# Official Journal C 298/2011

| | ISSN 1977-091X
  doi:10.3000/1977091X.C_2011.298.eng |
| --- | --- |
| Official Journal
  of the European Union | C 298 |
| | |
| English edition | Information and Notices | Volume 548 October 2011 |

ISSN 1977-091X

doi:10.3000/1977091X.C_2011.298.eng

Official Journal

of the European Union

C 298

English edition

Information and Notices

Volume 548 October 2011

---

| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | Court of Justice of the European Union |
| 2011/C 298/01 | Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 282, 1.10.2011 | 1 |

Notice No

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

2011/C 298/01

Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 282, 1.10.2011

Official Journal of the European Union

1

| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2011/C 298/02 | Case C-195/09: Judgment of the Court (Second Chamber) of 28 July 2011 (reference for a preliminary ruling from the High Court of Justice (England and Wales) (Chancery Division) (United Kingdom)) — Synthon BV v Merz Pharma GmbH & Co KGaA (Patent law — Medicinal products — Supplementary protection certificate for medicinal products — Regulation (EEC) No 1768/92 — Article 2 — Scope — Safety and efficacy testing laid down by Directive 65/65/EEC — Absence — Invalidity of the certificate) | 2 |
| 2011/C 298/03 | Joined Cases C-400/09 and C-207/10: Judgment of the Court (First Chamber) of 28 July 2011 (references for a preliminary ruling from the Højesteret — Denmark) — Orifarm A/S, Orifarm Supply A/S, Handelsselskabet af 5. januar 2002 A/S, in liquidation, Ompakningsselskabet af 1. november 2005 A/S (C-400/09), Paranova Danmark A/S, Paranova Pack A/S (C-207/10) v Merck Sharp & Dohme Corporation (formerly Merck & Co.), Merck Sharp & Dohme BV, Merck Sharp & Dohme (Trade marks — Directive 89/104/EEC — Article 7(2) — Pharmaceutical products — Parallel imports — Repackaging of the product bearing the trade mark — New packaging indicating as the repackager the holder of the marketing authorisation on whose instructions the product was repackaged — Physical repackaging carried out by a separate undertaking) | 2 |
| 2011/C 298/04 | Case C-427/09: Judgment of the Court (Second Chamber) of 28 July 2011 (reference for a preliminary ruling from the Court of Appeal (England and Wales) (Civil Division) (United Kingdom)) — Generics (UK) Ltd v Synaptech Inc (Patent law — Medicinal products — Supplementary protection certificate for medicinal products — Regulation (EEC) No 1768/92 — Article 2 — Scope) | 3 |
| 2011/C 298/05 | Joined Cases C-471/09 P to C-473/09 P: Judgment of the Court (Third Chamber) of 28 July 2011 — Territorio Histórico de Vizcaya — Diputación Foral de Vizcaya (C-471/09 P), Territorio Histórico de Álava — Diputación Foral de Álava (C-472/09 P), Territorio Histórico de Guipúzcoa — Diputación Foral de Guipúzcoa (C-473/09 P) v European Commission, Comunidad Autónoma del País Vasco — Gobierno Vasco, Comunidad Autónoma de la Rioja, Camara Oficial de Comercio, Industria y Navegación de Vizcaya, Cámara Oficial de Comercio e Industria de Álava, Cámara Oficial de Comercio, Industria y Navegación de Guipúzcoa, and Confederación Empresarial Vasca (Confebask) (Appeal — State aid — Action for annulment — Commission Decisions on State aid schemes implemented by Spain for firms in the provinces of Vizcaya, Álava and Guipúzcoa — Tax credit amounting to 45 % of investments — Legitimate expectations — Principle of proportionality — Principles of legal certainty and good administration — Action within a reasonable time — Failure to notify) | 4 |
| 2011/C 298/06 | Joined Cases C-474/09 P to C-476/09 P: Judgment of the Court (Third Chamber) of 28 July 2011 — Territorio Histórico de Vizcaya — Diputación Foral de Vizcaya (C-474/09 P), Territorio Histórico de Álava — Diputación Foral de Álava (C-475/09 P), Territorio Histórico de Guipúzcoa — Diputación Foral de Guipúzcoa (C-476/09 P) v European Commission, Comunidad Autónoma del País Vasco — Gobierno Vasco, Comunidad Autónoma de la Rioja, Cámara Oficial de Comercio, Industria y Navegación de Vizcaya, Cámara Oficial de Comercio e Industria de Álava, Cámara Oficial de Comercio, Industria y Navegación de Guipúzcoa, Confederación Empresarial Vasca (Confebask) (Appeal — State aid — Actions for annulment — Decisions of the Commission concerning the State aid schemes implemented by Spain in favour of undertakings in the provinces of Vizcaya, Álava and Guipúzcoa — Reductions in the tax base for certain newly-created undertakings — Legitimate expectations — Principles of legal certainty and sound administration — Compliance with a reasonable time-limit — Lack of notification) | 4 |
| 2011/C 298/07 | Case C-554/09: Judgment of the Court (First Chamber) of 28 July 2011 (reference for a preliminary ruling from the Oberlandesgericht Stuttgart (Germany)) — Criminal proceedings against Andreas Michael Seeger (Road transport — Obligation to use recording equipment — Derogations for vehicles transporting materials — Meaning of materials — Carriage of empty bottles in the vehicle of a wine and drinks merchant) | 5 |
| 2011/C 298/08 | Case C-69/10: Judgment of the Court (Second Chamber) of 28 July 2011 (reference for a preliminary ruling from the Tribunal Administratif (Luxembourg)) — Brahim Samba Diouf v Ministre du Travail, de l’Emploi et de l’Immigration (Directive 2005/85/EC — Minimum standards on procedures in Member States for granting and withdrawing refugee status — Decision taken on (the) application for asylum within the meaning of Article 39 of Directive 2005/85 — Application by a third country national for refugee status — Failure to provide reasons justifying the grant of international protection — Application rejected under an accelerated procedure — No remedy against the decision to deal with the application under an accelerated procedure — Right to effective judicial review) | 6 |
| 2011/C 298/09 | Case C-71/10: Judgment of the Court (Third Chamber) of 28 July 2011 (reference for a preliminary ruling from the Supreme Court of the United Kingdom (United Kingdom) — Office of Communications v Information Commissioner (Public access to environmental information — Directive 2003/4/EC — Article 4 — Exceptions to the right of access — Request for access involving more than one of the interests protected under Article 4(2) of that directive) | 6 |
| 2011/C 298/10 | Case C-106/10: Judgment of the Court (Seventh Chamber) of 28 July 2011 (reference for a preliminary ruling from the Supremo Tribunal Administrativo (Portugal)) — Lidl & Companhia v Fazenda Pública (Taxation — Directive 2006/112/EC — VAT — Taxable amount — Tax payable on the manufacture, assembly, admission or import of vehicles) | 7 |
| 2011/C 298/11 | Case C-133/10: Judgment of the Court (Fifth Chamber) of 28 July 2011 — European Commission v Kingdom of Belgium (Failure of a Member State to fulfil obligations — Directive 2005/81/EC — Transparency of financial relations between Member States and public undertakings — Undertaking subject to the obligation of keeping separate accounts — Non-transposition within the period prescribed) | 7 |
| 2011/C 298/12 | Case C-215/10: Judgment of the Court (Seventh Chamber) of 28 July 2011 (reference for a preliminary ruling from the First-tier Tribunal (Tax Chamber) (United Kingdom)) — Pacific World Limited, FDD International Limited v Commissioners for Her Majesty’s Revenue and Customs (Common Customs Tariff — Tariff classification — Combined Nomenclature — Moulded plastic false nail sets — Validity of Regulation (EC) No 1417/2007 — Other articles of plastics (heading 3926) — Manicure or pedicure preparations (heading 3304) — Manicure or pedicure sets and instruments (heading 8214)) | 7 |
| 2011/C 298/13 | Case C-270/10: Judgment of the Court (Fifth Chamber) of 28 July 2011 (reference for a preliminary ruling from the Korkein hallinto-oikeus — Finland) — proceedings brought by Lotta Gistö (Protocol on the Privileges and Immunities of the European Communities — Article 14, first paragraph — Determination of the domicile for tax purposes of the spouse of a European Union official — National legislation under which a person who has lived abroad for three years is no longer regarded as resident in the country and thus no longer subject to general tax liability) | 8 |
| 2011/C 298/14 | Case C-274/10: Judgment of the Court (Third Chamber) of 28 July 2011 — European Commission v Republic of Hungary (Failure of a Member State to fulfil obligations — Taxation — VAT — Directive 2006/112/EC — Right to deduct — Procedures for exercise — Article 183 — National legislation allowing the refund of VAT excess only if it exceeds the amount of input tax corresponding to transactions not yet paid for) | 8 |
| 2011/C 298/15 | Case C-309/10: Judgment of the Court (Eighth Chamber) of 28 July 2011 (reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria)) — Agrana Zucker GmbH v Bundesminister für Land- und Forstwirtschaft, Umwelt und Wasserwirtschaft (Sugar — Temporary scheme for the restructuring of the sugar industry in the European Community — Regulation (EC) No 320/2006 — Article 11 — Revenue surplus in the restructuring fund — Assignment to the EAGF — Principle of conferral and principle of proportionality — Obligation to state reasons — Unjust enrichment) | 9 |
| 2011/C 298/16 | Case C-350/10: Judgment of the Court (Fourth Chamber) of 28 July 2011 (reference for a preliminary ruling from the Korkein hallinto-oikeus (Finland)) — proceedings brought by Nordea Pankki Suomi Oyj (Reference for a preliminary ruling — Sixth VAT Directive — Article 13B(d)(3) and (5) — Exemptions — Transfers and payments — Transactions in securities — Electronic messaging services for financial institutions) | 9 |
| 2011/C 298/17 | Case C-403/10 P: Judgment of the Court (Third Chamber) of 28 July 2011 — Mediaset SpA v European Commission, Sky Italia Srl (Appeal — Subsidies granted by the Italian Republic to promote the purchase of digital decoders — Non-inclusion of decoders for the reception solely of television programmes broadcast by satellite — Decision declaring the aid to be incompatible with the common market) | 9 |
| 2011/C 298/18 | Case C-548/10: Judgment of the Court (Seventh Chamber) of 28 July 2011 — European Commission v Republic of Austria (Failure of a Member State to fulfil obligations — Directive 2007/2/EC — Environmental policy — Infrastructure for Spatial Information in the European Community (INSPIRE) — Exchange and updating of data in electronic format — Incomplete transposition) | 10 |
| 2011/C 298/19 | Case C-329/11: Reference for a preliminary ruling from the Cour d’Appel de Paris (France) lodged on 29 June 2011 — Alexandre Achughbabian v Préfet du Val-de-Marne | 10 |
| 2011/C 298/20 | Case C-366/11: Action brought on 8 July 2011 — European Commission v Kingdom of Belgium | 10 |
| 2011/C 298/21 | Case C-376/11: Reference for a preliminary ruling from the Cour d’appel de Bruxelles (Belgium) lodged on 15 July 2011 — Pie Optiek v Bureau Gevers, European Registry for Internet Domains | 11 |
| 2011/C 298/22 | Case C-379/11: Reference for a preliminary ruling from the Cour administrative (Luxembourg) lodged on 18 July 2011 — Caves Krier Frères S.àr.l v Directeur de l’Administration de l’emploi | 11 |
| 2011/C 298/23 | Case C-380/11: Reference for a preliminary ruling from the Tribunal administratif (Luxembourg) lodged on 18 July 2011 — DI. VI. Finanziaria S.A.P.A. di Diego della Valle & C. v Administration des contributions directes | 12 |
| 2011/C 298/24 | Case C-382/11: Reference for a preliminary ruling from the Administrativen Sad Varna (Bulgaria) lodged on 18 July 2011 — M SAT CABLE AD v Nachalnik na Mitnicheski punkt — Varna Zapad pri Mitnitsa Varna | 12 |
| 2011/C 298/25 | Case C-383/11: Reference for a preliminary ruling from the Administrativen Sad Varna (Bulgaria) lodged on 18 July 2011 — Digitalnet OOD v Nachalnik na Mitnicheski punkt — Varna Zapad pri Mitnitsa Varna | 13 |
| 2011/C 298/26 | Case C-388/11: Reference for a preliminary ruling from the Conseil d’Etat lodged on 22 July 2011 — Société le Crédit Lyonnais v Ministre du budget, des comptes publics et de la réforme de l’Etat | 13 |
| 2011/C 298/27 | Case C-394/11: Reference for a preliminary ruling from the Komisia za zashtita ot diskriminatsia (Bulgaria) lodged on 25 July 2011 — Valeri Hariev Belov v ChEZ Elektro Balgaria АD and ChEZ Raspredelenie Balgaria АD | 14 |
| 2011/C 298/28 | Case C-404/11 P: Appeal brought on 29 July 2011 by Elf Aquitaine SA against the judgment delivered by the General Court (Second Chamber) on 17 May 2011 in Case T-299/08 Elf Aquitaine v Commission | 15 |
| 2011/C 298/29 | Case C-412/11: Action brought on 5 August 2011 — European Commission v Grand Duchy of Luxembourg | 16 |
| 2011/C 298/30 | Case C-414/11: Reference for a preliminary ruling from the Polimeles Protodikio Athinon (Greece) lodged on 8 August 2011 — Daiichi Sankyo Company Limited, Sanofi-Aventis Deutschland GmbH v DEMO Anonimos Viomikhaniki kai Emporiki Etairia Farmakon | 17 |
| 2011/C 298/31 | Case C-416/11 P: Appeal brought on 8 August 2011 by United Kingdom of Great Britain and Northern Ireland against the order of the General Court (Seventh Chamber) delivered on 24 May 2011 in Case T-115/10: United Kingdom of Great Britain and Northern Ireland v European Commission | 17 |
| 2011/C 298/32 | Case C-537/10 P: Order of the President of the Sixth Chamber of the Court of 12 July 2011 — Deltafina SpA v European Commission | 18 |
| 2011/C 298/33 | Case C-120/11: Order of the President of the Court of 13 July 2011 (reference for a preliminary ruling from the Tribunale di Santa Maria Capua Vetere (Italy)) — Criminal proceedings against Yeboah Kwadwo | 18 |
| | General Court |
| 2011/C 298/34 | Case T-360/11: Action brought on 17 June 2011 — Fercal — Consultadoria e Serviços v OHIM — Parfums Rochas (PATRIZIA ROCHA) | 19 |
| 2011/C 298/35 | Case T-396/11: Action brought on 22 July 2011 — ultra air v OHIM — Donaldson Filtration Deutschland (ultrafilter international) | 19 |
| 2011/C 298/36 | Case T-413/11: Action brought on 27 July 2011 — Welte-Wenu v OHIM — Commission (Representation of a circle of 12 stars on a blue background) | 20 |
| 2011/C 298/37 | Case T-414/11: Action brought on 29 July 2011 — Nutrichem Diät + Pharma v OHIM — Gervais Danone (Active) | 20 |
| 2011/C 298/38 | Case T-415/11: Action brought on 1 August 2011 — Hartmann v OHIM (Nutriskin Protection Complex) | 21 |
| 2011/C 298/39 | Case T-416/11: Action brought on 29 July 2011 — Biotronik SE v OHIM — Cardios Sistemas (CARDIO MANAGER) | 21 |
| 2011/C 298/40 | Case T-427/11: Action brought on 5 August 2011 — Laboratoire Bioderma v OHIM — Cabinet Continental (BIODERMA) | 21 |
| 2011/C 298/41 | Case T-435/11: Action brought on 8 August 2011 — Universal Display v OHIM (UniversalPHOLED) | 22 |
| 2011/C 298/42 | Case T-437/11: Action brought on 5 August 2011 — Golden Balls v OHIM — Intra-Presse (GOLDEN BALLS) | 22 |
| 2011/C 298/43 | Case T-443/11: Action brought on 8 August 2011 — Gold East Paper (Jiangsu) and Gold Huasheng Paper (Suzhou Industrial Park) v Council | 23 |
| 2011/C 298/44 | Case T-444/11: Action brought on 8 August 2011 — Gold East Paper (Jiangsu) and Gold Huasheng Paper (Suzhou Industrial Park) v Council | 24 |
| 2011/C 298/45 | Case T-447/11: Action brought on 9 August 2011 — Catinis v Commission | 24 |
| 2011/C 298/46 | Case T-448/11: Action brought on 5 August 2011 — Golden Balls v OHIM — Intra-Presse (GOLDEN BALLS) | 25 |
| 2011/C 298/47 | Case T-450/11: Action brought on 10 August 2011 — Galileo International Technology v OHIM — ESA (GALILEO) | 25 |
| 2011/C 298/48 | Case T-451/11: Action brought on 8 August 2011 — Giga-Byte Technology v OHIM — Haskins (Gigabyte) | 26 |
| 2011/C 298/49 | Case T-453/11: Action brought on 8 August 2011 — Szajner v OHIM — Forge de Laguiole (LAGUIOLE) | 26 |
| 2011/C 298/50 | Case T-456/11: Action brought on 12 August 2011 — ICdA and Others v Commission | 27 |
| 2011/C 298/51 | Case T-457/11: Action brought on 17 August 2011 — Valeo Vision v Commission | 27 |
| 2011/C 298/52 | Case T-458/11: Action brought on 18 August 2011 — Riche v Council and Commission | 28 |
| 2011/C 298/53 | Case T-463/11: Action brought on 23 August 2011 — Dectane v OHIM — Hella (DAYLINE) | 28 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2011/C 298/02

Case C-195/09: Judgment of the Court (Second Chamber) of 28 July 2011 (reference for a preliminary ruling from the High Court of Justice (England and Wales) (Chancery Division) (United Kingdom)) — Synthon BV v Merz Pharma GmbH & Co KGaA (Patent law — Medicinal products — Supplementary protection certificate for medicinal products — Regulation (EEC) No 1768/92 — Article 2 — Scope — Safety and efficacy testing laid down by Directive 65/65/EEC — Absence — Invalidity of the certificate)

2

2011/C 298/03

Joined Cases C-400/09 and C-207/10: Judgment of the Court (First Chamber) of 28 July 2011 (references for a preliminary ruling from the Højesteret — Denmark) — Orifarm A/S, Orifarm Supply A/S, Handelsselskabet af 5. januar 2002 A/S, in liquidation, Ompakningsselskabet af 1. november 2005 A/S (C-400/09), Paranova Danmark A/S, Paranova Pack A/S (C-207/10) v Merck Sharp & Dohme Corporation (formerly Merck & Co.), Merck Sharp & Dohme BV, Merck Sharp & Dohme (Trade marks — Directive 89/104/EEC — Article 7(2) — Pharmaceutical products — Parallel imports — Repackaging of the product bearing the trade mark — New packaging indicating as the repackager the holder of the marketing authorisation on whose instructions the product was repackaged — Physical repackaging carried out by a separate undertaking)

2

2011/C 298/04

Case C-427/09: Judgment of the Court (Second Chamber) of 28 July 2011 (reference for a preliminary ruling from the Court of Appeal (England and Wales) (Civil Division) (United Kingdom)) — Generics (UK) Ltd v Synaptech Inc (Patent law — Medicinal products — Supplementary protection certificate for medicinal products — Regulation (EEC) No 1768/92 — Article 2 — Scope)

3

2011/C 298/05

Joined Cases C-471/09 P to C-473/09 P: Judgment of the Court (Third Chamber) of 28 July 2011 — Territorio Histórico de Vizcaya — Diputación Foral de Vizcaya (C-471/09 P), Territorio Histórico de Álava — Diputación Foral de Álava (C-472/09 P), Territorio Histórico de Guipúzcoa — Diputación Foral de Guipúzcoa (C-473/09 P) v European Commission, Comunidad Autónoma del País Vasco — Gobierno Vasco, Comunidad Autónoma de la Rioja, Camara Oficial de Comercio, Industria y Navegación de Vizcaya, Cámara Oficial de Comercio e Industria de Álava, Cámara Oficial de Comercio, Industria y Navegación de Guipúzcoa, and Confederación Empresarial Vasca (Confebask) (Appeal — State aid — Action for annulment — Commission Decisions on State aid schemes implemented by Spain for firms in the provinces of Vizcaya, Álava and Guipúzcoa — Tax credit amounting to 45 % of investments — Legitimate expectations — Principle of proportionality — Principles of legal certainty and good administration — Action within a reasonable time — Failure to notify)

4

2011/C 298/06

Joined Cases C-474/09 P to C-476/09 P: Judgment of the Court (Third Chamber) of 28 July 2011 — Territorio Histórico de Vizcaya — Diputación Foral de Vizcaya (C-474/09 P), Territorio Histórico de Álava — Diputación Foral de Álava (C-475/09 P), Territorio Histórico de Guipúzcoa — Diputación Foral de Guipúzcoa (C-476/09 P) v European Commission, Comunidad Autónoma del País Vasco — Gobierno Vasco, Comunidad Autónoma de la Rioja, Cámara Oficial de Comercio, Industria y Navegación de Vizcaya, Cámara Oficial de Comercio e Industria de Álava, Cámara Oficial de Comercio, Industria y Navegación de Guipúzcoa, Confederación Empresarial Vasca (Confebask) (Appeal — State aid — Actions for annulment — Decisions of the Commission concerning the State aid schemes implemented by Spain in favour of undertakings in the provinces of Vizcaya, Álava and Guipúzcoa — Reductions in the tax base for certain newly-created undertakings — Legitimate expectations — Principles of legal certainty and sound administration — Compliance with a reasonable time-limit — Lack of notification)

4

2011/C 298/07

Case C-554/09: Judgment of the Court (First Chamber) of 28 July 2011 (reference for a preliminary ruling from the Oberlandesgericht Stuttgart (Germany)) — Criminal proceedings against Andreas Michael Seeger (Road transport — Obligation to use recording equipment — Derogations for vehicles transporting materials — Meaning of materials — Carriage of empty bottles in the vehicle of a wine and drinks merchant)

