the context of the Commission's capricious and disingenuous pretexts for refusing to act — which inaction eviscerated the Uniform Health Safety Standards for the protections of workers and the public in cases of radiological accidents caused by the military use of nuclear energy.

| 2. | Failure to Apply Legal Principles Common to Member States The Court failed to assess the unlawfulness of the Commission's lack of care, diligence and sound administration with reference to legal principles common to member state systems for determining administrative accountability for damage caused to individuals, as required under Article 188 of the EAEC Treaty. |
| --- | --- |

2.

Failure to Apply Legal Principles Common to Member States The Court failed to assess the unlawfulness of the Commission's lack of care, diligence and sound administration with reference to legal principles common to member state systems for determining administrative accountability for damage caused to individuals, as required under Article 188 of the EAEC Treaty.

| 3. | Inappropriate Application of Commission's Unique Competition Law Exemption- Powers To Admissibility of Health Standards Complaint The Court further erred by considering the Commission's military exemption of the radiological accident at Thule from the Directive's health protections, in the light of the Commission's wide and unique discretion to formulate EU competition policy by discretionary exemptions of unlawful trade agreements. This ignored admissibility decisions of this Court in other EU areas where the Commission does not possess such a unique discretion and where allegations of the Commission's failure to act did not deem a claim manifestly inadmissible.
  The Court overlooked the fact that Commission does not have a unique and unfettered discretion to enforce the Uniform Health Safety Standards since the EAEC Treaty narrowly defines its exemption- power and specifically provides mechanisms for individuals to complain of its administrative failures to act in areas where protections have been conferred on them. This includes situations where the refusal to act has been addressed to another party. |
| --- | --- |

3.

Inappropriate Application of Commission's Unique Competition Law Exemption- Powers To Admissibility of Health Standards Complaint The Court further erred by considering the Commission's military exemption of the radiological accident at Thule from the Directive's health protections, in the light of the Commission's wide and unique discretion to formulate EU competition policy by discretionary exemptions of unlawful trade agreements. This ignored admissibility decisions of this Court in other EU areas where the Commission does not possess such a unique discretion and where allegations of the Commission's failure to act did not deem a claim manifestly inadmissible.

The Court overlooked the fact that Commission does not have a unique and unfettered discretion to enforce the Uniform Health Safety Standards since the EAEC Treaty narrowly defines its exemption- power and specifically provides mechanisms for individuals to complain of its administrative failures to act in areas where protections have been conferred on them. This includes situations where the refusal to act has been addressed to another party.

| 4. | Failure to Consider Whether Commission's Refusal to Act Violated EAEC Treaty's Designated Object of Protecting the Health of Workers and the Public.
  The Court also erred by failing to enquire into whether the Commission's refusal to act violated the EAEC Treaty's objectives of establishing and ensuring the application of Uniform Health Safety Standards to protect workers and the public from the long term effects of ionizing radiation. In doing so it overlooked the Commission's peremptory duty under the EAEC Treaty to ensure that the provisions of the Treaty are properly applied, including its embodied precautionary principle. |
| --- | --- |

4.

Failure to Consider Whether Commission's Refusal to Act Violated EAEC Treaty's Designated Object of Protecting the Health of Workers and the Public.

The Court also erred by failing to enquire into whether the Commission's refusal to act violated the EAEC Treaty's objectives of establishing and ensuring the application of Uniform Health Safety Standards to protect workers and the public from the long term effects of ionizing radiation. In doing so it overlooked the Commission's peremptory duty under the EAEC Treaty to ensure that the provisions of the Treaty are properly applied, including its embodied precautionary principle.

| 5. | Failure to Consider Whether the Commission's Refusal Violated a Superior Law.
  With the incorporation of the European Convention of Human Rights into EU jurisprudence, the Court erred in failing to consider whether the Commission's refusal to enforce the medical monitoring provisions of Directive 96/29 violated Article 2 of the Convention by knowingly placing the life of Appellant's brother at risk to the un-checked and un-monitored development of long term radiation cancers, such as the cancer which killed him. |
| --- | --- |

5.

Failure to Consider Whether the Commission's Refusal Violated a Superior Law.

With the incorporation of the European Convention of Human Rights into EU jurisprudence, the Court erred in failing to consider whether the Commission's refusal to enforce the medical monitoring provisions of Directive 96/29 violated Article 2 of the Convention by knowingly placing the life of Appellant's brother at risk to the un-checked and un-monitored development of long term radiation cancers, such as the cancer which killed him.

---

(1)  Council Directive 96/29/Euratom of 13 May 1996 laying down basic safety standards for the protection of the health of workers and the general public against the dangers arising from ionizing radiation

OJ L 159, p. 1

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| 17.7.2010 | EN | Official Journal of the European Union | C 195/12 |
| --- | --- | --- | --- |

17.7.2010

EN

Official Journal of the European Union

C 195/12

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Action brought on 7 May 2010 — European Commission v Republic of Austria

(Case C-223/10)

2010/C 195/16

Language of the case: German

Parties

Applicant: European Commission (represented by: M. Adam and I. Hadjiyiannis, acting as Agents)

Defendant: Republic of Austria

Form of order sought

| — | Declare that, by failing to adopt the laws, regulations and administrative provisions necessary fully to implement Commission Directive 2008/74/EC of 18 July 2008 amending, as regards the type approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and access to vehicle repair and maintenance information, Directive 2005/55/EC of the European Parliament and of the Council and Directive 2005/78/EC, (1) or by failing to notify the Commission thereof, the Republic of Austria has failed to fulfil its obligations under that directive; |
| --- | --- |

—

Declare that, by failing to adopt the laws, regulations and administrative provisions necessary fully to implement Commission Directive 2008/74/EC of 18 July 2008 amending, as regards the type approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and access to vehicle repair and maintenance information, Directive 2005/55/EC of the European Parliament and of the Council and Directive 2005/78/EC, (1) or by failing to notify the Commission thereof, the Republic of Austria has failed to fulfil its obligations under that directive;

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

—

order the Republic of Austria to pay the costs.

Pleas in law and main arguments

The time-limit for transposition of Directive 2008/74 expired on 2 January 2009.

---

(1)  OJ 2008 L 192, p. 51.

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| 17.7.2010 | EN | Official Journal of the European Union | C 195/12 |
| --- | --- | --- | --- |

17.7.2010

EN

Official Journal of the European Union

C 195/12

---

Reference for a preliminary ruling from the Tribunal Cível da Comarca do Porto (Portugal) lodged on 10 May 2010 — Maria Alice Pendão Lapa Costa Ferreira, Alexandra Pendão Lapa Ferreira v Companhia de Seguros Tranquilidade SA

(Case C-229/10)

2010/C 195/17

Language of the case: Portuguese

Referring court

Tribunal Cível da Comarca do Porto

Parties to the main proceedings

Applicants: Maria Alice Pendão Lapa Costa Ferreira, Alexandra Pendão Lapa Ferreira

Defendant: Companhia de Seguros Tranquilidade SA

Questions referred

| 1. | Is the interpretation of Article 505 of the Código Civil (Portuguese Civil Code) which, in the case of an accident caused by the conduct of the pedestrian alone, excludes the liability for risk posed by the use of motor vehicles, compatible with the European directives [72/166/EEC, (1) 84/5/EEC, (2) 90/232/EEC, (3) 2000/26/EC, (4) and 2005/14/EC (5)] on compulsory motor vehicle insurance, and in particular with Article 1a of Directive 90/232/EEC? |
| --- | --- |

1.

Is the interpretation of Article 505 of the Código Civil (Portuguese Civil Code) which, in the case of an accident caused by the conduct of the pedestrian alone, excludes the liability for risk posed by the use of motor vehicles, compatible with the European directives [72/166/EEC, (1) 84/5/EEC, (2) 90/232/EEC, (3) 2000/26/EC, (4) and 2005/14/EC (5)] on compulsory motor vehicle insurance, and in particular with Article 1a of Directive 90/232/EEC?

| 2. | Is the interpretation of Article 570 of the Código Civil, whereby compensation may be reduced or excluded according to the degree of fault of both parties, when a wrongful act of the victim has contributed to or exacerbated the loss, compatible with those directives? |
| --- | --- |

2.

Is the interpretation of Article 570 of the Código Civil, whereby compensation may be reduced or excluded according to the degree of fault of both parties, when a wrongful act of the victim has contributed to or exacerbated the loss, compatible with those directives?

| 3. | And, if the answer is in the affirmative, do those directives preclude an interpretation which allows compensation to be limited or reduced, having regard to the fault of the pedestrian, on the one hand, and the risk posed by the motor vehicle, on the other, in the causation of the accident? |
| --- | --- |

3.

And, if the answer is in the affirmative, do those directives preclude an interpretation which allows compensation to be limited or reduced, having regard to the fault of the pedestrian, on the one hand, and the risk posed by the motor vehicle, on the other, in the causation of the accident?

---

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

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

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

(4)  Directive 2000/26/EC of the European Parliament and of the Council of 16 May 2000 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles and amending Council Directives 73/239/EEC and 88/357/EEC (Fourth motor insurance Directive) (OJ 2000 L 181, p. 65).

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

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| 17.7.2010 | EN | Official Journal of the European Union | C 195/13 |
| --- | --- | --- | --- |

17.7.2010

EN

Official Journal of the European Union

C 195/13

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Action brought on 11 May 2010 — European Commission v Kingdom of the Netherlands

(Case C-233/10)

2010/C 195/18

Language of the case: Dutch

Parties

Applicant: European Commission (represented by: A. Nienhuis and H. te Winkel)

Defendant: Kingdom of the Netherlands

Form of order sought

| — | Declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2007/44/EC (1) of the European Parliament and of the Council of 5 September 2007 amending Council Directive 92/49/EEC and Directives 2002/83/EC, 2004/39/EC, 2005/68/EC and 2006/48/EC as regards procedural rules and evaluation criteria for the prudential assessment of acquisitions and increase of holdings in the financial sector, or in any event by failing to inform the Commission thereof, the Kingdom of the Netherlands has failed to fulfil its obligations under Article 7 of that directive; |
| --- | --- |

—

Declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2007/44/EC (1) of the European Parliament and of the Council of 5 September 2007 amending Council Directive 92/49/EEC and Directives 2002/83/EC, 2004/39/EC, 2005/68/EC and 2006/48/EC as regards procedural rules and evaluation criteria for the prudential assessment of acquisitions and increase of holdings in the financial sector, or in any event by failing to inform the Commission thereof, the Kingdom of the Netherlands has failed to fulfil its obligations under Article 7 of that directive;

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

—

order Kingdom of the Netherlands to pay the costs.

