# Official Journal C 179/2010

| | ISSN 1725-2423
  doi:10.3000/17252423.C_2010.179.eng |
| --- | --- |
| Official Journal
  of the European Union | C 179 |
| | |
| English edition | Information and Notices | Volume 533 July 2010 |

ISSN 1725-2423

doi:10.3000/17252423.C_2010.179.eng

Official Journal

of the European Union

C 179

English edition

Information and Notices

Volume 533 July 2010

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| Contents | page |
| --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | Court of Justice of the European Union |
| 2010/C 179/01 | Last publication of the Court of Justice in the Official Journal of the European Union OJ C 161, 19.6.2010 | 1 |

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

2010/C 179/01

Last publication of the Court of Justice in the Official Journal of the European Union OJ C 161, 19.6.2010

Official Journal of the European Union

1

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| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2010/C 179/02 | Joined Cases C-145/08 and C-149/08: Judgment of the Court (Fourth Chamber) of 6 May 2010 (reference for a preliminary ruling from the Simvoulio tis Epikratias (Greece)) — Club Hotel Loutraki AE, Athinaïki Techniki AE, Evangelos Marinakis v Ethniko Simvoulio Radiotileorasis, Ipourgos Epikratias (C-145/08) and Aktor Anonimi Tekhniki Etairia (Aktor ATE) v Ethniko Simvoulio Radiotileorasis (C-149/08) (Directive 92/50/EEC — Public service contracts — Service concessions — Mixed contract — Contract including the transfer of a block of shares in a public casino business — Contract under which the contracting authority entrusts to the contracting undertaking the management of a casino business and the execution of a development plan consisting in upgrading the casino premises and improving the surrounding area — Directive 89/665/EEC — Decision of the contracting authority — Effective and rapid remedies — National procedural law — Criteria for the award of damages — Prior annulment of the unlawful act or omission or a finding of its nullity by the competent court — Members of a consortium in a public procurement procedure — Decision adopted in the context of that procedure by an authority other than the contracting authority — Action brought, individually, by some members of the consortium — Admissibility) | 2 |
| 2010/C 179/03 | Case C-304/08: Judgment of the Court (First Chamber) of 14 January 2010 (reference for a preliminary ruling from the Bundesgerichtshof — Germany) — Zentrale zur Bekämpfung unlauteren Wettbewerbs eV v Plus Warenhandelsgesellschaft mbH (Directive 2005/29/EC — Unfair commercial practices — National legislation laying down a prohibition in principle of commercial practices which make the participation of consumers in a lottery conditional on the purchase of goods or the use of services) | 3 |
| 2010/C 179/04 | Case C-308/08: Judgment of the Court (Fourth Chamber) of 20 May 2010 — European Commission v Kingdom of Spain (Failure of a Member State to fulfil obligations — Directive 92/43/EEC — Conservation of natural habitats — Wild fauna and flora — Protection arrangements before a habitat is placed on the list of sites of Community importance — Article 12(4) — Project for upgrading a country road) | 3 |
| 2010/C 179/05 | Case C-341/08: Judgment of the Court (Grand Chamber) of 12 January 2010 (reference for a preliminary ruling from the Sozialgericht Dortmund — Germany) — Domnica Petersen v Berufungsausschuss für Zahnärzte für den Bezirk Westfalen-Lippe (Directive 2000/78/EC — Articles 2(5) and 6(1) — Prohibition of discrimination on grounds of age — Provision of national law setting a maximum age of 68 for practice as a panel dentist — Aim pursued — Measure necessary for the protection of health — Consistency — Appropriateness of the measure) | 4 |
| 2010/C 179/06 | Case C-352/08: Judgment of the Court (First Chamber) of 20 May 2010 (reference for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Modehuis A. Zwijnenburg BV v Staatssecretaris van Financiën (Approximation of laws — Directive 90/434/EEC — Common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States — Article 11(1)(a) — Whether applicable to transaction tax) | 5 |
| 2010/C 179/07 | Case C-365/08: Judgment of the Court (Fourth Chamber) of 20 May 2010 (reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria)) — Agrana Zucker GmbH v Bundesminister für Land- und Forstwirtschaft, Umwelt und Wasserwirtschaft (Sugar — Regulation (EC) No 318/2006 — Article 16 — Calculation of the production charge — Inclusion of the quantity of quota sugar withdrawn from the market in the basis for assessment of the charge — Principles of proportionality and non-discrimination) | 5 |
| 2010/C 179/08 | Case C-370/08: Judgment of the Court (Second Chamber) of 20 May 2010 (reference for a preliminary ruling from the Bundesfinanzhof (Germany)) — Data I/O GmbH v Hauptzollamt Hannover, formerly Bundesfinanzdirektion Südost (Common Customs Tariff — Tariff classification — Combined Nomenclature — Chapter 84, Note 5(B) — Adapter containing a memory-chip and designed to provide the electrical connection between an automatic programming machine and electrical components to be programmed — Headings 8471, 8473 and 8536) | 6 |
| 2010/C 179/09 | Case C-434/08: Judgment of the Court (First Chamber) of 20 May 2010 (reference for a preliminary ruling from the Oberlandesgericht Oldenburg (Germany)) — Arnold und Johann Harms als Gesellschaft bürgerlichen Rechts v Freerk Heidinga (Common agricultural policy — Integrated administration and control system for certain aid schemes — Regulation (EC) No 1782/2003 — Single payment scheme — Transfer of payment entitlements — Definitive transfer) | 6 |
| 2010/C 179/10 | Case C-533/08: Judgment of the Court (Grand Chamber) of 4 May 2010 (reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands)) — TNT Express Nederland B.V. v AXA Versicherung AG (Judicial cooperation in civil and commercial matters — Jurisdiction and recognition and enforcement of judgments — Regulation (EC) No 44/2001 — Article 71 — Conventions concluded by the Member States in relation to particular matters — Convention on the Contract for the International Carriage of Goods by Road (CMR)) | 7 |
| 2010/C 179/11 | Case C-545/08: Judgment of the Court (Third Chamber) of 6 May 2010 — European Commission v Republic of Poland (Failure of a Member State to fulfil obligations — Electronic communications — Directives 2002/21/EC and 2002/22/EC — High-speed internet access provider — Obligation to obtain authorisation for the access tariffs to high-speed internet services and to fix those tariffs on the basis of the costs of the provision of such services — No market analysis) | 8 |
| 2010/C 179/12 | Case C-583/08 P: Judgment of the Court (First Chamber) of 20 May 2010 — Christos Gogos v European Commission (Appeals — Officials — Internal competition for promotion from one category to another — Appointment — Classification in grade — Article 31(2) of the Staff Regulations — Unlimited jurisdiction — Dispute of a financial character — Length of proceedings before the General Court — Reasonable time — Claim for equitable compensation) | 8 |
| 2010/C 179/13 | Case C-17/09: Judgment of the Court (Forth Chamber) of 21 January 2010 — European Commission v Federal Republic of Germany (Public service contracts — Bio-waste and green waste disposal service — Award without an open public tender procedure) | 9 |
| 2010/C 179/14 | Case C-56/09: Judgment of the Court (Second Chamber) of 20 May 2010 (reference for a preliminary ruling from the Commissione tributaria provinciale di Roma — Italy) — Emiliano Zanotti v Agenzia delle Entrate — Ufficio Roma 2 (Freedom to provide services — Citizenship of the European Union — Articles 18 EC and 49 EC — National income tax legislation — Right to deduct total tuition fees from gross tax up to a fixed percentage — University course attended in another Member State — Imposition of a quantitative limit — Deduction up to a maximum amount laid down for registration and course fees paid for similar tuition provided by national State universities — Imposition of a territorial limit — Deduction up to a maximum amount laid down for registration and course fees paid for similar tuition provided by the national State university nearest to the taxpayer’s residence for fiscal purposes) | 9 |
| 2010/C 179/15 | Case C-63/09: Judgment of the Court (Third Chamber) of 6 May 2010 (reference for a preliminary ruling from the Juzgado de lo Mercantil no 4 de Barcelona — Spain) — Axel Walz v Clickair S.A. (Air transport — Montreal Convention — Liability of carriers in respect of checked baggage — Article 22(2) — Limits of liability in case of destruction, loss, damage or delay of baggage — Concept of damage — Material and non-material damage) | 10 |
| 2010/C 179/16 | Case C-94/09: Judgment of the Court (First Chamber) of 6 May 2010 — European Commission v French Republic (Failure of a Member State to fulfil obligations — VAT — Directive 2006/112/EC — Article 98(1) and (2) — Supply of services by undertakers — Application of a reduced rate to the service involving transportation of a body by vehicle) | 11 |
| 2010/C 179/17 | Case C-111/09: Judgment of the Court (Fourth Chamber) of 20 May 2010 (reference for a preliminary ruling from the Okresní soud v Chebu — Czech Republic) — Česká podnikatelská pojišťovna as, Vienna Insurance Group v Michal Bilas (Regulation (EC) No 44/2001 — Action brought by an insurer before the court of its place of domicile seeking the payment of an insurance premium by the policyholder, domiciled in a different Member State — Appearance of the defendant entered before the court seised — Jurisdiction not contested and defence as to substance — Entering an appearance conferring jurisdiction) | 11 |
| 2010/C 179/18 | Case C-138/09: Judgment of the Court (Fourth Chamber) of 20 May 2010 (reference for a preliminary ruling from the Tribunale ordinario di Palermo (Italy)) — Todaro Nunziatina & C. Snc v Assessorato del Lavoro, della Previdenza Sociale, della Formazione Professionale e dell’Emigrazione della regione Sicilia (Reference for a preliminary ruling — State aid — Commission decisions — Interpretation — Aid granted by the Region of Sicily to undertakings entering into training and work-experience contracts or converting such contracts into open-ended contracts — Time-limit for the grant of aid — Budgetary limits — Default interest — Inadmissibility) | 12 |
| 2010/C 179/19 | Case C-158/09: Judgment of the Court (Fifth Chamber) of 20 May 2010 — European Commission v Kingdom of Spain (Failure of a Member State to fulfil obligations — Directive 2003/88/EC — Organisation of working time — Non-civilian personnel in public authorities — Failure to transpose within the prescribed period) | 12 |
| 2010/C 179/20 | Case C-160/09: Judgment of the Court (Third Chamber) of 20 May 2010 (reference for a preliminary ruling from the Simvoulio tis Epikratias (Greece)) — Ioannis Katsivardas — Nikolaos Tsitsikas OE v Ipourgos Ikonomikon (Regulation (EEC) No 1591/84 — Cooperation Agreement between the European Economic Community, of the one part, and the Cartagena Agreement and the member countries thereof, Bolivia, Colombia, Ecuador, Peru and Venezuela, of the other part — Most-favoured-nation clause — Direct effect — Excise duty on the import of bananas into Greece) | 13 |
| 2010/C 179/21 | Case C-210/09: Judgment of the Court (Third Chamber) of 20 May 2010 (reference for a preliminary ruling from the Cour administrative d’appel de Nantes (France)) — Scott SA, Kimberly Clark SNC, now Kimberly Clark SAS v Ville d’Orléans (State aid — Regulation (EC) No 659/1999 — Article 14(3) — Recovery of aid — Principle of effectiveness — Assessments vitiated by a procedural defect — Annulment) | 13 |
| 2010/C 179/22 | Case C-311/09: Judgment of the Court (Third Chamber) of 6 May 2010 — Commission of the European Communities v Republic of Poland (Failure of a Member State to fulfil obligations — Taxation — VAT — International carriage of persons — Flat-rate taxation of transporters domiciled outside the national territory) | 14 |
| 2010/C 179/23 | Case C-136/09: Order of the Court (Seventh Chamber) of 18 March 2010 (reference for a preliminary ruling from the Arios Pagos — Greece) — Organismos Sillogikis Diakhirisis Dimiourgon Theatrikon kai Optikoakoustikon Ergon v Divani Acropolis Hotel and Tourism AE (Article 104(3) of the Rules of Procedure — Copyright and related rights in the information society — Directive 2001/29/EC — Article 3 — Concept of communication to the public — Works communicated by means of television sets installed in hotel rooms) | 14 |
| 2010/C 179/24 | Case C-153/10: Reference for a preliminary ruling from the Hoge Raad der Nederlanden lodged on 1 April 2010 — Sony Logistics Europe B.V. v Staatssecretaris van Financiën | 15 |
| 2010/C 179/25 | Case C-154/10 P: Appeal brought on 1 April 2010 by Nokia Oyj against the judgment of the General Court (Eighth Chamber) delivered on 20 January 2010 in Case T-460/07 Nokia Oyj v Office for Harmonisation in the Internal Market (Trade Marks and Designs) | 15 |
| 2010/C 179/26 | Case C-157/10: Reference for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 2 April 2010 — Banco Bilbao Vizcaya Argentaria S.A. v Administración General del Estado | 16 |
| 2010/C 179/27 | Case C-177/10: Reference for a preliminary ruling from the Juzgado de lo Contencioso-Administrativo No 12 de Sevilla (Spain) lodged on 7 April 2010 — Francisco Javier Rosado Santana v Consejería de la Justicia y Administración Pública de la Junta de Andalucía | 16 |
| 2010/C 179/28 | Case C-180/10: Reference for a preliminary ruling from the Naczelny Sąd Administracyjny (Poland) lodged on 9 April 2010 — Jarosław Słaby v Minister Finansów | 17 |
| 2010/C 179/29 | Case C-181/10: Reference for a preliminary ruling from the Naczelny Sąd Administracyjny (Poland) lodged on 9 April 2010 — Emilian Kuć and Halina Jeziorska-Kuć v Dyrektor Izby Skarbowej w Warszawie | 17 |
| 2010/C 179/30 | Case C-182/10: Reference for a preliminary ruling from the Cour Constitutionnelle (Belgium) lodged on 9 April 2010 — Marie-Noëlle Solvay, Le Poumon vert de la Hulpe ASBL, Jacques Solvay de la Hulpe, Jean-Marie Solvay de la Hulpe, La Hulpe — Notre village ASBL, Alix Walsh, André Philips, Les amis de la Forêt de Soignes ASBL, Association des Riverains et Habitants des Communes Proches de l’Aéroport B.S.C.A. (Brussels South Charleroi Airport) ASBL, Grégoire Stassin, André Gilliard, Société Wallone des Aéroports SA (SOWAER), Paul Fastrez, Henriette Fastrez, Infrabel SA, Jean-Pierre Olivier, Pierre Deneye, Paul Thiry, Antoine Boxus, Willy Roua, Gouvernement flamand, Inter-Environnement Wallonie ASBL, Sartau SA, Charleroi South Air Pur ASBL, Pierre Grymonprez, Philippe Grisard de la Rochette, Nicole Laloux, Annabelle Denoël-Gevers, Marc Traversin, Joseph Melard, Chantal Michiels, Thierry Regout, René Canfin, Georges Lahaye, Jeanine Postelmans, Christophe Dehousse, Christine Lahaye, Jean-Marc Lesoinne, Jacques Teheux, Anne-Marie Larock, Berbadette Mestdag, Jean-François Serrafin, Françoise Mahoux, Ferdinand Wallraf, Jeanne Mariel, Agnès Fortemps, Georges Serrafin, Jeannine Melen, Groupement Cerexhe-Heuseux/Beaufays ASBL, Action et Défense de l’Environnement de la vallée de la Senne et de ses affluents ASBL, Réserves naturelles RNOB ASBL, Stéphane Banneux, Zénon Darquenne, Guido Durlet, Société régionale wallonne du transport SRWT, Philippe Daras, Bernard Croiselet, Bernard Page, Intercommunale du Brabant Wallon SCRL, Codic Belgique SA, Fédéral Express European Services Inc. v Walloon Region | 18 |
| 2010/C 179/31 | Case C-184/10: Reference for a preliminary ruling from the Bayerischer Verwaltungsgerichtshof (Germany) lodged on 14 April 2010 — Mathilde Grasser v Freistaat Bayern | 19 |
| 2010/C 179/32 | Case C-186/10: Reference for a preliminary ruling from Court of Appeal (England & Wales) (Civil Division) made on 15 April 2010 — Tural Oguz v Secretary of State for the Home Department | 20 |
| 2010/C 179/33 | Case C-195/10: Action brought on 21 April 2010 — European Commission v Republic of Estonia | 20 |
| 2010/C 179/34 | Case C-198/10: Reference for a preliminary ruling from the Corte d’appello di Milano (Italy) lodged on 23 April 2010 — Cassina SpA v Alivar Srl and Galliani Host Arredamenti Srl | 20 |
| 2010/C 179/35 | Case C-200/10 P: Appeal brought on 26 April 2010 by Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE against the judgment of the General Court (Fourth Chamber) delivered on 9 February 2010 in Case T-340/07: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE v European Commission | 21 |
| 2010/C 179/36 | Case C-204/10 P: Appeal brought on 28 April 2010 by Enercon GmbH against the judgment of the General Court (Sixth Chamber) delivered on 3 February 2010 in Case T-472/07: Enercon GmbH v Office for Harmonisation in the Internal Market (Trade Marks & Designs) | 21 |
| 2010/C 179/37 | Case C-206/10: Action brought on 30 April 2010 — European Commission v Federal Republic of Germany | 22 |
| 2010/C 179/38 | Case C-207/10: Reference for a preliminary ruling from the Højesteret (Denmark) lodged on 30 April 2010 — Paranova Danmark A/S, Paranova Pack A/S v Merck Sharp & Dohme Corp., Merck Sharp & Dohme B.V. and Merck Sharp & Dohme | 23 |
| 2010/C 179/39 | Case C-208/10: Action brought on 30 April 2010 — European Commission v Portuguese Republic | 24 |
| 2010/C 179/40 | Case C-209/10: Reference for a preliminary ruling from the Højesteret (Denmark) lodged on 3 May 2010 — Post Danmark A/S v Konkurrencerådet | 25 |
| 2010/C 179/41 | Case C-211/10: Reference for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 3 May 2010 — Doris Povse v Mauro Alpago | 25 |
| 2010/C 179/42 | Case C-216/10 P: Appeal brought on 6 May 2010 by Lufthansa AirPlus Servicekarten GmbH against the judgment of the General Court (Sixth Chamber) delivered on 3 March 2010 in Case T-321/07: Lufthansa AirPlus Servicekarten GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) | 26 |
| 2010/C 179/43 | Case C-231/10: Action brought on 10 May 2010 — European Commission v Republic of Estonia | 27 |
| 2010/C 179/44 | Case C-315/09: Order of the President of the Court of 25 March 2010 — European Commission v Kingdom of Belgium | 27 |
| 2010/C 179/45 | Case C-105/10 PPU: Order of the President of the Third Chamber of the Court of 3 April 2010 (reference for a preliminary ruling from the Korkein oikeus (Finland)) — Virallinen syyttäjä v Malik Gataev, Khadizhat Gataeva | 27 |
| | General Court |
| 2010/C 179/46 | Case T-425/04, T-444/04, T-450/04 and T-456/04: Judgment of the General Court of 21 May 2010 — France v Commission (State aid — Financial measures in favour of France Télécom — Draft shareholder’s advance — Public declarations by a member of the French Government — Decision declaring the aid incompatible with the common market and not ordering its recovery — Action for annulment — Interest in bringing proceedings — Admissibility — Meaning of State Aid — Advantage — State resources — Duty to state reasons) | 28 |
| 2010/C 179/47 | Case T-11/05: Judgment of the General Court of 19 May 2010 — Wieland-Werke and Others v Commission (Competition — Agreements, decisions and concerted practices — Copper plumbing tube industry — Decision finding an infringement of Article 81 EC — Continuous and multiform infringement — Ne bis in idem principle — Fines — Actual impact on the market — Size of the relevant market — Duration of the infringement — Attenuating circumstances) | 29 |
| 2010/C 179/48 | Case T-18/05: Judgment of the General Court of 19 May 2010 — IMI and Others v Commission (Competition — Agreements, decisions and concerted practices — Copper plumbing tubes sector — Decision finding an infringement of Article 81 EC — Continuous and multiform infringement — Interruption of participation — Fines — Limited participation in the cartel) | 29 |
| 2010/C 179/49 | Case T-19/05: Judgment of the General Court of 19 May 2010 — Boliden and Others v Commission (Competition — Agreements, decisions and concerted practices — Copper plumbing tube industry — Decision finding an infringement of Article 81 EC — Continuous and multiform infringement — Fines — Limitation period — Cooperation) | 30 |
| 2010/C 179/50 | Case T-20/05: Judgment of the General Court of 19 May 2010 — Outokumpu and Luvata v Commission (Competition — Agreements, decisions and concerted practices — Copper plumbing tube industry — Decision finding an infringement of Article 81 EC — Fines — Size of the relevant market — Aggravating circumstance — Repeat infringement) | 30 |
| 2010/C 179/51 | Case T-21/05: Judgment of the General Court of 19 May 2010 — Chalkor v Commission (Competition — Agreements, decisions and concerted practices — Copper plumbing tube industry — Decision finding an infringement of Article 81 EC — Continuous and multiform infringement — Fines — Limited participation in the cartel — Geographic extent of the relevant market — Duration of the infringement — Cooperation) | 31 |
| 2010/C 179/52 | Case T-25/05: Judgment of the General Court of 19 May 2010 — KME Germany and Others v Commission (Competition — Agreements, decisions and concerted practices — Copper plumbing tube industry — Decision finding an infringement of Article 81 EC — Fines — Actual impact on the market — Size of the relevant market — Duration of the infringement — Ability to pay — Cooperation) | 31 |
| 2010/C 179/53 | Case T-432/05: Judgment of the General Court of 12 May 2010 — EMC Development v Commission (Competition — Agreements, decisions and concerted practices — European cement market — Decision rejecting a complaint — Harmonised standard for cement — Binding nature — Guidelines on the applicability of Article 81 EC to horizontal cooperation agreements) | 32 |
| 2010/C 179/54 | Case T-258/06: Judgment of the General Court of 20 May 2010 — Germany v Commission (Provisions applicable to public procurement — Contract awards not subject, or not subject in full, to the Public Procurement Directives — Interpretative communication of the Commission — Actionable measure — Measure intended to produce legal effects) | 32 |
| 2010/C 179/55 | Case T-121/08: Judgment of the General Court of 11 May 2010 — PC-Ware Information Technologies v Commission (Public supply contracts — Community tendering procedure — Acquisition of software products and licences — Rejection of a tender — Abnormally low tender — Obligation to state reasons) | 33 |
| 2010/C 179/56 | Case T-148/08: Judgment of the General Court of 12 May 2010 — Beifa Group v OHIM — Schwan-Stabilo Schwanhaüßer (Instrument for writing) (Community design — Invalidity proceedings — Registered Community design representing an instrument for writing — Earlier national figurative mark — Ground for invalidity — Use in the Community design of an earlier sign the holder of which has the right to prohibit such use — Article 25(1)(e) of Regulation (EC) No 6/2002 — Request for proof of genuine use of the earlier mark made for the first time before the Board of Appeal) | 33 |
| 2010/C 179/57 | Case T-163/08: Order of the General Court of 19 May 2010 — Arbeitsgemeinschaft Golden Toast v OHIM (Golden Toast) (Community trade mark — Application for the Community word mark Golden Toast — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 40/94 (now Article 7(1)(c) of Regulation No 207/2009)) | 34 |
| 2010/C 179/58 | Case T-181/08: Judgment of the General Court of 19 May 2010 — Tay Za v Council (Common foreign and security policy — Restrictive measures against Myanmar — Freezing of funds — Action for annulment — Joint legal basis of Articles 60 EC and 301 EC — Obligation to state the reasons on which a decision is based — Rights of the defence — Right to effective judicial review — Right to respect for property — Proportionality) | 34 |
| 2010/C 179/59 | Case T-237/08: Judgment of the General Court of 11 May 2010 — Abadía Retuerta v OHIM (CUVÉE PALOMAR) (Community trade mark — Application for the Community word mark CUVÉE PALOMAR — Absolute ground for refusal — Trade marks for wines containing geographical indications — TRIPS Agreement — Article 7(1)(j) of Regulation (EC) No 40/94 (now Article 7(1)(j) of Regulation (EC) No 207/2009)) | 35 |
| 2010/C 179/60 | Case T-243/08: Judgment of the General Court of 19 May 2010 — Ravensburger v OHIM — Educa Borras (EDUCA Memory game) (Community trade mark — Invalidity proceedings — Community figurative mark EDUCA Memory game — Earlier national and international word marks MEMORY — Relative ground for refusal — Lack of similarity between the signs — Articles 8(1)(b) and (5), 74 and 75 of Regulation (EC) No 40/94 (now Articles 8(1)(b) and (5), 76 and 77 of Regulation (EC) No 207/2009)) | 35 |
| 2010/C 179/61 | Case T-424/08: Judgment of the General Court of 19 May 2010 — Nexus Europe (Ireland) v Commission (Arbitration clause — Fifth framework programme for research, technological development and demonstration activities — Macro-Economic and Urban Trends in Europe’s Information Society (MUTEIS) Project — Loss caused by amending a contract in relation to the system for reimbursing costs incurred by a participant in the project) | 36 |
| 2010/C 179/62 | Case T-464/08: Judgment of the General Court of 19 May 2010 — Zeta Europe v OHIM (Superleggera) (Community trade mark — Application for the figurative Community trade mark Superleggera — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 40/94 (now Article 7(1)(b) of Regulation (EC) No 207/2009) — Examination of the facts of its own motion — Article 74 of Regulation No 40/94 (now Article 76 of Regulation No 207/2009) — Obligation to state reasons — Article 73 of Regulation No 40/94 (now Article 75 of Regulation No 207/2009)) | 36 |
| 2010/C 179/63 | Case T-491/08 P: Judgment of the General Court of 12 May 2010 — Bui Van v Commission (Appeal — Staff case — Officials — Appointment — Classification in grade — Withdrawal of an administrative measure — Protection of legitimate expectations — Reasonable time — Right to be heard) | 37 |
| 2010/C 179/64 | Case T-492/08: Judgment of the General Court of 11 May 2010 — Wessang v OHIM — Greinwald (star foods) (Community trade mark — Opposition proceedings — Application for the figurative Community trade mark star foods — Earlier Community figurative and word marks STAR SNACKS — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation No 40/94 (now Article 8(1)(b) of Regulation No 207/2009)) | 37 |
| 2010/C 179/65 | Case T-560/08 P: Judgment of the General Court of 12 May 2010 — European Commission v Meierhofer (Appeals — Civil service — Recruitment — Open competition — Decision that a candidate had failed the oral test — Commission’s refusal to comply with a measure of organisation of procedure) | 38 |
| 2010/C 179/66 | Case T-108/09: Judgment of the General Court of 19 May 2010 — Ravensburger v OHIM — Educa Borras (MEMORY) (Community trade mark — Invalidity proceedings — Community word mark MEMORY — Absolute ground for refusal — Descriptive character — Article 7(1)(c) and Article 75 of Regulation (EC) No 40/94 (now Article 7(1)(c) and Article 77 of Regulation (EC) No 207/2009)) | 38 |
| 2010/C 179/67 | Case T-100/08 P: Order of the General Court of 6 May 2010 — Kerelov v Commission (Appeal — Civil Service — Recruitment — General competition — Refusal by the Director of EPSO to communicate to a candidate information and documents relating to the admission test — Appeal in part manifestly inadmissible and in part manifestly unfounded) | 39 |
| 2010/C 179/68 | Case T-410/09 R: Order of the President of the General Court of 7 May 2010 — Almamet v Commission (Interim measures — Competition — Commission decision imposing a fine — Bank guarantee — Application for suspension of operation of a measure — Financial loss — No exceptional circumstances — No urgency) | 39 |
| 2010/C 179/69 | Case T-30/10 R: Order of the President of the General Court of 12 May 2010 — Reagens v Commission (Application for interim measures — Competition — Commission decision imposing a fine — Bank guarantee — Application for suspension of operation of the decision — Financial loss — Absence of exceptional circumstances — No urgency) | 39 |
| 2010/C 179/70 | Case T-71/10 R: Order of the President of the General Court of 30 April 2010 — Xeda International v European Commission (Application for interim measures — Directive 91/414/EEC — Decision concerning the non-inclusion of diphenylamine in Annex I to Directive 91/414 — Application for suspension of operation of a measure — Lack of urgency) | 40 |
| 2010/C 179/71 | Case T-103/10 P(R)-R: Order of the President of the General Court of 28 April 2010 — Parliament v U (Interim measures — Civil Service — Officials — Decision to dismiss — Order of the President of the Civil Service Tribunal of the European Union made in proceedings for interim measures — Application to suspend the operation of a measure — No need to adjudicate) | 40 |
| 2010/C 179/72 | Case T-173/10: Action brought on 19 April 2010 — Apotheke DocMorris v OHIM (Representation of a green cross) | 41 |
| 2010/C 179/73 | Case T-174/10: Action brought on 12 April 2010 — ARA v OHIM — Allrounder (Representation of the letter A with two horns) | 41 |
| 2010/C 179/74 | Case T-181/10: Action brought on 23 April 2010 — Reagens v Commission | 42 |
| 2010/C 179/75 | Case T-183/10: Action brought on 22 April 2010 — Sviluppo Globale v Commission | 42 |
| 2010/C 179/76 | Case T-187/10: Action brought on 23 April 2010 — Emram v OHIM — Guccio Gucci (G) | 43 |
| 2010/C 179/77 | Case T-189/10: Action brought on 20 April 2010 — GEA Group v Commission | 44 |
| 2010/C 179/78 | Case T-191/10: Action brought on 20 April 2010 — Greenwood Houseware (Zhuhai) and others v Council | 44 |
| 2010/C 179/79 | Case T-192/10: Action brought on 26 April 2010 — Ferracci v Commission | 45 |
| 2010/C 179/80 | Case T-193/10: Action brought on 26 April 2010 — Scuola Elementare Maria Montessori v Commission | 46 |
| 2010/C 179/81 | Case T-196/10: Action brought on 29 April 2010 — Apotheke DocMorris v OHIM (Representation of a green and white cross) | 46 |
| 2010/C 179/82 | Case T-197/10: Action brought on 27 April 2010 — BVR v OHIM — Austria Leasing (Austria Leasing Gesellschaft m.b.H. Mitglied der Raiffeisen-Bankengruppen Österreich) | 47 |
| 2010/C 179/83 | Case T-198/10: Action brought on 30 April 2010 — Maximuscle Limited v OHIM — Foreign Supplement Trade Mark Ltd (GAKIC) | 47 |
| 2010/C 179/84 | Case T-199/10: Action brought on 27 April 2010 — DRV v OHIM — Austria Leasing (Austria Leasing Gesellschaft m.b.H. Mitglied der Raiffeisen-Bankengruppe Österreich) | 48 |
| 2010/C 179/85 | Case T-201/10: Action brought on 30 April 2010 — IVBN v Commission | 49 |
| 2010/C 179/86 | Case T-202/10: Action brought on 29 April 2010 — Stichting Woonlinie and Others v Commission | 50 |
| 2010/C 179/87 | Case T-203/10: Action brought on 30 April 2010 — Stichting Woonpunt and Others v Commission | 51 |
| 2010/C 179/88 | Case T-204/10: Action brought on 3 May 2010 — Lancôme parfums et beauté & Cie v OHMI — Focus Magazin Verlag GmbH (COLOR FOCUS) | 51 |
| 2010/C 179/89 | Case T-205/10: Action brought on 4 May 2010 — Cervecería Modelo v OHIM — Plataforma Continental (LA VICTORIA DE MEXICO) | 52 |
| 2010/C 179/90 | Case T-206/10: Action brought on 30 April 2010 — Vesteda Groep v Commission | 53 |
| 2010/C 179/91 | Case T-208/10: Action brought on 6 May 2010 — Cree v OHIM (TRUEWHITE) | 53 |
| 2010/C 179/92 | Case T-209/10: Action brought on 5 May 2010 — Deutscher Ring v OHIM (Deutscher Ring Sachversicherungs-AG) | 54 |
| 2010/C 179/93 | Case T-219/10: Action brought on 14 May 2010 — Autogrill España v Commission | 54 |
| 2010/C 179/94 | Case T-221/10: Action brought on 18 May 2010 — Iberdrola v Commission | 55 |
| 2010/C 179/95 | Case T-223/10: Action brought on 20 May 2010 — Regione Puglia v Commission | 56 |
| 2010/C 179/96 | Case T-225/10: Action brought on 18 May 2010 — Banco Bilbao Vizcaya Argentaria v Commission | 56 |
| 2010/C 179/97 | Case T-43/08: Order of the General Court of 11 May 2010 — Shetland Islands Council v Commission | 57 |
| 2010/C 179/98 | Case T-44/08: Order of the General Court of 11 May 2010 — Shetland Islands Council v Commission | 57 |
| 2010/C 179/99 | Case T-197/08: Order of the General Court of 11 May 2010 — Polson and Others v Commission | 57 |
| | European Union Civil Service Tribunal |
| 2010/C 179/100 | Case F-26/10: Action brought on 6 May 2010 — Costa v Commission | 58 |
| 2010/C 179/101 | Case F-27/10: Action brought on 5 May 2010 — Begue and Others v Commission | 58 |
| 2010/C 179/102 | Case F-28/10: Action brought on 7 May 2010 — VE (*1) v Commission | 58 |
| 2010/C 179/103 | Case F-29/10: Action brought on 11 May 2010 — Lorenzo v EESC | 59 |
| 2010/C 179/104 | Case F-30/10: Action brought on 12 May 2010 — de Fays v Commission | 59 |
| 2010/C 179/105 | Case F-31/10: Action brought on 14 May 2010 — Guittet v Commission | 59 |
| 2010/C 179/106 | Case F-32/10: Action brought on 14 May 2010 — Wilk v Commission | 60 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2010/C 179/02

Joined Cases C-145/08 and C-149/08: Judgment of the Court (Fourth Chamber) of 6 May 2010 (reference for a preliminary ruling from the Simvoulio tis Epikratias (Greece)) — Club Hotel Loutraki AE, Athinaïki Techniki AE, Evangelos Marinakis v Ethniko Simvoulio Radiotileorasis, Ipourgos Epikratias (C-145/08) and Aktor Anonimi Tekhniki Etairia (Aktor ATE) v Ethniko Simvoulio Radiotileorasis (C-149/08) (Directive 92/50/EEC — Public service contracts — Service concessions — Mixed contract — Contract including the transfer of a block of shares in a public casino business — Contract under which the contracting authority entrusts to the contracting undertaking the management of a casino business and the execution of a development plan consisting in upgrading the casino premises and improving the surrounding area — Directive 89/665/EEC — Decision of the contracting authority — Effective and rapid remedies — National procedural law — Criteria for the award of damages — Prior annulment of the unlawful act or omission or a finding of its nullity by the competent court — Members of a consortium in a public procurement procedure — Decision adopted in the context of that procedure by an authority other than the contracting authority — Action brought, individually, by some members of the consortium — Admissibility)

2

2010/C 179/03

Case C-304/08: Judgment of the Court (First Chamber) of 14 January 2010 (reference for a preliminary ruling from the Bundesgerichtshof — Germany) — Zentrale zur Bekämpfung unlauteren Wettbewerbs eV v Plus Warenhandelsgesellschaft mbH (Directive 2005/29/EC — Unfair commercial practices — National legislation laying down a prohibition in principle of commercial practices which make the participation of consumers in a lottery conditional on the purchase of goods or the use of services)