5

2011/C 298/08

Case C-69/10: Judgment of the Court (Second Chamber) of 28 July 2011 (reference for a preliminary ruling from the Tribunal Administratif (Luxembourg)) — Brahim Samba Diouf v Ministre du Travail, de l’Emploi et de l’Immigration (Directive 2005/85/EC — Minimum standards on procedures in Member States for granting and withdrawing refugee status — Decision taken on (the) application for asylum within the meaning of Article 39 of Directive 2005/85 — Application by a third country national for refugee status — Failure to provide reasons justifying the grant of international protection — Application rejected under an accelerated procedure — No remedy against the decision to deal with the application under an accelerated procedure — Right to effective judicial review)

6

2011/C 298/09

Case C-71/10: Judgment of the Court (Third Chamber) of 28 July 2011 (reference for a preliminary ruling from the Supreme Court of the United Kingdom (United Kingdom) — Office of Communications v Information Commissioner (Public access to environmental information — Directive 2003/4/EC — Article 4 — Exceptions to the right of access — Request for access involving more than one of the interests protected under Article 4(2) of that directive)

6

2011/C 298/10

Case C-106/10: Judgment of the Court (Seventh Chamber) of 28 July 2011 (reference for a preliminary ruling from the Supremo Tribunal Administrativo (Portugal)) — Lidl & Companhia v Fazenda Pública (Taxation — Directive 2006/112/EC — VAT — Taxable amount — Tax payable on the manufacture, assembly, admission or import of vehicles)

7

2011/C 298/11

Case C-133/10: Judgment of the Court (Fifth Chamber) of 28 July 2011 — European Commission v Kingdom of Belgium (Failure of a Member State to fulfil obligations — Directive 2005/81/EC — Transparency of financial relations between Member States and public undertakings — Undertaking subject to the obligation of keeping separate accounts — Non-transposition within the period prescribed)

7

2011/C 298/12

Case C-215/10: Judgment of the Court (Seventh Chamber) of 28 July 2011 (reference for a preliminary ruling from the First-tier Tribunal (Tax Chamber) (United Kingdom)) — Pacific World Limited, FDD International Limited v Commissioners for Her Majesty’s Revenue and Customs (Common Customs Tariff — Tariff classification — Combined Nomenclature — Moulded plastic false nail sets — Validity of Regulation (EC) No 1417/2007 — Other articles of plastics (heading 3926) — Manicure or pedicure preparations (heading 3304) — Manicure or pedicure sets and instruments (heading 8214))

7

2011/C 298/13

Case C-270/10: Judgment of the Court (Fifth Chamber) of 28 July 2011 (reference for a preliminary ruling from the Korkein hallinto-oikeus — Finland) — proceedings brought by Lotta Gistö (Protocol on the Privileges and Immunities of the European Communities — Article 14, first paragraph — Determination of the domicile for tax purposes of the spouse of a European Union official — National legislation under which a person who has lived abroad for three years is no longer regarded as resident in the country and thus no longer subject to general tax liability)

8

2011/C 298/14

Case C-274/10: Judgment of the Court (Third Chamber) of 28 July 2011 — European Commission v Republic of Hungary (Failure of a Member State to fulfil obligations — Taxation — VAT — Directive 2006/112/EC — Right to deduct — Procedures for exercise — Article 183 — National legislation allowing the refund of VAT excess only if it exceeds the amount of input tax corresponding to transactions not yet paid for)

8

2011/C 298/15

Case C-309/10: Judgment of the Court (Eighth Chamber) of 28 July 2011 (reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria)) — Agrana Zucker GmbH v Bundesminister für Land- und Forstwirtschaft, Umwelt und Wasserwirtschaft (Sugar — Temporary scheme for the restructuring of the sugar industry in the European Community — Regulation (EC) No 320/2006 — Article 11 — Revenue surplus in the restructuring fund — Assignment to the EAGF — Principle of conferral and principle of proportionality — Obligation to state reasons — Unjust enrichment)

9

2011/C 298/16

Case C-350/10: Judgment of the Court (Fourth Chamber) of 28 July 2011 (reference for a preliminary ruling from the Korkein hallinto-oikeus (Finland)) — proceedings brought by Nordea Pankki Suomi Oyj (Reference for a preliminary ruling — Sixth VAT Directive — Article 13B(d)(3) and (5) — Exemptions — Transfers and payments — Transactions in securities — Electronic messaging services for financial institutions)

9

2011/C 298/17

Case C-403/10 P: Judgment of the Court (Third Chamber) of 28 July 2011 — Mediaset SpA v European Commission, Sky Italia Srl (Appeal — Subsidies granted by the Italian Republic to promote the purchase of digital decoders — Non-inclusion of decoders for the reception solely of television programmes broadcast by satellite — Decision declaring the aid to be incompatible with the common market)

9

2011/C 298/18

Case C-548/10: Judgment of the Court (Seventh Chamber) of 28 July 2011 — European Commission v Republic of Austria (Failure of a Member State to fulfil obligations — Directive 2007/2/EC — Environmental policy — Infrastructure for Spatial Information in the European Community (INSPIRE) — Exchange and updating of data in electronic format — Incomplete transposition)

10

2011/C 298/19

Case C-329/11: Reference for a preliminary ruling from the Cour d’Appel de Paris (France) lodged on 29 June 2011 — Alexandre Achughbabian v Préfet du Val-de-Marne

10

2011/C 298/20

Case C-366/11: Action brought on 8 July 2011 — European Commission v Kingdom of Belgium

10

2011/C 298/21

Case C-376/11: Reference for a preliminary ruling from the Cour d’appel de Bruxelles (Belgium) lodged on 15 July 2011 — Pie Optiek v Bureau Gevers, European Registry for Internet Domains

11

2011/C 298/22

Case C-379/11: Reference for a preliminary ruling from the Cour administrative (Luxembourg) lodged on 18 July 2011 — Caves Krier Frères S.àr.l v Directeur de l’Administration de l’emploi

11

2011/C 298/23

Case C-380/11: Reference for a preliminary ruling from the Tribunal administratif (Luxembourg) lodged on 18 July 2011 — DI. VI. Finanziaria S.A.P.A. di Diego della Valle & C. v Administration des contributions directes

12

2011/C 298/24

Case C-382/11: Reference for a preliminary ruling from the Administrativen Sad Varna (Bulgaria) lodged on 18 July 2011 — M SAT CABLE AD v Nachalnik na Mitnicheski punkt — Varna Zapad pri Mitnitsa Varna

12

2011/C 298/25

Case C-383/11: Reference for a preliminary ruling from the Administrativen Sad Varna (Bulgaria) lodged on 18 July 2011 — Digitalnet OOD v Nachalnik na Mitnicheski punkt — Varna Zapad pri Mitnitsa Varna

13

2011/C 298/26

Case C-388/11: Reference for a preliminary ruling from the Conseil d’Etat lodged on 22 July 2011 — Société le Crédit Lyonnais v Ministre du budget, des comptes publics et de la réforme de l’Etat

13

2011/C 298/27

Case C-394/11: Reference for a preliminary ruling from the Komisia za zashtita ot diskriminatsia (Bulgaria) lodged on 25 July 2011 — Valeri Hariev Belov v ChEZ Elektro Balgaria АD and ChEZ Raspredelenie Balgaria АD

14

2011/C 298/28

Case C-404/11 P: Appeal brought on 29 July 2011 by Elf Aquitaine SA against the judgment delivered by the General Court (Second Chamber) on 17 May 2011 in Case T-299/08 Elf Aquitaine v Commission

15

2011/C 298/29

Case C-412/11: Action brought on 5 August 2011 — European Commission v Grand Duchy of Luxembourg

16

2011/C 298/30

Case C-414/11: Reference for a preliminary ruling from the Polimeles Protodikio Athinon (Greece) lodged on 8 August 2011 — Daiichi Sankyo Company Limited, Sanofi-Aventis Deutschland GmbH v DEMO Anonimos Viomikhaniki kai Emporiki Etairia Farmakon

17

2011/C 298/31

Case C-416/11 P: Appeal brought on 8 August 2011 by United Kingdom of Great Britain and Northern Ireland against the order of the General Court (Seventh Chamber) delivered on 24 May 2011 in Case T-115/10: United Kingdom of Great Britain and Northern Ireland v European Commission

17

2011/C 298/32

Case C-537/10 P: Order of the President of the Sixth Chamber of the Court of 12 July 2011 — Deltafina SpA v European Commission

18

2011/C 298/33

Case C-120/11: Order of the President of the Court of 13 July 2011 (reference for a preliminary ruling from the Tribunale di Santa Maria Capua Vetere (Italy)) — Criminal proceedings against Yeboah Kwadwo

18

General Court

2011/C 298/34

Case T-360/11: Action brought on 17 June 2011 — Fercal — Consultadoria e Serviços v OHIM — Parfums Rochas (PATRIZIA ROCHA)

19

2011/C 298/35

Case T-396/11: Action brought on 22 July 2011 — ultra air v OHIM — Donaldson Filtration Deutschland (ultrafilter international)

19

2011/C 298/36

Case T-413/11: Action brought on 27 July 2011 — Welte-Wenu v OHIM — Commission (Representation of a circle of 12 stars on a blue background)

20

2011/C 298/37

Case T-414/11: Action brought on 29 July 2011 — Nutrichem Diät + Pharma v OHIM — Gervais Danone (Active)

20

2011/C 298/38

Case T-415/11: Action brought on 1 August 2011 — Hartmann v OHIM (Nutriskin Protection Complex)

21

2011/C 298/39

Case T-416/11: Action brought on 29 July 2011 — Biotronik SE v OHIM — Cardios Sistemas (CARDIO MANAGER)

21

2011/C 298/40

Case T-427/11: Action brought on 5 August 2011 — Laboratoire Bioderma v OHIM — Cabinet Continental (BIODERMA)

21

2011/C 298/41

Case T-435/11: Action brought on 8 August 2011 — Universal Display v OHIM (UniversalPHOLED)

22

2011/C 298/42

Case T-437/11: Action brought on 5 August 2011 — Golden Balls v OHIM — Intra-Presse (GOLDEN BALLS)

22

2011/C 298/43

Case T-443/11: Action brought on 8 August 2011 — Gold East Paper (Jiangsu) and Gold Huasheng Paper (Suzhou Industrial Park) v Council

23

2011/C 298/44

Case T-444/11: Action brought on 8 August 2011 — Gold East Paper (Jiangsu) and Gold Huasheng Paper (Suzhou Industrial Park) v Council

24

2011/C 298/45

Case T-447/11: Action brought on 9 August 2011 — Catinis v Commission

24

2011/C 298/46

Case T-448/11: Action brought on 5 August 2011 — Golden Balls v OHIM — Intra-Presse (GOLDEN BALLS)

25

2011/C 298/47

Case T-450/11: Action brought on 10 August 2011 — Galileo International Technology v OHIM — ESA (GALILEO)

25

2011/C 298/48

Case T-451/11: Action brought on 8 August 2011 — Giga-Byte Technology v OHIM — Haskins (Gigabyte)

26

2011/C 298/49

Case T-453/11: Action brought on 8 August 2011 — Szajner v OHIM — Forge de Laguiole (LAGUIOLE)

26

2011/C 298/50

Case T-456/11: Action brought on 12 August 2011 — ICdA and Others v Commission

27

2011/C 298/51

Case T-457/11: Action brought on 17 August 2011 — Valeo Vision v Commission

27

2011/C 298/52

Case T-458/11: Action brought on 18 August 2011 — Riche v Council and Commission

28

2011/C 298/53

Case T-463/11: Action brought on 23 August 2011 — Dectane v OHIM — Hella (DAYLINE)

28

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

EN

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

| 8.10.2011 | EN | Official Journal of the European Union | C 298/1 |
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8.10.2011

EN

Official Journal of the European Union

C 298/1

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2011/C 298/01

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

OJ C 282, 1.10.2011

Past publications

OJ C 282, 24.9.2011

OJ C 269, 10.9.2011

OJ C 252, 27.8.2011

OJ C 238, 13.8.2011

OJ C 232, 6.8.2011

OJ C 226, 30.7.2011

These texts are available on:

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

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V Announcements

COURT PROCEEDINGS

Court of Justice

| 8.10.2011 | EN | Official Journal of the European Union | C 298/2 |
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8.10.2011

EN

Official Journal of the European Union

C 298/2

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Judgment of the Court (Second Chamber) of 28 July 2011 (reference for a preliminary ruling from the High Court of Justice (England and Wales) (Chancery Division) (United Kingdom)) — Synthon BV v Merz Pharma GmbH & Co KGaA

(Case C-195/09) (1)

(Patent law - Medicinal products - Supplementary protection certificate for medicinal products - Regulation (EEC) No 1768/92 - Article 2 - Scope - Safety and efficacy testing laid down by Directive 65/65/EEC - Absence - Invalidity of the certificate)

2011/C 298/02

Language of the case: English

Referring court

High Court of Justice (England and Wales) (Chancery Division)

Parties to the main proceedings

Applicant: Synthon BV

Defendant: Merz Pharma GmbH & Co KGaA

Re:

Reference for a preliminary ruling — High Court of Justice (Chancery Division) — Interpretation of Articles 13 and 19 of Council Regulation (EEC) No 1768/92 of 18 June 1992 concerning the creation of a supplementary protection certificate for medicinal products (OJ 1992 L 182, p. 1) — Concept of first authorisation to place the product on the market — Authorisation issued in accordance with a national Law applying Council Directive 65/65/EEC of 26 January 1965 on the approximation of provisions laid down by law, regulation or administrative action relating to medicinal products (OJ, English Special Edition 1965-1966, p. 24) — Obligation on the national authority issuing the authorisation to have assessed the particulars as provided for by that directive

Operative part of the judgment

| 1. | Article 2 of Council Regulation (EEC) No 1768/92 of 18 June 1992 concerning the creation of a supplementary protection certificate for medicinal products, as amended by the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded, must be interpreted as meaning that a product, such as that at issue in the main proceedings, which was placed on the market in the European Community as a medicinal product for human use before obtaining a marketing authorisation in accordance with Council Directive 65/65/EEC of 26 January 1965 on the approximation of provisions laid down by law, regulation or administrative action relating to medicinal products, as amended by Council Directive 89/341/EEC of 3 May 1989, and, in particular, without undergoing safety and efficacy testing, is not within the scope of Regulation No 1768/92, as amended, and may not, therefore, be the subject of a supplementary protection certificate. |
| --- | --- |

1.

Article 2 of Council Regulation (EEC) No 1768/92 of 18 June 1992 concerning the creation of a supplementary protection certificate for medicinal products, as amended by the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded, must be interpreted as meaning that a product, such as that at issue in the main proceedings, which was placed on the market in the European Community as a medicinal product for human use before obtaining a marketing authorisation in accordance with Council Directive 65/65/EEC of 26 January 1965 on the approximation of provisions laid down by law, regulation or administrative action relating to medicinal products, as amended by Council Directive 89/341/EEC of 3 May 1989, and, in particular, without undergoing safety and efficacy testing, is not within the scope of Regulation No 1768/92, as amended, and may not, therefore, be the subject of a supplementary protection certificate.

| 2. | A supplementary protection certificate granted for a product outside the scope of Regulation No 1768/92, as amended, as that scope is defined in Article 2 of that regulation, is invalid. |
| --- | --- |

2.

A supplementary protection certificate granted for a product outside the scope of Regulation No 1768/92, as amended, as that scope is defined in Article 2 of that regulation, is invalid.

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(1)  OJ C 193, 15.8.2009.

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| 8.10.2011 | EN | Official Journal of the European Union | C 298/2 |
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8.10.2011

EN

Official Journal of the European Union

C 298/2

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Judgment of the Court (First Chamber) of 28 July 2011 (references for a preliminary ruling from the Højesteret — Denmark) — Orifarm A/S, Orifarm Supply A/S, Handelsselskabet af 5. januar 2002 A/S, in liquidation, Ompakningsselskabet af 1. november 2005 A/S (C-400/09), Paranova Danmark A/S, Paranova Pack A/S (C-207/10) v Merck Sharp & Dohme Corporation (formerly Merck & Co.), Merck Sharp & Dohme BV, Merck Sharp & Dohme

(Joined Cases C-400/09 and C-207/10) (1)

(Trade marks - Directive 89/104/EEC - Article 7(2) - Pharmaceutical products - Parallel imports - Repackaging of the product bearing the trade mark - New packaging indicating as the repackager the holder of the marketing authorisation on whose instructions the product was repackaged - Physical repackaging carried out by a separate undertaking)

2011/C 298/03

Language of the case: Danish

Referring court

Højesteret

Parties to the main proceedings

Applicants: Orifarm A/S, Orifarm Supply A/S, Handelsselskabet af 5. januar 2002 A/S, in liquidation, Ompakningsselskabet af 1. november 2005 A/S (C-400/09), Paranova Danmark A/S, Paranova Pack A/S (C-207/10)

Defendants: Merck Sharp & Dohme Corporation (formerly Merck & Co.), Merck Sharp & Dohme BV, Merck Sharp & Dohme

Re:

References for a preliminary ruling — Højesteret — Interpretation of the Court’s judgments in Case C-232/94 MPA Pharma and in Joined Cases C-427/93, C-429/93 and C-436/93 Bristol-Myers Squibb and Others, and of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1) — Repackaging of a medicinal product which was the subject of parallel importation — Parallel importer which is the holder of the marketing authorisation for an imported medicinal product and which indicates itself, on the new packaging, as being the repackager, notwithstanding the fact that the purchase and repackaging of the medicinal product were in fact carried out by a separate company

Operative part of the judgment

Article 7(2) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks must be interpreted as not allowing the proprietor of a trade mark relating to a pharmaceutical product which is the subject of parallel imports to oppose the further marketing of that product in repackaged form on the sole ground that the new packaging indicates as the repackager not the undertaking which, on instructions, actually repackaged the product and holds an authorisation to do so, but the undertaking which holds the marketing authorisation for the product, on whose instructions the repackaging was carried out, and which assumes liability for the repackaging.

---

(1)  OJ C 312, 19.12.2009.

OJ C 179, 3.7.2010.

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| 8.10.2011 | EN | Official Journal of the European Union | C 298/3 |
| --- | --- | --- | --- |

8.10.2011

EN

Official Journal of the European Union

C 298/3

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Judgment of the Court (Second Chamber) of 28 July 2011 (reference for a preliminary ruling from the Court of Appeal (England and Wales) (Civil Division) (United Kingdom)) — Generics (UK) Ltd v Synaptech Inc

(Case C-427/09) (1)

(Patent law - Medicinal products - Supplementary protection certificate for medicinal products - Regulation (EEC) No 1768/92 - Article 2 - Scope)

2011/C 298/04

Language of the case: English

Referring court

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

Parties to the main proceedings

Applicant: Generics (UK) Ltd

Defendant: Synaptech Inc

Re:

Reference for a preliminary ruling — Court of Appeal (England and Wales) (Civil Division) — Interpretation of Article 13(1) of Council Regulation (EEC) No 1768/92 of 18 June 1992 concerning the creation of a supplementary protection certificate for medicinal products (OJ 1992 L 182, p. 1) — Concept of first authorisation to place the product on the market — Account taken only of authorisations issued in accordance with Council Directive 65/65/EEC of 26 January 1965 on the approximation of provisions laid down by law, regulation or administrative action relating to medicinal products (OJ, English Special Edition 1965-1966, p. 24) — Authorisation delivered in accordance with the legislation applicable in Austria before the latter acceded to the EEA.

Operative part of the judgment

A product, such as that at issue in the main proceedings, which was placed on the market in the European Community as a medicinal product for human use before obtaining a marketing authorisation in accordance with Council Directive 65/65/EEC of 26 January 1965 on the approximation of provisions laid down by law, regulation or administrative action relating to medicinal products, as amended by Council Directive 89/341/EEC of 3 May 1989, and, in particular, without undergoing safety and efficacy testing, is not within the scope of Council Regulation (EEC) No 1768/92 of 18 June 1992 concerning the creation of a supplementary protection certificate for medicinal products, as amended by the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded, as that scope is defined in Article 2 of that regulation, as amended, and may not be the subject of a supplementary protection certificate.

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(1)  OJ C 11, 16.1.2010.

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| 8.10.2011 | EN | Official Journal of the European Union | C 298/4 |
| --- | --- | --- | --- |

8.10.2011

EN

Official Journal of the European Union

C 298/4

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Judgment of the Court (Third Chamber) of 28 July 2011 — Territorio Histórico de Vizcaya — Diputación Foral de Vizcaya (C-471/09 P), Territorio Histórico de Álava — Diputación Foral de Álava (C-472/09 P), Territorio Histórico de Guipúzcoa — Diputación Foral de Guipúzcoa (C-473/09 P) v European Commission, Comunidad Autónoma del País Vasco — Gobierno Vasco, Comunidad Autónoma de la Rioja, Camara Oficial de Comercio, Industria y Navegación de Vizcaya, Cámara Oficial de Comercio e Industria de Álava, Cámara Oficial de Comercio, Industria y Navegación de Guipúzcoa, and Confederación Empresarial Vasca (Confebask)

(Joined Cases C-471/09 P to C-473/09 P) (1)

(Appeal - State aid - Action for annulment - Commission Decisions on State aid schemes implemented by Spain for firms in the provinces of Vizcaya, Álava and Guipúzcoa - Tax credit amounting to 45 % of investments - Legitimate expectations - Principle of proportionality - Principles of legal certainty and good administration - Action within a reasonable time - Failure to notify)

2011/C 298/05

Language of the case: Spanish

Parties

Appellants: Territorio Histórico de Vizcaya — Diputación Foral de Vizcaya (C-471/09 P), Territorio Histórico de Álava — Diputación Foral de Álava (C-472/09 P), Territorio Histórico de Guipúzcoa — Diputación Foral de Guipúzcoa (C-473/09 P) (represented by: I. Sáenz-Cortabarría Fernández and M. Morales Isasi, abogados)

Other parties to the proceedings: European Commission (represented by: F. Castillo de la Torre and C. Urraca Caviedes, agents), Comunidad Autónoma del País Vasco — Gobierno Vasco (represented by: I. Sáenz-Cortabarría Fernández and M. Morales Isasi, abogados), Comunidad Autónoma de la Rioja (represented by: J. M. Criado Gámez and E. Martínez Aguirre, abogados), Camara Oficial de Comercio, Industria y Navegación de Vizcaya, Cámara Oficial de Comercio e Industria de Álava, Cámara Oficial de Comercio, Industria y Navegación de Guipúzcoa (represented by: I. Sáenz-Cortabarría Fernández and M. Morales Isasi, abogados), and Confederación Empresarial Vasca (Confebask)

Intervener in support of the appellant: Kingdom of Spain (represented by: N. Díaz Abad, agent)

Re:

Appeals brought against the judgment of the Court of First Instance (Fifth chamber, extended composition) of 9 September 2009 in Joined Cases T-227/01 to T-229/01, T-265/01, T-266/01 and T-270/01 Diputación Foral de Álava and Gobierno Vasco and Others v Commission whereby the Court of First Instance dismissed, in Cases T-227/01 and T-265/01, an application for the annulment of Commission Decision 2002/820/EC of 11 July 2001 on State aid schemes implemented by Spain for firms in the province of Álava in the form of a tax credit amounting to 45 % of investments (OJ 2002 L 296, p. 1), in Cases T-228/01 and T-266/01, an application for the annulment of Commission Decision 2003/27/EC of 11 July 2001 on State aid schemes implemented by Spain for firms in the province of Vizcaya in the form of a tax credit amounting to 45 % of investments (OJ 2003 L 17, p. 1) and, in Cases T-229/01 and T-270/01, an application for the annulment of Commission Decision 2002/894/EC of 11 July 2001 on State aid schemes implemented by Spain for firms in the province of Guipúzcoa in the form of a tax credit amounting to 45 % of investments (OJ 2002 L 314, p. 26).

