# Official Journal C 243/2012

| | ISSN 1977-091X
  doi:10.3000/1977091X.C_2012.243.eng |
| --- | --- |
| Official Journal
  of the European Union | C 243 |
| | |
| English edition | Information and Notices | Volume 5511 August 2012 |

ISSN 1977-091X

doi:10.3000/1977091X.C_2012.243.eng

Official Journal

of the European Union

C 243

English edition

Information and Notices

Volume 5511 August 2012

---

| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | Court of Justice of the European Union |
| 2012/C 243/01 | Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 235, 4.8.2012 | 1 |

Notice No

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

2012/C 243/01

Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 235, 4.8.2012

Official Journal of the European Union

1

| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2012/C 243/02 | Case C-191/12: Reference for a preliminary ruling from the Kúria (Hungary) lodged on 23 April 2012 — Alakor Gabonatermelő és Forgalmazó Kft. v Nemzeti Adó- és Vámhivatal Észak-alföldi Regionális Adó Főigazgatósága | 2 |
| 2012/C 243/03 | Case C-202/12: Reference for a preliminary ruling from the Gerechtshof ’s Gravenhage (Netherlands) lodged on 30 April 2012 — Innoweb B.V. v Wegener ICT Media B.V., Wegener Mediaventions B.V. | 2 |
| 2012/C 243/04 | Case C-218/12: Reference for a preliminary ruling from the Landgericht Saarbrücken (Germany), lodged on 10 May 2012 — Lokman Emrek v Vlado Sabranovic | 3 |
| 2012/C 243/05 | Case C-219/12: Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 9 May 2012 — Finanzamt Freistadt Rohrbach Urfahr v Unabhängiger Fianzsenat Außenstelle Linz | 3 |
| 2012/C 243/06 | Case C-221/12: Reference for a preliminary ruling from the Raad van State (Belgium) lodged on 11 May 2012 — Belgacom NV v Interkommunale voor Teledistributie van het Gewest Antwerpen (INTEGAN) and Others | 4 |
| 2012/C 243/07 | Case C-225/12: Reference for a preliminary ruling from the Raad van State (Netherlands), lodged on 14 May 2012 — C. Demir; other party: Staatssecretaris van Justitie | 4 |
| 2012/C 243/08 | Case C-240/12: Reference for a preliminary ruling from the Rechtbank te Rotterdam (Netherlands) lodged on 18 May 2012 — Criminal proceedings against EBS Le relais Nord-Pas-De-Calais | 5 |
| 2012/C 243/09 | Case C-241/12: Reference for a preliminary ruling from the Rechtbank te Rotterdam (Netherlands) lodged on 18 May 2012 — Criminal proceedings against Shell Nederland Verkoopmaatschappij BV | 5 |
| 2012/C 243/10 | Case C-242/12: Reference for a preliminary ruling from the Rechtbank te Rotterdam (Netherlands) lodged on 18 May 2012 — Criminal proceedings against Belgian Shell NV | 6 |
| 2012/C 243/11 | Case C-249/12: Reference for a preliminary ruling from the Înalta Curte de Casație și Justiție (Romania), lodged on 22 May 2012 — Corina-Hrisi Tulică v Agenția Națională de Administrare Fiscală — Direcția Generală de Soluționare a Contestațiilor | 7 |
| 2012/C 243/12 | Case C-250/12: Reference for a preliminary ruling from the Înalta Curte de Casație și Justiție (Romania), lodged on 22 May 2012 — Călin Ion Plavoșin v Direcția Generală a Finanțelor Publice Timiș — Serviciul Soluționare Contestații, Activitatea de Inspecție Fiscală — Serviciul de Inspecție Fiscală Timiș | 7 |
| 2012/C 243/13 | Case C-259/12: Reference for a preliminary ruling from the Administrativen sad — Plovdiv (Bulgaria), lodged on 24 May 2012 — Teritorialna direktsia na Natsionalnata Agentsia za Prihodite — Plovdiv v RODOPI-М 91 OOD | 7 |
| 2012/C 243/14 | Case C-262/12: Reference for a preliminary ruling from the Conseil d’État (France) lodged on 29 May 2012 — Association Vent De Colère! Fédération nationale, Alain Bruguier, Jean-Pierre Le Gorgeu, Marie-Christine Piot, Eric Errec, Didier Wirth, Daniel Steinbach, Sabine Servan-Schreiber, Philippe Rusch, Pierre Recher, Jean-Louis Moret, Didier Jocteur Monrozier v Ministre de l’écologie, du développement durable, des transports et du logement, Ministre de l’Économie, des Finances et de l’Industrie | 8 |
| 2012/C 243/15 | Case C-271/12: Reference for a preliminary ruling from the Cour d’appel de Mons (Belgium) lodged on 1 June 2012 — Petroma Transports SA, Martens Energie SA, Martens Immo SA, Martens SA, Fabian Martens, Geoffroy Martens, Thibault Martens v État belge | 8 |
| 2012/C 243/16 | Case C-283/12: Reference for a preliminary ruling from the Administrativen sad — Varna (Bulgaria), lodged on 6 June 2012 — Serebryanniy vek EOOD v Direktor na Direktsia Obzhalvane i upravlenie na izpalnenieto — grad Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite | 9 |
| 2012/C 243/17 | Case C-290/12: Reference for a preliminary ruling from the Tribunale di Napoli (Italy) lodged on 11 June 2012 — Oreste Della Rocca v Poste Italiane SpA | 9 |
| 2012/C 243/18 | Case C-292/12: Reference for a preliminary ruling from the Tartu Ringkonnakohus (Estonia) lodged on 11 June 2012 — Ragn-Sells AS v Sillamäe Linnavalitsus | 10 |
| 2012/C 243/19 | Case C-295/12 P: Appeal brought on 13 June 2012 by Telefónica S.A. and Telefónica de España, S.A.U. against the judgment of the General Court (Eighth Chamber) delivered on 29 March 2012 in Case T-336/07 Telefónica and Telefónica de España v Commission | 10 |
| | General Court |
| 2012/C 243/20 | Case T-439/07: Judgment of the General Court of 27 June 2012 — Coats Holdings v Commission (Competition — Agreements, decisions and concerted practices — Markets for zip fasteners and other fasteners — Decision finding an infringement of Article 81 EC — Coordinated price increases, fixing of minimum prices, customer-sharing, market-sharing and exchange of other commercial information — Evidence — Single and continuous infringement — Limitation period — Rights of the defence — Fines — Guidelines) | 12 |
| 2012/C 243/21 | Case T-445/07: Judgment of the General Court of 27 June 2012 — Berning & Söhne v Commission (Competition — Agreements and concerted practices — Markets in zip fasteners and other fasteners and attaching machines — Decision finding an infringement of Article 81 EC — Coordinated price increases, fixing of minimum prices, sharing of customers and of markets and exchange of other business information — Proof — Rights of the defence — Single and continuing infringement — Time-bar — Fines — Duration and gravity of the infringement — Mitigating circumstances — Equal treatment — Proportionality) | 12 |
| 2012/C 243/22 | Case T-448/07: Judgment of the General Court of 27 June 2012 — YKK and Others v Commission (Competition — Agreements, decisions and concerted practices — Markets for zip fasteners and other fasteners, and for attaching machines — Decision finding an infringement of Article 81 EC — Coordinated price increases, fixing of minimum prices, customer-sharing, market-sharing and exchange of other commercial information — Single and continuous infringement — Evidence — Nature and implementation of the infringement — Real impact — Leniency Notice — Fines — Upper limit — Dissuasive effect of the fine — Equal treatment — Proportionality) | 13 |
| 2012/C 243/23 | Case T-86/08: Judgment of the General Court of 5 July 2012 — Greece v Commission (EAGGF — Guarantee Section — Expenditure excluded from financing — Fruit and vegetables — Rural development — Non-compliance with payment deadlines — Compliance with a judgment of the Court — Authority of res judicata — Time-limit of 24 months — Principle of proportionality) | 13 |
| 2012/C 243/24 | Case T-167/08: Judgment of the General Court of 27 June 2012 — Microsoft v Commission (Competition — Abuse of dominant position — Client PC operating systems — Work group server operating systems — Refusal of the dominant undertaking to supply and authorise the use of interoperability information — Fulfilment of obligations under a decision finding an infringement and imposing behavioural measures — Periodic penalty payment) | 13 |
| 2012/C 243/25 | Case T-133/09: Judgment of the General Court of 28 June 2012 — I Marchi Italiani and Basile v OHIM — Osra (B. Antonio Basile 1952) (Community trade mark — Invalidity proceedings — Community figurative mark B. Antonio Basile 1952 — Earlier national word mark BASILE — Relative ground for refusal — Limitation in consequence of acquiescence — Article 53(2) of Regulation (EC) No 40/94 (now Article 54(2) of Regulation (EC) No 207/2009) — Likelihood of confusion — Article 8(1) of Regulation No 40/94 (now Article 8(1) of Regulation No 207/2009) | 14 |
| 2012/C 243/26 | Case T-134/09: Judgment of the General Court of 28 June 2012 — Basile and I Marchi Italiani v OHIM (B. Antonio Basile 1952) (Community trade mark — Invalidity proceedings — Community figurative mark B. Antonio Basile 1952 — Earlier national word mark BASILE — Relative ground for refusal — Limitation in consequence of acquiescence — Article 53(2) of Regulation (EC) No 40/94 (now Article 54(2) of Regulation (EC) No 207/2009) — Likelihood of confusion — Article 8(1) of Regulation No 40/94 (now Article 8(1) of Regulation No 207/2009) | 15 |
| 2012/C 243/27 | Case T-212/09: Judgment of the General Court of 3 July 2012 — Denmark v Commission (EAGGF — Guarantee Section — Expenditure excluded from financing — Arable crops — Setting aside of land) | 15 |
| 2012/C 243/28 | Case T-360/09: Judgment of the General Court of 29 June 2012 — E.ON Ruhrgas and E.ON v Commission (Competition — Agreements, decisions and concerted practices — German and French markets for natural gas — Decision finding an infringement of Article 81 EC — Market sharing — Duration of the infringement — Fines) | 15 |
| 2012/C 243/29 | Case T-370/09: Judgment of the General Court of 29 June 2012 — GDF Suez v Commission (Competition — Agreements, decisions and concerted practices — German and French markets for natural gas — Decision finding an infringement of Article 81 EC — Market sharing — Duration of the infringement — Fines) | 16 |
| 2012/C 243/30 | Case T-466/09: Judgment of the General Court of 5 July 2012 — Comercial Losan v OHIM — McDonald’s International Property (Mc. Baby) (Community trade mark — Opposition proceedings — Application for the Community figurative mark Mc. Baby — Earlier Community figurative mark Mc Kids. always quality. always fun! — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009) | 16 |
| 2012/C 243/31 | Case T-209/10: Judgment of the General Court of 5 July 2012 — Deutscher Ring v OHIM (Deutscher Ring Sachversicherungs-AG) (Community trade mark — Application for Community word mark Deutscher Ring Sachversicherungs-AG — Absolute grounds for refusal — Descriptive character — Distinctive character — Article 7(1)(b) and (c) of Regulation (EC) No 207/2009) | 17 |
| 2012/C 243/32 | Case T-314/10: Order of the General Court of 28 June 2012 — Constellation Brands v OHIM (COOK’S) (Community trade mark — Word mark COOK’S — Failure to apply for renewal of the mark — Cancellation of the mark upon expiry of the registration — Application for restitutio in integrum — Article 81 of Regulation (EC) No 207/2009) | 17 |
| 2012/C 243/33 | Case T-523/10: Judgment of the General Court of 27 June 2012 — Interkobo v OHIM — XXXLutz Marken (my baby) (Community trade mark — Opposition proceedings — Application for Community figurative mark my baby — Earlier national and international word marks MYBABY and earlier national figurative mark mybaby — Relative ground for refusal — Failure to produce evidence in the language of the opposition proceedings — Legitimate expectation — Rules 19(3), 20(1) and 98(1) of Regulation (EC) No 2868/95) | 17 |
| 2012/C 243/34 | Case T-594/10 P: Judgment of the General Court of 3 July 2012 — Marcuccio v Commission (Appeal — Civil service — Officials — Social security — Reimbursement of medical expenses — Acts adversely affecting the applicant — Implied refusal) | 18 |
| 2012/C 243/35 | Case T-12/12: Judgment of the General Court of (Fifth Chamber) of 4 July 2012 — Laboratoires CTRS v Commission (Medicinal products for human use — Marketing authorisation for the medicinal product Orphacol — Letter informing the applicant of the Commission’s intention to refuse authorisation — Application for a declaration of failure to act — Definition of position by the Commission — Inadmissibility — Application for annulment — Adoption of a new decision — No need to adjudicate) | 18 |
| 2012/C 243/36 | Case T-216/12: Action brought on 18 May 2012 — Technion and Technion Research & Development Foundation v Commission | 19 |
| 2012/C 243/37 | Case T-224/12: Action brought on 23 May 2012 — Accorinti and Others v ECB | 19 |
| 2012/C 243/38 | Case T-230/12: Action brought on 23 May 2012 — Axa Belgium v Commission | 21 |
| 2012/C 243/39 | Case T-232/12: Action brought on 29 may 2012 — Wilmar Trading v OHIM — Agroekola EOOD (ULTRA CHOCO) | 21 |
| 2012/C 243/40 | Case T-234/12: Action brought on 1 June 2012 — Amitié v Commission | 22 |
| 2012/C 243/41 | Case T-235/12: Action brought on 29 May 2012 — CEDC International v OHIM — Underberg (Shape of a blade of grass in a bottle) | 23 |
| 2012/C 243/42 | Case T-236/12: Action brought on 29 May 2012 — Airbus v OHIM (NEO) | 24 |
| 2012/C 243/43 | Case T-245/12: Action brought on 4 June 2012 — Gamesa Eólica v OHIM — Enercon (horizontal combination of green colours) | 24 |
| 2012/C 243/44 | Case T-246/12: Action brought on 4 June 2012 — Cat Media Pty v OHIM — Avon Products (RETANEW) | 25 |
| 2012/C 243/45 | Case T-247/12: Action brought on 6 June 2012 — Argo Group International v OHIM — Arisa Assurances (ARIS) | 25 |
| 2012/C 243/46 | Case T-250/12: Action brought on 5 June 2012 — Uralita v Commission | 26 |
| 2012/C 243/47 | Case T-261/12: Action brought on 13 June 2012 — Diadikasia Symvouloi Epicheiriseon v Commission | 26 |
| 2012/C 243/48 | Case T-262/12: Action brought on 12 June 2012 — Central Bank of Iran v Council | 27 |
| 2012/C 243/49 | Case T-265/12: Action brought on 12 June 2012 — Schenker v Commission | 27 |
| 2012/C 243/50 | Case T-267/12: Action brought on 12 June 2012 — Deutsche Bahn and Others v Commission | 28 |
| 2012/C 243/51 | Case T-268/12: Action brought on 18 June 2012 — Suwaid v Conseil | 29 |
| 2012/C 243/52 | Case T-269/12: Action brought on 18 June 2012 — Makro autoservicio mayorista v Commission | 30 |
| 2012/C 243/53 | Case T-270/12: Action brought on 12 June 2012 — Panalpina Welttransport and Others v Commission | 30 |
| 2012/C 243/54 | Case T-273/12: Action brought on 15 June 2012 — Unister v OHIM (Ab in den Urlaub) | 31 |
| 2012/C 243/55 | Case T-274/12: Action brought on 15 June 2012 — Alfastar Benelux v Council | 31 |
| 2012/C 243/56 | Case T-279/12: Action brought on 25 June 2012 — S.I.C.O.M v Commission | 32 |
| 2012/C 243/57 | Case T-283/12: Action brought on 22 June 2012 — FIS’D v Commission | 32 |
| | European Union Civil Service Tribunal |
| 2012/C 243/58 | Case F-56/12: Action brought on 22 May 2012 — ZZ v Commission | 34 |
| 2012/C 243/59 | Case F-60/12: Action brought on 08 June 2012 — ZZ v Commission | 34 |
| 2012/C 243/60 | Case F-65/12: Action brought on 25 June 2012 — ZZ v Commission | 34 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2012/C 243/02