3

2010/C 179/04

Case C-308/08: Judgment of the Court (Fourth Chamber) of 20 May 2010 — European Commission v Kingdom of Spain (Failure of a Member State to fulfil obligations — Directive 92/43/EEC — Conservation of natural habitats — Wild fauna and flora — Protection arrangements before a habitat is placed on the list of sites of Community importance — Article 12(4) — Project for upgrading a country road)

3

2010/C 179/05

Case C-341/08: Judgment of the Court (Grand Chamber) of 12 January 2010 (reference for a preliminary ruling from the Sozialgericht Dortmund — Germany) — Domnica Petersen v Berufungsausschuss für Zahnärzte für den Bezirk Westfalen-Lippe (Directive 2000/78/EC — Articles 2(5) and 6(1) — Prohibition of discrimination on grounds of age — Provision of national law setting a maximum age of 68 for practice as a panel dentist — Aim pursued — Measure necessary for the protection of health — Consistency — Appropriateness of the measure)

4

2010/C 179/06

Case C-352/08: Judgment of the Court (First Chamber) of 20 May 2010 (reference for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Modehuis A. Zwijnenburg BV v Staatssecretaris van Financiën (Approximation of laws — Directive 90/434/EEC — Common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States — Article 11(1)(a) — Whether applicable to transaction tax)

5

2010/C 179/07

Case C-365/08: Judgment of the Court (Fourth Chamber) of 20 May 2010 (reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria)) — Agrana Zucker GmbH v Bundesminister für Land- und Forstwirtschaft, Umwelt und Wasserwirtschaft (Sugar — Regulation (EC) No 318/2006 — Article 16 — Calculation of the production charge — Inclusion of the quantity of quota sugar withdrawn from the market in the basis for assessment of the charge — Principles of proportionality and non-discrimination)

5

2010/C 179/08

Case C-370/08: Judgment of the Court (Second Chamber) of 20 May 2010 (reference for a preliminary ruling from the Bundesfinanzhof (Germany)) — Data I/O GmbH v Hauptzollamt Hannover, formerly Bundesfinanzdirektion Südost (Common Customs Tariff — Tariff classification — Combined Nomenclature — Chapter 84, Note 5(B) — Adapter containing a memory-chip and designed to provide the electrical connection between an automatic programming machine and electrical components to be programmed — Headings 8471, 8473 and 8536)

6

2010/C 179/09

Case C-434/08: Judgment of the Court (First Chamber) of 20 May 2010 (reference for a preliminary ruling from the Oberlandesgericht Oldenburg (Germany)) — Arnold und Johann Harms als Gesellschaft bürgerlichen Rechts v Freerk Heidinga (Common agricultural policy — Integrated administration and control system for certain aid schemes — Regulation (EC) No 1782/2003 — Single payment scheme — Transfer of payment entitlements — Definitive transfer)

6

2010/C 179/10

Case C-533/08: Judgment of the Court (Grand Chamber) of 4 May 2010 (reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands)) — TNT Express Nederland B.V. v AXA Versicherung AG (Judicial cooperation in civil and commercial matters — Jurisdiction and recognition and enforcement of judgments — Regulation (EC) No 44/2001 — Article 71 — Conventions concluded by the Member States in relation to particular matters — Convention on the Contract for the International Carriage of Goods by Road (CMR))

7

2010/C 179/11

Case C-545/08: Judgment of the Court (Third Chamber) of 6 May 2010 — European Commission v Republic of Poland (Failure of a Member State to fulfil obligations — Electronic communications — Directives 2002/21/EC and 2002/22/EC — High-speed internet access provider — Obligation to obtain authorisation for the access tariffs to high-speed internet services and to fix those tariffs on the basis of the costs of the provision of such services — No market analysis)

8

2010/C 179/12

Case C-583/08 P: Judgment of the Court (First Chamber) of 20 May 2010 — Christos Gogos v European Commission (Appeals — Officials — Internal competition for promotion from one category to another — Appointment — Classification in grade — Article 31(2) of the Staff Regulations — Unlimited jurisdiction — Dispute of a financial character — Length of proceedings before the General Court — Reasonable time — Claim for equitable compensation)

8

2010/C 179/13

Case C-17/09: Judgment of the Court (Forth Chamber) of 21 January 2010 — European Commission v Federal Republic of Germany (Public service contracts — Bio-waste and green waste disposal service — Award without an open public tender procedure)

9

2010/C 179/14

Case C-56/09: Judgment of the Court (Second Chamber) of 20 May 2010 (reference for a preliminary ruling from the Commissione tributaria provinciale di Roma — Italy) — Emiliano Zanotti v Agenzia delle Entrate — Ufficio Roma 2 (Freedom to provide services — Citizenship of the European Union — Articles 18 EC and 49 EC — National income tax legislation — Right to deduct total tuition fees from gross tax up to a fixed percentage — University course attended in another Member State — Imposition of a quantitative limit — Deduction up to a maximum amount laid down for registration and course fees paid for similar tuition provided by national State universities — Imposition of a territorial limit — Deduction up to a maximum amount laid down for registration and course fees paid for similar tuition provided by the national State university nearest to the taxpayer’s residence for fiscal purposes)

9

2010/C 179/15

Case C-63/09: Judgment of the Court (Third Chamber) of 6 May 2010 (reference for a preliminary ruling from the Juzgado de lo Mercantil no 4 de Barcelona — Spain) — Axel Walz v Clickair S.A. (Air transport — Montreal Convention — Liability of carriers in respect of checked baggage — Article 22(2) — Limits of liability in case of destruction, loss, damage or delay of baggage — Concept of damage — Material and non-material damage)

o

10

2010/C 179/16

Case C-94/09: Judgment of the Court (First Chamber) of 6 May 2010 — European Commission v French Republic (Failure of a Member State to fulfil obligations — VAT — Directive 2006/112/EC — Article 98(1) and (2) — Supply of services by undertakers — Application of a reduced rate to the service involving transportation of a body by vehicle)

11

2010/C 179/17

Case C-111/09: Judgment of the Court (Fourth Chamber) of 20 May 2010 (reference for a preliminary ruling from the Okresní soud v Chebu — Czech Republic) — Česká podnikatelská pojišťovna as, Vienna Insurance Group v Michal Bilas (Regulation (EC) No 44/2001 — Action brought by an insurer before the court of its place of domicile seeking the payment of an insurance premium by the policyholder, domiciled in a different Member State — Appearance of the defendant entered before the court seised — Jurisdiction not contested and defence as to substance — Entering an appearance conferring jurisdiction)

11

2010/C 179/18

Case C-138/09: Judgment of the Court (Fourth Chamber) of 20 May 2010 (reference for a preliminary ruling from the Tribunale ordinario di Palermo (Italy)) — Todaro Nunziatina & C. Snc v Assessorato del Lavoro, della Previdenza Sociale, della Formazione Professionale e dell’Emigrazione della regione Sicilia (Reference for a preliminary ruling — State aid — Commission decisions — Interpretation — Aid granted by the Region of Sicily to undertakings entering into training and work-experience contracts or converting such contracts into open-ended contracts — Time-limit for the grant of aid — Budgetary limits — Default interest — Inadmissibility)

12

2010/C 179/19

Case C-158/09: Judgment of the Court (Fifth Chamber) of 20 May 2010 — European Commission v Kingdom of Spain (Failure of a Member State to fulfil obligations — Directive 2003/88/EC — Organisation of working time — Non-civilian personnel in public authorities — Failure to transpose within the prescribed period)

12

2010/C 179/20

Case C-160/09: Judgment of the Court (Third Chamber) of 20 May 2010 (reference for a preliminary ruling from the Simvoulio tis Epikratias (Greece)) — Ioannis Katsivardas — Nikolaos Tsitsikas OE v Ipourgos Ikonomikon (Regulation (EEC) No 1591/84 — Cooperation Agreement between the European Economic Community, of the one part, and the Cartagena Agreement and the member countries thereof, Bolivia, Colombia, Ecuador, Peru and Venezuela, of the other part — Most-favoured-nation clause — Direct effect — Excise duty on the import of bananas into Greece)

13

2010/C 179/21

Case C-210/09: Judgment of the Court (Third Chamber) of 20 May 2010 (reference for a preliminary ruling from the Cour administrative d’appel de Nantes (France)) — Scott SA, Kimberly Clark SNC, now Kimberly Clark SAS v Ville d’Orléans (State aid — Regulation (EC) No 659/1999 — Article 14(3) — Recovery of aid — Principle of effectiveness — Assessments vitiated by a procedural defect — Annulment)

13

2010/C 179/22

Case C-311/09: Judgment of the Court (Third Chamber) of 6 May 2010 — Commission of the European Communities v Republic of Poland (Failure of a Member State to fulfil obligations — Taxation — VAT — International carriage of persons — Flat-rate taxation of transporters domiciled outside the national territory)

14

2010/C 179/23

Case C-136/09: Order of the Court (Seventh Chamber) of 18 March 2010 (reference for a preliminary ruling from the Arios Pagos — Greece) — Organismos Sillogikis Diakhirisis Dimiourgon Theatrikon kai Optikoakoustikon Ergon v Divani Acropolis Hotel and Tourism AE (Article 104(3) of the Rules of Procedure — Copyright and related rights in the information society — Directive 2001/29/EC — Article 3 — Concept of communication to the public — Works communicated by means of television sets installed in hotel rooms)

14

2010/C 179/24

Case C-153/10: Reference for a preliminary ruling from the Hoge Raad der Nederlanden lodged on 1 April 2010 — Sony Logistics Europe B.V. v Staatssecretaris van Financiën

15

2010/C 179/25

Case C-154/10 P: Appeal brought on 1 April 2010 by Nokia Oyj against the judgment of the General Court (Eighth Chamber) delivered on 20 January 2010 in Case T-460/07 Nokia Oyj v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

15

2010/C 179/26

Case C-157/10: Reference for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 2 April 2010 — Banco Bilbao Vizcaya Argentaria S.A. v Administración General del Estado

16

2010/C 179/27

Case C-177/10: Reference for a preliminary ruling from the Juzgado de lo Contencioso-Administrativo No 12 de Sevilla (Spain) lodged on 7 April 2010 — Francisco Javier Rosado Santana v Consejería de la Justicia y Administración Pública de la Junta de Andalucía

16

2010/C 179/28

Case C-180/10: Reference for a preliminary ruling from the Naczelny Sąd Administracyjny (Poland) lodged on 9 April 2010 — Jarosław Słaby v Minister Finansów

17

2010/C 179/29

Case C-181/10: Reference for a preliminary ruling from the Naczelny Sąd Administracyjny (Poland) lodged on 9 April 2010 — Emilian Kuć and Halina Jeziorska-Kuć v Dyrektor Izby Skarbowej w Warszawie

17

2010/C 179/30

Case C-182/10: Reference for a preliminary ruling from the Cour Constitutionnelle (Belgium) lodged on 9 April 2010 — Marie-Noëlle Solvay, Le Poumon vert de la Hulpe ASBL, Jacques Solvay de la Hulpe, Jean-Marie Solvay de la Hulpe, La Hulpe — Notre village ASBL, Alix Walsh, André Philips, Les amis de la Forêt de Soignes ASBL, Association des Riverains et Habitants des Communes Proches de l’Aéroport B.S.C.A. (Brussels South Charleroi Airport) ASBL, Grégoire Stassin, André Gilliard, Société Wallone des Aéroports SA (SOWAER), Paul Fastrez, Henriette Fastrez, Infrabel SA, Jean-Pierre Olivier, Pierre Deneye, Paul Thiry, Antoine Boxus, Willy Roua, Gouvernement flamand, Inter-Environnement Wallonie ASBL, Sartau SA, Charleroi South Air Pur ASBL, Pierre Grymonprez, Philippe Grisard de la Rochette, Nicole Laloux, Annabelle Denoël-Gevers, Marc Traversin, Joseph Melard, Chantal Michiels, Thierry Regout, René Canfin, Georges Lahaye, Jeanine Postelmans, Christophe Dehousse, Christine Lahaye, Jean-Marc Lesoinne, Jacques Teheux, Anne-Marie Larock, Berbadette Mestdag, Jean-François Serrafin, Françoise Mahoux, Ferdinand Wallraf, Jeanne Mariel, Agnès Fortemps, Georges Serrafin, Jeannine Melen, Groupement Cerexhe-Heuseux/Beaufays ASBL, Action et Défense de l’Environnement de la vallée de la Senne et de ses affluents ASBL, Réserves naturelles RNOB ASBL, Stéphane Banneux, Zénon Darquenne, Guido Durlet, Société régionale wallonne du transport SRWT, Philippe Daras, Bernard Croiselet, Bernard Page, Intercommunale du Brabant Wallon SCRL, Codic Belgique SA, Fédéral Express European Services Inc. v Walloon Region

18

2010/C 179/31

Case C-184/10: Reference for a preliminary ruling from the Bayerischer Verwaltungsgerichtshof (Germany) lodged on 14 April 2010 — Mathilde Grasser v Freistaat Bayern

19

2010/C 179/32

Case C-186/10: Reference for a preliminary ruling from Court of Appeal (England & Wales) (Civil Division) made on 15 April 2010 — Tural Oguz v Secretary of State for the Home Department

20

2010/C 179/33

Case C-195/10: Action brought on 21 April 2010 — European Commission v Republic of Estonia

20

2010/C 179/34

Case C-198/10: Reference for a preliminary ruling from the Corte d’appello di Milano (Italy) lodged on 23 April 2010 — Cassina SpA v Alivar Srl and Galliani Host Arredamenti Srl

20

2010/C 179/35

Case C-200/10 P: Appeal brought on 26 April 2010 by Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE against the judgment of the General Court (Fourth Chamber) delivered on 9 February 2010 in Case T-340/07: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE v European Commission

21

2010/C 179/36

Case C-204/10 P: Appeal brought on 28 April 2010 by Enercon GmbH against the judgment of the General Court (Sixth Chamber) delivered on 3 February 2010 in Case T-472/07: Enercon GmbH v Office for Harmonisation in the Internal Market (Trade Marks & Designs)

21

2010/C 179/37

Case C-206/10: Action brought on 30 April 2010 — European Commission v Federal Republic of Germany

22

2010/C 179/38

Case C-207/10: Reference for a preliminary ruling from the Højesteret (Denmark) lodged on 30 April 2010 — Paranova Danmark A/S, Paranova Pack A/S v Merck Sharp & Dohme Corp., Merck Sharp & Dohme B.V. and Merck Sharp & Dohme

23

2010/C 179/39

Case C-208/10: Action brought on 30 April 2010 — European Commission v Portuguese Republic

24

2010/C 179/40

Case C-209/10: Reference for a preliminary ruling from the Højesteret (Denmark) lodged on 3 May 2010 — Post Danmark A/S v Konkurrencerådet

25

2010/C 179/41

Case C-211/10: Reference for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 3 May 2010 — Doris Povse v Mauro Alpago

25

2010/C 179/42

Case C-216/10 P: Appeal brought on 6 May 2010 by Lufthansa AirPlus Servicekarten GmbH against the judgment of the General Court (Sixth Chamber) delivered on 3 March 2010 in Case T-321/07: Lufthansa AirPlus Servicekarten GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

26

2010/C 179/43

Case C-231/10: Action brought on 10 May 2010 — European Commission v Republic of Estonia

27

2010/C 179/44

Case C-315/09: Order of the President of the Court of 25 March 2010 — European Commission v Kingdom of Belgium

27

2010/C 179/45

Case C-105/10 PPU: Order of the President of the Third Chamber of the Court of 3 April 2010 (reference for a preliminary ruling from the Korkein oikeus (Finland)) — Virallinen syyttäjä v Malik Gataev, Khadizhat Gataeva

27

General Court

2010/C 179/46

Case T-425/04, T-444/04, T-450/04 and T-456/04: Judgment of the General Court of 21 May 2010 — France v Commission (State aid — Financial measures in favour of France Télécom — Draft shareholder’s advance — Public declarations by a member of the French Government — Decision declaring the aid incompatible with the common market and not ordering its recovery — Action for annulment — Interest in bringing proceedings — Admissibility — Meaning of State Aid — Advantage — State resources — Duty to state reasons)

28

2010/C 179/47

Case T-11/05: Judgment of the General Court of 19 May 2010 — Wieland-Werke and Others v Commission (Competition — Agreements, decisions and concerted practices — Copper plumbing tube industry — Decision finding an infringement of Article 81 EC — Continuous and multiform infringement — Ne bis in idem principle — Fines — Actual impact on the market — Size of the relevant market — Duration of the infringement — Attenuating circumstances)

29

2010/C 179/48

Case T-18/05: Judgment of the General Court of 19 May 2010 — IMI and Others v Commission (Competition — Agreements, decisions and concerted practices — Copper plumbing tubes sector — Decision finding an infringement of Article 81 EC — Continuous and multiform infringement — Interruption of participation — Fines — Limited participation in the cartel)

29

2010/C 179/49

Case T-19/05: Judgment of the General Court of 19 May 2010 — Boliden and Others v Commission (Competition — Agreements, decisions and concerted practices — Copper plumbing tube industry — Decision finding an infringement of Article 81 EC — Continuous and multiform infringement — Fines — Limitation period — Cooperation)

30

2010/C 179/50

Case T-20/05: Judgment of the General Court of 19 May 2010 — Outokumpu and Luvata v Commission (Competition — Agreements, decisions and concerted practices — Copper plumbing tube industry — Decision finding an infringement of Article 81 EC — Fines — Size of the relevant market — Aggravating circumstance — Repeat infringement)

30

2010/C 179/51

Case T-21/05: Judgment of the General Court of 19 May 2010 — Chalkor v Commission (Competition — Agreements, decisions and concerted practices — Copper plumbing tube industry — Decision finding an infringement of Article 81 EC — Continuous and multiform infringement — Fines — Limited participation in the cartel — Geographic extent of the relevant market — Duration of the infringement — Cooperation)

31

2010/C 179/52

Case T-25/05: Judgment of the General Court of 19 May 2010 — KME Germany and Others v Commission (Competition — Agreements, decisions and concerted practices — Copper plumbing tube industry — Decision finding an infringement of Article 81 EC — Fines — Actual impact on the market — Size of the relevant market — Duration of the infringement — Ability to pay — Cooperation)

31

2010/C 179/53

Case T-432/05: Judgment of the General Court of 12 May 2010 — EMC Development v Commission (Competition — Agreements, decisions and concerted practices — European cement market — Decision rejecting a complaint — Harmonised standard for cement — Binding nature — Guidelines on the applicability of Article 81 EC to horizontal cooperation agreements)

32

2010/C 179/54

Case T-258/06: Judgment of the General Court of 20 May 2010 — Germany v Commission (Provisions applicable to public procurement — Contract awards not subject, or not subject in full, to the Public Procurement Directives — Interpretative communication of the Commission — Actionable measure — Measure intended to produce legal effects)

32

2010/C 179/55

Case T-121/08: Judgment of the General Court of 11 May 2010 — PC-Ware Information Technologies v Commission (Public supply contracts — Community tendering procedure — Acquisition of software products and licences — Rejection of a tender — Abnormally low tender — Obligation to state reasons)

33

2010/C 179/56

Case T-148/08: Judgment of the General Court of 12 May 2010 — Beifa Group v OHIM — Schwan-Stabilo Schwanhaüßer (Instrument for writing) (Community design — Invalidity proceedings — Registered Community design representing an instrument for writing — Earlier national figurative mark — Ground for invalidity — Use in the Community design of an earlier sign the holder of which has the right to prohibit such use — Article 25(1)(e) of Regulation (EC) No 6/2002 — Request for proof of genuine use of the earlier mark made for the first time before the Board of Appeal)

33

2010/C 179/57

Case T-163/08: Order of the General Court of 19 May 2010 — Arbeitsgemeinschaft Golden Toast v OHIM (Golden Toast) (Community trade mark — Application for the Community word mark Golden Toast — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 40/94 (now Article 7(1)(c) of Regulation No 207/2009))

34

2010/C 179/58

Case T-181/08: Judgment of the General Court of 19 May 2010 — Tay Za v Council (Common foreign and security policy — Restrictive measures against Myanmar — Freezing of funds — Action for annulment — Joint legal basis of Articles 60 EC and 301 EC — Obligation to state the reasons on which a decision is based — Rights of the defence — Right to effective judicial review — Right to respect for property — Proportionality)

34

2010/C 179/59

Case T-237/08: Judgment of the General Court of 11 May 2010 — Abadía Retuerta v OHIM (CUVÉE PALOMAR) (Community trade mark — Application for the Community word mark CUVÉE PALOMAR — Absolute ground for refusal — Trade marks for wines containing geographical indications — TRIPS Agreement — Article 7(1)(j) of Regulation (EC) No 40/94 (now Article 7(1)(j) of Regulation (EC) No 207/2009))

35

2010/C 179/60

Case T-243/08: Judgment of the General Court of 19 May 2010 — Ravensburger v OHIM — Educa Borras (EDUCA Memory game) (Community trade mark — Invalidity proceedings — Community figurative mark EDUCA Memory game — Earlier national and international word marks MEMORY — Relative ground for refusal — Lack of similarity between the signs — Articles 8(1)(b) and (5), 74 and 75 of Regulation (EC) No 40/94 (now Articles 8(1)(b) and (5), 76 and 77 of Regulation (EC) No 207/2009))

35

2010/C 179/61

Case T-424/08: Judgment of the General Court of 19 May 2010 — Nexus Europe (Ireland) v Commission (Arbitration clause — Fifth framework programme for research, technological development and demonstration activities — Macro-Economic and Urban Trends in Europe’s Information Society (MUTEIS) Project — Loss caused by amending a contract in relation to the system for reimbursing costs incurred by a participant in the project)

36

2010/C 179/62

Case T-464/08: Judgment of the General Court of 19 May 2010 — Zeta Europe v OHIM (Superleggera) (Community trade mark — Application for the figurative Community trade mark Superleggera — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 40/94 (now Article 7(1)(b) of Regulation (EC) No 207/2009) — Examination of the facts of its own motion — Article 74 of Regulation No 40/94 (now Article 76 of Regulation No 207/2009) — Obligation to state reasons — Article 73 of Regulation No 40/94 (now Article 75 of Regulation No 207/2009))

36

2010/C 179/63

Case T-491/08 P: Judgment of the General Court of 12 May 2010 — Bui Van v Commission (Appeal — Staff case — Officials — Appointment — Classification in grade — Withdrawal of an administrative measure — Protection of legitimate expectations — Reasonable time — Right to be heard)

37

2010/C 179/64

Case T-492/08: Judgment of the General Court of 11 May 2010 — Wessang v OHIM — Greinwald (star foods) (Community trade mark — Opposition proceedings — Application for the figurative Community trade mark star foods — Earlier Community figurative and word marks STAR SNACKS — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation No 40/94 (now Article 8(1)(b) of Regulation No 207/2009))

37

2010/C 179/65

Case T-560/08 P: Judgment of the General Court of 12 May 2010 — European Commission v Meierhofer (Appeals — Civil service — Recruitment — Open competition — Decision that a candidate had failed the oral test — Commission’s refusal to comply with a measure of organisation of procedure)

38

2010/C 179/66

Case T-108/09: Judgment of the General Court of 19 May 2010 — Ravensburger v OHIM — Educa Borras (MEMORY) (Community trade mark — Invalidity proceedings — Community word mark MEMORY — Absolute ground for refusal — Descriptive character — Article 7(1)(c) and Article 75 of Regulation (EC) No 40/94 (now Article 7(1)(c) and Article 77 of Regulation (EC) No 207/2009))

38

2010/C 179/67

Case T-100/08 P: Order of the General Court of 6 May 2010 — Kerelov v Commission (Appeal — Civil Service — Recruitment — General competition — Refusal by the Director of EPSO to communicate to a candidate information and documents relating to the admission test — Appeal in part manifestly inadmissible and in part manifestly unfounded)

39

2010/C 179/68

Case T-410/09 R: Order of the President of the General Court of 7 May 2010 — Almamet v Commission (Interim measures — Competition — Commission decision imposing a fine — Bank guarantee — Application for suspension of operation of a measure — Financial loss — No exceptional circumstances — No urgency)

39

2010/C 179/69

Case T-30/10 R: Order of the President of the General Court of 12 May 2010 — Reagens v Commission (Application for interim measures — Competition — Commission decision imposing a fine — Bank guarantee — Application for suspension of operation of the decision — Financial loss — Absence of exceptional circumstances — No urgency)

39

2010/C 179/70

Case T-71/10 R: Order of the President of the General Court of 30 April 2010 — Xeda International v European Commission (Application for interim measures — Directive 91/414/EEC — Decision concerning the non-inclusion of diphenylamine in Annex I to Directive 91/414 — Application for suspension of operation of a measure — Lack of urgency)

40

2010/C 179/71

Case T-103/10 P(R)-R: Order of the President of the General Court of 28 April 2010 — Parliament v U (Interim measures — Civil Service — Officials — Decision to dismiss — Order of the President of the Civil Service Tribunal of the European Union made in proceedings for interim measures — Application to suspend the operation of a measure — No need to adjudicate)

40

2010/C 179/72

Case T-173/10: Action brought on 19 April 2010 — Apotheke DocMorris v OHIM (Representation of a green cross)

41

2010/C 179/73

Case T-174/10: Action brought on 12 April 2010 — ARA v OHIM — Allrounder (Representation of the letter A with two horns)

41

2010/C 179/74

Case T-181/10: Action brought on 23 April 2010 — Reagens v Commission

42

2010/C 179/75

Case T-183/10: Action brought on 22 April 2010 — Sviluppo Globale v Commission

42

2010/C 179/76

Case T-187/10: Action brought on 23 April 2010 — Emram v OHIM — Guccio Gucci (G)

43

2010/C 179/77

Case T-189/10: Action brought on 20 April 2010 — GEA Group v Commission

44

2010/C 179/78

Case T-191/10: Action brought on 20 April 2010 — Greenwood Houseware (Zhuhai) and others v Council

44

2010/C 179/79

Case T-192/10: Action brought on 26 April 2010 — Ferracci v Commission

45

2010/C 179/80

Case T-193/10: Action brought on 26 April 2010 — Scuola Elementare Maria Montessori v Commission

46

2010/C 179/81

Case T-196/10: Action brought on 29 April 2010 — Apotheke DocMorris v OHIM (Representation of a green and white cross)

46

2010/C 179/82

Case T-197/10: Action brought on 27 April 2010 — BVR v OHIM — Austria Leasing (Austria Leasing Gesellschaft m.b.H. Mitglied der Raiffeisen-Bankengruppen Österreich)

47

2010/C 179/83

Case T-198/10: Action brought on 30 April 2010 — Maximuscle Limited v OHIM — Foreign Supplement Trade Mark Ltd (GAKIC)

47

2010/C 179/84

Case T-199/10: Action brought on 27 April 2010 — DRV v OHIM — Austria Leasing (Austria Leasing Gesellschaft m.b.H. Mitglied der Raiffeisen-Bankengruppe Österreich)

48

2010/C 179/85

Case T-201/10: Action brought on 30 April 2010 — IVBN v Commission

49

2010/C 179/86

Case T-202/10: Action brought on 29 April 2010 — Stichting Woonlinie and Others v Commission

50

2010/C 179/87

Case T-203/10: Action brought on 30 April 2010 — Stichting Woonpunt and Others v Commission

51

2010/C 179/88

Case T-204/10: Action brought on 3 May 2010 — Lancôme parfums et beauté & Cie v OHMI — Focus Magazin Verlag GmbH (COLOR FOCUS)

51

2010/C 179/89

Case T-205/10: Action brought on 4 May 2010 — Cervecería Modelo v OHIM — Plataforma Continental (LA VICTORIA DE MEXICO)

52

2010/C 179/90

Case T-206/10: Action brought on 30 April 2010 — Vesteda Groep v Commission

53

2010/C 179/91

Case T-208/10: Action brought on 6 May 2010 — Cree v OHIM (TRUEWHITE)

53

2010/C 179/92

Case T-209/10: Action brought on 5 May 2010 — Deutscher Ring v OHIM (Deutscher Ring Sachversicherungs-AG)

54

2010/C 179/93

Case T-219/10: Action brought on 14 May 2010 — Autogrill España v Commission

54

2010/C 179/94

Case T-221/10: Action brought on 18 May 2010 — Iberdrola v Commission

55

2010/C 179/95

Case T-223/10: Action brought on 20 May 2010 — Regione Puglia v Commission

56

2010/C 179/96

Case T-225/10: Action brought on 18 May 2010 — Banco Bilbao Vizcaya Argentaria v Commission

56

2010/C 179/97

Case T-43/08: Order of the General Court of 11 May 2010 — Shetland Islands Council v Commission

57

2010/C 179/98

Case T-44/08: Order of the General Court of 11 May 2010 — Shetland Islands Council v Commission

57

2010/C 179/99

Case T-197/08: Order of the General Court of 11 May 2010 — Polson and Others v Commission

57

European Union Civil Service Tribunal

2010/C 179/100

Case F-26/10: Action brought on 6 May 2010 — Costa v Commission

58

2010/C 179/101

Case F-27/10: Action brought on 5 May 2010 — Begue and Others v Commission

58

2010/C 179/102

Case F-28/10: Action brought on 7 May 2010 — VE (*1) v Commission

*1

58

2010/C 179/103

Case F-29/10: Action brought on 11 May 2010 — Lorenzo v EESC

59

2010/C 179/104

Case F-30/10: Action brought on 12 May 2010 — de Fays v Commission

59

2010/C 179/105

Case F-31/10: Action brought on 14 May 2010 — Guittet v Commission

59

2010/C 179/106

Case F-32/10: Action brought on 14 May 2010 — Wilk v Commission

60

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

EN

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

| 3.7.2010 | EN | Official Journal of the European Union | C 179/1 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/1

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(2010/C 179/01)

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

OJ C 161, 19.6.2010

Past publications

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

OJ C 63, 13.3.2010

These texts are available on:

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

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V Announcements

COURT PROCEEDINGS

Court of Justice

| 3.7.2010 | EN | Official Journal of the European Union | C 179/2 |
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3.7.2010

EN

Official Journal of the European Union

C 179/2

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Judgment of the Court (Fourth Chamber) of 6 May 2010 (reference for a preliminary ruling from the Simvoulio tis Epikratias (Greece)) — Club Hotel Loutraki AE, Athinaïki Techniki AE, Evangelos Marinakis v Ethniko Simvoulio Radiotileorasis, Ipourgos Epikratias (C-145/08) and Aktor Anonimi Tekhniki Etairia (Aktor ATE) v Ethniko Simvoulio Radiotileorasis (C-149/08)

(Joined Cases C-145/08 and C-149/08) (1)

(Directive 92/50/EEC - Public service contracts - Service concessions - Mixed contract - Contract including the transfer of a block of shares in a public casino business - Contract under which the contracting authority entrusts to the contracting undertaking the management of a casino business and the execution of a development plan consisting in upgrading the casino premises and improving the surrounding area - Directive 89/665/EEC - Decision of the contracting authority - Effective and rapid remedies - National procedural law - Criteria for the award of damages - Prior annulment of the unlawful act or omission or a finding of its nullity by the competent court - Members of a consortium in a public procurement procedure - Decision adopted in the context of that procedure by an authority other than the contracting authority - Action brought, individually, by some members of the consortium - Admissibility)

(2010/C 179/02)

Language of the case: Greek

Referring court

Simvoulio tis Epikratias

Parties to the main proceedings

Applicants: Club Hotel Loutraki AE, Athinaïki Techniki AE, Evangelos Marinakis

Defendants: Ethniko Simvoulio Radiotileorasis, Ipourgos Epikratias

Interveners in support of the defendants: Athens Resort Casino AE Simmetokhon, Ellaktor AE, formerly Elliniki Tekhnodomiki TEV AE, Regency Entertainment Psikhagogiki kai Touristiki AE, formerly Hyatt Regency Xenodokhiaki kai Touristiki (Ellas) AE, Leonidas Bompolas (C-145/08)

and

Applicant: Aktor Anonimi Tekhniki Etairia (Aktor ATE)

Defendant: Ethniko Simvoulio Radiotileorasis

Intervening party: Mikhaniki AE (C-149/08)

Re:

Reference for a preliminary ruling — Simvoulio tis Epikratias — Interpretation of Articles 3(2), 9, 14 and 16 of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1) — Scope — Mixed agreement involving a contract for the sale of shares and a service concession — Interpretation of Articles 1(3) and 2 of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ 1989 L 395, p. 33) — National legislation prohibiting members of a consortium without legal personality that has submitted a tender from bringing individually legal actions against acts falling within the procedure for award of the contract

Operative part of the judgment

| 1. | A mixed contract of which the main object is the acquisition by an undertaking of 49 % of the capital of a public undertaking and the ancillary object, indivisibly linked with that main object, is the supply of services and the performance of works does not, as a whole, fall within the scope of the directives on public contracts. |
| --- | --- |

1.

A mixed contract of which the main object is the acquisition by an undertaking of 49 % of the capital of a public undertaking and the ancillary object, indivisibly linked with that main object, is the supply of services and the performance of works does not, as a whole, fall within the scope of the directives on public contracts.

| 2. | European Union law, in particular the right to effective judicial protection, precludes a national rule, such as that at issue in the main proceedings, interpreted as meaning that the members of a temporary association, tenderer in a public procurement procedure, are deprived of the possibility of seeking, individually, compensation for the loss which they suffered individually as a result of a decision adopted by an authority, other than the contracting authority, involved in that procedure in accordance with the applicable national rules, which is such as to influence the conduct of that procedure. |
| --- | --- |

2.

European Union law, in particular the right to effective judicial protection, precludes a national rule, such as that at issue in the main proceedings, interpreted as meaning that the members of a temporary association, tenderer in a public procurement procedure, are deprived of the possibility of seeking, individually, compensation for the loss which they suffered individually as a result of a decision adopted by an authority, other than the contracting authority, involved in that procedure in accordance with the applicable national rules, which is such as to influence the conduct of that procedure.

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(1)  OJ C 142, 7.6.2008.

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/3 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/3

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Judgment of the Court (First Chamber) of 14 January 2010 (reference for a preliminary ruling from the Bundesgerichtshof — Germany) — Zentrale zur Bekämpfung unlauteren Wettbewerbs eV v Plus Warenhandelsgesellschaft mbH

(Case C-304/08) (1)

(Directive 2005/29/EC - Unfair commercial practices - National legislation laying down a prohibition in principle of commercial practices which make the participation of consumers in a lottery conditional on the purchase of goods or the use of services)

(2010/C 179/03)

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: Zentrale zur Bekämpfung unlauteren Wettbewerbs eV

Defendant: Plus Warenhandelsgesellschaft mbH

Re:

Reference for a preliminary ruling — Bundesgerichtshof — Interpretation of Article 5(2) of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (OJ 2005 L 149, p. 22) — Commercial practice coupling the sale of goods with a lottery which permits the customer to participate in the draws of a national lottery when he has accumulated a certain number of bonus points obtained when purchasing goods — National legislation under which a commercial practice whereby the participation of consumers in a prize competition or lottery is conditional on the purchase of goods or the supply of services is in principle unlawful, irrespective of whether the advertising in question affects consumers’ interests

Operative part of the judgment

Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which provides for a prohibition in principle, without taking account of the specific circumstances of individual cases, of commercial practices under which the participation of consumers in a prize competition or lottery is made conditional on the purchase of goods or the use of services.