Pleas in law and main arguments

The period for the transposition of the Directive into national law expired on 20 March 2009.

---

(1)  OJ 2007 L 247, p. 1.

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| 17.7.2010 | EN | Official Journal of the European Union | C 195/13 |
| --- | --- | --- | --- |

17.7.2010

EN

Official Journal of the European Union

C 195/13

---

Action brought on 18 May 2010 — European Commission v Grand Duchy of Luxembourg

(Case C-246/01)

2010/C 195/19

Language of the case: French

Parties

Applicant: European Commission (represented by: V. Peere and G. Zavvos, acting as Agents)

Defendant: Grand Duchy of Luxembourg

Form of order sought

| — | declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2006/42/EC of the European Parliament and of the Council of 17 May 2006 on machinery, and amending Directive 95/16/EC (1), and in any event by not communicating such measures to the Commission, the Grand Duchy of Luxembourg 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 Directive 2006/42/EC of the European Parliament and of the Council of 17 May 2006 on machinery, and amending Directive 95/16/EC (1), and in any event by not communicating such measures to the Commission, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;

| — | order the Grand Duchy of Luxembourg to pay the costs. |
| --- | --- |

—

order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

The period prescribed for transposing Directive 2006/42/CE expired on 29 June 2008. As at the date on which the present action was brought, the defendant had not yet adopted all the measures necessary to transpose the directive or, in any event, had not notified the Commission thereof.

---

(1)  OJ L 157, p. 24.

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| 17.7.2010 | EN | Official Journal of the European Union | C 195/14 |
| --- | --- | --- | --- |

17.7.2010

EN

Official Journal of the European Union

C 195/14

---

Appeal brought on 20 May 2010 by KEK Diavlos against the judgment delivered on 18 March 2010 in Case T-190/07 KEK Diavlos v European Commission

(Case C-251/10 P)

2010/C 195/20

Language of the case: Greek

Parties

Appellant: KEK Diavlos (represented by: D. Khatsimikhalis, Dikigoros)

Other party to the proceedings: European Commission

Form of order sought

The Court is asked to:

| — | uphold this action in its entirety; |
| --- | --- |

—

uphold this action in its entirety;

| — | set aside, for the reasons set out in the appeal, the contested judgment of the General Court (Single Judge) of 18 March 2010 in Case T-190/07, uphold all the claims in the action brought by this company against Commission Decision E (2006) 465 final of 23 February 2006 and quash that decision, together with any other related act and/or decision of the Commission; |
| --- | --- |

—

set aside, for the reasons set out in the appeal, the contested judgment of the General Court (Single Judge) of 18 March 2010 in Case T-190/07, uphold all the claims in the action brought by this company against Commission Decision E (2006) 465 final of 23 February 2006 and quash that decision, together with any other related act and/or decision of the Commission;

| — | order the defendant, the European Commission, to pay the costs and the fees of our lawyer in both sets of proceedings. |
| --- | --- |

—

order the defendant, the European Commission, to pay the costs and the fees of our lawyer in both sets of proceedings.

Pleas in law and main arguments

By its appeal of 20 May 2010, the company KEK Diavlos appeals against the judgment of the General Court (Single Judge) of 18 March 2010 in Case T-190/07, asking that it be set aside and all the claims in its action against Commission Decision E (2006) final of 23 February 2006 upheld and that that decision, together with any other related act and/or decision of the Commission, be quashed.

The appellant puts forward in summary the following grounds for setting aside the judgment:

| | First ground of appeal: by the contested judgment our action, together with all the arguments put forward, was dismissed in its entirety on erroneous and inadequate grounds, although it should have been upheld in its entirety, or otherwise in part. In particular, the contested judgment does not take any account at all of the argument, essential to the outcome of the case, that our company performed its contractual obligation to design a printed information publication, with a print-run of 1 000 copies (in each language), which would contain all the information required to prepare school children for the transition to the euro, publishing a related multi-sided information booklet (claims viii, ix and x). The contested judgment is also vitiated by a lack of reasoning as concerns its assessment in respect of the information brochures which we published to meet our contractual obligations. |
| --- | --- |

First ground of appeal: by the contested judgment our action, together with all the arguments put forward, was dismissed in its entirety on erroneous and inadequate grounds, although it should have been upheld in its entirety, or otherwise in part. In particular, the contested judgment does not take any account at all of the argument, essential to the outcome of the case, that our company performed its contractual obligation to design a printed information publication, with a print-run of 1 000 copies (in each language), which would contain all the information required to prepare school children for the transition to the euro, publishing a related multi-sided information booklet (claims viii, ix and x). The contested judgment is also vitiated by a lack of reasoning as concerns its assessment in respect of the information brochures which we published to meet our contractual obligations.

| | Second ground of appeal: the contested judgment is vitiated by an infringement of the law, in particular Article 48 of the Rules of Procedure, inasmuch as it rejected our proposal to adduce supplementary evidence, in particular the additional time sought by our company at the hearing of the case in order to produce certain documents concerning the ‘irregularities’ alleged by the Commission and the question of the time at which the costs in question were entered into the company’s books in order to be considered ‘allowable’ under the contract and annex II thereto. |
| --- | --- |

Second ground of appeal: the contested judgment is vitiated by an infringement of the law, in particular Article 48 of the Rules of Procedure, inasmuch as it rejected our proposal to adduce supplementary evidence, in particular the additional time sought by our company at the hearing of the case in order to produce certain documents concerning the ‘irregularities’ alleged by the Commission and the question of the time at which the costs in question were entered into the company’s books in order to be considered ‘allowable’ under the contract and annex II thereto.

| | Third ground of appeal: the contested judgment of the General Court (Single Judge) of 18 March 2010 wrongly ordered us to pay the Commission’s costs whereas, in application of Article 87(3) of the Rules of Procedure, the costs should have been shared by the parties, or else we should have been ordered, as the unsuccessful party, to pay only part of the Commission’s legal costs in view of the circumstances. |
| --- | --- |

Third ground of appeal: the contested judgment of the General Court (Single Judge) of 18 March 2010 wrongly ordered us to pay the Commission’s costs whereas, in application of Article 87(3) of the Rules of Procedure, the costs should have been shared by the parties, or else we should have been ordered, as the unsuccessful party, to pay only part of the Commission’s legal costs in view of the circumstances.

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| 17.7.2010 | EN | Official Journal of the European Union | C 195/14 |
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17.7.2010

EN

Official Journal of the European Union

C 195/14

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Action brought on 19 May 2010 — European Commission v Slovak Republic

(Case C-253/10)

2010/C 195/21

Language of the case: Slovak

Parties

Applicant: European Commission (represented by: A. Tokár and A. Marghelis, acting as Agents)

Defendant: Slovak Republic

Form of order sought

| — | declare that, by failing to adopt a national strategy for the implementation of the reduction of biodegradable waste going to landfills in accordance with Article 5(1) of Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste, the Slovak Republic has failed to fulfil its obligations under Article 5(1) of that directive; |
| --- | --- |

—

declare that, by failing to adopt a national strategy for the implementation of the reduction of biodegradable waste going to landfills in accordance with Article 5(1) of Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste, the Slovak Republic has failed to fulfil its obligations under Article 5(1) of that directive;

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

—

order Slovak Republic to pay the costs.

Pleas in law and main arguments

According to Article 5(1) of Council Directive 1999/31/EC, ‘Member States shall set up a national strategy for the implementation of the reduction of biodegradable waste going to landfills, not later than two years after the date laid down in Article 18(1) and notify the Commission of this strategy’, Article 18(1) providing that ‘Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive not later than two years after its entry into force’. Pursuant to Article 19, the directive entered into force 16 July 1999. That directive thus had to be complied with by 16 July 2001 and the obligation to set up a national strategy, as laid down in Article 5(1), had to be fulfilled by 16 July 2003.

Since for new Member States no different time-limit was laid down in Article 54 of the Act concerning the conditions of accession, the Slovak Republic was to set up a national strategy for the implementation of the reduction of biodegradable waste going to landfills pursuant to Article 5(1) by the date of accession, that is, by 1 May 2004.

The European Commission thus claims that the Slovak Republic has failed to fulfil its obligations under Article 5(1) of Directive 1999/31/EC on the landfill of waste.

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| 17.7.2010 | EN | Official Journal of the European Union | C 195/15 |
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17.7.2010

EN

Official Journal of the European Union

C 195/15

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Reference for a preliminary ruling from the Regeringsrätten (Sweden) lodged on 25 May 2010 — Försäkringskässan v Elisabeth Bergström

(Case C-257/10)

2010/C 195/22

Language of the case: Swedish

Referring court

Regeringsrätten

Parties to the main proceedings

Applicant: Försäkringskässan

Defendant: Elisabeth Bergström

Questions referred

| 1. | Under Union law, in particular the Agreement with Switzerland on the free movement of persons and Article 72 of Regulation No 1408/71, (1) can a qualification period for family benefit in the form of income-related benefit for childcare be completed in its entirety through employment and insurance in Switzerland? |
| --- | --- |

1.

Under Union law, in particular the Agreement with Switzerland on the free movement of persons and Article 72 of Regulation No 1408/71, (1) can a qualification period for family benefit in the form of income-related benefit for childcare be completed in its entirety through employment and insurance in Switzerland?

| 2. | Under Union law, in particular the Agreement with Switzerland on the free movement of persons and Articles 3(1) and 72 of Regulation No 1408/71, is income earned in Switzerland to be equated with domestic income in the determination of entitlement to family benefit in the form of income-related benefit for childcare? |
| --- | --- |

2.