Case C-191/12: Reference for a preliminary ruling from the Kúria (Hungary) lodged on 23 April 2012 — Alakor Gabonatermelő és Forgalmazó Kft. v Nemzeti Adó- és Vámhivatal Észak-alföldi Regionális Adó Főigazgatósága

2

2012/C 243/03

Case C-202/12: Reference for a preliminary ruling from the Gerechtshof ’s Gravenhage (Netherlands) lodged on 30 April 2012 — Innoweb B.V. v Wegener ICT Media B.V., Wegener Mediaventions B.V.

2

2012/C 243/04

Case C-218/12: Reference for a preliminary ruling from the Landgericht Saarbrücken (Germany), lodged on 10 May 2012 — Lokman Emrek v Vlado Sabranovic

3

2012/C 243/05

Case C-219/12: Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 9 May 2012 — Finanzamt Freistadt Rohrbach Urfahr v Unabhängiger Fianzsenat Außenstelle Linz

3

2012/C 243/06

Case C-221/12: Reference for a preliminary ruling from the Raad van State (Belgium) lodged on 11 May 2012 — Belgacom NV v Interkommunale voor Teledistributie van het Gewest Antwerpen (INTEGAN) and Others

4

2012/C 243/07

Case C-225/12: Reference for a preliminary ruling from the Raad van State (Netherlands), lodged on 14 May 2012 — C. Demir; other party: Staatssecretaris van Justitie

4

2012/C 243/08

Case C-240/12: Reference for a preliminary ruling from the Rechtbank te Rotterdam (Netherlands) lodged on 18 May 2012 — Criminal proceedings against EBS Le relais Nord-Pas-De-Calais

5

2012/C 243/09

Case C-241/12: Reference for a preliminary ruling from the Rechtbank te Rotterdam (Netherlands) lodged on 18 May 2012 — Criminal proceedings against Shell Nederland Verkoopmaatschappij BV

5

2012/C 243/10

Case C-242/12: Reference for a preliminary ruling from the Rechtbank te Rotterdam (Netherlands) lodged on 18 May 2012 — Criminal proceedings against Belgian Shell NV

6

2012/C 243/11

Case C-249/12: Reference for a preliminary ruling from the Înalta Curte de Casație și Justiție (Romania), lodged on 22 May 2012 — Corina-Hrisi Tulică v Agenția Națională de Administrare Fiscală — Direcția Generală de Soluționare a Contestațiilor

7

2012/C 243/12

Case C-250/12: Reference for a preliminary ruling from the Înalta Curte de Casație și Justiție (Romania), lodged on 22 May 2012 — Călin Ion Plavoșin v Direcția Generală a Finanțelor Publice Timiș — Serviciul Soluționare Contestații, Activitatea de Inspecție Fiscală — Serviciul de Inspecție Fiscală Timiș

7

2012/C 243/13

Case C-259/12: Reference for a preliminary ruling from the Administrativen sad — Plovdiv (Bulgaria), lodged on 24 May 2012 — Teritorialna direktsia na Natsionalnata Agentsia za Prihodite — Plovdiv v RODOPI-М 91 OOD

7

2012/C 243/14

Case C-262/12: Reference for a preliminary ruling from the Conseil d’État (France) lodged on 29 May 2012 — Association Vent De Colère! Fédération nationale, Alain Bruguier, Jean-Pierre Le Gorgeu, Marie-Christine Piot, Eric Errec, Didier Wirth, Daniel Steinbach, Sabine Servan-Schreiber, Philippe Rusch, Pierre Recher, Jean-Louis Moret, Didier Jocteur Monrozier v Ministre de l’écologie, du développement durable, des transports et du logement, Ministre de l’Économie, des Finances et de l’Industrie

8

2012/C 243/15

Case C-271/12: Reference for a preliminary ruling from the Cour d’appel de Mons (Belgium) lodged on 1 June 2012 — Petroma Transports SA, Martens Energie SA, Martens Immo SA, Martens SA, Fabian Martens, Geoffroy Martens, Thibault Martens v État belge

8

2012/C 243/16

Case C-283/12: Reference for a preliminary ruling from the Administrativen sad — Varna (Bulgaria), lodged on 6 June 2012 — Serebryanniy vek EOOD v Direktor na Direktsia Obzhalvane i upravlenie na izpalnenieto — grad Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite

9

2012/C 243/17

Case C-290/12: Reference for a preliminary ruling from the Tribunale di Napoli (Italy) lodged on 11 June 2012 — Oreste Della Rocca v Poste Italiane SpA

9

2012/C 243/18

Case C-292/12: Reference for a preliminary ruling from the Tartu Ringkonnakohus (Estonia) lodged on 11 June 2012 — Ragn-Sells AS v Sillamäe Linnavalitsus

10

2012/C 243/19

Case C-295/12 P: Appeal brought on 13 June 2012 by Telefónica S.A. and Telefónica de España, S.A.U. against the judgment of the General Court (Eighth Chamber) delivered on 29 March 2012 in Case T-336/07 Telefónica and Telefónica de España v Commission

10

General Court

2012/C 243/20

Case T-439/07: Judgment of the General Court of 27 June 2012 — Coats Holdings v Commission (Competition — Agreements, decisions and concerted practices — Markets for zip fasteners and other fasteners — Decision finding an infringement of Article 81 EC — Coordinated price increases, fixing of minimum prices, customer-sharing, market-sharing and exchange of other commercial information — Evidence — Single and continuous infringement — Limitation period — Rights of the defence — Fines — Guidelines)

12

2012/C 243/21

Case T-445/07: Judgment of the General Court of 27 June 2012 — Berning & Söhne v Commission (Competition — Agreements and concerted practices — Markets in zip fasteners and other fasteners and attaching machines — Decision finding an infringement of Article 81 EC — Coordinated price increases, fixing of minimum prices, sharing of customers and of markets and exchange of other business information — Proof — Rights of the defence — Single and continuing infringement — Time-bar — Fines — Duration and gravity of the infringement — Mitigating circumstances — Equal treatment — Proportionality)

12

2012/C 243/22

Case T-448/07: Judgment of the General Court of 27 June 2012 — YKK and Others v Commission (Competition — Agreements, decisions and concerted practices — Markets for zip fasteners and other fasteners, and for attaching machines — Decision finding an infringement of Article 81 EC — Coordinated price increases, fixing of minimum prices, customer-sharing, market-sharing and exchange of other commercial information — Single and continuous infringement — Evidence — Nature and implementation of the infringement — Real impact — Leniency Notice — Fines — Upper limit — Dissuasive effect of the fine — Equal treatment — Proportionality)

13

2012/C 243/23

Case T-86/08: Judgment of the General Court of 5 July 2012 — Greece v Commission (EAGGF — Guarantee Section — Expenditure excluded from financing — Fruit and vegetables — Rural development — Non-compliance with payment deadlines — Compliance with a judgment of the Court — Authority of res judicata — Time-limit of 24 months — Principle of proportionality)

13

2012/C 243/24

Case T-167/08: Judgment of the General Court of 27 June 2012 — Microsoft v Commission (Competition — Abuse of dominant position — Client PC operating systems — Work group server operating systems — Refusal of the dominant undertaking to supply and authorise the use of interoperability information — Fulfilment of obligations under a decision finding an infringement and imposing behavioural measures — Periodic penalty payment)

13

2012/C 243/25

Case T-133/09: Judgment of the General Court of 28 June 2012 — I Marchi Italiani and Basile v OHIM — Osra (B. Antonio Basile 1952) (Community trade mark — Invalidity proceedings — Community figurative mark B. Antonio Basile 1952 — Earlier national word mark BASILE — Relative ground for refusal — Limitation in consequence of acquiescence — Article 53(2) of Regulation (EC) No 40/94 (now Article 54(2) of Regulation (EC) No 207/2009) — Likelihood of confusion — Article 8(1) of Regulation No 40/94 (now Article 8(1) of Regulation No 207/2009)

14

2012/C 243/26

Case T-134/09: Judgment of the General Court of 28 June 2012 — Basile and I Marchi Italiani v OHIM (B. Antonio Basile 1952) (Community trade mark — Invalidity proceedings — Community figurative mark B. Antonio Basile 1952 — Earlier national word mark BASILE — Relative ground for refusal — Limitation in consequence of acquiescence — Article 53(2) of Regulation (EC) No 40/94 (now Article 54(2) of Regulation (EC) No 207/2009) — Likelihood of confusion — Article 8(1) of Regulation No 40/94 (now Article 8(1) of Regulation No 207/2009)

15

2012/C 243/27

Case T-212/09: Judgment of the General Court of 3 July 2012 — Denmark v Commission (EAGGF — Guarantee Section — Expenditure excluded from financing — Arable crops — Setting aside of land)

15

2012/C 243/28

Case T-360/09: Judgment of the General Court of 29 June 2012 — E.ON Ruhrgas and E.ON v Commission (Competition — Agreements, decisions and concerted practices — German and French markets for natural gas — Decision finding an infringement of Article 81 EC — Market sharing — Duration of the infringement — Fines)

15

2012/C 243/29

Case T-370/09: Judgment of the General Court of 29 June 2012 — GDF Suez v Commission (Competition — Agreements, decisions and concerted practices — German and French markets for natural gas — Decision finding an infringement of Article 81 EC — Market sharing — Duration of the infringement — Fines)

16

2012/C 243/30

Case T-466/09: Judgment of the General Court of 5 July 2012 — Comercial Losan v OHIM — McDonald’s International Property (Mc. Baby) (Community trade mark — Opposition proceedings — Application for the Community figurative mark Mc. Baby — Earlier Community figurative mark Mc Kids. always quality. always fun! — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

16

2012/C 243/31

Case T-209/10: Judgment of the General Court of 5 July 2012 — Deutscher Ring v OHIM (Deutscher Ring Sachversicherungs-AG) (Community trade mark — Application for Community word mark Deutscher Ring Sachversicherungs-AG — Absolute grounds for refusal — Descriptive character — Distinctive character — Article 7(1)(b) and (c) of Regulation (EC) No 207/2009)

