# Official Journal C 236/2008

| | ISSN 1725-2423 |
| --- | --- |
| Official Journal
  of the European Union | C 236 |
| | |
| English edition | Information and Notices | Volume 5113 September 2008 |

ISSN 1725-2423

Official Journal

of the European Union

C 236

English edition

Information and Notices

Volume 5113 September 2008

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| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES |
| | Court of Justice |
| 2008/C 236/01 | Last publication of the Court of Justice in the Official Journal of the European Union
  OJ C 223, 30.8.2008 | 1 |

Notice No

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Court of Justice

2008/C 236/01

Last publication of the Court of Justice in the Official Journal of the European Union
  OJ C 223, 30.8.2008

Official Journal of the European Union

1

| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2008/C 236/02 | Case C-504/06: Judgment of the Court (First Chamber) of 25 July 2008 — Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Directive 92/57/EEC — Implementation of minimum safety and health requirements at temporary or mobile construction sites — Article 3(1) — Incorrect transposition) | 2 |
| 2008/C 236/03 | Case C-142/07: Judgment of the Court (Third Chamber) of 25 July 2008 (reference for a preliminary ruling from the Juzgado de lo Contencioso-Administrativo de Madrid — Spain) — Ecologistas en Acción-CODA v Ayuntamiento de Madrid (Directives 85/337/EEC and 97/11/EC — Assessment of the effects of projects on the environment — Refurbishment and improvement works on urban roads — Whether subject to assessment) | 2 |
| 2008/C 236/04 | Case C-204/07 P: Judgment of the Court (Third Chamber) of 25 July 2008 — C.A.S. SpA v Commission of the European Communities (Appeals — EEC-Turkey Association Agreement — Regulation (EEC) No 2913/92 — Article 239 — Community Customs Code — Repayment and remission of import duty — Fruit juice concentrate from Turkey — Movement certificates — Falsification — Special situation) | 3 |
| 2008/C 236/05 | Case C-237/07: Judgment of the Court (Second Chamber) of 25 July 2008 (reference for a preliminary ruling from the Bundesverwaltungsgericht — Germany) — Dieter Janecek v Freistaat Bayern (Directive 96/62/EC — Ambient air quality assessment and management — Fixing of limit values — Entitlement of a third party, whose health has been impaired, to have an action plan drawn up) | 3 |
| 2008/C 236/06 | Case C-493/07: Judgment of the Court (Eighth Chamber) of 25 July 2008 — Commission of the European Communities v Slovak Republic (Failure of a Member State to fulfil obligations — Directive 2002/22/EC — Article 26(3) — Electronic communications — Networks and services — Single European emergency call number — Failure to transpose within the period prescribed) | 4 |
| 2008/C 236/07 | Case C-127/08: Judgment of the Court (Grand Chamber) of 25 July 2008 (reference for a preliminary ruling from the High Court of Ireland) — Blaise Baheten Metock, Hanette Eugenie Ngo Ikeng, Christian Joel Baheten, Samuel Zion Ikeng Baheten, Hencheal Ikogho, Donna Ikogho, Roland Chinedu, Marlene Babucke Chinedu, Henry Igboanusi, Roksana Batkowska v Minister for Justice, Equality and Law Reform (Directive 2004/38/EC — Right of Union citizens and their family members to move and reside freely in the territory of a Member State — Family members who are nationals of non-member countries — Nationals of non-member countries who entered the host Member State before becoming spouses of Union citizens) | 4 |
| 2008/C 236/08 | Case C-364/07: Order of the Court (Third Chamber) of 12 June 2008 (reference for a preliminary ruling from the Monomeles Protodikeio Kerkyras — Greece) — Vassilakis Spyridon, Theodoros Gkisdakis, Petros Grammenos, Nikolaos Grammenos, Theodosios Grammenos, Maria Karavassili, Eleftherios Kontomaris, Spyridon Komninos, Theofilos Mesimeris, Spyridon Monastiriotis, Spyridon Moumouris, Nektaria Mexa, Nikolaos Pappas, Christos Vlachos, Alexandros Grasselis, Stamatios Kourtelesis, Konstantinos Poulimenos, Savvas Sideropoulos, Alexandros Dellis, Michail Zervas, Ignatios Koskieris, Dimitiros Daikos, Christos Dranos v Dimos Kerkyras (Article 104(3), first paragraph, of the Rules of Procedure — Social policy — Directive 1999/70/EC — Framework agreement on fixed-term work — Successive fixed-term employment contracts in the public sector — Concepts of successive contracts and objective reasons justifying the renewal of such contracts — Measures intended to prevent abuse — Sanctions — Settlement at national level of disputes and grievances — Scope of the obligation to interpret national law in conformity with Community law) | 5 |
| 2008/C 236/09 | Case C-265/08: Reference for a preliminary ruling from the Tribunale amministrativo regionale della Lombardia lodged on 19 June 2008 — Federutility and Others v Autorità per l'energia elettrica e il gas | 6 |
| 2008/C 236/10 | Case C-274/08: Action brought on 25 June 2008 — Commission of the European Communities v Kingdom of Sweden | 7 |
| 2008/C 236/11 | Case C-276/08: Reference for a preliminary ruling from the Tribunal administratif (Luxembourg) lodged on 26 June 2008 — Miloud Rimoumi and Gabrielle Suzanne Marie Prick v Ministre des Affaires étrangères et de l'Immigration | 8 |
| 2008/C 236/12 | Case C-285/08: Reference for a preliminary ruling from the Cour de cassation (France) lodged on 30 June 2008 — Société Moteurs Leroy Somer v Société Dalkia France, Société Ace Europe | 8 |
| 2008/C 236/13 | Case C-287/08: Reference for a preliminary ruling from the Tribunale ordinario di Milano (Italy) lodged on 30 June 2008 — Crocefissa Savia and Others v Ministero dell'Istruzione, dell'Università e della Ricerca and Others | 9 |
| 2008/C 236/14 | Case C-301/08: Reference for a preliminary ruling from the Cour de cassation (Luxembourg) lodged on 7 July 2008 — Irène Bogiatzi, married name Ventouras v Deutscher Luftpool, Luxair SA, European Communities, State of the Grand Duchy of Luxembourg, Foyer Assurances SA | 9 |
| 2008/C 236/15 | Case C-317/08: Reference for a preliminary ruling from the Giudice di Pace di Ischia (Italy) lodged on 15 July 2008 — Rosalba Alassini v Telecom Italia SpA | 10 |
| 2008/C 236/16 | Case C-318/08: Reference for a preliminary ruling from the Giudice di Pace di Ischia (Italy) lodged on 15 July 2008 — Filomena Califano v Wind SpA | 10 |
| 2008/C 236/17 | Case C-319/08: Reference for a preliminary ruling from the Giudice di Pace di Ischia (Italy) lodged on 15 July 2008 — Lucia Anna Giorgia Iacono v Telecom Italia SpA | 11 |
| 2008/C 236/18 | Case C-320/08: Reference for a preliminary ruling from the Giudice di Pace di Ischia (Italy) lodged on 15 July 2008 — Multiservice Srl v Telecom Italia SpA | 11 |
| 2008/C 236/19 | Case C-323/08: Reference for a preliminary ruling from the Tribunal Superior de Justicia, Madrid (Spain) lodged on 16 July 2008 — Ovidio Rodríguez Mayor, Pilar Pérez Boto, Pedro Gallego Morzillo, Alfonso Francisco Pérez, Juan Marcelino Gabaldón Morales, Marta María Maestro Campo and Bartolomé Valera Huete v the estate in abeyance of Rafael de las Heras Dávila, Sagrario de las Heras Dávila and Fondo de Garantía Salarial | 12 |
| 2008/C 236/20 | Case C-328/08: Action brought on 17 July 2008 — Commission of the European Communities v Republic of Finland | 12 |
| 2008/C 236/21 | Case C-365/06: Order of the President of the Third Chamber of the Court of 3 June 2008 — Commission of the European Communities v Italian Republic | 13 |
| 2008/C 236/22 | Case C-31/08: Order of the President of the Court of 6 June 2008 — Commission of the European Communities v Italian Republic | 13 |
| | Court of First Instance |
| 2008/C 236/23 | Case T-251/06: Action brought on 15 July 2008 — Meyer-Falk v Commission | 14 |
| 2008/C 236/24 | Case T-273/08: Action brought on 14 July 2008 — X Technology Swiss v OHIM — Ipko-Amcor (First-On-Skin) | 14 |
| 2008/C 236/25 | Case T-276/08: Action brought on 15 July 2008 — Al-Aqsa v Council | 15 |
| 2008/C 236/26 | Case T-277/08: Action brought on 15 July 2008 — Bayer Healthcare v OHIM — Laboratorios ERN (CITRACAL) | 15 |
| 2008/C 236/27 | Case T-284/08: Action brought on 21 July 2008 — People's Mojahedin of Iran v Council | 16 |
| 2008/C 236/28 | Case T-292/08: Action brought on 23 July 2008 — Inditex v OHIM | 16 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2008/C 236/02

Case C-504/06: Judgment of the Court (First Chamber) of 25 July 2008 — Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Directive 92/57/EEC — Implementation of minimum safety and health requirements at temporary or mobile construction sites — Article 3(1) — Incorrect transposition)

2

2008/C 236/03

Case C-142/07: Judgment of the Court (Third Chamber) of 25 July 2008 (reference for a preliminary ruling from the Juzgado de lo Contencioso-Administrativo de Madrid — Spain) — Ecologistas en Acción-CODA v Ayuntamiento de Madrid (Directives 85/337/EEC and 97/11/EC — Assessment of the effects of projects on the environment — Refurbishment and improvement works on urban roads — Whether subject to assessment)