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(1)  OJ C 247, 27.9.2008.

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/3 |
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3.7.2010

EN

Official Journal of the European Union

C 179/3

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Judgment of the Court (Fourth Chamber) of 20 May 2010 — European Commission v Kingdom of Spain

(Case C-308/08) (1)

(Failure of a Member State to fulfil obligations - Directive 92/43/EEC - Conservation of natural habitats - Wild fauna and flora - Protection arrangements before a habitat is placed on the list of sites of Community importance - Article 12(4) - Project for upgrading a country road)

(2010/C 179/04)

Language of the case: Spanish

Parties

Applicant: European Commission (represented by: S. Pardo Quintillán and D. Recchia, Agents

Defendant: Kingdom of Spain (represented by: N. Díaz Abad, Agent)

Re:

Failure of a Member State to fulfil its obligations — Infringement of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), interpreted by the judgments of the Court of Justice on 13 January 2005 in Case C-117/03 and on 14 September 2006 in Case C-244/05, and the obligations stemming from Article 12(4) of that directive — Project for improvement of the rural path from Villamanrique de la Condesa (Seville) to El Rocio (Huelva)

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 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 223, 30.8.2008.

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/4 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/4

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Judgment of the Court (Grand Chamber) of 12 January 2010 (reference for a preliminary ruling from the Sozialgericht Dortmund — Germany) — Domnica Petersen v Berufungsausschuss für Zahnärzte für den Bezirk Westfalen-Lippe

(Case C-341/08) (1)

(Directive 2000/78/EC - Articles 2(5) and 6(1) - Prohibition of discrimination on grounds of age - Provision of national law setting a maximum age of 68 for practice as a panel dentist - Aim pursued - Measure necessary for the protection of health - Consistency - Appropriateness of the measure)

(2010/C 179/05)

Language of the case: German

Referring court

Sozialgericht Dortmund

Parties to the main proceedings

Applicant: Domnica Petersen

Defendant: Berufungsausschuss für Zahnärzte für den Bezirk Westfalen-Lippe

Joined parties: AOK Westfalen-Lippe, BKK-Landesverband Nordrhein-Westfalen, Vereinigte IKK, Deutsche Rentenversicherung Knappschaft-Bahn-See — Dezernat 0.63, Landwirtschaftliche Krankenkasse NRW, Verband der Angestellten-Krankenkassen eV, AEV — Arbeiter-Ersatzkassen-Verband eV, Kassenzahnärtzliche Vereinigung Westfalen-Lippe

Re:

Reference for a preliminary ruling — Sozialgericht Dortmund (Germany) — Interpretation of Article 6 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p.16) — Prohibition of discrimination based on age — Concepts of ‘legitimate aim’ which may justify different treatment based on age and ‘appropriate and necessary means’ of achieving that aim — National provision fixing a maximum age for a panel dentist, with the aim of protecting patients’ health

Operative part of the judgment

| 1. | Article 2(5) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as precluding a national measure, such as that at issue in the main proceedings, setting a maximum age for practising as a panel dentist, in this case 68 years, where the sole aim of that measure is to protect the health of patients against the decline in performance of those dentists after that age, since that age limit does not apply to non-panel dentists.;
  Article 6(1) of Directive 2000/78 must be interpreted as not precluding such a measure where its aim is to share out employment opportunities among the generations in the profession of panel dentist, if, taking into account the situation in the labour market concerned, the measure is appropriate and necessary for achieving that aim.
  It is for the national court to identify the aim pursued by the measure laying down that age limit, by ascertaining the reason for maintaining the measure. |
| --- | --- |

1.

Article 2(5) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as precluding a national measure, such as that at issue in the main proceedings, setting a maximum age for practising as a panel dentist, in this case 68 years, where the sole aim of that measure is to protect the health of patients against the decline in performance of those dentists after that age, since that age limit does not apply to non-panel dentists.;

Article 6(1) of Directive 2000/78 must be interpreted as not precluding such a measure where its aim is to share out employment opportunities among the generations in the profession of panel dentist, if, taking into account the situation in the labour market concerned, the measure is appropriate and necessary for achieving that aim.

It is for the national court to identify the aim pursued by the measure laying down that age limit, by ascertaining the reason for maintaining the measure.

| 2. | If legislation such as that at issue in the main proceedings, having regard to its objective, were contrary to Directive 2000/78, it would be for the national court hearing a dispute between an individual and an administrative body such as the Berufungsausschuss für Zahnärzte für den Bezirk Westfalen-Lippe to decline to apply that legislation, even if it were prior to that directive and national law made no provision for disapplying it. |
| --- | --- |

2.

If legislation such as that at issue in the main proceedings, having regard to its objective, were contrary to Directive 2000/78, it would be for the national court hearing a dispute between an individual and an administrative body such as the Berufungsausschuss für Zahnärzte für den Bezirk Westfalen-Lippe to decline to apply that legislation, even if it were prior to that directive and national law made no provision for disapplying it.

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(1)  OJ C 260, 11.10.2008.

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/5 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/5

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Judgment of the Court (First Chamber) of 20 May 2010 (reference for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Modehuis A. Zwijnenburg BV v Staatssecretaris van Financiën

(Case C-352/08) (1)

(Approximation of laws - Directive 90/434/EEC - Common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States - Article 11(1)(a) - Whether applicable to transaction tax)

(2010/C 179/06)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicant: Modehuis A. Zwijnenburg BV

Defendant: Staatssecretaris van Financiën

Re:

Reference for a preliminary ruling — Hoge Raad der Nederlanden Den Haag — Interpretation of Article 11(1)(a) of Council Directive 90/434/EEC of 23 July 1990 on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States (OJ 1990 L 225, p.1) — Concept of tax evasion or tax avoidance — Transaction aimed at escaping a national tax not referred to in the Directive’s list of taxes which may not be levied

Operative part of the judgment

Article 11(1)(a) of Council Directive 90/434/EEC of 23 July 1990 on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States is to be interpreted as meaning that the favourable arrangements which that directive introduces may not be withheld from a taxpayer who has sought, by way of a legal stratagem involving a company merger, to avoid the levying of a tax such as that at issue in the main proceedings, namely transaction tax, where that tax does not come within the scope of application of that directive.

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(1)  OJ C 285, 08.11.2008.

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/5 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/5

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Judgment of the Court (Fourth Chamber) of 20 May 2010 (reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria)) — Agrana Zucker GmbH v Bundesminister für Land- und Forstwirtschaft, Umwelt und Wasserwirtschaft

(Case C-365/08) (1)

(Sugar - Regulation (EC) No 318/2006 - Article 16 - Calculation of the production charge - Inclusion of the quantity of quota sugar withdrawn from the market in the basis for assessment of the charge - Principles of proportionality and non-discrimination)

(2010/C 179/07)

Language of the case: German

Referring court

Verwaltungsgerichtshof

Parties to the main proceedings

Applicant: Agrana Zucker GmbH

Defendant: Bundesminister für Land- und Forstwirtschaft, Umwelt und Wasserwirtschaft

Re:

Reference for a preliminary ruling — Verwaltungsgerichtshof (Austria) — Interpretation of Article 34 of the EC Treaty, especially the principles of non-discrimination, the protection of legitimate expectations and proportionality — Interpretation and validity of Article 16 of Council Regulation (EC) No 318/2006 of 20 February 2006 on the common organisation of the markets in the sugar sector (OJ 2006 L 58, p. 1) — Inclusion, for the purposes of calculating the production charge, of the quota subject to preventive withdrawal in accordance with Article 1 of Commission Regulation (EC) No 290/2007 of 16 March 2007 establishing, for the 2007/2008 marketing year, the percentage provided for in Article 19 of Regulation (EC) No 318/2006 (OJ 2007 L 78, p. 20)

Operative part of the judgment

| 1. | Article 16 of Council Regulation (EC) No 318/2006 of 20 February 2006 on the common organisation of the markets in the sugar sector must be interpreted as meaning that the quantity of quota sugar withdrawn from the market pursuant to Article 19 of that regulation and Article 1 of Commission Regulation (EC) No 290/2007 of 16 March 2007 establishing, for the 2007/2008 marketing year, the percentage provided for in Article 19 of Regulation (EC) No 318/2006 is included in the basis for assessment of the production charge. |
| --- | --- |

1.

Article 16 of Council Regulation (EC) No 318/2006 of 20 February 2006 on the common organisation of the markets in the sugar sector must be interpreted as meaning that the quantity of quota sugar withdrawn from the market pursuant to Article 19 of that regulation and Article 1 of Commission Regulation (EC) No 290/2007 of 16 March 2007 establishing, for the 2007/2008 marketing year, the percentage provided for in Article 19 of Regulation (EC) No 318/2006 is included in the basis for assessment of the production charge.

| 2. | Examination of the second question has not revealed anything which might affect the validity of Article 16 of Regulation No 318/2006. |
| --- | --- |

2.

Examination of the second question has not revealed anything which might affect the validity of Article 16 of Regulation No 318/2006.

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(1)  OJ C 285, 8.11.2008.

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/6 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/6

---

Judgment of the Court (Second Chamber) of 20 May 2010 (reference for a preliminary ruling from the Bundesfinanzhof (Germany)) — Data I/O GmbH v Hauptzollamt Hannover, formerly Bundesfinanzdirektion Südost

(Case C-370/08) (1)

(Common Customs Tariff - Tariff classification - Combined Nomenclature - Chapter 84, Note 5(B) - Adapter containing a memory-chip and designed to provide the electrical connection between an automatic programming machine and electrical components to be programmed - Headings 8471, 8473 and 8536)

(2010/C 179/08)

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: Data I/O GmbH

Defendant: Hauptzollamt Hannover, formerly Bundesfinanzdirektion Südost

Re:

Reference for a preliminary ruling — Bundesfinanzhof — Interpretation of Note 5(B) to Chapter 84 of the Combined Nomenclature of the Common Customs Tariff in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1), as amended by Commission Regulation (EC) No 1810/2004 of 7 September 2004 (OJ 2004 L 327, p. 1) — Electrical adapter ensuring the transmission of data from a programming machine to the electronic components to be programmed and containing a memory chip ensuring the storage of the programming process — Possibility of classification under heading 8471 of the Combined Nomenclature

Operative part of the judgment

An adapter, such as that at issue in the main proceedings, which performs the functions of the electrical connection between the programming machine and the components to be programmed and of the storage of the programming process, which can be retrieved later, fulfils the condition set out in Note 5(B)(c) to Chapter 84 of the Combined Nomenclature in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Commission Regulation (EC) No 1810/2004 of 7 September 2004 and must be classified under heading 8471 thereof as a ‘unit’ of an automatic data-processing machine, in so far as its main function is to carry out data-processing. Where that function is absent, such an adapter must be classified under heading 8473 of the Combined Nomenclature as a ‘part’ or ‘accessory’ of a machine, as the case may be, if it is either essential to the functioning of that machine or constitutes a part or device designed to adapt a machine for a particular operation or an element to perform a particular service relative to the main function of that machine, which it is for the referring court to determine. Where that adapter cannot be classified under either of the abovementioned headings, it must be considered to be an ‘electrical apparatus for making connections to or in electrical circuits’, and consequently to fall under heading 8536 of the Combined Nomenclature

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(1)  OJ C 285, 8.11.2008.

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/6 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/6

---

Judgment of the Court (First Chamber) of 20 May 2010 (reference for a preliminary ruling from the Oberlandesgericht Oldenburg (Germany)) — Arnold und Johann Harms als Gesellschaft bürgerlichen Rechts v Freerk Heidinga

(Case C-434/08) (1)

(Common agricultural policy - Integrated administration and control system for certain aid schemes - Regulation (EC) No 1782/2003 - Single payment scheme - Transfer of payment entitlements - Definitive transfer)

(2010/C 179/09)

Language of the case: German

Referring court

Oberlandesgericht Oldenburg

Parties to the main proceedings

Applicants: Arnold und Johann Harms als Gesellschaft bürgerlichen Rechts

Defendant: Freerk Heidinga

Re:

Reference for a preliminary ruling — Oberlandesgericht Oldenburg — Interpretation of Article 46(2) of 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 2007 L 270, p. 1) — Contractual clause, inserted into an agreement intended outwardly to effect a complete and definitive transfer of payment entitlements, according to which the transferee, as the formal owner of payment entitlements, is to activate those payment entitlements through cultivation of the corresponding land, but is to pass on to the seller a part of the payments received

Operative part of the judgment

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) No 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, (EC) No 1673/2000, (EEC) No 2358/71 and (EC) No 2529/2001 must be interpreted as not precluding a contractual arrangement, such as that at issue in the main proceedings, the object of which is to effect a definitive transfer of payment entitlements whereby the transferee, in his capacity as the person entitled to them, is to activate the payment entitlements and to pass on to the transferor, without any limit in time, the full amount, or a part thereof, of the payments received on that basis, provided that the purpose of such an arrangement is not to permit the transferor to retain a part of the payment entitlements which he has formally transferred, but to determine, by reference to the value of that part of the payment entitlements, the agreed price for the transfer of all the payment entitlements.

---

(1)  OJ C 44, 21.2.2009.

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/7 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/7

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Judgment of the Court (Grand Chamber) of 4 May 2010 (reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands)) — TNT Express Nederland B.V. v AXA Versicherung AG

(Case C-533/08) (1)

(Judicial cooperation in civil and commercial matters - Jurisdiction and recognition and enforcement of judgments - Regulation (EC) No 44/2001 - Article 71 - Conventions concluded by the Member States in relation to particular matters - Convention on the Contract for the International Carriage of Goods by Road (CMR))

(2010/C 179/10)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Appellant: TNT Express Nederland B.V.

Respondent: AXA Versicherung AG

Re:

Reference for a preliminary ruling — Hoge Raad der Nederlanden — Interpretation of Article 71(1) and (2)(a) and (b), second subparagraph, of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (‘Brussels I’) (OJ 2001 L 12, p. 1) — Relationship with the Convention on the Contract for the International Carriage of Goods by Road (CMR), signed at Geneva on 19 May 1956 — Lis pendens — Rules on concurrence

Operative part of the judgment

| 1. | Article 71 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that, in a case such as the main proceedings, the rules governing jurisdiction, recognition and enforcement that are laid down by a convention on a particular matter, such as the lis pendens rule set out in Article 31(2) of the Convention on the Contract for the International Carriage of Goods by Road, signed at Geneva on 19 May 1956, as amended by the Protocol signed at Geneva on 5 July 1978, and the rule relating to enforceability set out in Article 31(3) of that convention, apply provided that they are highly predictable, facilitate the sound administration of justice and enable the risk of concurrent proceedings to be minimised and that they ensure, under conditions at least as favourable as those provided for by the regulation, the free movement of judgments in civil and commercial matters and mutual trust in the administration of justice in the European Union (favor executionis). |
| --- | --- |

1.

Article 71 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that, in a case such as the main proceedings, the rules governing jurisdiction, recognition and enforcement that are laid down by a convention on a particular matter, such as the lis pendens rule set out in Article 31(2) of the Convention on the Contract for the International Carriage of Goods by Road, signed at Geneva on 19 May 1956, as amended by the Protocol signed at Geneva on 5 July 1978, and the rule relating to enforceability set out in Article 31(3) of that convention, apply provided that they are highly predictable, facilitate the sound administration of justice and enable the risk of concurrent proceedings to be minimised and that they ensure, under conditions at least as favourable as those provided for by the regulation, the free movement of judgments in civil and commercial matters and mutual trust in the administration of justice in the European Union (favor executionis).

| 2. | The Court of Justice of the European Union does not have jurisdiction to interpret Article 31 of the Convention on the Contract for the International Carriage of Goods by Road, as amended. |
| --- | --- |

2.

The Court of Justice of the European Union does not have jurisdiction to interpret Article 31 of the Convention on the Contract for the International Carriage of Goods by Road, as amended.

---

(1)  OJ C 44, 21.2.2009.

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/8 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/8

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Judgment of the Court (Third Chamber) of 6 May 2010 — European Commission v Republic of Poland

(Case C-545/08) (1)

(Failure of a Member State to fulfil obligations - Electronic communications - Directives 2002/21/EC and 2002/22/EC - High-speed internet access provider - Obligation to obtain authorisation for the access tariffs to high-speed internet services and to fix those tariffs on the basis of the costs of the provision of such services - No market analysis)

(2010/C 179/11)

Language of the case: Polish

Parties

Applicant: European Commission (represented by: A. Nijenhuis and K. Mojzesowicz, acting as Agents)

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

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 16 and 17 of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive)(OJ 2002 L 108, p. 51), and Articles 16 and 27 of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ 2002 L 108, p. 33) — Imposing on an operator a requirement to obtain authorisation for the tariff for providing retail access services to high-speed internet without a market analysis having been carried out.

Operative part of the judgment

The Court:

| 1. | By regulating retail tariffs for access to high-speed internet without carrying out a prior market analysis, the Republic of Poland has failed to fulfil its obligations Articles 16 and 17 of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) and Articles 16 and 27 of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive); |
| --- | --- |

1.

By regulating retail tariffs for access to high-speed internet without carrying out a prior market analysis, the Republic of Poland has failed to fulfil its obligations Articles 16 and 17 of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) and Articles 16 and 27 of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive);

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

2.

Orders the Republic of Poland to pay the costs.

---

(1)  OJ C 82 of 4.4.2009

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/8 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/8

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Judgment of the Court (First Chamber) of 20 May 2010 — Christos Gogos v European Commission

(Case C-583/08 P) (1)

(Appeals - Officials - Internal competition for promotion from one category to another - Appointment - Classification in grade - Article 31(2) of the Staff Regulations - Unlimited jurisdiction - Dispute of a financial character - Length of proceedings before the General Court - Reasonable time - Claim for equitable compensation)

(2010/C 179/12)

Language of the case: Greek

Parties

Appellant: Christos Gogos (represented by: N. Korogiannakis and P. Katsimani, dikigoroi)

Other party to the proceedings: European Commission (represented by: J. Currall, acting as Agent, assisted by P.I. Anestis, dikigoros)

Re:

Appeal against the judgment of the Court of First Instance (Seventh Chamber) of 15 October 2008 in Case T-66/04 Gogos v Commission, by which the Court of First Instance dismissed an action for annulment of the Commission’s decision to place the applicant in Grade A 7 when he was appointed.

Operative part of the judgment

The Court:

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

1.

Dismisses the appeal;

| 2. | Orders Mr Gogos and the Commission to bear their own costs. |
| --- | --- |

2.

Orders Mr Gogos and the Commission to bear their own costs.

---

(1)  OJ C 44, 21.2.2009.

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/9 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/9

---

Judgment of the Court (Forth Chamber) of 21 January 2010 — European Commission v Federal Republic of Germany

(Case C-17/09) (1)

(Public service contracts - Bio-waste and green waste disposal service - Award without an open public tender procedure)

(2010/C 179/13)

Language of the case: German

Parties

Applicant: European Commission (represented by: B. Schima and C. Zadra, acting as Agents)

Defendant: Federal Republic of Germany (represented by: M. Lumma and B. Klein, acting as Agents)

Re:

Failure of a Member State to fulfil obligations — Infringement of Article 8 in conjunction with Titles III to VI of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1) — Failure to organise a formal European award procedure before the conclusion of a contract for bio-waste and green waste disposal services between the city of Bonn and a private company

Operative part of the judgment

The Court:

| 1. | Declares that the Federal Republic of Germany has failed to fulfil its obligations under Article 8 and Titles III to VI of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, on the grounds that the municipality of Bonn and the Müllverwertungsanlage Bonn GmbH awarded a public service contract on the disposal of bio-waste and green waste without carrying out a procedure for the award of public works including Europe-wide tendering. |
| --- | --- |

1.

Declares that the Federal Republic of Germany has failed to fulfil its obligations under Article 8 and Titles III to VI of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, on the grounds that the municipality of Bonn and the Müllverwertungsanlage Bonn GmbH awarded a public service contract on the disposal of bio-waste and green waste without carrying out a procedure for the award of public works including Europe-wide tendering.

| 2. | Orders the Federal Republic of Germany to pay the costs. |
| --- | --- |

2.

Orders the Federal Republic of Germany to pay the costs.

---

(1)  OJ C 69 of 21.03.2009

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/9 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/9

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Judgment of the Court (Second Chamber) of 20 May 2010 (reference for a preliminary ruling from the Commissione tributaria provinciale di Roma — Italy) — Emiliano Zanotti v Agenzia delle Entrate — Ufficio Roma 2

(Case C-56/09) (1)

(Freedom to provide services - Citizenship of the European Union - Articles 18 EC and 49 EC - National income tax legislation - Right to deduct total tuition fees from gross tax up to a fixed percentage - University course attended in another Member State - Imposition of a quantitative limit - Deduction up to a maximum amount laid down for registration and course fees paid for similar tuition provided by national State universities - Imposition of a territorial limit - Deduction up to a maximum amount laid down for registration and course fees paid for similar tuition provided by the national State university nearest to the taxpayer’s residence for fiscal purposes)

(2010/C 179/14)

Language of the case: Italian

Referring court

Commissione tributaria provinciale di Roma

Parties to the main proceedings

Applicant: Emiliano Zanotti

Defendant: Agenzia delle Entrate — Ufficio Roma 2

Re:

Reference for a preliminary ruling — Commissione tributaria provinciale di Roma — Interpretation of Articles 149 EC and 151 EC — National income tax legislation — Deduction of the costs of attending secondary and university courses held abroad from the gross tax payable in respect of taxable income — Limitation of the recognition of costs

Operative part of the judgment

| 1. | Article 49 EC must be interpreted as:






  — | precluding national legislation which allows taxpayers to deduct from gross tax the costs of attending university courses provided by universities situated in that Member State but excludes generally that possibility for university tuition fees incurred at a private university established in another Member State; |
| --- | --- | --- |

1.

Article 49 EC must be interpreted as:

—

precluding national legislation which allows taxpayers to deduct from gross tax the costs of attending university courses provided by universities situated in that Member State but excludes generally that possibility for university tuition fees incurred at a private university established in another Member State;

| — | not precluding national legislation which allows taxpayers to deduct from gross tax university tuition fees incurred at a private university established in another Member State up to the maximum amount set for the corresponding costs of attending similar courses at the national State university nearest to the taxpayer’s residence for fiscal purposes. |
| --- | --- |

—

not precluding national legislation which allows taxpayers to deduct from gross tax university tuition fees incurred at a private university established in another Member State up to the maximum amount set for the corresponding costs of attending similar courses at the national State university nearest to the taxpayer’s residence for fiscal purposes.

| 2. | Article 18 EC must be interpreted as:






  — | precluding national legislation which allows taxpayers to deduct from gross tax the costs of attending university courses provided by universities situated in that Member State but excludes generally that possibility for university tuition fees incurred at a university established in another Member State; |
| --- | --- | --- |

2.

Article 18 EC must be interpreted as:

—

precluding national legislation which allows taxpayers to deduct from gross tax the costs of attending university courses provided by universities situated in that Member State but excludes generally that possibility for university tuition fees incurred at a university established in another Member State;

| — | not precluding national legislation which allows taxpayers to deduct from gross tax university tuition fees incurred at a university established in another Member State up to the maximum amount set for the corresponding costs of attending similar courses at the national State university nearest to the taxpayer’s residence for fiscal purposes. |
| --- | --- |

—

not precluding national legislation which allows taxpayers to deduct from gross tax university tuition fees incurred at a university established in another Member State up to the maximum amount set for the corresponding costs of attending similar courses at the national State university nearest to the taxpayer’s residence for fiscal purposes.

---

(1)  OJ C 90, 18.04.2009.

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/10 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/10

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Judgment of the Court (Third Chamber) of 6 May 2010 (reference for a preliminary ruling from the Juzgado de lo Mercantil no 4 de Barcelona — Spain) — Axel Walz v Clickair S.A.

(Case C-63/09) (1)

(Air transport - Montreal Convention - Liability of carriers in respect of checked baggage - Article 22(2) - Limits of liability in case of destruction, loss, damage or delay of baggage - Concept of ‘damage’ - Material and non-material damage)

(2010/C 179/15)

Language of the case: Spanish

Referring court

Juzgado de lo Mercantil no 4 de Barcelona

Parties to the main proceedings

Applicant: Axel Walz

Defendant: Clickair S.A.

Re:

Reference for a preliminary ruling — Juzgado de lo Mercantil no 4 (Barcelona) — Interpretation of Article 22(2) of the Convention for the Unification of Certain Rules for International Carriage by Air (Montreal Convention), (Council Decision 2001/539/EC, OJ 2001 L 194, p. 39) — Jurisdiction of the Court — Interpretation of Article 3 of Council Regulation (EC) No 2027/97 of 9 October 1997 on air carrier liability in the event of accidents (OJ 1997 L 285, p. 1) — Air carrier liability in respect of the carriage of passengers and their baggage by air — Limit of liability in case of destruction, loss, damage or delay of baggage — Material and non-material damage

Operative part of the judgment

The term ‘damage’, which underpins Article 22(2) of the Convention for the Unification of Certain Rules for International Carriage by Air, concluded in Montreal on 28 May 1999, that sets the limit of an air carrier’s liability for the damage resulting, inter alia, from the loss of baggage, must be interpreted as including both material and non-material damage.

---

(1)  OJ C 102, 1.5.2009.

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/11 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/11

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Judgment of the Court (First Chamber) of 6 May 2010 — European Commission v French Republic

(Case C-94/09) (1)

(Failure of a Member State to fulfil obligations - VAT - Directive 2006/112/EC - Article 98(1) and (2) - Supply of services by undertakers - Application of a reduced rate to the service involving transportation of a body by vehicle)

(2010/C 179/16)

Language of the case: French

Parties

Applicant: European Commission (represented by: M. Afonso, Agent)

Defendant: French Republic (represented by: G. de Bergues and J.-S. Pilczer, Agents)

Re:

Failure of Member State to fulfil obligations — Infringement of Articles 96 to 99(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — Activities of undertakers — Obligation to apply a single rate of tax to an indivisible complex service provided by undertakers — Prohibition on applying variable reduced rates of VAT

Operative part of the judgment

The Court:

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

1.

Dismisses the action.

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

2.

Orders the European Commission to pay the costs.

---

(1)  OJ C 113, 16.5.2009.

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/11 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/11

---

Judgment of the Court (Fourth Chamber) of 20 May 2010 (reference for a preliminary ruling from the Okresní soud v Chebu — Czech Republic) — Česká podnikatelská pojišťovna as, Vienna Insurance Group v Michal Bilas

(Case C-111/09) (1)

(Regulation (EC) No 44/2001 - Action brought by an insurer before the court of its place of domicile seeking the payment of an insurance premium by the policyholder, domiciled in a different Member State - Appearance of the defendant entered before the court seised - Jurisdiction not contested and defence as to substance - Entering an appearance conferring jurisdiction)

(2010/C 179/17)

Language of the case: Czech

Referring court

Okresní soud v Chebu

Parties to the main proceedings

Applicant: Česká podnikatelská pojišťovna as, Vienna Insurance Group

Defendant: Michal Bilas

Re:

Reference for a preliminary ruling — Okresní soud v Cheb — Interpretation of Articles 13(1), 24 and 26 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1) — Jurisdiction in insurance matters — Action seeking the payment of an insurance premium by the policyholder, domiciled in a different Member State from the insurer — Defence of the policyholder’s case as to substance in the forum of the insurer’s domicile.

Operative part of the judgment

Article 24 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that the court seised, where the rules in Section 3 of Chapter II of that regulation were not complied with, must declare itself to have jurisdiction where the defendant enters an appearance and does not contest that court’s jurisdiction, since entering an appearance in that way amounts to a tacit prorogation of jurisdiction.

---

(1)  OJ C 141, 20.06.2009.

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/12 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/12

---

Judgment of the Court (Fourth Chamber) of 20 May 2010 (reference for a preliminary ruling from the Tribunale ordinario di Palermo (Italy)) — Todaro Nunziatina & C. Snc v Assessorato del Lavoro, della Previdenza Sociale, della Formazione Professionale e dell’Emigrazione della regione Sicilia

(Case C-138/09) (1)

(Reference for a preliminary ruling - State aid - Commission decisions - Interpretation - Aid granted by the Region of Sicily to undertakings entering into training and work-experience contracts or converting such contracts into open-ended contracts - Time-limit for the grant of aid - Budgetary limits - Default interest - Inadmissibility)

(2010/C 179/18)

Language of the case: Italian

Referring court

Tribunale ordinario di Palermo

Parties to the main proceedings

Applicant: Todaro Nunziatina & C. Snc

Defendant: Assessorato del Lavoro, della Previdenza Sociale, della Formazione Professionale e dell’Emigrazione della regione Sicilia

Re:

Reference for a preliminary ruling — Tribunale ordinario di Palermo — State aid — Scope of Commission Decisions SG (95) D/15975 of 21 December 1995 relating to Regional Law No 27 of the Region of Sicily of 15 May 1991 providing for measures to promote employment and 2003/195/EC of 16 October 2002 (OJ 2003 L 77, p. 57) on the aid granted by Sicily to companies entering into training and work experience contracts or converting training and work experience contracts into open-ended contracts

Operative part of the judgment

| 1. | Commission Decision SG (95) D/15975 of 11 December 1995 relating to Regional Law No 27 of the Region of Sicily of 15 May 1991 providing for measures to promote employment (State aid NN 91/A/95) must be interpreted as having accepted, as being compatible with the common market, an aid scheme composed of two measures provided for in Article 10(1)(a) and (b) of abovementioned Regional Law No 27, which cannot be cumulative and the event giving rise to which, that is to say, the recruitment of a worker or the conversion of the contract into an open-ended contract, must have taken place before 31 December 1996, but the payments to which they give rise may be made after that date, on condition that the applicable national budgetary and financial rules do not preclude that and that the budgetary provision approved by the Commission of the European Communities is not exceeded; |
| --- | --- |

1.

Commission Decision SG (95) D/15975 of 11 December 1995 relating to Regional Law No 27 of the Region of Sicily of 15 May 1991 providing for measures to promote employment (State aid NN 91/A/95) must be interpreted as having accepted, as being compatible with the common market, an aid scheme composed of two measures provided for in Article 10(1)(a) and (b) of abovementioned Regional Law No 27, which cannot be cumulative and the event giving rise to which, that is to say, the recruitment of a worker or the conversion of the contract into an open-ended contract, must have taken place before 31 December 1996, but the payments to which they give rise may be made after that date, on condition that the applicable national budgetary and financial rules do not preclude that and that the budgetary provision approved by the Commission of the European Communities is not exceeded;

| 2. | Article 1 of Commission Decision 2003/195/EC of 16 October 2002 on the scheme by which Italy plans to aid employment in the Region of Sicily — C 56/99 (ex N 668/97) must be interpreted as meaning that the aid scheme provided for in Article 11(1) of Regional Law No 16 of the Region of Sicily of 27 May 1997 authorising expenditure for the use of the provisions entered in the general funds of the budget of the Region for the financial year 1997 constitutes new aid distinct from that provided for in Article 10 of Regional Law No 27 of the Region of Sicily of 15 May 1991 providing for measures to promote employment. Article 1 of Decision 2003/195 precludes the grant of subsidies in respect of any employment of workers recruited under training or work-experience contracts or conversion of training and work-experience contracts into open-ended contracts with effect from 1 January 1997; |
| --- | --- |

2.

Article 1 of Commission Decision 2003/195/EC of 16 October 2002 on the scheme by which Italy plans to aid employment in the Region of Sicily — C 56/99 (ex N 668/97) must be interpreted as meaning that the aid scheme provided for in Article 11(1) of Regional Law No 16 of the Region of Sicily of 27 May 1997 authorising expenditure for the use of the provisions entered in the general funds of the budget of the Region for the financial year 1997 constitutes new aid distinct from that provided for in Article 10 of Regional Law No 27 of the Region of Sicily of 15 May 1991 providing for measures to promote employment. Article 1 of Decision 2003/195 precludes the grant of subsidies in respect of any employment of workers recruited under training or work-experience contracts or conversion of training and work-experience contracts into open-ended contracts with effect from 1 January 1997;

| 3. | It is for the Member State concerned to determine which party to the proceedings has the burden of proving that the budgetary provision allocated for the aid measures referred to in Article 10(1)(a) and (b) of Regional Law No 27 of the Region of Sicily of 15 May 1991 providing for measures to aid employment and authorised by Decision SG (95) D/15975 has not been exhausted; |
| --- | --- |

3.

It is for the Member State concerned to determine which party to the proceedings has the burden of proving that the budgetary provision allocated for the aid measures referred to in Article 10(1)(a) and (b) of Regional Law No 27 of the Region of Sicily of 15 May 1991 providing for measures to aid employment and authorised by Decision SG (95) D/15975 has not been exhausted;

| 4. | The amount of statutory interest which may be due in the event of late payment of the aid authorised by Decision SG (95) D/15975 for the period following that decision is not to be included in the amount of the budgetary provision authorised by that decision. The rate of interest and the detailed arrangements for applying that rate fall within the scope of national law. |
| --- | --- |

4.

The amount of statutory interest which may be due in the event of late payment of the aid authorised by Decision SG (95) D/15975 for the period following that decision is not to be included in the amount of the budgetary provision authorised by that decision. The rate of interest and the detailed arrangements for applying that rate fall within the scope of national law.

---

(1)  OJ C 153, 4.7.2009.

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/12 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/12

---

Judgment of the Court (Fifth Chamber) of 20 May 2010 — European Commission v Kingdom of Spain

(Case C-158/09) (1)

(Failure of a Member State to fulfil obligations - Directive 2003/88/EC - Organisation of working time - Non-civilian personnel in public authorities - Failure to transpose within the prescribed period)

(2010/C 179/19)

Language of the case: Spanish

Parties

Applicant: European Commission (represented by: I. Martinez del Peral Cagigal and M. van Beek, acting as Agents)

Defendant: Kingdom of Spain (represented by: B. Plaza Cruz, acting as Agent)

Re:

Failure of a Member State to fulfil obligations — Infringement of Article 1(3) of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (OJ 2003 L 299, p. 9) and Article 18(a) of Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time (OJ 1993 L 307, p. 18) maintained by Article 27(1) of Directive 2003/88, read in conjunction with Annex I, Part B, of the same directive — Non-civilian personnel in public authorities

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to adopt within the prescribed period all the laws, regulations and administrative provisions necessary to comply with Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time, in respect of non-civilian personnel in public authorities, the Kingdom of Spain has failed to fulfil its obligations under Article 1(3) of that directive; |
| --- | --- |

1.

Declares that, by failing to adopt within the prescribed period all the laws, regulations and administrative provisions necessary to comply with Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time, in respect of non-civilian personnel in public authorities, the Kingdom of Spain has failed to fulfil its obligations under Article 1(3) of that directive;

| 2. | Orders the Kingdom of Spain to bear the costs. |
| --- | --- |

2.