17

2012/C 243/32

Case T-314/10: Order of the General Court of 28 June 2012 — Constellation Brands v OHIM (COOK’S) (Community trade mark — Word mark COOK’S — Failure to apply for renewal of the mark — Cancellation of the mark upon expiry of the registration — Application for restitutio in integrum — Article 81 of Regulation (EC) No 207/2009)

17

2012/C 243/33

Case T-523/10: Judgment of the General Court of 27 June 2012 — Interkobo v OHIM — XXXLutz Marken (my baby) (Community trade mark — Opposition proceedings — Application for Community figurative mark my baby — Earlier national and international word marks MYBABY and earlier national figurative mark mybaby — Relative ground for refusal — Failure to produce evidence in the language of the opposition proceedings — Legitimate expectation — Rules 19(3), 20(1) and 98(1) of Regulation (EC) No 2868/95)

17

2012/C 243/34

Case T-594/10 P: Judgment of the General Court of 3 July 2012 — Marcuccio v Commission (Appeal — Civil service — Officials — Social security — Reimbursement of medical expenses — Acts adversely affecting the applicant — Implied refusal)

18

2012/C 243/35

Case T-12/12: Judgment of the General Court of (Fifth Chamber) of 4 July 2012 — Laboratoires CTRS v Commission (Medicinal products for human use — Marketing authorisation for the medicinal product Orphacol — Letter informing the applicant of the Commission’s intention to refuse authorisation — Application for a declaration of failure to act — Definition of position by the Commission — Inadmissibility — Application for annulment — Adoption of a new decision — No need to adjudicate)

18

2012/C 243/36

Case T-216/12: Action brought on 18 May 2012 — Technion and Technion Research & Development Foundation v Commission

19

2012/C 243/37

Case T-224/12: Action brought on 23 May 2012 — Accorinti and Others v ECB

19

2012/C 243/38

Case T-230/12: Action brought on 23 May 2012 — Axa Belgium v Commission

21

2012/C 243/39

Case T-232/12: Action brought on 29 may 2012 — Wilmar Trading v OHIM — Agroekola EOOD (ULTRA CHOCO)

21

2012/C 243/40

Case T-234/12: Action brought on 1 June 2012 — Amitié v Commission

22

2012/C 243/41

Case T-235/12: Action brought on 29 May 2012 — CEDC International v OHIM — Underberg (Shape of a blade of grass in a bottle)

23

2012/C 243/42

Case T-236/12: Action brought on 29 May 2012 — Airbus v OHIM (NEO)

24

2012/C 243/43

Case T-245/12: Action brought on 4 June 2012 — Gamesa Eólica v OHIM — Enercon (horizontal combination of green colours)

24

2012/C 243/44

Case T-246/12: Action brought on 4 June 2012 — Cat Media Pty v OHIM — Avon Products (RETANEW)

25

2012/C 243/45

Case T-247/12: Action brought on 6 June 2012 — Argo Group International v OHIM — Arisa Assurances (ARIS)

25

2012/C 243/46

Case T-250/12: Action brought on 5 June 2012 — Uralita v Commission

26

2012/C 243/47

Case T-261/12: Action brought on 13 June 2012 — Diadikasia Symvouloi Epicheiriseon v Commission

26

2012/C 243/48

Case T-262/12: Action brought on 12 June 2012 — Central Bank of Iran v Council

27

2012/C 243/49

Case T-265/12: Action brought on 12 June 2012 — Schenker v Commission

27

2012/C 243/50

Case T-267/12: Action brought on 12 June 2012 — Deutsche Bahn and Others v Commission

28

2012/C 243/51

Case T-268/12: Action brought on 18 June 2012 — Suwaid v Conseil

29

2012/C 243/52

Case T-269/12: Action brought on 18 June 2012 — Makro autoservicio mayorista v Commission

30

2012/C 243/53

Case T-270/12: Action brought on 12 June 2012 — Panalpina Welttransport and Others v Commission

30

2012/C 243/54

Case T-273/12: Action brought on 15 June 2012 — Unister v OHIM (Ab in den Urlaub)

31

2012/C 243/55

Case T-274/12: Action brought on 15 June 2012 — Alfastar Benelux v Council

31

2012/C 243/56

Case T-279/12: Action brought on 25 June 2012 — S.I.C.O.M v Commission

32

2012/C 243/57

Case T-283/12: Action brought on 22 June 2012 — FIS’D v Commission

32

European Union Civil Service Tribunal

2012/C 243/58

Case F-56/12: Action brought on 22 May 2012 — ZZ v Commission

34

2012/C 243/59

Case F-60/12: Action brought on 08 June 2012 — ZZ v Commission

34

2012/C 243/60

Case F-65/12: Action brought on 25 June 2012 — ZZ v Commission

34

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

EN

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

| 11.8.2012 | EN | Official Journal of the European Union | C 243/1 |
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11.8.2012

EN

Official Journal of the European Union

C 243/1

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2012/C 243/01

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

OJ C 235, 4.8.2012

Past publications

OJ C 227, 28.7.2012

OJ C 217, 21.7.2012

OJ C 209, 14.7.2012

OJ C 200, 7.7.2012

OJ C 194, 30.6.2012

OJ C 184, 23.6.2012

These texts are available on:

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

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V Announcements

COURT PROCEEDINGS

Court of Justice

| 11.8.2012 | EN | Official Journal of the European Union | C 243/2 |
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11.8.2012

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Official Journal of the European Union

C 243/2

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Reference for a preliminary ruling from the Kúria (Hungary) lodged on 23 April 2012 — Alakor Gabonatermelő és Forgalmazó Kft. v Nemzeti Adó- és Vámhivatal Észak-alföldi Regionális Adó Főigazgatósága

(Case C-191/12)

2012/C 243/02

Language of the case: Hungarian

Referring court

Kúria

Parties to the main proceedings

Applicant: Alakor Gabonatermelő és Forgalmazó Kft.

Defendant: Nemzeti Adó- és Vámhivatal Észak-alföldi Regionális Adó Főigazgatósága

Questions referred

| 1. | Can the fact that a taxpayer — where there is a prohibition on deduction — has obtained aid in such a manner that this also funds VAT or has obtained additional State aid as compensation for non-deductible VAT be categorised as the passing on of tax according to Community law? |
| --- | --- |

1.

Can the fact that a taxpayer — where there is a prohibition on deduction — has obtained aid in such a manner that this also funds VAT or has obtained additional State aid as compensation for non-deductible VAT be categorised as the passing on of tax according to Community law?

| 2. | If the answer is in the affirmative, would the answer be the same if the taxpayer did not receive the aid from a Member State or from the tax authority of a Member State, but instead the aid was paid — pursuant to the contract concluded with the person granting the aid — from European Union aid and the Member State’s central budget? |
| --- | --- |

2.

If the answer is in the affirmative, would the answer be the same if the taxpayer did not receive the aid from a Member State or from the tax authority of a Member State, but instead the aid was paid — pursuant to the contract concluded with the person granting the aid — from European Union aid and the Member State’s central budget?

| 3. | Can the principles of repayment based on fiscal neutrality and of effectiveness, equivalence and equal treatment be regarded as satisfied, and the prohibition on unjust enrichment complied with, where — owing to legislation on the right to deduct that is contrary to European Union law — the tax authority of a Member State only upholds the taxpayer’s claim for repayment or damages in relation to that part or proportion not previously funded through the aid referred to in the first two questions? |
| --- | --- |

3.

Can the principles of repayment based on fiscal neutrality and of effectiveness, equivalence and equal treatment be regarded as satisfied, and the prohibition on unjust enrichment complied with, where — owing to legislation on the right to deduct that is contrary to European Union law — the tax authority of a Member State only upholds the taxpayer’s claim for repayment or damages in relation to that part or proportion not previously funded through the aid referred to in the first two questions?

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| 11.8.2012 | EN | Official Journal of the European Union | C 243/2 |
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11.8.2012

EN

Official Journal of the European Union

C 243/2

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Reference for a preliminary ruling from the Gerechtshof ’s Gravenhage (Netherlands) lodged on 30 April 2012 — Innoweb B.V. v Wegener ICT Media B.V., Wegener Mediaventions B.V.

(Case C-202/12)

2012/C 243/03

Language of the case: Dutch

Referring court

Gerechtshof ’s Gravenhage (Netherlands)

Parties to the main proceedings

Applicant: Innoweb B.V.

Defendant:

| | Wegener ICT Media B.V., |
| --- | --- |

Wegener ICT Media B.V.,

| | Wegener Mediaventions B.V. |
| --- | --- |

Wegener Mediaventions B.V.

Questions referred

| 1. | Is Article 7(1) of the Directive (1) to be interpreted as meaning that the whole or a qualitatively or quantitatively substantial part of the contents of a database offered on a website (on line) is re-utilised (made available) by a third party if that third party makes it possible for the public to search the whole contents of the database or a substantial part thereof in real time with the aid of a dedicated meta search engine provided by that third party, by means of a query entered by a user in “translated” form into the search engine of the website on which the database is offered? |
| --- | --- |

1.

Is Article 7(1) of the Directive (1) to be interpreted as meaning that the whole or a qualitatively or quantitatively substantial part of the contents of a database offered on a website (on line) is re-utilised (made available) by a third party if that third party makes it possible for the public to search the whole contents of the database or a substantial part thereof in real time with the aid of a dedicated meta search engine provided by that third party, by means of a query entered by a user in “translated” form into the search engine of the website on which the database is offered?

| 2. | If not, is the situation different if, after receiving the results of the query, the third party sends to or displays for each user a very small part of the contents of the database in the format of his own website? |
| --- | --- |

2.

If not, is the situation different if, after receiving the results of the query, the third party sends to or displays for each user a very small part of the contents of the database in the format of his own website?

| 3. | Is it relevant to the answers to Questions 1 and 2 that the third party undertakes those activities continuously and, with the aid of its search engine, carries out daily a total of 100 000 queries received from users in “translated” form and makes available the results thereof to various users in a manner such as that described above? |
| --- | --- |

3.

Is it relevant to the answers to Questions 1 and 2 that the third party undertakes those activities continuously and, with the aid of its search engine, carries out daily a total of 100 000 queries received from users in “translated” form and makes available the results thereof to various users in a manner such as that described above?

| 4. | Is Article 7(5) of the Directive to be interpreted as meaning that the repeated and systematic re-utilisation of insubstantial parts of the contents of the database which conflicts with normal exploitation or unreasonably prejudices the legitimate interests of the maker of the database is not permissible, or is it sufficient for there to be repeated or systematic re-utilisation? |
| --- | --- |

4.

Is Article 7(5) of the Directive to be interpreted as meaning that the repeated and systematic re-utilisation of insubstantial parts of the contents of the database which conflicts with normal exploitation or unreasonably prejudices the legitimate interests of the maker of the database is not permissible, or is it sufficient for there to be repeated or systematic re-utilisation?

| 5. | If repeated and systematic re-utilisation is a requirement,






  (a) | what does ‘systematic’ mean? |
| --- | --- | --- |

5.

If repeated and systematic re-utilisation is a requirement,

(a)

what does ‘systematic’ mean?

| (b) | Is re-utilisation systematic when an automated system is used? |
| --- | --- |

(b)

Is re-utilisation systematic when an automated system is used?

| (c) | Is it relevant that a dedicated meta search engine is used in the manner described above? |
| --- | --- |

(c)

Is it relevant that a dedicated meta search engine is used in the manner described above?

| 6. | Is Article 7(5) of the Directive to be interpreted as meaning that the prohibition for which it provides does not apply if a third party repeatedly makes available to individual users of a meta search engine belonging to that third party only insubstantial parts of the contents of the database in response to each query? |
| --- | --- |

6.

Is Article 7(5) of the Directive to be interpreted as meaning that the prohibition for which it provides does not apply if a third party repeatedly makes available to individual users of a meta search engine belonging to that third party only insubstantial parts of the contents of the database in response to each query?

| 7. | If so, does that also apply if the cumulative effect of the repeated re-utilisation of those insubstantial parts is that a substantial part of the contents of the database is made available to the individual users together? |
| --- | --- |

7.

If so, does that also apply if the cumulative effect of the repeated re-utilisation of those insubstantial parts is that a substantial part of the contents of the database is made available to the individual users together?

| 8. | Is Article 7(5) of the Directive to be interpreted as meaning that, if conduct which has not been approved and which is such that, as a result of the cumulative effect of re-utilisation, the whole or a substantial part of the contents of a protected database is made available to the public, the requirements of that provision are satisfied, or must it also be claimed and proved that those acts conflict with the normal exploitation of the database or unreasonably prejudice the legitimate interests of the maker of the database? |
| --- | --- |

8.

Is Article 7(5) of the Directive to be interpreted as meaning that, if conduct which has not been approved and which is such that, as a result of the cumulative effect of re-utilisation, the whole or a substantial part of the contents of a protected database is made available to the public, the requirements of that provision are satisfied, or must it also be claimed and proved that those acts conflict with the normal exploitation of the database or unreasonably prejudice the legitimate interests of the maker of the database?

| 9. | Is it assumed that the investment of the maker of the database is seriously prejudiced in the event of the aforementioned conduct? |
| --- | --- |

9.

Is it assumed that the investment of the maker of the database is seriously prejudiced in the event of the aforementioned conduct?