2

2008/C 236/04

Case C-204/07 P: Judgment of the Court (Third Chamber) of 25 July 2008 — C.A.S. SpA v Commission of the European Communities (Appeals — EEC-Turkey Association Agreement — Regulation (EEC) No 2913/92 — Article 239 — Community Customs Code — Repayment and remission of import duty — Fruit juice concentrate from Turkey — Movement certificates — Falsification — Special situation)

3

2008/C 236/05

Case C-237/07: Judgment of the Court (Second Chamber) of 25 July 2008 (reference for a preliminary ruling from the Bundesverwaltungsgericht — Germany) — Dieter Janecek v Freistaat Bayern (Directive 96/62/EC — Ambient air quality assessment and management — Fixing of limit values — Entitlement of a third party, whose health has been impaired, to have an action plan drawn up)

3

2008/C 236/06

Case C-493/07: Judgment of the Court (Eighth Chamber) of 25 July 2008 — Commission of the European Communities v Slovak Republic (Failure of a Member State to fulfil obligations — Directive 2002/22/EC — Article 26(3) — Electronic communications — Networks and services — Single European emergency call number — Failure to transpose within the period prescribed)

4

2008/C 236/07

Case C-127/08: Judgment of the Court (Grand Chamber) of 25 July 2008 (reference for a preliminary ruling from the High Court of Ireland) — Blaise Baheten Metock, Hanette Eugenie Ngo Ikeng, Christian Joel Baheten, Samuel Zion Ikeng Baheten, Hencheal Ikogho, Donna Ikogho, Roland Chinedu, Marlene Babucke Chinedu, Henry Igboanusi, Roksana Batkowska v Minister for Justice, Equality and Law Reform (Directive 2004/38/EC — Right of Union citizens and their family members to move and reside freely in the territory of a Member State — Family members who are nationals of non-member countries — Nationals of non-member countries who entered the host Member State before becoming spouses of Union citizens)

4

2008/C 236/08

Case C-364/07: Order of the Court (Third Chamber) of 12 June 2008 (reference for a preliminary ruling from the Monomeles Protodikeio Kerkyras — Greece) — Vassilakis Spyridon, Theodoros Gkisdakis, Petros Grammenos, Nikolaos Grammenos, Theodosios Grammenos, Maria Karavassili, Eleftherios Kontomaris, Spyridon Komninos, Theofilos Mesimeris, Spyridon Monastiriotis, Spyridon Moumouris, Nektaria Mexa, Nikolaos Pappas, Christos Vlachos, Alexandros Grasselis, Stamatios Kourtelesis, Konstantinos Poulimenos, Savvas Sideropoulos, Alexandros Dellis, Michail Zervas, Ignatios Koskieris, Dimitiros Daikos, Christos Dranos v Dimos Kerkyras (Article 104(3), first paragraph, of the Rules of Procedure — Social policy — Directive 1999/70/EC — Framework agreement on fixed-term work — Successive fixed-term employment contracts in the public sector — Concepts of successive contracts and objective reasons justifying the renewal of such contracts — Measures intended to prevent abuse — Sanctions — Settlement at national level of disputes and grievances — Scope of the obligation to interpret national law in conformity with Community law)

5

2008/C 236/09

Case C-265/08: Reference for a preliminary ruling from the Tribunale amministrativo regionale della Lombardia lodged on 19 June 2008 — Federutility and Others v Autorità per l'energia elettrica e il gas

6

2008/C 236/10

Case C-274/08: Action brought on 25 June 2008 — Commission of the European Communities v Kingdom of Sweden

7

2008/C 236/11

Case C-276/08: Reference for a preliminary ruling from the Tribunal administratif (Luxembourg) lodged on 26 June 2008 — Miloud Rimoumi and Gabrielle Suzanne Marie Prick v Ministre des Affaires étrangères et de l'Immigration

8

2008/C 236/12

Case C-285/08: Reference for a preliminary ruling from the Cour de cassation (France) lodged on 30 June 2008 — Société Moteurs Leroy Somer v Société Dalkia France, Société Ace Europe

8

2008/C 236/13

Case C-287/08: Reference for a preliminary ruling from the Tribunale ordinario di Milano (Italy) lodged on 30 June 2008 — Crocefissa Savia and Others v Ministero dell'Istruzione, dell'Università e della Ricerca and Others

9

2008/C 236/14

Case C-301/08: Reference for a preliminary ruling from the Cour de cassation (Luxembourg) lodged on 7 July 2008 — Irène Bogiatzi, married name Ventouras v Deutscher Luftpool, Luxair SA, European Communities, State of the Grand Duchy of Luxembourg, Foyer Assurances SA

9

2008/C 236/15

Case C-317/08: Reference for a preliminary ruling from the Giudice di Pace di Ischia (Italy) lodged on 15 July 2008 — Rosalba Alassini v Telecom Italia SpA

10

2008/C 236/16

Case C-318/08: Reference for a preliminary ruling from the Giudice di Pace di Ischia (Italy) lodged on 15 July 2008 — Filomena Califano v Wind SpA

10

2008/C 236/17

Case C-319/08: Reference for a preliminary ruling from the Giudice di Pace di Ischia (Italy) lodged on 15 July 2008 — Lucia Anna Giorgia Iacono v Telecom Italia SpA

11

2008/C 236/18

Case C-320/08: Reference for a preliminary ruling from the Giudice di Pace di Ischia (Italy) lodged on 15 July 2008 — Multiservice Srl v Telecom Italia SpA

11

2008/C 236/19

Case C-323/08: Reference for a preliminary ruling from the Tribunal Superior de Justicia, Madrid (Spain) lodged on 16 July 2008 — Ovidio Rodríguez Mayor, Pilar Pérez Boto, Pedro Gallego Morzillo, Alfonso Francisco Pérez, Juan Marcelino Gabaldón Morales, Marta María Maestro Campo and Bartolomé Valera Huete v the estate in abeyance of Rafael de las Heras Dávila, Sagrario de las Heras Dávila and Fondo de Garantía Salarial

12

2008/C 236/20

Case C-328/08: Action brought on 17 July 2008 — Commission of the European Communities v Republic of Finland

12

2008/C 236/21

Case C-365/06: Order of the President of the Third Chamber of the Court of 3 June 2008 — Commission of the European Communities v Italian Republic

13

2008/C 236/22

Case C-31/08: Order of the President of the Court of 6 June 2008 — Commission of the European Communities v Italian Republic

13

Court of First Instance

2008/C 236/23

Case T-251/06: Action brought on 15 July 2008 — Meyer-Falk v Commission

14

2008/C 236/24

Case T-273/08: Action brought on 14 July 2008 — X Technology Swiss v OHIM — Ipko-Amcor (First-On-Skin)

14

2008/C 236/25

Case T-276/08: Action brought on 15 July 2008 — Al-Aqsa v Council

15

2008/C 236/26

Case T-277/08: Action brought on 15 July 2008 — Bayer Healthcare v OHIM — Laboratorios ERN (CITRACAL)

15

2008/C 236/27

Case T-284/08: Action brought on 21 July 2008 — People's Mojahedin of Iran v Council

16

2008/C 236/28

Case T-292/08: Action brought on 23 July 2008 — Inditex v OHIM

16

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

EN

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Court of Justice

| 13.9.2008 | EN | Official Journal of the European Union | C 236/1 |
| --- | --- | --- | --- |

13.9.2008

EN

Official Journal of the European Union

C 236/1

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(2008/C 236/01)

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

OJ C 223, 30.8.2008

Past publications

OJ C 209, 15.8.2008

OJ C 197, 2.8.2008

OJ C 183, 19.7.2008

OJ C 171, 5.7.2008

OJ C 158, 21.6.2008

OJ C 142, 7.6.2008

These texts are available on:

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

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

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V Announcements

COURT PROCEEDINGS

Court of Justice

| 13.9.2008 | EN | Official Journal of the European Union | C 236/2 |
| --- | --- | --- | --- |

13.9.2008

EN

Official Journal of the European Union

C 236/2

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Judgment of the Court (First Chamber) of 25 July 2008 — Commission of the European Communities v Italian Republic

(Case C-504/06) (1)

(Failure of a Member State to fulfil obligations - Directive 92/57/EEC - Implementation of minimum safety and health requirements at temporary or mobile construction sites - Article 3(1) - Incorrect transposition)

(2008/C 236/02)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: L. Pignataro-Nolin and I. Kaufmann-Bühler, Agents)

Defendant: Italian Republic (represented by: I. Braguglia, Agent and W. Ferrante, avvocato dello Stato)

Re:

Failure of a Member State to fulfil obligations — Incorrect transposition of Article 3(1) of Council Directive 92/57/EEC of 24 June 1992 on the implementation of minimum safety and health requirements at temporary or mobile construction sites (eighth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1992 L 245, p. 6) — Appointment of health and safety coordinators for a construction site where a number of undertakings are operating

Operative part of the judgment

The Court:

| 1. | Declares that, by failing correctly to transpose in Italian law Article 3(1) of Council Directive 92/57/EEC of 24 June 1992 on the implementation of minimum safety and health requirements at temporary or mobile construction sites (eighth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC), the Italian Republic has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that, by failing correctly to transpose in Italian law Article 3(1) of Council Directive 92/57/EEC of 24 June 1992 on the implementation of minimum safety and health requirements at temporary or mobile construction sites (eighth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC), the Italian Republic has failed to fulfil its obligations under that directive;

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

2.

Orders each party to bear its own costs.