Orders the Kingdom of Spain to bear the costs.

---

(1)  OJ C 180 of 1.8.2009.

---

| 3.7.2010 | EN | Official Journal of the European Union | C 179/13 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/13

---

Judgment of the Court (Third Chamber) of 20 May 2010 (reference for a preliminary ruling from the Simvoulio tis Epikratias (Greece)) — Ioannis Katsivardas — Nikolaos Tsitsikas OE v Ipourgos Ikonomikon

(Case C-160/09) (1)

(Regulation (EEC) No 1591/84 - Cooperation Agreement between the European Economic Community, of the one part, and the Cartagena Agreement and the member countries thereof, Bolivia, Colombia, Ecuador, Peru and Venezuela, of the other part - Most-favoured-nation clause - Direct effect - Excise duty on the import of bananas into Greece)

(2010/C 179/20)

Language of the case: Greek

Referring court

Simvoulio tis Epikratias

Parties to the main proceedings

Applicant: Ioannis Katsivardas — Nikolaos Tsitsikas OE

Defendant: Ipourgos Ikonomikon

Re:

Reference for a preliminary ruling — Simvoulio tis Epikratias — Interpretation of Article 4 of Council Regulation (EEC) No 1591/84 of 4 June 1984 concerning the conclusion of the Cooperation Agreement between the European Economic Community, of the one part, and the Cartagena Agreement and the member countries thereof — Bolivia, Colombia, Ecuador, Peru and Venezuela — of the other part (OJ 1984 L 153, p. 1) — Most-favoured-nation clause — Right of an individual seeking the refund of domestic tax to rely on the agreement in order to demonstrate the tax’s incompatibility with the agreement — Banana import regime

Operative part of the judgment

Article 4 of the Cooperation Agreement concluded between the European Economic Community, of the one part, and the Cartagena Agreement and the member countries thereof — Bolivia, Colombia, Ecuador, Peru and Venezuela — of the other part, approved by Council Regulation (EEC) No 1591/84 of 4 June 1984, is not such as to confer on individuals rights upon which they might rely before the courts of a Member State.

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(1)  OJ C 153, 4.7.2009.

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/13 |
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3.7.2010

EN

Official Journal of the European Union

C 179/13

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Judgment of the Court (Third Chamber) of 20 May 2010 (reference for a preliminary ruling from the Cour administrative d’appel de Nantes (France)) — Scott SA, Kimberly Clark SNC, now Kimberly Clark SAS v Ville d’Orléans

(Case C-210/09) (1)

(State aid - Regulation (EC) No 659/1999 - Article 14(3) - Recovery of aid - Principle of effectiveness - Assessments vitiated by a procedural defect - Annulment)

(2010/C 179/21)

Language of the case: French

Referring court

Cour administrative d’appel de Nantes

Parties to the main proceedings

Applicants: Scott SA, Kimberly Clark SNC, now Kimberly Clark SAS

Defendant: Ville d’Orléans

Re:

Reference for a preliminary ruling — Cour administrative d’appel de Nantes — Interpretation of Article 14(3) of Council Regulation No 659/1999 of 22 March 1999, laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1) — Aid granted by the French authorities in favour of Scott SA and Kimberly Clark — Obligation to recover immediately the aid declared incompatible with the common market — Effect on that obligation of possible annulment, on grounds of procedural defect, of the assessments issued by the national authorities for the recovery of that aid

Operative part of the judgment

Article 14(3) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88] of the EC Treaty is to be interpreted as not precluding, in circumstances in which amounts corresponding to the aid in question have already been recovered, annulment by the national court of assessments issued in order to recover the unlawful State aid on grounds of there being a procedural defect, where it is possible to rectify that procedural defect under national law. That provision does, however, preclude those amounts being paid once again, even provisionally, to the beneficiary of that aid.

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(1)  OJ C 205, 29.8.2009.

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/14 |
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3.7.2010

EN

Official Journal of the European Union

C 179/14

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Judgment of the Court (Third Chamber) of 6 May 2010 — Commission of the European Communities v Republic of Poland

(Case C-311/09) (1)

(Failure of a Member State to fulfil obligations - Taxation - VAT - International carriage of persons - Flat-rate taxation of transporters domiciled outside the national territory)

(2010/C 179/22)

Language of the case: Polish

Parties

Applicant: European Commission (represented by: I. Martinez del Peral Cagigal and M. van Beek, acting as Agents)

Defendant: Republic of Poland (represented by: M. Dowgielewicz und M. Szpunar, acting as Agents)

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 73, 168 and 273 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — International carriage of persons by road — National rules requiring transporters domiciled abroad to pay VAT under a flat-rate system based only on the number of persons transported to the national territory and which does not allow any right to deduct

Operative part of the judgment

The Court:

| 1. | Declares that, by charging value added tax in the manner set out in Chapter 13, Paragraph 35(1), (3), (4) and (5), of the Regulation of the Minister for Finance of 27 April 2004 on the implementation of certain provisions of the Law on the taxation of goods and services, the Republic of Poland has failed to fulfil its obligations under Articles 73, 168 and 273 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax; |
| --- | --- |

1.

Declares that, by charging value added tax in the manner set out in Chapter 13, Paragraph 35(1), (3), (4) and (5), of the Regulation of the Minister for Finance of 27 April 2004 on the implementation of certain provisions of the Law on the taxation of goods and services, the Republic of Poland has failed to fulfil its obligations under Articles 73, 168 and 273 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax;

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

2.

Orders the Republic of Poland to pay the costs.

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(1)  OJ C 256 of 24.10.2009.

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/14 |
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3.7.2010

EN

Official Journal of the European Union

C 179/14

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Order of the Court (Seventh Chamber) of 18 March 2010 (reference for a preliminary ruling from the Arios Pagos — Greece) — Organismos Sillogikis Diakhirisis Dimiourgon Theatrikon kai Optikoakoustikon Ergon v Divani Acropolis Hotel and Tourism AE

(Case C-136/09) (1)

(Article 104(3) of the Rules of Procedure - Copyright and related rights in the information society - Directive 2001/29/EC - Article 3 - Concept of ‘communication to the public’ - Works communicated by means of television sets installed in hotel rooms)

(2010/C 179/23)

Language of the case: Greek

Referring court

Arios Pagos

Parties to the main proceedings

Applicant: Organismos Sillogikis Diakhirisis Dimiourgon Theatrikon kai Optikoakoustikon Ergon

Defendant: Divani Acropolis Hotel and Tourism AE

Intervener in support of the defendant: Hellenic Chamber of Hotels

Re:

Reference for a preliminary ruling — Arios Pagos — Interpretation of Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10) — Concept of ‘communication to the public’ — Works transmitted by means of television sets installed in hotel rooms and connected to the central antenna of the hotel with no other action by the hotel to ensure reception of a signal by hotel customers

Operative part of the order

The hotelier, by installing televisions in his hotel rooms and by connecting them to the central antenna of the hotel, thereby, and without more, carries out an act of communication to the public within the meaning of Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society.

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(1)  OJ C 141, of 20.06.2009.

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/15 |
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3.7.2010

EN

Official Journal of the European Union

C 179/15

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Reference for a preliminary ruling from the Hoge Raad der Nederlanden lodged on 1 April 2010 — Sony Logistics Europe B.V. v Staatssecretaris van Financiën

(Case C-153/10)

(2010/C 179/24)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicant: Sony Logistics Europe B.V.

Defendant: Staatssecretaris van Financiën

Questions referred

| 1. | Must Community law, and in particular Article 12(2) and (5) and Article 217(1) of the CCC (1), and Article 11 of the CCIR (2) in conjunction with Article 243 of the CCC, be interpreted to mean that a person involved in proceedings concerning customs duties which have been imposed may challenge their imposition by producing binding tariff information issued in another Member State for the same goods, which information was still the subject of a legal dispute at that time, but was eventually revised? |
| --- | --- |

1.

Must Community law, and in particular Article 12(2) and (5) and Article 217(1) of the CCC (1), and Article 11 of the CCIR (2) in conjunction with Article 243 of the CCC, be interpreted to mean that a person involved in proceedings concerning customs duties which have been imposed may challenge their imposition by producing binding tariff information issued in another Member State for the same goods, which information was still the subject of a legal dispute at that time, but was eventually revised?

| 2. | If the answer to Question 1 is in the affirmative, can the person declaring the goods to customs in his own name and for his own account successfully rely in a case such as this, when making customs declarations for release for free circulation, on binding tariff information whose holder is not that person, but an associated firm on whose instructions that person made the customs declarations? |
| --- | --- |

2.

If the answer to Question 1 is in the affirmative, can the person declaring the goods to customs in his own name and for his own account successfully rely in a case such as this, when making customs declarations for release for free circulation, on binding tariff information whose holder is not that person, but an associated firm on whose instructions that person made the customs declarations?

| 3. | If the answer to Question 2 is in the negative, does Community law preclude a person in a case such as this from successfully relying on a national policy decision in which the national authorities raise the expectation that, in respect of the tariff classification of the goods declared, it can rely on tariff information issued to a third party for the same goods? |
| --- | --- |

3.

If the answer to Question 2 is in the negative, does Community law preclude a person in a case such as this from successfully relying on a national policy decision in which the national authorities raise the expectation that, in respect of the tariff classification of the goods declared, it can rely on tariff information issued to a third party for the same goods?

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(1)  Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1)

(2)  Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1993 L 253, p. 1)

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/15 |
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3.7.2010

EN

Official Journal of the European Union

C 179/15

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Appeal brought on 1 April 2010 by Nokia Oyj against the judgment of the General Court (Eighth Chamber) delivered on 20 January 2010 in Case T-460/07 Nokia Oyj v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-154/10 P)

(2010/C 179/25)

Language of the case: Finnish

Parties

Appellant: Nokia Oyj (represented by C. Rehaag, asianajaja)

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

Form of order sought

| — | set aside the judgment in Case T-460/07; |
| --- | --- |

—

set aside the judgment in Case T-460/07;

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

—

order OHIM to pay the costs.

Pleas in law and main arguments

The appellant claims that the judgment of the General Court in Case T-460/07 should be set aside on the ground that the General Court wrongly considered in that judgment that there was a likelihood of confusion between the marks LIFE and LIFE BLOG and thus applied incorrectly Article 8(1)(b) of Regulation No 40/94. (1) The applicant submits that by so doing the judgment infringed European Union law.

The General Court indeed found, as regards the similarity of the marks, that the subjects of comparison were the marks LIFE and LIFE BLOG, but then proceeded in a manner that clearly contradicted that finding, by assessing only the component LIFE of the composite mark LIFE BLOG in order to justify the conclusion that the marks were similar.

In that connection the General Court incorrectly examined the questions of what kind of consumers belonged to the relevant group and how the consumers understood the mark, and thereby infringed the principles recognised in the case-law of the Court of Justice.

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

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/16 |
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3.7.2010

EN

Official Journal of the European Union

C 179/16

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Reference for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 2 April 2010 — Banco Bilbao Vizcaya Argentaria S.A. v Administración General del Estado

(Case C-157/10)

(2010/C 179/26)

Language of the case: Spanish

Referring court

Tribunal Supremo

Parties to the main proceedings

Applicant: Banco Bilbao Vizcaya Argentaria S.A.

Defendant: Administración General del Estado

Question referred

Must Articles 63 and 65 of the Treaty on the Functioning of the European Union be interpreted as meaning that they preclude national rules (enacted unilaterally or under a bilateral convention for the avoidance of double taxation) which, in the context of corporation tax and within the framework of provisions for the avoidance of such double taxation, prohibit the deduction of amounts of tax due in other Member States of the European Union on income subject to corporation tax and obtained in their territory where those amounts, though due, are not paid by virtue of an exemption, a credit or any other tax benefit?

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/16 |
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3.7.2010

EN

Official Journal of the European Union

C 179/16

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Reference for a preliminary ruling from the Juzgado de lo Contencioso-Administrativo No 12 de Sevilla (Spain) lodged on 7 April 2010 — Francisco Javier Rosado Santana v Consejería de la Justicia y Administración Pública de la Junta de Andalucía

(Case C-177/10)

(2010/C 179/27)

Language of the case: Spanish

Referring court

Juzgado de lo Contencioso-Administrativo No 12 de Sevilla

Parties to the main proceedings

Applicant: Francisco Javier Rosado Santana

Defendant: Consejería de la Justicia y Administración Pública de la Junta de Andalucía

Questions referred

| 1. | Is [Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP] (1) to be interpreted as meaning that, if the Constitutional Court of a Member State has ruled that the establishment of different rights for temporary civil servants and career civil servants of that State might not be contrary to its Constitution, that necessarily means that the directive is excluded from applying in the sphere of that State’s civil service? |
| --- | --- |

1.

Is [Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP] (1) to be interpreted as meaning that, if the Constitutional Court of a Member State has ruled that the establishment of different rights for temporary civil servants and career civil servants of that State might not be contrary to its Constitution, that necessarily means that the directive is excluded from applying in the sphere of that State’s civil service?

| 2. | Is Directive 1999/70 to be interpreted as meaning that it precludes a national court from interpreting the principles of equal treatment and non-discrimination in a manner which generally excludes from their scope the placing of temporary civil servants and career civil servants on an equal footing? |
| --- | --- |

2.

Is Directive 1999/70 to be interpreted as meaning that it precludes a national court from interpreting the principles of equal treatment and non-discrimination in a manner which generally excludes from their scope the placing of temporary civil servants and career civil servants on an equal footing?

| 3. | Is Clause 4 to be interpreted as meaning that it precludes a refusal to take into account as length of service, in attaining the status of member of the permanent staff, previous periods of service as a temporary employee, specifically for the purposes of remuneration, grading and career advancement in the civil service? |
| --- | --- |

3.

Is Clause 4 to be interpreted as meaning that it precludes a refusal to take into account as length of service, in attaining the status of member of the permanent staff, previous periods of service as a temporary employee, specifically for the purposes of remuneration, grading and career advancement in the civil service?

| 4. | Does Clause 4 require an interpretation of the national legislation to the effect that it does not exclude from the calculation of length of service of civil servants periods worked under a temporary employment relationship? |
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4.

Does Clause 4 require an interpretation of the national legislation to the effect that it does not exclude from the calculation of length of service of civil servants periods worked under a temporary employment relationship?

| 5. | Is Clause 4 to be interpreted as meaning that, even though the rules of a public selection process were published and were not contested by the applicant, the national court must examine whether those rules are contrary to the Community legislation and, in that case, must the national court refrain from applying those rules or the national provision on which they are based in so far as they conflict with that clause? |
| --- | --- |

5.

Is Clause 4 to be interpreted as meaning that, even though the rules of a public selection process were published and were not contested by the applicant, the national court must examine whether those rules are contrary to the Community legislation and, in that case, must the national court refrain from applying those rules or the national provision on which they are based in so far as they conflict with that clause?

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(1)  OJ L 175, p. 43

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/17 |
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3.7.2010

EN

Official Journal of the European Union

C 179/17

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Reference for a preliminary ruling from the Naczelny Sąd Administracyjny (Poland) lodged on 9 April 2010 — Jarosław Słaby v Minister Finansów

(Case C-180/10)

(2010/C 179/28)

Language of the case: Polish

Referring court

Naczelny Sąd Administracyjny

Parties to the main proceedings

Applicant: Jarosław Słaby

Defendant: Minister Finansów

Question referred

Is a natural person who carried out an agricultural activity on land and subsequently, on account of a change to urban management plans which occurred for reasons beyond his control, ceased that activity and reclassified his property as private property, divided it into smaller parts (land designated for a holiday home development) and began to dispose of it, on that basis a taxable person for VAT within the meaning of Article 9(1) of Directive 2006/112/EC (1) and Article 4(1) and (2) of Sixth Directive 77/388/EEC (2) who is liable for payment of VAT on the basis of a trading activity?

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

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

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/17 |
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3.7.2010

EN

Official Journal of the European Union

C 179/17

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Reference for a preliminary ruling from the Naczelny Sąd Administracyjny (Poland) lodged on 9 April 2010 — Emilian Kuć and Halina Jeziorska-Kuć v Dyrektor Izby Skarbowej w Warszawie

(Case C-181/10)

(2010/C 179/29)

Language of the case: Polish

Referring court

Naczelny Sąd Administracyjny

Parties to the main proceedings

Applicants: Emilian Kuć and Halina Jeziorska-Kuć

Defendant: Dyrektor Izby Skarbowej w Warszawie

Questions referred

| 1. | Is a flat-rate farmer within the meaning of Article 295(1)(3) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (1) ... who sells plots of land used for his agricultural activity which are designated in a municipality’s urban management plan for residential and service development and were purchased as agricultural land (VAT-free) covered by Article 16 of that directive, which regards the application of business assets for the taxable person’s private use or for purposes other than those of his business as a supply of goods for consideration only where the tax on those assets was wholly or partly deductible? |
| --- | --- |

1.

Is a flat-rate farmer within the meaning of Article 295(1)(3) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (1) ... who sells plots of land used for his agricultural activity which are designated in a municipality’s urban management plan for residential and service development and were purchased as agricultural land (VAT-free) covered by Article 16 of that directive, which regards the application of business assets for the taxable person’s private use or for purposes other than those of his business as a supply of goods for consideration only where the tax on those assets was wholly or partly deductible?

| 2. | Must a flat-rate farmer within the meaning of Article 295(1)(3) of Directive 2006/112/EC who sells plots of land previously used for his agricultural activity which are designated in a municipality’s urban management plan for residential and service development and were purchased as agricultural land (VAT-free) be regarded as a taxable person who is required to account for VAT on that sale under the general rules? |
| --- | --- |

2.

Must a flat-rate farmer within the meaning of Article 295(1)(3) of Directive 2006/112/EC who sells plots of land previously used for his agricultural activity which are designated in a municipality’s urban management plan for residential and service development and were purchased as agricultural land (VAT-free) be regarded as a taxable person who is required to account for VAT on that sale under the general rules?

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

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/18 |
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3.7.2010

EN

Official Journal of the European Union

C 179/18

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Reference for a preliminary ruling from the Cour Constitutionnelle (Belgium) lodged on 9 April 2010 — Marie-Noëlle Solvay, Le Poumon vert de la Hulpe ASBL, Jacques Solvay de la Hulpe, Jean-Marie Solvay de la Hulpe, La Hulpe — Notre village ASBL, Alix Walsh, André Philips, Les amis de la Forêt de Soignes ASBL, Association des Riverains et Habitants des Communes Proches de l’Aéroport B.S.C.A. (Brussels South Charleroi Airport) ASBL, Grégoire Stassin, André Gilliard, Société Wallone des Aéroports SA (SOWAER), Paul Fastrez, Henriette Fastrez, Infrabel SA, Jean-Pierre Olivier, Pierre Deneye, Paul Thiry, Antoine Boxus, Willy Roua, Gouvernement flamand, Inter-Environnement Wallonie ASBL, Sartau SA, Charleroi South Air Pur ASBL, Pierre Grymonprez, Philippe Grisard de la Rochette, Nicole Laloux, Annabelle Denoël-Gevers, Marc Traversin, Joseph Melard, Chantal Michiels, Thierry Regout, René Canfin, Georges Lahaye, Jeanine Postelmans, Christophe Dehousse, Christine Lahaye, Jean-Marc Lesoinne, Jacques Teheux, Anne-Marie Larock, Berbadette Mestdag, Jean-François Serrafin, Françoise Mahoux, Ferdinand Wallraf, Jeanne Mariel, Agnès Fortemps, Georges Serrafin, Jeannine Melen, Groupement Cerexhe-Heuseux/Beaufays ASBL, Action et Défense de l’Environnement de la vallée de la Senne et de ses affluents ASBL, Réserves naturelles RNOB ASBL, Stéphane Banneux, Zénon Darquenne, Guido Durlet, Société régionale wallonne du transport SRWT, Philippe Daras, Bernard Croiselet, Bernard Page, Intercommunale du Brabant Wallon SCRL, Codic Belgique SA, Fédéral Express European Services Inc. v Walloon Region

(Case C-182/10)

(2010/C 179/30)

Language of the case: French

Referring court

Cour Constitutionnelle

Parties to the main proceedings

Applicants: Marie-Noëlle Solvay, Le Poumon vert de la Hulpe ASBL, Jacques Solvay de la Hulpe, Jean-Marie Solvay de la Hulpe, La Hulpe — Notre village ASBL, Alix Walsh, André Philips, Les amis de la Forêt de Soignes ASBL, Association des Riverains et Habitants des Communes Proches de l’Aéroport B.S.C.A. (Brussels South Charleroi Airport) ASBL, Grégoire Stassin, André Gilliard, Société Wallone des Aéroports SA (SOWAER), Paul Fastrez, Henriette Fastrez, Infrabel SA, Jean-Pierre Olivier, Pierre Deneye, Paul Thiry, Antoine Boxus, Willy Roua, Gouvernement flamand, Inter-Environnement Wallonie ASBL, Sartau SA, Charleroi South Air Pur ASBL, Pierre Grymonprez, Philippe Grisard de la Rochette, Nicole Laloux, Annabelle Denoël-Gevers, Marc Traversin, Joseph Melard, Chantal Michiels, Thierry Regout, René Canfin, Georges Lahaye, Jeanine Postelmans, Christophe Dehousse, Christine Lahaye, Jean-Marc Lesoinne, Jacques Teheux, Anne-Marie Larock, Berbadette Mestdag, Jean-François Serrafin, Françoise Mahoux, Ferdinand Wallraf, Jeanne Mariel, Agnès Fortemps, Georges Serrafin, Jeannine Melen, Groupement Cerexhe-Heuseux/Beaufays ASBL, Action et Défense de l’Environnement de la vallée de la Senne et de ses affluents ASBL, Réserves naturelles RNOB ASBL, Stéphane Banneux, Zénon Darquenne, Guido Durlet, Société régionale wallonne du transport SRWT, Philippe Daras, Bernard Croiselet, Bernard Page, Intercommunale du Brabant Wallon SCRL, Codic Belgique SA, Fédéral Express European Services Inc.

Defendant: Walloon Region

Questions referred

| 1. | Must Articles 2(2) and 9(4) of the Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters (1) be interpreted in accordance with the guidance provided in the Aarhus Convention Implementation Guide? |
| --- | --- |

1.

Must Articles 2(2) and 9(4) of the Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters (1) be interpreted in accordance with the guidance provided in the Aarhus Convention Implementation Guide?

| 2. | (a) | Must Article 2(2) of the Aarhus Convention be interpreted as excluding from its application legislative acts such as the town-planning and environmental consents granted in accordance with the procedure established by Articles 1 to 4 of the Decree of the Walloon Region of 17 July 2008 on certain consents for which there are overriding reasons in the general interest? |
| --- | --- | --- |

2.

(a)

Must Article 2(2) of the Aarhus Convention be interpreted as excluding from its application legislative acts such as the town-planning and environmental consents granted in accordance with the procedure established by Articles 1 to 4 of the Decree of the Walloon Region of 17 July 2008 on certain consents for which there are overriding reasons in the general interest?

| (b) | Must Article 2(2) of the Aarhus Convention be interpreted as excluding from its application legislative acts such as the ratifications of town-planning and environmental consents contained in Articles 5 to 9 and 14 to 17 of the decree in question? |
| --- | --- |

(b)

Must Article 2(2) of the Aarhus Convention be interpreted as excluding from its application legislative acts such as the ratifications of town-planning and environmental consents contained in Articles 5 to 9 and 14 to 17 of the decree in question?

| (c) | Must Article 1(5) of Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment (2) be interpreted as excluding from its application legislative acts such as the town-planning and environmental consents granted in accordance with the procedure established by Articles 1 to 4 of the decree in question? |
| --- | --- |

(c)

Must Article 1(5) of Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment (2) be interpreted as excluding from its application legislative acts such as the town-planning and environmental consents granted in accordance with the procedure established by Articles 1 to 4 of the decree in question?

| (d) | Must Article 1(5) of Directive 85/337/EEC be interpreted as excluding from its application legislative acts such as the ratifications of town-planning and environmental consents contained in Articles 5 to 9 and 14 to 17 of the decree in question? |
| --- | --- |

(d)

Must Article 1(5) of Directive 85/337/EEC be interpreted as excluding from its application legislative acts such as the ratifications of town-planning and environmental consents contained in Articles 5 to 9 and 14 to 17 of the decree in question?

| 3. | (a) | Must Articles 3(9) and 9(2), (3) and (4) of the Aarhus Convention and Article 10a of Directive 85/337/EEC be interpreted as precluding a procedure such as that established by Articles 1 to 4 of the decree in question, under which the regional legislator grants town-planning and environmental consents which have been prepared by an administrative authority and which are amenable only to the legal actions mentioned in paragraphs B.6. and B.7 of this order that may be brought before the Constitutional Court and the ordinary courts? |
| --- | --- | --- |

3.

(a)

Must Articles 3(9) and 9(2), (3) and (4) of the Aarhus Convention and Article 10a of Directive 85/337/EEC be interpreted as precluding a procedure such as that established by Articles 1 to 4 of the decree in question, under which the regional legislator grants town-planning and environmental consents which have been prepared by an administrative authority and which are amenable only to the legal actions mentioned in paragraphs B.6. and B.7 of this order that may be brought before the Constitutional Court and the ordinary courts?

| (b) | Must Articles 3(9) and 9(2), (3) and (4) of the Aarhus Convention and Article 10a of Directive 85/337/EEC be interpreted as precluding the adoption of legislative acts such as the retroactive ratifications contained in Articles 5 to 9 and 14 to 17 of the decree in question, which are amenable only to the legal actions mentioned in paragraphs B.6. and B.7 of this order that may be brought before the Constitutional Court and the ordinary courts? |
| --- | --- |

(b)

Must Articles 3(9) and 9(2), (3) and (4) of the Aarhus Convention and Article 10a of Directive 85/337/EEC be interpreted as precluding the adoption of legislative acts such as the retroactive ratifications contained in Articles 5 to 9 and 14 to 17 of the decree in question, which are amenable only to the legal actions mentioned in paragraphs B.6. and B.7 of this order that may be brought before the Constitutional Court and the ordinary courts?

| 4. | (a) | Must Article 6(9) of the Aarhus Convention and Article 9(1) of Directive 85/337/EEC be interpreted as precluding a procedure such as that established by Articles 1 to 4 of the decree in question, under which a decree granting town-planning and environmental consents need not itself contain all the information necessary to establish whether those consents are based on an adequate prior evaluation carried out in accordance with the requirements of the Aarhus Convention and Directive 85/337/EEC? |
| --- | --- | --- |

4.

(a)

Must Article 6(9) of the Aarhus Convention and Article 9(1) of Directive 85/337/EEC be interpreted as precluding a procedure such as that established by Articles 1 to 4 of the decree in question, under which a decree granting town-planning and environmental consents need not itself contain all the information necessary to establish whether those consents are based on an adequate prior evaluation carried out in accordance with the requirements of the Aarhus Convention and Directive 85/337/EEC?

| (b) | Must Article 6(9) of the Aarhus Convention and Article 9(1) of Directive 85/337/EEC be interpreted as precluding the adoption of legislative acts such as the ratifications contained in Articles 5 to 9 and 14 to 17 of the decree in question, which do not themselves contain all the information necessary to establish whether those consents are based on an adequate prior evaluation carried out in accordance with the requirements of the Aarhus Convention and Directive 85/337/EEC? |
| --- | --- |

(b)

Must Article 6(9) of the Aarhus Convention and Article 9(1) of Directive 85/337/EEC be interpreted as precluding the adoption of legislative acts such as the ratifications contained in Articles 5 to 9 and 14 to 17 of the decree in question, which do not themselves contain all the information necessary to establish whether those consents are based on an adequate prior evaluation carried out in accordance with the requirements of the Aarhus Convention and Directive 85/337/EEC?

| 5. | Must Article 6(3) of Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (3) be interpreted as permitting a legislative authority to authorise projects such as those referred to in Articles 16 and 17 of the decree in question, even though the impact assessment carried out in that connection has been held by the Council of State, in a judgment given under the emergency procedure, to be incomplete and even though the assessment has been contradicted in an Opinion of the authority of the Walloon Region responsible for the ecological management of the natural environment? |
| --- | --- |

5.

Must Article 6(3) of Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (3) be interpreted as permitting a legislative authority to authorise projects such as those referred to in Articles 16 and 17 of the decree in question, even though the impact assessment carried out in that connection has been held by the Council of State, in a judgment given under the emergency procedure, to be incomplete and even though the assessment has been contradicted in an Opinion of the authority of the Walloon Region responsible for the ecological management of the natural environment?

| 6. | In the event of a negative reply to Question 5, must Article 6(4) of Directive 92/43/EEC be interpreted as permitting the creation of infrastructure designed to accommodate the administrative centre of a private company and a large number of employees to be regarded as an imperative reason of overriding public interest? |
| --- | --- |

6.

In the event of a negative reply to Question 5, must Article 6(4) of Directive 92/43/EEC be interpreted as permitting the creation of infrastructure designed to accommodate the administrative centre of a private company and a large number of employees to be regarded as an imperative reason of overriding public interest?

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(1)  The Aarhus Convention was concluded on 25 June 1998 and approved, on behalf of the European Community, by Council Decision 2005/370/EC of 17 February 2005 (OJ 2005 L 124, p. 1)

(2)  Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40)

(3)  Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 63)

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/19 |
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3.7.2010

EN

Official Journal of the European Union

C 179/19

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Reference for a preliminary ruling from the Bayerischer Verwaltungsgerichtshof (Germany) lodged on 14 April 2010 — Mathilde Grasser v Freistaat Bayern

(Case C-184/10)

(2010/C 179/31)

Language of the case: German

Referring court

Bayerischer Verwaltungsgerichtshof

Parties to the main proceedings

Applicant: Mathilde Grasser

Defendant: Freistaat Bayern

Question referred

Are Articles 1(2) and 8(2) and (4) of Directive 91/439/EEC (1) to be interpreted as meaning that a host Member State is entitled to refuse to recognise a driving licence issued by another Member State where entries appearing in the driving licence show that Article 7(1)(b) of that directive has been infringed, if the host Member State has not previously applied to the holder of the licence a measure under Article 8(2) of Directive 91/439/EEC?

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

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/20 |
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3.7.2010

EN

Official Journal of the European Union

C 179/20

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Reference for a preliminary ruling from Court of Appeal (England & Wales) (Civil Division) made on 15 April 2010 — Tural Oguz v Secretary of State for the Home Department

(Case C-186/10)

(2010/C 179/32)

Language of the case: English

Referring court

Court of Appeal (England & Wales) (Civil Division)

Parties to the main proceedings

Applicant: Tural Oguz

Defendant: Secretary of State for the Home Department

Question referred

Where a Turkish national, having leave to remain in the United Kingdom on condition that he does not engage in any business or profession, enters into self-employment in breach of that condition and then applies to the national authorities for further leave to remain on the basis of the business which he has now established, is he entitled to the benefit of Article 41(1) of the Additional Protocol to the Agreement establishing an Association between the European Economic Community and Turkey?

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/20 |
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3.7.2010

EN

Official Journal of the European Union

C 179/20

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Action brought on 21 April 2010 — European Commission v Republic of Estonia

(Case C-195/10)

(2010/C 179/33)

Language of the case: Estonian

Parties

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

Defendant: Republic of Estonia

Form of order sought

| — | declare that the Republic of Estonia has failed to transpose correctly Articles 8(a)(iv) and 10 of Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste; (1) |
| --- | --- |

—

declare that the Republic of Estonia has failed to transpose correctly Articles 8(a)(iv) and 10 of Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste; (1)

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

—

order the Republic of Estonia to pay the costs.

Pleas in law and main arguments

Paragraph 91(5) of the Jäätmeseadus (Law on waste) does not provide for the security to be kept as long as required by maintenance and after-care operation of the landfill site in accordance with Article 13(d), nor is any requirement laid down to cover the costs of after-care of the site for a period of at least 30 years.

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

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/20 |
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3.7.2010

EN

Official Journal of the European Union

C 179/20

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Reference for a preliminary ruling from the Corte d’appello di Milano (Italy) lodged on 23 April 2010 — Cassina SpA v Alivar Srl and Galliani Host Arredamenti Srl

(Case C-198/10)

(2010/C 179/34)

Language of the case: Italian

Referring court

Corte d’appello di Milano

Parties to the main proceedings

Applicant: Cassina SpA

Defendant: Alivar Srl and Galliani Host Arredamenti Srl

Question referred

| 1. | Must Articles 17 and 19 of Directive 98/71/EC (1) be interpreted as meaning that the discretion accorded to the Member State to establish independently the extent to which, and the conditions under which, protection is conferred may include discretion to preclude such protection where a third party — without authorisation from the design copyright holder– had already produced and marketed in that State products based on the designs in question — those designs being in the public domain — before the date on which the national implementing legislation entered into force? |
| --- | --- |

1.

Must Articles 17 and 19 of Directive 98/71/EC (1) be interpreted as meaning that the discretion accorded to the Member State to establish independently the extent to which, and the conditions under which, protection is conferred may include discretion to preclude such protection where a third party — without authorisation from the design copyright holder– had already produced and marketed in that State products based on the designs in question — those designs being in the public domain — before the date on which the national implementing legislation entered into force?

| 2. | Must Articles 17 and 19 of Directive 98/71/EC be interpreted as meaning that the discretion accorded to the Member State to establish independently the extent to which, and the conditions under which, protection is conferred may include discretion to preclude such protection where a third party — without authorisation from the design copyright holder — has already produced and marketed in that State products based on the designs in question, where protection is precluded within the limits of prior use? |
| --- | --- |

2.

Must Articles 17 and 19 of Directive 98/71/EC be interpreted as meaning that the discretion accorded to the Member State to establish independently the extent to which, and the conditions under which, protection is conferred may include discretion to preclude such protection where a third party — without authorisation from the design copyright holder — has already produced and marketed in that State products based on the designs in question, where protection is precluded within the limits of prior use?

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(1)  OJ 1998 L 289, p. 28.

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/21 |
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3.7.2010

EN

Official Journal of the European Union

C 179/21

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Appeal brought on 26 April 2010 by Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE against the judgment of the General Court (Fourth Chamber) delivered on 9 February 2010 in Case T-340/07: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE v European Commission

(Case C-200/10 P)

(2010/C 179/35)

Language of the case: English

Parties

Appellant: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (represented by: N. Korogiannakis, Δικηγόρος)

Other party: European Commission

Form of order sought

The appellant claims that the Court should:

| — | Set aside the decision of the General Court, to order the Commission to make good the damage suffered by the Appellant as a result of its failure to comply with contractual obligations in the context of the performance of the EDC-53007 EEBO/27873 contract relating to the project entitled ‘e-Content Exposure and business Opportunities’ and to order the Commission to pay the Applicant's legal and other costs and expenses incurred in connection with the initial procedure, even if the current Appeal is rejected as well as those of the current Appeal, in case it is accepted. |
| --- | --- |

—

Set aside the decision of the General Court, to order the Commission to make good the damage suffered by the Appellant as a result of its failure to comply with contractual obligations in the context of the performance of the EDC-53007 EEBO/27873 contract relating to the project entitled ‘e-Content Exposure and business Opportunities’ and to order the Commission to pay the Applicant's legal and other costs and expenses incurred in connection with the initial procedure, even if the current Appeal is rejected as well as those of the current Appeal, in case it is accepted.