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(1)  Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases, OJ 1996 L 77, p. 20.

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| 11.8.2012 | EN | Official Journal of the European Union | C 243/3 |
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11.8.2012

EN

Official Journal of the European Union

C 243/3

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Reference for a preliminary ruling from the Landgericht Saarbrücken (Germany), lodged on 10 May 2012 — Lokman Emrek v Vlado Sabranovic

(Case C-218/12)

2012/C 243/04

Language of the case: German

Referring court

Landgericht Saarbrücken

Parties to the main proceedings

Appellant: Lokman Emrek

Respondent: Vlado Sabranovic

Questions referred

| 1. | In cases in which a trader’s internet presence satisfies the ‘directing’ requirement, does Article 15(1)(c) of Regulation (EC) No 44/2001 (1) require, as a further unwritten condition, that the consumer was induced to enter into the contract by the website operated by the trader and consequently that the internet presence must be a causal factor in regard to the conclusion of the contract? |
| --- | --- |

1.

In cases in which a trader’s internet presence satisfies the ‘directing’ requirement, does Article 15(1)(c) of Regulation (EC) No 44/2001 (1) require, as a further unwritten condition, that the consumer was induced to enter into the contract by the website operated by the trader and consequently that the internet presence must be a causal factor in regard to the conclusion of the contract?

| 2. | In so far as a causal link between the ‘directing’ requirement and the conclusion of the contract is necessary: does Article 15(1)(c) of Regulation No 44/2001 also require that the contract was concluded as a distance contract? |
| --- | --- |

2.

In so far as a causal link between the ‘directing’ requirement and the conclusion of the contract is necessary: does Article 15(1)(c) of Regulation No 44/2001 also require that the contract was concluded as a distance contract?

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

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| 11.8.2012 | EN | Official Journal of the European Union | C 243/3 |
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11.8.2012

EN

Official Journal of the European Union

C 243/3

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Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 9 May 2012 — Finanzamt Freistadt Rohrbach Urfahr v Unabhängiger Fianzsenat Außenstelle Linz

(Case C-219/12)

2012/C 243/05

Language of the case: German

Referring court

Verwaltungsgerichtshof

Parties to the main proceedings

Applicant: Finanzamt Freistadt Rohrbach Urfahr

Defendant: Unabhängiger Fianzsenat Außenstelle Linz

Interested party: Thomas Fuchs

Question referred

Is the operation of a network-connected photovoltaic installation with no independent power storage capability on or adjacent to a privately owned house used for private residential purposes, which is technically designed such that the power generated by the installation is, on a continuing basis, below the total quantity of power privately consumed by the installation operator in the privately owned house, an ‘economic activity’ of the installation operator within the meaning of Article 4 of the Sixth Directive 77/388/EEC? (1)

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

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| 11.8.2012 | EN | Official Journal of the European Union | C 243/4 |
| --- | --- | --- | --- |

11.8.2012

EN

Official Journal of the European Union

C 243/4

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Reference for a preliminary ruling from the Raad van State (Belgium) lodged on 11 May 2012 — Belgacom NV v Interkommunale voor Teledistributie van het Gewest Antwerpen (INTEGAN) and Others

(Case C-221/12)

2012/C 243/06

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Applicant: Belgacom NV

Defendants: Interkommunale voor Teledistributie van het Gewest Antwerpen (INTEGAN), Inter-Media, West-Vlaamse Energie- en Teledistributiemaatschappij (WVEM), Provinicale Brabantse Energiemaatschappij CVBA (PBE)

Interveners: Telenet NV, Telenet Vlaanderen NV, Telenet Group Holding NV

Questions referred

| 1. | Should Articles 49 or 56 TFEU be interpreted in such a way that an undertaking established in Belgium may rely on the fundamental rules of European Union law before the Belgian courts, in particular, on the obligation of transparency which is derived from the aforementioned Articles, in respect of an agreement which does not fall within the scope of any of the directives concerning public tenders, under which a Belgian authority transfers rights to another Belgian undertaking without having organised an invitation to tender? |
| --- | --- |

1.

Should Articles 49 or 56 TFEU be interpreted in such a way that an undertaking established in Belgium may rely on the fundamental rules of European Union law before the Belgian courts, in particular, on the obligation of transparency which is derived from the aforementioned Articles, in respect of an agreement which does not fall within the scope of any of the directives concerning public tenders, under which a Belgian authority transfers rights to another Belgian undertaking without having organised an invitation to tender?

| 2. | Can the efforts to prevent the infringement of an existing, in itself undisputed and very specific contractual framework between a legal person governed by public law and a private law undertaking, not controlled by itself, or the conclusion of a transaction or a settlement aimed at the resolution of an existing interpretation dispute regarding the aforementioned contractual framework, where that settlement is based on the rights of the parties in accordance with a provisional decision of a judge hearing an application for interim relief and where, without such a settlement, the relevant activity of the authority can incur serious damage and depreciation, with the consumers, in the meanwhile, remaining deprived of services, be regarded as an overriding reason in the public interest, or at least an objective ground of justification, justifying the fact that legal persons governed by public law, by way of exception and contrary to the principle of equal treatment and the prohibition of discrimination on the grounds of nationality, which are laid down in Articles 49 and 56 TFEU and the obligation of transparency to which it gives rise, do not organise an invitation to bid and award the tender directly? |
| --- | --- |

2.

Can the efforts to prevent the infringement of an existing, in itself undisputed and very specific contractual framework between a legal person governed by public law and a private law undertaking, not controlled by itself, or the conclusion of a transaction or a settlement aimed at the resolution of an existing interpretation dispute regarding the aforementioned contractual framework, where that settlement is based on the rights of the parties in accordance with a provisional decision of a judge hearing an application for interim relief and where, without such a settlement, the relevant activity of the authority can incur serious damage and depreciation, with the consumers, in the meanwhile, remaining deprived of services, be regarded as an overriding reason in the public interest, or at least an objective ground of justification, justifying the fact that legal persons governed by public law, by way of exception and contrary to the principle of equal treatment and the prohibition of discrimination on the grounds of nationality, which are laid down in Articles 49 and 56 TFEU and the obligation of transparency to which it gives rise, do not organise an invitation to bid and award the tender directly?

| 3. | If the second question can be answered in the affirmative, should the aforementioned transaction or settlement, so as not to limit the aforementioned fundamental freedoms guaranteed by European Union law more than is necessary in order to achieve the aim pursued, then be limited to what is strictly required to put an end to the dispute which has arisen, or may the parties devise a more far-reaching settlement with a view to future challenges which have a reasonable and logical connection with the dispute and which at the same time safeguards the interests of the consumers and also entails maximising the value of the transferred activity concerned? |
| --- | --- |

3.

If the second question can be answered in the affirmative, should the aforementioned transaction or settlement, so as not to limit the aforementioned fundamental freedoms guaranteed by European Union law more than is necessary in order to achieve the aim pursued, then be limited to what is strictly required to put an end to the dispute which has arisen, or may the parties devise a more far-reaching settlement with a view to future challenges which have a reasonable and logical connection with the dispute and which at the same time safeguards the interests of the consumers and also entails maximising the value of the transferred activity concerned?

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| 11.8.2012 | EN | Official Journal of the European Union | C 243/4 |
| --- | --- | --- | --- |

11.8.2012

EN

Official Journal of the European Union

C 243/4

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Reference for a preliminary ruling from the Raad van State (Netherlands), lodged on 14 May 2012 — C. Demir; other party: Staatssecretaris van Justitie

(Case C-225/12)

2012/C 243/07

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Appellant: C. Demir

Other party: Staatssecretaris van Justitie

Questions referred

| 1. | Is Article 13 of Decision No 1/80 (1) to be interpreted as meaning that it is applicable to a substantive and/or formal condition governing first admission, even if such a condition — in the present case, the possession of a temporary residence permit — has as one of its objectives the prevention of illegal entry and illegal residence prior to the submission of an application for a residence permit and, to that extent, can be regarded as a measure, within the terms of paragraph 85 of the judgment in Joined Cases C-317/01 and C-369/01 Abatay and Others, (2) which may be made more stringent? |
| --- | --- |

1.

Is Article 13 of Decision No 1/80 (1) to be interpreted as meaning that it is applicable to a substantive and/or formal condition governing first admission, even if such a condition — in the present case, the possession of a temporary residence permit — has as one of its objectives the prevention of illegal entry and illegal residence prior to the submission of an application for a residence permit and, to that extent, can be regarded as a measure, within the terms of paragraph 85 of the judgment in Joined Cases C-317/01 and C-369/01 Abatay and Others, (2) which may be made more stringent?

| 2. | (a) | What importance is to be attached in this connection to the requirement of legal residence in Article 13 of Decision No 1/80? |
| --- | --- | --- |

2.

(a)

What importance is to be attached in this connection to the requirement of legal residence in Article 13 of Decision No 1/80?

| (b) | Is it relevant in this connection that, even under national law, the submission of an application renders residence legal so long as that application has not been refused, or is the only relevant factor the fact that residence prior to the submission of an application is regarded as being illegal under national law? |
| --- | --- |

(b)

Is it relevant in this connection that, even under national law, the submission of an application renders residence legal so long as that application has not been refused, or is the only relevant factor the fact that residence prior to the submission of an application is regarded as being illegal under national law?

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(1)  Decision of 19 September 1980 on the development of the Association, adopted by the Association Council established under the Association Agreement.

(2)  [2003] ECR I-12301.

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| 11.8.2012 | EN | Official Journal of the European Union | C 243/5 |
| --- | --- | --- | --- |

11.8.2012

EN

Official Journal of the European Union

C 243/5

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Reference for a preliminary ruling from the Rechtbank te Rotterdam (Netherlands) lodged on 18 May 2012 — Criminal proceedings against EBS Le relais Nord-Pas-De-Calais

(Case C-240/12)

2012/C 243/08

Language of the case: Dutch

Referring court

Rechtbank te Rotterdam

Party to the main proceedings

EBS Le relais Nord-Pas-De-Calais

Questions referred

| 1. | Where waste is shipped by vessel from an EU Member State (in this case France) to a State in which the OECD-Decision does not apply (in this case the United Arab Emirates), is there ‘transit’ within the meaning of the former (1) and the new (2) Waste Shipment Regulation (WSR) if under way the vessel puts in at a port of another EU Member State (in this case the Port of Rotterdam)? |
| --- | --- |

1.

Where waste is shipped by vessel from an EU Member State (in this case France) to a State in which the OECD-Decision does not apply (in this case the United Arab Emirates), is there ‘transit’ within the meaning of the former (1) and the new (2) Waste Shipment Regulation (WSR) if under way the vessel puts in at a port of another EU Member State (in this case the Port of Rotterdam)?

| 2. | Does it make any difference to the answer to question 1 if:






  — | there is storage and/or transhipment of that waste at that port and/or |
| --- | --- | --- |

2.

Does it make any difference to the answer to question 1 if:

—

there is storage and/or transhipment of that waste at that port and/or

| — | that waste is taken ashore and/or |
| --- | --- |

—

that waste is taken ashore and/or

| — | that waste is declared for import at customs? |
| --- | --- |

—

that waste is declared for import at customs?

---

(1)  Council Regulation (EEC) No 259/93 of 1 February 1993 on the supervision and control of shipments of waste within, into and out of the European Community (former WSR) (OJ 1993 L 30, p. 1)

(2)  Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste (new WSR) (OJ 2006 L 190, p. 1)

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| 11.8.2012 | EN | Official Journal of the European Union | C 243/5 |
| --- | --- | --- | --- |

11.8.2012

EN

Official Journal of the European Union

C 243/5

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Reference for a preliminary ruling from the Rechtbank te Rotterdam (Netherlands) lodged on 18 May 2012 — Criminal proceedings against Shell Nederland Verkoopmaatschappij BV

(Case C-241/12)

2012/C 243/09

Language of the case: Dutch

Referring court

Rechtbank te Rotterdam

Party to the main proceedings

Shell Nederland Verkoopmaatschappij BV

Questions referred

| 1. | Must a consignment of diesel be categorised as waste within the meaning of the (former (1) and new (2)) WSR (Waste Shipment Regulation) in the following circumstances:






  (a) | the consignment consists of Ultra Light Sulphur Diesel, which has been unintentionally mixed with Methyl Tertiary Butyl Ether; |
| --- | --- | --- |

1.

Must a consignment of diesel be categorised as waste within the meaning of the (former (1) and new (2)) WSR (Waste Shipment Regulation) in the following circumstances:

(a)

the consignment consists of Ultra Light Sulphur Diesel, which has been unintentionally mixed with Methyl Tertiary Butyl Ether;

| (b) | after the consignment is delivered to a buyer, it transpires that — because of the mix — it does not satisfy the specifications agreed between the buyer and the vendor and is therefore ‘off-spec’; |
| --- | --- |

(b)

after the consignment is delivered to a buyer, it transpires that — because of the mix — it does not satisfy the specifications agreed between the buyer and the vendor and is therefore ‘off-spec’;

| (c) | the consignment — following a complaint by the buyer — is taken back by the vendor in accordance with the purchase agreement, and the vendor refunds the purchase price; |
| --- | --- |

(c)

the consignment — following a complaint by the buyer — is taken back by the vendor in accordance with the purchase agreement, and the vendor refunds the purchase price;

| (d) | the vendor has the intention — whether or not after mixing it with another product — of placing the consignment back on the market? |
| --- | --- |

(d)

the vendor has the intention — whether or not after mixing it with another product — of placing the consignment back on the market?

| 2. | If the answer to question 1 is in the affirmative:






  (a) | is it possible to specify a point in time in the abovementioned factual circumstances from which this is the case; |
| --- | --- | --- |

2.