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(1)  OJ C 42, 24.2.2007.

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| 13.9.2008 | EN | Official Journal of the European Union | C 236/2 |
| --- | --- | --- | --- |

13.9.2008

EN

Official Journal of the European Union

C 236/2

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Judgment of the Court (Third Chamber) of 25 July 2008 (reference for a preliminary ruling from the Juzgado de lo Contencioso-Administrativo de Madrid — Spain) — Ecologistas en Acción-CODA v Ayuntamiento de Madrid

(Case C-142/07) (1)

(Directives 85/337/EEC and 97/11/EC - Assessment of the effects of projects on the environment - Refurbishment and improvement works on urban roads - Whether subject to assessment)

(2008/C 236/03)

Language of the case: Spanish

Referring court

Juzgado de lo Contencioso-Administrativo de Madrid

Parties to the main proceedings

Applicant: Ecologistas en Acción-CODA

Defendant: Ayuntamiento de Madrid

Re:

REFERENCE for a preliminary ruling — Juzgado de lo Contencioso-Administrativo de Madrid — Interpretation of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40) — Urban road projects in densely populated areas or concerning landscapes of historical, cultural or archaeological significance — Whether subject to an assessment procedure having regard to their nature, size and effect — Applicability of the criteria in the judgment of the Court in Case C-332/04 Commission v Spain

Operative part of the judgment

Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, as amended by Council Directive 97/11/EC of 3 March 1997, must be interpreted as meaning that it provides for environmental impact assessment of refurbishment and improvement projects for urban roads, either where they are projects covered by point 7(b) or (c) of Annex I to the directive, or where they are projects covered by point 10(e) of Annex II or the first indent of point 13 thereof, which are likely, by virtue of their nature, size or location and, if appropriate, having regard to their interaction with other projects, to have significant effects on the environment.

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(1)  OJ C 129, 9.6.2007.

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| 13.9.2008 | EN | Official Journal of the European Union | C 236/3 |
| --- | --- | --- | --- |

13.9.2008

EN

Official Journal of the European Union

C 236/3

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Judgment of the Court (Third Chamber) of 25 July 2008 — C.A.S. SpA v Commission of the European Communities

(Case C-204/07 P) (1)

(Appeals - EEC-Turkey Association Agreement - Regulation (EEC) No 2913/92 - Article 239 - Community Customs Code - Repayment and remission of import duty - Fruit juice concentrate from Turkey - Movement certificates - Falsification - Special situation)

(2008/C 236/04)

Language of the case: German

Parties

Appellant: C.A.S. SpA (represented by: D. Ehle, Rechtsanwalt)

Other party to the proceedings: Commission of the European Communities (represented by: M. Patakia and S. Schønberg, acting as Agents, assisted by M. Núñez Müller, Rechtsanwalt)

Re:

Appeal against the judgment of the Court of First Instance (Fifth Chamber) of 6 February 2007 in Case T-23/03 C.A.S. v Commission dismissing the application for partial annulment of Commission Decision REC 10/01 of 18 October 2002 relating to a claim for remission of import duties recovered post-clearance on fruit juice concentrates from Turkey imported under certificates of origin which had proved to be false in a subsequent check — Omissions and errors on the part of the Turkish authorities and the Commission capable of creating a special situation within the meaning of Article 239 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1) — Distribution of the burden of proof as to the existence of a special situation — Legal classification of the documents and facts

Operative part of the judgment

The Court:

| 1. | Sets aside the judgment of the Court of First Instance of 6 February 2007 in Case T-23/03 CAS v Commission; |
| --- | --- |

1.

Sets aside the judgment of the Court of First Instance of 6 February 2007 in Case T-23/03 CAS v Commission;

| 2. | Annuls Article 2 of the Decision of the Commission of 18 October 2002 (REC 10/01); |
| --- | --- |

2.

Annuls Article 2 of the Decision of the Commission of 18 October 2002 (REC 10/01);

| 3. | Orders the Commission of the European Communities to pay the costs at both instances. |
| --- | --- |

3.

Orders the Commission of the European Communities to pay the costs at both instances.

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(1)  OJ C 140, 23.6.2007.

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| 13.9.2008 | EN | Official Journal of the European Union | C 236/3 |
| --- | --- | --- | --- |

13.9.2008

EN

Official Journal of the European Union

C 236/3

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Judgment of the Court (Second Chamber) of 25 July 2008 (reference for a preliminary ruling from the Bundesverwaltungsgericht — Germany) — Dieter Janecek v Freistaat Bayern

(Case C-237/07) (1)

(Directive 96/62/EC - Ambient air quality assessment and management - Fixing of limit values - Entitlement of a third party, whose health has been impaired, to have an action plan drawn up)

(2008/C 236/05)

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicant: Dieter Janecek

Defendant: Freistaat Bayern

Re:

Reference for a preliminary ruling — Bundesverwaltungsgericht — Interpretation of Article 7(3) of Council Directive 96/62/EC of 27 September 1996 on ambient air quality assessment and management (OJ 1996 L 296, p. 55) — Entitlement of a third party whose health is impaired to have an action plan drawn up as provided for by the Directive, where that third party is entitled under national law to bring legal proceedings for measures to prevent the value limits of particulate matter being exceeded

Operative part of the judgment

| 1) | Article 7(3) of Council Directive 96/62/EC of 27 September 1996 on ambient air quality assessment and management, as amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council of 29 September 2003, must be interpreted as meaning that, where there is a risk that the limit values or alert thresholds may be exceeded, persons directly concerned must be in a position to require the competent national authorities to draw up an action plan, even though, under national law, those persons may have other courses of action available to them for requiring those authorities to take measures to combat atmospheric pollution. |
| --- | --- |

1)

Article 7(3) of Council Directive 96/62/EC of 27 September 1996 on ambient air quality assessment and management, as amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council of 29 September 2003, must be interpreted as meaning that, where there is a risk that the limit values or alert thresholds may be exceeded, persons directly concerned must be in a position to require the competent national authorities to draw up an action plan, even though, under national law, those persons may have other courses of action available to them for requiring those authorities to take measures to combat atmospheric pollution.

| 2) | The Member States are obliged, subject to judicial review by the national courts, only to take such measures — in the context of an action plan and in the short term — as are capable of reducing to a minimum the risk that the limit values or alert thresholds may be exceeded and of ensuring a gradual return to a level below those values or thresholds, taking into account the factual circumstances and all opposing interests. |
| --- | --- |

2)

The Member States are obliged, subject to judicial review by the national courts, only to take such measures — in the context of an action plan and in the short term — as are capable of reducing to a minimum the risk that the limit values or alert thresholds may be exceeded and of ensuring a gradual return to a level below those values or thresholds, taking into account the factual circumstances and all opposing interests.

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(1)  OJ C 183, 4.8.2007.

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| 13.9.2008 | EN | Official Journal of the European Union | C 236/4 |
| --- | --- | --- | --- |

13.9.2008

EN

Official Journal of the European Union

C 236/4

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Judgment of the Court (Eighth Chamber) of 25 July 2008 — Commission of the European Communities v Slovak Republic

(Case C-493/07) (1)

(Failure of a Member State to fulfil obligations - Directive 2002/22/EC - Article 26(3) - Electronic communications - Networks and services - Single European emergency call number - Failure to transpose within the period prescribed)

(2008/C 236/06)

Language of the case: Slovak

Parties

Applicant: Commission of the European Communities (represented by: G. Braun and J. Javorský, Agents)

Defendant: Slovak Republic (represented by: J. Čorba, Agent)

Re:

Failure of a Member State to fulfil obligations — Failure to take within the prescribed period the necessary measures to comply with Article 26(3) of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services (Universal Service Directive) (OJ 2002 L 108, p. 51)

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to ensure that that undertakings which operate public telephone networks make, in so far as it is technically feasible, caller location information available to authorities handling emergencies for calls to the single European emergency call number ‘112’, the Slovak Republic has failed to fulfil its obligations under Article 26(3) of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services (Universal Service Directive); |
| --- | --- |

1.

Declares that, by failing to ensure that that undertakings which operate public telephone networks make, in so far as it is technically feasible, caller location information available to authorities handling emergencies for calls to the single European emergency call number ‘112’, the Slovak Republic has failed to fulfil its obligations under Article 26(3) of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services (Universal Service Directive);

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

2.

Orders the Slovak Republic to pay the costs.

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(1)  OJ C 315, 22.12.2007.

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| 13.9.2008 | EN | Official Journal of the European Union | C 236/4 |
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13.9.2008

EN

Official Journal of the European Union

C 236/4

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Judgment of the Court (Grand Chamber) of 25 July 2008 (reference for a preliminary ruling from the High Court of Ireland) — Blaise Baheten Metock, Hanette Eugenie Ngo Ikeng, Christian Joel Baheten, Samuel Zion Ikeng Baheten, Hencheal Ikogho, Donna Ikogho, Roland Chinedu, Marlene Babucke Chinedu, Henry Igboanusi, Roksana Batkowska v Minister for Justice, Equality and Law Reform

(Case C-127/08) (1)

(Directive 2004/38/EC - Right of Union citizens and their family members to move and reside freely in the territory of a Member State - Family members who are nationals of non-member countries - Nationals of non-member countries who entered the host Member State before becoming spouses of Union citizens)

(2008/C 236/07)

Language of the case: English

Referring court

High Court of Ireland

Parties to the main proceedings

Applicants: Blaise Baheten Metock, Hanette Eugenie Ngo Ikeng, Christian Joel Baheten, Samuel Zion Ikeng Baheten, Hencheal Ikogho, Donna Ikogho, Roland Chinedu, Marlene Babucke Chinedu, Henry Igboanusi, Roksana Batkowska

Defendant: Minister for Justice, Equality and Law Reform

Re:

Reference for a preliminary ruling — High Court of Ireland — Interpretation of Article 3(1) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the rights of citizens of the Union and their family members to move and reside freely within the territory of Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77) — Spouse who is a non-EU national — National legislation of the host Member State making the right of residence of family members subject to prior lawful residence in another Member State

Operative part of the judgment

| 1. | Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC precludes legislation of a Member State which requires a national of a non-member country who is the spouse of a Union citizen residing in that Member State but not possessing its nationality to have previously been lawfully resident in another Member State before arriving in the host Member State, in order to benefit from the provisions of that directive. |
| --- | --- |

1.

Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC precludes legislation of a Member State which requires a national of a non-member country who is the spouse of a Union citizen residing in that Member State but not possessing its nationality to have previously been lawfully resident in another Member State before arriving in the host Member State, in order to benefit from the provisions of that directive.

| 2. | Article 3(1) of Directive 2004/38 must be interpreted as meaning that a national of a non-member country who is the spouse of a Union citizen residing in a Member State whose nationality he does not possess and who accompanies or joins that Union citizen benefits from the provisions of that directive, irrespective of when and where their marriage took place and of how the national of a non-member country entered the host Member State. |
| --- | --- |

2.

Article 3(1) of Directive 2004/38 must be interpreted as meaning that a national of a non-member country who is the spouse of a Union citizen residing in a Member State whose nationality he does not possess and who accompanies or joins that Union citizen benefits from the provisions of that directive, irrespective of when and where their marriage took place and of how the national of a non-member country entered the host Member State.

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(1)  OJ C 116, 9.5.2008.

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| 13.9.2008 | EN | Official Journal of the European Union | C 236/5 |
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13.9.2008

EN

Official Journal of the European Union

C 236/5

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Order of the Court (Third Chamber) of 12 June 2008 (reference for a preliminary ruling from the Monomeles Protodikeio Kerkyras — Greece) — Vassilakis Spyridon, Theodoros Gkisdakis, Petros Grammenos, Nikolaos Grammenos, Theodosios Grammenos, Maria Karavassili, Eleftherios Kontomaris, Spyridon Komninos, Theofilos Mesimeris, Spyridon Monastiriotis, Spyridon Moumouris, Nektaria Mexa, Nikolaos Pappas, Christos Vlachos, Alexandros Grasselis, Stamatios Kourtelesis, Konstantinos Poulimenos, Savvas Sideropoulos, Alexandros Dellis, Michail Zervas, Ignatios Koskieris, Dimitiros Daikos, Christos Dranos v Dimos Kerkyras

(Case C-364/07) (1)

(Article 104(3), first paragraph, of the Rules of Procedure - Social policy - Directive 1999/70/EC - Framework agreement on fixed-term work - Successive fixed-term employment contracts in the public sector - Concepts of ‘successive contracts’ and ‘objective reasons’ justifying the renewal of such contracts - Measures intended to prevent abuse - Sanctions - Settlement at national level of disputes and grievances - Scope of the obligation to interpret national law in conformity with Community law)

(2008/C 236/08)

Language of the case: Greek

Referring court

Monomeles Protodikeio Kerkyras

Parties

Applicants: Vassilakis Spyridon, Theodoros Gkisdakis, Petros Grammenos, Nikolaos Grammenos, Theodosios Grammenos, Maria Karavassili, Eleftherios Kontomaris, Spyridon Komninos, Theofilos Mesimeris, Spyridon Monastiriotis, Spyridon Moumouris, Nektaria Mexa, Nikolaos Pappas, Christos Vlachos, Alexandros Grasselis, Stamatios Kourtelesis, Konstantinos Poulimenos, Savvas Sideropoulos, Alexandros Dellis, Michail Zervas, Ignatios Koskieris, Dimitiros Daikos, Christos Dranos

Defendant: Dimos Kerkyras (Municipality of Corfu)

Re:

Reference for a preliminary ruling — Monomeles Protodikeio Kerkyras [Corfu Court of First Instance] — Interpretation of Clause 5(1) and (2) of the Annex to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43) — Employment contracts entered into with public authorities — Concept of objective reasons justifying the renewal, without restriction, of successive fixed-term contracts — Concept of successive contracts

Operative part of the order

| 1. | Where a directive is transposed belatedly into a Member State's domestic law and the relevant provisions of the directive do not have direct effect, the national courts are bound to interpret domestic law so far as possible, once the period for transposition has expired, in the light of the wording and the purpose of the directive concerned with a view to achieving the results sought by the directive, favouring the interpretation of the national rules which is the most consistent with that purpose in order thereby to achieve an outcome compatible with the provisions of the directive. |
| --- | --- |

1.

Where a directive is transposed belatedly into a Member State's domestic law and the relevant provisions of the directive do not have direct effect, the national courts are bound to interpret domestic law so far as possible, once the period for transposition has expired, in the light of the wording and the purpose of the directive concerned with a view to achieving the results sought by the directive, favouring the interpretation of the national rules which is the most consistent with that purpose in order thereby to achieve an outcome compatible with the provisions of the directive.

| 2. | Clause 5(1)(a) of the Framework Agreement on fixed-term employment, signed on 18 March 1999, which is annexed to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, is to be interpreted as precluding the use of successive fixed-term employment contracts where the justification advanced for their use is solely that it is provided for by a general provision of statute or secondary legislation of a Member State. On the contrary, the concept of ‘objective reasons’ within the meaning of that clause requires recourse to this particular type of employment relationship, as provided for by national legislation, to be justified by the presence of specific factors relating in particular to the activity in question and the conditions under which it is carried out. |
| --- | --- |

2.

Clause 5(1)(a) of the Framework Agreement on fixed-term employment, signed on 18 March 1999, which is annexed to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, is to be interpreted as precluding the use of successive fixed-term employment contracts where the justification advanced for their use is solely that it is provided for by a general provision of statute or secondary legislation of a Member State. On the contrary, the concept of ‘objective reasons’ within the meaning of that clause requires recourse to this particular type of employment relationship, as provided for by national legislation, to be justified by the presence of specific factors relating in particular to the activity in question and the conditions under which it is carried out.

| 3. | Clause 5 of the Framework Agreement on fixed-term employment is to be interpreted as not precluding, as a general rule, a national provision, such as that referred to in the third question for a preliminary ruling, according to which only fixed-term employment contracts or employment relationships that are separated by a period of time shorter than three months can be regarded as ‘successive’ for the purposes of that clause. |
| --- | --- |

3.

Clause 5 of the Framework Agreement on fixed-term employment is to be interpreted as not precluding, as a general rule, a national provision, such as that referred to in the third question for a preliminary ruling, according to which only fixed-term employment contracts or employment relationships that are separated by a period of time shorter than three months can be regarded as ‘successive’ for the purposes of that clause.

| 4. | In circumstances such as those of the main proceedings, the Framework Agreement is to be interpreted as meaning that, in so far as domestic law of the Member State concerned does not include, in the sector under consideration, any other effective measure to prevent and, where relevant, punish the misuse of successive fixed-term contracts, the Framework Agreement precludes the application of national legislation which, in the public sector alone, prohibits absolutely the conversion into an employment contract of indefinite duration of a succession of fixed-term contracts that have been intended to cover ‘fixed and permanent needs’ of the employer and must therefore be regarded as constituting an abuse. It is however for the referring court, in accordance with its obligation to interpret national law in conformity with Community law, to determine whether its domestic law does not include any such other effective measure. |
| --- | --- |

4.

In circumstances such as those of the main proceedings, the Framework Agreement is to be interpreted as meaning that, in so far as domestic law of the Member State concerned does not include, in the sector under consideration, any other effective measure to prevent and, where relevant, punish the misuse of successive fixed-term contracts, the Framework Agreement precludes the application of national legislation which, in the public sector alone, prohibits absolutely the conversion into an employment contract of indefinite duration of a succession of fixed-term contracts that have been intended to cover ‘fixed and permanent needs’ of the employer and must therefore be regarded as constituting an abuse. It is however for the referring court, in accordance with its obligation to interpret national law in conformity with Community law, to determine whether its domestic law does not include any such other effective measure.

| 5. | The principle of the effectiveness of Community law and the Framework Agreement on fixed-term employment do not preclude, as a general rule, a provision of national law under which an independent administrative authority has jurisdiction in respect of the possible reclassification of fixed-term contracts as contracts of indefinite duration. It is however for the referring court to ensure that the right to effective judicial protection is safeguarded with due regard to the principles of effectiveness and equivalence. |
| --- | --- |

5.

The principle of the effectiveness of Community law and the Framework Agreement on fixed-term employment do not preclude, as a general rule, a provision of national law under which an independent administrative authority has jurisdiction in respect of the possible reclassification of fixed-term contracts as contracts of indefinite duration. It is however for the referring court to ensure that the right to effective judicial protection is safeguarded with due regard to the principles of effectiveness and equivalence.

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(1)  OJ C 247 of 24.10.2007.