Operative part of the judgment

The Court:

| 1. | Dismisses the main appeals and the cross-appeals; |
| --- | --- |

1.

Dismisses the main appeals and the cross-appeals;

| 2. | orders the Territorio Histórico de Vizcaya — Diputación Foral de Vizcaya, the Territorio Histórico de Álava — Diputación Foral de Álava, the Territorio Histórico de Guipúzcoa — Diputación Foral de Guipúzcoa, the Cámara Oficial de Comercio, Industria y Navegación de Vizcaya, the Cámara Oficial de Comercio e Industria de Álava and the Cámara Oficial de Comercio, Industria y Navegación de Guipúzcoa to pay in equal shares the costs relating to the appeals; |
| --- | --- |

2.

orders the Territorio Histórico de Vizcaya — Diputación Foral de Vizcaya, the Territorio Histórico de Álava — Diputación Foral de Álava, the Territorio Histórico de Guipúzcoa — Diputación Foral de Guipúzcoa, the Cámara Oficial de Comercio, Industria y Navegación de Vizcaya, the Cámara Oficial de Comercio e Industria de Álava and the Cámara Oficial de Comercio, Industria y Navegación de Guipúzcoa to pay in equal shares the costs relating to the appeals;

| 3. | orders the Kingdom of Spain to bear its own costs. |
| --- | --- |

3.

orders the Kingdom of Spain to bear its own costs.

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(1)  OJ C 37 of 13.2.2010.

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| 8.10.2011 | EN | Official Journal of the European Union | C 298/4 |
| --- | --- | --- | --- |

8.10.2011

EN

Official Journal of the European Union

C 298/4

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Judgment of the Court (Third Chamber) of 28 July 2011 — Territorio Histórico de Vizcaya — Diputación Foral de Vizcaya (C-474/09 P), Territorio Histórico de Álava — Diputación Foral de Álava (C-475/09 P), Territorio Histórico de Guipúzcoa — Diputación Foral de Guipúzcoa (C-476/09 P) v European Commission, Comunidad Autónoma del País Vasco — Gobierno Vasco, Comunidad Autónoma de la Rioja, Cámara Oficial de Comercio, Industria y Navegación de Vizcaya, Cámara Oficial de Comercio e Industria de Álava, Cámara Oficial de Comercio, Industria y Navegación de Guipúzcoa, Confederación Empresarial Vasca (Confebask)

(Joined Cases C-474/09 P to C-476/09 P) (1)

(Appeal - State aid - Actions for annulment - Decisions of the Commission concerning the State aid schemes implemented by Spain in favour of undertakings in the provinces of Vizcaya, Álava and Guipúzcoa - Reductions in the tax base for certain newly-created undertakings - Legitimate expectations - Principles of legal certainty and sound administration - Compliance with a reasonable time-limit - Lack of notification)

2011/C 298/06

Language of the case: Spanish

Parties

Appellants: Territorio Histórico de Vizcaya — Diputación Foral de Vizcaya (C-474/09 P), Territorio Histórico de Álava — Diputación Foral de Álava (C-475/09 P), Territorio Histórico de Guipúzcoa — Diputación Foral de Guipúzcoa (C-476/09 P) (represented by: I. Sáenz-Cortabarría Fernández and M. Morales Isasi, abogados)

Other parties to the proceedings: European Commission (represented by: F. Castillo de la Torre and C. Urraca Caviedes, acting as Agents), Comunidad Autónoma del País Vasco — Gobierno Vasco (represented by: I. Sáenz-Cortabarría Fernández and M. Morales Isasi, abogados), Comunidad Autónoma de la Rioja (represented by: J.M. Criado Gámez and M. Martínez Aguirre, abogados), Cámara Oficial de Comercio, Industria y Navegación de Vizcaya, Cámara Oficial de Comercio e Industria de Álava, Cámara Oficial de Comercio, Industria y Navegación de Guipúzcoa (represented by: I. Sáenz-Cortabarría Fernández and M. Morales Isasi, abogados), Confederación Empresarial Vasca (Confebask)

Intervener in support of the appellants: Kingdom of Spain (represented by: N. Díaz Abad, acting as Agent)

Re:

Appeal against the judgment of the Court of First Instance (Fifth Chamber, extended composition) of 9 September 2009 in Joined Cases T-227/01 to T-229/01 and T-265/01, T-266/01 and T-270/01 Diputación Foral de Álava and Gobierno Vasco and Others v Commission, by which the Court dismissed, in Cases T-227/01 and T-265/01 an application to annul Commission Decision 2002/802/EC of 11 July 2001 on the State aid scheme implemented by Spain for firms in Álava in the form of a tax credit amounting to 45 % of investments (OJ 2002 L 296, p. 1), in Cases T-228/01 and T-266/01 an application to annul Commission Decision 2003/27/EC of 11 July 2001 on the State aid scheme implemented by Spain for firms in Vizcaya in the form of a tax credit amounting to 45 % of investments (OJ 2003 L 17, p. 1), and in Cases T-229/01 and T-270/01, an application to annul Commission Decision 2002/894/EC of 11 July 2001 on the State aid scheme implemented by Spain for firms in Guipúzcoa in the form of a tax credit amounting to 45 % of investments (OJ 2002 L 314, p. 26).

Operative part of the judgment

The Court:

| 1. | Dismisses the principal appeals and the subsidiary appeals; |
| --- | --- |

1.

Dismisses the principal appeals and the subsidiary appeals;

| 2. | Orders Territorio Histórico de Vizcaya — Diputación Foral de Vizcaya, Territorio Histórico de Álava — Diputación Foral de Álava, Territorio Histórico de Guipúzcoa — Diputación Foral de Guipúzcoa, Cámara Oficial de Comercio, Industria y Navegación de Vizcaya, Cámara Oficial de Comercio e Industria de Álava, Cámara Oficial de Comercio, Industria y Navegación de Guipúzcoa each to pay an equal share of the costs of the present appeals; |
| --- | --- |

2.

Orders Territorio Histórico de Vizcaya — Diputación Foral de Vizcaya, Territorio Histórico de Álava — Diputación Foral de Álava, Territorio Histórico de Guipúzcoa — Diputación Foral de Guipúzcoa, Cámara Oficial de Comercio, Industria y Navegación de Vizcaya, Cámara Oficial de Comercio e Industria de Álava, Cámara Oficial de Comercio, Industria y Navegación de Guipúzcoa each to pay an equal share of the costs of the present appeals;

| 3. | Orders the Kingdom of Spain to bear its own costs. |
| --- | --- |

3.

Orders the Kingdom of Spain to bear its own costs.

---

(1)  OJ C 37, 13.2.2010.

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| 8.10.2011 | EN | Official Journal of the European Union | C 298/5 |
| --- | --- | --- | --- |

8.10.2011

EN

Official Journal of the European Union

C 298/5

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Judgment of the Court (First Chamber) of 28 July 2011 (reference for a preliminary ruling from the Oberlandesgericht Stuttgart (Germany)) — Criminal proceedings against Andreas Michael Seeger

(Case C-554/09) (1)

(Road transport - Obligation to use recording equipment - Derogations for vehicles transporting materials - Meaning of ‘materials’ - Carriage of empty bottles in the vehicle of a wine and drinks merchant)

2011/C 298/07

Language of the case: German

Referring court

Oberlandesgericht Stuttgart

Party in the main proceedings

Andreas Michael Seeger

Re:

Reference for a preliminary ruling — Oberlandesgericht Stuttgart — Interpretation of the second indent of Article 13(1)(d) of Regulation (EC) No 561/2006 of the European Parliament and of the Council of 15 March 2006 on the harmonisation of certain social legislation relating to road transport and amending Council Regulations (EEC) No 3821/85 and (EC) No 2135/98 and repealing Council Regulation (EEC) No 3820/85 (OJ 2006 L 102, p. 1) — System of exceptions exempting, inter alia, vehicles used for carrying materials for the driver’s use in the course of his work from the obligation to have a tachograph — Applicability of that exception to the carriage of empty returnable bottles in the vehicle of a wine and drinks merchant — Meaning of ‘materials’

Operative part of the judgment

The expression ‘materials’ appearing in Article 13(1)(d), second indent, of Regulation (EC) No 561/2006 of the European Parliament and of the Council of 15 March 2006 on the harmonisation of certain social legislation relating to road transport and amending Council Regulations (EEC) No 3821/85 and (EC) No 2135/98 and repealing Council Regulation (EEC) No 3820/85 must be interpreted as not covering packaging materials, such as empty bottles, carried by a wine and drinks merchant who runs a shop, makes deliveries to his customers once a week and, while doing so, collects the empty bottles to take them to his wholesaler.

---

(1)  OJ C 80, 27.3.2010.

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| 8.10.2011 | EN | Official Journal of the European Union | C 298/6 |
| --- | --- | --- | --- |

8.10.2011

EN

Official Journal of the European Union

C 298/6

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Judgment of the Court (Second Chamber) of 28 July 2011 (reference for a preliminary ruling from the Tribunal Administratif (Luxembourg)) — Brahim Samba Diouf v Ministre du Travail, de l’Emploi et de l’Immigration

(Case C-69/10) (1)

(Directive 2005/85/EC - Minimum standards on procedures in Member States for granting and withdrawing refugee status - ‘Decision taken on (the) application for asylum’ within the meaning of Article 39 of Directive 2005/85 - Application by a third country national for refugee status - Failure to provide reasons justifying the grant of international protection - Application rejected under an accelerated procedure - No remedy against the decision to deal with the application under an accelerated procedure - Right to effective judicial review)

2011/C 298/08

Language of the case: French

Referring court

Tribunal Administratif

Parties to the main proceedings

Applicant: Brahim Samba Diouf

Defendant: Ministre du Travail, de l’Emploi et de l’Immigration

Re:

Reference for a preliminary ruling — Tribunal administratif (Luxembourg) — Interpretation of Article 39 of Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (OJ 2005 L 326, p. 13) — Application by a third country national, without a legal right of residence, for refugee status — Rejection of that application in a national accelerated procedure in the absence of grounds justifying the grant of international protection — Conformity with Community law of national legislation excluding any appeal against the decision to treat the application under the accelerated procedure — Right to effective judicial review

Operative part of the judgment

On a proper construction, Article 39 of Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, and the principle of effective judicial protection, do not preclude national rules such as those at issue in the main proceedings, under which no separate action may be brought against the decision of the competent national authority to deal with an application for asylum under an accelerated procedure, provided that the reasons which led that authority to examine the merits of the application under such a procedure can in fact be subject to judicial review in the action which may be brought against the final decision rejecting the application — a matter which falls to be determined by the referring court.

---

(1)  OJ C 100, 17.4.2010.

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| 8.10.2011 | EN | Official Journal of the European Union | C 298/6 |
| --- | --- | --- | --- |

8.10.2011

EN

Official Journal of the European Union

C 298/6

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Judgment of the Court (Third Chamber) of 28 July 2011 (reference for a preliminary ruling from the Supreme Court of the United Kingdom (United Kingdom) — Office of Communications v Information Commissioner

(Case C-71/10) (1)

(Public access to environmental information - Directive 2003/4/EC - Article 4 - Exceptions to the right of access - Request for access involving more than one of the interests protected under Article 4(2) of that directive)

2011/C 298/09

Language of the case: English

Referring court

Supreme Court of the United Kingdom

Parties

Respondent: Office of Communications

Appellant: Information Commissioner

Re:

Reference for a preliminary ruling — Supreme Court of the United Kingdom — Interpretation of Article 4(2)(b) and (e) of Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC (OJ 2003 L 41, p. 26) — Exceptions to the right of access — Request for access involving more than one of the interests protected under Article 4(2) of the directive, the adverse effect on each interest being insufficient in itself to justify refusal of access

Operative part of the judgment

Article 4(2) of Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC must be interpreted as meaning that, where a public authority holds environmental information or such information is held on its behalf, it may, when weighing the public interests served by disclosure against the interests served by refusal to disclose, in order to assess a request for that information to be made available to a natural or legal person, take into account cumulatively a number of the grounds for refusal set out in that provision.

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(1)  OJ C 113, 1.5.2010.

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| 8.10.2011 | EN | Official Journal of the European Union | C 298/7 |
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8.10.2011

EN

Official Journal of the European Union

C 298/7

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Judgment of the Court (Seventh Chamber) of 28 July 2011 (reference for a preliminary ruling from the Supremo Tribunal Administrativo (Portugal)) — Lidl & Companhia v Fazenda Pública

(Case C-106/10) (1)

(Taxation - Directive 2006/112/EC - VAT - Taxable amount - Tax payable on the manufacture, assembly, admission or import of vehicles)

2011/C 298/10

Language of the case: Portuguese

Referring court

Supremo Tribunal Administrativo

Parties to the main proceedings

Applicant: Lidl & Companhia

Defendant: Fazenda Pública

Intervener: Ministério Público

Re:

Reference for a preliminary ruling — Supremo Tribunal Administrativo — Interpretation of point (a) of the first paragraph of Article 78, read in conjunction with point (c) of the first paragraph of Article 79, of Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — Inclusion in the taxable amount for VAT of the amount of the Portuguese ‘imposto sobre veículos’ — Tax on new vehicles payable on the manufacture, assembly, admission or import of vehicles — Tax payable once only, by the operator or vendor of the vehicle, on its introduction onto the Portuguese market

Operative part of the judgment

| 1. | A tax such as vehicle tax (imposto sobre veículos), at issue in the main proceedings, the chargeable event for which is linked directly to the supply of a vehicle falling within the ambit of that tax and which is paid by the supplier of that vehicle, is covered by the definition of ‘taxes, duties, levies and charges’ for the purpose of point (a) of the first paragraph of Article 78 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax and must, pursuant to that provision, be included in the taxable amount for value added tax on the supply of that vehicle. |
| --- | --- |

1.

A tax such as vehicle tax (imposto sobre veículos), at issue in the main proceedings, the chargeable event for which is linked directly to the supply of a vehicle falling within the ambit of that tax and which is paid by the supplier of that vehicle, is covered by the definition of ‘taxes, duties, levies and charges’ for the purpose of point (a) of the first paragraph of Article 78 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax and must, pursuant to that provision, be included in the taxable amount for value added tax on the supply of that vehicle.

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(1)  OJ C 113, 1.5.2010.

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| 8.10.2011 | EN | Official Journal of the European Union | C 298/7 |
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8.10.2011

EN

Official Journal of the European Union

C 298/7

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Judgment of the Court (Fifth Chamber) of 28 July 2011 — European Commission v Kingdom of Belgium

(Case C-133/10) (1)

(Failure of a Member State to fulfil obligations - Directive 2005/81/EC - Transparency of financial relations between Member States and public undertakings - Undertaking subject to the obligation of keeping separate accounts - Non-transposition within the period prescribed)

2011/C 298/11

Language of the case: French

Parties

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

Defendant: Kingdom of Belgium (represented by: M. Jacobs and J.-C. Halleux, acting as Agents)

Re:

Failure of a Member State to fulfil obligations — Failure to adopt, within the period prescribed, all the provisions necessary to comply with Commission Directive 2005/81/EC of 28 November 2005 amending Directive 80/723/EEC on the transparency of financial relations between Member States and public undertakings as well as on financial transparency within certain undertakings (OJ 2005 L 312, p. 47)

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to adopt, within the period prescribed, all the laws, regulations and administrative provisions necessary to comply with Commission Directive 2005/81/EC of 28 November 2005 amending Directive 80/723/EEC on the transparency of financial relations between Member States and public undertakings as well as on financial transparency within certain undertakings, the Kingdom of Belgium has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that, by failing to adopt, within the period prescribed, all the laws, regulations and administrative provisions necessary to comply with Commission Directive 2005/81/EC of 28 November 2005 amending Directive 80/723/EEC on the transparency of financial relations between Member States and public undertakings as well as on financial transparency within certain undertakings, the Kingdom of Belgium has failed to fulfil its obligations under that directive;

| 2. | Orders the Kingdom of Belgium to pay the costs. |
| --- | --- |

2.

Orders the Kingdom of Belgium to pay the costs.

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(1)  OJ C 148, 5.6.2010.

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| 8.10.2011 | EN | Official Journal of the European Union | C 298/7 |
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8.10.2011

EN

Official Journal of the European Union

C 298/7

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Judgment of the Court (Seventh Chamber) of 28 July 2011 (reference for a preliminary ruling from the First-tier Tribunal (Tax Chamber) (United Kingdom)) — Pacific World Limited, FDD International Limited v Commissioners for Her Majesty’s Revenue and Customs

(Case C-215/10) (1)

(Common Customs Tariff - Tariff classification - Combined Nomenclature - Moulded plastic false nail sets - Validity of Regulation (EC) No 1417/2007 - Other articles of plastics (heading 3926) - Manicure or pedicure preparations (heading 3304) - Manicure or pedicure sets and instruments (heading 8214))

2011/C 298/12

Language of the case: English

Referring court

First-tier Tribunal (Tax Chamber)

Parties to the main proceedings

Applicants: Pacific World Limited, FDD International Limited

Defendant: Commissioners for Her Majesty’s Revenue and Customs

Re:

Reference for a preliminary ruling — First-tier Tribunal (Tax Chamber) — Interpretation of Commission Regulation (EC) No 1417/2007 of 28 November 2007 concerning the classification of certain goods in the Combined Nomenclature — Validity of the classification of moulded plastic false nails under heading 3926 90 97 (Other articles of plastics or other materials)

Operative part of the judgment

Commission Regulation (EC) No 1417/2007 of 28 November 2007 concerning the classification of certain goods in the Combined Nomenclature is valid in so far as it classifies the false nails and, thereby, the false nail sets described in its annex under subheading 3926 90 97 of the Combined Nomenclature, set out 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 1549/2006 of 17 October 2006.

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(1)  OJ C 209, 31.7.2010.

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| 8.10.2011 | EN | Official Journal of the European Union | C 298/8 |
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8.10.2011

EN

Official Journal of the European Union

C 298/8

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Judgment of the Court (Fifth Chamber) of 28 July 2011 (reference for a preliminary ruling from the Korkein hallinto-oikeus — Finland) — proceedings brought by Lotta Gistö

(Case C-270/10) (1)

(Protocol on the Privileges and Immunities of the European Communities - Article 14, first paragraph - Determination of the domicile for tax purposes of the spouse of a European Union official - National legislation under which a person who has lived abroad for three years is no longer regarded as resident in the country and thus no longer subject to general tax liability)

2011/C 298/13

Language of the case: Finnish

Referring court

Korkein hallinto-oikeus

Party to the main proceedings

Applicant: Lotta Gistö

Re:

Reference for a preliminary ruling — Korkein hallinto-oikeus — Interpretation of Article 14 (now Article 13) of the Protocol on the Privileges and Immunities of the European Union — Fixing of the residence for tax purposes of officials of the European Union and their spouses not separately engaged in a gainful occupation in the Member State of origin — National legislation laying down a rule for nationals under which, after the expiry of three years from the end of the year in which the national left the country, he is no longer regarded as resident in the country and hence no longer has general tax liability as regards his income

Operative part of the judgment

The first paragraph of Article 14 of the Protocol on the Privileges and Immunities of the European Communities, originally annexed to the Treaty establishing a Single Council and a Single Commission of the European Communities and subsequently, by virtue of the Treaty of Amsterdam, to the EC Treaty, must be interpreted as meaning that the spouse of a person who, solely because that person enters the service of the European Union, establishes his residence in the territory of a Member State other than his Member State of domicile for tax purposes at the time when that person entered the service of the European Union is regarded as having maintained his domicile for tax purposes in the latter Member State if he is not separately engaged in a gainful occupation.

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(1)  OJ C 221, 14.8.2010.

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| 8.10.2011 | EN | Official Journal of the European Union | C 298/8 |
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8.10.2011

EN

Official Journal of the European Union

C 298/8

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Judgment of the Court (Third Chamber) of 28 July 2011 — European Commission v Republic of Hungary

(Case C-274/10) (1)

(Failure of a Member State to fulfil obligations - Taxation - VAT - Directive 2006/112/EC - Right to deduct - Procedures for exercise - Article 183 - National legislation allowing the refund of VAT excess only if it exceeds the amount of input tax corresponding to transactions not yet paid for)

2011/C 298/14

Language of the case: Hungarian

Parties

Applicant: European Commission (represented by: D. Triantafyllou, B. Simon, and by K. Talabér-Ritz, Agents)

Defendant: Republic of Hungary (represented by: M. Fehér, K. Szíjjártó, G. Koós, Agents, assisted by K. Magony, szakértő)

Re:

Failure of a State to fulfil obligations — Infringement of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — National legislation allowing the refund of VAT excess only if it exceeds the amount of tax corresponding to transactions not yet paid for — Breach of the principle of tax neutrality

Operative part of the judgment

| 1. | The Republic of Hungary,






  — | by requiring taxable persons whose tax declaration for a given tax period records an ‘excess’ within the meaning of Article 183 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax to carry forward that excess or a part of it to the following tax year where the taxable person has not paid the supplier the full amount for the purchase in question, and |
| --- | --- | --- |

1.