Under Union law, in particular the Agreement with Switzerland on the free movement of persons and Articles 3(1) and 72 of Regulation No 1408/71, is income earned in Switzerland to be equated with domestic income in the determination of entitlement to family benefit in the form of income-related benefit for childcare?

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(1)  OJ 1971 L 149, p. 2.

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| 17.7.2010 | EN | Official Journal of the European Union | C 195/15 |
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17.7.2010

EN

Official Journal of the European Union

C 195/15

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Order of the President of the Fourth Chamber of the Court of 22 April 2010 (reference for a preliminary ruling from the Bundesgerichtshof (Germany)) — Prof. Dr. Claus Scholl v Stadtwerke Aachen AG

(Case C-146/09) (1)

2010/C 195/23

Language of the case: German

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

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(1)  OJ C 153, 4.7.2009.

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| 17.7.2010 | EN | Official Journal of the European Union | C 195/16 |
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17.7.2010

EN

Official Journal of the European Union

C 195/16

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Order of the President of the Court of 6 April 2010 — European Commission v Kingdom of Belgium

(Case C-491/09) (1)

2010/C 195/24

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 24, 30.1.2010.

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| 17.7.2010 | EN | Official Journal of the European Union | C 195/16 |
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17.7.2010

EN

Official Journal of the European Union

C 195/16

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Order of the President of the Court of 21 April 2010 — BCS SpA v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Deere & Company

(Case C-553/09 P) (1)

2010/C 195/25

Language of the case: English

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

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(1)  OJ C 51, 27.2.2010.

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General Court

| 17.7.2010 | EN | Official Journal of the European Union | C 195/17 |
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17.7.2010

EN

Official Journal of the European Union

C 195/17

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Judgment of the General Court of 2 June 2010 — Procaps v OHIM — Biofarma (PROCAPS)

(Case T-35/09) (1)

(Community trade mark - Opposition procedure - Application for the Community word mark PROCAPS - Earlier national and international word marks PROCAPTAN - Relative ground for refusal - Likelihood of confusion - Similarity of the signs - Similarity of the goods and services - Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))

2010/C 195/26

Language of the case: Spanish

Parties

Applicant: Procaps, SA (Barranquilla, Colombia) (represented by: M. Vidal-Quadras Trias de Bes, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (represented by: Ó. Mondéjar Ortuño, acting as Agent)

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Biofarma SAS (Neuilly-sur-Seine, France) (represented by: A. Ruiz López and V. Gil Vega, lawyers

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 24 November 2008 (Case R 867/2007-4), concerning opposition proceedings between Biofarma SAS and Procaps, SA

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Procaps, SA to pay the costs. |
| --- | --- |

2.

Orders Procaps, SA to pay the costs.

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(1)  OJ C 69, 21.3.2009.

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| 17.7.2010 | EN | Official Journal of the European Union | C 195/17 |
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17.7.2010

EN

Official Journal of the European Union

C 195/17

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Order of the General Court of 5 May 2010 — CBI and ABISP v Commission

(Case T-128/08 and Case T-241/08) (1)

(State aid - Subsidies granted to public hospitals by the Belgian authorities - Service of general economic interest - Complaint - Alleged decision to take no further action on the complaint - Subsequent adoption of a decision declaring the aid to be compatible with the common market - No need to adjudicate)

2010/C 195/27

Language of the case: French

Parties

Applicants: Coordination bruxelloise d’institutions sociales et de santé (CBI) (Brussels, Belgium); and Association bruxelloise des institutions de soins privées (ABISP) (Brussels) (represented by: D. Waelbroeck, lawyer, and D. Slater, Solicitor)

Defendant: European Commission (represented by: C. Giolito, J.-P. Keppenne and B. Stromsky, Agents)

Re:

Application for annulment of an alleged Commission decision, resulting from its letters of 10 January and 10 April 2008, not to initiate the procedure provided for in Article 88(2) EC and to take no further action on the applicants’ complaint concerning alleged State aid granted by the Belgian authorities in connection with the financing of public hospitals of the IRIS network (Interhospitalière régionale des infrastructures de soins) in the Brussels-Capital Region (Belgium).

Operative part of the order

| 1. | Case T-128/08 and Case T-241/08 shall be joined for the purposes of this order. |
| --- | --- |

1.

Case T-128/08 and Case T-241/08 shall be joined for the purposes of this order.

| 2. | There is no longer any need to adjudicate on these actions. |
| --- | --- |

2.

There is no longer any need to adjudicate on these actions.

| 3. | There is no need to adjudicate on the applications for leave to intervene submitted by Commune de Saint-Gilles (Belgium), Commune d’Etterbeek (Belgium), Commune d’Ixelles (Belgium), Commune d’Anderlecht (Belgium), Brussels-Capital Region (Belgium), City of Brussels (Belgium), or the Republic of Finland. |
| --- | --- |

3.

There is no need to adjudicate on the applications for leave to intervene submitted by Commune de Saint-Gilles (Belgium), Commune d’Etterbeek (Belgium), Commune d’Ixelles (Belgium), Commune d’Anderlecht (Belgium), Brussels-Capital Region (Belgium), City of Brussels (Belgium), or the Republic of Finland.

| 4. | The European Commission shall pay the costs. |
| --- | --- |

4.

The European Commission shall pay the costs.

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(1)  OJ C 142, 7.6.2008.

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| 17.7.2010 | EN | Official Journal of the European Union | C 195/18 |
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17.7.2010

EN

Official Journal of the European Union

C 195/18

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Order of the General Court of 21 May 2010 — ICO Services v Parliament and Council

(Case T-441/08) (1)

(Actions for annulment - Decision No 626/2008/EC - Common framework for the selection and authorisation of operators of systems providing mobile satellite services - Absence of direct concern - Inadmissibility)

2010/C 195/28

Language of the case: English

Parties

Applicant: ICO Services Ltd (Slough, Berkshire, United Kingdom) (represented by: S. Tupper, Solicitor)

Defendants: European Parliament (represented by: J. Rodrigues and R. Kaškina, Agents) and Council of the European Union (represented by: G. Kimberley and F. Florindo Gijón, Agents)

Intervener in support of the defendants: European Commission (represented by: M. Wilderspin and A. Nijenhuis, Agents)

Re:

Application for annulment of Decision No 626/2008/EC of the European Parliament and of the Council of 30 June 2008 on the selection and authorisation of systems providing mobile satellite services (MSS) (OJ 2008 L 172, p. 15)

Operative part of the order

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

1.

The action is dismissed as inadmissible.

| 2. | ICO Services Ltd shall bear its own costs and pay the costs of the European Parliament and of the Council of the European Union. |
| --- | --- |

2.

ICO Services Ltd shall bear its own costs and pay the costs of the European Parliament and of the Council of the European Union.

| 3. | The European Commission shall bear its own costs. |
| --- | --- |

3.

The European Commission shall bear its own costs.

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(1)  OJ C 6, 10.1.2009.

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| 17.7.2010 | EN | Official Journal of the European Union | C 195/18 |
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17.7.2010

EN

Official Journal of the European Union

C 195/18

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Order of the General Court of 17 May 2010 — Volkswagen v OHIM — Deutsche BP (SunGasoline)

(Case T-502/08) (1)

(Community trade mark - Opposition - Withdrawal of opposition - No need to rule)

2010/C 195/29

Language of the case: German

Parties

Applicant: Volkswagen AG (Wofsburg, Germany) (represented by: H.-P. Schrammek, C. S. Drzymalla and S. Risthaus, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Deutsche BP AG (Gelsenkirchen, Germany)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 19 September 2008 (Case R 513/2007-4), concerning opposition proceedings between Deutsche BP AG and Volkswagen AG

Operative part of the judgment

The Court:

| 1. | Holds that there is no need to rule on the action; |
| --- | --- |

1.

Holds that there is no need to rule on the action;

| 2. | Orders the applicant and the defendant to pay their own costs. |
| --- | --- |

2.

Orders the applicant and the defendant to pay their own costs.

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(1)  OJ C 44, 21.2.2009.

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| 17.7.2010 | EN | Official Journal of the European Union | C 195/18 |
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17.7.2010

EN

Official Journal of the European Union

C 195/18

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Order of the General Court of 18 May 2010 — Abertis Infraestructuras v Commission

(Case T-200/09) (1)

(Action for annulment - Concentrations - Decision to close the procedure initiated under Article 21(4) of Regulation (EC) No 139/2004 - Period within which proceedings must be brought - Starting point - Inadmissibility)

2010/C 195/30

Language of the case: Spanish

Parties

Applicant: Abertis Infraestructuras, SA (Barcelona, Spain) (represented by: M. Roca Junyent and P. Callol García, lawyers)

Defendant: European Commission (represented by: V. Di Bucci and É. Gippini Fournier, acting as Agents)

Re:

Application to annul the Commission’s decision of 13 August 2008 to close the procedure initiated under Article 21(4) of Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1), in relation to a concentration transaction between the applicant and Autostrade SpA (Case COMP/M.4388 — Abertis/Autostrade)

Operative part of the order

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

1.

The action is dismissed as inadmissible.

| 2. | Abertis Infraestructuras, SA is ordered to pay the costs. |
| --- | --- |

2.

Abertis Infraestructuras, SA is ordered to pay the costs.

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(1)  OJ C 167, 18.7.2009.

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| 17.7.2010 | EN | Official Journal of the European Union | C 195/19 |
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17.7.2010

EN

Official Journal of the European Union

C 195/19

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Order of the General Court of 26 May 2010 — Noko Ngele v Commission

(Case T-15/10 R)

(Application for interim measures - Formal requirements - Inadmissibility)

2010/C 195/31

Language of the case: French

Parties

Applicant: Mariyus Noko Ngele (Brussels, Belgium) (represented by: F. Sabakunzi, lawyer)

Defendant: European Commission (represented by: A. Bordes, acting as Agent)

Re:

Essentially, an application to have the activity of the ‘Centre pour le développement de l’entreprise (CDE)’ in Belgium declared illegitimate, to prevent the Commission and its agents from entering into financial relations with the CDE or from recognising the legitimacy of the CDE and to order the Commission to pay the applicant a sum of money if the Commission recognises the legitimacy of that body

Operative part of the order

| 1. | The application for interim relief is dismissed. |
| --- | --- |

1.