If the answer to question 1 is in the affirmative:

(a)

is it possible to specify a point in time in the abovementioned factual circumstances from which this is the case;

| (b) | does the status of the consignment change to a non-waste product at any point in time between the delivery to the buyer and a new blending carried out by or on behalf of the vendor and, if so, at what point? |
| --- | --- |

(b)

does the status of the consignment change to a non-waste product at any point in time between the delivery to the buyer and a new blending carried out by or on behalf of the vendor and, if so, at what point?

| 3. | Is it relevant to the answer to question 1:






  (a) | whether the consignment could be used as fuel in the same way as pure ULSD, but because of its lower flashpoint it no longer satisfied the (safety) requirements; |
| --- | --- | --- |

3.

Is it relevant to the answer to question 1:

(a)

whether the consignment could be used as fuel in the same way as pure ULSD, but because of its lower flashpoint it no longer satisfied the (safety) requirements;

| (b) | whether, as result of the new composition, the consignment could not be stored by the buyer pursuant to an environmental permit; |
| --- | --- |

(b)

whether, as result of the new composition, the consignment could not be stored by the buyer pursuant to an environmental permit;

| (c) | whether the consignment could not be used by the buyer for the purpose for which it had been bought, namely for sale as diesel fuel from the pump; |
| --- | --- |

(c)

whether the consignment could not be used by the buyer for the purpose for which it had been bought, namely for sale as diesel fuel from the pump;

| (d) | whether or not the buyer intended to return the consignment to the vendor pursuant to the purchase agreement; |
| --- | --- |

(d)

whether or not the buyer intended to return the consignment to the vendor pursuant to the purchase agreement;

| (e) | whether the vendor did in fact intend to take back the consignment with a view to processing it through blending it and to place it back on the market; |
| --- | --- |

(e)

whether the vendor did in fact intend to take back the consignment with a view to processing it through blending it and to place it back on the market;

| (f) | whether or not the consignment can be restored either to the state originally intended or processed into a product that is marketable for a price approaching that of the market value of the original ULSD consignment; |
| --- | --- |

(f)

whether or not the consignment can be restored either to the state originally intended or processed into a product that is marketable for a price approaching that of the market value of the original ULSD consignment;

| (g) | whether that restoration/processing is a common production process; |
| --- | --- |

(g)

whether that restoration/processing is a common production process;

| (h) | whether the market value of the consignment in the state that it is in at the time that it is taken back by the vendor is (virtually) the same as the price of a product that does satisfy the agreed specifications; |
| --- | --- |

(h)

whether the market value of the consignment in the state that it is in at the time that it is taken back by the vendor is (virtually) the same as the price of a product that does satisfy the agreed specifications;

| (i) | whether the consignment taken back can be sold on the market in the state that it is in at the time that is taken back without being processed; |
| --- | --- |

(i)

whether the consignment taken back can be sold on the market in the state that it is in at the time that is taken back without being processed;

| (j) | whether trade in products such as the consignment is common and is not regarded in relevant trade circles as trade in waste? |
| --- | --- |

(j)

whether trade in products such as the consignment is common and is not regarded in relevant trade circles as trade in waste?

---

(1)  Council Regulation (EEC) No 259/93 of 1 February 1993 on the supervision and control of shipments of waste within, into and out of the European Community (former WSR) (OJ 1993 L 30, p. 1)

(2)  Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste (new WSR) (OJ 2006 L 190, p. 1)

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| 11.8.2012 | EN | Official Journal of the European Union | C 243/6 |
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Reference for a preliminary ruling from the Rechtbank te Rotterdam (Netherlands) lodged on 18 May 2012 — Criminal proceedings against Belgian Shell NV

(Case C-242/12)

2012/C 243/10

Language of the case: Dutch

Referring court

Rechtbank te Rotterdam

Party to the main proceedings

Belgian Shell NV

Questions referred

| 1. | Must a consignment of diesel be categorised as waste within the meaning of the (former (1) and new (2)) WSR (Waste Shipment Regulation) in the following circumstances:






  (a) | the consignment consists of Ultra Light Sulphur Diesel, which has been unintentionally mixed with Methyl Tertiary Butyl Ether; |
| --- | --- | --- |

1.

Must a consignment of diesel be categorised as waste within the meaning of the (former (1) and new (2)) WSR (Waste Shipment Regulation) in the following circumstances:

(a)

the consignment consists of Ultra Light Sulphur Diesel, which has been unintentionally mixed with Methyl Tertiary Butyl Ether;

| (b) | after the consignment is delivered to a buyer, it transpires that — because of the mix — it does not satisfy the specifications agreed between the buyer and the vendor and is therefore ‘off-spec’; |
| --- | --- |

(b)

after the consignment is delivered to a buyer, it transpires that — because of the mix — it does not satisfy the specifications agreed between the buyer and the vendor and is therefore ‘off-spec’;

| (c) | the consignment — following a complaint by the buyer — is taken back by the vendor in accordance with the purchase agreement, and the vendor refunds the purchase price; |
| --- | --- |

(c)

the consignment — following a complaint by the buyer — is taken back by the vendor in accordance with the purchase agreement, and the vendor refunds the purchase price;

| (d) | the vendor has the intention — whether or not after mixing it with another product — of placing the consignment back on the market? |
| --- | --- |

(d)

the vendor has the intention — whether or not after mixing it with another product — of placing the consignment back on the market?

| 2. | If the answer to question 1 is in the affirmative:






  (a) | is it possible to specify a point in time in the abovementioned factual circumstances from which this is the case; |
| --- | --- | --- |

2.

If the answer to question 1 is in the affirmative:

(a)

is it possible to specify a point in time in the abovementioned factual circumstances from which this is the case;

| (b) | does the status of the consignment change to a non-waste product at any point in time between the delivery to the buyer and a new blending carried out by or on behalf of the vendor and, if so, at what point? |
| --- | --- |

(b)

does the status of the consignment change to a non-waste product at any point in time between the delivery to the buyer and a new blending carried out by or on behalf of the vendor and, if so, at what point?

| 3. | Is it relevant to the answer to question 1:






  (a) | whether the consignment could be used as fuel in the same way as pure ULSD, but because of its lower flashpoint it no longer satisfied the (safety) requirements; |
| --- | --- | --- |

3.

Is it relevant to the answer to question 1:

(a)

whether the consignment could be used as fuel in the same way as pure ULSD, but because of its lower flashpoint it no longer satisfied the (safety) requirements;

| (b) | whether, as result of the new composition, the consignment could not be stored by the buyer pursuant to an environmental permit; |
| --- | --- |

(b)

whether, as result of the new composition, the consignment could not be stored by the buyer pursuant to an environmental permit;

| (c) | whether the consignment could not be used by the buyer for the purpose for which it had been bought, namely for sale as diesel fuel from the pump; |
| --- | --- |

(c)

whether the consignment could not be used by the buyer for the purpose for which it had been bought, namely for sale as diesel fuel from the pump;

| (d) | whether or not the buyer intended to return the consignment to the vendor pursuant to the purchase agreement; |
| --- | --- |

(d)

whether or not the buyer intended to return the consignment to the vendor pursuant to the purchase agreement;

| (e) | whether the vendor did in fact intend to take back the consignment with a view to processing it through blending it and to place it back on the market; |
| --- | --- |

(e)

whether the vendor did in fact intend to take back the consignment with a view to processing it through blending it and to place it back on the market;

| (f) | whether or not the consignment can be restored either to the state originally intended or processed into a product that is marketable for a price approaching that of the market value of the original ULSD consignment; |
| --- | --- |

(f)

whether or not the consignment can be restored either to the state originally intended or processed into a product that is marketable for a price approaching that of the market value of the original ULSD consignment;

| (g) | whether that restoration/processing is a common production process; |
| --- | --- |

(g)

whether that restoration/processing is a common production process;

| (h) | whether the market value of the consignment in the state that it is in at the time that it is taken back by the vendor is (virtually) the same as the price of a product that does satisfy the agreed specifications; |
| --- | --- |

(h)

whether the market value of the consignment in the state that it is in at the time that it is taken back by the vendor is (virtually) the same as the price of a product that does satisfy the agreed specifications;

| (i) | whether the consignment taken back can be sold on the market in the state that it is in at the time that is taken back without being processed; |
| --- | --- |

(i)

whether the consignment taken back can be sold on the market in the state that it is in at the time that is taken back without being processed;

| (j) | whether trade in products such as the consignment is common and is not regarded in relevant trade circles as trade in waste? |
| --- | --- |

(j)

whether trade in products such as the consignment is common and is not regarded in relevant trade circles as trade in waste?

---

(1)  Council Regulation (EEC) No 259/93 of 1 February 1993 on the supervision and control of shipments of waste within, into and out of the European Community (former WSR) (OJ 1993 L 30, p. 1)

(2)  Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste (new WSR) (OJ 2006 L 190, p. 1)

---

| 11.8.2012 | EN | Official Journal of the European Union | C 243/7 |
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Reference for a preliminary ruling from the Înalta Curte de Casație și Justiție (Romania), lodged on 22 May 2012 — Corina-Hrisi Tulică v Agenția Națională de Administrare Fiscală — Direcția Generală de Soluționare a Contestațiilor

(Case C-249/12)

2012/C 243/11

Language of the case: Romanian

Referring court

Înalta Curte de Casație și Justiție

Parties to the main proceedings

Applicant: Corina-Hrisi Tulică

Defendant: Agenția Națională de Administrare Fiscală — Direcția Generală de Soluționare a Contestațiilor

Question referred

If a vendor has been reclassified as a taxable person for VAT purposes and the consideration for (price of) the supply of the immovable property has been determined by the parties, without any reference to VAT, must Articles 73 and 78 of Council Directive 2006/112/EC (1) be interpreted as meaning that the taxable amount is:

| (a) | the consideration for (price of) the supply of the property determined by the parties, less the rate of VAT, or |
| --- | --- |

(a)

the consideration for (price of) the supply of the property determined by the parties, less the rate of VAT, or

| (b) | the consideration for (price of) the supply of the property agreed by the parties? |
| --- | --- |

(b)

the consideration for (price of) the supply of the property agreed by the parties?

---

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

---

| 11.8.2012 | EN | Official Journal of the European Union | C 243/7 |
| --- | --- | --- | --- |

11.8.2012

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Official Journal of the European Union

C 243/7

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Reference for a preliminary ruling from the Înalta Curte de Casație și Justiție (Romania), lodged on 22 May 2012 — Călin Ion Plavoșin v Direcția Generală a Finanțelor Publice Timiș — Serviciul Soluționare Contestații, Activitatea de Inspecție Fiscală — Serviciul de Inspecție Fiscală Timiș

(Case C-250/12)

2012/C 243/12

Language of the case: Romanian

Referring court

Înalta Curte de Casație și Justiție

Parties to the main proceedings

Applicant: Călin Ion Plavoșin

Defendants: Direcția Generală a Finanțelor Publice Timiș — Serviciul Soluționare Contestații, Activitatea de Inspecție Fiscală — Serviciul de Inspecție Fiscală Timiș

Question referred

In the case where a vendor has been reclassified as a taxable person for VAT purposes and the consideration for (price of) the supply of the immovable property has been determined by the parties, without any reference to VAT, must Articles 73 and 78 of Council Directive 2006/112/EC (1) be interpreted as meaning that the taxable amount is:

| (a) | the consideration for (price of) the supply of the property determined by the parties, less the rate of VAT, or |
| --- | --- |

(a)

the consideration for (price of) the supply of the property determined by the parties, less the rate of VAT, or

| (b) | the consideration for (price of) the supply of the property agreed by the parties? |
| --- | --- |

(b)

the consideration for (price of) the supply of the property agreed by the parties?

---

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

---

| 11.8.2012 | EN | Official Journal of the European Union | C 243/7 |
| --- | --- | --- | --- |

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C 243/7

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Reference for a preliminary ruling from the Administrativen sad — Plovdiv (Bulgaria), lodged on 24 May 2012 — Teritorialna direktsia na Natsionalnata Agentsia za Prihodite — Plovdiv v ‘RODOPI-М 91’ OOD

(Case C-259/12)

2012/C 243/13

Language of the case: Bulgarian

Referring court

Administrativen sad — Plovdiv

Parties to the main proceedings

Appellant: Teritorialna direktsia na Natsionalnata Agentsia za Prihodite — Plovdiv

Respondent:‘RODOPI-М 91’ OOD

Questions referred

| 1.1. | Does the principle of VAT neutrality permit a Member State to impose a fine for failure to show cancellation of an invoice on time even though that cancellation is later shown in the accounts and the party concerned has paid the VAT resulting from cancellation plus the interest thereon? |
| --- | --- |

1.1.