The Republic of Hungary,

—

by requiring taxable persons whose tax declaration for a given tax period records an ‘excess’ within the meaning of Article 183 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax to carry forward that excess or a part of it to the following tax year where the taxable person has not paid the supplier the full amount for the purchase in question, and

| — | because, as a result of that requirement, certain taxable persons whose tax declarations regularly record such an ‘excess’ may be required more than once to carry forward the excess to the following tax year, |
| --- | --- |

—

because, as a result of that requirement, certain taxable persons whose tax declarations regularly record such an ‘excess’ may be required more than once to carry forward the excess to the following tax year,

has failed to fulfil its obligations under that directive.

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

2.

Orders the Republic of Hungary to pay the costs.

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(1)  OJ C 221, 14.8.2010.

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| 8.10.2011 | EN | Official Journal of the European Union | C 298/9 |
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8.10.2011

EN

Official Journal of the European Union

C 298/9

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Judgment of the Court (Eighth Chamber) of 28 July 2011 (reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria)) — Agrana Zucker GmbH v Bundesminister für Land- und Forstwirtschaft, Umwelt und Wasserwirtschaft

(Case C-309/10) (1)

(Sugar - Temporary scheme for the restructuring of the sugar industry in the European Community - Regulation (EC) No 320/2006 - Article 11 - Revenue surplus in the restructuring fund - Assignment to the EAGF - Principle of conferral and principle of proportionality - Obligation to state reasons - Unjust enrichment)

2011/C 298/15

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 — Interpretation of Article 11 of Council Regulation (EC) No 320/2006 of 20 February 2006 establishing a temporary scheme for the restructuring of the sugar industry in the Community and amending Regulation (EC) No 1290/2005 on the financing of the common agricultural policy (OJ 2006 L 58, p. 42) — Levying of a temporary restructuring amount in a situation in which the temporary restructuring fund shows a considerable surplus and there appears to be no prospect of an increase in financing requirements — Equivalent to introduction of a general tax — Infringement of the principle of conferred powers

Operative part of the judgment

| 1. | Article 11 of Council Regulation (EC) No 320/2006 of 20 February 2006 establishing a temporary scheme for the restructuring of the sugar industry in the Community and amending Regulation (EC) No 1290/2005 on the financing of the common agricultural policy is to be interpreted as meaning that the temporary amount must be raised in full, even if there were to be a revenue surplus in the temporary restructuring fund. |
| --- | --- |

1.

Article 11 of Council Regulation (EC) No 320/2006 of 20 February 2006 establishing a temporary scheme for the restructuring of the sugar industry in the Community and amending Regulation (EC) No 1290/2005 on the financing of the common agricultural policy is to be interpreted as meaning that the temporary amount must be raised in full, even if there were to be a revenue surplus in the temporary restructuring fund.

| 2. | The examination of the second question referred for a preliminary ruling has not revealed anything which might affect the validity of Article 11 of Regulation No 320/2006. |
| --- | --- |

2.

The examination of the second question referred for a preliminary ruling has not revealed anything which might affect the validity of Article 11 of Regulation No 320/2006.

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(1)  OJ C 260, 25.9.2010.

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| 8.10.2011 | EN | Official Journal of the European Union | C 298/9 |
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8.10.2011

EN

Official Journal of the European Union

C 298/9

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Judgment of the Court (Fourth Chamber) of 28 July 2011 (reference for a preliminary ruling from the Korkein hallinto-oikeus (Finland)) — proceedings brought by Nordea Pankki Suomi Oyj

(Case C-350/10) (1)

(Reference for a preliminary ruling - Sixth VAT Directive - Article 13B(d)(3) and (5) - Exemptions - Transfers and payments - Transactions in securities - Electronic messaging services for financial institutions)

2011/C 298/16

Language of the case: Finnish

Referring court

Korkein hallinto-oikeus

Party to the main proceedings

Nordea Pankki Suomi Oyj

Re:

Reference for a preliminary ruling — Korkein hallinto-oikeus — Interpretation of Article 13B(d)(3) and (5) of 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) — Exemptions for banking transactions — SWIFT services for banks

Operative part of the judgment

Article 13B(d)(3) and (5) of 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 must be interpreted as meaning that the exemption from value added tax under that provision does not cover electronic messaging services for financial institutions, such as those at issue in the main proceedings.

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(1)  OJ C 246, 11.9.2010.

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| 8.10.2011 | EN | Official Journal of the European Union | C 298/9 |
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8.10.2011

EN

Official Journal of the European Union

C 298/9

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Judgment of the Court (Third Chamber) of 28 July 2011 — Mediaset SpA v European Commission, Sky Italia Srl

(Case C-403/10 P) (1)

(Appeal - Subsidies granted by the Italian Republic to promote the purchase of digital decoders - Non-inclusion of decoders for the reception solely of television programmes broadcast by satellite - Decision declaring the aid to be incompatible with the common market)

2011/C 298/17

Language of the case: English

Parties

Appellant: Mediaset SpA (represented by: K. Adamantopoulos, dikigoros, G. Rossi, avvocato, E. Petritsi, dikigoros)

Other parties to the proceedings: European Commission (represented by: B. Martenczuk and B. Stromsky, Agents), Sky Italia Srl (represented by: F. González Díaz, abogado and F. Salerno, avocat)

Re:

Appeal brought against the judgment of the General Court (Second Chamber) of 15 June 2010 in Case T-177/07 Mediaset SpA v Commission dismissing an action for the annulment in part of Commission Decision C(2006) 6634 final of 24 January 2007 declaring incompatible with the common market subsidies granted by Italy, in 2004 and 2005, to enable consumers to purchase or to rent interactive digital decoders capable of receiving programmes using digital or cable terrestrial technology on the ground that those subsidies exclude decoders capable of receiving programmes using satellite television broadcasting technology (Aid No C 52/2005, ex NN 88/2005, ex CP 101/2004)

Operative part of the judgment

The Court:

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

1.

Dismisses the appeal;

| 2. | Orders Mediaset SpA to bear its own costs and to pay the costs of the European Commission and of Sky Italia Srl. |
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2.

Orders Mediaset SpA to bear its own costs and to pay the costs of the European Commission and of Sky Italia Srl.

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(1)  OJ C 301, 6.11.2010.

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| 8.10.2011 | EN | Official Journal of the European Union | C 298/10 |
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8.10.2011

EN

Official Journal of the European Union

C 298/10

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Judgment of the Court (Seventh Chamber) of 28 July 2011 — European Commission v Republic of Austria

(Case C-548/10) (1)

(Failure of a Member State to fulfil obligations - Directive 2007/2/EC - Environmental policy - Infrastructure for Spatial Information in the European Community (INSPIRE) - Exchange and updating of data in electronic format - Incomplete transposition)

2011/C 298/18

Language of the case: German

Parties

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

Defendant: Republic of Austria (represented by: C. Pesendorfer, acting as Agent)

Re:

Failure of a Member State to fulfil obligations — Failure to adopt or communicate, within the prescribed period, all the measures necessary to comply with Directive 2007/2/EC of the European Parliament and the Council of 14 March 2007 establishing an infrastructure for spatial information in the European Community (INSPIRE) (OJ 2007 L 108, p. 1)

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to adopt, within the period prescribed, all the laws, regulation and administrative provisions necessary to comply with Directive 2007/2/EC of the European Parliament and the Council of 14 March 2007 establishing an infrastructure for spatial information in the European Community (INSPIRE), the Republic of Austria has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that, by failing to adopt, within the period prescribed, all the laws, regulation and administrative provisions necessary to comply with Directive 2007/2/EC of the European Parliament and the Council of 14 March 2007 establishing an infrastructure for spatial information in the European Community (INSPIRE), the Republic of Austria has failed to fulfil its obligations under that directive;

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

2.

Orders the Republic of Austria to pay the costs.

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(1)  OJ C 30, 29.1.2011.

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| 8.10.2011 | EN | Official Journal of the European Union | C 298/10 |
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8.10.2011

EN

Official Journal of the European Union

C 298/10

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Reference for a preliminary ruling from the Cour d’Appel de Paris (France) lodged on 29 June 2011 — Alexandre Achughbabian v Préfet du Val-de-Marne

(Case C-329/11)

2011/C 298/19

Language of the case: French

Referring court

Cour d’Appel de Paris

Parties to the main proceedings

Applicant: Alexandre Achughbabian

Defendant: Préfet du Val-de-Marne

Question referred

Taking into account its scope, does Directive 2008/115/EC of 16 December 2008 (1) preclude national legislation, such as Article L.621-1 of the code de l'entrée et du séjour des étrangers et du droit d'asile (Code on the entry and stay of foreign nationals and on the right to asylum), which provides for the imposition of a sentence of imprisonment on a third-country national on the sole ground of his illegal entry or residence in national territory?

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(1)  Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ L 348, 24.12.2008, p. 98).

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| 8.10.2011 | EN | Official Journal of the European Union | C 298/10 |
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8.10.2011

EN

Official Journal of the European Union

C 298/10

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Action brought on 8 July 2011 — European Commission v Kingdom of Belgium

(Case C-366/11)

2011/C 298/20

Language of the case: French

Parties

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

Defendant: Kingdom of Belgium

Form of order sought

| — | Declare that, by not having prepared, by 22 December 2009, river basin district management plans (both for river basin districts lying entirely within its territory and for international river basin districts) and by not having communicated to the Commission, by 22 March 2010, a copy of the draft river basin district management plans, the Kingdom of Belgium has failed to fulfil its obligations under Article 13(2), (3) and (6) and Article 15(1) of Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy. (1) In addition, by having not commenced, by 22 December 2008 at the latest, the public information and consultation procedure concerning the draft river basin district management plans, the Kingdom of Belgium has failed to fulfil its obligations under Article 14(1)(c) of that directive, and |
| --- | --- |

—

Declare that, by not having prepared, by 22 December 2009, river basin district management plans (both for river basin districts lying entirely within its territory and for international river basin districts) and by not having communicated to the Commission, by 22 March 2010, a copy of the draft river basin district management plans, the Kingdom of Belgium has failed to fulfil its obligations under Article 13(2), (3) and (6) and Article 15(1) of Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy. (1) In addition, by having not commenced, by 22 December 2008 at the latest, the public information and consultation procedure concerning the draft river basin district management plans, the Kingdom of Belgium has failed to fulfil its obligations under Article 14(1)(c) of that directive, and

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

—

order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

The time-limit for implementation of Directive 200/60/EC of the European Parliament and of the Council expired on 22 December 2003. At the date on which the present action was brought, the defendant had still not taken all the measures necessary to implement the directive or, in any event, had not informed the Commission thereof.

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(1)  OJ 2000 L 327, p. 1.

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| 8.10.2011 | EN | Official Journal of the European Union | C 298/11 |
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8.10.2011

EN

Official Journal of the European Union

C 298/11

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Reference for a preliminary ruling from the Cour d’appel de Bruxelles (Belgium) lodged on 15 July 2011 — Pie Optiek v Bureau Gevers, European Registry for Internet Domains

(Case C-376/11)

2011/C 298/21

Language of the case: French

Referring court

Cour d’appel de Bruxelles (Belgium)

Parties to the main proceedings

Apellant: Pie Optiek

Respondents: Bureau Gevers, European Registry for Internet Domains

Questions referred

| 1. | Must Article 12(2) of Commission Regulation (EC) No 874/2004 of 28 April 2004 laying down public policy rules concerning the implementation and functions of the.eu Top Level Domain and the principles governing registration (1) be interpreted as meaning that, in a situation where the prior right concerned is a trade mark right, the words ‘licensees of prior rights’ may refer to a person who has been authorised by the proprietor of the trade mark solely to register, in his own name but on behalf of the licensor, a domain name identical or similar to the trade mark, but without being authorised to put the trade mark to other uses or to use the sign as a trade mark — for example, for the purpose of marketing of goods or services under the trade mark? |
| --- | --- |

1.

Must Article 12(2) of Commission Regulation (EC) No 874/2004 of 28 April 2004 laying down public policy rules concerning the implementation and functions of the.eu Top Level Domain and the principles governing registration (1) be interpreted as meaning that, in a situation where the prior right concerned is a trade mark right, the words ‘licensees of prior rights’ may refer to a person who has been authorised by the proprietor of the trade mark solely to register, in his own name but on behalf of the licensor, a domain name identical or similar to the trade mark, but without being authorised to put the trade mark to other uses or to use the sign as a trade mark — for example, for the purpose of marketing of goods or services under the trade mark?

| 2. | If that question is answered in the affirmative, must Article 21(1)(a) of Commission Regulation (EC) No 874/2004 of 28 April 2004 laying down public policy rules concerning the implementation and functions of the.eu Top Level Domain and the principles governing registration be interpreted as meaning that ‘rights or legitimate interest’ exist even if the ‘licensee of prior rights’ has obtained registration of the.eu domain name in his own name but on behalf of the proprietor of the trade mark where the latter is not eligible in accordance with Article 4(2)(b) of Regulation (EC) No 733/2002 of the European Parliament and of the Council of 22 April 2002 on the implementation of the.eu Top Level Domain (2)? |
| --- | --- |

2.

If that question is answered in the affirmative, must Article 21(1)(a) of Commission Regulation (EC) No 874/2004 of 28 April 2004 laying down public policy rules concerning the implementation and functions of the.eu Top Level Domain and the principles governing registration be interpreted as meaning that ‘rights or legitimate interest’ exist even if the ‘licensee of prior rights’ has obtained registration of the.eu domain name in his own name but on behalf of the proprietor of the trade mark where the latter is not eligible in accordance with Article 4(2)(b) of Regulation (EC) No 733/2002 of the European Parliament and of the Council of 22 April 2002 on the implementation of the.eu Top Level Domain (2)?

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(1)  OJ 2004 L 162, p. 40.

(2)  OJ 2002 L 113, p. 1.

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| 8.10.2011 | EN | Official Journal of the European Union | C 298/11 |
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8.10.2011

EN

Official Journal of the European Union

C 298/11

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Reference for a preliminary ruling from the Cour administrative (Luxembourg) lodged on 18 July 2011 — Caves Krier Frères S.àr.l v Directeur de l’Administration de l’emploi

(Case C-379/11)

2011/C 298/22

Language of the case: French

Referring court

Cour administrative

Parties to the main proceedings

Applicant: Caves Krier Frères S.àr.l

Defendant: Directeur de l’Administration de l’emploi

Question referred

Is the first subparagraph of Article L.541-1 of the Luxembourg Labour Code compatible with Union law, and more particularly Articles 21 and 45 of the Treaty on the Functioning of the European Union, in so far as it reserves the right to reimbursement of part employer part employee social security contributions upon the hiring of unemployed persons aged over 45 years, be they indemnified or not, to private sector employers on condition that the unemployed persons be registered as work seekers with a placement office of the Luxembourg employment administration for at least one month, while employers who hire unemployed persons registered as work seekers with corresponding foreign bodies do not benefit from that measure?

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| 8.10.2011 | EN | Official Journal of the European Union | C 298/12 |
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8.10.2011

EN

Official Journal of the European Union

C 298/12

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Reference for a preliminary ruling from the Tribunal administratif (Luxembourg) lodged on 18 July 2011 — DI. VI. Finanziaria S.A.P.A. di Diego della Valle & C. v Administration des contributions directes

(Case C-380/11)

2011/C 298/23

Language of the case: French

Referring court

Tribunal administratif

Parties to the main proceedings

Applicant: DI. VI. Finanziaria S.A.P.A. di Diego della Valle & C.

Defendant: Administration des contributions directes

Question referred

Is Article 49 of the Treaty on the Functioning of the European Union to be interpreted as precluding a measure, such as that governed by Paragraph 8a of the Law on capital tax of 16 October 1934, as amended, subparagraph 1 of which makes the grant of a reduction in capital tax conditional upon remaining liable to Luxembourg capital tax for the next five tax years?

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| 8.10.2011 | EN | Official Journal of the European Union | C 298/12 |
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8.10.2011

EN

Official Journal of the European Union

C 298/12

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Reference for a preliminary ruling from the Administrativen Sad Varna (Bulgaria) lodged on 18 July 2011 — M SAT CABLE AD v Nachalnik na Mitnicheski punkt — Varna Zapad pri Mitnitsa Varna

(Case C-382/11)

2011/C 298/24

Language of the case: Bulgarian

Referring court

Administrativen Sad Varna

Parties to the main proceedings

Applicant: M SAT CABLE AD

Defendant: Nachalnik na Mitnicheski punkt — Varna Zapad pri Mitnitsa Varna

Questions referred

| 1. | What is to be understood by the term ‘Internet’ within the meaning of the Explanatory Notes to the Combined Nomenclature of the European Communities for 2009 (Commission Regulation (EC) No 1031/2008 of 19 September 2008), (1) which were published in the Official Journal of 30 May 2008 (OJ 2008 C 133, p. 1) (amendment in relation to subheadings 8528 90 00, 8528 71 13 and 8528 71 90), if it is used in relation to the classification of goods under TARIC code 8528711300? |
| --- | --- |

1.

What is to be understood by the term ‘Internet’ within the meaning of the Explanatory Notes to the Combined Nomenclature of the European Communities for 2009 (Commission Regulation (EC) No 1031/2008 of 19 September 2008), (1) which were published in the Official Journal of 30 May 2008 (OJ 2008 C 133, p. 1) (amendment in relation to subheadings 8528 90 00, 8528 71 13 and 8528 71 90), if it is used in relation to the classification of goods under TARIC code 8528711300?

| 2. | What is to be understood by the term ‘modem’ within the meaning of the Explanatory Notes to the Combined Nomenclature of the European Communities for 2009 (Commission Regulation (EC) No 1031/2008 of 19 September 2008), which were published in the Official Journal of 30 May 2008 (OJ 2008 C 133, p. 1) (amendment in relation to subheadings 8528 90 00, 8528 71 13 and 8528 71 90), if it is used in relation to the classification of goods under TARIC code 8528711300? |
| --- | --- |

2.

What is to be understood by the term ‘modem’ within the meaning of the Explanatory Notes to the Combined Nomenclature of the European Communities for 2009 (Commission Regulation (EC) No 1031/2008 of 19 September 2008), which were published in the Official Journal of 30 May 2008 (OJ 2008 C 133, p. 1) (amendment in relation to subheadings 8528 90 00, 8528 71 13 and 8528 71 90), if it is used in relation to the classification of goods under TARIC code 8528711300?

| 3. | What is to be understood by the terms ‘modulation’ and ‘demodulation’ within the meaning of the Explanatory Notes to the Combined Nomenclature of the European Communities for 2009 (Commission Regulation (EC) No 1031/2008 of 19 September 2008), which were published in the Official Journal of 30 May 2008 (OJ 2008 C 133, p. 1) (amendment in relation to subheadings 8528 90 00, 8528 71 13 and 8528 71 90), if they are used in relation to the classification of goods under TARIC code 8528711300? |
| --- | --- |

3.

What is to be understood by the terms ‘modulation’ and ‘demodulation’ within the meaning of the Explanatory Notes to the Combined Nomenclature of the European Communities for 2009 (Commission Regulation (EC) No 1031/2008 of 19 September 2008), which were published in the Official Journal of 30 May 2008 (OJ 2008 C 133, p. 1) (amendment in relation to subheadings 8528 90 00, 8528 71 13 and 8528 71 90), if they are used in relation to the classification of goods under TARIC code 8528711300?

| 4. | What is the relevant function (main function) of the set-top box TF6100EMC apparatus, pursuant to which the tariff classification must be carried out: receipt of television signals or the use of a modem which facilitates interactive information exchange for the purposes of gaining access to the Internet? |
| --- | --- |

4.

What is the relevant function (main function) of the set-top box TF6100EMC apparatus, pursuant to which the tariff classification must be carried out: receipt of television signals or the use of a modem which facilitates interactive information exchange for the purposes of gaining access to the Internet?

| 5. | If the relevant function (main function) of the set-top box TF6100EMC apparatus is the use of a modem which facilitates interactive information exchange for the purposes of gaining access to the Internet, is the type of modulation and demodulation which the modem brings about or the type of modem used relevant to the tariff classification, or does it suffice that access to the Internet is provided by means of the modem? |
| --- | --- |

5.

If the relevant function (main function) of the set-top box TF6100EMC apparatus is the use of a modem which facilitates interactive information exchange for the purposes of gaining access to the Internet, is the type of modulation and demodulation which the modem brings about or the type of modem used relevant to the tariff classification, or does it suffice that access to the Internet is provided by means of the modem?

| 6. | Is it permissible for the customs authorities to amend the customs duty classification of a specific product without physically checking the imported product, and for the experts’ report to be issued exclusively on the basis of written evidence, namely the user manual, technical characteristics and inspection of a device made by the same manufacturer which has the same number from another imported consignment? |
| --- | --- |

6.

Is it permissible for the customs authorities to amend the customs duty classification of a specific product without physically checking the imported product, and for the experts’ report to be issued exclusively on the basis of written evidence, namely the user manual, technical characteristics and inspection of a device made by the same manufacturer which has the same number from another imported consignment?

| 7. | Under which subheading and which code should apparatus corresponding to the description of the apparatus TF6100EMC be classified? |
| --- | --- |

7.

Under which subheading and which code should apparatus corresponding to the description of the apparatus TF6100EMC be classified?

| 8. | In the event that the set-top box TF6100EMC is to be classified under the subheading 8521 90 00 of the combined nomenclature, is the application of a positive rate of customs duty lawful as a matter of Community law, if such classification would constitute a violation of the Community’s obligations under the Information Technology Agreement and Article II(b) of the General Agreement on Tariffs and Trade 1994, or does classification under heading 8521 entail a conclusion that the set-top box TF6100EMC falls outside the scope of the relevant part of the Information Technology Agreement? |
| --- | --- |

8.