The application for interim relief is dismissed.

| 2. | Costs are reserved. |
| --- | --- |

2.

Costs are reserved.

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| 17.7.2010 | EN | Official Journal of the European Union | C 195/19 |
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17.7.2010

EN

Official Journal of the European Union

C 195/19

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Action brought on 28 April 2010 — Hungary v Commission

(Case T-194/10)

2010/C 195/32

Language of the case: Hungarian

Parties

Applicant: Hungarian Republic (represented by: J. Fazekas, M. Fehér and K. Szijjártó, Agents)

Defendant: European Commission

Form of order sought

| — | Annulment of the registration by the Commission in the E-Bacchus database of the protected designation of origin ‘Vinohradnícka oblasť Tokaj’ in place of the previous Slovak protected designation of origin ‘Tokajská vinohradnícka oblast’. |
| --- | --- |

—

Annulment of the registration by the Commission in the E-Bacchus database of the protected designation of origin ‘Vinohradnícka oblasť Tokaj’ in place of the previous Slovak protected designation of origin ‘Tokajská vinohradnícka oblast’.

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

—

An order that the Commission pay the costs.

Pleas in law and main arguments

The applicant takes issue with the registration of the Slovak protected designation of origin ‘Vinohradnícka oblasť Tokaj’ in the electronic register of protected designations of origin and protected geographical indications for wine (‘E-Bacchus register’) made by the Commission pursuant to Council Regulation (EC) No 1234/2007. (1)

By its first plea in law the applicant alleges that, by changing the registration the Commission has breached the relevant provisions of Regulation No 1234/2007 and of Regulation (EC) No 607/2009, (2) since the disputed amendment of the original entry in the E-Bacchus register grants automatic protection, pursuant to the new legislation, to a designation which cannot be considered to be an ‘existing protected name’ within the meaning of Article 118s of Regulation No 1234/2007.

In that connection, the applicant takes the view that on 1 August 2009, the date of the entry into force of the new legislation of the Union on the market in the wine sector, it was the name ‘Tokajská/Tokajské/Tokajský vinohradnícka oblast’ which enjoyed Community protection, as is clear, in particular, from the list of table wines designated by a geographical indication (3) and from the list of quality wines. (4)

In addition, the applicant alleges that examination of the Slovak legislation yields the same conclusion, given that the new Slovak law on wine, which includes the designation ‘Tokajská vinohradnícka oblast’, was adopted on 30 June 2009. Furthermore, although the applicable regulations have to be interpreted in such a way that the date of the entry into force of the national legislation (1 September 2009) is also relevant for the assessment of the existing protected name, in this case Article 73(2) of Regulation No 607/2009 must be applied by analogy, that is to say, in this case, too, it is the designation included in the new law which must be considered to be an existing protected name within the meaning of Article 118s of Regulation No 1234/2007.

By its second plea, the applicant alleges that the Commission, in its maintenance and management of the E-Bacchus register and, specifically, by making the disputed registration in this case, has breached the fundamental principles of sound administration, cooperation in good faith and legal certainty recognised by Union law.

In that connection, the applicant takes the view that, having regard to the principle of sound administration and, in particular, the significance of the register in question, the Commission is required to guarantee that the register contains authentic, reliable and accurate data. The Commission must determine in particular, at the time of the entry into force of the new legislation on the market in the wine sector, which national rules are applicable and which names must be considered to be ‘existing protected names’ under those rules. Further, the applicant considers that the Commission has also breached the principle of cooperation in good faith in that it did not notify the Hungarian Republic in any way, either before or after the event, of the amendment of the entries in the E-Bacchus register relating to Slovakia, although it must have known that the interests of Hungary could be affected. Finally, the applicant alleges that the Commission has also infringed the principle of legal certainty by organising and keeping the register in such a way that, at any time, the entries in it may be changed with retrospective effect without it being possible to determine the actual date of the change.

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(1)  Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) (OJ 2007 L 229, p. 1).

(2)  Commission Regulation (EC) No 607/2009 of 14 July 2009 laying down certain detailed rules for the implementation of Council Regulation (EC) No 479/2008 as regards protected designations of origin and geographical indications, traditional terms, labelling and presentation of certain wine sector products (OJ 2009 L 193, p. 60).

(3)  List of names of geographical units smaller than the Member State as referred to in Article 51(1) of [Council Regulation (EC) No 1493/1999 of 17 May 1999 on the common organisation of the market in wine (OJ 1999 L 179, p. 1)] (table wines with geographical indication) (published in OJ 2009 C 187, p. 67).

(4)  List of quality wines produced in specified regions (published in OJ 2009 C 187, p. 1).

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| 17.7.2010 | EN | Official Journal of the European Union | C 195/20 |
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17.7.2010

EN

Official Journal of the European Union

C 195/20

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Action brought on 6 May 2010 — Deutsche Telekom v Commission

(Case T-207/10)

2010/C 195/33

Language of the case: German

Parties

Applicant: Deutsche Telekom AG (Bonn, Germany) (represented by: A. Cordewener and J. Schönfeld, lawyers)

Defendant: European Commission

Form of order sought

| — | Annulment of Commission Decision C(2009) 8107 final corr. of 28 October 2009 (as amended on 8 December 2009) in relation to the provision for the protection of the legitimate expectations of the Spanish investors detailed in Article 1(2) and (3) thereof; |
| --- | --- |

—

Annulment of Commission Decision C(2009) 8107 final corr. of 28 October 2009 (as amended on 8 December 2009) in relation to the provision for the protection of the legitimate expectations of the Spanish investors detailed in Article 1(2) and (3) thereof;

| — | An order for the defendant to pay the costs of the proceedings. |
| --- | --- |

—

An order for the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant challenges Commission Decision C(2009) 8107 final corr. of 28 October 2009, in which the Commission decided that the aid scheme in the form of the tax provision in Article 12(5) of the Spanish Company Tax Act (‘TRLIS’) concerning the tax amortization of financial goodwill for the acquisition of significant shareholdings in foreign companies was, as regards aid granted to beneficiaries which realise intra-Community acquisitions, incompatible with the common market. The contested decision sets out which aid is to be recovered by the Kingdom of Spain.

In support of its action the applicant submits, first of all, that the tax relief connected with the application of Article 12(5) TRLIS was procedurally unlawful since, contrary to the first sentence of Article 88(3) EC (first sentence of Article 108(3) TFEU), the Kingdom of Spain failed to inform the Commission in advance of the relevant law and, contrary to the prohibition of implementation laid down in the third sentence of Article 88(3) EC (third sentence of Article 108(3) TFEU) actually applied that law. In addition, Article 12(5) TRLIS is to be regarded as substantially unlawful since, in accordance with Article 87(1) EC (Article 107(1) TFEU), the provision is not compatible with the common market and an authorisation under Article 87(2) or (3) EC (Article 107(2) or (3) TFEU) is out of the question.

Second, in respect of the consequences which follow from a declaration that a national law aid provision is incompatible with Community law, the applicant claims that the Member State concerned is required to recover such aid from the beneficiaries. In that regard, the applicant submits that this fundamental principle is expressly set out, in particular, in the first sentence of Article 14(1) of Regulation (EC) No 659/99. (1)

Finally, the applicant claims that, in the present case, there is no reason why recovery should not be ordered as there is no expectation on the part of the Spanish aid recipients which is worthy of protection. In that regard, it submits, inter alia, that the Commission wrongly applied the general principle that primary law takes precedence and the second sentence of Article 14(1) of Regulation No 659/99 in basing the exception which it granted to certain groups of Spanish investors on the principle of the protection of legitimate expectations. The applicant complains, on the one hand, that the principle of the protection of legitimate expectations is not applicable to the beneficiaries since the Spanish State failed to correctly notify the Commission of Article 12(5) TRLIS. On the other hand, it claims that the conditions were not met for granting protection to the legitimate expectations of the beneficiaries. Furthermore, the Community interest in reinstating fair market conditions by recovering the aid granted outweighs the individual interests of the beneficiaries in retaining tax advantages in relation both to past and future years.

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(1)  Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88 EC] (OJ 1999 L 83, p. 1).

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| 17.7.2010 | EN | Official Journal of the European Union | C 195/21 |
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17.7.2010

EN

Official Journal of the European Union

C 195/21

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Action brought on 3 May 2010 — Strålfors Aktiebolag v OHMI (ID SOLUTIONS)

(Case T-211/10)

2010/C 195/34

Language of the case: English

Parties

Applicant: Strålfors AB (Malmö, Sweden) (represented by: M. Nielsen, lawyer)

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

Form of order sought

| — | Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 25 January 2010 in case R 1111/2009-2; |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 25 January 2010 in case R 1111/2009-2;

| — | Approve for registration the Community trade mark application No 8235202 ‘ID SOLUTIONS’ for ‘labels and boxes made from paper and cardboard (not for identification of individuals); bookbinding material; adhesives for stationery or household purposes, artists’ materials; paint brushes; typewriters and office requisites (except furniture); instructional and teaching material (except apparatus); plastic materials for packaging (not included in other classes); printers’ type; printing blocks’ in class 16; and |
| --- | --- |

—

Approve for registration the Community trade mark application No 8235202 ‘ID SOLUTIONS’ for ‘labels and boxes made from paper and cardboard (not for identification of individuals); bookbinding material; adhesives for stationery or household purposes, artists’ materials; paint brushes; typewriters and office requisites (except furniture); instructional and teaching material (except apparatus); plastic materials for packaging (not included in other classes); printers’ type; printing blocks’ in class 16; and

| — | 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 word mark ‘ID SOLUTIONS’ for goods in class 16 — Community trade mark application No 8235202

Decision of the examiner: Partially refused registration of the application for a Community trade mark

Decision of the Board of Appeal: Dismissed the appeal and confirmed the contested decision

Pleas in law: The applicant claims that the Community trade mark application No 8235202 ‘ID SOLUTIONS’ should be allowed for registration for goods in class 16 because ‘ID SOLUTIONS’ is distinctive for these goods and thus meets with the requirements according to Article 4 of Council Regulation No 207/2009.