Pleas in law and main arguments

The Appellant submits that the General Court did not give a sufficiently clear statement of reasons for rejecting the a series of arguments put forward by the Appellant.

The Appellant submits the General Court committed an error in law in adopting a wrong interpretation of the wording of article 7 (6) of the contract which refers to the obligation of the contractors to take appropriate action to cancel or reduce their commitments upon receipt of the letter from the Commission notifying them of the termination of the contract.

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/21 |
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3.7.2010

EN

Official Journal of the European Union

C 179/21

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Appeal brought on 28 April 2010 by Enercon GmbH against the judgment of the General Court (Sixth Chamber) delivered on 3 February 2010 in Case T-472/07: Enercon GmbH v Office for Harmonisation in the Internal Market (Trade Marks & Designs)

(Case C-204/10 P)

(2010/C 179/36)

Language of the case: English

Parties

Appellant: Enercon GmbH (represented by: J. Mellor, Barrister, R. Böhm, Rechtsanwalt)

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

Form of order sought

The appellant claims that the Court should:

| — | allow the Appeal against the Judgment of the General Court and annul the Judgment of the General Court, to annul the decision of the fourth Board of Appeal and, as appropriate, the decision of the Opposition Division; |
| --- | --- |

—

allow the Appeal against the Judgment of the General Court and annul the Judgment of the General Court, to annul the decision of the fourth Board of Appeal and, as appropriate, the decision of the Opposition Division;

| — | (as appropriate) remit this case to the Office for a fresh consideration of the issues on this Opposition; |
| --- | --- |

—

(as appropriate) remit this case to the Office for a fresh consideration of the issues on this Opposition;

| — | order the intervener and the Office to pay the Appellant's costs of this Appeal |
| --- | --- |

—

order the intervener and the Office to pay the Appellant's costs of this Appeal

Pleas in law and main arguments

The Appellant submits that the General Court failed to recognise the errors in the decision of the Board of Appeal, based, as it was, on the illegitimate decision of the Opposition Division. In particular there was a complete failure to recognise (a) that the Medion (1) judgment concerned an exceptional situation in which the usual rule that the average consumer normally perceives a trade mark as a matter of overall impression is displaced but (b) no circumstances existed in this case sufficient to justify such an exceptional approach. No part of the earlier mark in this case had an ‘independent distinctive role’.

Furthermore the Appellant submits that, due to the incorrect application of a Medion type principle at the earlier stage of the assessment of similarity, no proper consideration was given to the global assessment of the likelihood of confusion.

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(1)  OJ C 106, 30.04.2004, p. 31

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/22 |
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3.7.2010

EN

Official Journal of the European Union

C 179/22

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Action brought on 30 April 2010 — European Commission v Federal Republic of Germany

(Case C-206/10)

(2010/C 179/37)

Language of the case: German

Parties

Applicant: European Commission (represented by: V. Kreuschitz, acting as Agent)

Defendant: Federal Republic of Germany

Form of order sought

| — | Declare that, by making the grant of benefits for the blind and the disabled, including the deaf (Blindengeld or Landesblindengeld, Blindenbeihilfe or Landesblindenbeihilfe (State and Länder benefits and allowances for blind persons), Pflegegeld (care allowance) or assistance for deaf/blind persons, Blinden- und Gehörlosengeld (deaf/blind person’s allowance) etc), under Länder legislation conditional, in respect of persons for whom the Federal Republic of Germany is the competent Member State, upon the recipient being resident or habitually resident in the German Land concerned, the Federal Republic of Germany has, on the basis of national legislation, failed to fulfil its obligations under Article 7(2) of Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community (1) and Article 4(1)(a), in conjunction with Title III, Chapter 1 (sickness and maternity), of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community; (2) |
| --- | --- |

—

Declare that, by making the grant of benefits for the blind and the disabled, including the deaf (Blindengeld or Landesblindengeld, Blindenbeihilfe or Landesblindenbeihilfe (State and Länder benefits and allowances for blind persons), Pflegegeld (care allowance) or assistance for deaf/blind persons, Blinden- und Gehörlosengeld (deaf/blind person’s allowance) etc), under Länder legislation conditional, in respect of persons for whom the Federal Republic of Germany is the competent Member State, upon the recipient being resident or habitually resident in the German Land concerned, the Federal Republic of Germany has, on the basis of national legislation, failed to fulfil its obligations under Article 7(2) of Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community (1) and Article 4(1)(a), in conjunction with Title III, Chapter 1 (sickness and maternity), of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community; (2)

| — | order the Federal Republic of Germany to pay the costs. |
| --- | --- |

—

order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

The present action concerns the incompatibility with Regulation (EEC) No 1408/71 and Regulation (EEC) No 1612/68 of German Länder legislation under which the grant of benefits to blind and disabled persons is conditional upon the recipients being resident or habitually resident in the German Land concerned.

Regulation No 1408/71 is designed to coordinate national social security legislations within the framework of freedom of movement in accordance with the objectives of Article 42 of the EC Treaty (now Article 48 TFEU). Under Article 4(2b), Regulation No 1408/71 is not to apply to the provisions in the legislation of a Member State concerning special non-contributory benefits, referred to in Annex II, Section III, the validity of which is confined to part of its territory. The German benefits at issue are listed as special benefits in Annex II, Section III to Regulation No 1408/71.

The Commission nevertheless takes the view that the mere entry of a benefit in the list in Annex II to Regulation No 1408/71 is not sufficient for a benefit to be excluded as a ‘special non-contributory benefit’ from the scope of that regulation. As an exemption, Article 4(2b) of Regulation No 1408/71 must be narrowly interpreted; it can only apply to benefits which satisfy the criteria set out in that provision cumulatively. Accordingly, the provision covers only benefits which are both special and non-contributory benefits, which are referred to in Annex II, Section III to Regulation No 1408/71 and which are introduced by legislation the validity of which is confined to part of the territory of a Member State.

The benefits at issue which are governed by Länder legislation do not, however, satisfy all those criteria, inasmuch as they should be categorised as ‘sickness benefits’ instead of as ‘special non-contributory benefits’ for the following reasons.

First, the Länder benefits at issue are granted on the basis of circumstances laid down by law, without any assessment of personal need. They serve to compensate for the additional expenditure incurred as a result of a disability and are intended to improve the state of health and the living conditions of the disabled. Consequently, they are intended, essentially, to be ancillary to sickness insurance benefits. The fact that care allowances granted under German Federal legislation count towards the benefits paid by the Länder for the blind and the disabled proves, moreover, that both benefits cover the same risk — the risk of sickness-related additional expenditure — and that it is not a question of ‘supplementary, substitute or ancillary cover against the risks’.

Second, the classification of a certain benefit in accordance with the domestic constitution of a Member State does not determine whether that benefit is to be regarded as a social security benefit for the purposes of Regulation No 1408/71.

Moreover, from a substantive point of view, the Länder legislation at issue here does not represent an ancillary advantage that is valid only on a regional basis. Instead, this benefit forms part of the system of cover against the risk of additional sickness-related expenditure that has been established throughout Germany and which, by virtue of reciprocal crediting, is closely connected with Federal law.

It follows from this that the Länder benefits concerned should be categorised as sickness benefits, not as special benefits. The inclusion of those benefits in Annex II, Section III to Regulation (EEC) No 1408/71 is, therefore, unlawful; they fall within the scope of that regulation.

Further, the residence requirement imposed under German law infringes Regulation No 1612/68 in so far as it prevents frontier workers and members of their families from receiving those benefits.

The Court of Justice has clearly confirmed that a Member State cannot make the grant of a social advantage contingent upon the recipient’s residence in that State. The Court’s conclusion applies to all social advantages within the meaning of Article 7(2) of Regulation No 1612/68.

‘Social advantage’ is a very broad concept. It covers not only the advantages associated with an employment contract, but all advantages which a Member State grants to its citizens and thus also to workers. In the Commission’s opinion, the fact that the grant of the benefits concerned is determined neither by the employment nor the financial resources of the person concerned or of his family, and is thus made purely on the basis of residence in the Land in question, cannot justify the failure to take into account the consequences for workers who work in Germany but who live in a different Member State. There is, therefore, no adequate reason why those benefits should not be regarded as social advantages within the meaning of Regulation No 1612/68.

Frontier workers who work in Germany and members of their families should, therefore, even if they do not live in Germany, be entitled to benefits granted to the disabled and the blind under Länder legislation. The condition requiring them to be resident or habitually resident in the Land concerned therefore infringes Regulation No 1612/68.

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(1)  OJ, English Special Edition 1968(II), p. 475.

(2)  OJ, English Special Edition 1971(II), p. 416.

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/23 |
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3.7.2010

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Official Journal of the European Union

C 179/23

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Reference for a preliminary ruling from the Højesteret (Denmark) lodged on 30 April 2010 — Paranova Danmark A/S, Paranova Pack A/S v Merck Sharp & Dohme Corp., Merck Sharp & Dohme B.V. and Merck Sharp & Dohme

(Case C-207/10)

(2010/C 179/38)

Language of the case: Danish

Referring court

Højesteret

Parties to the main proceedings

Applicants: Paranova Danmark A/S, Paranova Pack A/S

Defendants: Merck Sharp & Dohme Corp., Merck Sharp & Dohme and Merck Sharp & Dohme BV

Questions referred

| 1. | Are Article 7(2) of Council Directive 89/104/EEC (1) of 21 December 1988 to approximate the laws of the Member States relating to trade marks and the associated case-law, in particular the judgments of the Court of Justice in Cases 102/77 Hoffmann-La Roche v Centrafarm (2) and 1/81 Pfizer v Eurim-Pharm (3) and Joined Cases C-427/93, C-429/93 and C-436/93 Bristol-Myers Squibb and Others v Paranova (4), to be interpreted as meaning that a trade mark proprietor may rely on these provisions in order to prevent a parallel importer’s marketing company, which is the holder of a marketing authorisation for a medicinal product in a Member State, from selling that product with an indication that the product is repackaged by the marketing company, although the marketing company has the physical repackaging carried out by another company, the repackaging company, to which the marketing company gives instructions for the purchasing and repackaging of the product, for the detailed design of the product’s packaging and for other arrangements in relation to the product, and which holds the repackaging authorisation and reaffixes the trade mark on the new package in the course of repackaging? |
| --- | --- |

1.

Are Article 7(2) of Council Directive 89/104/EEC (1) of 21 December 1988 to approximate the laws of the Member States relating to trade marks and the associated case-law, in particular the judgments of the Court of Justice in Cases 102/77 Hoffmann-La Roche v Centrafarm (2) and 1/81 Pfizer v Eurim-Pharm (3) and Joined Cases C-427/93, C-429/93 and C-436/93 Bristol-Myers Squibb and Others v Paranova (4), to be interpreted as meaning that a trade mark proprietor may rely on these provisions in order to prevent a parallel importer’s marketing company, which is the holder of a marketing authorisation for a medicinal product in a Member State, from selling that product with an indication that the product is repackaged by the marketing company, although the marketing company has the physical repackaging carried out by another company, the repackaging company, to which the marketing company gives instructions for the purchasing and repackaging of the product, for the detailed design of the product’s packaging and for other arrangements in relation to the product, and which holds the repackaging authorisation and reaffixes the trade mark on the new package in the course of repackaging?

| 2. | Is it of significance in answering Question (i) that an assumption might be made that the consumer or end-user is not misled with regard to the origin of the product and will not be led to believe that the trade mark proprietor is responsible for the repackaging through the indication by the parallel importer of the manufacturer’s name on the packaging along with the indication as described of the undertaking responsible for the repackaging? |
| --- | --- |

2.

Is it of significance in answering Question (i) that an assumption might be made that the consumer or end-user is not misled with regard to the origin of the product and will not be led to believe that the trade mark proprietor is responsible for the repackaging through the indication by the parallel importer of the manufacturer’s name on the packaging along with the indication as described of the undertaking responsible for the repackaging?

| 3. | Is it only the risk that the consumer or end-user might be misled into assuming that the trade mark proprietor is responsible for the repackaging which is of significance in answering Question (i), or are other considerations regarding the trade mark proprietor also relevant, for example (a) that the entity which in fact undertakes the purchasing and repackaging and reaffixes the trade mark proprietor’s trade mark on the product’s packaging thereby potentially infringes independently the trade mark proprietor’s trade mark rights, and that that may be due to factors for which the entity that physically carried out the repackaging is responsible that (b) the repackaging affects the original condition of the product or that (c) the presentation of the repackaged product is of such a kind that it may be assumed to harm the trade mark or its proprietor’s reputation? |
| --- | --- |

3.

Is it only the risk that the consumer or end-user might be misled into assuming that the trade mark proprietor is responsible for the repackaging which is of significance in answering Question (i), or are other considerations regarding the trade mark proprietor also relevant, for example (a) that the entity which in fact undertakes the purchasing and repackaging and reaffixes the trade mark proprietor’s trade mark on the product’s packaging thereby potentially infringes independently the trade mark proprietor’s trade mark rights, and that that may be due to factors for which the entity that physically carried out the repackaging is responsible that (b) the repackaging affects the original condition of the product or that (c) the presentation of the repackaged product is of such a kind that it may be assumed to harm the trade mark or its proprietor’s reputation?

| 4. | If, in answering Question (iii), the Court finds that it is also relevant to take account of the fact that the repackaging company potentially infringes independently the trade mark rights of the trade mark proprietor, the Court is asked to indicate whether it is of significance to this answer that the marketing company and repackaging company of the parallel importer are jointly and severally liable under national law for the infringement of the trade mark proprietor’s trade mark rights? |
| --- | --- |

4.

If, in answering Question (iii), the Court finds that it is also relevant to take account of the fact that the repackaging company potentially infringes independently the trade mark rights of the trade mark proprietor, the Court is asked to indicate whether it is of significance to this answer that the marketing company and repackaging company of the parallel importer are jointly and severally liable under national law for the infringement of the trade mark proprietor’s trade mark rights?

| 5. | Is it of significance in answering Question (i) that the parallel importer which holds the marketing authorisation and has indicated itself as being responsible for repackaging, at the time of the notification of the trade mark proprietor prior to the intended sale of the repackaged medicinal product, belongs to the same group as the company which undertook the repackaging (sister company)? |
| --- | --- |

5.

Is it of significance in answering Question (i) that the parallel importer which holds the marketing authorisation and has indicated itself as being responsible for repackaging, at the time of the notification of the trade mark proprietor prior to the intended sale of the repackaged medicinal product, belongs to the same group as the company which undertook the repackaging (sister company)?

| 6. | Is it of significance in answering Question (i) that the repackaging company is indicated as the manufacturer in the package leaflet? |
| --- | --- |

6.

Is it of significance in answering Question (i) that the repackaging company is indicated as the manufacturer in the package leaflet?

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(1)  OJ L 40, 11.2.1989.

(2)  [1978] ECR 1139.

(3)  [1981] ECR 2913.

(4)  [1996] ECR I-3457.

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/24 |
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Action brought on 30 April 2010 — European Commission v Portuguese Republic

(Case C-208/10)

(2010/C 179/39)

Language of the case: Portuguese

Parties

Applicant: European Commission (represented by: A. Nijenhuis and M. Teles Romão, Agents)

Defendant: Portuguese Republic

Form of order sought

| — | Declare that, by failing to bring into force 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 and, in any event, by failing to communicate them to the Commission, the Portuguese Republic has failed to fulfil its obligations under Directive 2007/44/EC. |
| --- | --- |

—

Declare that, by failing to bring into force 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 and, in any event, by failing to communicate them to the Commission, the Portuguese Republic has failed to fulfil its obligations under Directive 2007/44/EC.

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

—

Order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

The period prescribed for transposing the directive expired on 20 March 2009.

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

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/25 |
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3.7.2010

EN

Official Journal of the European Union

C 179/25

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Reference for a preliminary ruling from the Højesteret (Denmark) lodged on 3 May 2010 — Post Danmark A/S v Konkurrencerådet

(Case C-209/10)

(2010/C 179/40)

Language of the case: Danish

Referring court

Højesteret

Parties to the main proceedings

Applicant: Post Danmark A/S

Defendant: Konkurrencerådet

Intervener: Forbruger-Kontakt a-s

Questions referred

| 1. | Is Article 82 EC to be interpreted as meaning that selective price reductions on the part of a dominant postal undertaking that has a universal service obligation to a level lower than the postal undertaking’s average overall costs, but higher than the provider’s average incremental costs, can constitute exclusionary abuse, if it is established that the prices are not set at that level for the purpose of eliminating a competitor? |
| --- | --- |

1.

Is Article 82 EC to be interpreted as meaning that selective price reductions on the part of a dominant postal undertaking that has a universal service obligation to a level lower than the postal undertaking’s average overall costs, but higher than the provider’s average incremental costs, can constitute exclusionary abuse, if it is established that the prices are not set at that level for the purpose of eliminating a competitor?

| 2. | If the answer to question 1 is that a selective price reduction in the circumstances outlined in question 1 can, in certain circumstances, constitute exclusionary abuse, what are the circumstances that the national court should take into account? |
| --- | --- |

2.

If the answer to question 1 is that a selective price reduction in the circumstances outlined in question 1 can, in certain circumstances, constitute exclusionary abuse, what are the circumstances that the national court should take into account?

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/25 |
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3.7.2010

EN

Official Journal of the European Union

C 179/25

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Reference for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 3 May 2010 — Doris Povse v Mauro Alpago

(Case C-211/10)

(2010/C 179/41)

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Appellant: Doris Povse

Respondent: Mauro Alpago

Questions referred

| 1. | Is a ‘judgment on custody that does not entail the return of the child’ within the meaning of Article 10(b)(iv) of Regulation (EC) No 2201/2003 (‘Brussels II bis’) (1) also to be understood as meaning a provisional settlement by which ‘parental responsibility’, in particular the right to determine the place of residence, is awarded to the abducting parent pending the final judgment on custody? |
| --- | --- |

1.

Is a ‘judgment on custody that does not entail the return of the child’ within the meaning of Article 10(b)(iv) of Regulation (EC) No 2201/2003 (‘Brussels II bis’) (1) also to be understood as meaning a provisional settlement by which ‘parental responsibility’, in particular the right to determine the place of residence, is awarded to the abducting parent pending the final judgment on custody?

| 2. | Does a return order fall within the scope of Article 11(8) of Brussels II bis only where the court orders return on the basis of a judgment on custody delivered by that court? |
| --- | --- |

2.

Does a return order fall within the scope of Article 11(8) of Brussels II bis only where the court orders return on the basis of a judgment on custody delivered by that court?

| 3. | If Question 1 or 2 is answered in the affirmative:






  3.1. | Can the lack of jurisdiction of the court of origin (Question 1) or the inapplicability of Article 11(8) of Brussels II bis (Question 2) in the second State be relied on as against the enforcement of a judgment in respect of which the court of origin has issued a certificate in accordance with Article 42(2) of Brussels II bis? |
| --- | --- | --- |

3.

If Question 1 or 2 is answered in the affirmative:

3.1.

Can the lack of jurisdiction of the court of origin (Question 1) or the inapplicability of Article 11(8) of Brussels II bis (Question 2) in the second State be relied on as against the enforcement of a judgment in respect of which the court of origin has issued a certificate in accordance with Article 42(2) of Brussels II bis?

| 3.2. | Or, in such circumstances, must the defendant apply for that certificate to be revoked in the Member State of origin, on the assumption that enforcement in the second State may be stayed pending the decision of the State of origin? |
| --- | --- |

3.2.

Or, in such circumstances, must the defendant apply for that certificate to be revoked in the Member State of origin, on the assumption that enforcement in the second State may be stayed pending the decision of the State of origin?

| 4. | If Questions 1 and 2 or Question 3.1. are/is answered in the negative:
  Does a judgment delivered by a court in the second State and regarded as enforceable under the law of that State, by which provisional custody was awarded to the abducting parent preclude an earlier return order made by the first State under Article 11(8) of Brussels II bis, in accordance with Article 47(2) of Brussels II bis, even if it did not prevent the enforcement of a return order made by the second State under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (the ‘Hague Convention’)? |
| --- | --- |

4.

If Questions 1 and 2 or Question 3.1. are/is answered in the negative:

Does a judgment delivered by a court in the second State and regarded as enforceable under the law of that State, by which provisional custody was awarded to the abducting parent preclude an earlier return order made by the first State under Article 11(8) of Brussels II bis, in accordance with Article 47(2) of Brussels II bis, even if it did not prevent the enforcement of a return order made by the second State under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (the ‘Hague Convention’)?

| 5. | If Question 4 is also answered in the negative:






  5.1. | Can the second State refuse to enforce a judgment in respect of which the court of origin has issued a certificate under Article 42(2) of Brussels II bis if, since its delivery, the circumstances have changed in such a way that enforcement would now constitute a serious risk to the best interests of the child? |
| --- | --- | --- |

5.

If Question 4 is also answered in the negative:

5.1.

Can the second State refuse to enforce a judgment in respect of which the court of origin has issued a certificate under Article 42(2) of Brussels II bis if, since its delivery, the circumstances have changed in such a way that enforcement would now constitute a serious risk to the best interests of the child?

| 5.2. | Or must the defendant invoke that change of circumstances in the State of origin, on the assumption that enforcement in the second State may be stayed pending the decision of the State of origin? |
| --- | --- |

5.2.

Or must the defendant invoke that change of circumstances in the State of origin, on the assumption that enforcement in the second State may be stayed pending the decision of the State of origin?

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(1)  Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000; OJ 2003 L 338, p. 1.

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/26 |
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3.7.2010

EN

Official Journal of the European Union

C 179/26

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Appeal brought on 6 May 2010 by Lufthansa AirPlus Servicekarten GmbH against the judgment of the General Court (Sixth Chamber) delivered on 3 March 2010 in Case T-321/07: Lufthansa AirPlus Servicekarten GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-216/10 P)

(2010/C 179/42)

Language of the case: English

Parties

Appellant: Lufthansa AirPlus Servicekarten GmbH (represented by: R. Kunze, G. Würtenberger, Rechtsanwälte)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs); Applus Servicios Tecnológicos, SL

Form of order sought

The appellant claims that the Court should:

| — | set aside the judgment of the General Court of 3 March 2010 in Case T-321/07 Lufthansa AirPlus Servicekarten GmbH v. OHIM — Applus Servicios Tecnológicos, SL (The Judgement under Appeal), by which that court dismissed the action brought against the decision of the Second Board of Appeal of the Office for Harmonization in the Internal Market (Trademarks & Designs) (OHIM) of 7 June 2007 upholding the decision of the Opposition Division, by which the opposition directed against Community trademark application 002 933 356 was rejected; |
| --- | --- |

—

set aside the judgment of the General Court of 3 March 2010 in Case T-321/07 Lufthansa AirPlus Servicekarten GmbH v. OHIM — Applus Servicios Tecnológicos, SL (The Judgement under Appeal), by which that court dismissed the action brought against the decision of the Second Board of Appeal of the Office for Harmonization in the Internal Market (Trademarks & Designs) (OHIM) of 7 June 2007 upholding the decision of the Opposition Division, by which the opposition directed against Community trademark application 002 933 356 was rejected;

| — | following the conclusion of the written proceedings, schedule an oral hearing before the Court of Justice; |
| --- | --- |

—

following the conclusion of the written proceedings, schedule an oral hearing before the Court of Justice;

| — | order the Defendant to pay the costs of the proceedings. |
| --- | --- |

—

order the Defendant to pay the costs of the proceedings.

Pleas in law and main arguments

The appellant submits that the judgment of the General Court should be set aside on the following grounds:

| — | the General Court incorrectly upheld the Board of Appeal's assessment pertaining to the criteria of likelihood of confusion pursuant to article 8(1)(b) of the Community Trademark Regulation (1) (CTMR); |
| --- | --- |

—

the General Court incorrectly upheld the Board of Appeal's assessment pertaining to the criteria of likelihood of confusion pursuant to article 8(1)(b) of the Community Trademark Regulation (1) (CTMR);

| — | the General Court was incorrect in not dealing with the appellant's opposition based upon article 8(5) CTMR; |
| --- | --- |

—

the General Court was incorrect in not dealing with the appellant's opposition based upon article 8(5) CTMR;

| — | the General Court infringed art 75 CTMR when it held that the Board of Appeal was entitled not to conduct a full examination of the appellant's remaining arguments, in particular those pertaining to the distinctiveness of the appellant's prior trademark registration, ‘for reasons of economy of procedure’; |
| --- | --- |

—

the General Court infringed art 75 CTMR when it held that the Board of Appeal was entitled not to conduct a full examination of the appellant's remaining arguments, in particular those pertaining to the distinctiveness of the appellant's prior trademark registration, ‘for reasons of economy of procedure’;

| — | the judgment under appeal breaches article 76 CTMR; |
| --- | --- |

—

the judgment under appeal breaches article 76 CTMR;

| — | the General Court was wrong when it accepted that the fact that OHIM did not notify the appellant of the change in the owner of the Community Trademark applications, thus depriving it of the opportunity to comment on the change of party, did not give rise to a serious breach of the appellant's right to a fair hearing; |
| --- | --- |

—

the General Court was wrong when it accepted that the fact that OHIM did not notify the appellant of the change in the owner of the Community Trademark applications, thus depriving it of the opportunity to comment on the change of party, did not give rise to a serious breach of the appellant's right to a fair hearing;

| — | the General Court issued an Order for costs which was not in compliance with the pertinent provisions of European Union law. |
| --- | --- |

—

the General Court issued an Order for costs which was not in compliance with the pertinent provisions of European Union law.

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(1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark

OJ L 11, p. 1

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/27 |
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3.7.2010

EN

Official Journal of the European Union

C 179/27

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Action brought on 10 May 2010 — European Commission v Republic of Estonia

(Case C-231/10)

(2010/C 179/43)

Language of the case: Estonian

Parties

Applicant: European Commission (represented by S. Pardo Quintillán and E. Randvere, acting as Agents)

Defendant: Republic of Estonia

Form of order sought

| — | declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to transpose Directive 2006/118/EC of the European Parliament and of the Council of 12 December 2006 on the protection of groundwater against pollution and deterioration (1) and/or by failing to inform the Commission thereof, the Republic of Estonia has failed to fulfil its obligations under the directive; |
| --- | --- |

—

declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to transpose Directive 2006/118/EC of the European Parliament and of the Council of 12 December 2006 on the protection of groundwater against pollution and deterioration (1) and/or by failing to inform the Commission thereof, the Republic of Estonia has failed to fulfil its obligations under the directive;

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

—

order the Republic of Estonia to pay the costs.

Pleas in law and main arguments

The period prescribed for transposing the directive into national law expired on 16 January 2009.

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(1)  OJ 2006 L 372, p. 19.

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/27 |
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3.7.2010

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Official Journal of the European Union

C 179/27

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Order of the President of the Court of 25 March 2010 — European Commission v Kingdom of Belgium

(Case C-315/09) (1)

(2010/C 179/44)

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 256, 24.10.2009.

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/27 |
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3.7.2010

EN

Official Journal of the European Union

C 179/27

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Order of the President of the Third Chamber of the Court of 3 April 2010 (reference for a preliminary ruling from the Korkein oikeus (Finland)) — Virallinen syyttäjä v Malik Gataev, Khadizhat Gataeva

(Case C-105/10 PPU) (1)

(2010/C 179/45)

Language of the case: Finnish

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

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(1)  OJ C 100, 17.4.2010.

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General Court

| 3.7.2010 | EN | Official Journal of the European Union | C 179/28 |
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3.7.2010

EN

Official Journal of the European Union

C 179/28

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Judgment of the General Court of 21 May 2010 — France v Commission

(Case T-425/04, T-444/04, T-450/04 and T-456/04) (1)

(State aid - Financial measures in favour of France Télécom - Draft shareholder’s advance - Public declarations by a member of the French Government - Decision declaring the aid incompatible with the common market and not ordering its recovery - Action for annulment - Interest in bringing proceedings - Admissibility - Meaning of State Aid - Advantage - State resources - Duty to state reasons)

(2010/C 179/46)

Language of the case: French

Parties

Applicants: (in Case T-425/04) French Republic (represented by: initially, G. de Bergues, R. Abraham and S. Ramet, subsequently, E. Belliard, M. de Bergues and S. Ramet and lastly, E. Belliard, M. de Bergues, A.-L. Vendrolini and J.-C. Niollet, Agents); (in Case T-444/04) France Télécom SA (Paris, France) (represented by: initially, A. Gosset-Grainville and S. Hautbourg, subsequently, S. Hautbourg, lawyers); (in Case T-450/04) Bouygues SA (Paris); Bouygues Télécom SA (Boulogne-Billancourt, France) (represented by: J. Vogel, F. Sureau, D. Théophile and J. Blouet Gaillard, lawyers); and (in Case T-456/04) Association française des opérateurs de réseaux et services de telecommunications (AFORS Télécom) (Paris) (represented by O. Fréget, F. Herrenschmidt, M. Struys and L. Eskenazi, lawyers)

Defendant: European Commission (represented by: C. Giolito and J. Buendía Sierra and subsequently C. Giolito and D. Grespan, Agents)

Interveners in support of the defendant: (in Cases T-450/04 and T-456/04) French Republic (represented by: (in Case T-450/04) E. Belliard, M. de Bergues, A.-L. Vendrolini and J.-C Niollet, and (in Case T-456/04) M. de Bergues, Agents); (in Case T-444/04) Bouygues SA (Paris); Bouygues Télécom SA (Boulogne-Billancourt) (represented by: J. Vogel, F. Sureau, D. Théophile and J. Blouet Gaillard, lawyers); and (in Cases T-450/04 and T-456/04) France Télécom SA (Paris) (represented by: initially, A. Gosset-Grainville and S. Hautbourg, subsequently, by S. Hautbourg, lawyers)

Re:

Actions for annulment of Commission Decision 2006/621/EC of 2 August 2004 on the State Aid implemented by France for France Télécom (OJ 2006 L 257, p. 11).

Operative part of the judgment

The Court:

| 1. | Annuls Article 1 of Commission Decision 2006/621/EC of 2 August 2004 on the State Aid implemented by France for France Télécom; |
| --- | --- |

1.

Annuls Article 1 of Commission Decision 2006/621/EC of 2 August 2004 on the State Aid implemented by France for France Télécom;

| 2. | Declares that it is no longer necessary to adjudicate on the claims for annulment of Article 2 of Decision 2006/621; |
| --- | --- |

2.

Declares that it is no longer necessary to adjudicate on the claims for annulment of Article 2 of Decision 2006/621;

| 3. | In Cases T-425/04 and T-444/04, orders the European Commission to bear its own costs and to pay those incurred by the French Republic and by France Télécom SA; |
| --- | --- |

3.

In Cases T-425/04 and T-444/04, orders the European Commission to bear its own costs and to pay those incurred by the French Republic and by France Télécom SA;

| 4. | In Cases T-425/04 and T-444/04, orders Bouygues SA and Bouygues Télécom SA to bear their own costs; |
| --- | --- |

4.

In Cases T-425/04 and T-444/04, orders Bouygues SA and Bouygues Télécom SA to bear their own costs;

| 5. | In Cases T-450/04, orders Bouygues SA and Bouygues Télécom SA to bear their own costs and to pay half of the costs incurred by the Commission; |
| --- | --- |

5.

In Cases T-450/04, orders Bouygues SA and Bouygues Télécom SA to bear their own costs and to pay half of the costs incurred by the Commission;

| 6. | In Case T-450/04, orders the Commission to bear half of its own costs; |
| --- | --- |

6.

In Case T-450/04, orders the Commission to bear half of its own costs;

| 7. | In Case T-456/04, orders the Association française des opérateurs de réseaux et services de télécommunications (AFORS Télécom) and the Commission to bear their own costs; |
| --- | --- |

7.

In Case T-456/04, orders the Association française des opérateurs de réseaux et services de télécommunications (AFORS Télécom) and the Commission to bear their own costs;

| 8. | In Cases T-450/04 and T-456/04, orders French Republic and France Télécom to bear their own costs. |
| --- | --- |

8.

In Cases T-450/04 and T-456/04, orders French Republic and France Télécom to bear their own costs.

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(1)  OJ C 19, 22.1.2005.

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/29 |
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3.7.2010

EN

Official Journal of the European Union

C 179/29

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Judgment of the General Court of 19 May 2010 — Wieland-Werke and Others v Commission

(Case T-11/05) (1)

(Competition - Agreements, decisions and concerted practices - Copper plumbing tube industry - Decision finding an infringement of Article 81 EC - Continuous and multiform infringement - Ne bis in idem principle - Fines - Actual impact on the market - Size of the relevant market - Duration of the infringement - Attenuating circumstances)

(2010/C 179/47)

Language of the case: German

Parties

Applicants: Wieland-Werke AG (Ulm, Germany); Buntmetall Amstetten GmbH (Amstetten, Austria); and Austria Buntmetall AG (Enzesfeld, Austria); (represented by: R. Bechtold and U. Soltész, lawyers)

Defendant: European Commission (represented by: F. Castillo de la Torre and É. Gippini Fournier, Agents, and by G. Eickstädt, lawyer)

Intervener in support of the defendant: Council of the European Union (represented by: J. Huber and G. Kimberley, Agents)

Re:

Application, first, for annulment of Commission Decision C(2004) 2826 of 3 September 2004 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E-1/38.069 — Copper plumbing tubes); second, in the alternative, for reduction of the fines imposed on the applicants by that decision; and third, by way of counterclaim by the Commission, for those fines to be increased.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Dismisses the European Commission’s counterclaim; |
| --- | --- |

2.

Dismisses the European Commission’s counterclaim;

| 3. | Orders Wieland-Werke AG, Buntmetall Amstetten GmbH and Austria Buntmetall AG to bear their own costs and to pay 90 % of the costs incurred by the Commission; |
| --- | --- |

3.

Orders Wieland-Werke AG, Buntmetall Amstetten GmbH and Austria Buntmetall AG to bear their own costs and to pay 90 % of the costs incurred by the Commission;

| 4. | Orders the Commission to bear 10 % of its own costs; |
| --- | --- |

4.

Orders the Commission to bear 10 % of its own costs;

| 5. | Orders the Council of the European Union to bear its own costs. |
| --- | --- |

5.

Orders the Council of the European Union to bear its own costs.

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(1)  OJ C 93, 16.4.2005.

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/29 |
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Judgment of the General Court of 19 May 2010 — IMI and Others v Commission

(Case T-18/05) (1)

(Competition - Agreements, decisions and concerted practices - Copper plumbing tubes sector - Decision finding an infringement of Article 81 EC - Continuous and multiform infringement - Interruption of participation - Fines - Limited participation in the cartel)

(2010/C 179/48)

Language of the case: English

Parties

Applicants: IMI plc (Birmingham, Warwickshire, United Kingdom); IMI Kynoch Ltd (Birmingham); and Yorkshire Copper Tube (Liverpool, Merseyside, United Kingdom) (represented by: M. Struys and D. Arts, lawyers)

Defendant: European Commission (represented by: É. Gippini Fournier and S. Noë, Agents)

Re:

Application for (1) annulment of Article 1(h) to (j) and Article 2(f) of Commission Decision C(2004) 2826 of 3 September 2004 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E-1/38.069 — Copper plumbing tubes); and (2) in the alternative, reduction in the amount of the fine imposed on the applicants by that decision.