In the event that the set-top box TF6100EMC is to be classified under the subheading 8521 90 00 of the combined nomenclature, is the application of a positive rate of customs duty lawful as a matter of Community law, if such classification would constitute a violation of the Community’s obligations under the Information Technology Agreement and Article II(b) of the General Agreement on Tariffs and Trade 1994, or does classification under heading 8521 entail a conclusion that the set-top box TF6100EMC falls outside the scope of the relevant part of the Information Technology Agreement?

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(1)  OJ 2008 L 291, p. 1.

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| 8.10.2011 | EN | Official Journal of the European Union | C 298/13 |
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8.10.2011

EN

Official Journal of the European Union

C 298/13

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Reference for a preliminary ruling from the Administrativen Sad Varna (Bulgaria) lodged on 18 July 2011 — Digitalnet OOD v Nachalnik na Mitnicheski punkt — Varna Zapad pri Mitnitsa Varna

(Case C-383/11)

2011/C 298/25

Language of the case: Bulgarian

Referring court

Administrativen Sad Varna

Parties to the main proceedings

Applicant: Digitalnet OOD

Defendant: Nachalnik na Mitnicheski punkt — Varna Zapad pri Mitnitsa Varna

Questions referred

| 1. | How are the terms ‘modem’ and ‘internet access’ to be interpreted for the purposes of subheading 8528 71 13 of the 2009 Combined Nomenclature (Commission Regulation (EC) No 1031/2008 of 19 September 2008 (1), OJ L 291, p. 1) and the Explanatory Notes? |
| --- | --- |

1.

How are the terms ‘modem’ and ‘internet access’ to be interpreted for the purposes of subheading 8528 71 13 of the 2009 Combined Nomenclature (Commission Regulation (EC) No 1031/2008 of 19 September 2008 (1), OJ L 291, p. 1) and the Explanatory Notes?

| 2. | What is the relevant function (main function) of the set-top box, pursuant to which the tariff classification must be carried out: receipt of television signals or the use of a modem which facilitates interactive information exchange for the purposes of gaining access to the internet? |
| --- | --- |

2.

What is the relevant function (main function) of the set-top box, pursuant to which the tariff classification must be carried out: receipt of television signals or the use of a modem which facilitates interactive information exchange for the purposes of gaining access to the internet?

| 3. | If the relevant function (main function) of the set-top box is the use of a modem which facilitates interactive information exchange for the purposes of gaining access to the internet, is the type of modulation and demodulation which the modem brings about or the type of modem used relevant to the tariff classification, or does it suffice that access to the internet is provided by means of the modem? |
| --- | --- |

3.

If the relevant function (main function) of the set-top box is the use of a modem which facilitates interactive information exchange for the purposes of gaining access to the internet, is the type of modulation and demodulation which the modem brings about or the type of modem used relevant to the tariff classification, or does it suffice that access to the internet is provided by means of the modem?

| 4. | Is it permissible for the customs authorities to amend the customs duty classification of a specific product without physically checking the imported product, and for the experts’ report to be issued exclusively on the basis of written evidence, namely the user manual, technical characteristics and inspection of a device made by the same manufacturer which has the same number from another imported consignment? |
| --- | --- |

4.

Is it permissible for the customs authorities to amend the customs duty classification of a specific product without physically checking the imported product, and for the experts’ report to be issued exclusively on the basis of written evidence, namely the user manual, technical characteristics and inspection of a device made by the same manufacturer which has the same number from another imported consignment?

| 5. | Under which code of the 2009 Combined Nomenclature (Commission Regulation (EC) No 1031/2008 of 19 September 2008, OJ L 291, p. 1) should the goods forming the subject-matter of the proceedings (set-top box) be classified, having regard to the technical characteristics established in the main proceedings? |
| --- | --- |

5.

Under which code of the 2009 Combined Nomenclature (Commission Regulation (EC) No 1031/2008 of 19 September 2008, OJ L 291, p. 1) should the goods forming the subject-matter of the proceedings (set-top box) be classified, having regard to the technical characteristics established in the main proceedings?

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(1)  OJ 2008 L 291, p. 1.

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| 8.10.2011 | EN | Official Journal of the European Union | C 298/13 |
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8.10.2011

EN

Official Journal of the European Union

C 298/13

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Reference for a preliminary ruling from the Conseil d’Etat lodged on 22 July 2011 — Société le Crédit Lyonnais v Ministre du budget, des comptes publics et de la réforme de l’Etat

(Case C-388/11)

2011/C 298/26

Language of the case: French

Referring court

Conseil d’Etat

Parties to the main proceedings

Applicant: Société le Crédit Lyonnais

Defendant: Ministre du budget, des comptes publics et de la réforme de l’Etat

Questions referred

| 1. | Having regard to the rules on the territorial scope of value added tax, can Article 17(2) and (5) and Article 19 of the Sixth Directive 77/388/EEC (1) be interpreted as meaning that, for calculation of the deductible proportion for which they provide, the principal establishment of a company established in a Member State must take account of the income achieved by each of its branches established in another Member State and, correspondingly, those branches must take account of the totality of income falling within the scope of value added tax achieved by the company? |
| --- | --- |

1.

Having regard to the rules on the territorial scope of value added tax, can Article 17(2) and (5) and Article 19 of the Sixth Directive 77/388/EEC (1) be interpreted as meaning that, for calculation of the deductible proportion for which they provide, the principal establishment of a company established in a Member State must take account of the income achieved by each of its branches established in another Member State and, correspondingly, those branches must take account of the totality of income falling within the scope of value added tax achieved by the company?

| 2. | Must the same solution be adopted for branches established outside the European Union, particularly in the light of the right to deduct provided for by Article 17(3)(a) and (c), in relation to the banking and financial operations referred to in Article 13B(d)(1) to (5), which are carried out for the benefit of customers established outside the Community? |
| --- | --- |

2.

Must the same solution be adopted for branches established outside the European Union, particularly in the light of the right to deduct provided for by Article 17(3)(a) and (c), in relation to the banking and financial operations referred to in Article 13B(d)(1) to (5), which are carried out for the benefit of customers established outside the Community?

| 3. | Might the answer to the first two questions vary from one Member State to another, depending on the options made available by the last subparagraph of Article 17(5), particularly with regard to the establishment of different sectors of business? |
| --- | --- |

3.

Might the answer to the first two questions vary from one Member State to another, depending on the options made available by the last subparagraph of Article 17(5), particularly with regard to the establishment of different sectors of business?

| 4. | If the answer to either of the first questions is affirmative, first, is it appropriate to limit the application of a deductible proportion of that kind to calculation of rights to deduct value added tax that has been charged on expenses incurred by the principal establishment for the benefit of foreign branches and, second, must income achieved abroad be taken into account in accordance with the rules applicable in the State of the branch or in the State of the principal establishment? |
| --- | --- |

4.

If the answer to either of the first questions is affirmative, first, is it appropriate to limit the application of a deductible proportion of that kind to calculation of rights to deduct value added tax that has been charged on expenses incurred by the principal establishment for the benefit of foreign branches and, second, must income achieved abroad be taken into account in accordance with the rules applicable in the State of the branch or in the State of the principal establishment?

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(1)  Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization 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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| 8.10.2011 | EN | Official Journal of the European Union | C 298/14 |
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8.10.2011

EN

Official Journal of the European Union

C 298/14

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Reference for a preliminary ruling from the Komisia za zashtita ot diskriminatsia (Bulgaria) lodged on 25 July 2011 — Valeri Hariev Belov v ChEZ Elektro Balgaria АD and ChEZ Raspredelenie Balgaria АD

(Case C-394/11)

2011/C 298/27

Language of the case: Bulgarian

Referring court

Komisia za zashtita ot diskriminatsia

Parties to the main proceedings

Applicant: Valeri Hariev Belov

Defendants: ChEZ Elektro Balgaria АD, ChEZ Raspredelenie Balgaria АD and Darzhavna Komisia po energiyno i vodno regulirane

Questions referred

| | Question 1: Does the case to be considered fall within the scope of Council Directive 2000/43/EC (1) of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (here with respect to Article 3(1)(h))? |
| --- | --- |

Question 1: Does the case to be considered fall within the scope of Council Directive 2000/43/EC (1) of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (here with respect to Article 3(1)(h))?

| | Question 2: What is meant by ‘treated less favourably’ within the meaning of Article 2(2)(a) of Directive 2000/43 and by ‘put persons of a racial or ethnic origin at a particular disadvantage’ within the meaning of Article 2(2)(b) of Directive 2000/43?






  2.1. | For less favourable treatment to qualify as direct discrimination, is it absolutely essential for the treatment to be more unfavourable and for it to infringe, directly or indirectly, rights or interests explicitly defined in law, or is it to be understood as any form of behaviour (relationship) in the wider sense of the word which is less advantageous than behaviour in a similar situation? |
| --- | --- | --- |

Question 2: What is meant by ‘treated less favourably’ within the meaning of Article 2(2)(a) of Directive 2000/43 and by ‘put persons of a racial or ethnic origin at a particular disadvantage’ within the meaning of Article 2(2)(b) of Directive 2000/43?

2.1.

For less favourable treatment to qualify as direct discrimination, is it absolutely essential for the treatment to be more unfavourable and for it to infringe, directly or indirectly, rights or interests explicitly defined in law, or is it to be understood as any form of behaviour (relationship) in the wider sense of the word which is less advantageous than behaviour in a similar situation?

| 2.2. | For the fact of being put in a particular unfavourable situation to qualify as indirect discrimination, is it also necessary for it to infringe, directly or indirectly, rights or interests explicitly defined in law, or is it to be understood in the wider sense as any form of being placed in a particular unfavourable/disadvantageous situation? |
| --- | --- |

2.2.

For the fact of being put in a particular unfavourable situation to qualify as indirect discrimination, is it also necessary for it to infringe, directly or indirectly, rights or interests explicitly defined in law, or is it to be understood in the wider sense as any form of being placed in a particular unfavourable/disadvantageous situation?

| | Question 3: Depending on the answer to the second question: If, for direct or indirect discrimination within the meaning of Article 2(2)(a) and (b) of Directive 2000/43 to be deemed to have occurred, it is necessary for the less favourable treatment or the fact of being put in a particular unfavourable situation to infringe, directly or indirectly, a right or interest defined in law,






  3.1. | do the provisions of Article 38 of the Charter of Fundamental Rights of the European Union, Directive 2006/32/EC (2) (Recital 29, Article 1 and Article 13(1)), Directive 2003/54/EC (3) (Article 3(5)) and Directive 2009/72/EC (4) (Article 3(7)) define, to the benefit of the final consumer of electricity, a right or interest entitling him to check meter readings regularly and capable of being relied on before the national courts in proceedings such as the main proceedings,
  and |
| --- | --- | --- |

Question 3: Depending on the answer to the second question: If, for direct or indirect discrimination within the meaning of Article 2(2)(a) and (b) of Directive 2000/43 to be deemed to have occurred, it is necessary for the less favourable treatment or the fact of being put in a particular unfavourable situation to infringe, directly or indirectly, a right or interest defined in law,

3.1.

do the provisions of Article 38 of the Charter of Fundamental Rights of the European Union, Directive 2006/32/EC (2) (Recital 29, Article 1 and Article 13(1)), Directive 2003/54/EC (3) (Article 3(5)) and Directive 2009/72/EC (4) (Article 3(7)) define, to the benefit of the final consumer of electricity, a right or interest entitling him to check meter readings regularly and capable of being relied on before the national courts in proceedings such as the main proceedings,

and

| 3.2. | is national legislation and/or administrative practice approved by the State energy regulatory authority granting a distribution undertaking the freedom to install electricity meters in places to which it is difficult or impossible to gain access, preventing consumers from checking and monitoring meter readings, compatible with those provisions? |
| --- | --- |

3.2.

is national legislation and/or administrative practice approved by the State energy regulatory authority granting a distribution undertaking the freedom to install electricity meters in places to which it is difficult or impossible to gain access, preventing consumers from checking and monitoring meter readings, compatible with those provisions?

| | Question 4: Depending on the answer to the second question: If, for direct or indirect discrimination to be deemed to have occurred, it is not absolutely necessary for a right or interest defined in law to have been directly or indirectly infringed,






  — | is, pursuant to Article 2(2)(a) and (b) of Directive 2000/43, national legislation or case-law, as at issue in the main proceedings, admissible if it requires, for discrimination to be deemed to have occurred, that the more unfavourable treatment and the fact of being put in a more unfavourable position infringe, directly or indirectly, rights or interests defined in law; |
| --- | --- | --- |

Question 4: Depending on the answer to the second question: If, for direct or indirect discrimination to be deemed to have occurred, it is not absolutely necessary for a right or interest defined in law to have been directly or indirectly infringed,

—

is, pursuant to Article 2(2)(a) and (b) of Directive 2000/43, national legislation or case-law, as at issue in the main proceedings, admissible if it requires, for discrimination to be deemed to have occurred, that the more unfavourable treatment and the fact of being put in a more unfavourable position infringe, directly or indirectly, rights or interests defined in law;

| — | if they are not admissible, is the national court then obliged not to apply them and to refer to the definitions given in the directive? |
| --- | --- |

—

if they are not admissible, is the national court then obliged not to apply them and to refer to the definitions given in the directive?

| | Question 5: Is Article 8(1) of Directive 2000/43 to be interpreted






  5.1. | as meaning that it requires the victim to establish facts which impose an unambiguous, incontestable and certain conclusion or inference that direct or indirect discrimination has occurred, or is it sufficient for the facts to justify only an assumption/presumption of such discrimination? |
| --- | --- | --- |

Question 5: Is Article 8(1) of Directive 2000/43 to be interpreted

5.1.

as meaning that it requires the victim to establish facts which impose an unambiguous, incontestable and certain conclusion or inference that direct or indirect discrimination has occurred, or is it sufficient for the facts to justify only an assumption/presumption of such discrimination?

| 5.2. | Do the facts that






  (a) | only in the two parts of the city known as Roma districts are electricity meters attached to electricity poles in the streets at a height at which consumers cannot read them, with known exceptions in some parts of those two urban districts, and |
| --- | --- | --- |

5.2.

Do the facts that

(a)

only in the two parts of the city known as Roma districts are electricity meters attached to electricity poles in the streets at a height at which consumers cannot read them, with known exceptions in some parts of those two urban districts, and

| (b) | in all other districts of the city the electricity meters are placed at a different height (up to 1.7 m) at which they can be read, usually in the consumer’s home, on the outside of the building or on surrounding fences, |
| --- | --- |

(b)

in all other districts of the city the electricity meters are placed at a different height (up to 1.7 m) at which they can be read, usually in the consumer’s home, on the outside of the building or on surrounding fences,

lead to a shift in the burden of proof to the defendant?

| 5.3. | Do the facts that






  (a) | not only Roma but also people of a different ethnic origin live in the two parts of the city known as Roma districts and/or |
| --- | --- | --- |

5.3.

Do the facts that

(a)

not only Roma but also people of a different ethnic origin live in the two parts of the city known as Roma districts and/or

| (b) | accordingly, not all the inhabitants of those two districts actually regard themselves as Roma, and/or |
| --- | --- |

(b)

accordingly, not all the inhabitants of those two districts actually regard themselves as Roma, and/or

| (c) | the reasons for placing the electricity meters in those two urban districts at a height of 7 m are described by the distribution undertaking as being generally known, |
| --- | --- |

(c)

the reasons for placing the electricity meters in those two urban districts at a height of 7 m are described by the distribution undertaking as being generally known,

preclude a shift in the burden of proof to the defendant?

| | Question 6: Depending on the answer to Question 5:






  6.1. | If Article 8(1) of Directive 2000/43 is to be interpreted as meaning that an assumption/presumption of the occurrence of discrimination is necessary and if the aforementioned facts lead to a shift in the burden of proof to the defendant, what form of discrimination can be presumed from those facts — direct or indirect discrimination and/or harassment? |
| --- | --- | --- |

Question 6: Depending on the answer to Question 5:

6.1.

If Article 8(1) of Directive 2000/43 is to be interpreted as meaning that an assumption/presumption of the occurrence of discrimination is necessary and if the aforementioned facts lead to a shift in the burden of proof to the defendant, what form of discrimination can be presumed from those facts — direct or indirect discrimination and/or harassment?

| 6.2. | Do the provisions of Directive 2000/43 enable direct discrimination and/or harassment to be justified by the pursuit of a legal objective by necessary and suitable means? |
| --- | --- |

6.2.

Do the provisions of Directive 2000/43 enable direct discrimination and/or harassment to be justified by the pursuit of a legal objective by necessary and suitable means?

| 6.3. | In view of the legal objectives which the distribution undertaking emphasises it is pursuing, can the measure taken in the two urban districts be justified in a situation in which






  (a) | the measure is taken because of the increasing incidence of unpaid bills in the two urban districts and the frequent offences committed by consumers which impair or threaten the safety, quality and continuous and secure operation of the electrical installations
  and
  the measure is taken across the board, irrespective of whether the individual consumer pays his bills for the distribution and supply of electricity and whether the individual consumer has been found to have committed any offence (manipulation of meter readings, illegal connection and/or extraction and/or consumption of electricity without payment, or any other interference with the network which impairs or threatens its safe, high-quality, continuous and secure operation); |
| --- | --- | --- |

6.3.

In view of the legal objectives which the distribution undertaking emphasises it is pursuing, can the measure taken in the two urban districts be justified in a situation in which

(a)

the measure is taken because of the increasing incidence of unpaid bills in the two urban districts and the frequent offences committed by consumers which impair or threaten the safety, quality and continuous and secure operation of the electrical installations

and

the measure is taken across the board, irrespective of whether the individual consumer pays his bills for the distribution and supply of electricity and whether the individual consumer has been found to have committed any offence (manipulation of meter readings, illegal connection and/or extraction and/or consumption of electricity without payment, or any other interference with the network which impairs or threatens its safe, high-quality, continuous and secure operation);

| (b) | provision is made in legislation and the General Conditions of the Contract on Distribution (‘Distribution Contract’) for liability for any similar offence in civil, administrative and criminal law; |
| --- | --- |

(b)

provision is made in legislation and the General Conditions of the Contract on Distribution (‘Distribution Contract’) for liability for any similar offence in civil, administrative and criminal law;

| (c) | the clause contained in Article 27(2) of the General Conditions of the Distribution Contract — whereby the distribution undertaking gives an assurance that, if explicitly requested by a consumer in writing, it will enable him to make a visual check of the meter readings — does not in fact enable the consumer to check the readings personally and regularly; |
| --- | --- |

(c)

the clause contained in Article 27(2) of the General Conditions of the Distribution Contract — whereby the distribution undertaking gives an assurance that, if explicitly requested by a consumer in writing, it will enable him to make a visual check of the meter readings — does not in fact enable the consumer to check the readings personally and regularly;

| (d) | it is possible for an inspection meter to be installed in the consumer’s home at his explicit written request, although a fee is payable; |
| --- | --- |

(d)

it is possible for an inspection meter to be installed in the consumer’s home at his explicit written request, although a fee is payable;

| (e) | the measure is a distinctive and visible reference to the dishonesty of the consumer in one or other form in view of what the distribution undertaking refers to as the generally known reasons for the measure being taken; |
| --- | --- |

(e)

the measure is a distinctive and visible reference to the dishonesty of the consumer in one or other form in view of what the distribution undertaking refers to as the generally known reasons for the measure being taken;

| (f) | other technical methods and means can be used to protect electricity meters against interference; |
| --- | --- |

(f)

other technical methods and means can be used to protect electricity meters against interference;

| (g) | the legal representative of the distribution undertaking claims that a similar measure taken in a Roma district of another city was in fact unable to prevent interference; |
| --- | --- |

(g)

the legal representative of the distribution undertaking claims that a similar measure taken in a Roma district of another city was in fact unable to prevent interference;

| (h) | it is not assumed that an electrical installation in one of these urban districts, a transformer station, will need to undergo measures similar to those taken to protect electricity meters? |
| --- | --- |

(h)

it is not assumed that an electrical installation in one of these urban districts, a transformer station, will need to undergo measures similar to those taken to protect electricity meters?

---

(1)  Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ 2000 L 180, p. 22).

(2)  Directive 2006/32/EC of the European Parliament and of the Council of 5 April 2006 on energy end-use efficiency and energy services and repealing Council Directive 93/76/EEC (Text with EEA relevance) (OJ 2006 L 114, p. 64).

(3)  Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC — Statements made with regard to decommissioning and waste management activities (OJ 2003 L 176, p. 37).

(4)  Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC (Text with EEA relevance) (OJ 2009 L 211, p. 55).

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| 8.10.2011 | EN | Official Journal of the European Union | C 298/15 |
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8.10.2011

EN

Official Journal of the European Union

C 298/15

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Appeal brought on 29 July 2011 by Elf Aquitaine SA against the judgment delivered by the General Court (Second Chamber) on 17 May 2011 in Case T-299/08 Elf Aquitaine v Commission

(Case C-404/11 P)

2011/C 298/28

Language of the case: French

Parties

Appellant: Elf Aquitaine SA (represented by: E. Morgan de Rivery and E. Lagathu, avocats)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court of Justice should:

| — | Primarily:








  — | on the basis of Articles 256 TFEU and 56 of Protocol No 3 on the Statute of the Court of Justice of the European Union, set aside in full the judgement of the General Court of 17 May 2011 in Case T-299/08 Elf Aquitaine v Commission; |
| --- | --- | --- |

—

Primarily:

—

on the basis of Articles 256 TFEU and 56 of Protocol No 3 on the Statute of the Court of Justice of the European Union, set aside in full the judgement of the General Court of 17 May 2011 in Case T-299/08 Elf Aquitaine v Commission;

| — | grant the form of order which it sought at first instance before the General Court; |
| --- | --- |

—

grant the form of order which it sought at first instance before the General Court;

| — | consequently, annul Articles 1(f), 2(c), 2(e), 3 and 4 of Commission Decision C(2008) 2626 final of 11 June 2008 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/38.695 — Sodium chlorate); |
| --- | --- |

—

consequently, annul Articles 1(f), 2(c), 2(e), 3 and 4 of Commission Decision C(2008) 2626 final of 11 June 2008 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/38.695 — Sodium chlorate);

| — | In the alternative
  , amend, on the basis of Article 261 TFEU, the fine of EUR 22 700 000 imposed on Arkema SA and Elf Aquitaine joint and severally in Article 2(c) of Commission Decision C(2008) 2626 final of 11 June 2008 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/38.695 — Sodium chlorate), and the fine of EUR 15 890 000 imposed on Elf Aquitaine personally in Article 2(e) of that decision, in accordance with its unlimited jurisdiction, as a result of the objective errors in the grounds and the reasons for the judgment of the General Court of 17 May 2011 in Case T-299/08, as set out in its six grounds of appeal; |
| --- | --- |

—

In the alternative
  , amend, on the basis of Article 261 TFEU, the fine of EUR 22 700 000 imposed on Arkema SA and Elf Aquitaine joint and severally in Article 2(c) of Commission Decision C(2008) 2626 final of 11 June 2008 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/38.695 — Sodium chlorate), and the fine of EUR 15 890 000 imposed on Elf Aquitaine personally in Article 2(e) of that decision, in accordance with its unlimited jurisdiction, as a result of the objective errors in the grounds and the reasons for the judgment of the General Court of 17 May 2011 in Case T-299/08, as set out in its six grounds of appeal;

| — | In any event
  , order the European Commission to pay all the costs, including those incurred by Elf Aquitaine before the General Court. |
| --- | --- |

—

In any event
  , order the European Commission to pay all the costs, including those incurred by Elf Aquitaine before the General Court.