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| 17.7.2010 | EN | Official Journal of the European Union | C 195/21 |
| --- | --- | --- | --- |

17.7.2010

EN

Official Journal of the European Union

C 195/21

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Action brought on 3 May 2010 — Strålfors Aktiebolag v OHMI (IDENTIFICATION SOLUTIONS)

(Case T-212/10)

2010/C 195/35

Language of the case: English

Parties

Applicant: Strålfors AB (Malmö, Sweden) (represented by: M. Nielsen, lawyer)

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

Form of order sought

| — | Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 22 January 2010 in case R 1112/2009-2; |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 22 January 2010 in case R 1112/2009-2;

| — | Approve for registration the Community trade mark application No 8235186 ‘IDENTIFICATION SOLUTIONS’ for ‘labels and boxes made from paper and cardboard (not for identification of individuals); bookbinding material; adhesives for stationery or household purposes, artists’ materials; paint brushes; typewriters and office requisites (except furniture); instructional and teaching material (except apparatus); plastic materials for packaging (not included in other classes); printers’ type; printing blocks’ in class 16; and |
| --- | --- |

—

Approve for registration the Community trade mark application No 8235186 ‘IDENTIFICATION SOLUTIONS’ for ‘labels and boxes made from paper and cardboard (not for identification of individuals); bookbinding material; adhesives for stationery or household purposes, artists’ materials; paint brushes; typewriters and office requisites (except furniture); instructional and teaching material (except apparatus); plastic materials for packaging (not included in other classes); printers’ type; printing blocks’ in class 16; and

| — | 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 word mark ‘IDENTIFICATION SOLUTIONS’ for goods in class 16 — Community trade mark application No 8235186

Decision of the examiner: Partially refused registration of the application for a Community trade mark

Decision of the Board of Appeal: Dismissed the appeal and confirmed the contested decision

Pleas in law: The applicant claims that the Community trade mark application No 8235186 ‘IDENTIFICATION SOLUTIONS’ should be allowed for registration for goods in class 16 because ‘IDENTIFICATION SOLUTIONS’ is distinctive for these goods and thus meets with the requirements according to Article 4 of Council Regulation No 207/2009.

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| 17.7.2010 | EN | Official Journal of the European Union | C 195/22 |
| --- | --- | --- | --- |

17.7.2010

EN

Official Journal of the European Union

C 195/22

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Appeal brought on 10 May 2010 by P against the judgment of the Civil Service Tribunal delivered on 24 February 2010 in Case F-89/08 P v Parliament

(Case T-213/10 P)

2010/C 195/36

Language of the case: French

Parties

Appellant: P (Brussels, Belgium) (represented by E. Boigelot, lawyer)

Other party to the proceedings: European Parliament

Form of order sought by the appellant

| — | declare the appeal admissible and well founded and, therefore |
| --- | --- |

—

declare the appeal admissible and well founded and, therefore

| — | annul the judgment under appeal delivered on 24 February 2010 by the Third Chamber of the European Union Civil Service Tribunal in Case F-89/08, notified to the appellant on 1 March 2010, by which the Civil Service Tribunal dismissed as unfounded the appellant’s action seeking, inter alia, the annulment of the Parliament’s decision of 15 April 2008 to dismiss him and an order against the Parliament for damages and interest for the loss which he claims to have suffered; |
| --- | --- |

—

annul the judgment under appeal delivered on 24 February 2010 by the Third Chamber of the European Union Civil Service Tribunal in Case F-89/08, notified to the appellant on 1 March 2010, by which the Civil Service Tribunal dismissed as unfounded the appellant’s action seeking, inter alia, the annulment of the Parliament’s decision of 15 April 2008 to dismiss him and an order against the Parliament for damages and interest for the loss which he claims to have suffered;

| — | uphold the claims which the appellant submitted to the European Union Civil Service Tribunal; |
| --- | --- |

—

uphold the claims which the appellant submitted to the European Union Civil Service Tribunal;

| — | order the respondent to pay the costs at both instances. |
| --- | --- |

—

order the respondent to pay the costs at both instances.

Pleas in law and main arguments

By the present appeal, the appellant is seeking the annulment of the judgment of the Civil Service Tribunal of 24 February 2010, delivered in Case F-89/08 P v Parliament, which dismissed the action by which the appellant had sought, inter alia, the annulment of the decision of the European Parliament to terminate his temporary agent contract, and payment of damages and interest as compensation for the loss allegedly suffered.

In support of his appeal, the appellant submits three pleas alleging:

| — | an error of law and contradictory reasoning inasmuch as the Civil Service Tribunal considers that becoming aware of the grounds for a decision solely by consulting one’s personal file is adequate and does not lead to the annulment of the decision, despite the fact that the institution did not set out those grounds in the decision to dismiss or in the decision rejecting the complaint; |
| --- | --- |

—

an error of law and contradictory reasoning inasmuch as the Civil Service Tribunal considers that becoming aware of the grounds for a decision solely by consulting one’s personal file is adequate and does not lead to the annulment of the decision, despite the fact that the institution did not set out those grounds in the decision to dismiss or in the decision rejecting the complaint;

| — | a misunderstanding by the Civil Service Tribunal (i) of the system of separation of powers and institutional equilibrium between the administration and the Courts, (ii) of the right to effective judicial protection, inasmuch as the Civil Service Tribunal assumed the role of the European Parliament by stating, in its place, the alleged reasons for the decision which was contested before the Tribunal; |
| --- | --- |

—

a misunderstanding by the Civil Service Tribunal (i) of the system of separation of powers and institutional equilibrium between the administration and the Courts, (ii) of the right to effective judicial protection, inasmuch as the Civil Service Tribunal assumed the role of the European Parliament by stating, in its place, the alleged reasons for the decision which was contested before the Tribunal;

| — | a lack of adequate reasoning in the judgment under appeal, inasmuch as the Civil Service Tribunal did not comment on the fact that the documents on the file, leading to the decision which was contested before it, were contradictory, despite the fact that the appellant had raised those inconsistencies in his action at first instance. |
| --- | --- |

—

a lack of adequate reasoning in the judgment under appeal, inasmuch as the Civil Service Tribunal did not comment on the fact that the documents on the file, leading to the decision which was contested before it, were contradictory, despite the fact that the appellant had raised those inconsistencies in his action at first instance.

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| 17.7.2010 | EN | Official Journal of the European Union | C 195/23 |
| --- | --- | --- | --- |

17.7.2010

EN

Official Journal of the European Union

C 195/23

---

Action brought on 7 May 2010 — Moselland v OHIM — Renta Siete (DIVINUS)

(Case T-214/10)

2010/C 195/37

Language in which the application was lodged: German

Parties

Applicant: Moselland eG — Winzergenossenschaft (Bernkastel-Kues, Germany) (represented by: M. Dippelhofer, 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: Renta Siete, SL (Albacete, Spain)

Form of order sought

| — | Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 22 February 2010 in Case R 1204/2009-2; |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 22 February 2010 in Case R 1204/2009-2;

| — | order OHIM to pay the costs of the proceedings, including those incurred during the appeal proceedings. |
| --- | --- |

—

order OHIM to pay the costs of the proceedings, including those incurred during the appeal proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: Renta Siete, SL

Community trade mark concerned: Word mark ‘DIVINUS’ for goods and services in classes 30, 33 and 35.

Proprietor of the mark or sign cited in the opposition proceedings: Moselland eG

Mark or sign cited in opposition: a national figurative mark, which includes the verbal elements ‘Moselland Divinum’, for goods in class 33.

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 76(2) of Regulation (EC) No 207/2009 (1), and Rule 19(2) und Rule 20(1) of Regulation (EC) No 2868/95 (2), as the Board of Appeal has not correctly and/or sufficiently addressed the substantiation of earlier rights, infringement of Article 76(1)(2) of Regulation (EC) No 207/2009, as the Board of Appeal did not confine itself to relying on the evidence submitted by the applicant, infringement of Article 78(1),(3) and (4) of Regulation (EC) No 207/2009 for incorrect evaluation of evidence and, as the Board of Appeal merely relied on a request for information despite having had evidence contrary to the information received already submitted to it, also infringement of Article 75(2) of Regulation (EC) No 207/2009, as the Board of Appeal failed to grant the applicant the opportunity to make known its views on the factual information gathered by OHIM, infringement of Rule 50(1) of Regulation (EC) No 2868/95, as the Board of Appeal incorrectly did not consider the presentation of an acknowledgement of receipt as sufficient evidence of submission of documents within the prescribed time-limit, infringement of Rule 50(1)(3) of Regulation (EC) No 2868/95 for misuse of power and finally infringement of Rule 51(b) of Regulation (EC) No 2868/95, as the Board of Appeal erred in not reimbursing the fee for appeal.

---

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

(2)  Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1).

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| 17.7.2010 | EN | Official Journal of the European Union | C 195/23 |
| --- | --- | --- | --- |

17.7.2010

EN

Official Journal of the European Union

C 195/23

---

Action brought on 11 May 2010 — Hellenic Republic v Commission

(Case T-215/10)

2010/C 195/38

Language of the case: Greek

Parties

Applicant: Hellenic Republic (represented by: I. Khalkias, G. Skiani and E. Leftheriotou)

Defendant: European Commission

Form of order sought

| — | uphold the action and annul the contested Commission decision in its entirety; |
| --- | --- |

—

uphold the action and annul the contested Commission decision in its entirety;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

By its action, the Hellenic Republic seeks the annulment of the Commission decision of 11 March 2010 excluding from Community financing certain expenditure incurred by the Member States under the European Agricultural Guarantee Fund (EAGF), notified as C(2010) 1317 final and published on 12 March 2010 (OJ 2010 L 63, p. 7) as Decision 2001/152/EU, in so far as it concerns financial corrections imposed on the Hellenic Republic in the fields of (a) cotton, (b) rural development measures and (c) distribution of food to the most deprived.