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| 13.9.2008 | EN | Official Journal of the European Union | C 236/6 |
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13.9.2008

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Official Journal of the European Union

C 236/6

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Reference for a preliminary ruling from the Tribunale amministrativo regionale della Lombardia lodged on 19 June 2008 — Federutility and Others v Autorità per l'energia elettrica e il gas

(Case C-265/08)

(2008/C 236/09)

Language of the case: Italian

Referring court

Tribunale amministrativo regionale della Lombardia

Parties to the main proceedings

Applicants: Federutility, Asogas, Libarna Gas SpA, Collino Commercio SpA, Sadori Gas SpA, Egea Commerciale, E.On Vendita srl, Sorgenia SpA

Defendant: Autorità per l'energia elettrica e il gas

Questions referred

| 1. | On a proper interpretation, in accordance with the principles enshrined in the EU Treaty, of Article 23 of Directive 2003/55/EC (1) of the European Parliament and of the Council of 26 June 2003, which regulates the opening up of the gas market, is it contrary to that provision and to the principles of Community law for a national provision (and measures adopted in pursuance thereof) to maintain in effect after 1 July 2007 the power of the national regulatory authority to set reference prices for the supply of natural gas to domestic customers (an open-ended category not defined in the legislation and which does not of itself entail particular circumstances of socio-economic disadvantage such as might justify the setting of such reference prices), which distributors or suppliers, within the scope of their public service obligations, are bound to include in their commercial offers? |
| --- | --- |

1.

On a proper interpretation, in accordance with the principles enshrined in the EU Treaty, of Article 23 of Directive 2003/55/EC (1) of the European Parliament and of the Council of 26 June 2003, which regulates the opening up of the gas market, is it contrary to that provision and to the principles of Community law for a national provision (and measures adopted in pursuance thereof) to maintain in effect after 1 July 2007 the power of the national regulatory authority to set reference prices for the supply of natural gas to domestic customers (an open-ended category not defined in the legislation and which does not of itself entail particular circumstances of socio-economic disadvantage such as might justify the setting of such reference prices), which distributors or suppliers, within the scope of their public service obligations, are bound to include in their commercial offers?

| 2. | Or is the provision in question (Article 23) to be read in conjunction with Article 3 of Directive 2003/55/EC (which provides that Member States may impose on undertakings operating in the gas sector, in the general economic interest, public service obligations which may relate inter alia to the price of supplies) as meaning that it is not contrary to those provisions of Community law for a national provision which, having regard to the particular circumstances of the market, still characterised by an absence of conditions of ‘effective competition’, at least in the wholesale sector, to allow a public authority to set a reference price for natural gas which has to be quoted by every supplier in its commercial offers to its domestic customers within the scope of the universal service concept, despite the fact that all customers must be treated as ‘free’? |
| --- | --- |

2.

Or is the provision in question (Article 23) to be read in conjunction with Article 3 of Directive 2003/55/EC (which provides that Member States may impose on undertakings operating in the gas sector, in the general economic interest, public service obligations which may relate inter alia to the price of supplies) as meaning that it is not contrary to those provisions of Community law for a national provision which, having regard to the particular circumstances of the market, still characterised by an absence of conditions of ‘effective competition’, at least in the wholesale sector, to allow a public authority to set a reference price for natural gas which has to be quoted by every supplier in its commercial offers to its domestic customers within the scope of the universal service concept, despite the fact that all customers must be treated as ‘free’?

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(1)  OJ L 176, p. 57.

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| 13.9.2008 | EN | Official Journal of the European Union | C 236/7 |
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Official Journal of the European Union

C 236/7

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Action brought on 25 June 2008 — Commission of the European Communities v Kingdom of Sweden

(Case C-274/08)

(2008/C 236/10)

Language of the case: Swedish

Parties

Applicant: Commission of the European Communities (represented by: B. Schima and P. Dejmek, acting as Agents)

Defendant: Kingdom of Sweden

Form of order sought

| — | Declare that, by failing to adopt appropriate measures to ensure that the requirement for a functional division between distribution and production interests in a vertically integrated undertaking in accordance with Article 15(2)(b) and (c) of 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 (1) and by failing to make the regulatory authorities responsible for approving, in advance, at least the methodologies used to calculate or establish the terms and conditions for access to national networks, including transmission and distribution tariffs in accordance with Article 23(2)(a) thereof, the Kingdom of Sweden has failed to fulfil its obligations under that directive; |
| --- | --- |

—

Declare that, by failing to adopt appropriate measures to ensure that the requirement for a functional division between distribution and production interests in a vertically integrated undertaking in accordance with Article 15(2)(b) and (c) of 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 (1) and by failing to make the regulatory authorities responsible for approving, in advance, at least the methodologies used to calculate or establish the terms and conditions for access to national networks, including transmission and distribution tariffs in accordance with Article 23(2)(a) thereof, the Kingdom of Sweden has failed to fulfil its obligations under that directive;

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

—

order the Kingdom of Sweden to pay the costs.

Pleas in law and main arguments

In support of its contention that Article 15(2)(b) and (c) has been implemented in Swedish law, Sweden has referred to various provisions in the Law on electricity (ellagen), from which, inter alia, it is apparent that network activity (distribution activity) is to be dealt with separately in the accounts and that the network undertaking's auditor is particularly to audit those separate accounts. Further, Sweden has submitted that costs which a network undertaking has in common with another undertaking are to be entered in the accounts only to the extent that they concern the network undertaking. In addition, the network undertaking is required to establish a supervisory plan and ensure that it is followed.

Nevertheless, the Commission takes the view that the clear requirement for organisation of the management structure under Article 15(2)(b) and (c) cannot be regarded as satisfied by general rules concerning, for example, separate accounting or generally applicable sanctions.

According to Sweden, the requirement for a functional division is also satisfied by the general company law provisions in the Law on limited companies (aktiebolaglagen), in accordance with which parent companies and subsidiaries are separate legal persons and legal entities.

The Commission takes the view that the parent company, in its capacity as majority shareholder, has a decisive influence over its subsidiary or subsidiaries, since certain important questions are reserved for decision by the shareholders. A distribution undertaking and its board of directors can thus never be independent of its majority shareholders on the basis only of general company law. Nor does the fact that an integrated undertaking complies with the provisions of the aktiebolaglagen concerning auditing and restrictions on the transfer of assets mean, in the Commission's view, that the requirement for an independent management structure is satisfied. According to the Commission, correct implementation of Article 15(2)(b) and (c) in national law presupposes that there are binding rules which clearly reflect the conditions laid down in those provisions, that is to say, a guarantee that the management of a distribution undertaking can act independently of the integrated electricity undertaking as regards distribution and the means necessary to guarantee the operation, maintenance and development of the network. That requirement is not satisfied by the provisions in the aktiebolaglagen.

As is apparent from the wording of Article 23(2)(a) of the Directive, that article requires a system of advance approval of network tariffs or, in any event, of the methodologies used to calculate them. Sweden has expressly stated that the present Swedish rules on the calculation of network tariffs and the criteria which network tariffs must satisfy are based on a system in which supervision is carried out after the event, but that inquiries are presently taking place regarding the introduction of a new system of advance approval and that a proposal would probably be put before parliament in June 2008.

In the abovementioned circumstances, the Commission takes the view that Sweden has not correctly implemented Directive 2003/54/EC in its national law, in particular Articles 15(2)(b) and (c) and 23(2)(a) thereof.

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(1)  OJ 2003 L 176, p. 37.

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| 13.9.2008 | EN | Official Journal of the European Union | C 236/8 |
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13.9.2008

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Official Journal of the European Union

C 236/8

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Reference for a preliminary ruling from the Tribunal administratif (Luxembourg) lodged on 26 June 2008 — Miloud Rimoumi and Gabrielle Suzanne Marie Prick v Ministre des Affaires étrangères et de l'Immigration

(Case C-276/08)

(2008/C 236/11)

Language of the case: French

Referring court

Tribunal administratif

Parties to the main proceedings

Applicants: Miloud Rimoumi and Gabrielle Suzanne Marie Prick

Defendant: Ministre des Affaires étrangères et de l'Immigration

Question referred

Are Articles 2(2)(a), 3(1) and 7(2) of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (1) to be interpreted as applying only to those family members who acquired that status prior to the date on which the Union citizen, whom they intend to accompany or join, exercised his/her right of free movement conferred by Article 39 of the EC Treaty, or, on the contrary, is any citizen of the Union who has exercised his/her right of free movement and become established in a Member State other than that of which that person is a national entitled to be joined by a family member, without the latter having to satisfy a condition as to the time at which he/she acquired that status?

---

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

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| 13.9.2008 | EN | Official Journal of the European Union | C 236/8 |
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13.9.2008

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Official Journal of the European Union

C 236/8

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Reference for a preliminary ruling from the Cour de cassation (France) lodged on 30 June 2008 — Société Moteurs Leroy Somer v Société Dalkia France, Société Ace Europe

(Case C-285/08)

(2008/C 236/12)

Language of the case: French

Referring court

Cour de cassation

Parties to the main proceedings

Appellant: Société Moteurs Leroy Somer

Respondents: Société Dalkia France, Société Ace Europe

Question referred

Do Articles 9 and 13 of Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products (1) preclude the interpretation of domestic law or settled domestic case-law such that it enables the victim to seek compensation for damage to an item of property intended for professional use and employed for that use, where that victim simply proves damage, the defect in the product and the causal link between that defect and the damage?

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(1)  OJ 1985 L 210, p. 29.