Does the principle of VAT neutrality permit a Member State to impose a fine for failure to show cancellation of an invoice on time even though that cancellation is later shown in the accounts and the party concerned has paid the VAT resulting from cancellation plus the interest thereon?

| 1.2. | Are the following circumstances of significance in connection with the first question:






  — | The period within which cancellation of an invoice should supposedly be shown is 14 days from the end of the calendar month in which the cancellation takes place; |
| --- | --- | --- |

1.2.

Are the following circumstances of significance in connection with the first question:

—

The period within which cancellation of an invoice should supposedly be shown is 14 days from the end of the calendar month in which the cancellation takes place;

| — | Cancellation of the invoice was in fact shown one month after the end of the period within which cancellation should supposedly have taken place; |
| --- | --- |

—

Cancellation of the invoice was in fact shown one month after the end of the period within which cancellation should supposedly have taken place;

| — | The VAT owed plus interest thereon was forwarded to the Treasury? |
| --- | --- |

—

The VAT owed plus interest thereon was forwarded to the Treasury?

| 2. | Do Articles 242 and 273 of Directive 2006/112/EC (1) permit the Member States to impose a fine on taxpayers who have allegedly failed to fulfil on time their duty to show circumstances in their accounts that are of significance to the calculation of VAT where that fine amounts to the VAT not paid on time if that default is later remedied and the VAT owed is paid in full plus interest thereon? |
| --- | --- |

2.

Do Articles 242 and 273 of Directive 2006/112/EC (1) permit the Member States to impose a fine on taxpayers who have allegedly failed to fulfil on time their duty to show circumstances in their accounts that are of significance to the calculation of VAT where that fine amounts to the VAT not paid on time if that default is later remedied and the VAT owed is paid in full plus interest thereon?

| 3. | Is significance to be attributed to the fact that the Treasury has not been adversely affected as the party concerned later showed cancellation of the invoice and paid all of the VAT plus interest thereon? |
| --- | --- |

3.

Is significance to be attributed to the fact that the Treasury has not been adversely affected as the party concerned later showed cancellation of the invoice and paid all of the VAT plus interest thereon?

| 4. | Does the imposition of a fine in the full amount of VAT already paid plus interest thereon contravene the principle of proportionality? |
| --- | --- |

4.

Does the imposition of a fine in the full amount of VAT already paid plus interest thereon contravene the principle of proportionality?

---

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

---

| 11.8.2012 | EN | Official Journal of the European Union | C 243/8 |
| --- | --- | --- | --- |

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Reference for a preliminary ruling from the Conseil d’État (France) lodged on 29 May 2012 — Association Vent De Colère! Fédération nationale, Alain Bruguier, Jean-Pierre Le Gorgeu, Marie-Christine Piot, Eric Errec, Didier Wirth, Daniel Steinbach, Sabine Servan-Schreiber, Philippe Rusch, Pierre Recher, Jean-Louis Moret, Didier Jocteur Monrozier v Ministre de l’écologie, du développement durable, des transports et du logement, Ministre de l’Économie, des Finances et de l’Industrie

(Case C-262/12)

2012/C 243/14

Language of the case: French

Referring court

Conseil d’État

Parties to the main proceedings

Applicants: Association Vent De Colère! Fédération nationale, Alain Bruguier, Jean-Pierre Le Gorgeu, Marie-Christine Piot, Eric Errec, Didier Wirth, Daniel Steinbach, Sabine Servan-Schreiber, Philippe Rusch, Pierre Recher, Jean-Louis Moret, Didier Jocteur Monrozier

Defendants: Ministre de l’écologie, du développement durable, des transports et du logement, Ministre de l’Économie, des Finances et de l’Industrie

Question referred

In the light of the change in the mechanism for financing in full the additional costs imposed on Électricité de France and the non-nationalised distributors referred to in Article 23 of Law No 46-628 of 8 April 1946 on the nationalisation of electricity and gas by the obligation to purchase at higher than market price the electricity generated by wind-power installations, as a result of Law No 2003-8 of 3 January 2003, must that mechanism now be regarded as an intervention by the State or through State resources within the meaning, and for the application, of Article 87 EC?

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| 11.8.2012 | EN | Official Journal of the European Union | C 243/8 |
| --- | --- | --- | --- |

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Reference for a preliminary ruling from the Cour d’appel de Mons (Belgium) lodged on 1 June 2012 — Petroma Transports SA, Martens Energie SA, Martens Immo SA, Martens SA, Fabian Martens, Geoffroy Martens, Thibault Martens v État belge

(Case C-271/12)

2012/C 243/15

Language of the case: French

Referring court

Cour d’appel de Mons

Parties to the main proceedings

Applicants: Petroma Transports SA, Martens Energie SA, Martens Immo SA, Martens SA, Fabian Martens, Geoffroy Martens, Thibault Martens

Defendant: État belge

Questions referred

| 1. | Is a Member State entitled to refuse to allow a deduction in favour of taxable persons who are recipients of services and are in possession of invoices which are incomplete, but which have been supplemented by the provision of information seeking to prove the occurrence, the nature and the amount of the transactions invoiced (contracts, reconstitution of figures on the basis of declarations made to the national social security institution, information on the functioning of the group involved, ...)? |
| --- | --- |

1.

Is a Member State entitled to refuse to allow a deduction in favour of taxable persons who are recipients of services and are in possession of invoices which are incomplete, but which have been supplemented by the provision of information seeking to prove the occurrence, the nature and the amount of the transactions invoiced (contracts, reconstitution of figures on the basis of declarations made to the national social security institution, information on the functioning of the group involved, ...)?

| 2. | Must a Member State which refuses, on the basis of inaccuracies in invoices, to allow a deduction in favour of taxable persons who are recipients of services not find that the invoices are then also too inaccurate to allow payment of the VAT? Consequently, is a Member State not required, in order to safeguard the principle of neutrality of VAT, to repay the VAT which has been paid to it to the companies which supplied the services thus disputed? |
| --- | --- |

2.

Must a Member State which refuses, on the basis of inaccuracies in invoices, to allow a deduction in favour of taxable persons who are recipients of services not find that the invoices are then also too inaccurate to allow payment of the VAT? Consequently, is a Member State not required, in order to safeguard the principle of neutrality of VAT, to repay the VAT which has been paid to it to the companies which supplied the services thus disputed?

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| 11.8.2012 | EN | Official Journal of the European Union | C 243/9 |
| --- | --- | --- | --- |

11.8.2012

EN

Official Journal of the European Union

C 243/9

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Reference for a preliminary ruling from the Administrativen sad — Varna (Bulgaria), lodged on 6 June 2012 — Serebryanniy vek EOOD v Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — grad Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite

(Case C-283/12)

2012/C 243/16

Language of the case: Bulgarian

Referring court

Administrativen sad — Varna

Parties to the main proceedings

Applicant: Serebryanniy vek EOOD

Defendant: Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — grad Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite

Questions referred

| 1. | Can Article 2(1)(c) of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax be interpreted as meaning that the acquisition of an intangible asset in exchange for assumption of the costs involved in improving a leased asset item or an asset item the use of which has been assigned in some other way constitutes payment for an improvement service even if the owner of the asset item concerned is not required, under the contract, to pay any valuable consideration? |
| --- | --- |

1.

Can Article 2(1)(c) of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax be interpreted as meaning that the acquisition of an intangible asset in exchange for assumption of the costs involved in improving a leased asset item or an asset item the use of which has been assigned in some other way constitutes payment for an improvement service even if the owner of the asset item concerned is not required, under the contract, to pay any valuable consideration?

| 2. | Do Article 2(1)(c) and Article 26 of Directive 2006/112 preclude a national provision under which the supply of a service carried out free of charge and consisting in the improvement of a leased asset item or of an asset item the use of which has been assigned in some other way is in all circumstances to be treated as being taxable? Is it of significance to an answer to this question, in circumstances such as those in the main proceedings, that:






  — | the party supplying the service carried out free of charge has exercised the right to deduct value added tax on the goods and services used in making the improvements and that this has not yet been disallowed by a tax assessment instrument that has become final; |
| --- | --- | --- |

2.

Do Article 2(1)(c) and Article 26 of Directive 2006/112 preclude a national provision under which the supply of a service carried out free of charge and consisting in the improvement of a leased asset item or of an asset item the use of which has been assigned in some other way is in all circumstances to be treated as being taxable? Is it of significance to an answer to this question, in circumstances such as those in the main proceedings, that:

—

the party supplying the service carried out free of charge has exercised the right to deduct value added tax on the goods and services used in making the improvements and that this has not yet been disallowed by a tax assessment instrument that has become final;

| — | at the date of the tax assessment, the company had not yet begun to make any taxable turnover from the properties and the period of validity of the contracts had nevertheless not yet expired? |
| --- | --- |

—

at the date of the tax assessment, the company had not yet begun to make any taxable turnover from the properties and the period of validity of the contracts had nevertheless not yet expired?

| 3. | Do Articles 62 and 63 of Directive 2006/112 preclude a national provision by which the chargeable event for the purposes of the transaction does not occur at the date on which the service is supplied (in this particular case, when improvements are made) but at the time when the asset item is actually returned in its improved condition on the expiry of the contract or on the termination of its use? |
| --- | --- |

3.

Do Articles 62 and 63 of Directive 2006/112 preclude a national provision by which the chargeable event for the purposes of the transaction does not occur at the date on which the service is supplied (in this particular case, when improvements are made) but at the time when the asset item is actually returned in its improved condition on the expiry of the contract or on the termination of its use?

| 4. | If the first and second questions are answered in the negative: under which provision of Title VII of Directive 2006/112 is the taxable amount for purposes of value added tax to be determined in the case where a transaction carried out free of charge does not come within the scope of Article 26 of the directive? |
| --- | --- |

4.

If the first and second questions are answered in the negative: under which provision of Title VII of Directive 2006/112 is the taxable amount for purposes of value added tax to be determined in the case where a transaction carried out free of charge does not come within the scope of Article 26 of the directive?

---

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

---

| 11.8.2012 | EN | Official Journal of the European Union | C 243/9 |
| --- | --- | --- | --- |

11.8.2012

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Official Journal of the European Union

C 243/9

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Reference for a preliminary ruling from the Tribunale di Napoli (Italy) lodged on 11 June 2012 — Oreste Della Rocca v Poste Italiane SpA

(Case C-290/12)

2012/C 243/17

Language of the case: Italian

Referring court

Tribunale di Napoli

Parties to the main proceedings

Applicant: Oreste Della Rocca

Defendant: Poste Italiane SpA

Questions referred

| 1. | Taking into account the remark interpolated in paragraph 36 of the Order of 15 September 2010 in Case C-386/09 Briot [2010] ECR I-8471, does Directive 1999/70/EC (1) — and, in particular, Clause 2 [of the framework agreement set out in the Annex thereto] — also refer to the fixed-term employment relationship between worker and temporary employment agency or between worker and user, and does Directive 1999/70/EC accordingly regulate those relationships? |
| --- | --- |

1.

Taking into account the remark interpolated in paragraph 36 of the Order of 15 September 2010 in Case C-386/09 Briot [2010] ECR I-8471, does Directive 1999/70/EC (1) — and, in particular, Clause 2 [of the framework agreement set out in the Annex thereto] — also refer to the fixed-term employment relationship between worker and temporary employment agency or between worker and user, and does Directive 1999/70/EC accordingly regulate those relationships?

| 2. | In the absence of other prohibitive measures, does a provision which permits the specification, in the employment contract with a temporary employment agency, of a date on which that contract is to end, as well as its successive renewal, not on the basis of technical, organisational or production requirements of the agency in connection with the specific temporary employment relationship, but on the basis of general reasons relating to the worker, unconnected with the specific employment relationship, meet the requirements under Clause 5(1)(a) [of the framework agreement set out in the Annex to] Directive 1999/70/EC, or can it constitute a circumvention of that directive, and must the objective reasons referred to in Clause 5(1)(a) of [the above framework agreement] be set down in a document and must they relate to the specific temporary employment relationship and its successive renewal, rendering the reference to general objective requirements which served as justification for that somministrazione contract being drawn up incapable of meeting the condition set out in Clause 5(1)(a), or unsuitable for those purposes? |
| --- | --- |

2.

In the absence of other prohibitive measures, does a provision which permits the specification, in the employment contract with a temporary employment agency, of a date on which that contract is to end, as well as its successive renewal, not on the basis of technical, organisational or production requirements of the agency in connection with the specific temporary employment relationship, but on the basis of general reasons relating to the worker, unconnected with the specific employment relationship, meet the requirements under Clause 5(1)(a) [of the framework agreement set out in the Annex to] Directive 1999/70/EC, or can it constitute a circumvention of that directive, and must the objective reasons referred to in Clause 5(1)(a) of [the above framework agreement] be set down in a document and must they relate to the specific temporary employment relationship and its successive renewal, rendering the reference to general objective requirements which served as justification for that somministrazione contract being drawn up incapable of meeting the condition set out in Clause 5(1)(a), or unsuitable for those purposes?

| 3. | Does Clause 5 of [the framework agreement set out in the Annex to] Directive 1999/70/EC preclude the consequences of abuse from being made the responsibility of a third party, in this case, the user? |
| --- | --- |

3.