With regard to the correction for cotton, the applicant submits, first, that the Commission assessed the facts incorrectly and the reasons stated for the contested decision are defective so far as concerns the control environment and the compatibility of the cotton aid scheme with the IACS (Integrated Administration and Control System) and so far as concerns on-the-spot checks of areas and risk analysis.

Second, the applicant states that the Commission assessed the facts wrongly and misinterpreted and misapplied Article 13(2) of Regulation (EC) No 1591/2001 (1) and Article 17 of Regulation (EC) No 1051/2001 (2) as regards environmental measures and the inadequate control system and as regards the action taken following the controls which were effected in respect of cotton crops and environmental measures. More specifically, the accusation of a lack of sanctions that the Commission levels against the Hellenic Republic is unfounded in law and in substance, is not based on the provisions of Regulations No 1051/2001 and No 1591/2001, finds no support in any provision in force in the period in question and cannot constitute a lawful factor in the reasoning for the correction imposed by the contested decision.

Third, the applicant pleads incorrect interpretation and application of the guidelines for flat-rate corrections and infringement of the principle of proportionality given that the risk run by the EAGF was non-existent; also the state of the control system was not the same in the three periods under examination, 2003-04, 2004-05 and 2005-06, in which case the correction should also be graduated.

Fourth, the applicant maintains that the Commission misinterpreted Article 7(4) of Regulation No 1051/2001 and Article 1 of each of Regulations No 1123/2004, (3) No 905/2005, (4) No 871/2006 (5) and No 1486/2002 (6) which defined the annual actual and eligible quantity of cotton in relation to the one-off corrections in the periods 2003-04, 2004-05 and 2005-06 for the alleged overshooting of the eligible quantity and for the consequent wrongful payment.

Fifth, the applicant submits that the contested decision contains contradictory reasoning for the corrections and incorrect calculations within the corrections, given the existence of discrepancies and conflicting corrections in the financial years at issue.

With regard to rural development measures, the applicant submits, first, that the procedure for clearance of the accounts is invalid because of infringement of an essential procedural requirement provided for in subparagraph (a) of the third subparagraph of Article 8(1) of Regulation (EC) No 1663/95 (7) regarding the failure to engage in bilateral discussion so far as concerns the imposition of a correction for the environmental development measures.

Second, the applicant contends that the Commission erred as to the facts, assessed the facts incorrectly, gave deficient reasoning and infringed the principle of proportionality, so far as concerns the alleged weaknesses in the IACS, in the basic controls and in the additional controls.

With regard to the field of distribution of food to the most deprived, the applicant submits, first, that the Commission’s position caused it to entertain legitimate expectations that it would not be burdened with the entire expenditure on the programme for the free distribution of rice; the change in the Commission’s position after the event constitutes an infringement of the principle of the protection of legitimate expectations and the principle of legal certainty and, in the alternative, amounts to exceeding of the limits of its discretion, if not misuse of powers.

Second, the applicant pleads that the transport costs that were ascribed to it were calculated incorrectly.

Third, the applicant maintains that the Commission interpreted and applied Community provisions incorrectly, in particular Article 3(2) of Regulation (EEC) No 3149/92, (8) infringed the principle of proportionality and exceeded the limits of its discretion.

---

(1)  Commission Regulation (EC) No 1591/2001 of 2 August 2001 laying down detailed rules for applying the cotton aid scheme (OJ 2001 L 210, p. 10).

(2)  Council Regulation (EC) No 1051/2001 of 22 May 2001 on production aid for cotton (OJ 2001 L 148, p. 3).

(3)  Commission Regulation (EC) No 1123/2004 of 17 June 2004 fixing, for the 2003/04 marketing year, the actual production of unginned cotton and the amount by which the guide price is to be reduced as a result (OJ 2004 L 218, p. 3).

(4)  Commission Regulation (EC) No 905/2005 of 16 June 2005 determining for the 2004/2005 marketing year actual production of unginned cotton and the ensuing guide price reduction (OJ 2005 L 154, p. 3).

(5)  Commission Regulation (EC) No 871/2006 of 15 June 2006 determining for the 2005/06 marketing year actual production of unginned cotton and the ensuing guide price reduction (OJ 2006 L 164, p. 3).

(6)  Commission Regulation (EC) No 1486/2002 of 19 August 2002 amending Regulation (EC) No 1591/2001 laying down detailed rules for applying the cotton aid scheme (OJ 2002 L 223, p. 3).

(7)  Commission Regulation (EC) No 1663/95 of 7 July 1995 laying down detailed rules for the application of Council Regulation (EEC) No 729/70 regarding the procedure for the clearance of the accounts of the EAGGF Guarantee Section (OJ 1995 L 158, p. 6).

(8)  Commission Regulation (EEC) No 3149/92 of 29 October 1992 laying down detailed rules for the supply of food from intervention stocks for the benefit of the most deprived persons in the Community (OJ 1992 L 313, p. 50).

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| 17.7.2010 | EN | Official Journal of the European Union | C 195/25 |
| --- | --- | --- | --- |

17.7.2010

EN

Official Journal of the European Union

C 195/25

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Action brought on 10 May 2010 — Monster Cable Products v OHIM — Live Nation (Music) UK Ltd (MONSTER ROCK)

(Case T-216/10)

2010/C 195/39

Language in which the application was lodged: English

Parties

Applicant: Monster Cable Products, Inc. (Brisbane, USA) (represented by: O. Günzel and W. von der Osten-Sacken, lawyers)

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

Other party to the proceedings before the Board of Appeal: Live Nation (Music) UK Ltd (London, United Kingdom)

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 24 February 2010 in case R 216/2009-1, as far as the appeal was dismissed; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office For Harmonisation in the Internal Market (Trade Marks and Designs) of 24 February 2010 in case R 216/2009-1, as far as the appeal was dismissed;

| — | Reject the opposition No B 754335 against Community trademark application No 3333804 ‘MONSTER ROCK’ in its entirety; and |
| --- | --- |

—

Reject the opposition No B 754335 against Community trademark application No 3333804 ‘MONSTER ROCK’ in its entirety; and

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

—

Order the defendant to bear the costs of the proceedings.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘MONSTER ROCK’, for goods in class 9

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

Mark or sign cited: United Kingdom trade mark registration No 1313176 of the word mark ‘MONSTERS OF ROCK’, for goods in class 16; United Kingdom trade mark registration No 1313177 of the word mark ‘MONSTERS OF ROCK’, for goods in class 25; United Kingdom trade mark registration No 1313178 of the word mark ‘MONSTERS OF ROCK’, for goods in class 26; United Kingdom trade mark registration No 2299141 of the word mark ‘MONSTERS OF ROCK’, for goods and services in classes 9, 16, 25, 41 and 43; trade mark ‘MONSTERS OF ROCK’, well-known (in the sense of Article 6 bis of the Paris Convention) in the old 15 Member States; unregistered trade mark ‘MONSTERS OF ROCK’, used in the course of trade in the old 15 Member States; trade name ‘MONSTERS OF ROCK’, used in the course of trade in the old 15 Member States

Decision of the Opposition Division: Upheld the opposition for all the contested goods and rejected the application in its entirety

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law:

Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal: (i) wrongly assessed the identity/similarity of the goods, (ii) didn’t take into account the differences between the trademarks, in particular their conceptual differences, and (iii) failed to determine the scope of protection of the earlier sign.

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| 17.7.2010 | EN | Official Journal of the European Union | C 195/26 |
| --- | --- | --- | --- |

17.7.2010

EN

Official Journal of the European Union

C 195/26

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Action brought on 11 May 2010 — Rautaruukki Oyj v OHIM — Manuel Vigil Pérez (MONTERREY)

(Case T-217/10)

2010/C 195/40

Language in which the application was lodged: English

Parties

Applicant: Rautaruukki Oyj (Helsinki, Finland) (represented by: J. Tanhuanpää, lawyer)

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

Other party to the proceedings before the Board of Appeal: Manuel Vigil Pérez (Madrid, Spain)

Form of order sought

| — | Annul the decision of the Second Board of Appeal of the Office For Harmonisation in the Internal Market (Trade Marks and Designs) of 24 February 2010 in case R 1001/2009-2; |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of the Office For Harmonisation in the Internal Market (Trade Marks and Designs) of 24 February 2010 in case R 1001/2009-2;

| — | Dismiss the decision of the Opposition Division No B 1173707 in its entirety; |
| --- | --- |

—

Dismiss the decision of the Opposition Division No B 1173707 in its entirety;

| — | Allow registration of the applicant's mark ‘MONTERREY’ for all the goods in classes 6 and 19 according to applicant's Community trademark application No 5276936; |
| --- | --- |

—

Allow registration of the applicant's mark ‘MONTERREY’ for all the goods in classes 6 and 19 according to applicant's Community trademark application No 5276936;

| — | Order the defendant to bear the costs incurred in these proceedings as well as those incurred before the Board of Appeal; and |
| --- | --- |

—

Order the defendant to bear the costs incurred in these proceedings as well as those incurred before the Board of Appeal; and

| — | Order the other party to the proceedings before the Board of Appeal to pay the costs of the proceedings, including those incurred by the applicant before the Board of Appeal, should it become an intervening party in this case. |
| --- | --- |

—

Order the other party to the proceedings before the Board of Appeal to pay the costs of the proceedings, including those incurred by the applicant before the Board of Appeal, should it become an intervening party in this case.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘MONTERREY’, for goods and services in classes 6, 19 and 37

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

Mark or sign cited: Spanish trade mark registration No 1695663 of the figurative mark ‘MONTERREY’, for services in class 37; Spanish trade mark registration No 1695662 of the figurative mark ‘MONTERREY’, for services in class 36

Decision of the Opposition Division: Upheld the opposition partially

Decision of the Board of Appeal: Dismissed the appeal partially

Pleas in law:

| | The applicant advances three pleas in law in support of its application. |
| --- | --- |

The applicant advances three pleas in law in support of its application.

| | On the basis of its first plea, the applicant claims that the contested decision infringes Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly assessed the similarity of the goods and services. |
| --- | --- |

On the basis of its first plea, the applicant claims that the contested decision infringes Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly assessed the similarity of the goods and services.

| | By its second plea, the applicant considers that the contested decision infringes Rule 99 of Commission Regulation No 2868/95 implementing Council Regulation No 40/94, as the Board of Appeal incorrectly assumed that the translation of an earlier right corresponded to the relevant original. |
| --- | --- |

By its second plea, the applicant considers that the contested decision infringes Rule 99 of Commission Regulation No 2868/95 implementing Council Regulation No 40/94, as the Board of Appeal incorrectly assumed that the translation of an earlier right corresponded to the relevant original.

| | By its third plea, the applicant claims that the contested decision infringes the principles of the protection of legitimate expectations, equal treatment and legality. |
| --- | --- |

By its third plea, the applicant claims that the contested decision infringes the principles of the protection of legitimate expectations, equal treatment and legality.