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| 13.9.2008 | EN | Official Journal of the European Union | C 236/9 |
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13.9.2008

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Official Journal of the European Union

C 236/9

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Reference for a preliminary ruling from the Tribunale ordinario di Milano (Italy) lodged on 30 June 2008 — Crocefissa Savia and Others v Ministero dell'Istruzione, dell'Università e della Ricerca and Others

(Case C-287/08)

(2008/C 236/13)

Language of the case: Italian

Referring court

Tribunale ordinario di Milano (Italy)

Parties to the main proceedings

Applicants: Crocefissa Savia, Monica Maria Porcu, Ignazia Randazzo, Daniela Genovese and Mariangela Campanella

Defendants: Ministero dell'Istruzione, dell'Università e della Ricerca, Direzione Didattica II Circolo — Limbiate, Ufficio Scolastico Regionale per la Lombardia, Direzione Didattica III Circolo — Rozzano, Direzione Didattica IV Circolo — Rho, Istituto Comprensivo — Castano Primo, Istituto Comprensivo A. Manzoni — Rescaldina

Questions referred

| 1. | Is it permissible for the legislature of a Member State of the European Union to adopt a rule which purports to provide an authentic interpretation but which in reality introduces substantive innovation and, in particular, attributes to the legislation purportedly interpreted effects other than those previously attributed to it in the majority of judicial decisions concerning the substance and by the consolidated case-law of the supreme courts? |
| --- | --- |

1.

Is it permissible for the legislature of a Member State of the European Union to adopt a rule which purports to provide an authentic interpretation but which in reality introduces substantive innovation and, in particular, attributes to the legislation purportedly interpreted effects other than those previously attributed to it in the majority of judicial decisions concerning the substance and by the consolidated case-law of the supreme courts?

| 2. | Can the answer to Question 1 be affected by the possibility that the rule referred to may be classed as genuinely interpretative — rather than as introducing innovation with retroactive effect — in that it reflects the way in which the original legislation was construed in a minority series of judicial decisions concerning the substance even though that has repeatedly been contradicted by the supreme courts? |
| --- | --- |

2.

Can the answer to Question 1 be affected by the possibility that the rule referred to may be classed as genuinely interpretative — rather than as introducing innovation with retroactive effect — in that it reflects the way in which the original legislation was construed in a minority series of judicial decisions concerning the substance even though that has repeatedly been contradicted by the supreme courts?

| 3. | If the answer is affirmative, what — for the purposes of appraising the compatibility of such a rule with Community law and, in particular, with the principles governing the ‘fairness’ of judicial proceedings — are the implications in either case of the fact that the Member State itself is a party to the proceedings and application of the rule de facto in force requires the court seised to dismiss the forms of order sought against that State? |
| --- | --- |

3.

If the answer is affirmative, what — for the purposes of appraising the compatibility of such a rule with Community law and, in particular, with the principles governing the ‘fairness’ of judicial proceedings — are the implications in either case of the fact that the Member State itself is a party to the proceedings and application of the rule de facto in force requires the court seised to dismiss the forms of order sought against that State?

| 4. | What guidance can be given as regards the ‘overriding reasons of public interest’ capable of justifying — as the case may be, even in derogation from the answer which should in principle be given to Questions 1, 2 and 3 — recognition of the retroactive effects of a statutory provision concerning civil law matters as well as private law relationships, albeit established with a body governed by public law? |
| --- | --- |

4.

What guidance can be given as regards the ‘overriding reasons of public interest’ capable of justifying — as the case may be, even in derogation from the answer which should in principle be given to Questions 1, 2 and 3 — recognition of the retroactive effects of a statutory provision concerning civil law matters as well as private law relationships, albeit established with a body governed by public law?

| 5. | Could those reasons include organisational considerations analogous to those referred to by the Italian Court of Cassation in Judgments Nos 618/2008, 677/2008 and 11922/2008 in order to justify — on grounds, in particular, of the need to ‘regulate a wide-ranging organisational restructuring operation’ — adoption of the rule intended to regulate, six years after it had taken place, the transfer to the State of the ATAs employed by the local authorities? |
| --- | --- |

5.

Could those reasons include organisational considerations analogous to those referred to by the Italian Court of Cassation in Judgments Nos 618/2008, 677/2008 and 11922/2008 in order to justify — on grounds, in particular, of the need to ‘regulate a wide-ranging organisational restructuring operation’ — adoption of the rule intended to regulate, six years after it had taken place, the transfer to the State of the ATAs employed by the local authorities?

| 6. | In any event, is it for the national courts to identify, where the national law is silent on the point, the ‘overriding reasons of public interest’ which — in the case of proceedings pending and in derogation from the principle of equality of arms — could justify the adoption of a retroactive rule capable of reversing the outcome of the proceedings, or must the national courts confine themselves to assessing the compatibility with Community law of the reasons expressly invoked by the legislature of the State as a basis for its choices? |
| --- | --- |

6.

In any event, is it for the national courts to identify, where the national law is silent on the point, the ‘overriding reasons of public interest’ which — in the case of proceedings pending and in derogation from the principle of equality of arms — could justify the adoption of a retroactive rule capable of reversing the outcome of the proceedings, or must the national courts confine themselves to assessing the compatibility with Community law of the reasons expressly invoked by the legislature of the State as a basis for its choices?

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| 13.9.2008 | EN | Official Journal of the European Union | C 236/9 |
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13.9.2008

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Official Journal of the European Union

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Reference for a preliminary ruling from the Cour de cassation (Luxembourg) lodged on 7 July 2008 — Irène Bogiatzi, married name Ventouras v Deutscher Luftpool, Luxair SA, European Communities, State of the Grand Duchy of Luxembourg, Foyer Assurances SA

(Case C-301/08)

(2008/C 236/14)

Language of the case: French

Referring court

Cour de cassation

Parties to the main proceedings

Applicant: Irène Bogiatzi, married name Ventouras

Defendants: Deutscher Luftpool, Luxair SA (a Luxembourg airline company), European Communities, State of the Grand Duchy of Luxembourg, Foyer Assurances SA

Questions referred

| 1. | Does the Convention for the Unification of Certain Rules Relating to International Carriage by Air, Signed at Warsaw on 12 October 1929, as amended at The Hague on 28 September 1955, to which Regulation (EC) No 2027/97 (1) refers, form part of the rules of the Community legal order which the Court of Justice has jurisdiction to interpret under Article 234 EC? |
| --- | --- |

1.

Does the Convention for the Unification of Certain Rules Relating to International Carriage by Air, Signed at Warsaw on 12 October 1929, as amended at The Hague on 28 September 1955, to which Regulation (EC) No 2027/97 (1) refers, form part of the rules of the Community legal order which the Court of Justice has jurisdiction to interpret under Article 234 EC?

| 2. | Must Council Regulation (EC) No 2027/97 of 9 October 1997 on air carrier liability in the event of accidents, in the version applicable at the time of the accident, namely 21 December 1998, be interpreted as meaning that, with regard to issues for which no express provision is made, the provisions of the Warsaw Convention, in this case Article 29, continue to apply to a flight between Member States of the Community? |
| --- | --- |

2.

Must Council Regulation (EC) No 2027/97 of 9 October 1997 on air carrier liability in the event of accidents, in the version applicable at the time of the accident, namely 21 December 1998, be interpreted as meaning that, with regard to issues for which no express provision is made, the provisions of the Warsaw Convention, in this case Article 29, continue to apply to a flight between Member States of the Community?

| 3. | If the answer to the first and second questions is in the affirmative, is Article 29 of the Warsaw Convention, in conjunction with Regulation (EC) No 2027/97, to be interpreted as meaning that the period of two years laid down in that article can be suspended or interrupted or that the carrier or its insurer can waive that time-limit, by an act deemed by the national court to constitute recognition of liability? |
| --- | --- |

3.

If the answer to the first and second questions is in the affirmative, is Article 29 of the Warsaw Convention, in conjunction with Regulation (EC) No 2027/97, to be interpreted as meaning that the period of two years laid down in that article can be suspended or interrupted or that the carrier or its insurer can waive that time-limit, by an act deemed by the national court to constitute recognition of liability?

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(1)  Council Regulation (EC) No 2027/97 of 9 October 1997 on air carrier liability in the event of accidents (OJ 1997 L 285, p. 1).

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| 13.9.2008 | EN | Official Journal of the European Union | C 236/10 |
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Official Journal of the European Union

C 236/10

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Reference for a preliminary ruling from the Giudice di Pace di Ischia (Italy) lodged on 15 July 2008 — Rosalba Alassini v Telecom Italia SpA

(Case C-317/08)

(2008/C 236/15)

Language of the case: Italian

Referring court

Giudice di Pace di Ischia

Parties to the main proceedings

Applicant: Rosalba Alassini

Defendant: Telecom Italia SpA

Question referred

Do the Community rules in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, Directive 2002/22/EC (1), Directive 1999/44/EC (2), Commission Recommendation 2001/310/EC (3) and Directive 1998/257/EC (4) have direct effect and must they be interpreted as meaning that disputes ‘in the area of electronic communications between end-users and operators concerning non-compliance with the rules on universal service and on the rights of end-users, as laid down in legislation, decisions of the Regulatory Authority, contractual terms and service charters’ (the disputes contemplated by Article 2 of Decision No 173/07/CONS of the Regulatory Authority) must not be made subject to a mandatory attempt at conciliation without which proceedings in that regard may not be brought before the courts, thus taking precedence over the rule laid down in Article 3(1) of Decision No 173/07/CONS?

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(1)  OJ L 108, p. 51.

(2)  OJ L 171, p. 12.

(3)  Commission Recommendation.

(4)  Commission Recommendation.