Does Clause 5 of [the framework agreement set out in the Annex to] Directive 1999/70/EC preclude the consequences of abuse from being made the responsibility of a third party, in this case, the user?

---

(1)  OJ 1999 L 175, p. 43.

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| 11.8.2012 | EN | Official Journal of the European Union | C 243/10 |
| --- | --- | --- | --- |

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Reference for a preliminary ruling from the Tartu Ringkonnakohus (Estonia) lodged on 11 June 2012 — Ragn-Sells AS v Sillamäe Linnavalitsus

(Case C-292/12)

2012/C 243/18

Language of the case: Estonian

Referring court

Tartu Ringkonnakohus

Parties to the main proceedings

Applicant: Ragn-Sells AS

Defendant: Sillamäe Linnavalitsus

Questions referred

| (a) | Are Article 106(1) in conjunction with Article 102 of the Treaty on the Functioning of the European Union, the free movement of goods, the freedom of establishment and the freedom to provide services to be interpreted as meaning that it is not contrary to any of them for a Member State to permit an undertaking which operates a specific waste treatment facility to be granted an exclusive right to process municipal waste in a specified area, in return for consideration, where a number of competing undertakings owning a number of different waste treatment facilities which satisfy the environmental requirements and use equivalent technologies are operating within a radius of 260 km? |
| --- | --- |

(a)

Are Article 106(1) in conjunction with Article 102 of the Treaty on the Functioning of the European Union, the free movement of goods, the freedom of establishment and the freedom to provide services to be interpreted as meaning that it is not contrary to any of them for a Member State to permit an undertaking which operates a specific waste treatment facility to be granted an exclusive right to process municipal waste in a specified area, in return for consideration, where a number of competing undertakings owning a number of different waste treatment facilities which satisfy the environmental requirements and use equivalent technologies are operating within a radius of 260 km?

| (b) | Is Article 106(2) of the Treaty on the Functioning of the European Union to be interpreted as meaning that it is not contrary thereto for a Member State to regard, first, the collection and transport of waste and, secondly, the processing of waste as services in the general economic interest, but to separate those services from each other, thereby restricting free competition in the waste treatment market? |
| --- | --- |

(b)

Is Article 106(2) of the Treaty on the Functioning of the European Union to be interpreted as meaning that it is not contrary thereto for a Member State to regard, first, the collection and transport of waste and, secondly, the processing of waste as services in the general economic interest, but to separate those services from each other, thereby restricting free competition in the waste treatment market?

| (c) | In a procedure for the award of a concession for the service of collecting and transporting waste, a condition of which is that two undertakings are granted an exclusive right to treat waste in the area designated in the concession agreement, may the applicability of the provisions of competition law in the Treaty on the Functioning of the European Union be excluded? |
| --- | --- |

(c)

In a procedure for the award of a concession for the service of collecting and transporting waste, a condition of which is that two undertakings are granted an exclusive right to treat waste in the area designated in the concession agreement, may the applicability of the provisions of competition law in the Treaty on the Functioning of the European Union be excluded?

| (d) | Is Article 16(3) of Directive 2008/98/EC (1) of the European Parliament and of the Council of 19 November 2008 to be interpreted as meaning that a Member State may, on the basis of the principle of proximity, restrict competition and permit the undertaking operating the waste treatment facility nearest to the area in which the waste occurs to be granted an exclusive right to process the waste, in return for consideration, where a number of competing undertakings owning a number of different waste treatment facilities which satisfy the environmental requirements and use equivalent technologies are operating within a radius of 260 km? |
| --- | --- |

(d)

Is Article 16(3) of Directive 2008/98/EC (1) of the European Parliament and of the Council of 19 November 2008 to be interpreted as meaning that a Member State may, on the basis of the principle of proximity, restrict competition and permit the undertaking operating the waste treatment facility nearest to the area in which the waste occurs to be granted an exclusive right to process the waste, in return for consideration, where a number of competing undertakings owning a number of different waste treatment facilities which satisfy the environmental requirements and use equivalent technologies are operating within a radius of 260 km?

---

(1)  Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives (OJ 2008 L 312, p. 3).

---

| 11.8.2012 | EN | Official Journal of the European Union | C 243/10 |
| --- | --- | --- | --- |

11.8.2012

EN

Official Journal of the European Union

C 243/10

---

Appeal brought on 13 June 2012 by Telefónica S.A. and Telefónica de España, S.A.U. against the judgment of the General Court (Eighth Chamber) delivered on 29 March 2012 in Case T-336/07 Telefónica and Telefónica de España v Commission

(Case C-295/12 P)

2012/C 243/19

Language of the case: Spanish

Parties

Appellants: Telefónica S.A. and Telefónica de España, S.A.U. (represented by: F. González Díaz and J. Baño Fos, abogados)

Other parties to the proceedings: European Commission, France Telecom España, S.A., Asociación de Usuarios de Servicios Bancarios (Ausbanc Consumo) and European Competitive Telecommunications Association

Form of order sought

The appellants claim that the Court of Justice should:

| — | Primarily
  ,
  set aside, in its entirety or in part, the judgment of the General Court of 29 March 2012 in Case T-336/07 Telefónica and Telefónica de España v Commission;
  on the basis of the information at its disposal, annul, in its entirety or in part, the decision of the European Commission of 4 July 2007 in Case COMP/38.784 — Wanadoo España v Telefónica;
  revoke or reduce the fine pursuant to Article 261 TFEU;
  revoke or reduce the fine as a result of the unjustifiable duration of the proceedings before the General Court; and
  order the Commission and the parties intervening in support of the Commission to pay the costs of both these proceedings and those before the General Court. |
| --- | --- |

—

Primarily
  ,

set aside, in its entirety or in part, the judgment of the General Court of 29 March 2012 in Case T-336/07 Telefónica and Telefónica de España v Commission;

on the basis of the information at its disposal, annul, in its entirety or in part, the decision of the European Commission of 4 July 2007 in Case COMP/38.784 — Wanadoo España v Telefónica;

revoke or reduce the fine pursuant to Article 261 TFEU;

revoke or reduce the fine as a result of the unjustifiable duration of the proceedings before the General Court; and

order the Commission and the parties intervening in support of the Commission to pay the costs of both these proceedings and those before the General Court.

| — | In the alternative, if the above is not possible at this stage of the proceedings,


  set aside the judgment of the General Court and refer the case back to the General Court for it to be reheard in the light of the issues of law settled by the Court of Justice;
  revoke or reduce the fine pursuant to Article 261 TFEU; and
  order the Commission and the parties intervening in support of the Commission to pay the costs of both these proceedings and those before the General Court. |
| --- | --- |

—

In the alternative, if the above is not possible at this stage of the proceedings,

set aside the judgment of the General Court and refer the case back to the General Court for it to be reheard in the light of the issues of law settled by the Court of Justice;

revoke or reduce the fine pursuant to Article 261 TFEU; and

order the Commission and the parties intervening in support of the Commission to pay the costs of both these proceedings and those before the General Court.

| — | In any event,


  grant access, pursuant to Article 15 TFEU, to the transcript or recording of the oral hearing which took place before the General Court on 23 May 2011, and hold an oral hearing. |
| --- | --- |

—

In any event,

grant access, pursuant to Article 15 TFEU, to the transcript or recording of the oral hearing which took place before the General Court on 23 May 2011, and hold an oral hearing.

Grounds of appeal and main arguments

The appellants claim that the General Court:

| 1. | Infringed Telefónica’s rights of defence:






  — | as a result of the disproportionate duration of the proceedings; |
| --- | --- | --- |

1.

Infringed Telefónica’s rights of defence:

—

as a result of the disproportionate duration of the proceedings;

| — | by failing to admit claims supported by annexes; |
| --- | --- |

—

by failing to admit claims supported by annexes;

| — | by failing to admit claims relating to the fact that the inputs were not indispensable as a relevant factor when determining the effects of Telefónica’s conduct; |
| --- | --- |

—

by failing to admit claims relating to the fact that the inputs were not indispensable as a relevant factor when determining the effects of Telefónica’s conduct;

| — | by admitting new facts which were not included in the statement of objections. |
| --- | --- |

—

by admitting new facts which were not included in the statement of objections.

| 2. | Committed an error of law in its definition of the wholesale markets at issue. |
| --- | --- |

2.

Committed an error of law in its definition of the wholesale markets at issue.

| 3. | Committed an error of law in its assessment of the alleged dominant position of Telefónica. |
| --- | --- |

3.

Committed an error of law in its assessment of the alleged dominant position of Telefónica.

| 4. | Committed an error of law and infringed the European Convention of Human Rights by allowing the impairment of Telefónica’s property rights in relation to non-indispensable inputs. |
| --- | --- |

4.

Committed an error of law and infringed the European Convention of Human Rights by allowing the impairment of Telefónica’s property rights in relation to non-indispensable inputs.

| 5. | Committed an error of law and manifestly distorted the facts in its assessment of the abuse and its alleged effects on competition in relation to:






  — | The choice of wholesale inputs; |
| --- | --- | --- |

5.

Committed an error of law and manifestly distorted the facts in its assessment of the abuse and its alleged effects on competition in relation to:

—

The choice of wholesale inputs;

| — | The discounted cash flow method; |
| --- | --- |

—

The discounted cash flow method;

| — | The ‘period to period’ method; |
| --- | --- |

—

The ‘period to period’ method;

| — | The likely or concrete effects of the conduct. |
| --- | --- |

—

The likely or concrete effects of the conduct.

| 6. | Committed an error of law in its assessment of the Commission’s ultra vires actions and infringed the principles of subsidiarity, proportionality, legal certainty, loyal cooperation and sound administration. |
| --- | --- |

6.

Committed an error of law in its assessment of the Commission’s ultra vires actions and infringed the principles of subsidiarity, proportionality, legal certainty, loyal cooperation and sound administration.

| 7. | Infringed the principle of legal certainty in its definition of the type of legal infringement and erred in law in its assessment of the deliberate and negligent nature of Telefónica’s conduct. |
| --- | --- |

7.

Infringed the principle of legal certainty in its definition of the type of legal infringement and erred in law in its assessment of the deliberate and negligent nature of Telefónica’s conduct.

| 8. | Committed an error of law and manifestly distorted the facts in calculating the amount of the fine, in, inter alia,






  — | characterising the conduct as a very serious infringement; |
| --- | --- | --- |

8.

Committed an error of law and manifestly distorted the facts in calculating the amount of the fine, in, inter alia,

—

characterising the conduct as a very serious infringement;

| — | its assessment of the infringement of the principles of equal treatment and proportionality and the principle that penalties must fit the offence; and |
| --- | --- |

—

its assessment of the infringement of the principles of equal treatment and proportionality and the principle that penalties must fit the offence; and

| — | failing to provide grounds. |
| --- | --- |

—

failing to provide grounds.

| 9. | Infringed Article 229 EC (now Article 261 TFEU). |
| --- | --- |

9.

Infringed Article 229 EC (now Article 261 TFEU).

---

General Court

| 11.8.2012 | EN | Official Journal of the European Union | C 243/12 |
| --- | --- | --- | --- |

11.8.2012

EN

Official Journal of the European Union

C 243/12

---

Judgment of the General Court of 27 June 2012 — Coats Holdings v Commission

(Case T-439/07) (1)

(Competition - Agreements, decisions and concerted practices - Markets for zip fasteners and ‘other fasteners’ - Decision finding an infringement of Article 81 EC - Coordinated price increases, fixing of minimum prices, customer-sharing, market-sharing and exchange of other commercial information - Evidence - Single and continuous infringement - Limitation period - Rights of the defence - Fines - Guidelines)

2012/C 243/20

Language of the case: English

Parties

Applicant: Coats Holdings Ltd (Uxbridge, Middlesex (United Kingdom)) (represented by: W. Sibree, C. Jeffs, K. O’Connell, and J. Boyce, Solicitors, and D. Anderson QC)

Defendant: European Commission (represented by: F. Castillo de la Torre and K. Mojzesowicz, acting as Agents)

Re:

Application for, primarily, annulment of Commission Decision C(2007) 4257 final of 19 September 2007 relating to a proceeding under Article 81 [EC] (Case COMP/39.168 — PO/Hard Haberdashery: Fasteners) in so far as it concerns the applicant and, in the alternative, annulment or reduction of the fine imposed on the applicant

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Coats Holdings Ltd to pay the costs. |
| --- | --- |

2.

Orders Coats Holdings Ltd to pay the costs.

---

(1)  OJ C 37, 9.2.2008.