Operative part of the judgment

The Court:

| 1. | Annuls Article 1(h) to (j) of Commission Decision C(2004) 2826 of 3 September 2004 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E-1/38.069 — Copper plumbing tubes) in so far as it relates to the period from 1 December 1994 to 11 April 1996; |
| --- | --- |

1.

Annuls Article 1(h) to (j) of Commission Decision C(2004) 2826 of 3 September 2004 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E-1/38.069 — Copper plumbing tubes) in so far as it relates to the period from 1 December 1994 to 11 April 1996;

| 2. | Determines the amount of the fine imposed jointly and severally on IMI plc, IMI Kynoch Ltd and Yorkshire Copper Tube in Article 2(f) of Decision C(2004) 2826 at EUR 38.556 million; |
| --- | --- |

2.

Determines the amount of the fine imposed jointly and severally on IMI plc, IMI Kynoch Ltd and Yorkshire Copper Tube in Article 2(f) of Decision C(2004) 2826 at EUR 38.556 million;

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

3.

Dismisses the action as to the remainder;

| 4. | Orders the European Commission to pay its own costs and 40 % of the costs incurred by IMI, IMI Kynoch and Yorkshire Copper Tube; |
| --- | --- |

4.

Orders the European Commission to pay its own costs and 40 % of the costs incurred by IMI, IMI Kynoch and Yorkshire Copper Tube;

| 5. | Orders IMI, IMI Kynoch and Yorkshire Copper Tube to bear 60 % of their own costs. |
| --- | --- |

5.

Orders IMI, IMI Kynoch and Yorkshire Copper Tube to bear 60 % of their own costs.

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(1)  OJ C 69, 19.3.2005.

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/30 |
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3.7.2010

EN

Official Journal of the European Union

C 179/30

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Judgment of the General Court of 19 May 2010 — Boliden and Others v Commission

(Case T-19/05) (1)

(Competition - Agreements, decisions and concerted practices - Copper plumbing tube industry - Decision finding an infringement of Article 81 EC - Continuous and multiform infringement - Fines - Limitation period - Cooperation)

(2010/C 179/49)

Language of the case: English

Parties

Applicants: Boliden AB (Stockholm, Sweden); Outokumpu Copper Fabrication AB, formerly Boliden Fabrication AB (Västerås, Sweden); Outokumpu Copper BCZ SA, formerly Boliden Cuivre & Zinc SA (Liège, Belgium) (represented: initially by C. Wetter and O. Rislund and subsequently by C. Wetter and M. Johansson, lawyers)

Defendant: European Commission (represented by: É. Gippini Fournier and S. Noë, Agents)

Re:

Application (i) for annulment of Article 1(a) to (c) of Commission Decision C(2004) 2826 of 3 September 2004 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E-1/38.069 — Copper plumbing tubes) in so far as it was thereby found that the applicants participated in an infringement between 1 July 1995 and 27 August 1998 and between 10 December 1998 and 7 October 1999; (ii) for reduction of the fine imposed on the applicants by that decision; and (iii) by way of counterclaim by the Commission, for the amount of that fine to be increased.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Dismisses the European Commission’s counterclaim; |
| --- | --- |

2.

Dismisses the European Commission’s counterclaim;

| 3. | Orders Boliden AB, Outokumpu Copper Fabrication AB and Outokumpu Copper BCZ SA to bear their own costs and to pay 90 % of the costs incurred by the Commission; |
| --- | --- |

3.

Orders Boliden AB, Outokumpu Copper Fabrication AB and Outokumpu Copper BCZ SA to bear their own costs and to pay 90 % of the costs incurred by the Commission;

| 4. | Orders the Commission to bear 10 % of its own costs. |
| --- | --- |

4.

Orders the Commission to bear 10 % of its own costs.

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(1)  OJ C 82, 2.4.2005.

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/30 |
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3.7.2010

EN

Official Journal of the European Union

C 179/30

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Judgment of the General Court of 19 May 2010 — Outokumpu and Luvata v Commission

(Case T-20/05) (1)

(Competition - Agreements, decisions and concerted practices - Copper plumbing tube industry - Decision finding an infringement of Article 81 EC - Fines - Size of the relevant market - Aggravating circumstance - Repeat infringement)

(2010/C 179/50)

Language of the case: English

Parties

Applicants: Outokumpu Oyj (Espoo, Finland); and Luvata Oy, formerly Outokumpu Copper Products Oy (Espoo) (represented by: J. Ratliff, Barrister, F. Distefano and J. Luostarinen, lawyers)

Defendant: European Commission (represented by: É. Gippini Fournier and S. Noë, Agents)

Re:

Application for cancellation or reduction of the fine imposed on the applicants under Article 2(j) of Commission Decision C(2004) 2826 of 3 September 2004 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E-1/38.069 — Copper plumbing tubes).

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Outokumpu Oyj and Luvata Oy to pay the costs. |
| --- | --- |

2.

Orders Outokumpu Oyj and Luvata Oy to pay the costs.

---

(1)  OJ C 82, 2.4.2005.

---

| 3.7.2010 | EN | Official Journal of the European Union | C 179/31 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/31

---

Judgment of the General Court of 19 May 2010 — Chalkor v Commission

(Case T-21/05) (1)

(Competition - Agreements, decisions and concerted practices - Copper plumbing tube industry - Decision finding an infringement of Article 81 EC - Continuous and multiform infringement - Fines - Limited participation in the cartel - Geographic extent of the relevant market - Duration of the infringement - Cooperation)

(2010/C 179/51)

Language of the case: English

Parties

Applicant: Chalkor AE Epexergasias Metallon (Athens, Greece) (represented by: I. Forrester QC, A. Schulz and A. Komninos, lawyers)

Defendant: European Commission (represented by: P. Oliver and S. Noë, Agents)

Re:

Application for cancellation or reduction of the fine imposed on the applicant by Commission Decision C(2004) 2826 of 3 September 2004 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E-1/38.069 — Copper plumbing tubes).

Operative part of the judgment

The Court:

| 1. | Orders that the fine imposed on Chalkor AE Epexergasias Metallon under Article 2(d) of Commission Decision C(2004) 2826 of 3 September 2004 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E-1/38.069 — Copper plumbing tubes) shall be set at EUR 8,2467 million. |
| --- | --- |

1.

Orders that the fine imposed on Chalkor AE Epexergasias Metallon under Article 2(d) of Commission Decision C(2004) 2826 of 3 September 2004 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E-1/38.069 — Copper plumbing tubes) shall be set at EUR 8,2467 million.

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

2.

Dismisses the action as to the remainder;

| 3. | Orders Chalkor Epexergasias Metallon and the European Commission to bear their own costs. |
| --- | --- |

3.

Orders Chalkor Epexergasias Metallon and the European Commission to bear their own costs.

---

(1)  OJ C 82, 2.4.2005.

---

| 3.7.2010 | EN | Official Journal of the European Union | C 179/31 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/31

---

Judgment of the General Court of 19 May 2010 — KME Germany and Others v Commission

(Case T-25/05) (1)

(Competition - Agreements, decisions and concerted practices - Copper plumbing tube industry - Decision finding an infringement of Article 81 EC - Fines - Actual impact on the market - Size of the relevant market - Duration of the infringement - Ability to pay - Cooperation)

(2010/C 179/52)

Language of the case: English

Parties

Applicants: KME Germany AG, formerly KM Europa Metal AG (Osnabrück, Germany); KME France SAS, formerly Tréfimétaux SA (Courbevoie, France); and KME Italy SpA, formerly Europa Metalli SpA (Florence, Italy) (represented by: M. Siragusa, A. Winckler, G.C. Rizza, T. Graf, M. Piergiovanni, lawyers, and R. Elderkin, Barrister)

Defendant: European Commission (represented by: É. Gippini Fournier, S. Noë and C. Thomas, Agents)

Re:

Application, first, for reduction of the fines imposed on the applicants under Article 2(g), (h) and (i) of Commission Decision C(2004) 2826 of 3 September 2004 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E-1/38.069 — Copper plumbing tubes) and, second, by way of counterclaim by the Commission, for those fines to be increased.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Dismisses the European Commission’s counterclaim; |
| --- | --- |

2.

Dismisses the European Commission’s counterclaim;

| 3. | Orders KME Germany AG, KME France SAS and KME Italy Spa to bear their own costs and to pay 50 % of the costs incurred by the Commission; |
| --- | --- |

3.

Orders KME Germany AG, KME France SAS and KME Italy Spa to bear their own costs and to pay 50 % of the costs incurred by the Commission;

| 4. | Orders the Commission to bear 50 % of its own costs. |
| --- | --- |

4.

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

---

(1)  OJ C 82, 2.4.2005.

---

| 3.7.2010 | EN | Official Journal of the European Union | C 179/32 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/32

---

Judgment of the General Court of 12 May 2010 — EMC Development v Commission

(Case T-432/05) (1)

(Competition - Agreements, decisions and concerted practices - European cement market - Decision rejecting a complaint - Harmonised standard for cement - Binding nature - Guidelines on the applicability of Article 81 EC to horizontal cooperation agreements)

(2010/C 179/53)

Language of the case: English

Parties

Applicant: EMC Development AB (Luleå, Sweden) (represented by: M. Elvinger and W. -N. Schelp, lawyers)

Defendant: European Commission (represented by: initially É. Gippini Fournier and B. Doherty, and subsequently by É. Gippini Fournier and J. Bourke, acting as Agents)

Re:

Application for annulment of Commission Decision SG-Greffe (2005) D/205249 of 28 September 2005 rejecting the complaint brought by the applicant against European Portland cement producers, the European Cement Association (Cembureau) and the European Committee for Standardisation (CEN) in relation to the European cement market.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders EMC Development AB to bear its own costs and to pay the costs incurred by the European Commission. |
| --- | --- |

2.

Orders EMC Development AB to bear its own costs and to pay the costs incurred by the European Commission.

---

(1)  OJ C 36, 11.2.2006.

---

| 3.7.2010 | EN | Official Journal of the European Union | C 179/32 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/32

---

Judgment of the General Court of 20 May 2010 — Germany v Commission

(Case T-258/06) (1)

(Provisions applicable to public procurement - Contract awards not subject, or not subject in full, to the Public Procurement Directives - Interpretative communication of the Commission - Actionable measure - Measure intended to produce legal effects)

(2010/C 179/54)

Language of the case: German

Parties

Applicant: Federal Republic of Germany (represented by: M. Lumma and C. Schulze-Bahr, Agents)

Defendant: European Commission (represented by: X. Lewis and B. Schima, Agents)

Interveners in support of the applicant: French Republic (represented initially by: G. de Bergues, subsequently by G. de Bergues and J.-C. Gracia, and finally by G. de Bergues and J.-S. Pilczer, Agents); Republic of Austria (represented by: M. Fruhmann, C. Pesendorfer and C. Mayr, Agents); Republic of Poland (represented initially by E. Ośniecka-Tamecka, subsequently by T. Nowakowski, subsequently by M. Dowgielewicz, subsequently by M. Dowgielewicz, K. Rokicka and K. Zawisza, and finally by M. Szpunar, Agents); Kingdom of the Netherlands (represented initially by: H. Sevenster, subsequently by C. Wissels and M. de Grave, and finally by C. Wissels, M. de Grave and Y. de Vries, Agents); European Parliament (represented by U. Rösslein and J. Rodrigues, Agents); Hellenic Republic (represented by: D. Tsagkaraki and M. Tassopoulou, Agents); United Kingdom of Great Britain and Northern Ireland (represented initially by: Z. Bryanston-Cross, and subsequently by L. Seeboruth, Agents)

Re:

Action for the annulment of the Commission Interpretative Communication on the Community law applicable to contract awards not or not fully subject to the provisions of the Public Procurement Directives (OJ 2006 C 179, p. 2).

Operative part of the judgment

The Court:

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

1.

Dismisses the action as inadmissible;

| 2. | Orders the Federal Republic of Germany to bear its own costs and to pay those incurred by the European Commission; |
| --- | --- |

2.

Orders the Federal Republic of Germany to bear its own costs and to pay those incurred by the European Commission;

| 3. | Orders the French Republic, the Republic of Austria, the Republic of Poland, the Kingdom of the Netherlands, the European Parliament, the Hellenic Republic and the United Kingdom of Great Britain and Northern Ireland to bear their own costs. |
| --- | --- |

3.

Orders the French Republic, the Republic of Austria, the Republic of Poland, the Kingdom of the Netherlands, the European Parliament, the Hellenic Republic and the United Kingdom of Great Britain and Northern Ireland to bear their own costs.

---

(1)  OJ C 294, 2.12.2006.

---

| 3.7.2010 | EN | Official Journal of the European Union | C 179/33 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/33

---

Judgment of the General Court of 11 May 2010 — PC-Ware Information Technologies v Commission

(Case T-121/08) (1)

(Public supply contracts - Community tendering procedure - Acquisition of software products and licences - Rejection of a tender - Abnormally low tender - Obligation to state reasons)

(2010/C 179/55)

Language of the case: Dutch

Parties

Applicant: PC-Ware Information Technologies BV (Amsterdam, Netherlands) (represented by: L. Devillé and B. Maerevoet, lawyers)

Defendant: European Commission (represented by: E. Manhaeve, Agent, and P. Wytinck, lawyer)

Re:

APPLICATION, principally, for annulment of the Commission’s decision of 11 January 2008 rejecting the tender submitted by the applicant in public procurement procedure DIGIT/R2/PO/2007/022 and, in the alternative, for compensation for the loss allegedly suffered by the applicant as a result of the Commission’s conduct.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders PC-Ware Information Technologies BV to pay the costs. |
| --- | --- |

2.

Orders PC-Ware Information Technologies BV to pay the costs.

---

(1)  OJ C 116, 9.5.2008.

---

| 3.7.2010 | EN | Official Journal of the European Union | C 179/33 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/33

---

Judgment of the General Court of 12 May 2010 — Beifa Group v OHIM — Schwan-Stabilo Schwanhaüßer (Instrument for writing)

(Case T-148/08) (1)

(Community design - Invalidity proceedings - Registered Community design representing an instrument for writing - Earlier national figurative mark - Ground for invalidity - Use in the Community design of an earlier sign the holder of which has the right to prohibit such use - Article 25(1)(e) of Regulation (EC) No 6/2002 - Request for proof of genuine use of the earlier mark made for the first time before the Board of Appeal)

(2010/C 179/56)

Language of the case: English

Parties

Applicant: Beifa Group Co. Ltd (Ningbo, Zhejiang, China) (represented by: R. Davis, Barrister, and N. Cordell, Solicitor)

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

Other party to the proceedings before the Board of Appeal of OHIM: Schwan-Stabilo Schwanhaüßer GmbH & Co. KG (Heroldsberg, Germany) (represented by: U. Blumenröder and H. Gauß, lawyers)

Re:

Action brought against the decision of the Third Board of Appeal of OHIM of 31 January 2008 (Case R 1352/2006-3) relating to invalidity proceedings between Schwan-Stabilo Schwanhaüßer GmbH & Co. KG and Ningo Beifa Group Co., Ltd in respect of a Community design.

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 31 January 2008 (Case R 1352/2006-3); |
| --- | --- |

1.

Annuls the decision of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 31 January 2008 (Case R 1352/2006-3);

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

2.

Dismisses the action as to the remainder;

| 3. | Orders OHIM to bear its own costs and to pay those incurred by Beifa Group Co. Ltd, and orders Schwan Stabilo Schwanhaüßer GmbH & Co. KG to bear its own costs. |
| --- | --- |

3.

Orders OHIM to bear its own costs and to pay those incurred by Beifa Group Co. Ltd, and orders Schwan Stabilo Schwanhaüßer GmbH & Co. KG to bear its own costs.

---

(1)  OJ C 142, 7.6.2008.

---

| 3.7.2010 | EN | Official Journal of the European Union | C 179/34 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/34

---

Order of the General Court of 19 May 2010 — Arbeitsgemeinschaft Golden Toast v OHIM (Golden Toast)

(Case T-163/08) (1)

(Community trade mark - Application for the Community word mark Golden Toast - Absolute ground for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 40/94 (now Article 7(1)(c) of Regulation No 207/2009))

(2010/C 179/57)

Language of the case: German

Parties

Applicant: Arbeitsgemeinschaft Golden Toast e.V. (Düsseldorf, Germany) (represented by: A. Späth and G. Hasselblatt, lawyers)

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

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 31 January 2008 (Case R 761/2007-1) relating to an application to register the word sign Golden Toast as a Community trade mark.

Operative part of the order

The Court

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

1.

Dismisses the action;

| 2. | Orders the Arbeitsgemeinschaft Golden Toast e.V. to pay the costs. |
| --- | --- |

2.

Orders the Arbeitsgemeinschaft Golden Toast e.V. to pay the costs.

---

(1)  OJ C 171, 5.7.2008.

---

| 3.7.2010 | EN | Official Journal of the European Union | C 179/34 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/34

---

Judgment of the General Court of 19 May 2010 — Tay Za v Council

(Case T-181/08) (1)

(Common foreign and security policy - Restrictive measures against Myanmar - Freezing of funds - Action for annulment - Joint legal basis of Articles 60 EC and 301 EC - Obligation to state the reasons on which a decision is based - Rights of the defence - Right to effective judicial review - Right to respect for property - Proportionality)

(2010/C 179/58)

Language of the case: English

Parties

Applicant: Pye Phyo Tay Za (Yangon, Myanmar) (represented by: D. Anderson QC, M. Lester, Barrister, and G. Martin, Solicitor)

Defendant: Council of the European Union (represented by: M. Bishop and E. Finnegan, Agents)

Interveners in support of the defendant: United Kingdom of Great Britain and Northern Ireland (represented initially by S. Behzadi-Spencer, acting as Agent, and subsequently by I. Rao, acting as Agent, and by D. Beard, Barrister); and European Commission (represented by: A. Bordes, P. Aalto and S. Boelaert, Agents)

Re:

Application for annulment of Council Regulation (EC) No 194/2008 of 25 February 2008 renewing and strengthening the restrictive measures in respect of Burma/Myanmar and repealing Regulation (EC) No 817/2006 (OJ 2008 L 66, p. 1), in so far as the applicant’s name appears on the list of persons, entities or bodies to which the regulation applies.

Operative part of the judgment

The Court:

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

1.

Dismisses the application.

| 2. | Orders Pye Phyo Tay Za to bear his own costs and to pay those incurred by the Council of the European Union. |
| --- | --- |

2.

Orders Pye Phyo Tay Za to bear his own costs and to pay those incurred by the Council of the European Union.

| 3. | Orders the United Kingdom of Great Britain and Northern Ireland and the European Commission to bear their own costs. |
| --- | --- |

3.

Orders the United Kingdom of Great Britain and Northern Ireland and the European Commission to bear their own costs.

---

(1)  OJ C 171, 5.7.2008.

---

| 3.7.2010 | EN | Official Journal of the European Union | C 179/35 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/35

---

Judgment of the General Court of 11 May 2010 — Abadía Retuerta v OHIM (CUVÉE PALOMAR)

(Case T-237/08) (1)

(Community trade mark - Application for the Community word mark CUVÉE PALOMAR - Absolute ground for refusal - Trade marks for wines containing geographical indications - TRIPS Agreement - Article 7(1)(j) of Regulation (EC) No 40/94 (now Article 7(1)(j) of Regulation (EC) No 207/2009))

(2010/C 179/59)

Language of the case: Spanish

Parties

Applicant: Abadía Retuerta, SA (Sardón de Duero, Spain) (represented by: X. Fàbrega Sabaté and M-l. Curell Aguilà, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (represented by: J. Crespo Carrillo, Agent)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 2 April 2008 (Case R 1185/2007-1), concerning registration of the word sign CUVÉE PALOMAR as a Community trade mark.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Abadía Retuerta, SA, to pay the costs. |
| --- | --- |

2.

Orders Abadía Retuerta, SA, to pay the costs.

---

(1)  OJ C 272, 25.10.2008.

---

| 3.7.2010 | EN | Official Journal of the European Union | C 179/35 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/35

---

Judgment of the General Court of 19 May 2010 — Ravensburger v OHIM — Educa Borras (EDUCA Memory game)

(Case T-243/08) (1)

(Community trade mark - Invalidity proceedings - Community figurative mark EDUCA Memory game - Earlier national and international word marks MEMORY - Relative ground for refusal - Lack of similarity between the signs - Articles 8(1)(b) and (5), 74 and 75 of Regulation (EC) No 40/94 (now Articles 8(1)(b) and (5), 76 and 77 of Regulation (EC) No 207/2009))

(2010/C 179/60)

Language of the case: English

Parties

Applicant: Ravensburger AG (Ravensburg, Germany) (represented by: G. Würtenberger and R. Kunze, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervening before the General Court: Educa Borras, SA (Barcelona, Spain) (represented by: I. Valdelomar Serrano, lawyer)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 8 April 2008 (Case R 597/2007-2) relating to invalidity proceedings between Ravensburger AG and Educa Borras, SA.

Operative part of the judgment

The Court:

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

1.

Dismisses the action.

| 2. | Orders Ravensburger AG to pay the costs. |
| --- | --- |

2.

Orders Ravensburger AG to pay the costs.

---

(1)  OJ C 209, 15.8.2008.

---

| 3.7.2010 | EN | Official Journal of the European Union | C 179/36 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/36

---

Judgment of the General Court of 19 May 2010 — Nexus Europe (Ireland) v Commission

(Case T-424/08) (1)

(Arbitration clause - Fifth framework programme for research, technological development and demonstration activities - Macro-Economic and Urban Trends in Europe’s Information Society (MUTEIS) Project - Loss caused by amending a contract in relation to the system for reimbursing costs incurred by a participant in the project)

(2010/C 179/61)

Language of the case: English

Parties

Applicant: Nexus Europe (Ireland) Ltd (Dublin, Ireland) (represented by: M. Noonan, Barrister)

Defendant: European Commission (represented by: R. Lyal and A. Sauka, Agents)

Re:

Application for compensation for the loss allegedly suffered by the applicant as a consequence of the Commission obtaining certain amendments to the contract MUTEIS IST-2000-30117, concluded on 31 October 2001.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Nexus Europe (Ireland) Ltd to pay the costs. |
| --- | --- |

2.

Orders Nexus Europe (Ireland) Ltd to pay the costs.

---

(1)  OJ C 6, 10.1.2009.

---

| 3.7.2010 | EN | Official Journal of the European Union | C 179/36 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/36

---

Judgment of the General Court of 19 May 2010 — Zeta Europe v OHIM (Superleggera)

(Case T-464/08) (1)

(Community trade mark - Application for the figurative Community trade mark Superleggera - Absolute ground for refusal - Lack of distinctive character - Article 7(1)(b) of Regulation (EC) No 40/94 (now Article 7(1)(b) of Regulation (EC) No 207/2009) - Examination of the facts of its own motion - Article 74 of Regulation No 40/94 (now Article 76 of Regulation No 207/2009) - Obligation to state reasons - Article 73 of Regulation No 40/94 (now Article 75 of Regulation No 207/2009))

(2010/C 179/62)

Language of the case: Italian

Parties

Applicant: Zeta Europe BV (Arnhem, Netherlands) (represented by: V. Bilardo, C. Bacchini and M. Mazzitelli, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (represented by: A. Sempio and O. Montalto, acting as Agents)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 17 July 2008 (Case R 666/2008-1), concerning an application for the registration of the figurative sign Superleggera as a Community trade mark

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Zeta Europe BV to pay the costs. |
| --- | --- |

2.

Orders Zeta Europe BV to pay the costs.

---

(1)  OJ C 313 of 6.12.2008

---

| 3.7.2010 | EN | Official Journal of the European Union | C 179/37 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/37

---

Judgment of the General Court of 12 May 2010 — Bui Van v Commission

(Case T-491/08 P) (1)

(Appeal - Staff case - Officials - Appointment - Classification in grade - Withdrawal of an administrative measure - Protection of legitimate expectations - Reasonable time - Right to be heard)

(2010/C 179/63)

Language of the case: French

Parties

Appellant: Philippe Bui Van (Hettange-Grande, France) (represented by: P. Nelissen Grade, lawyer)

Other party to the proceedings: European Commission (represented by: J. Currall and G. Berscheid, Agents)

Re:

Appeal against the judgment of the European Union Civil Service Tribunal (Second Chamber) of 11 September 2008 in Case F-51/07 Bui Van v Commission, not yet published in the ECR, for annulment of that judgment.

Operative part of the judgment

The Court:

| 1. | Annuls the judgment of the European Union Civil Service Tribunal (Second Chamber) of 11 September 2008 in Case F-51/07 Bui Van v Commission inasmuch as it awards Philippe Bui Van damages of EUR 1 500; |
| --- | --- |

1.

Annuls the judgment of the European Union Civil Service Tribunal (Second Chamber) of 11 September 2008 in Case F-51/07 Bui Van v Commission inasmuch as it awards Philippe Bui Van damages of EUR 1 500;

| 2. | Dismisses the appeal and the remainder of the claims in the cross-appeal; |
| --- | --- |

2.

Dismisses the appeal and the remainder of the claims in the cross-appeal;

| 3. | Remits the case to the Civil Service Tribunal for it to give judgment on the action for damages; |
| --- | --- |

3.

Remits the case to the Civil Service Tribunal for it to give judgment on the action for damages;

| 4. | Reserves the costs. |
| --- | --- |

4.

Reserves the costs.

---

(1)  OJ C 32, 7.2.2009.

---

| 3.7.2010 | EN | Official Journal of the European Union | C 179/37 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/37

---

Judgment of the General Court of 11 May 2010 — Wessang v OHIM — Greinwald (star foods)

(Case T-492/08) (1)

(Community trade mark - Opposition proceedings - Application for the figurative Community trade mark star foods - Earlier Community figurative and word marks STAR SNACKS - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation No 40/94 (now Article 8(1)(b) of Regulation No 207/2009))

(2010/C 179/64)

Language of the case: German

Parties

Applicant: Nicolas Wessang (Zimmerbach, France) (represented by: A. Grolée, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (represented by: A. Führer and G. Schneider, acting as Agents)

Other party to the proceedings before the Board of Appeal of OHIM: Greinwald GmbH (Kempten, Germany) (represented by: A. Schulz, lawyer)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 17 September 2008 (Case R 1408/2007-4) relating to opposition proceedings between Nicolas Wessang and Greinwald GmbH

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 17 September 2008 (Case R 1408/2007-4); |
| --- | --- |

1.

Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 17 September 2008 (Case R 1408/2007-4);

| 2. | orders Greinwald GmbH to bear its own costs and to pay a third of Nicolas Wessang’s costs; |
| --- | --- |

2.

orders Greinwald GmbH to bear its own costs and to pay a third of Nicolas Wessang’s costs;

| 3. | orders Wessang to bear two-thirds of his own costs; |
| --- | --- |

3.

orders Wessang to bear two-thirds of his own costs;

| 4. | orders OHIM to bear its own costs. |
| --- | --- |

4.

orders OHIM to bear its own costs.

---

(1)  OJ C 32 of 7.2.2009

---

| 3.7.2010 | EN | Official Journal of the European Union | C 179/38 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/38

---

Judgment of the General Court of 12 May 2010 — European Commission v Meierhofer

(Case T-560/08 P) (1)

(Appeals - Civil service - Recruitment - Open competition - Decision that a candidate had failed the oral test - Commission’s refusal to comply with a measure of organisation of procedure)

(2010/C 179/65)

Language of the case: German

Parties

Appellant: European Commission (represented by: J. Currall and B. Eggers, acting as Agents, assisted by B. Wägenbaur, lawyer)

Other party to the proceedings: Stefan Meierhofer (Munich, Germany) (represented by: H. -G. Schiessl, lawyer)

Re:

APPEAL against the judgment of the European Union Civil Service Tribunal (First Chamber) of 14 October 2008 in Case F-74/07 Meierhofer v Commission [2008] ECR-SC I A 1-0000 and II A-1-0000 seeking to have that judgment set aside

Operative part of the judgment

The Court:

| 1. | Sets aside the judgment of the Civil Service Tribunal of 14 October 2008 in Case F-74/07 Meirehofer v Commission [2008] ECR-SC A-I-1-0000 and II-A-1-0000; |
| --- | --- |

1.

Sets aside the judgment of the Civil Service Tribunal of 14 October 2008 in Case F-74/07 Meirehofer v Commission [2008] ECR-SC A-I-1-0000 and II-A-1-0000;

| 2. | Refers the case back to the Civil Service Tribunal. |
| --- | --- |

2.

Refers the case back to the Civil Service Tribunal.

| 3. | Reserves the costs. |
| --- | --- |

3.

Reserves the costs.

---

(1)  OJ C 55, 7.3.2009.

---

| 3.7.2010 | EN | Official Journal of the European Union | C 179/38 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/38

---

Judgment of the General Court of 19 May 2010 — Ravensburger v OHIM — Educa Borras (MEMORY)

(Case T-108/09) (1)

(Community trade mark - Invalidity proceedings - Community word mark MEMORY - Absolute ground for refusal - Descriptive character - Article 7(1)(c) and Article 75 of Regulation (EC) No 40/94 (now Article 7(1)(c) and Article 77 of Regulation (EC) No 207/2009))

(2010/C 179/66)

Language of the case: English

Parties

Applicant: Ravensburger AG (Ravensburg, Germany) (represented by: G. Würtenberger and R. Kunze, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (represented by: D. Botis, agent)

Other party to the proceedings before the Board of Appeal of OHIM, intervening before the General Court: Educa Borras, SA (Barcelona, Spain) (represented by: I. Valdelomar Serrano, lawyer)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 8 January 2009 (Case R 305/2008-2), relating to invalidity proceedings between Educa Borras, SA and Ravensburger AG.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Ravensburger AG to pay the costs. |
| --- | --- |

2.

Orders Ravensburger AG to pay the costs.

---

(1)  OJ C 129, 6.6.2009.

---

| 3.7.2010 | EN | Official Journal of the European Union | C 179/39 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/39

---

Order of the General Court of 6 May 2010 — Kerelov v Commission

(Case T-100/08 P) (1)

(Appeal - Civil Service - Recruitment - General competition - Refusal by the Director of EPSO to communicate to a candidate information and documents relating to the admission test - Appeal in part manifestly inadmissible and in part manifestly unfounded)

(2010/C 179/67)

Language of the case: French

Parties

Appellant: Georgi Kerelov (Pazardzhik, Bulgaria) (represented by: A. Kerelov, lawyer)

Other party to the proceedings: European Commission (represented by: B. Eggers and K. Herrmann, Agents)

Re:

Appeal brought against the order of the Civil Service Tribunal of the European Union (Second Chamber) of 12 December 2007 in Case F-110/07 Kerelov v Commission, not published in the ECR, asking for that order to be set aside.

Operative part of the order

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

1.

The appeal is dismissed.

| 2. | Georgi Kerelov is ordered to bear his own costs and pay the costs incurred by the Commission in the context of the present proceedings. |
| --- | --- |

2.

Georgi Kerelov is ordered to bear his own costs and pay the costs incurred by the Commission in the context of the present proceedings.

---

(1)  OJ C 69 of 21.3.2009

---

| 3.7.2010 | EN | Official Journal of the European Union | C 179/39 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/39

---

Order of the President of the General Court of 7 May 2010 — Almamet v Commission

(Case T-410/09 R)

(Interim measures - Competition - Commission decision imposing a fine - Bank guarantee - Application for suspension of operation of a measure - Financial loss - No exceptional circumstances - No urgency)

(2010/C 179/68)

Language of the case: English

Parties

Applicant: Almamet GmbH Handel mit Spänen und Pulvern aus Metall (Ainring, Germany) (represented by: S. Hautbourg and C. Renner, lawyers)

Defendant: European Commission (represented by: N. Khan, V. Bottka and N. von Lingen, agents)

Re:

APPLICATION for suspension of the operation of the Commission Decision of 22 July 2009 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F-1/39.396 — Calcium carbide and magnesium based reagents for the steel and gas industries)

Operative part of the order

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

1.

The application for interim measures is dismissed.

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

2.

Costs are reserved.

---

| 3.7.2010 | EN | Official Journal of the European Union | C 179/39 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/39

---

Order of the President of the General Court of 12 May 2010 — Reagens v Commission

(Case T-30/10 R)

(Application for interim measures - Competition - Commission decision imposing a fine - Bank guarantee - Application for suspension of operation of the decision - Financial loss - Absence of exceptional circumstances - No urgency)

(2010/C 179/69)

Language of the case: English

Parties

Applicant: Reagens SpA (San Giorgio di Piano, Italy) (represented by: B. O’Connor, Solicitor, and L. Toffoletti, D. Gullo and E. De Giorgi, lawyers)

Defendant: European Commission (represented by: J. Bourke and F. Ronkes Agerbeek, acting as Agents)

Re:

APPLICATION for suspension of operation of the Commission decision of 11 November 2009 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (COMP/38.589 — heat stabilisers)

Operative part of the order

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

1.

The application for interim measures is dismissed.

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

2.

Costs are reserved.

---

| 3.7.2010 | EN | Official Journal of the European Union | C 179/40 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/40

---

Order of the President of the General Court of 30 April 2010 — Xeda International v European Commission

(Case T-71/10 R)

(Application for interim measures - Directive 91/414/EEC - Decision concerning the non-inclusion of diphenylamine in Annex I to Directive 91/414 - Application for suspension of operation of a measure - Lack of urgency)

(2010/C 179/70)

Language of the case: English

Parties

Applicant: Xeda International SA (Saint-Andiol, France) (represented by: C. Mereu, K. Van Maldegem, lawyers, and P. Sellar, Solicitor)

Defendant: European Commission (represented by: D. Bianchi and L. Parpala, acting as Agents, assisted by J. Stuyck, lawyer)

Re:

APPLICATION for suspension of operation of Commission Decision 2009/859/EC of 30 November 2009 concerning the non-inclusion of diphenylamine in Annex I to Council Directive 91/414/EEC and the withdrawal of authorisations for plant protection products containing that substance (OJ 2009 L 314, p. 79) pending judgment in the main proceedings.

Operative part of the order

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

1.

The application for interim measures is dismissed.

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

2.

Costs are reserved.

---

| 3.7.2010 | EN | Official Journal of the European Union | C 179/40 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/40

---

Order of the President of the General Court of 28 April 2010 — Parliament v U

(Case T-103/10 P(R)-R)

(Interim measures - Civil Service - Officials - Decision to dismiss - Order of the President of the Civil Service Tribunal of the European Union made in proceedings for interim measures - Application to suspend the operation of a measure - No need to adjudicate)

(2010/C 179/71)

Language of the case: French

Parties

Appellant: European Parliament (represented by: S. Seyr and K. Zejdová, Agents)

Respondent: U (Luxembourg, Luxembourg) (represented by: F. Moyse and A. Salerno, lawyers)

Re:

Application to suspend the application of the order of the President of the Civil Service Tribunal of the European Union of 18 December 2009 in Case F-92/09 R U v Parliament [2009] ECR I-0000.