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| 13.9.2008 | EN | Official Journal of the European Union | C 236/10 |
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Reference for a preliminary ruling from the Giudice di Pace di Ischia (Italy) lodged on 15 July 2008 — Filomena Califano v Wind SpA

(Case C-318/08)

(2008/C 236/16)

Language of the case: Italian

Referring court

Giudice di Pace di Ischia

Parties to the main proceedings

Applicant: Filomena Califano

Defendant: Wind SpA

Question referred

Do the Community rules in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, Directive 2002/22/EC (1), Directive 1999/44/EC (2), Commission Recommendation 2001/310/EC (3) and Directive 1998/257/EC (4) have direct effect and must they be interpreted as meaning that disputes ‘in the area of electronic communications between end-users and operators concerning non-compliance with the rules on universal service and on the rights of end-users, as laid down in legislation, decisions of the Regulatory Authority, contractual terms and service charters’ (the disputes contemplated by Article 2 of Decision No 173/07/CONS of the Regulatory Authority) must not be made subject to a mandatory attempt at conciliation without which proceedings in that regard may not be brought before the courts, thus taking precedence over the rule laid down in Article 3(1) of Decision No 173/07/CONS?

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(1)  OJ L 108, p. 51.

(2)  OJ L 171, p. 12.

(3)  Commission Recommendation.

(4)  Commission Recommendation.

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| 13.9.2008 | EN | Official Journal of the European Union | C 236/11 |
| --- | --- | --- | --- |

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C 236/11

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Reference for a preliminary ruling from the Giudice di Pace di Ischia (Italy) lodged on 15 July 2008 — Lucia Anna Giorgia Iacono v Telecom Italia SpA

(Case C-319/08)

(2008/C 236/17)

Language of the case: Italian

Referring court

Giudice di Pace di Ischia

Parties to the main proceedings

Applicant: Lucia Anna Giorgia Iacono

Defendant: Telecom Italia SpA

Question referred

Do the Community rules in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, Directive 2002/22/EC (1), Directive 1999/44/EC (2), Commission Recommendation 2001/310/EC (3) and Directive 1998/257/EC (4) have direct effect and must they be interpreted as meaning that disputes ‘in the area of electronic communications between end-users and operators concerning non-compliance with the rules on universal service and on the rights of end-users, as laid down in legislation, decisions of the Regulatory Authority, contractual terms and service charters’ (the disputes contemplated by Article 2 of Decision No 173/07/CONS of the Regulatory Authority) must not be made subject to a mandatory attempt at conciliation without which proceedings in that regard may not be brought before the courts, thus taking precedence over the rule laid down in Article 3(1) of Decision No 173/07/CONS?

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(1)  OJ L 108, p. 51.

(2)  OJ L 171, p. 12.

(3)  Commission Recommendation.

(4)  Commission Recommendation.

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| 13.9.2008 | EN | Official Journal of the European Union | C 236/11 |
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Reference for a preliminary ruling from the Giudice di Pace di Ischia (Italy) lodged on 15 July 2008 — Multiservice Srl v Telecom Italia SpA

(Case C-320/08)

(2008/C 236/18)

Language of the case: Italian

Referring court

Giudice di Pace di Ischia

Parties to the main proceedings

Applicant: Multiservice Srl

Defendant: Telecom Italia SpA

Question referred

Do the Community rules in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, Directive 2002/22/EC (1), Directive 1999/44/EC (2), Commission Recommendation 2001/310/EC (3) and Directive 1998/257/EC (4) have direct effect and must they be interpreted as meaning that disputes ‘in the area of electronic communications between end-users and operators concerning non-compliance with the rules on universal service and on the rights of end-users, as laid down in legislation, decisions of the Regulatory Authority, contractual terms and service charters’ (the disputes contemplated by Article 2 of Decision No 173/07/CONS of the Regulatory Authority) must not be made subject to a mandatory attempt at conciliation without which proceedings in that regard may not be brought before the courts, thus taking precedence over the rule laid down in Article 3(1) of Decision No 173/07/CONS?

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(1)  OJ L 108, p. 51.

(2)  OJ L 171, p. 12.

(3)  Commission Recommendation.

(4)  Commission Recommendation.

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| 13.9.2008 | EN | Official Journal of the European Union | C 236/12 |
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C 236/12

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Reference for a preliminary ruling from the Tribunal Superior de Justicia, Madrid (Spain) lodged on 16 July 2008 — Ovidio Rodríguez Mayor, Pilar Pérez Boto, Pedro Gallego Morzillo, Alfonso Francisco Pérez, Juan Marcelino Gabaldón Morales, Marta María Maestro Campo and Bartolomé Valera Huete v the estate in abeyance of Rafael de las Heras Dávila, Sagrario de las Heras Dávila and Fondo de Garantía Salarial

(Case C-323/08)

(2008/C 236/19)

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia de Madrid

Parties to the main proceedings

Appellants: Ovidio Rodríguez Mayor, Pilar Pérez Boto, Pedro Gallego Morzillo, Alfonso Francisco Pérez, Juan Marcelino Gabaldón Morales, Marta María Maestro Campo and Bartolomé Valera Huete

Other parties: the estate in abeyance of Rafael de las Heras Dávila, Sagrario de las Heras Dávila and Fondo de Garantía Salarial

Questions referred

| 1. | By restricting the definition of collective redundancies to dismissals on economic, technical, organisational or production grounds and by failing to extend the definition to dismissals for any reason not related to the individual workers concerned, does Article 51 of the Spanish Workers' Statute fail to fulfil the obligations imposed in Council Directive 98/59/EC (1) of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies? |
| --- | --- |

1.

By restricting the definition of collective redundancies to dismissals on economic, technical, organisational or production grounds and by failing to extend the definition to dismissals for any reason not related to the individual workers concerned, does Article 51 of the Spanish Workers' Statute fail to fulfil the obligations imposed in Council Directive 98/59/EC (1) of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies?

| 2. | Is the legal rule in Article 49(1)(g) of the Workers' Statute, which establishes for workers who lose their jobs as a result of the death, retirement or incapacity of the employer compensation limited to one month's remuneration, excluding them from the scope of Article 51 of the Statute and failing to comply with Articles 1, 2, 3, 4 and 6 of the Directive, also contrary to Council Directive 98/59/EC? |
| --- | --- |

2.

Is the legal rule in Article 49(1)(g) of the Workers' Statute, which establishes for workers who lose their jobs as a result of the death, retirement or incapacity of the employer compensation limited to one month's remuneration, excluding them from the scope of Article 51 of the Statute and failing to comply with Articles 1, 2, 3, 4 and 6 of the Directive, also contrary to Council Directive 98/59/EC?

| 3. | Does the Spanish legislation on collective redundancies, and specifically Articles 49(1)(g) and 51 of the Workers' Statute, infringe Article 30 of the Charter of fundamental rights of the European Union and the Community Charter of the fundamental social rights of workers adopted at the European Council meeting held in Strasbourg on 9 December 1989? |
| --- | --- |

3.

Does the Spanish legislation on collective redundancies, and specifically Articles 49(1)(g) and 51 of the Workers' Statute, infringe Article 30 of the Charter of fundamental rights of the European Union and the Community Charter of the fundamental social rights of workers adopted at the European Council meeting held in Strasbourg on 9 December 1989?

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(1)  OJ 1998 L 225, p. 16.

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| 13.9.2008 | EN | Official Journal of the European Union | C 236/12 |
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Action brought on 17 July 2008 — Commission of the European Communities v Republic of Finland

(Case C-328/08)

(2008/C 236/20)

Language of the case: Finnish

Parties

Applicant: Commission of the European Communities (represented by: U. Wölker and I. Koskinen, acting as Agents)

Defendant: Republic of Finland

Form of order sought

| — | declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2004/35/CE (1) of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage and, in any event, by failing to communicate such measures to the Commission, the Republic of Finland has failed to fulfil its obligations under that directive; |
| --- | --- |

—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2004/35/CE (1) of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage and, in any event, by failing to communicate such measures to the Commission, the Republic of Finland has failed to fulfil its obligations under that directive;

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

—

order Republic of Finland to pay the costs.

Pleas in law and main arguments

The period prescribed for implementation of the directive expired on 30 April 2007.

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(1)  OJ 2004 L 143, p. 56.

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| 13.9.2008 | EN | Official Journal of the European Union | C 236/13 |
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Official Journal of the European Union

C 236/13

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Order of the President of the Third Chamber of the Court of 3 June 2008 — Commission of the European Communities v Italian Republic

(Case C-365/06) (1)

(2008/C 236/21)

Language of the case: Italian

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

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(1)  OJ C 281, 18.11.2006.

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| 13.9.2008 | EN | Official Journal of the European Union | C 236/13 |
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Order of the President of the Court of 6 June 2008 — Commission of the European Communities v Italian Republic

(Case C-31/08) (1)

(2008/C 236/22)

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 79, 29.3.2008.

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Court of First Instance

| 13.9.2008 | EN | Official Journal of the European Union | C 236/14 |
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Action brought on 15 July 2008 — Meyer-Falk v Commission

(Case T-251/06)

(2008/C 236/23)

Language of the case: German

Parties

Applicant: Thomas Meyer-Falk (Bruchsal, Germany) (represented by: S. Crosby, Solicitor)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul the contested decision; |
| --- | --- |

—

Annul the contested decision;

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

—

Order the Commission to pay the costs.

Pleas in law and main arguments

The applicant contests the Commission's decision of 6 November 2006, by which it refused the applicant access to two documents relating to the fight against organised crime and to judicial reform in Bulgaria. Prior to the commencement of the proceedings, the applicant made an application for the grant of legal aid, which was granted by the Court of First Instance by decision of 21 January 2008.

In support of its action the applicant claims, first, in essence, that the defendant has infringed the principle of sound administration, since the applicant's application for access to the documents was refused despite the fact that the documents were made accessible to the public with the exception of the applicant.

The applicant claims, second, that the application of Article 4(1)(a) and (b) and Article 4(3) of Regulation (EC) No 1049/2001 (1) is vitiated by a manifest error of assessment.