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| 17.7.2010 | EN | Official Journal of the European Union | C 195/26 |
| --- | --- | --- | --- |

17.7.2010

EN

Official Journal of the European Union

C 195/26

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Action brought on 12 May 2010 — DHL International v OHIM — Service Point Solutions (SERVICEPOINT)

(Case T-218/10)

2010/C 195/41

Language in which the application was lodged: German

Parties

Applicant: DHL International GmbH (Bonn, Germany) (represented by: K.-U. Jonas, 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: Service Point Solutions, SA (Barcelona, Spain)

Form of order sought

| — | Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 25 February 2010 in Case R 62/2009-2; |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 25 February 2010 in Case R 62/2009-2;

| — | Order the defendant and, if appropriate, the other party to the proceedings to pay the costs. |
| --- | --- |

—

Order the defendant and, if appropriate, the other party to the proceedings to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: Figurative mark including the word element ‘SERVICEPOINT’ for goods and services in Classes 16, 20, 35 and 39.

Proprietor of the mark or sign cited in the opposition proceedings: Service Point Solutions, SA

Mark or sign cited in opposition: Figurative mark including the word element ‘Service Point’ for goods and services in Classes 8, 9, 16, 20, 35, 38, 39 and 42; figurative mark including the word element ‘service point’ for goods and services in Class 16; and figurative mark including the word element ‘service point’ for goods and services in Classes 9 and 42.

Decision of the Opposition Division: The opposition was upheld.

Decision of the Board of Appeal: The appeal was dismissed.

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009, (1) since there is no likelihood of confusion between the opposing marks, and infringement of Article 76(1) and (2) of Regulation (EC) No 207/2009 since the Board of Appeal failed to have regard to various documents.

---

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

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| 17.7.2010 | EN | Official Journal of the European Union | C 195/27 |
| --- | --- | --- | --- |

17.7.2010

EN

Official Journal of the European Union

C 195/27

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Action brought on 12 May 2010 — ratiopharm v OHIM — nycomed (ZUFAL)

(Case T-222/10)

2010/C 195/42

Language in which the application was lodged: German

Parties

Applicant: ratiopharm GmbH (Ulm, Germany) (represented by: S. Völker, 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: nycomed GmbH (Konstanz, Germany)

Form of order sought

| — | Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 12 March 2010 in Case R 874/2008-4; |
| --- | --- |

—

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 12 March 2010 in Case R 874/2008-4;

| — | Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs of the proceedings. |
| --- | --- |

—

Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: Word mark ‘ZUFAL’ for goods in Class 5.

Proprietor of the mark or sign cited in the opposition proceedings: nycomed GmbH

Mark or sign cited in opposition: Community word mark ‘ZURCAL’ for goods in Class 5 and three national word marks ‘ZURCAL’ for goods in Class 5.

Decision of the Opposition Division: The opposition was upheld.

Decision of the Board of Appeal: The appeal was dismissed.

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009, (1) since there is no likelihood of confusion between the opposing marks.

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

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| 17.7.2010 | EN | Official Journal of the European Union | C 195/28 |
| --- | --- | --- | --- |

17.7.2010

EN

Official Journal of the European Union

C 195/28

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Action brought on 18 May 2010 — Banco Santander v Commission

(Case T-227/10)

2010/C 195/43

Language of the case: Spanish

Parties

Applicant: Banco Santander, SA (Santander, Spain) (represented by: J. Buendía Sierra, E. Abad Valdenebro, M. Muñoz de Juan, R. Calvo Salinero, lawyers)

Defendant: European Commission

Form of order sought

| — | annul Article 1(1) of the contested decision inasmuch as it declares that Article 12(5) of the consolidated text of the Law on Corporation Tax (texto refundido de la Ley del Impuesto sobre Sociedades, TRLIS) involves State aid elements; |
| --- | --- |

—

annul Article 1(1) of the contested decision inasmuch as it declares that Article 12(5) of the consolidated text of the Law on Corporation Tax (texto refundido de la Ley del Impuesto sobre Sociedades, TRLIS) involves State aid elements;

| — | in the alternative, annul Article 1(1) of the contested decision inasmuch as it declares that Article 12(5) TRLIS involves State aid elements when it applies to acquisitions of shares which entail the acquisition of control; |
| --- | --- |

—

in the alternative, annul Article 1(1) of the contested decision inasmuch as it declares that Article 12(5) TRLIS involves State aid elements when it applies to acquisitions of shares which entail the acquisition of control;

| — | in the alternative, annul Article 4 of the contested decision inasmuch as it applies the recovery order to operations which occurred prior to the publication in the Official Journal of the European Union of the final decision which is the object of the present action; and |
| --- | --- |

—

in the alternative, annul Article 4 of the contested decision inasmuch as it applies the recovery order to operations which occurred prior to the publication in the Official Journal of the European Union of the final decision which is the object of the present action; and

| — | order the Commission to pay the costs of these proceedings. |
| --- | --- |

—

order the Commission to pay the costs of these proceedings.

Pleas in law and main arguments

The decision against which these proceedings are brought is the same as that contested in Cases T-219/10 Autogrill España v Commission; T-221/10 Iberdrola v Commission; and T-225/10 Banco Bilbao Vizcaya Argentaria v Commission.

The pleas in law and the principal arguments are similar to those relied on in those cases.

In particular, various errors of law in the legal classification of the measures as State aid, in the identification of the beneficiary of that measure and in the establishment of the deadline for recognising legitimate expectations are alleged. The last ground is raised by the applicant inasmuch as the contested decision recognises the existence of legitimate expectations, distinguishing, at the same time, between such operations carried out from the entry into force of the measure to the date of publication of the decision to initiate of the formal investigation procedure and those carried out subsequently.

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| 17.7.2010 | EN | Official Journal of the European Union | C 195/28 |
| --- | --- | --- | --- |

17.7.2010

EN

Official Journal of the European Union

C 195/28

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Action brought on 21 May 2010 — Telefónica v Commission

(Case T-228/10)

2010/C 195/44

Language of the case: Spain

Parties

Applicant: Telefónica, SA (Madrid, Spain) (represented by: J. Ruiz Calzado, M. Núñez Müller and J. Domínguez Pérez, lawyers)

Defendant: European Commission

Form of order sought

| — | annul Article 1(1) of the Decision; |
| --- | --- |

—

annul Article 1(1) of the Decision;

| — | order the Commission to pay all the costs arising from the proceedings. |
| --- | --- |

—

order the Commission to pay all the costs arising from the proceedings.

Pleas in law and main arguments

The decision against which these proceedings are brought is the same as that contested in Cases T-219/10 Autogrill España v Commission; T-221/10 IBERDROLA v Commission; and T-227/10 Banco Santander v Commission.

The pleas in law and the principal arguments are similar to those relied on in those cases.

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| 17.7.2010 | EN | Official Journal of the European Union | C 195/28 |
| --- | --- | --- | --- |

17.7.2010

EN

Official Journal of the European Union

C 195/28

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Action brought on 21 May 2010 — Graf-Syteco v OHIM — Teco Electric & Machinery (SYTECO)

(Case T-229/10)

2010/C 195/45

Language in which the application was lodged: German

Parties

Applicant: Graf-Syteco Gmbh & Co. KG (Tuningen, Germany) (represented by: T. Kieser, lawyer)

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

Other party/parties to the proceedings before the Board of Appeal of OHIM: Teco Electric & Machinery Co. Ltd (Taipai, Taiwan)

Form of order sought

| — | Amend the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 18 February 2010 in Case R 230/2009-1 so as to reject opposition No B 1 112 889 of 5 February 2007 based on the German figurative word mark No 30 327 439, the British and Northern Irish figurative word mark No 233 226, the Benelux figurative word mark No 742 535 and the Spanish figurative word mark No 2 545 860 TECO; |
| --- | --- |

—

Amend the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 18 February 2010 in Case R 230/2009-1 so as to reject opposition No B 1 112 889 of 5 February 2007 based on the German figurative word mark No 30 327 439, the British and Northern Irish figurative word mark No 233 226, the Benelux figurative word mark No 742 535 and the Spanish figurative word mark No 2 545 860 TECO;

| — | In the alternative, annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 18 February 2010 in Case R 230/2009-1; |
| --- | --- |

—

In the alternative, annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 18 February 2010 in Case R 230/2009-1;

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

—

Order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: Word mark ‘SYTECO’ for goods and services in Classes 9, 37 and 42.

Proprietor of the mark or sign cited in the opposition proceedings: Teco Electric & Machinery Co. Ltd.

Mark or sign cited in opposition: Four national figurative marks which include the element ‘TECO’, for goods in Classes 7, 9 and 11.

Decision of the Opposition Division: The opposition was upheld in part.

Decision of the Board of Appeal: The appeal was dismissed.

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009, (1) since there is no likelihood of confusion between the opposing marks.