Pleas in law and main arguments

In support of its appeal, the appellant raises six main grounds of appeal and one in the alternative.

By its first ground of appeal, Elf Aquitaine SA claims that the General Court infringed Article 5 EU in so far as it validated the principle that a parent company is automatically liable for the infringements committed by its subsidiary, applied in the case at first instance by the Commission and justified by the concept of undertaking within the meaning of Article 101 TFEU. Such an approach is incompatible, or at least disproportionate, with the principles of conferral and subsidiarity (first part) and the principle of proportionality (second part).

By its second ground of appeal, the appellant submits that the General Court made a manifestly erroneous interpretation of national law and of the concept of undertaking in that it conferred an imprecise legal value to the principle of autonomy of legal persons, inter alia.

By it third ground of appeal, the appellant claims, in essence, that the General Court voluntarily refused to draw consequences from the criminal nature of competition law sanctions and from the new obligations resulting from the Charter of Fundamental Rights of the EU. In the appellant's view, the General Court applied the concept of undertaking under EU law abusively and erroneously, in spite of the presumption of autonomy on which national company law is based and of the criminal nature of competition law sanctions. Moreover, the appellant submits that the General Court should have raised, of its own motion, the illegality of the current administrative procedure before the Commission.

By its fourth plea in law, the appellant claims that its rights of defence have been infringed as a result of an erroneous interpretation of the principles of equality and equality of arms. The General Court approved the Commission's use of a probatio diabolica and erred in finding that the autonomy of a subsidiary must be assessed in a general manner in relation to its capital links with its parent company, whereas it should be assessed in relation to its conduct on a given market.

By its fifth ground of appeal, the appellant invokes an infringement of the duty to state reasons in that the General Court briefly took note of the rejection of its arguments by the Commission, without providing any analysis of the Commission's arguments (first part). Moreover, Elf Aquitaine SA accuses the General Court of failing to give reasons in relation to the presumption of imputability (second part), and insufficient reasons in relation to the personal fine imposed on the appellant (third part).

By its sixth plea, the appellant claims that the personal fine was unlawful as the Guidelines on the method of setting fines was misapplied (first part), a false legal basis was created to impose a personal fine (second part), and the grounds given for the judgment under appeal based on the concept of single undertaking and the imposition of an personal fine were contradictory (third part).

By its seventh and final ground of appeal (in the alternative), the appellant submits that the amount of the personal fine imposed on it for the purposes of deterrence were disproportionate and justify an amendment thereof.

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| 8.10.2011 | EN | Official Journal of the European Union | C 298/16 |
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8.10.2011

EN

Official Journal of the European Union

C 298/16

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Action brought on 5 August 2011 — European Commission v Grand Duchy of Luxembourg

(Case C-412/11)

2011/C 298/29

Language of the case: French

Parties

Applicant: European Commission (represented by: J.-P. Keppenne and H. Støvlbæk, acting as Agents)

Defendant: Grand Duchy of Luxembourg

Form of order sought

| — | Declare that, because the measures adopted by it to implement the first railway package are insufficient, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 6(3) of and Annex II to amended Directive 91/440/EEC (1) and Article 14(2) of Directive 2001/14/EC, (2) |
| --- | --- |

—

Declare that, because the measures adopted by it to implement the first railway package are insufficient, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 6(3) of and Annex II to amended Directive 91/440/EEC (1) and Article 14(2) of Directive 2001/14/EC, (2)

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

—

order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

The Commission complains of the national provisions in case since they provide that, in the event of disruption to traffic, allocation of train paths is made by the Société nationale des chemins de fer luxembourgeois (CFL; Luxembourg National Railway Company) and not by an independent body. CFL thus participates in the exercise of essential functions, which does not ensure fair and non-discriminatory access to the infrastructure for other operators.

In reply to the objections raised by the Luxembourg authorities, the Commission points out, firstly, that the statement of the Luxembourg authorities that there is no reallocation of train paths in the event of disruption to traffic is incorrect. When the timetable can no longer be followed, CFL lets late trains pass, which constitutes a reallocation of train paths. Secondly, the Commission contests the argument that Article 29 of Directive 2001/14/EC constitutes a lex specialis derogating from the general rule and enabling justification of the allocation of train paths by CFL in the event of disruptions.

---

(1)  Directive 2001/12/EC of the European Parliament and of the Council of 26 February 2001 amending Council Directive 91/440/EEC on the development of the Community’s railways (OJ 2001 L 75, p. 1).

(2)  Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification (OJ 2001 L 75, p. 29).

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| 8.10.2011 | EN | Official Journal of the European Union | C 298/17 |
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8.10.2011

EN

Official Journal of the European Union

C 298/17

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Reference for a preliminary ruling from the Polimeles Protodikio Athinon (Greece) lodged on 8 August 2011 — Daiichi Sankyo Company Limited, Sanofi-Aventis Deutschland GmbH v DEMO Anonimos Viomikhaniki kai Emporiki Etairia Farmakon

(Case C-414/11)

2011/C 298/30

Language of the case: Greek

Referring court

Polimeles Protodikio Athinon

Parties to the main proceedings

Plaintiffs: Daiichi Sankyo Company Limited, Sanofi-Aventis Deutschland GmbH

Defendant: DEMO Anonimos Viomikhaniki kai Emporiki Etairia Farmakon

Questions referred

| 1. | Does Article 27 of the TRIPS Agreement setting out the framework for patent protection fall within a field for which the Member States continue to have primary competence and, if so, can the Member States themselves accord direct effect to that provision, and can the national court apply it directly subject to the requirements laid down by national law? |
| --- | --- |

1.

Does Article 27 of the TRIPS Agreement setting out the framework for patent protection fall within a field for which the Member States continue to have primary competence and, if so, can the Member States themselves accord direct effect to that provision, and can the national court apply it directly subject to the requirements laid down by national law?

| 2. | Under Article 27 of the TRIPS Agreement are chemical and pharmaceutical products patentable subject matter provided that they satisfy the requirements for the grant of patents and, if so, what is the scope of their protection? |
| --- | --- |

2.

Under Article 27 of the TRIPS Agreement are chemical and pharmaceutical products patentable subject matter provided that they satisfy the requirements for the grant of patents and, if so, what is the scope of their protection?

| 3. | Under Articles 27 and 70 of the TRIPS Agreement, do patents covered by the reservation in Article 167(2) of the 1973 Munich Convention which were granted before 7 February 1992, that is to say, before the above agreement entered into force, and concerned the invention of pharmaceutical products, but which, because of the aforementioned reservation, were granted solely to protect their production process, fall within the protection for all patents pursuant to the provisions of the TRIPS Agreement and, if so, what is the extent and content of that protection, that is to say, have the pharmaceutical products themselves also been protected since the above agreement entered into force or does protection continue to apply to their production process only or must a distinction be made based on the content of the application for grant of a patent, that is to say, as to whether, by describing the invention and the relevant claims, protection was sought at the outset for the product or the production process or both? |
| --- | --- |

3.

Under Articles 27 and 70 of the TRIPS Agreement, do patents covered by the reservation in Article 167(2) of the 1973 Munich Convention which were granted before 7 February 1992, that is to say, before the above agreement entered into force, and concerned the invention of pharmaceutical products, but which, because of the aforementioned reservation, were granted solely to protect their production process, fall within the protection for all patents pursuant to the provisions of the TRIPS Agreement and, if so, what is the extent and content of that protection, that is to say, have the pharmaceutical products themselves also been protected since the above agreement entered into force or does protection continue to apply to their production process only or must a distinction be made based on the content of the application for grant of a patent, that is to say, as to whether, by describing the invention and the relevant claims, protection was sought at the outset for the product or the production process or both?

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| 8.10.2011 | EN | Official Journal of the European Union | C 298/17 |
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8.10.2011

EN

Official Journal of the European Union

C 298/17

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Appeal brought on 8 August 2011 by United Kingdom of Great Britain and Northern Ireland against the order of the General Court (Seventh Chamber) delivered on 24 May 2011 in Case T-115/10: United Kingdom of Great Britain and Northern Ireland v European Commission

(Case C-416/11 P)

2011/C 298/31

Language of the case: English

Parties

Appellant: United Kingdom of Great Britain and Northern Ireland (represented by: S. Ossowski, Agent, D. Wyatt QC, V. Wakefield, Barrister)

Other party to the proceedings: European Commission

Form of order sought

The applicant asks the Court that:

| — | the Order of the General Court be set aside; |
| --- | --- |

—

the Order of the General Court be set aside;

| — | the United Kingdom's action for annulment be declared admissible and the case be referred back to the General Court so that it may examine the substance of the United Kingdom's action for annulment; |
| --- | --- |

—

the United Kingdom's action for annulment be declared admissible and the case be referred back to the General Court so that it may examine the substance of the United Kingdom's action for annulment;

| — | the Commission be ordered to pay the United Kingdom's costs of the present proceedings and those arising at first instance relating to the plea of inadmissibility; and |
| --- | --- |

—

the Commission be ordered to pay the United Kingdom's costs of the present proceedings and those arising at first instance relating to the plea of inadmissibility; and

| — | the costs be reserved as to the remainder. |
| --- | --- |

—

the costs be reserved as to the remainder.

Pleas in law and main arguments

| 1. | The United Kingdom appeals against the Order of the General Court of the European Union (Seventh Chamber) in Case T-115/10 United Kingdom v Commission, in which the General Court ruled that the United Kingdom's action for the annulment of the listing of the Spanish Site of Community Importance ES6120032 (‘Estrecho Oriental’) in Commission Decision 2010/45/EU (1) was inadmissible. |
| --- | --- |

1.

The United Kingdom appeals against the Order of the General Court of the European Union (Seventh Chamber) in Case T-115/10 United Kingdom v Commission, in which the General Court ruled that the United Kingdom's action for the annulment of the listing of the Spanish Site of Community Importance ES6120032 (‘Estrecho Oriental’) in Commission Decision 2010/45/EU (1) was inadmissible.

| 2. | The General Court found that the listing of Site ES6120032 in Commission Decision 2010/45/EU was merely confirmatory of the earlier listing of that Site in Commission Decision 2009/95/EC (2). It was wrong to do so, since the listing of Site ES6120032 in Decision 2010/45/EU was adopted on the basis of substantial new facts, namely that ES6120032:






  (a) | overlaps and purports to include the greater part of British Gibraltar territorial waters (‘BGTW’) and |
| --- | --- | --- |

2.

The General Court found that the listing of Site ES6120032 in Commission Decision 2010/45/EU was merely confirmatory of the earlier listing of that Site in Commission Decision 2009/95/EC (2). It was wrong to do so, since the listing of Site ES6120032 in Decision 2010/45/EU was adopted on the basis of substantial new facts, namely that ES6120032:

(a)

overlaps and purports to include the greater part of British Gibraltar territorial waters (‘BGTW’) and

| (b) | overlaps and purports to include the entire area of a pre-existing United Kingdom Site of Community Importance, with the code UKGIB0002 and the name ‘Southern Waters of Gibraltar’. |
| --- | --- |

(b)

overlaps and purports to include the entire area of a pre-existing United Kingdom Site of Community Importance, with the code UKGIB0002 and the name ‘Southern Waters of Gibraltar’.

| 3. | At the time of the first listing of ES6120032 in Decision 2009/95/EC, it seems that only Spain had actual knowledge of the fact that ES6120032 overlaps with UKGIB0002 and BGTW. Certainly the United Kingdom did not know this fact, and there has been no indication that the Commission or the Habitats Committee (which adopted Decision 2009/95/EC) knew this fact. |
| --- | --- |

3.

At the time of the first listing of ES6120032 in Decision 2009/95/EC, it seems that only Spain had actual knowledge of the fact that ES6120032 overlaps with UKGIB0002 and BGTW. Certainly the United Kingdom did not know this fact, and there has been no indication that the Commission or the Habitats Committee (which adopted Decision 2009/95/EC) knew this fact.

| 4. | By the time of the second listing of ES6120032 in Decision 2010/45/EU, the United Kingdom, the Commission and the Habitats Committee all knew this highly relevant fact, as evidenced by the debate which preceded the adoption of this measure. |
| --- | --- |

4.

By the time of the second listing of ES6120032 in Decision 2010/45/EU, the United Kingdom, the Commission and the Habitats Committee all knew this highly relevant fact, as evidenced by the debate which preceded the adoption of this measure.

| 5. | Since there was no actual knowledge of the fact of the overlapping at the time of adoption of Decision 2009/95/EC, the General Court focussed on constructive knowledge, namely whether there could have been knowledge of the fact of the overlap at the time. It held that neither the United Kingdom nor the Commission could not have known of the fact at that time, and so (according to its reasoning) Decision 2010/45/EU was ‘merely confirmatory’ of the earlier listing. |
| --- | --- |

5.

Since there was no actual knowledge of the fact of the overlapping at the time of adoption of Decision 2009/95/EC, the General Court focussed on constructive knowledge, namely whether there could have been knowledge of the fact of the overlap at the time. It held that neither the United Kingdom nor the Commission could not have known of the fact at that time, and so (according to its reasoning) Decision 2010/45/EU was ‘merely confirmatory’ of the earlier listing.

| 6. | The General Court fell into serious errors of law in its consideration of constructive knowledge. In particular:






  (a) | It erred as to the identity of the parties whose constructive knowledge was legally relevant (which forms
  ground one
  of the present appeal). In particular, the General Court misunderstood case-law and ignored legal principle in considering the constructive knowledge of the Commission. The United Kingdom submits that only the constructive knowledge of the United Kingdom was relevant. Alternatively, if the constructive knowledge of any party other than the United Kingdom is relevant, it must be that of the decision-maker (i.e. the Commission and the Habitats Committee), and not that of the Commission alone; and |
| --- | --- | --- |

6.

The General Court fell into serious errors of law in its consideration of constructive knowledge. In particular:

(a)

It erred as to the identity of the parties whose constructive knowledge was legally relevant (which forms
  ground one
  of the present appeal). In particular, the General Court misunderstood case-law and ignored legal principle in considering the constructive knowledge of the Commission. The United Kingdom submits that only the constructive knowledge of the United Kingdom was relevant. Alternatively, if the constructive knowledge of any party other than the United Kingdom is relevant, it must be that of the decision-maker (i.e. the Commission and the Habitats Committee), and not that of the Commission alone; and

| (b) | It erred as to the standard to be applied when determining what ‘could have’ been known (which forms
  ground two
  of the present appeal). In particular, the General Court failed to direct itself properly or at all as to the proper standard, namely that a party should only be fixed with knowing that which a prudent person should reasonably have known. Moreover, the General Court committed a manifest error of assessment of the facts, in deciding that the standard of constructive knowledge had been met. |
| --- | --- |

(b)

It erred as to the standard to be applied when determining what ‘could have’ been known (which forms
  ground two
  of the present appeal). In particular, the General Court failed to direct itself properly or at all as to the proper standard, namely that a party should only be fixed with knowing that which a prudent person should reasonably have known. Moreover, the General Court committed a manifest error of assessment of the facts, in deciding that the standard of constructive knowledge had been met.

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(1)  2010/45/EU: Commission Decision of 22 December 2009 adopting, pursuant to Council Directive 92/43/EEC, a third updated list of sites of Community importance for the Mediterranean biogeographical region (notified under document C(2009) 10406)

OJ L 30, p. 322

(2)  2009/95/EC: Commission Decision of 12 December 2008 adopting, pursuant to Council Directive 92/43/EEC, a second updated list of sites of Community importance for the Mediterranean biogeographical region (notified under document number C(2008) 8049)

OJ L 43, p. 393

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| 8.10.2011 | EN | Official Journal of the European Union | C 298/18 |
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8.10.2011

EN

Official Journal of the European Union

C 298/18

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Order of the President of the Sixth Chamber of the Court of 12 July 2011 — Deltafina SpA v European Commission

(Case C-537/10 P) (1)

2011/C 298/32

Language of the case: Italian

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

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(1)  OJ C 13, 15.1.2011.

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| 8.10.2011 | EN | Official Journal of the European Union | C 298/18 |
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8.10.2011

EN

Official Journal of the European Union

C 298/18

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Order of the President of the Court of 13 July 2011 (reference for a preliminary ruling from the Tribunale di Santa Maria Capua Vetere (Italy)) — Criminal proceedings against Yeboah Kwadwo

(Case C-120/11) (1)

2011/C 298/33

Language of the case: Italian

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

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(1)  OJ C 145, 14.5.2011.

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General Court

| 8.10.2011 | EN | Official Journal of the European Union | C 298/19 |
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8.10.2011

EN

Official Journal of the European Union

C 298/19

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Action brought on 17 June 2011 — Fercal — Consultadoria e Serviços v OHIM — Parfums Rochas (PATRIZIA ROCHA)

(Case T-360/11)

2011/C 298/34

Language in which the application was lodged: Portuguese

Parties

Applicant: Fercal — Consultadoria e Serviços Lda (Lisbon, Portugal) (represented by: António J. Rodrigues, lawyer)

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

Other party to the proceedings before the Board of Appeal: Parfums Rochas SAS

Form of order sought

The applicant claims that the Court should:

| — | Annul the decision of the Second Board of Appeal of OHIM notified on 21 April 2011 (Case R 2355/2010-2) in the cancellation proceedings Patrizia Rocha/Rochas and, therefore, adjudicate upon the appeal against the decision of 27 September 2010 in the opposition B-001559361. |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of OHIM notified on 21 April 2011 (Case R 2355/2010-2) in the cancellation proceedings Patrizia Rocha/Rochas and, therefore, adjudicate upon the appeal against the decision of 27 September 2010 in the opposition B-001559361.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: PATRIZIA ROCHA

Proprietor of the mark or sign cited in the opposition proceedings: Parfums Rochas SAS

Mark or sign cited in opposition:‘ROCHAS’

Decision of the Opposition Division: Opposition upheld.

Decision of the Board of Appeal: Appeal dismissed as inadmissible.

Pleas in law: The time-limit for filing an appeal expired on 28 January 2011.

The applicant sent a notice of appeal by post on 27 January 2011, the day before the last day of the time-limit.

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| 8.10.2011 | EN | Official Journal of the European Union | C 298/19 |
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8.10.2011

EN

Official Journal of the European Union

C 298/19

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Action brought on 22 July 2011 — ultra air v OHIM — Donaldson Filtration Deutschland (ultrafilter international)

(Case T-396/11)

2011/C 298/35

Language in which the application was lodged: German

Parties

Applicant: ultra air GmbH (Hilden, Germany) (represented by: C. König, lawyer)

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

Other party to the proceedings before the Board of Appeal: Donaldson Filtration Deutschland GmbH (Haan, Germany)

Form of order sought

The applicant claims that the Court should:

| — | Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 18 May 2011, notified on 20 May 2011, in Case R 374/2010-4; |
| --- | --- |

—

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 18 May 2011, notified on 20 May 2011, in Case R 374/2010-4;

| — | Reject the objection lodged on 16 March 2010 by Donaldson Filtration Deutschland GmbH against the decision of the Cancellation Division of OHIM of 29 January 2010 in cancellation proceedings No 2880 C; |
| --- | --- |

—

Reject the objection lodged on 16 March 2010 by Donaldson Filtration Deutschland GmbH against the decision of the Cancellation Division of OHIM of 29 January 2010 in cancellation proceedings No 2880 C;

| — | Order OHIM and Donaldson Filtration Deutschland GmbH, should it intervene in the present case, to pay the costs. |
| --- | --- |

—

Order OHIM and Donaldson Filtration Deutschland GmbH, should it intervene in the present case, to pay the costs.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: the word mark ‘ultrafilter international’ for goods and services in Classes 7, 11, 37, 41 and 42 — Community trade mark No 1 121 839

Proprietor of the Community trade mark: Donaldson Filtration Deutschland GmbH

Applicant for the declaration of invalidity of the Community trade mark: the applicant

Grounds for the application for a declaration of invalidity: the application is based on absolute grounds for invalidity pursuant to Article 52(1)(a) in conjunction with Article 7(1)(b) and (c) and (3) of Regulation No 207/2009 as the contested word mark is descriptive

Decision of the Cancellation Division: the application for a declaration of invalidity was granted

Decision of the Board of Appeal: the Cancellation Division’s decision was annulled and the application for a declaration of invalidity was rejected

Pleas in law: Infringement of Article 7(1) and (3), 52(1)(a), 56(1)(a), 75(1) and 83 of Regulation No 207/2009

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| 8.10.2011 | EN | Official Journal of the European Union | C 298/20 |
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8.10.2011

EN

Official Journal of the European Union

C 298/20

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Action brought on 27 July 2011 — Welte-Wenu v OHIM — Commission (Representation of a circle of 12 stars on a blue background)

(Case T-413/11)

2011/C 298/36

Language in which the application was lodged: German

Parties

Applicant: Welte-Wenu GmbH (Neu-Ulm, Germany) (represented by: T Kahl, lawyer)

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

Other party to the proceedings before the Board of Appeal: European Commission

Form of order sought

The applicant claims that the General Court should:

| — | annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 12.5.2011 — Case R 1590/2010; |
| --- | --- |

—

annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 12.5.2011 — Case R 1590/2010;

| — | reject the appeal of the European Union against the decision of the Cancellation Division on the application for a declaration of invalidity of the Community trade mark EDS EUROPEAN DRIVESHAFT SERVICES (and thereby that application itself); |
| --- | --- |

—

reject the appeal of the European Union against the decision of the Cancellation Division on the application for a declaration of invalidity of the Community trade mark EDS EUROPEAN DRIVESHAFT SERVICES (and thereby that application itself);

| — | order the European Union to pay the costs of the cancellation and appeal proceedings and the defendant to pay the costs of these proceedings. |
| --- | --- |

—

order the European Union to pay the costs of the cancellation and appeal proceedings and the defendant to pay the costs of these proceedings.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: Figurative mark containing a circle of 12 stars on a blue background for goods in Classes 7 and 12 — Community trade mark No 2 180 800

Proprietor of the Community trade mark: The applicant.