Operative part of the order

| 1. | There is no longer a need to adjudicate on the application for interim measures made by the European Parliament. |
| --- | --- |

1.

There is no longer a need to adjudicate on the application for interim measures made by the European Parliament.

| 2. | The costs are reserved. |
| --- | --- |

2.

The costs are reserved.

---

| 3.7.2010 | EN | Official Journal of the European Union | C 179/41 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/41

---

Action brought on 19 April 2010 — Apotheke DocMorris v OHIM (Representation of a green cross)

(Case T-173/10)

(2010/C 179/72)

Language in which the application was lodged: German

Parties

Applicant: Apotheke DocMorris Holding GmbH (Stuttgart, Germany) (represented by Y. Dick, lawyer)

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

Form of order sought

| — | Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 February 2010 in Case R 1606/2008-4; and |
| --- | --- |

—

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 February 2010 in Case R 1606/2008-4; 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: Figurative mark, representing a green cross, for goods and services in Classes 3, 5, 8, 9, 10, 11, 16, 21, 25, 29, 30, 32, 35 to 42 and 44 (Application No 5 930 946).

Decision of the Examiner: Rejection of the application.

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

Pleas in law: Infringement of Article 7(1)(b) of Regulation (EC) No 207/2009 (1), as the Board of Appeal’s finding of distinctiveness was in several respects incorrect.

---

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

---

| 3.7.2010 | EN | Official Journal of the European Union | C 179/41 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/41

---

Action brought on 12 April 2010 — ARA v OHIM — Allrounder (Representation of the letter ‘A’ with two horns)

(Case T-174/10)

(2010/C 179/73)

Language in which the application was lodged: German

Parties

Applicant: ara AG (Langenfeld, Germany) (represented by: M. Gail, 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: Allrounder SARL (Saarburg, France)

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 26 January 2010 in case R 481/2009-1; and |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 26 January 2010 in case R 481/2009-1; and

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

—

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

Pleas in law and main arguments

Applicant for a Community trade mark: Allrounder SARL.

Community trade mark concerned: Figurative mark, representing the letter ‘A’ with two horns, for goods in Classes 18 and 25.

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

Mark or sign cited in opposition: In particular, a word mark ‘A’ for goods in Classes 18 and 25.

Decision of the Opposition Division: Opposition rejected.

Decision of the Board of Appeal: Action dismissed.

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

---

(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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| 3.7.2010 | EN | Official Journal of the European Union | C 179/42 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/42

---

Action brought on 23 April 2010 — Reagens v Commission

(Case T-181/10)

(2010/C 179/74)

Language of the case: English

Parties

Applicant: Reagens SpA (San Giorgio di Piano, Italy) (represented by: B. O'Connor, Solicitor and L. Toffoletti, D. Gullo and E. De Giorgi, lawyers)

Defendant: European Commission

Form of order sought

| — | Annul Commission Decision of 23 February 2010 rendered in the framework of the confirmatory application for access to documents GESTDEM 2009/5145 (SG.E.3/HP/cr-Ares (2010)95823); |
| --- | --- |

—

Annul Commission Decision of 23 February 2010 rendered in the framework of the confirmatory application for access to documents GESTDEM 2009/5145 (SG.E.3/HP/cr-Ares (2010)95823);

| — | Require the Commission to make the documents listed on page 3 of the contested decision publicly available (in their non confidential form); and |
| --- | --- |

—

Require the Commission to make the documents listed on page 3 of the contested decision publicly available (in their non confidential form); and

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

—

Order the Commission to pay the costs.

Pleas in law and main arguments

By means of its application, the applicant seeks, pursuant to Article 263 TFUE, the annulment of Commission Decision of 23 February 2010 rendered in the framework of the confirmatory application for access to documents GESTDEM 2009/5145 (SG.E.3/HP/cr-Ares (2010)95823), relating to a proceeding under Regulation (EC) No 1049/2001 (1). The decision concerned the request for access to documents relating to applications for inability to pay a fine imposed on the applicant for an infringement of Articles 81 EC and 53 EEA (Case COMP/38589 — Heat Stabilisers).

In support of its submissions, the applicant puts forward the following pleas in law:

| | The Commission made a manifest error in law applying in an extensive manner the exceptions under Article 4 of Regulation No 1049/2001. |
| --- | --- |

The Commission made a manifest error in law applying in an extensive manner the exceptions under Article 4 of Regulation No 1049/2001.

| | In addition, the Commission made a manifest error in law rejecting the request of access to documents on the basis of a defence of the commercial interests of the undertakings and to protect the purpose of the investigation. |
| --- | --- |

In addition, the Commission made a manifest error in law rejecting the request of access to documents on the basis of a defence of the commercial interests of the undertakings and to protect the purpose of the investigation.

| | Furthermore, the Commission breached the right of the applicant to have access to the non confidential versions of the documents under Regulation No 1049/2001, by the denial of granting partial access. |
| --- | --- |

Furthermore, the Commission breached the right of the applicant to have access to the non confidential versions of the documents under Regulation No 1049/2001, by the denial of granting partial access.

| | Finally, the Commission breached the principles of sound administration, legitimate expectations, as well as the principle that the administration should be lawful, by denying access to the information needed in order to establish how the Commission applies paragraph 35 of the Guidelines on the method of setting fines (2). |
| --- | --- |

Finally, the Commission breached the principles of sound administration, legitimate expectations, as well as the principle that the administration should be lawful, by denying access to the information needed in order to establish how the Commission applies paragraph 35 of the Guidelines on the method of setting fines (2).

---

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

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

---

| 3.7.2010 | EN | Official Journal of the European Union | C 179/42 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/42

---

Action brought on 22 April 2010 — Sviluppo Globale v Commission

(Case T-183/10)

(2010/C 179/75)

Language of the case: Italian

Parties

Applicant: Sviluppo Globale GEIE (Rome, Italy) (represented by: F. Sciaudone, lawyer, R. Sciaudone, lawyer, and A. Neri, lawyer)

Defendant: European Commission

Form of order sought

| — | Annul the Commission decision of 14 February 2010; |
| --- | --- |

—

Annul the Commission decision of 14 February 2010;

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

—

Order the Commission to pay the costs.

Pleas in law and main arguments

The present action has been brought against the Commission’s decision of 14 February 2010 by which the Commission, in its capacity as contracting authority, notified Sviluppo Globale GEIE, the applicant, that it had excluded the consortium led by it from the short list drawn up for the restricted procedure EuropeAid/129038/C/SER/SY for the supply to the Syrian Government of technical assistance services designed to facilitate decentralisation and local development.

In support of its action for annulment, Sviluppo Globale GEIE alleges manifest error in the interpretation and application of the selection criteria laid down in the tender specifications. In particular, it argues, the Commission misapplied the selection criteria laid down in the tender specifications in respect of technical capability, thereby excluding the consortium led by Sviluppo Globale GEIE from the short list, despite the fact that it fulfilled the requirements laid down in those specifications. Such a manifest error on the part of the contracting authority can be seen clearly simply by comparing the technical capability requirements laid down for admission to the short list in question, on the one hand, with the actual technical capability of the consortium led by Sviluppo Globale GEIE, on the other.

Moreover, and in any event, Sviluppo Globale GEIE submits that the reasons stated for the exclusionary decision of 14 February 2010 are inadequate, in that no explanation is given as to why its tender does not satisfy the selection criteria relating to technical capability as laid down in the tender specifications.

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/43 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/43

---

Action brought on 23 April 2010 — Emram v OHIM — Guccio Gucci (G)

(Case T-187/10)

(2010/C 179/76)

Language in which the application was lodged: French

Parties

Applicant: Maurice Emram (Marseille, France) (represented by: M. Benavï, 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: Guccio Gucci SpA (Florence, Italy)

Form of order sought

| — | annulment of the decision of OHIM in Case R 1281/2008-1; |
| --- | --- |

—

annulment of the decision of OHIM in Case R 1281/2008-1;

| — | reject the opposition to the filing of the trade mark G line No 2421402 of Gucci spa; |
| --- | --- |

—

reject the opposition to the filing of the trade mark G line No 2421402 of Gucci spa;

| — | consequently, order OHIM to pay the costs; |
| --- | --- |

—

consequently, order OHIM to pay the costs;

| — | order Gucci spa to pay the costs or expenses of the proceedings before OHIM. |
| --- | --- |

—

order Gucci spa to pay the costs or expenses of the proceedings before OHIM.

Pleas in law and main arguments

Applicant for a Community trade mark: Maurice Emram.

Community trade mark concerned: Figurative trade mark “G” for goods in Classes 9, 18 and 25 — Application No 2 421 402.

Proprietor of the mark or sign cited in the opposition proceedings: Guccio Gucci SpA.

Mark or sign cited in opposition: Community and national figurate trade marks “G” for goods in Classes 9, 18 and 25.

Decision of the Opposition Division: Rejection of the opposition.

Decision of the Board of Appeal: Annulment of the decision of the Opposition Division and refusal to register the mark applied for.

Pleas in law: Infringement of Articles 8 and 75 of Regulation No 40/94 (now Articles 8 and 77 of Regulation No 207/2009) inasmuch as the Board of Appeal failed to apply the legal provisions concerned correctly and carried out too brief an analysis of the evidence raised by the applicant.

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/44 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/44

---

Action brought on 20 April 2010 — GEA Group v Commission

(Case T-189/10)

(2010/C 179/77)

Language of the case: German

Parties

Applicant: GEA Group AG (Bochum, Germany) (represented by: A. Kallmayer, I. du Mont and G. Schiffers, lawyers)

Defendant: European Commission

Form of order sought

| — | Annul Article 1 of the amending decision, to the extent that it imposes a fine on the applicant; |
| --- | --- |

—

Annul Article 1 of the amending decision, to the extent that it imposes a fine on the applicant;

| — | In the alternative, reduce the fine imposed on the applicant in Article 1 of the amending decision; |
| --- | --- |

—

In the alternative, reduce the fine imposed on the applicant in Article 1 of the amending decision;

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

The applicant contests Commission Decision C(2010) 727 final of 8 February 2010, by which the Commission amended its Decision C(2009) 8682 final of 11 November 2009 in Case COMP/38589 — Heat Stabilisers, in relation inter alia to the applicant (‘the amending decision’). The amendment concerns Article 2 Nos 31 and 32 of Commission Decision C(2009) 8682 final concerning the applicant’s joint and several liability.

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

First, the applicant claims that its rights of defence have been infringed because it was not heard before the amending decision was adopted or allowed to participate in the procedure in any other way. By its second plea in law, the applicant complains that the reasoning of the amending decision is defective, as it is based only on the failure to comply with the maximum limit under Article 23(2) of Regulation (EC) No 1/2003 (1) which must be respected ex officio, and does not contain any specific justification with regard to the applicant. By its third plea in law, the applicant complains that there is no legal basis for the amending decision, which has already become final for some addressees or has been invoked before the courts. By its fourth plea in law, the applicant argues that the alteration of the fine to its detriment is not permitted. Finally, the applicant argues that time-bar applies, because the amending decision was adopted after the expiry of the limitation period laid down in Article 25(6) of Regulation No 1/2003.

---

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

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/44 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/44

---

Action brought on 20 April 2010 — Greenwood Houseware (Zhuhai) and others v Council

(Case T-191/10)

(2010/C 179/78)

Language of the case: English

Parties

Applicants: Greenwood Houseware (Zhuhai) Ltd (Zhuhai City, China), Brabantia S&S Ltd (Hong Kong, China), Brabantia S&L Belgium NV (Overpelt, Belgium), Brabantia Belgium NV (Overpelt, Belgium), Brabantia Netherlands BV (Valkenswaard, Netherlands) and Brabantia (U.K.) Ltd (Bristol, United Kingdom), (represented by: E. Vermulst and Y. van Gerven, lawyers)

Defendant: Council of the European Union

Form of order sought

| — | Annul Council Implementing Regulation (EU) No 77/2010 of 19 January 2010 (1); |
| --- | --- |

—

Annul Council Implementing Regulation (EU) No 77/2010 of 19 January 2010 (1);

| — | Order the Council to pay the costs of the proceedings; and |
| --- | --- |

—

Order the Council to pay the costs of the proceedings; and

| — | Order the interveners, if any, to pay their own costs. |
| --- | --- |

—

Order the interveners, if any, to pay their own costs.

Pleas in law and main arguments

By means of its application, the applicants seek, pursuant to Article 263 TFUE, the annulment of Council Implementing Regulation (EU) No 77/2010 of 19 January 2010 amending Regulation (EC) No 452/2007 imposing a definitive anti-dumping duty on imports of ironing boards originating, inter alia, in the People’s Republic of China.

In support of its submissions, the applicants put forward the following pleas in law:

| | Firstly, by issuing the additional disclosure after the publication of the contested regulation, the Council violated Article 20(4) of the Council Regulation (EC) No 1225/2009 (2) and the rights of defence of the applicants. The institutions of the European Union failed to inform the applicants before the contested regulation was finalized and sent to the Council for adoption, about the new facts and considerations underlying the change in the anti-dumping duty and did not provide the applicants any opportunity to present new arguments or to clarify the previously provided information which could have led to a further reduction of the anti-dumping duty. |
| --- | --- |

Firstly, by issuing the additional disclosure after the publication of the contested regulation, the Council violated Article 20(4) of the Council Regulation (EC) No 1225/2009 (2) and the rights of defence of the applicants. The institutions of the European Union failed to inform the applicants before the contested regulation was finalized and sent to the Council for adoption, about the new facts and considerations underlying the change in the anti-dumping duty and did not provide the applicants any opportunity to present new arguments or to clarify the previously provided information which could have led to a further reduction of the anti-dumping duty.

| | Secondly, the Council made a manifest error of appraisal and violated Articles 2(9) and 11(10) of Council Regulation (EC) No 1225/2009 while constructing the export price. The Union institutions erroneously deducted the 38,1 % anti-dumping duty in the process of construction of the export price because the requirement of Article 11(10) of the said regulation is not to be proved in case of a new exporter. Moreover, the Union institutions’ assessment of the deduction of the anti-dumping duty was based on an erroneous appreciation of the facts. |
| --- | --- |

Secondly, the Council made a manifest error of appraisal and violated Articles 2(9) and 11(10) of Council Regulation (EC) No 1225/2009 while constructing the export price. The Union institutions erroneously deducted the 38,1 % anti-dumping duty in the process of construction of the export price because the requirement of Article 11(10) of the said regulation is not to be proved in case of a new exporter. Moreover, the Union institutions’ assessment of the deduction of the anti-dumping duty was based on an erroneous appreciation of the facts.

| | Thirdly, the Council committed a manifest error of appraisal, breached the principles of diligence and sound administration and non-discrimination, and erred in the application of Article 2(10) of Council Regulation (EC) No 1225/2009 by making incorrect adjustments to the export price and normal value. The Union institutions erroneously deducted from the export price direct costs not paid by the applicants in relation to a portion of the exports of the product concerned, and wrongly increased the normal value to account for the non-refundable VAT on export sales, even though no such adjustment was made in the original investigation. |
| --- | --- |

Thirdly, the Council committed a manifest error of appraisal, breached the principles of diligence and sound administration and non-discrimination, and erred in the application of Article 2(10) of Council Regulation (EC) No 1225/2009 by making incorrect adjustments to the export price and normal value. The Union institutions erroneously deducted from the export price direct costs not paid by the applicants in relation to a portion of the exports of the product concerned, and wrongly increased the normal value to account for the non-refundable VAT on export sales, even though no such adjustment was made in the original investigation.

| | Finally, the Union institutions committed a manifest error of appraisal, breached the principles of diligence and sound administration, and non-discrimination, and erred in the application of Articles 2(7)(b), 2(7)(c) of Council Regulation (EC) No 1225/2009, by denying market economy treatment to Greenwood Houseware (Zhuhai) Ltd. The Union institutions’ refusal of market economy treatment to the applicant Greenwood Houseware (Zhuhai) Ltd. was based on an erroneous appraisal of facts and evidence submitted. Furthermore, there was an absence of diligence and due care on the part of the Union institutions in the assessment of all the relevant aspects concerning the application of criteria 2 and 3 of Article 2(7)(c) of the said regulation. |
| --- | --- |

Finally, the Union institutions committed a manifest error of appraisal, breached the principles of diligence and sound administration, and non-discrimination, and erred in the application of Articles 2(7)(b), 2(7)(c) of Council Regulation (EC) No 1225/2009, by denying market economy treatment to Greenwood Houseware (Zhuhai) Ltd. The Union institutions’ refusal of market economy treatment to the applicant Greenwood Houseware (Zhuhai) Ltd. was based on an erroneous appraisal of facts and evidence submitted. Furthermore, there was an absence of diligence and due care on the part of the Union institutions in the assessment of all the relevant aspects concerning the application of criteria 2 and 3 of Article 2(7)(c) of the said regulation.

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(1)  Council Implementing Regulation (EU) No 77/2010 of 19 January 2010 amending Regulation (EC) No 452/2007 imposing a definitive anti-dumping duty on imports of ironing boards originating, inter alia, in the People’s Republic of China (OJ L 24, p. 1).

(2)  Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ L 343, p. 51).

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/45 |
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Action brought on 26 April 2010 — Ferracci v Commission

(Case T-192/10)

(2010/C 179/79)

Language of the case: Italian

Parties

Applicant: Pietro Ferracci (San Cesareo, Italy) (represented by: A. Nucara, lawyer)

Defendant: European Commission

Form of order sought

| — | Annul the Commission decision contained in the letter of 15 February 2010, by which the Commission dismissed the applicant’s complaint; |
| --- | --- |

—

Annul the Commission decision contained in the letter of 15 February 2010, by which the Commission dismissed the applicant’s complaint;

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

—

Order the Commission to pay the costs.

Pleas in law and main arguments

The present action has been brought against the decision contained in the letter of 15 February 2010, by which the applicant’s complaint was dismissed.

That complaint concerned the exemption from municipal taxes on immovable property provided for in Article 7(1)(i) of Decree-Law No 504/1992 which, under Article 7(2a) of Decree-Law No 203/2005 as converted into law, is intended to apply to the activities referred to in Article 7(1)(i) of Decree-Law No 504/1992, regardless of their potentially commercial nature. In the applicant’s submission, that rule constitutes State aid in favour of ecclesiastical bodies and non-profit making organisations in so far as they pursue commercial activities, or at least economic activities for the purposes of the Community case-law.

The applicant puts forward two pleas in support of his action:

| | First of all, the applicant submits that the contested decision is vitiated because it infringes and misapplies, through incorrect interpretation, Article 108(3) TFEU. In fact, on the basis of the applicant’s complaint received on 14 June 2006, the Commission initiated a very lengthy preliminary investigation procedure characterised by an intense exchange of letters with the applicant and requests for information from the national authorities, only to conclude finally in the contested decision that there was no doubt that the measures in question did not constitute State aid for the purposes of Article 107 TFEU. |
| --- | --- |

First of all, the applicant submits that the contested decision is vitiated because it infringes and misapplies, through incorrect interpretation, Article 108(3) TFEU. In fact, on the basis of the applicant’s complaint received on 14 June 2006, the Commission initiated a very lengthy preliminary investigation procedure characterised by an intense exchange of letters with the applicant and requests for information from the national authorities, only to conclude finally in the contested decision that there was no doubt that the measures in question did not constitute State aid for the purposes of Article 107 TFEU.

| | In the applicant’s submission, it is clear from the extraordinarily long period which elapsed before the preliminary investigation was closed that the Commission was unable to address the doubts raised in the complaint which it ought to have addressed, and that it should at least have pursued the matter in depth by ordering a formal investigation procedure as provided for under Article 108(2) TFEU. |
| --- | --- |

In the applicant’s submission, it is clear from the extraordinarily long period which elapsed before the preliminary investigation was closed that the Commission was unable to address the doubts raised in the complaint which it ought to have addressed, and that it should at least have pursued the matter in depth by ordering a formal investigation procedure as provided for under Article 108(2) TFEU.

| | Moreover, a careful reading of the aforementioned decision on the current tax can only give cause to believe that the Commission had doubts as to whether the disputed measures constituted State aid, but ultimately decided to dismiss the complaint without opening the formal investigation procedure, thereby infringing the applicant’s right to submit observations on any justifications which the Italian authorities might have submitted to the Commission in the context of the formal investigation procedure pursuant to Article 108 TFEU and preventing the necessary examination as to compatibility which the Commission would have had to undertake in order to assess the extent to which competition was distorted as a result of the preferential tax regime which was the subject of the complaint. |
| --- | --- |

Moreover, a careful reading of the aforementioned decision on the current tax can only give cause to believe that the Commission had doubts as to whether the disputed measures constituted State aid, but ultimately decided to dismiss the complaint without opening the formal investigation procedure, thereby infringing the applicant’s right to submit observations on any justifications which the Italian authorities might have submitted to the Commission in the context of the formal investigation procedure pursuant to Article 108 TFEU and preventing the necessary examination as to compatibility which the Commission would have had to undertake in order to assess the extent to which competition was distorted as a result of the preferential tax regime which was the subject of the complaint.

| | The applicant submits, secondly, that the contested decision should be annulled on grounds of failure to provide an adequate statement of reasons, contrary to Article 296 TFEU (formerly Article 253 EC). |
| --- | --- |

The applicant submits, secondly, that the contested decision should be annulled on grounds of failure to provide an adequate statement of reasons, contrary to Article 296 TFEU (formerly Article 253 EC).

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/46 |
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C 179/46

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Action brought on 26 April 2010 — Scuola Elementare Maria Montessori v Commission

(Case T-193/10)

(2010/C 179/80)

Language of the case: Italian

Parties

Applicant: Scuola Elementare Maria Montessori (Rome, Italy) (represented by: A. Nucara, lawyer)

Defendant: European Commission

Form of order sought

| — | Annul the decision of the Commission contained in the letter of 15 February 2010 by which the defendant rejected the applicant’s complaints. |
| --- | --- |

—

Annul the decision of the Commission contained in the letter of 15 February 2010 by which the defendant rejected the applicant’s complaints.

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

—

Order the defendant to pay the costs of the present proceedings.

Pleas in law and main arguments

The present action is brought against the decision contained in the letter of 15 February 2010 rejecting the applicant’s complaint.

That complaint concerns not only the exemption from the Imposta Comunale sugli Immobili (Communal Tax on Immovable Property), as in Case T-192/10 Pietro Ferracci v Commission, but also the partial exemption (at the rate of 50 %) from payment of the Imposta sul reddito delle persone giuridiche (tax on the income of legal persons) provided for under Italian tax law.

The pleas in law and main arguments are similar to those relied on in Case T-192/10.

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/46 |
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3.7.2010

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Official Journal of the European Union

C 179/46

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Action brought on 29 April 2010 — Apotheke DocMorris v OHIM (Representation of a green and white cross)

(Case T-196/10)

(2010/C 179/81)

Language of the case: German

Parties

Applicant: Apotheke DocMorris Holding GmbH (Stuttgart, Germany) (represented by Y. Dick, lawyer)

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

Form of order sought

| — | Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 23 February 2010 in Case R 470/2009-4; |
| --- | --- |

—

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 23 February 2010 in Case R 470/2009-4;

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Figurative mark representing a green and white cross, in respect of goods and services in Classes 3, 5, 8, 9, 10, 11, 16, 21, 25, 29, 30, 32, 35-42 and 44 — Application No 5 930 979.

Decision of the Examiner: Refusal of the application.

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

Pleas in law: Infringement of Article 7(1)(b) of Regulation (EC) No 207/2009 (1), as the Board of Appeal’s assessment in relation to establishing distinctiveness was incorrect in a number of respects.

---

(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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| 3.7.2010 | EN | Official Journal of the European Union | C 179/47 |
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3.7.2010

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Official Journal of the European Union

C 179/47

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Action brought on 27 April 2010 — BVR v OHIM — Austria Leasing (Austria Leasing Gesellschaft m.b.H. Mitglied der Raiffeisen-Bankengruppen Österreich)

(Case T-197/10)

(2010/C 179/82)

Language in which the application was lodged: German

Parties

Applicant: Bundesverband der Deutschen Volksbanken und Raiffeisenbanken eV (BVR) (Berlin, Germany) (represented by: I. Rinke, 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: Austria Leasing GmbH (Frankfurt, Germany)

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 3 February 2010 (Case R 248/2009-1); |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 3 February 2010 (Case R 248/2009-1);

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Austria Leasing GmbH.

Community trade mark concerned: Figurative mark containing the word elements ‘Austria Leasing Gesellschaft m.b.H. Mitglied der Raiffeisen-Bankengruppen Österreich’, in respect of services in Classes 35, 36 and 37.

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

Mark or sign cited in opposition: inter alia, a figurative mark registered in Germany which contains the word element ‘Raiffeisen’, in respect of services in Classes 36, 39 and 42.

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 8(1)(b) of Regulation (EC) No 207/2009, (1) as there is a likelihood of confusion between the marks at issue.

---

(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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| 3.7.2010 | EN | Official Journal of the European Union | C 179/47 |
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3.7.2010

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Official Journal of the European Union

C 179/47

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Action brought on 30 April 2010 — Maximuscle Limited v OHIM — Foreign Supplement Trade Mark Ltd (GAKIC)

(Case T-198/10)

(2010/C 179/83)

Language in which the application was lodged: English

Parties

Applicant: Maximuscle Ltd (Hertfordshire, United Kingdom) (represented by: N. Phillips, Solicitor and G. Fernando, Barrister)

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

Other party to the proceedings before the Board of Appeal: Foreign Supplement Trademark Ltd (Oakville, Canada)

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 26 January 2010 in case R 1621/2008-1, and remit the matter alternatively altered; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 26 January 2010 in case R 1621/2008-1, and remit the matter alternatively altered;

| — | In the alternative, alter the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 26 January 2010 in case R 1621/2008-1; |
| --- | --- |

—

In the alternative, alter the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 26 January 2010 in case R 1621/2008-1;

| — | Order the defendant to bear the costs incurred in these proceedings as well as those incurred before OHIM. |
| --- | --- |

—

Order the defendant to bear the costs incurred in these proceedings as well as those incurred before OHIM.

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: The word mark “GAKIC” for goods in classes 5, 30 and 32.

Proprietor of the Community trade mark cited in the invalidity proceedings: The other party to the proceedings before the Board of Appeal

Party requesting the declaration of invalidity of the Community trade mark: The applicant

Decision of the Cancellation Division: Rejected the request for a declaration of invalidity

Decision of the Board of Appeal: Dismissed the appeal and, as a result, rejected the request for a declaration of invalidity of the registered Community trade mark in question

Pleas in law: Infringement of Article 7(1)(b) and (c) of Council Regulation No 207/2009, as the Board of Appeal: (i) repeated the error of the Cancellation Division and wrongly considered the case as if made under Article 7(1)(d), (ii) wrongly found significance in the fact that glycine-alpha-ketoisocaproic acid, of which GAKIC is an abbreviated form, is a patented compound in the United States, (iii) failed to consider material after the registration date, on the basis that it had no probative value, (iv) failed to consider evidence on the basis that it related to a website connected with the applicant, (v) had an inconsistent approach, given the finding that GAKIC was an abbreviated form of glycine-alpha-ketoisocaproic acid, (vi) mischaracterised evidence and failed to give proper weight to evidence showing that ‘GAKIC’ was the natural abbreviation of glycine [(G)]-alpha [(A)]-ketoisocaproic [(KIC)] acid, and (vii) wrongly found trade mark significance in the capitalisation of the words ‘GAKIC’.

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/48 |
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3.7.2010

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Official Journal of the European Union

C 179/48

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Action brought on 27 April 2010 — DRV v OHIM — Austria Leasing (Austria Leasing Gesellschaft m.b.H. Mitglied der Raiffeisen-Bankengruppe Österreich)

(Case T-199/10)

(2010/C 179/84)

Language in which the application was lodged: German

Parties

Applicant: Deutscher Raiffeisenverband eV (DRV) (Bonn, Germany) (represented by: I. Rinke, 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: Austria Leasing GmbH (Frankfurt, Germany)

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 3 February 2010 (Case R 253/2009-1); |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 3 February 2010 (Case R 253/2009-1);

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Austria Leasing GmbH.

Community trade mark concerned: Figurative mark which contains the word elements ‘Austria Leasing Gesellschaft m.b.H. Mitglied der Raiffeisen-Bankengruppe Österreich’, in respect of services in Classes 35, 36 and 37.

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

Mark or sign cited in opposition: inter alia, a figurative mark registered in Germany which contains the word element ‘Raiffeisen’, in respect of services in Classes 35, 36, 37, 38, 39, 40, 41 and 42.

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 8(1)(b) of Regulation (EC) No 207/2009, (1) as there is a likelihood of confusion between the marks at issue.

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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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| 3.7.2010 | EN | Official Journal of the European Union | C 179/49 |
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3.7.2010

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C 179/49

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Action brought on 30 April 2010 — IVBN v Commission

(Case T-201/10)

(2010/C 179/85)

Language of the case: Dutch

Parties

Applicant: Vereniging van Institutionele Beleggers in Vastgoed, Nederland (IVBN) (Voorburg, Netherlands) (represented by: M. Meulenbelt, lawyer)

Defendant: European Commission

Form of order sought

| — | Declare the action admissible; |
| --- | --- |

—

Declare the action admissible;

| — | annul the contested decision of the Commission; |
| --- | --- |

—

annul the contested decision of the Commission;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

The applicant seeks annulment of Commission Decision C(2009) 9963 final of 15 December 2009 relating to State aid E 2/2005 and N 642/2009 (Netherlands) — Existing and special project aid to housing corporations. The applicant relies on three pleas in law in support of its application.

First, the applicant alleges infringement of Articles 18 and 19 of Regulation No 659/1999, (1) Articles 106(2) TFEU, 107 TFEU and 108 TFEU and the obligation to state reasons. According to the applicant, the Commission’s presentation of the facts concerning the obligation on the part of housing corporations to charge rents below the appropriate rental rates set by the State is inaccurate. Furthermore, according to the applicant, the definition of the target group for social housing provision is unsubstantiated and incorrect. The Commission also erred in failing to set an objective limit on the construction costs of housing that is to be funded by aid and on the intrinsic quality of such rental accommodation, as reflected in the amount of rent. Furthermore, the safeguards against overcompensation are inadequate, with the result that the Commission is also in breach of Article 5 of the Decision relating to services of general economic interest. (2) Finally, the applicant submits in that regard that the Commission failed to address the applicant’s complaint concerning the role of the Woningsinvesteringsfonds (Housing Investment Fund) and the Nederlandse Waterschapsbank.

Second, the applicant alleges infringement of Article 1(c) of Regulation No 659/1999, Article 4(1) of Regulation No 794/2004 (3) and the obligation to state reasons. According to the applicant, the Commission failed to carry out a thorough and detailed examination and to establish that all or at least a substantial part of the aid to housing corporations referred to in case E 2/2005 is to be regarded as new aid instead of as existing aid.

Finally, the applicant submits that the Commission infringed Articles 106(2) TFEU, 107 TFEU and 108 TFEU by neglecting to initiate the formal investigation procedure provided for under Article 108(2) TFEU, in conjunction with Articles 4 and 6 of Regulation No 659/1999, as a result of which the applicant’s procedural rights under those provisions have also been infringed.

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

(2)  Commission Decision 2005/842/EC of 28 November 2005 on the application of Article 86(2) of the EC Treaty to State aid in the form of public service compensation granted to certain undertakings entrusted with the operation of services of general economic interest (notified under document number C(2005) 2673) (OJ 2005 L 312, p. 67).

(3)  Commission Regulation (EC) No 794/2004 of 21 April 2004 implementing Council Regulation (EC)No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 2004 L 140, p. 1).

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/50 |
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Action brought on 29 April 2010 — Stichting Woonlinie and Others v Commission

(Case T-202/10)

(2010/C 179/86)

Language of the case: Dutch

Parties

Applicants: Stichting Woonlinie (Woudrichem, Netherlands), Stichting Allee Wonen (Roosendaal, Netherlands), Woningstichting Volksbelang (Wijk bij Duurstede, Netherlands), Stichting WoonInvest (Leidschendam-Voorburg, Netherlands), Stichting Woonstede (Ede, Netherlands) (represented by: E. Henny, T. Ottervanger and P. Glazener, lawyers)

Defendant: European Commission

Form of order sought

| — | Annul the Commission’s decision concerning existing aid, in accordance with Article 263 TFEU; |
| --- | --- |

—

Annul the Commission’s decision concerning existing aid, in accordance with Article 263 TFEU;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

The applicants seek annulment of Commission Decision C(2009) 9963 final of 15 December 2009 relating to State aid E 2/2005 and N 642/2009 (Netherlands) — Existing and special project aid to housing corporations. The applicants rely on eight pleas in law in support of their application.

First, the Commission erred in its application of the law by deeming all the measures to form part of an aid scheme. According to the applicants, the third and fourth measures referred to by the Commission were erroneously regarded as forming part of an existing aid scheme within the meaning of Article 1(d) of Regulation No 659/1999, (1) irrespective of whether those measures constitute aid within the meaning of Article 107(1) TFEU. Consequently, the Commission exceeded its powers by including both measures in its examination of the compatibility of an existing aid scheme with the common market.

Second, the Commission’s decision in case E 2/2005 was based on an incomplete and manifestly incorrect assessment of the national legislation applicable and of the relevant facts. According to the applicants, the Commission did not examine whether there is actually a manifest error in the definition of service of general economic interest in the current Netherlands system of social housing funding.

Third, the Commission’s assessment was erroneous and negligent in so far as it concluded that the letting of social housing to persons with a relatively high income is part of the public service mission of social housing corporations.

Fourth, the Commission erred in law and abused its powers by demanding that the Netherlands State redefine ‘social housing provision’. According to the applicants, the Commission exceeds its powers by putting forward its own definition of social housing provision as a service of general economic interest, notwithstanding the fact that the Netherlands must be regarded as having a wide discretion to determine its own policy in that area.

Fifth, the Commission erred in law by failing to distinguish between the definition of a service of general economic interest and the manner in which it is financed.

Sixth, the Commission disregarded Decision 2005/842/EG (2) in that it demanded a specific description of the service of general economic interest. According to the applicants, the Commission erroneously decided that a Member State must define the service of general economic interest on the basis of an income threshold.

Seventh, the Commission made an error of assessment and disregarded Article 5 of Decision 2005/842/EC in so far as it did not find that the manner in which the service of general economic interest was financed was manifestly inappropriate. According to the applicants, the Commission failed to ascertain whether, taking into account the definition of the service of general economic interest, there was any possibility of overcompensation.

Eighth, the Commission abused the procedure for the assessment of existing aid schemes by requiring, on the basis of that procedure, an exhaustive list of buildings which are to be categorised as social property, as a result of which buildings that are not included in that list no longer fall within the category of a service of general economic interest.

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

(2)  Commission Decision 2005/842/EC of 28 November 2005 on the application of Article 86(2) of the EC Treaty to State aid in the form of public service compensation granted to certain undertakings entrusted with the operation of services of general economic interest (notified under document number C(2005) 2673) (OJ 2005 L 312, p. 67).