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

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| 17.7.2010 | EN | Official Journal of the European Union | C 195/29 |
| --- | --- | --- | --- |

17.7.2010

EN

Official Journal of the European Union

C 195/29

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Action brought on 21 May 2010 — Couture Tech Limited v OHMI (representation of an escutcheon containing the globe, a star, the hammer and sickle)

(Case T-232/10)

2010/C 195/46

Language of the case: English

Parties

Applicant: Couture Tech Ltd (Tortola, British Virgin Islands) (represented by: B. Whyatt, Barrister)

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

Form of order sought

| — | Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 5 March 2010 in case R 1509/2008-2; and |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 5 March 2010 in case R 1509/2008-2; and

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

—

Order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

Community trade mark concerned: A figurative mark in colour representing an escutcheon with the globe, a star, the hammer and sickle for goods and services in classes 3, 14, 18, 23, 26 and 43 — Community trade mark application No 5585898

Decision of the examiner: Refused registration of the application for a Community trade mark

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: The applicant advances two pleas in law in support of its application

On the basis of its first plea, the applicant claims that the contested decision infringes Articles 7(1) and 7(2) of Council Regulation No 207/2009, as the Board of Appeal wrongly applied these articles to the Community trade mark application

By its second plea, the applicant considers that the contested decision fails to apply the rules of natural justice by not recognising the applicant's right to legitimate expectations that its Community trade mark application would be registered.

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| 17.7.2010 | EN | Official Journal of the European Union | C 195/30 |
| --- | --- | --- | --- |

17.7.2010

EN

Official Journal of the European Union

C 195/30

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Action brought on 20 May 2010 — Nike International Ltd v OHIM — Intermar Simanto Nahmias (JUMPMAN)

(Case T-233/10)

2010/C 195/47

Language in which the application was lodged: English

Parties

Applicant: Nike International Ltd (Beaverton, USA) (represented by: M. De Justo Bailey, lawyer)

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

Other party to the proceedings before the Board of Appeal: Intermar Simanto Nahmias (Individual Company) (Istanbul, Turkey)

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 11 March 2010 in case R 738/2009-1, as far as the opposition decision No B 1326299 has been upheld for all the contested goods; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 11 March 2010 in case R 738/2009-1, as far as the opposition decision No B 1326299 has been upheld for all the contested goods;

| — | Order the defendant to bear the costs of the proceedings; and |
| --- | --- |

—

Order the defendant to bear the costs of the proceedings; and

| — | Order the other party to the proceedings before the Board of Appeal to pay the costs of the proceedings, should it become an intervening party in this case. |
| --- | --- |

—

Order the other party to the proceedings before the Board of Appeal to pay the costs of the proceedings, should it become an intervening party in this case.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘JUMPMAN’, for goods in class 25

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

Mark or sign cited: Spanish trade mark registration No 2657489 of the word mark ‘JUMP’, for goods in class 25; Community trade mark registration No 2752145 of the word mark ‘JUMP’, for goods in class 25

Decision of the Opposition Division: Upheld the opposition for all of the contested goods and rejected the application in its entirety

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly assessed that there was a likelihood of confusion between the concerned trade marks.

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| 17.7.2010 | EN | Official Journal of the European Union | C 195/30 |
| --- | --- | --- | --- |

17.7.2010

EN

Official Journal of the European Union

C 195/30

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Action brought on 18 May 2010 — Ebro Puleva v Commission

(Case T-234/10)

2010/C 195/48

Language of the case: Spanish

Parties

Applicant: Ebro Puleva, SA (Madrid, Spain) (represented by: J. Buendía Sierra, E. Abad Valdenebro, M. Muñoz de Juan and R. Calvo Salinero, lawyers)

Defendant: European Commission

Form of order sought

| — | annul Article 1(1) of the contested decision inasmuch as it declares that Article 12(5) of the consolidated text of the Law on Corporation Tax (texto refundido de la Ley del Impuesto sobre Sociedades, TRLIS) involves State aid elements |
| --- | --- |

—

annul Article 1(1) of the contested decision inasmuch as it declares that Article 12(5) of the consolidated text of the Law on Corporation Tax (texto refundido de la Ley del Impuesto sobre Sociedades, TRLIS) involves State aid elements

| — | in the alternative, annul Article 1(1) inasmuch as it declares that Article 12(5) TRLIS involves State aid elements when it applies to acquisitions of shares which entail the acquisition of control; |
| --- | --- |

—

in the alternative, annul Article 1(1) inasmuch as it declares that Article 12(5) TRLIS involves State aid elements when it applies to acquisitions of shares which entail the acquisition of control;

| — | order the Commission to pay the costs of these proceedings. |
| --- | --- |

—

order the Commission to pay the costs of these proceedings.

Pleas in law and main arguments

The decision against which these proceedings are brought is the same as that contested in Cases T-219/10 Autogrill España v Commission; T-221/10 IBERDROLA v Commission; and T-225/10 BANCO BILBAO VIZCAYA ARGENTARIA v Commission.

The pleas in law and the principal arguments are similar to those relied on in those cases.

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| 17.7.2010 | EN | Official Journal of the European Union | C 195/31 |
| --- | --- | --- | --- |

17.7.2010

EN

Official Journal of the European Union

C 195/31

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Action brought on 21 May 2010 — Asociación Española de Banca v Commission

(Case T-236/10)

2010/C 195/49

Language of the case: Spanish

Parties

Applicant: Asociación Española de Banca (Madrid, Spain) (represented by: J. Buendía Sierra, E. Abad Valdenebro, M. Muñoz de Juan and R. Calvo Salinero, lawyers)

Defendant: European Commission

Form of order sought

| — | annul Article 1(1) of the contested decision inasmuch as it declares that Article 12(5) of the consolidated text of the Law on Corporation Tax (texto refundido de la Ley del Impuesto sobre Sociedades, TRLIS) involves State aid elements; |
| --- | --- |

—

annul Article 1(1) of the contested decision inasmuch as it declares that Article 12(5) of the consolidated text of the Law on Corporation Tax (texto refundido de la Ley del Impuesto sobre Sociedades, TRLIS) involves State aid elements;

| — | in the alternative, annul Article 1(1) inasmuch as it declares that Article 12(5) TRLIS involves State aid elements when it applies to acquisitions of shares which entail the acquisition of control; |
| --- | --- |

—

in the alternative, annul Article 1(1) inasmuch as it declares that Article 12(5) TRLIS involves State aid elements when it applies to acquisitions of shares which entail the acquisition of control;

| — | in the alternative, annul Article 4 inasmuch as it applies the recovery order to operations which occurred prior to the publication in the Official Journal of the European Union of the final decision which is the object of the present action, and |
| --- | --- |

—

in the alternative, annul Article 4 inasmuch as it applies the recovery order to operations which occurred prior to the publication in the Official Journal of the European Union of the final decision which is the object of the present action, and

| — | order the Commission to pay the costs of these proceedings. |
| --- | --- |

—

order the Commission to pay the costs of these proceedings.

Pleas in law and main arguments

The decision against which these proceedings are brought is the same as that contested in Cases T-219/10 Autogrill España v Commission; T-221/10 IBERDROLA v Commission; and T-225/10 BANCO BILBAO VIZCAYA ARGENTARIA v Commission.

The pleas in law and the principal arguments are similar to those relied on in those cases.

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| 17.7.2010 | EN | Official Journal of the European Union | C 195/31 |
| --- | --- | --- | --- |

17.7.2010

EN

Official Journal of the European Union

C 195/31

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Action brought on 20 May 2010 — Italy v Commission

(Case T-239/10)

2010/C 195/50

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: G. Palmieri and P. Gentili, avvocati dello Stato)

Defendant: European Commission

Form of order sought

| — | Annul, pursuant to Article 264 TFEU, debit note No 3241001630 of 1 March 2010, received on 11 March 2010, issued by the European Commission, D.G. Regional Policy, as a consequence of Decision C(2009) 10350 of the European Commission of 22 December 2009, notified on 23 December 2009, concerning the cancellation of part of the contribution from the European Regional Development Fund (ERDF) allocated to Italy for the operational programme POR Puglia Obiettivo 1 2000-2006. |
| --- | --- |

—

Annul, pursuant to Article 264 TFEU, debit note No 3241001630 of 1 March 2010, received on 11 March 2010, issued by the European Commission, D.G. Regional Policy, as a consequence of Decision C(2009) 10350 of the European Commission of 22 December 2009, notified on 23 December 2009, concerning the cancellation of part of the contribution from the European Regional Development Fund (ERDF) allocated to Italy for the operational programme POR Puglia Obiettivo 1 2000-2006.

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

—

Order the European Commission 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-223/10 Regione Puglia v Commission.

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| 17.7.2010 | EN | Official Journal of the European Union | C 195/31 |
| --- | --- | --- | --- |

17.7.2010

EN

Official Journal of the European Union

C 195/31

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Action brought on 25 May 2010 — Industrias Francisco Ivars v OHIM — Motive (Speed reducers)

(Case T-246/10)

2010/C 195/51

Language in which the application was lodged: Spanish

Parties

Applicant: Industrias Francisco Ivars, SL (Xeraco, Spain) (represented by: E. Caballero Oliver and A. Sanz-Bermell y Martínez, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Motive S.r.l.

Form of order sought

| — | annul the contested decision and, accordingly, dismiss the opposition brought by MOTIVE S.r.l., and declare that the grant of Community Design No 000625702-001 for ‘reducers’ is well founded; |
| --- | --- |

—

annul the contested decision and, accordingly, dismiss the opposition brought by MOTIVE S.r.l., and declare that the grant of Community Design No 000625702-001 for ‘reducers’ is well founded;

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

—

order OHIM to pay the costs.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: Community Design No 625702-0001 for Reducers in Class 15/01 (Motors)).

Proprietor of the Community trade mark: Industrias Francisco Ivars, SL

Applicant for the declaration of invalidity: Motive S.r.l.

Trade mark right of applicant for the declaration: Community Design No 73952-0001

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

Decision of the Board of Appeal: Annulment of the decision of the Cancellation Division and declaration of invalidity of the Community design concerned.

Pleas in law: Incorrect interpretation and application of Articles 4, 5 and 7 of Regulation No 6/2002 on Community designs.

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| 17.7.2010 | EN | Official Journal of the European Union | C 195/32 |
| --- | --- | --- | --- |

17.7.2010

EN

Official Journal of the European Union

C 195/32

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Order of the General Court of 17 May 2010 — France v Commission

(Case T-74/09) (1)

2010/C 195/52

Language of the case: French

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

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(1)  OJ C 102, 1.05.2009.

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