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(1)  Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).

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| 13.9.2008 | EN | Official Journal of the European Union | C 236/14 |
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Action brought on 14 July 2008 — X Technology Swiss v OHIM — Ipko-Amcor (First-On-Skin)

(Case T-273/08)

(2008/C 236/24)

Language in which the application was lodged: German

Parties

Applicant: X Technology Swiss GmbH (Wollerau, Switzerland) (represented by: A. Herbertz, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Ipko-Amcor BV (Zoetermeer, Netherlands)

Form of order sought

| — | Amend the decision delivered on 15 May 2008 by the Fourth Board of Appeal of OHIM in Case R 281/2007-4 in such a way that the opposition is rejected. |
| --- | --- |

—

Amend the decision delivered on 15 May 2008 by the Fourth Board of Appeal of OHIM in Case R 281/2007-4 in such a way that the opposition is rejected.

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant.

Community trade mark concerned: the word mark ‘First-On-Skin’ for goods in Classes 18, 23 and 25 (Application for Registration No 4 019 981).

Proprietor of the mark or sign cited in the opposition proceedings: Ipko-Amcor BV.

Mark or sign cited in opposition: the word mark ‘FIRST’ for goods in Class 25 (Benelux Registration No 401 666), the objection having been lodged against registration for goods in Class 25.

Decision of the Opposition Division: Rejection of the opposition.

Decision of the Board of Appeal: Annulment of the decision of the Opposition Division.

Pleas in law: There is no likelihood of confusion between the opposing marks.

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| 13.9.2008 | EN | Official Journal of the European Union | C 236/15 |
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C 236/15

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Action brought on 15 July 2008 — Al-Aqsa v Council

(Case T-276/08)

(2008/C 236/25)

Language of the case: Dutch

Parties

Applicant: Al-Aqsa (Heerlen, Netherlands) (represented by: J. Pauw and M. Uiterwaal, lawyers)

Defendant: Council of the European Union

Form of order sought

| — | declare that the Council is under an obligation to compensate the applicant for the damage which it has suffered, in the amount of EUR 10 600 000, plus interest to be calculated up to the date of judgment in the present case, or at least such compensation as the Court may determine; |
| --- | --- |

—

declare that the Council is under an obligation to compensate the applicant for the damage which it has suffered, in the amount of EUR 10 600 000, plus interest to be calculated up to the date of judgment in the present case, or at least such compensation as the Court may determine;

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

—

order the Council to pay the costs of these proceedings.

Pleas in law and main arguments

The applicant is seeking compensation in respect of the damage which it claims to have suffered by reason of the fact that Council Decision 2003/480/EC of 27 June 2003 (1) placed it on the list of persons to whom Regulation (EC) No 2580/2001 (2) is to apply. The applicant's inclusion on the list has subsequently been confirmed on the occasion of each update.

The applicant contends that these decisions are unlawful for a variety of reasons. The applicant first points out that Decision 2006/379/EC of 29 May 2006 (3) was annulled by the Court on the ground that it failed to meet the requirement of an adequate statement of reasons (4). The applicant contends further that the decisions are vitiated by a number of substantive defects, and refers in this connection to its pleas in law in Cases T-327/03 and T-348/07 Al-Aqsa v Council
   (5).

In issue here, according to the applicant, are sufficiently serious breaches of rights conferred on individuals as accordingly to justify the award of compensation. The damage suffered by the applicant involves both damage to its reputation and non-material damage, in respect of which the Council has been liable since 28 June 2003, that being the date on which the European measures entered into force.

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(1)  Council Decision 2003/480/EC of 27 June 2003 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decision 2002/974/EC (OJ 2003 L 160, p. 81).

(2)  Council Regulation (EC) No 2580/2001 of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism (OJ 2001 L 344, p. 70).

(3)  Council Decision 2006/379/EC of 29 May 2006 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decision 2005/930/EC (OJ 2006 L 144, p. 21).

(4)  Judgment of the Court of First Instance of 11 July 2007 in Case T-327/03 Al-Aqsa v Council.

(5)  OJ 2003 C 289, p. 30, and OJ 2007 C 269, p. 61, respectively.

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| 13.9.2008 | EN | Official Journal of the European Union | C 236/15 |
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Action brought on 15 July 2008 — Bayer Healthcare v OHIM — Laboratorios ERN (CITRACAL)

(Case T-277/08)

(2008/C 236/26)

Language in which the application was lodged: English

Parties

Applicant: Bayer Healthcare LLC (Morristown, United States) (represented by: M. Edenborough, barrister)

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

Other party to the proceedings before the Board of Appeal: Laboratorios ERN, SA (Sant Just Desvern, Spain)

Form of order sought

| — | Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 5 May 2008 in case R 459/2007-4; and |
| --- | --- |

—

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 5 May 2008 in case R 459/2007-4; and

| — | Order the defendant or alternatively the other party to the proceedings before the Board of Appeal to pay the costs. As a further alternative, to order the defendant and the other party to the proceedings before the Board of Appeal to be liable jointly and severally for the costs. |
| --- | --- |

—

Order the defendant or alternatively the other party to the proceedings before the Board of Appeal to pay the costs. As a further alternative, to order the defendant and the other party to the proceedings before the Board of Appeal to be liable jointly and severally for the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant (formerly Mission Pharmacal Company)

Community trade mark concerned: The word mark ‘CITRACAL’ for goods in class 5, application No 1 757 855

Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal (formerly Laboratorios Diviser-Aquilea, SL)

Mark or sign cited: Spanish trade mark registration No 223 532 of the mark ‘CICATRAL’ for goods in classes 1 and 5

Decision of the Opposition Division: Uphold the opposition with respect to all the contested goods

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: The Board of Appeal erred in its assessment of the evidence of proof-of-use, and in particular on the issue of the provision of a suitable translation of the goods in relation to which the mark cited in the opposition proceedings was used. Further, the Board of Appeal erred in its assessment of the existence of a likelihood of confusion between the conflicting trade marks.

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| 13.9.2008 | EN | Official Journal of the European Union | C 236/16 |
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Action brought on 21 July 2008 — People's Mojahedin of Iran v Council

(Case T-284/08)

(2008/C 236/27)

Language of the case: English

Parties

Applicant: People's Mojahedin Organization of Iran (Auvers sur Oise, France) (represented by: J.-P. Spitzer, lawyer and D. Vaughan, QC)

Defendant: Council of the European Union

Form of order sought

| — | To annul Decision 2008/583/EC of the Council insofar as it applies to the applicant; |
| --- | --- |

—

To annul Decision 2008/583/EC of the Council insofar as it applies to the applicant;

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

—

To order the defendant to pay the applicant's costs.

Pleas in law and main arguments

The applicant seeks, pursuant to Article 230 EC, partial annulment and in so far as it concerns the applicant, of Council Decision 2008/583/EC of 15 July 2008 (1) (‘the contested decision’) implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decision 2007/868/EC.

In support of its application, the applicant submits that the contested decision should be annulled because, in so far as it relates to the inclusion of the applicant on the list of terrorist organisations, there was no relevant decision at the time from a competent national authority sufficient to form any justification for the decision. In addition, the applicant claims that the decision should be annulled because while it was said to be based on ‘new information’ and on a decision from a competent authority other than that of the United Kingdom, the evidence on which the Council relied was not disclosed to the applicant before adopting the decision. Further, the applicant claims that no justification was given as to why such information was to be treated as new, or relevant.

The applicant puts forward that the contested decision was taken without any proper evaluation of the new information and on whether that constituted concrete and reliable evidence upon which the Council was entitled to act, in order to prove that the applicant was engaged in terrorism.

Furthermore, the applicant contends that the contested decision was adopted in violation of the applicant's right to be heard and its fundamental rights. The applicant submits, finally, that the contested decision was adopted in circumstances which amounted to an abuse or misuse of procedures and/or powers.

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(1)  OJ 2008 L 188, p. 21.

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| 13.9.2008 | EN | Official Journal of the European Union | C 236/16 |
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Action brought on 23 July 2008 — Inditex v OHIM

(Case T-292/08)

(2008/C 236/28)

Language in which the application was lodged: Spanish

Parties

Applicant: Industria de Diseño Textil, SA (Inditex) (Arteixo, Spain) (represented by: E. Armijo Chávarri and A. Castán Pérez-Gómez, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Roberto Fernando Marín Díaz de Cerio (Logroño, Spain)

Form of order sought

| — | Declare the action against the Decision of the Second Board of Appeal of OHIM of 24 April 2008 lodged in time and in the required form and, via the appropriate procedure, order the annulment of that decision in respect of all or part of the goods refused. |
| --- | --- |

—

Declare the action against the Decision of the Second Board of Appeal of OHIM of 24 April 2008 lodged in time and in the required form and, via the appropriate procedure, order the annulment of that decision in respect of all or part of the goods refused.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: Word mark ‘OFTEN’ (application No 2 798 270) for goods and services in Classes 3, 9, 14, 16, 18, 25 and 35.

Proprietor of the mark or sign cited in the opposition proceedings: Roberto Fernando Marín Díaz de Cerio.

Mark or sign cited in opposition: Spanish word and figurative marks ‘OLTEN’ and Spanish figurative mark ‘OLTENWATCH’ for goods in Class 14.

Decision of the Opposition Division: Upholding in part of the opposition.

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

Pleas in law: Principally, infringement of Articles 61(1) and 62(1) of Regulation (EC) No 40/94 on the Community trade mark and, as a subsidiary plea, infringement of Articles 43(2) and 8(1)(b) of that regulation.

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