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/51 |
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3.7.2010

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C 179/51

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Action brought on 30 April 2010 — Stichting Woonpunt and Others v Commission

(Case T-203/10)

(2010/C 179/87)

Language of the case: Dutch

Parties

Applicants: Stichting Woonpunt (Beek, Netherlands), Stichting Com.wonen (Rotterdam, Netherlands), Woningstichting Haag Wonen (The Hague, Netherlands), Stichting Woonbedrijf SWS.Hhvl (Eindhoven, Netherlands) (represented by: E. Henny, T. Ottervanger and P. Glazener, lawyers)

Defendant: European Commission

Form of order sought

| — | Annul the Commission’s decision concerning existing aid, in accordance with Article 263 TFEU; |
| --- | --- |

—

Annul the Commission’s decision concerning existing aid, in accordance with Article 263 TFEU;

| — | annul the Commission’s decision concerning new aid, in accordance with Article 263 TFEU; |
| --- | --- |

—

annul the Commission’s decision concerning new aid, in accordance with Article 263 TFEU;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

The applicants seek annulment of Commission Decision C(2009) 9963 final of 15 December 2009 relating to State aid E 2/2005 and N 642/2009 (Netherlands) — Existing and special project aid to housing corporations.

The applicants put forward eight pleas in law in support of the first head of claim. Those pleas are the same as the pleas which the applicants put forward in Case T-202/10 Stichting Woonlinie and Others v Commission.

The applicants put forward three further pleas in support of their second head of claim.

First, according to the applicants, the Commission infringed Articles 107 TFEU and 108 TFEU and Regulation No 659/1999 (1) by deeming project aid for declining urban areas to be part of an existing aid scheme, and by imposing mandatory requirements without following the procedure laid down under Regulation No 659/1999.

Second, the applicants submit that the Commission erroneously took the view that the fourth criterion referred to in Altmark (2) had not been satisfied inasmuch as housing corporations are not chosen by means of a public procurement procedure. According to the applicants, the Commission should have confined itself to checking that the measure did not lead to inefficiency.

Third, the applicants claim that the Commission should have considered whether there was any overcompensation for the service of general economic interest.

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

(2)  Case C-280/00 Altmark Trans and Regierungspräsidium Magdeburg [2003] ECR I 7747.

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/51 |
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Action brought on 3 May 2010 — Lancôme parfums et beauté & Cie v OHMI — Focus Magazin Verlag GmbH (COLOR FOCUS)

(Case T-204/10)

(2010/C 179/88)

Language in which the application was lodged: English

Parties

Applicant: Lancôme parfums et beauté & Cie (Paris, France) (represented by: A. von Mühlendahl and S. Abel, lawyers)

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

Other party to the proceedings before the Board of Appeal: Focus Magazin Verlag GmbH (Munich, Germany)

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 11 February 2010 in case R 238/2009-2; |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 11 February 2010 in case R 238/2009-2;

| — | Annul the decision of the Cancellation Division of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 16 December 2008 in case 990 C; |
| --- | --- |

—

Annul the decision of the Cancellation Division of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 16 December 2008 in case 990 C;

| — | Dismiss the request introduced by the other party to the proceedings before the Board of Appeal for a declaration of invalidity of the applicant's CTM No 1327410 COLOR FOCUS to the extent the request is based on the Community trade mark FOCUS No 453720; |
| --- | --- |

—

Dismiss the request introduced by the other party to the proceedings before the Board of Appeal for a declaration of invalidity of the applicant's CTM No 1327410 COLOR FOCUS to the extent the request is based on the Community trade mark FOCUS No 453720;

| — | Order the defendant to pay the costs of the proceedings, including those incurred by the applicant before the Board of Appeal; and |
| --- | --- |

—

Order the defendant to pay the costs of the proceedings, including those incurred by the applicant 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

Registered Community trade mark subject of the application for a declaration of invalidity: The word mark ‘COLOR FOCUS’ for goods in class 3 — Community trade mark registration No 1327410

Proprietor of the Community trade mark: The applicant

Party requesting the declaration of invalidity of the Community trade mark: The other party to the proceedings before the Board of Appeal

Trade mark right of the party requesting the declaration of invalidity: Community trade mark registration No 453720 of the word mark ‘FOCUS’ for goods and services in classes 3, 6, 7, 9, 14, 16, 21, 25, 28, 29, 32, 33, 35, 38, 39, 41, 42; German mark registration No 39407564 of the word mark ‘FOCUS’, for a wide variety of goods and services in a total of 24 classes

Decision of the Cancellation Division: Declaration of invalidity of the Community trade mark

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law:

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

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 violates Article 53(1)(a) in conjunction with Article 8(1)(b) of Council Regulation (EC) No 207/2009 (hereinafter ‘the CTMR’) in finding a likelihood of confusion between ‘COLOR FOCUS’ and ‘FOCUS’. According to the applicant, the Board of Appeal failed by not providing a specific assessment of such a finding, which requires an analysis of the degree of distinctiveness and of the degree of similarity, in a way that the contested decision is lacking an essential element in its reasoning. |
| --- | --- |

On the basis of its first plea, the applicant claims that the contested decision violates Article 53(1)(a) in conjunction with Article 8(1)(b) of Council Regulation (EC) No 207/2009 (hereinafter ‘the CTMR’) in finding a likelihood of confusion between ‘COLOR FOCUS’ and ‘FOCUS’. According to the applicant, the Board of Appeal failed by not providing a specific assessment of such a finding, which requires an analysis of the degree of distinctiveness and of the degree of similarity, in a way that the contested decision is lacking an essential element in its reasoning.

| | By its second plea, the applicant considers that the contested decision failed to take into account a general principle of law that no person is entitled to rely on a formal legal position when it constitutes an abuse of right. |
| --- | --- |

By its second plea, the applicant considers that the contested decision failed to take into account a general principle of law that no person is entitled to rely on a formal legal position when it constitutes an abuse of right.

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/52 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/52

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Action brought on 4 May 2010 — Cervecería Modelo v OHIM — Plataforma Continental (LA VICTORIA DE MEXICO)

(Case T-205/10)

(2010/C 179/89)

Language in which the application was lodged: Spanish

Parties

Applicant: Cervecería Modelo, SA de CV (represented by: C. Lema Devesa, 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: Plataforma Continental, SL (Madrid, Spain)

Form of order sought

| — | Annul partially the decision of 5 March 2010 (Case R/322/2009-2) of the Second Board of Appeal of the Office for Harmonisation in the Internal Market, solely to the extent that it refuses registration of the mark ‘LA VICTORIA DE MÉXICO’ for goods in Class 32 of the Classification and, consequently declare that its registration can proceed, and |
| --- | --- |

—

Annul partially the decision of 5 March 2010 (Case R/322/2009-2) of the Second Board of Appeal of the Office for Harmonisation in the Internal Market, solely to the extent that it refuses registration of the mark ‘LA VICTORIA DE MÉXICO’ for goods in Class 32 of the Classification and, consequently declare that its registration can proceed, and

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Cervecería.

Community trade mark concerned: Word mark ‘LA VICTORIA DE MÉXICO’ (application for registration No 4 551 214) for goods and services in Classes 25, 32 and 43.

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

Mark or sign cited in opposition: Community figurative mark containing the word element ‘VICTORIA’ (No 2 632 271) for goods in Classes 31, 32 and 33; and Spanish word mark ‘VICTORIA’ (No 1 648 564) for goods in Class 32.

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

Decision of the Board of Appeal: Partial annulment of the decision under appeal and partial refusal of the application for registration.

Pleas in law: Incorrect interpretation and application of Article 8(1)(b) of Regulation No 207/2009 on the Community trade mark.

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/53 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/53

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Action brought on 30 April 2010 — Vesteda Groep v Commission

(Case T-206/10)

(2010/C 179/90)

Language of the case: Dutch

Parties

Applicant: Vesteda Groep BV (Maastricht, Netherlands) (represented by: G. van der Wal and T. Boesman, lawyers)

Defendant: European Commission

Form of order sought

| — | Annul the Commission’s decision of 15 December 2009; |
| --- | --- |

—

Annul the Commission’s decision of 15 December 2009;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

The applicant seeks annulment of Commission Decision C(2010) 26 final of 15 December 2009 relating to State aid E 2/2005 and N 642/2009 (Netherlands) — Existing and special project aid to housing corporations. The applicant relies on three pleas in law in support of its application.

First, the applicant submits that, at paragraphs 25 to 37 of the contested decision, the Commission erred in law in finding that the Netherlands system of financing social housing and all changes to that system since the introduction of the EEC Treaty constitute existing aid and that, on that basis, the Commission’s assessment is made in the context of Article 108(1) TFEU and Chapter 5 of Regulation No 659/1999. (1) According to the applicant, the Commission made errors of assessment, its examination of the changes to that system was inadequate and it gave insufficient reasons for the contested decision.

Second, according to the applicant, the Commission erred in law in the contested decision in accepting on the basis of Article 19 of Regulation No 659/1999 the measures proposed by the Netherlands as referred to in Article 19(1) of Regulation No 659/1999. The appropriate measures accepted by the Commission are inadequate and/or are not suitable for ensuring that the existing aid is compatible with Articles 107 TFEU and 106 TFEU. Furthermore, the Commission applied the requirements of Article 106(2) TFEU incorrectly and gave insufficient reasons for its decision.

Third, the applicant submits that the Commission erred in law in neglecting to initiate the procedure provided for under Article 108(2) TFEU and Article 4(4) of Regulation No 659/1999.

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

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/53 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/53

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Action brought on 6 May 2010 — Cree v OHIM (TRUEWHITE)

(Case T-208/10)

(2010/C 179/91)

Language in which the application was lodged: German

Parties

Applicant: Cree Inc (Durham, USA) (represented by V. Schiller, 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 17 February 2010 in Case R 985/2009-2; |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 17 February 2010 in Case R 985/2009-2;

| — | 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 ‘TRUEWHITE’ for goods in Classes 9 and 11.

Decision of the Examiner: Rejection of the application.

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

Pleas in law: Infringement of Article 4, Article 7(1)(b) and Article 7(2) of Regulation (EC) No 207/2009, (1) because the trade mark concerned is distinctive.

Infringement of Article 7(1)(c) and Article 7(2) of Regulation (EC) No 207/2009, (2) because the trade mark concerned is not descriptive.

---

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

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

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/54 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/54

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Action brought on 5 May 2010 — Deutscher Ring v OHIM (Deutscher Ring Sachversicherungs-AG)

(Case T-209/10)

(2010/C 179/92)

Language in which the application was lodged: German

Parties

Applicant: Deutscher Ring Sachversicherungs-AG (Hamburg, Germany) (represented by A. Busse, lawyer)

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

Form of order sought

| — | Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 11 March 2010 in Case R 1290/2009-1 and register the trade mark applied for; and |
| --- | --- |

—

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 1290/2009-1 and register the trade mark applied for; 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: Word mark ‘Deutscher Ring Sachversicherungs-AG’ for services in Class 36.

Decision of the Examiner: Rejection of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation (EC) No 207/2009, (1) since the Community trade mark concerned is distinctive and not merely descriptive.

---

(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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| 3.7.2010 | EN | Official Journal of the European Union | C 179/54 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/54

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Action brought on 14 May 2010 — Autogrill España v Commission

(Case T-219/10)

(2010/C 179/93)

Language of the case: Spanish

Parties

Applicant: Autogrill España, 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

| — | that the pleas for annulment contained in the application be admitted and upheld; |
| --- | --- |

—

that the pleas for annulment contained in the application be admitted and upheld;

| — | that Article 1(1) be annulled in so far as it states that Article 12(5) of the Amended Law on Corporation Tax (TRLIS) contains elements of State aid; |
| --- | --- |

—

that Article 1(1) be annulled in so far as it states that Article 12(5) of the Amended Law on Corporation Tax (TRLIS) contains elements of State aid;

| — | in the alternative, that Article 4 be annulled in so far as it makes the recovery order applicable to transactions which were completed prior to the publication, in the Official Journal of the European Union, of the final decision which is the subject-matter of this action; and |
| --- | --- |

—

in the alternative, that Article 4 be annulled in so far as it makes the recovery order applicable to transactions which were completed prior to the publication, in the Official Journal of the European Union, of the final decision which is the subject-matter of this action; and

| — | that the Commission be ordered to pay the costs. |
| --- | --- |

—

that the Commission be ordered to pay the costs.

Pleas in law and main arguments

The contested decision in the present case finds the aid scheme introduced by Spain, in accordance with Article 12(5) TRLIS, incompatible with the common market, as regards aid granted to beneficiaries to make intra-Community acquisitions. In that regard, it states that the aforementioned provision allows for the deduction for tax purposes of amortization of the financial goodwill resulting from a foreign shareholding acquisition of greater than 5 %.

In support of its claims, the applicant submits the followings pleas:

| 1. | The contested decision infringes Article 107(1) TFEU in that it finds that the measure at issue constitutes State aid. The applicant contends, in that regard, that the Commission has not proved that the tax measure examined favours ‘specific undertakings or the production of specific goods’, as required under Article 107(1) TFEU. The Commission merely assumes that the measure is selective on the basis of the fact that it applies only to the acquisition of shareholdings in foreign companies and not in domestic companies. The applicant considers that reasoning to be erroneous and circular: the fact that application of the measure examined — as for any other tax rule — depends on the fulfilment of certain objective requirements does not render it, in law or fact, a selective measure. In fact, the mechanical nature of the Commission’s reasoning would result in every tax measure being considered to be prima facie selective.
  For the sake of completeness, both a legal analysis of the measure, and the statistics produced by the Kingdom of Spain, show that Article 12(5) TRLIS is a general measure open, in law and fact, to all undertakings which are subject to Spanish corporation tax irrespective of their size, nature, sector or origin.
  Second, the prima facie different treatment under Article 12(5) TRLIS, far from constituting a selective advantage serves to place all transactions for the acquisition of shares on an equal tax footing, be those shares national or foreign; as, if, owing to the impossibility to complete cross-border mergers, the amortization of financial goodwill can only be carried out at a national level to the extent that there are rules in the tax system which allow it, Article 12(5) TRLIS does no more than extend that possibility to the purchase of shares in foreign companies.
  In the alternative, the Commission’s decision is disproportionate, since, its application in cases where control is taken of foreign undertakings should be, at least, equivalent to cases of national mergers and therefore justified by the nature and broad logic of the Spanish system. |
| --- | --- |

1.

The contested decision infringes Article 107(1) TFEU in that it finds that the measure at issue constitutes State aid. The applicant contends, in that regard, that the Commission has not proved that the tax measure examined favours ‘specific undertakings or the production of specific goods’, as required under Article 107(1) TFEU. The Commission merely assumes that the measure is selective on the basis of the fact that it applies only to the acquisition of shareholdings in foreign companies and not in domestic companies. The applicant considers that reasoning to be erroneous and circular: the fact that application of the measure examined — as for any other tax rule — depends on the fulfilment of certain objective requirements does not render it, in law or fact, a selective measure. In fact, the mechanical nature of the Commission’s reasoning would result in every tax measure being considered to be prima facie selective.

For the sake of completeness, both a legal analysis of the measure, and the statistics produced by the Kingdom of Spain, show that Article 12(5) TRLIS is a general measure open, in law and fact, to all undertakings which are subject to Spanish corporation tax irrespective of their size, nature, sector or origin.

Second, the prima facie different treatment under Article 12(5) TRLIS, far from constituting a selective advantage serves to place all transactions for the acquisition of shares on an equal tax footing, be those shares national or foreign; as, if, owing to the impossibility to complete cross-border mergers, the amortization of financial goodwill can only be carried out at a national level to the extent that there are rules in the tax system which allow it, Article 12(5) TRLIS does no more than extend that possibility to the purchase of shares in foreign companies.

In the alternative, the Commission’s decision is disproportionate, since, its application in cases where control is taken of foreign undertakings should be, at least, equivalent to cases of national mergers and therefore justified by the nature and broad logic of the Spanish system.

| 2. | Infringement of Article 107(1) TFEU resulting from an error of law in identifying the beneficiaries of the measure.
  In the alternative, although it considers that Article 12(5) TRLIS contains elements of State aid, the Commission ought to have carried out an exhaustive economic analysis to ascertain who the beneficiaries of the aid scheme were. The applicant claims, in any event, that the beneficiaries of the aid (in the form of an inflated purchase price for the shares) were those selling the shares and not, as the Commission alleges, the Spanish firms who applied that measure. |
| --- | --- |

2.

Infringement of Article 107(1) TFEU resulting from an error of law in identifying the beneficiaries of the measure.

In the alternative, although it considers that Article 12(5) TRLIS contains elements of State aid, the Commission ought to have carried out an exhaustive economic analysis to ascertain who the beneficiaries of the aid scheme were. The applicant claims, in any event, that the beneficiaries of the aid (in the form of an inflated purchase price for the shares) were those selling the shares and not, as the Commission alleges, the Spanish firms who applied that measure.

| 3. | Lastly, the applicant claims breach of the principle of protection of legitimate expectations with respect to the breadth of the temporal scope of the recovery order. |
| --- | --- |

3.

Lastly, the applicant claims breach of the principle of protection of legitimate expectations with respect to the breadth of the temporal scope of the recovery order.

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/55 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/55

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Action brought on 18 May 2010 — Iberdrola v Commission

(Case T-221/10)

(2010/C 179/94)

Language of the case: Spanish

Parties

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

Defendant: European Commission

Form of order sought

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

—

Annulment of Article 1(1) of the Decision;

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

—

Order the Commission to pay all of the costs arising from the proceedings.

Pleas in law and main arguments

The decision which is the subject-matter of the present case is the same as in Case T-219/10 Autogrill España v Commission.

The pleas and main arguments are similar to those relied on in that case. In particular, the applicant claims:

| — | that the Commission committed a manifest error of assessment by finding that the measure in Article 12(5) TRLIS constitutes State aid which is incompatible with the internal market, given that it did not take account of the positive effects resulting from that measure and ignored the beneficial effect of that measure for the attainment of objectives pursued by other rules in the Treaty; |
| --- | --- |

—

that the Commission committed a manifest error of assessment by finding that the measure in Article 12(5) TRLIS constitutes State aid which is incompatible with the internal market, given that it did not take account of the positive effects resulting from that measure and ignored the beneficial effect of that measure for the attainment of objectives pursued by other rules in the Treaty;

| — | that the Commission breached the principles of protection of legitimate expectations and of equal treatment by departing from the guidelines in the Communication on direct taxation and its administrative practice adopted in line with that communication; |
| --- | --- |

—

that the Commission breached the principles of protection of legitimate expectations and of equal treatment by departing from the guidelines in the Communication on direct taxation and its administrative practice adopted in line with that communication;

| — | that the Commission breached the principle of sound administration — which requires it to examine, in a diligent, detailed and impartial manner, all aspects relevant to the case — by not continuing the proceeding (as it has done in respect of extra-Community acquisitions) to establish the alleged selectivity of the measure and verify, before making a finding in that regard, the precise extent of the practical obstacles to an intra-Community commercial merger; |
| --- | --- |

—

that the Commission breached the principle of sound administration — which requires it to examine, in a diligent, detailed and impartial manner, all aspects relevant to the case — by not continuing the proceeding (as it has done in respect of extra-Community acquisitions) to establish the alleged selectivity of the measure and verify, before making a finding in that regard, the precise extent of the practical obstacles to an intra-Community commercial merger;

| — | that the Commission has infringed its obligation to respect the scheme of the Treaty and to ensure the consistent application of the rules relating to supervision of State aid and those relating to other principles and freedoms contained in the Treaty such as the free movement of capital and the creation of the internal market; |
| --- | --- |

—

that the Commission has infringed its obligation to respect the scheme of the Treaty and to ensure the consistent application of the rules relating to supervision of State aid and those relating to other principles and freedoms contained in the Treaty such as the free movement of capital and the creation of the internal market;

| — | that the contested decision lacks sufficient reasoning in relation to specific significant aspects of the Commission’s assessment of the measure’s selectivity and its effect on competition and trade between Member States. |
| --- | --- |

—

that the contested decision lacks sufficient reasoning in relation to specific significant aspects of the Commission’s assessment of the measure’s selectivity and its effect on competition and trade between Member States.

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/56 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/56

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Action brought on 20 May 2010 — Regione Puglia v Commission

(Case T-223/10)

(2010/C 179/95)

Language of the case: Italian

Parties

Applicant: Regione Puglia (Bari, Italy) (represented by: F. Brunelli and A. Aloia, lawyers)

Defendant: European Commission

Form of order sought

| — | Annul Debit Note No 3241001630 of the European Commission of 26 February 2010. |
| --- | --- |

—

Annul Debit Note No 3241001630 of the European Commission of 26 February 2010.

| — | Order the Commission to pay the costs, including a fixed amount for general costs. |
| --- | --- |

—

Order the Commission to pay the costs, including a fixed amount for general costs.

Pleas in law and main arguments

The present action is brought against the debit note issued by the Commission on 26 February 2010 in implementation of Decision C(2009) 10350 of 22 December 2009 concerning the cancellation of part of the contribution from the European Regional Development Fund (ERDF) allocated to the operational programme POR Puglia Obiettivo 1 2000-2006. That decision was challenged by the Regione Puglia and by Italy in Case T-84/10 (1) and Case T-117/10 (2) respectively.

In support of its claims, the applicant puts forward the following pleas:

| — | Decision C(2009) 10350 of 22 December 2009 is unlawful, on the basis of the pleas in law and main arguments already relied on in Case T-84/10. |
| --- | --- |

—

Decision C(2009) 10350 of 22 December 2009 is unlawful, on the basis of the pleas in law and main arguments already relied on in Case T-84/10.

| — | Infringement of Article 7(2) of Commission Regulation (EC) No 448/2001 of 2 March 2001 laying down detailed rules for the implementation of Council Regulation (EC) No 1260/1999 as regards the procedure for making financial corrections to assistance granted under the Structural Funds, (3) which provides for the application of a rate of interest of 1,5 % above the rate applied by the European Central Bank in its main refinancing operations, since the contested debit note provides that the rate of interest to be charged is that published in the OJEU on 1 April 2010, increased by 3,5 %. |
| --- | --- |

—

Infringement of Article 7(2) of Commission Regulation (EC) No 448/2001 of 2 March 2001 laying down detailed rules for the implementation of Council Regulation (EC) No 1260/1999 as regards the procedure for making financial corrections to assistance granted under the Structural Funds, (3) which provides for the application of a rate of interest of 1,5 % above the rate applied by the European Central Bank in its main refinancing operations, since the contested debit note provides that the rate of interest to be charged is that published in the OJEU on 1 April 2010, increased by 3,5 %.

---

(1)  OJ C 113, 1.5.10, p. 58.

(2)  Not yet published in the OJ.

(3)  OJ L 64, 6.3.2001, p. 13.

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/56 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/56

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Action brought on 18 May 2010 — Banco Bilbao Vizcaya Argentaria v Commission

(Case T-225/10)

(2010/C 179/96)

Language of the case: Spanish

Parties

Applicant: Banco Bilbao Vizcaya Argentaria, SA (Bilbao, 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

| — | Annulment of Article 1(1) of the contested decision in so far as it states that Article 12(5) TRLIS (Amended Law on Corporation Tax) contains elements of State aid; |
| --- | --- |

—

Annulment of Article 1(1) of the contested decision in so far as it states that Article 12(5) TRLIS (Amended Law on Corporation Tax) contains elements of State aid;

| — | In the alternative, annulment of Article 1(1) of the contested decision in so far as it states that Article 12(5) TRLIS contains elements of State aid where it applies to share acquisitions which result in acquisition of control; and |
| --- | --- |

—

In the alternative, annulment of Article 1(1) of the contested decision in so far as it states that Article 12(5) TRLIS contains elements of State aid where it applies to share acquisitions which result in acquisition of control; and

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

—

Order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The decision against which the present action is brought is the same as that contested in Cases T-219/10 Autogrill España v Commission and T-221/10 Iberdrola v Commission.

The pleas and main arguments are similar to those relied on in the context of those cases.

They allege, in essence, errors of law both in the legal classification of the measure as State aid and in identifying the beneficiaries of that measure.

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/57 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/57

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Order of the General Court of 11 May 2010 — Shetland Islands Council v Commission

(Case T-43/08) (1)

(2010/C 179/97)

Language of the case: English

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

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(1)  OJ C 92, 12.4.2008.

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/57 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/57

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Order of the General Court of 11 May 2010 — Shetland Islands Council v Commission

(Case T-44/08) (1)

(2010/C 179/98)

Language of the case: English

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

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(1)  OJ C 107, 26.4.2008.

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/57 |
| --- | --- | --- | --- |

3.7.2010

EN

Official Journal of the European Union

C 179/57

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Order of the General Court of 11 May 2010 — Polson and Others v Commission

(Case T-197/08) (1)

(2010/C 179/99)

Language of the case: English

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

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(1)  OJ C 209, 15.8.2008.

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European Union Civil Service Tribunal

| 3.7.2010 | EN | Official Journal of the European Union | C 179/58 |
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3.7.2010

EN

Official Journal of the European Union

C 179/58

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Action brought on 6 May 2010 — Costa v Commission

(Case F-26/10)

(2010/C 179/100)

Language of the case: French

Parties

Applicant: Antonino Costa (Thionville, France) (represented by: L. Levi and M. Vandenbussche, lawyers)

Defendant: European Commission

Subject-matter and description of the proceedings

Annulment of the decision to exclude the applicant from the 2009 promotion exercise and order that the defendant pay to him a sum of compensation for non-material damage.

Form of order sought

| — | annul the decision of the appointing authority, known to the applicant on 22 November 2009, to exclude him from the 2009 promotion exercise; |
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annul the decision of the appointing authority, known to the applicant on 22 November 2009, to exclude him from the 2009 promotion exercise;

| — | so far as necessary, annul the decision of 27 January 2010 rejecting the complaint; |
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so far as necessary, annul the decision of 27 January 2010 rejecting the complaint;

| — | consequently, oblige the defendant to recommence properly the 2009 promotion exercise, in which the applicant should be included; |
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consequently, oblige the defendant to recommence properly the 2009 promotion exercise, in which the applicant should be included;

| — | order the defendant to pay a sum of EUR 25 000 in compensation for non-material damage; |
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order the defendant to pay a sum of EUR 25 000 in compensation for non-material damage;

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

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/58 |
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3.7.2010

EN

Official Journal of the European Union

C 179/58

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Action brought on 5 May 2010 — Begue and Others v Commission

(Case F-27/10)

(2010/C 179/101)

Language of the case: French

Parties

Applicants: Christian Begue (Marcy, France) and Others (represented by: A. Woimant, lawyer)

Defendant: European Commission

Subject-matter and description of the proceedings

Annulment of the decision refusing the applicants payment with retroactive effect of the allowance for standby duty referred to in Article 56b of the Staff Regulations.

Form of order sought

The applicants claim that the Tribunal should:

| — | Annul the decision (No R/467/09) of the authority authorised to conclude contracts rejecting the applicants ‘complaints’ against the rejection of 3 September 2009 concerning the application for payment with retroactive effect of the allowance for standby duty referred to in Article 56b of the Staff Regulations of Officials; |
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Annul the decision (No R/467/09) of the authority authorised to conclude contracts rejecting the applicants ‘complaints’ against the rejection of 3 September 2009 concerning the application for payment with retroactive effect of the allowance for standby duty referred to in Article 56b of the Staff Regulations of Officials;

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

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/58 |
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3.7.2010

EN

Official Journal of the European Union

C 179/58

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Action brought on 7 May 2010 —  VE (*1) v Commission

(Case F-28/10)

(2010/C 179/102)

Language of the case: French

Parties

Applicant: VE (*1) (represented by: L. Vogel, lawyer)

Defendant: European Commission

Subject-matter and description of the proceedings

Annulment of the decision terminating the payment of the expatriation allowance previously granted to the applicant.

Form of order sought

The applicant claims that the Tribunal should:

| — | Annul the decision adopted by the authority authorised to conclude contracts (AACC) on 18 June 2009, by which the payment of the expatriation allowance which had been previously granted to the applicant, under Article 4 of Annex VII to the Staff Regulations, was terminated, and the decision adopted by the AACC on 28 January 2010 by which the complaint brought by the applicant on 2 October 2009 was rejected; |
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Annul the decision adopted by the authority authorised to conclude contracts (AACC) on 18 June 2009, by which the payment of the expatriation allowance which had been previously granted to the applicant, under Article 4 of Annex VII to the Staff Regulations, was terminated, and the decision adopted by the AACC on 28 January 2010 by which the complaint brought by the applicant on 2 October 2009 was rejected;

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

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(*1)  Information erased or replaced within the framework of protection of personal data and/or confidentiality.

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/59 |
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3.7.2010

EN

Official Journal of the European Union

C 179/59

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Action brought on 11 May 2010 — Lorenzo v EESC

(Case F-29/10)

(2010/C 179/103)

Language of the case: French

Parties

Applicant: Guillermo Lorenzo (Brussels, Belgium) (represented by: N. Lhoëst, lawyer)

Defendant: European Economic and Social Committee

Subject-matter and description of the proceedings

Annulment of the decision not to include the applicant among the officials promoted to grade AD13 under the 2009 promotion procedure.

Form of order sought

The applicant claims that the Tribunal should:

| — | Annul the decision of the EESC appointing authority, adopted and published on 30 June 2009, not to include the applicant’s name on the list of officials promoted to grade AD 13 under the 2009 promotion procedure; |
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Annul the decision of the EESC appointing authority, adopted and published on 30 June 2009, not to include the applicant’s name on the list of officials promoted to grade AD 13 under the 2009 promotion procedure;

| — | So far as necessary, annul the EESC appointing authority’s decision of 5 February 2010 rejecting the complaint brought by the applicant under Article 90(2) of the Staff Regulations; |
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So far as necessary, annul the EESC appointing authority’s decision of 5 February 2010 rejecting the complaint brought by the applicant under Article 90(2) of the Staff Regulations;

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

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/59 |
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3.7.2010

EN

Official Journal of the European Union

C 179/59

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Action brought on 12 May 2010 — de Fays v Commission

(Case F-30/10)

(2010/C 179/104)

Language of the case: French

Parties

Applicant: Philippe de Fays (Malèves Sainte Marie Wastinnes, Belgium) (represented by: N. Soldatos, lawyer)

Defendant: European Commission

Subject-matter and description of the proceedings

Annulment of the decision refusing to recognise the occupational nature of the disease suffered by the applicant.

Form of order sought

| — | annul the decisions of the appointing authority of 8 September 2009 and 12 February 2010 and recognise that the applicant has been unfit to work because of occupational disease since 15 May 2005; |
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annul the decisions of the appointing authority of 8 September 2009 and 12 February 2010 and recognise that the applicant has been unfit to work because of occupational disease since 15 May 2005;

| — | alternatively and secondarily, again appoint a medical committee consisting of doctors with expertise in diseases caused by ionising radiation with the task of establishing whether, in the course of carrying out his professional duties, the applicant was exposed to the risk of contracting a disease caused by ionising radiation; |
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alternatively and secondarily, again appoint a medical committee consisting of doctors with expertise in diseases caused by ionising radiation with the task of establishing whether, in the course of carrying out his professional duties, the applicant was exposed to the risk of contracting a disease caused by ionising radiation;

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

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/59 |
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3.7.2010

EN

Official Journal of the European Union

C 179/59

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Action brought on 14 May 2010 — Guittet v Commission

(Case F-31/10)

(2010/C 179/105)

Language of the case: French

Parties

Applicant: Christian Guittet (Cannes, France) (represented by: L. Levi, lawyer)

Defendant: European Commission

Subject-matter and description of the proceedings

First, annulment of the decision to close the oral procedure opened under Article 73 of the Staff Regulations, granting the applicant a rate of permanent invalidity of 64.5 %, and, secondly, an application for compensation for the material and non-material harm suffered.

Form of order sought

The applicant claims that the Tribunal should:

| — | annul the decision of the appointing authority of 27 July 2009 closing the procedure opened under Article 73 of the Staff Regulations following the applicant’s accident of 8 December 2003; |
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annul the decision of the appointing authority of 27 July 2009 closing the procedure opened under Article 73 of the Staff Regulations following the applicant’s accident of 8 December 2003;

| — | so far as necessary, annul the decision of 16 February 2010 rejecting the applicant’s complaint; |
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so far as necessary, annul the decision of 16 February 2010 rejecting the applicant’s complaint;

| — | as a result, conclude that the rate of permanent partial invalidity (PPI) be evaluated on the basis of the rules and the scale for evaluation in force at the date of the accident and until 1 January 2006, that the application brought by the applicant under Article 73 of the Staff Regulations be re-examined by a medical committee made up of an impartial, independent and neutral body which can work quickly, with complete independence and without bias; |
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as a result, conclude that the rate of permanent partial invalidity (PPI) be evaluated on the basis of the rules and the scale for evaluation in force at the date of the accident and until 1 January 2006, that the application brought by the applicant under Article 73 of the Staff Regulations be re-examined by a medical committee made up of an impartial, independent and neutral body which can work quickly, with complete independence and without bias;

| — | order the defendant to pay default interest on the capital due under Article 73 of the Staff Regulations at a rate of 12 % over a period which opened at the latest on 8 December 2004, until complete payment of the capital; |
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order the defendant to pay default interest on the capital due under Article 73 of the Staff Regulations at a rate of 12 % over a period which opened at the latest on 8 December 2004, until complete payment of the capital;

| — | order the defendant to pay damages, fixed on equitable principles at EUR 50 000, in respect of the non-material harm suffered as a result of the decision taken; |
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order the defendant to pay damages, fixed on equitable principles at EUR 50 000, in respect of the non-material harm suffered as a result of the decision taken;

| — | order the defendant to pay damages, fixed at EUR 15 000, in respect of the material harm suffered as a result of the decision taken; |
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order the defendant to pay damages, fixed at EUR 15 000, in respect of the material harm suffered as a result of the decision taken;

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

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| 3.7.2010 | EN | Official Journal of the European Union | C 179/60 |
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3.7.2010

EN

Official Journal of the European Union

C 179/60

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Action brought on 14 May 2010 — Wilk v Commission

(Case F-32/10)

(2010/C 179/106)

Language of the case: French

Parties

Applicant: Christian Wilk (Trier, Germany) (represented by: R. Adam, lawyer)

Defendant: European Commission

Subject-matter and description of the proceedings

Annulment of decisions ordering recovery of one half of the installation allowance paid to the applicant following his divorce, and an application for damages.

Form of order sought

| — | annul the Commission decisions of 20 August 2009 and 8 September 2009 ordering recovery of alleged overpayment; |
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annul the Commission decisions of 20 August 2009 and 8 September 2009 ordering recovery of alleged overpayment;

| — | annul the Commission decision of 15 February 2010 upholding that recovery; |
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annul the Commission decision of 15 February 2010 upholding that recovery;

| — | order the Commission to repay the sum taken back by the Commission with interest at the statutory rate from the date of recovery until settlement; |
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order the Commission to repay the sum taken back by the Commission with interest at the statutory rate from the date of recovery until settlement;

| — | order the Commission to pay damages for having seriously damaged the applicant’s image and reputation; |
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order the Commission to pay damages for having seriously damaged the applicant’s image and reputation;

| — | alternatively, reserve to the applicant the right to claim additional damages for the harm suffered; |
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alternatively, reserve to the applicant the right to claim additional damages for the harm suffered;

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

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