Applicant for the declaration of invalidity of the Community trade mark: European Commission.

Grounds for the application for a declaration of invalidity: The registration of the Community trade mark was contrary to Article 7 of Regulation No 207/2009.

Decision of the Cancellation Division: Rejection of the application for a declaration of invalidity of the Community trade mark at issue.

Decision of the Board of Appeal: Upholding of the appeal and cancellation of the Community trade mark at issue.

Pleas in law: Infringement of Article 7(1)(g)(h) and (i) and Articles 55 and 76 of Regulation No 207/2009, Article 6ter(1)(c) of the Paris Convention and Rule 37(b)(iv) of Regulation No 2868/95, since the registration of the Community trade mark was not contrary to the provisions of Article 7 of Regulation No 207/2009.

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| 8.10.2011 | EN | Official Journal of the European Union | C 298/20 |
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8.10.2011

EN

Official Journal of the European Union

C 298/20

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Action brought on 29 July 2011 — Nutrichem Diät + Pharma v OHIM — Gervais Danone (Active)

(Case T-414/11)

2011/C 298/37

Language in which the application was lodged: German

Parties

Applicant: Nutrichem Diät + Pharma GmbH (Roth, Germany) (represented by: D. Jochim and R. Egerer, lawyers)

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

Other party to the proceedings before the Board of Appeal: Compagnie Gervais Danone (Levallois Perret, France)

Form of order sought

The applicant claims that the Court should:

| — | Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 4 May 2011 in Case R 683/2010-1; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 4 May 2011 in Case R 683/2010-1;

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant.

Community trade mark concerned: the figurative mark containing the word element ‘Active’ for goods in Classes 5, 29 and 32 — application No 3 423 316.

Proprietor of the mark or sign cited in the opposition proceedings: Compagnie Gervais Danone.

Mark or sign cited in opposition: the national word mark ‘ACTIVIA’ for goods in Classes 5, 29, 30 and 32.

Decision of the Opposition Division: the opposition was upheld.

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

Pleas in law: Infringement (i) of Article 76 of Regulation No 207/2009 in conjunction with Rule 50(1) and Rule 19(1) and (3) of Regulation No 2868/95 as the Board of Appeal incorrectly assumed that the earlier mark has average distinctive character; (ii) of Article 8(1)(b) of Regulation No 207/2009 as there is no likelihood of confusion between the marks at issue; and (iii) of Article 76 of Regulation No 207/2009 as the parallel decisions of the German Patent and Trade Mark Office and of other national authorities, cited by the applicant, were not taken into account when the defendant took its decision.

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| 8.10.2011 | EN | Official Journal of the European Union | C 298/21 |
| --- | --- | --- | --- |

8.10.2011

EN

Official Journal of the European Union

C 298/21

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Action brought on 1 August 2011 — Hartmann v OHIM (Nutriskin Protection Complex)

(Case T-415/11)

2011/C 298/38

Language of the case: German

Parties

Applicant: Paul Hartmann AG (Heidenheim an der Brenz, Germany) (represented by N. Aicher, lawyer)

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

Form of order sought

The applicant claims that the General Court should:

| — | annul the decision of the First Board of Appeal of OHIM of 26 May 2011 in Case R 1524/2010-1; |
| --- | --- |

—

annul the decision of the First Board of Appeal of OHIM of 26 May 2011 in Case R 1524/2010-1;

| — | order the defendant to pay the costs, including the costs of the appeal procedure before OHIM. |
| --- | --- |

—

order the defendant to pay the costs, including the costs of the appeal procedure before OHIM.

Pleas in law and main arguments

Community trade mark concerned: Wordmark ‘Nutriskin Protection Complex’ for Goods in Classes 3 and 5 — Application for registration Number 8 995 086.

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 No 207/2009, since the Community trade mark application ‘Nutriskin Protection Complex’ in respect of the goods in Classes 3 and 5 is neither descriptive nor lacking in any distinctive character, because first the component ‘Nutriskin’ by reason of the unusual nature of the combination leads to a term, which creates no directly descriptive impression and because secondly the defendant did no more than infer the alleged lack of distinctive character from the descriptive significance of the registered trade mark.

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| 8.10.2011 | EN | Official Journal of the European Union | C 298/21 |
| --- | --- | --- | --- |

8.10.2011

EN

Official Journal of the European Union

C 298/21

---

Action brought on 29 July 2011 — Biotronik SE v OHIM — Cardios Sistemas (CARDIO MANAGER)

(Case T-416/11)

2011/C 298/39

Language in which the application was lodged: German

Parties

Applicant: Biotronik SE & Co. KG (Berlin, Germany) (represented by: A. Reich and S. Pietzcker, lawyers)

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

Other party to the proceedings before the Board of Appeal: Cardios Sistemas Comercial e Industrial Ltda (Sao Paulo, Brazil)

Form of order sought

The applicant claims that the General Court should:

| — | annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 27.5.2011 in Case R 1156/2010-2; |
| --- | --- |

—

annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 27.5.2011 in Case R 1156/2010-2;

| — | allow the opposition to the Community trade mark application No 5378071 in respect of all goods in Class 9 and in Class 10; |
| --- | --- |

—

allow the opposition to the Community trade mark application No 5378071 in respect of all goods in Class 9 and in Class 10;

| — | alternatively, refer the opposition back to the Office for Harmonisation in the Internal Market for further consideration in accordance with the judgment of the General Court; |
| --- | --- |

—

alternatively, refer the opposition back to the Office for Harmonisation in the Internal Market for further consideration in accordance with the judgment of the General Court;

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

—

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

Pleas in law and main arguments

Applicant for a Community trade mark: Cardios Sistemas Comercial e Industrial Ltda.

Community trade mark concerned: Word mark ‘CARDIO MANAGER’ for goods in Classes 9 and 10 — Registration No 5 378 071.

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

Mark or sign cited in opposition: Word mark ‘Cardiomessenger’ for goods in Classes 9 and 10.

Decision of the Opposition Division: Rejection of the opposition.

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

Pleas in law: First, infringement of Article 42(2) and (3) of Regulation No 207/2009 in conjunction with Rule 22(3) and (4) of Regulation No 2868/95, because proof of the place, time and also the extent and nature of the use of the mark ‘Cardiomessenger’ was provided and, secondly, infringement of Article 8(1)(b) and Article 41 of Regulation No 207/2009, because there is no likelihood of confusion between the marks at issue.

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| 8.10.2011 | EN | Official Journal of the European Union | C 298/21 |
| --- | --- | --- | --- |

8.10.2011

EN

Official Journal of the European Union

C 298/21

---

Action brought on 5 August 2011 — Laboratoire Bioderma v OHIM — Cabinet Continental (BIODERMA)

(Case T-427/11)

2011/C 298/40

Language in which the application was lodged: French

Parties

Applicant: Laboratoire Bioderma (Lyons, France) (represented by: A. Teston, lawyer)

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

Other party to the proceedings before the Board of Appeal: Cabinet Continental (Paris, France)

Form of order sought

The applicant claims that the Court should:

| — | Annul the decision of the Board of Appeal of OHIM of 28 February 2011; |
| --- | --- |

—

Annul the decision of the Board of Appeal of OHIM of 28 February 2011;

| — | Reject the application for a declaration of invalidity of the registered trade mark made by Cabinet Continental; |
| --- | --- |

—

Reject the application for a declaration of invalidity of the registered trade mark made by Cabinet Continental;

| — | Order OHIM and/or the applicant for a declaration of invalidity to pay the costs incurred by the applicant in the present action; |
| --- | --- |

—

Order OHIM and/or the applicant for a declaration of invalidity to pay the costs incurred by the applicant in the present action;

| — | Order the applicant for a declaration of invalidity to pay the costs incurred by the applicant in the proceedings before the Cancellation Division and the Board of Appeal. |
| --- | --- |

—

Order the applicant for a declaration of invalidity to pay the costs incurred by the applicant in the proceedings before the Cancellation Division and the Board of Appeal.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: the word mark ‘BIODERMA’ for goods and services in Classes 3, 5 and 44 — Community trade mark No 3 136 892.

Proprietor of the Community trade mark: Laboratoire Bioderma.

Applicant for the declaration of invalidity of the Community trade mark: Cabinet Continental.

Grounds for the application for a declaration of invalidity: The application for a declaration of invalidity was made on the basis of Article 52(1)(a) and Article 7(1)(b), (c) and (d) of Regulation No 207/2009.

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

Decision of the Board of Appeal: Annulment of the decision of the Cancellation Division and declaration that Community trade mark No 3 136 892 is invalid.

Pleas in law: Infringement of Articles 7(1)(b) and (c) and 75 of Regulation No 207/2009 in so far as the contested decision is incorrect as regards inter alia the meaning of the mark concerned in Greek and the perception of that mark by the Greek public.

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| 8.10.2011 | EN | Official Journal of the European Union | C 298/22 |
| --- | --- | --- | --- |

8.10.2011

EN

Official Journal of the European Union

C 298/22

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Action brought on 8 August 2011 — Universal Display v OHIM (UniversalPHOLED)

(Case T-435/11)

2011/C 298/41

Language of the case: English

Parties

Applicant: Universal Display Corp. (New Jersey, USA) (represented by: A. Poulter and C. Lehr, Solicitors)

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

Form of order sought

| — | Overturn the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 18 May 2011 in case R 215/2011-2; and |
| --- | --- |

—

Overturn the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 18 May 2011 in case R 215/2011-2; and

| — | Accept the Community trade mark application and allow it to proceed to publication; |
| --- | --- |

—

Accept the Community trade mark application and allow it to proceed to publication;

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘UniversalPHOLED’ for goods in class 1 — Community trade mark application No W01015224

Decision of the Examiner: Refused the application for a Community trade mark

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 7(1)(b) and (c) of Council Regulation No 207/2009, as the Board of Appeal erred in its analysis of the registrability of the Community trade mark application ‘UniversalPHOLED’.

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| 8.10.2011 | EN | Official Journal of the European Union | C 298/22 |
| --- | --- | --- | --- |

8.10.2011

EN

Official Journal of the European Union

C 298/22

---

Action brought on 5 August 2011 — Golden Balls v OHIM — Intra-Presse (GOLDEN BALLS)

(Case T-437/11)

2011/C 298/42

Language in which the application was lodged: English

Parties

Applicant: Golden Balls Ltd (London, United Kingdom) (represented by: M. Edenborough, QC, and S. Smith, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Intra-Presse (Boulogne-Billancourt, 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 May 2011 in case R 1310/2010-1, in so far as it held that the appeal before the Board of Appeal was successful in respect of goods in class 16; 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 May 2011 in case R 1310/2010-1, in so far as it held that the appeal before the Board of Appeal was successful in respect of goods in class 16; and

| — | Order the defendant to pay the applicant’s costs occasioned by this appeal, or alternatively, order the other party to the proceedings before the Board of Appeal to pay the applicant’s costs occasioned by this appeal. |
| --- | --- |

—

Order the defendant to pay the applicant’s costs occasioned by this appeal, or alternatively, order the other party to the proceedings before the Board of Appeal to pay the applicant’s costs occasioned by this appeal.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘GOLDEN BALLS’ for goods in classes 9, 21 and 24 — Community trade mark application No 6324164

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

Mark or sign cited in opposition: Community trade mark registration No 4226148 of the word mark ‘BALLON D’OR’, for amongst others goods and services in classes 9, 14, 16, 25 and 41

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Annulled the decision of the Opposition Division and partially accepted the opposition and the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly assumed that there is a perceived conflict between the Community trade mark application and the earlier mark.

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| 8.10.2011 | EN | Official Journal of the European Union | C 298/23 |
| --- | --- | --- | --- |

8.10.2011

EN

Official Journal of the European Union

C 298/23

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Action brought on 8 August 2011 — Gold East Paper (Jiangsu) and Gold Huasheng Paper (Suzhou Industrial Park) v Council

(Case T-443/11)

2011/C 298/43

Language of the case: English

Parties

Applicants: Gold East Paper (Jiangsu) Co. Ltd (Jiangsu, China) and Gold Huasheng Paper (Suzhou Industrial Park) Co. Ltd (Jiangsu, China) (represented by: V. Akritidis, Y. Melin and F. Crespo, lawyers)

Defendant: Council of the European Union

Form of order sought

| — | Annul Council Implementing Regulation (EU) No 451/2011 of 6 May 2011 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of coated fine paper originating in the People's Republic of China (OJ 2011 L 128, p. 1); and |
| --- | --- |

—

Annul Council Implementing Regulation (EU) No 451/2011 of 6 May 2011 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of coated fine paper originating in the People's Republic of China (OJ 2011 L 128, p. 1); and

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

—

Order the defendant to bear the costs of the proceedings.

Pleas in law and main arguments

In support of the action, the applicants rely on eight pleas in law.

| 1. | First plea in law, alleging an infringement of an essential procedural requirement under the second subparagraph of Article 2(7)(c) of the basic anti-dumping regulation (1), in that the Commission rejected the applicants’ claim for market economy treatment on the basis of the effect of this rejection on the applicants’ dumping margin. |
| --- | --- |

1.

First plea in law, alleging an infringement of an essential procedural requirement under the second subparagraph of Article 2(7)(c) of the basic anti-dumping regulation (1), in that the Commission rejected the applicants’ claim for market economy treatment on the basis of the effect of this rejection on the applicants’ dumping margin.

| 2. | Second plea in law, alleging an infringement of a second procedural requirement under the second subparagraph of Article 2(7)(c) of the basic anti-dumping regulation, and breach of the fundamental principle of the rights of defence and observance of due process, as the Commission failed to forward certain material information to the anti-dumping advisory committee. |
| --- | --- |

2.

Second plea in law, alleging an infringement of a second procedural requirement under the second subparagraph of Article 2(7)(c) of the basic anti-dumping regulation, and breach of the fundamental principle of the rights of defence and observance of due process, as the Commission failed to forward certain material information to the anti-dumping advisory committee.

| 3. | Third plea in law, alleging manifest errors in the appreciation of the facts of the case, as well as a lack of sufficient reasoning, in breach of Article 2(7)(c) of the basic anti-dumping regulation, in rejecting the applicants’ claim for market economy treatment. |
| --- | --- |

3.

Third plea in law, alleging manifest errors in the appreciation of the facts of the case, as well as a lack of sufficient reasoning, in breach of Article 2(7)(c) of the basic anti-dumping regulation, in rejecting the applicants’ claim for market economy treatment.

| 4. | Fourth plea in law, alleging breach of the principle of sound administration, as well as of Articles 18(1) (3) and (6) of the basic anti-dumping regulation, as the investigation was handled in an unfair and partial way, while imposing an excessive burden of proof. |
| --- | --- |

4.

Fourth plea in law, alleging breach of the principle of sound administration, as well as of Articles 18(1) (3) and (6) of the basic anti-dumping regulation, as the investigation was handled in an unfair and partial way, while imposing an excessive burden of proof.

| 5. | Fifth plea in law, alleging breach of Article 3(2) of the basic anti-dumping regulation and lack of reasoning, in that the European institutions concerned conducted their investigation in such a way that it became more likely that, as a result of the fact-finding or evaluation process, they would determine that the EU industry is injured. |
| --- | --- |

5.

Fifth plea in law, alleging breach of Article 3(2) of the basic anti-dumping regulation and lack of reasoning, in that the European institutions concerned conducted their investigation in such a way that it became more likely that, as a result of the fact-finding or evaluation process, they would determine that the EU industry is injured.

| 6. | Sixth plea in law, alleging breach of Article 3(1) and 9(4) of the basic anti-dumping regulation, in that Council Implementing Regulation (EU) No 451/2011 set target profit margin that the EU industry never achieved in the past. |
| --- | --- |

6.

Sixth plea in law, alleging breach of Article 3(1) and 9(4) of the basic anti-dumping regulation, in that Council Implementing Regulation (EU) No 451/2011 set target profit margin that the EU industry never achieved in the past.

| 7. | Seventh plea in law, alleging that the decision to exclude web-fed rolls from the product concerned and the like product was based on manifest errors in the assessment of the facts of the case, and resulted in a breach of Article 3 (injury), Article 4(1) (Union industry) and Article 5(4) (standing) of the basic anti-dumping regulation. |
| --- | --- |

7.

Seventh plea in law, alleging that the decision to exclude web-fed rolls from the product concerned and the like product was based on manifest errors in the assessment of the facts of the case, and resulted in a breach of Article 3 (injury), Article 4(1) (Union industry) and Article 5(4) (standing) of the basic anti-dumping regulation.

| 8. | Eighth plea in law, alleging breach of Article 3(2) and Article 3(7) of the basic anti-dumping regulation, in that there is no assessment in the contested regulation of whether the duty imposed does not go beyond what is necessary to offset the injury caused by the dumped imports. |
| --- | --- |

8.

Eighth plea in law, alleging breach of Article 3(2) and Article 3(7) of the basic anti-dumping regulation, in that there is no assessment in the contested regulation of whether the duty imposed does not go beyond what is necessary to offset the injury caused by the dumped imports.

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(1)  Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51)

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| 8.10.2011 | EN | Official Journal of the European Union | C 298/24 |
| --- | --- | --- | --- |

8.10.2011

EN

Official Journal of the European Union

C 298/24

---

Action brought on 8 August 2011 — Gold East Paper (Jiangsu) and Gold Huasheng Paper (Suzhou Industrial Park) v Council

(Case T-444/11)

2011/C 298/44

Language of the case: English

Parties

Applicants: Gold East Paper (Jiangsu) Co. Ltd (Jiangsu, China) and Gold Huasheng Paper (Suzhou Industrial Park) Co. Ltd (Jiangsu) (represented by: V. Akritidis, Y. Melin and F. Crespo, lawyers)

Defendant: Council of the European Union

Form of order sought

| — | Annul Council Implementing Regulation (EU) No 452/2011 of 6 May 2011 imposing a definitive anti-subsidy duty on imports of coated fine paper originating in the People's Republic of China (OJ 2011 L 128, p. 18), as far as the applicants are concerned; and |
| --- | --- |

—

Annul Council Implementing Regulation (EU) No 452/2011 of 6 May 2011 imposing a definitive anti-subsidy duty on imports of coated fine paper originating in the People's Republic of China (OJ 2011 L 128, p. 18), as far as the applicants are concerned; and

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

—

Order the defendant to bear the costs of these proceedings.

Pleas in law and main arguments

In support of the action, the applicants rely on ten pleas in law.

| 1. | First plea in law, alleging that the amount of countervailing duty imposed exceeds the amount of countervailable subsidies found in breach of Article 15(1) of the basic anti-subsidy regulation (1), in that first the ad valorem duty imposed was not expressed as a percentage of the CIF price, but rather as a percentage of the turnover. |
| --- | --- |

1.

First plea in law, alleging that the amount of countervailing duty imposed exceeds the amount of countervailable subsidies found in breach of Article 15(1) of the basic anti-subsidy regulation (1), in that first the ad valorem duty imposed was not expressed as a percentage of the CIF price, but rather as a percentage of the turnover.

| 2. | Second plea in law, alleging that the benefit conferred by the government provision of land-use rights for less than adequate remuneration was not properly calculated, in breach of Articles 4, 6(d) and 28 of the basic anti-subsidy regulation. |
| --- | --- |

2.

Second plea in law, alleging that the benefit conferred by the government provision of land-use rights for less than adequate remuneration was not properly calculated, in breach of Articles 4, 6(d) and 28 of the basic anti-subsidy regulation.

| 3. | Third plea in law, alleging breach of Article 4 of the basic anti-subsidy regulation, as the dividend exemption between qualified residents enterprises scheme is not specific and, as a result, the duty imposed to countervail this scheme breaches the said legal provision. |
| --- | --- |

3.

Third plea in law, alleging breach of Article 4 of the basic anti-subsidy regulation, as the dividend exemption between qualified residents enterprises scheme is not specific and, as a result, the duty imposed to countervail this scheme breaches the said legal provision.

| 4. | Fourth plea in law, alleging breach of Article 7(3) of the basic anti-subsidy regulation, as the allocation of the subsidy amount for the VAT and tariff exemption on imported equipment and VAT rebates on domestically produced equipment was allocated over a period shorter than the normal depreciation period in the industry concerned. |
| --- | --- |

4.

Fourth plea in law, alleging breach of Article 7(3) of the basic anti-subsidy regulation, as the allocation of the subsidy amount for the VAT and tariff exemption on imported equipment and VAT rebates on domestically produced equipment was allocated over a period shorter than the normal depreciation period in the industry concerned.

| 5. | Fifth plea in law, alleging breach of Article 6(b) of the basic anti-subsidy regulation, since for the preferential lending to the coated paper industry the European institutions concerned have not investigated what rate the applicants would have obtained in the market. |
| --- | --- |

5.

Fifth plea in law, alleging breach of Article 6(b) of the basic anti-subsidy regulation, since for the preferential lending to the coated paper industry the European institutions concerned have not investigated what rate the applicants would have obtained in the market.

| 6. | Sixth plea in law, alleging breach of Article 14(2) of the basic anti-subsidy regulation, as the imposition of the countervailing duties is not necessary in view of the concomitant imposition of anti-dumping duties. |
| --- | --- |

6.

Sixth plea in law, alleging breach of Article 14(2) of the basic anti-subsidy regulation, as the imposition of the countervailing duties is not necessary in view of the concomitant imposition of anti-dumping duties.

| 7. | Seventh plea in law, alleging breach of Article 8(1) of the basic anti-subsidy regulation and lack of reasoning, in that the European institutions concerned conducted their investigation in such a way that it became more likely that, as a result of the fact-finding or evaluation process, they would determine that the EU industry is injured. |
| --- | --- |

7.

Seventh plea in law, alleging breach of Article 8(1) of the basic anti-subsidy regulation and lack of reasoning, in that the European institutions concerned conducted their investigation in such a way that it became more likely that, as a result of the fact-finding or evaluation process, they would determine that the EU industry is injured.

| 8. | Eighth plea in law, alleging breach of Article 2(d) and 15 of the basic anti-subsidy regulation, in that Council Implementing Regulation (EU) No 4522011 set target profit margin that the EU industry never achieved in the past. |
| --- | --- |

8.

Eighth plea in law, alleging breach of Article 2(d) and 15 of the basic anti-subsidy regulation, in that Council Implementing Regulation (EU) No 4522011 set target profit margin that the EU industry never achieved in the past.

| 9. | Ninth plea in law, alleging that the decision to exclude web-fed rolls from the product concerned and the like product was based on manifest errors in the assessment of the facts of the case, and resulted in a breach of Article 8 (injury), Article 9(1) (Union industry) and Article 10(6) (standing) of the basic anti-subsidy regulation. |
| --- | --- |

9.

Ninth plea in law, alleging that the decision to exclude web-fed rolls from the product concerned and the like product was based on manifest errors in the assessment of the facts of the case, and resulted in a breach of Article 8 (injury), Article 9(1) (Union industry) and Article 10(6) (standing) of the basic anti-subsidy regulation.

| 10. | Tenth plea in law, alleging breach of Article 8(1) and Article 8(6) of the basic anti-subsidy regulation, in that there is no assessment in the contested regulation of whether the duty imposed does not go beyond what is necessary to offset the injury caused by the subsidised imports. |
| --- | --- |

10.

Tenth plea in law, alleging breach of Article 8(1) and Article 8(6) of the basic anti-subsidy regulation, in that there is no assessment in the contested regulation of whether the duty imposed does not go beyond what is necessary to offset the injury caused by the subsidised imports.

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(1)  Council Regulation (EC) No 597/2009 of 11 June 2009 on protection against subsidised imports from countries not members of the European Community (OJ 2009 L 188, p. 93)

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| 8.10.2011 | EN | Official Journal of the European Union | C 298/24 |
| --- | --- | --- | --- |

8.10.2011

EN

Official Journal of the European Union

C 298/24

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Action brought on 9 August 2011 — Catinis v Commission

(Case T-447/11)

2011/C 298/45

Language of the case: English

Parties

Applicant: Lian Catinis (Damascus, Syria) (represented by: S. Pappas, lawyer)

Defendant: European Commission

Form of order sought

| — | Annul the contested decision as far as the non-closure of the investigation and the rejection of access to the applicant's personal file are concerned; and |
| --- | --- |

—

Annul the contested decision as far as the non-closure of the investigation and the rejection of access to the applicant's personal file are concerned; and

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies primarily on the plea of breach of law, as well as the duty to state reasons in support of the decision to continue the investigation beyond any reasonable time and not to have it closed.

Further, the applicant relies on the plea of breach of the duty to state reasons in support of the decision not to allow access to the investigation file.

Lastly, the applicant alleges breaches of fundamental rights and general principles of law, in particular of the principle of good administration, presumption of innocence and right of defence.

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| 8.10.2011 | EN | Official Journal of the European Union | C 298/25 |
| --- | --- | --- | --- |

8.10.2011

EN

Official Journal of the European Union

C 298/25

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Action brought on 5 August 2011 — Golden Balls v OHIM — Intra-Presse (GOLDEN BALLS)

(Case T-448/11)

2011/C 298/46

Language in which the application was lodged: English

Parties

Applicant: Golden Balls Ltd (London, United Kingdom) (represented by: M. Edenborough, QC, and S. Smith, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Intra-Presse (Boulogne-Billancourt, 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 22 June 2011 in case R 1432/2010-1, in so far as it held that the appeal before the Board of Appeal was successful in respect of certain goods and services in classes 9, 28 and 41; and |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 22 June 2011 in case R 1432/2010-1, in so far as it held that the appeal before the Board of Appeal was successful in respect of certain goods and services in classes 9, 28 and 41; and

| — | Order the defendant to pay the applicant’s costs occasioned by this appeal, or alternatively, order the other party to the proceedings before the Board of Appeal to pay the applicant’s costs occasioned by this appeal. |
| --- | --- |

—

Order the defendant to pay the applicant’s costs occasioned by this appeal, or alternatively, order the other party to the proceedings before the Board of Appeal to pay the applicant’s costs occasioned by this appeal.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned:: The word mark ‘GOLDEN BALLS’ for goods and services in classes 9, 28 and 41 — Community trade mark application No 6036503

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

Mark or sign cited in opposition: Community trade mark registration No 4226148 of the word mark ‘BALLON D’OR’, for amongst others goods and services in classes 9, 14, 16, 18, 25, 28, 38 and 41

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Annulled the decision of the Opposition Division and partially accepted the opposition and the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly assumed that there is a perceived conflict between the Community trade mark application and the earlier mark.

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| 8.10.2011 | EN | Official Journal of the European Union | C 298/25 |
| --- | --- | --- | --- |

8.10.2011

EN

Official Journal of the European Union

C 298/25

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Action brought on 10 August 2011 — Galileo International Technology v OHIM — ESA (GALILEO)

(Case T-450/11)

2011/C 298/47

Language in which the application was lodged: English

Parties

Applicant: Galileo International Technology LLC (Bridgetown, Barbados) (represented by: S. Malynicz, Barrister, M. Blair and K. Gilbert, Solicitors)

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

Other party to the proceedings before the Board of Appeal: European Space Agency (ESA) (Paris, 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 14 April 2011 in case R 1423/2005-1; and |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 14 April 2011 in case R 1423/2005-1; and

| — | Order the defendant and the other party to the proceedings before the Board of Appeal to pay their own costs and those of the applicant. |
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—

Order the defendant and the other party to the proceedings before the Board of Appeal to pay their own costs and those of the applicant.

Pleas in law and main arguments

Applicant for a Community trade mark: The other party to the proceedings before the Board of Appeal

Community trade mark concerned: The figurative mark ‘GALILEO’ for services in class 42 — Community trade mark application No 2742237

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

Mark or sign cited in opposition: Community trade mark registration No 1701167, of the word mark ‘GALILEO’ for goods and services in classes 9, 39, 41 and 42; Community trade mark registration No 2157501, of the word mark ‘GALILEO’ for goods and services in classes 9, 16, 35, 38, 39, 41 and 42; Community trade mark registration No 516799, of the figurative mark ‘powered by GALILEO’ for goods and services in classes 9, 16, 35, 38, 39, 41 and 42; Community trade mark registration No 330084, of the figurative mark ‘GALILEO INTERNATIONAL’ for goods and services in classes 9, 39, 41 and 42; Community trade mark registration No 2159069, of the figurative mark ‘GALILEO INTERNATIONAL’ for goods and services in classes 9, 16, 35, 38, 39, 41 and 42

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal failed to appreciate that there was a high degree of similarity between the goods and services covered by the earlier CTM and the services covered by the contested CTM. In particular the Board of Appeal failed to appreciate that part of the relevant goods and services could be complementary, as well as aimed at the same consumer and for the same purpose. In the circumstances of the Board’s conclusion that there was no likelihood of confusion was vitiated by error, bearing in mind the clear similarities between the marks and the fact that a lesser degree of similarity between these goods or services may be offset by a greater degree of similarity between the marks.

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| 8.10.2011 | EN | Official Journal of the European Union | C 298/26 |
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8.10.2011

EN

Official Journal of the European Union

C 298/26

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Action brought on 8 August 2011 — Giga-Byte Technology v OHIM — Haskins (Gigabyte)

(Case T-451/11)

2011/C 298/48

Language in which the application was lodged: English

Parties

Applicant: Giga-Byte Technology Co., Ltd (Taipei, Taiwan) (represented by: F. Schwerbrock, lawyer)

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

Other party to the proceedings before the Board of Appeal: Robert A. Haskins (Pennsylvania, USA)

Form of order sought

| — | Dismiss the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 20 May 2011 in case R 2047/2010-2, as well as the decision of the Opposition Division |
| --- | --- |

—

Dismiss the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 20 May 2011 in case R 2047/2010-2, as well as the decision of the Opposition Division

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘Gigabyte’, for goods and services in classes 9, 35, 37 and 42 — Community trade mark application No 5550009

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

Mark or sign cited in opposition: Community trade mark registration No 4954095 of the word mark ‘GIGABITER’, for services in classes 39, 40 and 42

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

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Section 9(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly concluded that the contested services in classes 37 and 42 are similar to the opponent’s services in class 42.

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| 8.10.2011 | EN | Official Journal of the European Union | C 298/26 |
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8.10.2011

EN

Official Journal of the European Union

C 298/26

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Action brought on 8 August 2011 — Szajner v OHIM — Forge de Laguiole (LAGUIOLE)

(Case T-453/11)

2011/C 298/49

Language in which the application was lodged: French

Parties

Applicant: Gilbert Szajner (Saint-Maur-des-Fossés, France) (represented by: A. Lakits-Josse, lawyer)

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

Other party to the proceedings before the Board of Appeal: Forge de Laguiole SARL (Laguiole, France)

Form of order sought

The applicant claims that the Court should:

| — | Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 1 June 2011 in so far as it stated that Community trade mark No 2 468 379 is declared invalid in respect of the goods covered by the application for annulment in Classes 8, 14, 16, 18, 20, 21, 28 and 34; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 1 June 2011 in so far as it stated that Community trade mark No 2 468 379 is declared invalid in respect of the goods covered by the application for annulment in Classes 8, 14, 16, 18, 20, 21, 28 and 34;

| — | Order Forge de Laguiole to bear its own costs and to pay the costs incurred by Mr Szajner, including the costs of representation. |
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—

Order Forge de Laguiole to bear its own costs and to pay the costs incurred by Mr Szajner, including the costs of representation.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: the word mark ‘LAGUIOLE’ for goods and services in, inter alia, Classes 8, 14, 16, 18, 20, 21, 28, 34 and 38 — Community trade mark No 2 468 379.

Proprietor of the Community trade mark: the applicant.

Applicant for the declaration of invalidity of the Community trade mark: Forge de Laguiole SARL.

Grounds for the application for a declaration of invalidity: the application for a declaration of invalidity was made on the basis of Article 53(1)(c) and Article 8(4) of Regulation No 207/2009, based on the business name of Forge de Laguiole.

Decision of the Cancellation Division: dismissal of the application for a declaration of invalidity.

Decision of the Board of Appeal: partial annulment of the Cancellation Division’s decision and declaration that Community trade mark No 2 468 379 is invalid in part.

Pleas in law: Infringement of Article 8(4) of Regulation No 207/2009 in so far as, first, the Board of Appeal incorrectly found that the business name of Forge de Laguiole was not subject to the principle of speciality and that the name could be protected in respect of business activities not actually carried out by Forge de Laguiole and, secondly, there is no likelihood of confusion between the business name of Forge de Laguiole, used in respect of knives, and the trade mark ‘LAGUIOLE’, registered in respect of goods unrelated to cutlery.

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| 8.10.2011 | EN | Official Journal of the European Union | C 298/27 |
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8.10.2011

EN

Official Journal of the European Union

C 298/27

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Action brought on 12 August 2011 — ICdA and Others v Commission

(Case T-456/11)

2011/C 298/50

Language of the case: English

Parties

Applicants: International Cadmium Association (ICdA) (Bruxelles, Belgium), Rockwood Pigments (UK) Ltd (Stoke-on-Trent, United Kingdom) and James M Brown Ltd (Stoke-on-Trent, United Kingdom) (represented by: R. Cana and K. Van Maldegem, lawyers)

Defendant: European Commission

Form of order sought

| — | Annul the Contested Act, in so far, as it restricts the use of cadmium pigments in plastic materials, other than those plastic materials in which the use was restricted before the adoption of the Contested Act; and |
| --- | --- |

—

Annul the Contested Act, in so far, as it restricts the use of cadmium pigments in plastic materials, other than those plastic materials in which the use was restricted before the adoption of the Contested Act; and

| — | Order the Commission to pay all the cost and expenses. |
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—

Order the Commission to pay all the cost and expenses.

Pleas in law and main arguments

In support of the action, the applicants rely on eight pleas in law.

| 1. | First plea in law, alleging






  — | that the contested regulation infringes Articles 137 (1)(a) and 68-71 of the REACH Regulation (1); |
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1.

First plea in law, alleging

—

that the contested regulation infringes Articles 137 (1)(a) and 68-71 of the REACH Regulation (1);

| 2. | Second plea in law, alleging






  — | that the contested regulation is based on a manifest error of assessment; |
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2.

Second plea in law, alleging

—

that the contested regulation is based on a manifest error of assessment;

| 3. | Third plea in law, alleging






  — | that the contested regulation infringes the principle of legal certainty and legitimate expectations; |
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3.

Third plea in law, alleging

—

that the contested regulation infringes the principle of legal certainty and legitimate expectations;

| 4. | Fourth plea in law, alleging






  — | that the contested regulation infringes REACH regulation in so far as it imposes restrictions on a group of substances, not assessed individually; |
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4.

Fourth plea in law, alleging

—

that the contested regulation infringes REACH regulation in so far as it imposes restrictions on a group of substances, not assessed individually;

| 5. | Fifth plea in law, alleging






  — | that the contested regulation infringes the TBT agreement; |
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5.

Fifth plea in law, alleging

—

that the contested regulation infringes the TBT agreement;

| 6. | Sixth plea in law, alleging






  — | that the contested regulation infringes the applicants’ procedural rights; |
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6.

Sixth plea in law, alleging

—

that the contested regulation infringes the applicants’ procedural rights;

| 7. | Seventh plea in law, alleging






  — | that the contested regulation is inadequately reasoned, contrary to Article 296 TFEU; |
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7.

Seventh plea in law, alleging

—

that the contested regulation is inadequately reasoned, contrary to Article 296 TFEU;

| 8. | Eight plea in law, alleging






  — | that the contested regulation infringes the principle of proportionality. |
| --- | --- | --- |

8.

Eight plea in law, alleging

—

that the contested regulation infringes the principle of proportionality.

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(1)  Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC (OJ L 396, 30.12.2006, p. 1)

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| 8.10.2011 | EN | Official Journal of the European Union | C 298/27 |
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8.10.2011

EN

Official Journal of the European Union

C 298/27

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Action brought on 17 August 2011 — Valeo Vision v Commission

(Case T-457/11)

2011/C 298/51

Language of the case: French

Parties

Applicant: Valeo Vision (Bobigny, France) (represented by: R. Ledru, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | Annul in its entirety Commission Implementing Regulation (EU) No 603/2011 of 20 June 2011 concerning the classification of certain goods in the Combined Nomenclature; |
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—

Annul in its entirety Commission Implementing Regulation (EU) No 603/2011 of 20 June 2011 concerning the classification of certain goods in the Combined Nomenclature;

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

Order the European Commission to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on one plea in law, alleging infringement of the rules of classification in the Combined Nomenclature in so far as the applicant considers that the general rules for interpretation Nos 1, 3(a), 3(b), 3(c) and 6; note No 2(a) of Section XVI; and note No 8 of Chapter 85 of the Combined Nomenclature mean, first, that an ‘LED electronic card’ should be classified under heading 8541 or, in the alternative, under heading 8542 of the Combined Nomenclature and, secondly, that its classification under heading 8512 should be precluded. The applicant disputes, first, the Commission’s statement of reasons and classification and submits, secondly, that the statement of the reasons on which the classification regulation is based is unfounded and has no legal basis.

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| 8.10.2011 | EN | Official Journal of the European Union | C 298/28 |
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8.10.2011

EN

Official Journal of the European Union

C 298/28

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Action brought on 18 August 2011 — Riche v Council and Commission

(Case T-458/11)

2011/C 298/52

Language of the case: French

Parties

Applicant: Philippe Riche (Meursac, France) (represented by: C.-E. Gudin, lawyer)

Defendants: Council of the European Union and European Commission

Form of order sought

| — | Make reparation in full of the loss suffered because of the financial penalties imposed, namely the sum of EUR 136 600; |
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—

Make reparation in full of the loss suffered because of the financial penalties imposed, namely the sum of EUR 136 600;

| — | Order the Council and the Commission to pay all the costs and expenses:






  — | relating to the proceedings before the General Court of the European Union, |
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—

Order the Council and the Commission to pay all the costs and expenses:

—

relating to the proceedings before the General Court of the European Union,

| — | also relating to all the proceedings before all the internal tribunals; |
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—

also relating to all the proceedings before all the internal tribunals;

| — | Fix the amount for non-pecuniary damage at a lump-sum of EUR 100 000. |
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—

Fix the amount for non-pecuniary damage at a lump-sum of EUR 100 000.

Pleas in law and main arguments

In support of the action, the applicant relies on 11 pleas in law.

| 1. | First plea in law, alleging manifest and serious disregard of the limits on the discretion of the Council and the Commission. |
| --- | --- |

1.

First plea in law, alleging manifest and serious disregard of the limits on the discretion of the Council and the Commission.

| 2. | Second plea in law, alleging an infringement by the Council and/or by the Commission of the decision of the Member States to exclude wine spirits such as those produced by the applicant from the list of agricultural products. |
| --- | --- |

2.

Second plea in law, alleging an infringement by the Council and/or by the Commission of the decision of the Member States to exclude wine spirits such as those produced by the applicant from the list of agricultural products.

| 3. | Third plea in law, alleging infringement of the prohibition of discrimination laid down in Article 40 TFEU as regards the wine producers concerned who have distillation plants enabling them to transform into alcohol the production in excess of the quantity normally produced. |
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3.

Third plea in law, alleging infringement of the prohibition of discrimination laid down in Article 40 TFEU as regards the wine producers concerned who have distillation plants enabling them to transform into alcohol the production in excess of the quantity normally produced.

| 4. | Fourth plea in law, alleging infringement of the principle of legal certainty consisting, firstly, of an infringement of the rights acquired by the producers concerned and, secondly, of an infringement of the legitimate expectation placed in the fact that they could themselves carry out the transformation into wine spirits of their production in excess of the quantity normally produced. |
| --- | --- |

4.

Fourth plea in law, alleging infringement of the principle of legal certainty consisting, firstly, of an infringement of the rights acquired by the producers concerned and, secondly, of an infringement of the legitimate expectation placed in the fact that they could themselves carry out the transformation into wine spirits of their production in excess of the quantity normally produced.

| 5. | Fifth plea in law, alleging infringement of the principle of proportionality. |
| --- | --- |

5.

Fifth plea in law, alleging infringement of the principle of proportionality.

| 6. | Sixth plea in law, alleging infringement of the principle of estoppel, referring to the prohibition on a public authority from contradicting itself to the detriment of third parties. |
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6.

Sixth plea in law, alleging infringement of the principle of estoppel, referring to the prohibition on a public authority from contradicting itself to the detriment of third parties.

| 7. | Seventh plea in law, alleging wrongful interference with the freedom to produce industrial goods and put them on the market. |
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7.

Seventh plea in law, alleging wrongful interference with the freedom to produce industrial goods and put them on the market.

| 8. | Eighth plea in law, alleging wrongful extension of the application of the contested regulation to cases where there are no applications for funding. |
| --- | --- |

8.

Eighth plea in law, alleging wrongful extension of the application of the contested regulation to cases where there are no applications for funding.

| 9. | Ninth plea in law, alleging infringement of the right to the presumption of innocence. |
| --- | --- |

9.

Ninth plea in law, alleging infringement of the right to the presumption of innocence.

| 10. | Tenth plea in law, alleging infringement of the principle of sound administration and the duty of care. |
| --- | --- |

10.

Tenth plea in law, alleging infringement of the principle of sound administration and the duty of care.

| 11. | Eleventh plea in law, alleging infringement of the right to property. |
| --- | --- |

11.

Eleventh plea in law, alleging infringement of the right to property.

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| 8.10.2011 | EN | Official Journal of the European Union | C 298/28 |
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8.10.2011

EN

Official Journal of the European Union

C 298/28

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Action brought on 23 August 2011 — Dectane v OHIM — Hella (DAYLINE)

(Case T-463/11)

2011/C 298/53

Language in which the application was lodged: German

Parties

Applicant: Dectane GmbH (Leipzig, Germany) (represented by: P. Ehrlinger and T. Hagen, lawyers)

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

Other party to the proceedings before the Board of Appeal: Hella KGaA Hueck & Co. (Lippstadt, Germany)

Form of order sought

The applicant claims that the Court should:

| — | Annul the contested decision of the First Board of Appeal of OHIM of 15 June 2011; |
| --- | --- |

—

Annul the contested decision of the First Board of Appeal of OHIM of 15 June 2011;

| — | Order the intervener to pay the costs including those incurred in the course of the appeal proceedings. |
| --- | --- |

—

Order the intervener to pay the costs including those incurred in the course of the appeal proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant.

Community trade mark concerned: the word mark ‘DAYLINE’ for goods in Class 11 — application No 7 070 238.

Proprietor of the mark or sign cited in the opposition proceedings: Hella KGaA Hueck & Co.

Mark or sign cited in opposition: the national word mark ‘Ledayline’ for goods in Class 11.

Decision of the Opposition Division: Rejection of the opposition.

Decision of the Board of Appeal: Annulment of the Opposition Division’s decision and refusal to register the mark as a Community trade mark.

Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009 as there is no likelihood of confusion between the marks at issue.

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