---

| 11.8.2012 | EN | Official Journal of the European Union | C 243/12 |
| --- | --- | --- | --- |

11.8.2012

EN

Official Journal of the European Union

C 243/12

---

Judgment of the General Court of 27 June 2012 — Berning & Söhne v Commission

(Case T-445/07) (1)

(Competition - Agreements and concerted practices - Markets in zip fasteners and ‘other fasteners’ and attaching machines - Decision finding an infringement of Article 81 EC - Coordinated price increases, fixing of minimum prices, sharing of customers and of markets and exchange of other business information - Proof - Rights of the defence - Single and continuing infringement - Time-bar - Fines - Duration and gravity of the infringement - Mitigating circumstances - Equal treatment - Proportionality)

2012/C 243/21

Language of the case: German

Parties

Applicant: Berning & Söhne GmbH & Co. KG (Wuppertal, Germany) (represented by: P. Niggemann and K. Gaßner, lawyers)

Defendant: European Commission (represented by: K. Mojzesowicz and R. Sauer, agents)

Re:

Application for annulment of Commission Decision C(2007) 4257 final of 19 September 2007 relating to a proceeding under Article 81 [EC] (Case COMP/39.168 — PO/Hard Haberdashery: Fasteners) or, in the alternative, reduction of the amount of the fine imposed on the applicant by that decision.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Berning & Söhne GmbH & Co. KG to pay the costs. |
| --- | --- |

2.

Orders Berning & Söhne GmbH & Co. KG to pay the costs.

---

(1)  OJ C 37, 9.2.2008.

---

| 11.8.2012 | EN | Official Journal of the European Union | C 243/13 |
| --- | --- | --- | --- |

11.8.2012

EN

Official Journal of the European Union

C 243/13

---

Judgment of the General Court of 27 June 2012 — YKK and Others v Commission

(Case T-448/07) (1)

(Competition - Agreements, decisions and concerted practices - Markets for zip fasteners and ‘other fasteners’, and for attaching machines - Decision finding an infringement of Article 81 EC - Coordinated price increases, fixing of minimum prices, customer-sharing, market-sharing and exchange of other commercial information - Single and continuous infringement - Evidence - Nature and implementation of the infringement - Real impact - Leniency Notice - Fines - Upper limit - Dissuasive effect of the fine - Equal treatment - Proportionality)

2012/C 243/22

Language of the case: English

Parties

Applicants: YKK Corp. (Tokyo, Japan), YKK Holding Europe BV (Sneek, Netherlands), YKK Stocko Fasteners GmbH (Wuppertal, Germany) (represented initially by H. Kaneko and C. Verannemann, lawyers, and subsequently by H. Kaneko, G. Williamson, Solicitor, and N. Green QC,

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

Re:

Application for, primarily, annulment of Commission Decision C(2007) 4257 final of 19 September 2007 relating to a proceeding under Article 81 [EC] (Case COMP/39.168 — PO/Hard Haberdashery: Fasteners) in so far as it concerns the applicants and, in the alternative, annulment or reduction of their respective fines

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders YKK Corp., YKK Holding Europe BV and YKK Stocko Fasteners GmbH to pay the costs. |
| --- | --- |

2.

Orders YKK Corp., YKK Holding Europe BV and YKK Stocko Fasteners GmbH to pay the costs.

---

(1)  OJ C 51, 23.2.2008.

---

| 11.8.2012 | EN | Official Journal of the European Union | C 243/13 |
| --- | --- | --- | --- |

11.8.2012

EN

Official Journal of the European Union

C 243/13

---

Judgment of the General Court of 5 July 2012 — Greece v Commission

(Case T-86/08) (1)

(EAGGF - Guarantee Section - Expenditure excluded from financing - Fruit and vegetables - Rural development - Non-compliance with payment deadlines - Compliance with a judgment of the Court - Authority of res judicata - Time-limit of 24 months - Principle of proportionality)

2012/C 243/23

Language of the case: Greek

Parties

Applicant: Hellenic Republic (represented: initially by V. Kontolaimos, S. Charitaki and M. Tassopoulou and subsequently by M. Tassopoulou and I. Chalkias and K. Tsagkaropoulos, acting as Agents)

Defendant: European Commission (represented by: H. Tserepa-Lacombe, acting as Agent, and P. Katsimani, lawyers)

Re:

Application for annulment of Commission Decision 2008/68/EC of 20 December 2007 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) (OJ 2008 L 18, p. 12) in so far as it relates to certain expenditure incurred by the Hellenic Republic.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

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

2.

Orders the Hellenic Republic to pay the costs.

---

(1)  OJ C 142, 7.6.2008.

---

| 11.8.2012 | EN | Official Journal of the European Union | C 243/13 |
| --- | --- | --- | --- |

11.8.2012

EN

Official Journal of the European Union

C 243/13

---

Judgment of the General Court of 27 June 2012 — Microsoft v Commission

(Case T-167/08) (1)

(Competition - Abuse of dominant position - Client PC operating systems - Work group server operating systems - Refusal of the dominant undertaking to supply and authorise the use of interoperability information - Fulfilment of obligations under a decision finding an infringement and imposing behavioural measures - Periodic penalty payment)

2012/C 243/24

Language of the case: English

Parties

Applicant: Microsoft Corp. (Redmond, Washington, United States) (represented by: J.-F. Bellis, lawyer, and I. Forrester QC)

Defendant: European Commission (represented by: T. Christoforou, V. Di Bucci, F. Castillo de la Torre and N. Khan, acting as Agents)

Interveners in support of the applicant: The Computing Technology Industry Association, Inc., (Oakbrook Terrace, Illinois, United States) (represented by: G. van Gerven and T. Franchoo, lawyers); and Association for Competitive Technology, Inc., (Washington DC, United States) (represented: initially by D. Went and H. Pearson, Solicitors and subsequently by H. Mercer QC)

Interveners in support of the defendant: Free Software Foundation Europe eV, (Hamburg, Germany) and Samba Team (New York, New York, United States) (represented by: C. Piana and T. Ballarino, lawyers), Software & Information Industry Association (Washington DC) (represented by: T. Vinje and D. Dakanalis, Solicitors, and A. Tomtsis, lawyer), European Committee for Interoperable Systems (ECIS), (Brussels, Belgium) (represented by: T. Vinje, Solicitor, and M. Dolmans, N. Dodoo and A. Ferti, lawyers), International Business Machines Corp., (Armonk, New York, United States) (represented by: M. Dolmans and T. Graf, lawyers), Red Hat Inc. (Wilmington, Delaware, United States) (represented by C.-D. Ehlermann and S. Völcker, lawyers and C. O’Daly, Solicitor), and Oracle Corp., (Redwood Shores, California, United States), (represented by: T. Vinje, Solicitor and D. Paemen, lawyer)

Re:

Application for annulment of Commission Decision C(2008) 764 final of 27 February 2008 fixing the definitive amount of the periodic penalty payment imposed on Microsoft Corp. by Decision C(2005) 4420 final (Case COMP/C-3/37.792 — Microsoft) and, in the alternative, cancellation or reduction of the periodic penalty payment imposed on the applicant in that decision

Operative part of the judgment

The Court:

| 1. | Fixes the amount of the periodic penalty payment imposed on Microsoft Corp. in Article 1 of Commission Decision C(2008) 764 final of 27 February 2008 fixing the definitive amount of the periodic penalty payment imposed on Microsoft Corp. by Decision C(2005) 4420 final (Case COMP/C-3/37.792 — Microsoft) at EUR 860 million; |
| --- | --- |

1.

Fixes the amount of the periodic penalty payment imposed on Microsoft Corp. in Article 1 of Commission Decision C(2008) 764 final of 27 February 2008 fixing the definitive amount of the periodic penalty payment imposed on Microsoft Corp. by Decision C(2005) 4420 final (Case COMP/C-3/37.792 — Microsoft) at EUR 860 million;

| 2. | Orders Microsoft to bear its own costs and to pay 95 % of the costs incurred by the European Commission, excluding the costs incurred by the Commission in connection with the intervention of The Computing Technology Industry Association, Inc. and the Association for Competitive Technology, Inc., and 80 % of the costs incurred by the Free Software Foundation Europe eV and Samba Team, the Software & Information Industry Association, the European Committee for Interoperable Systems, International Business Machines Corp., Red Hat Inc. and Oracle Corp.; |
| --- | --- |

2.

Orders Microsoft to bear its own costs and to pay 95 % of the costs incurred by the European Commission, excluding the costs incurred by the Commission in connection with the intervention of The Computing Technology Industry Association, Inc. and the Association for Competitive Technology, Inc., and 80 % of the costs incurred by the Free Software Foundation Europe eV and Samba Team, the Software & Information Industry Association, the European Committee for Interoperable Systems, International Business Machines Corp., Red Hat Inc. and Oracle Corp.;

| 3. | Orders the Commission to bear 5 % of its own costs, with the exception of the costs incurred in connection with the intervention of The Computing Technology Industry Association and the Association for Competitive Technology; |
| --- | --- |

3.

Orders the Commission to bear 5 % of its own costs, with the exception of the costs incurred in connection with the intervention of The Computing Technology Industry Association and the Association for Competitive Technology;

| 4. | Orders The Computing Technology Industry Association and the Association for Competitive Technology each to bear their own costs including those incurred by the Commission in connection with their intervention; |
| --- | --- |

4.

Orders The Computing Technology Industry Association and the Association for Competitive Technology each to bear their own costs including those incurred by the Commission in connection with their intervention;

| 5. | Orders the Free Software Foundation Europe and Samba Team, the Software & Information Industry Association, the European Committee for Interoperable Systems, International Business Machines, Red Hat and Oracle to bear 20 % of their own costs. |
| --- | --- |

5.

Orders the Free Software Foundation Europe and Samba Team, the Software & Information Industry Association, the European Committee for Interoperable Systems, International Business Machines, Red Hat and Oracle to bear 20 % of their own costs.

---

(1)  OJ C 171, 5.7.2008.

---

| 11.8.2012 | EN | Official Journal of the European Union | C 243/14 |
| --- | --- | --- | --- |

11.8.2012

EN

Official Journal of the European Union

C 243/14

---

Judgment of the General Court of 28 June 2012 — I Marchi Italiani and Basile v OHIM — Osra (B. Antonio Basile 1952)

(Case T-133/09) (1)

(Community trade mark - Invalidity proceedings - Community figurative mark B. Antonio Basile 1952 - Earlier national word mark BASILE - Relative ground for refusal - Limitation in consequence of acquiescence - Article 53(2) of Regulation (EC) No 40/94 (now Article 54(2) of Regulation (EC) No 207/2009) - Likelihood of confusion - Article 8(1) of Regulation No 40/94 (now Article 8(1) of Regulation No 207/2009)

2012/C 243/25

Language of the case: Italian

Parties

Applicants: I Marchi Italiani Srl (Naples, Italy) and Antonio Basile (Giugliano in Campania, Italy); (represented by: G. Militerni, L. Militerni and F. Gimmelli, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented: initially by A. Sempio and subsequently by P. Bullock, acting as Agents)

Other party to the proceedings before the Board of Appeal of OHIM, intervening before the General Court: Osra SA (Rovereta, Saint-Marin) (represented by: A. Masetti Zannini de Concina, R. Cartella and G. Petrocchi, lawyers)

Re:

Action brought against the Decision of the Second Board of Appeal of OHIM of 9 January 2009 (Case R 502/2008-2) relating to invalidity proceedings between Osra SA and M. Antonio Basile.

Operative part of the judgment

The Court:

| 1. | Removes the name of the second applicant, Antonio Basile, from the list of applicants in Case T-133/09; |
| --- | --- |

1.

Removes the name of the second applicant, Antonio Basile, from the list of applicants in Case T-133/09;

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

2.

Dismisses the action;

| 3. | Orders I Marchi Italiani Srl to pay the costs, other than those relating to the discontinuance; |
| --- | --- |

3.

Orders I Marchi Italiani Srl to pay the costs, other than those relating to the discontinuance;

| 4. | Orders Mr Basile to bear his own costs. |
| --- | --- |

4.

Orders Mr Basile to bear his own costs.

---

(1)  OJ C 141, 20.6.2009.

---

| 11.8.2012 | EN | Official Journal of the European Union | C 243/15 |
| --- | --- | --- | --- |

11.8.2012

EN

Official Journal of the European Union

C 243/15

---

Judgment of the General Court of 28 June 2012 — Basile and I Marchi Italiani v OHIM (B. Antonio Basile 1952)

(Case T-134/09) (1)

(Community trade mark - Invalidity proceedings - Community figurative mark B. Antonio Basile 1952 - Earlier national word mark BASILE - Relative ground for refusal - Limitation in consequence of acquiescence - Article 53(2) of Regulation (EC) No 40/94 (now Article 54(2) of Regulation (EC) No 207/2009) - Likelihood of confusion - Article 8(1) of Regulation No 40/94 (now Article 8(1) of Regulation No 207/2009)

2012/C 243/26

Language of the case: Italian

Parties

Applicants: Antonio Basile (Giugliano in Campania, Italy); and I Marchi Italiani Srl (Naples, Italy) (represented by: G. Militerni, L. Militerni and F. Gimmelli, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented: initially by A. Sempio, and subsequently by P. Bullock, acting as Agents)

Other party to the proceedings before the Board of Appeal of OHIM, intervening before the General Court: Osra SA (Rovereta, Saint-Marin) (represented by: A. Masetti Zannini de Concina, R. Cartella and G. Petrocchi, lawyers)

Re:

Action brought against the Decision of the Second Board of Appeal of OHIM of 9 January 2009 (Case R 1436/2007-2) relating to invalidity proceedings between Osra SA and M. Antonio Basile.

Operative part of the judgment

The Court:

| 1. | Removes the name of the second applicant, I Marchi Italiani Srl, from the list of applicants in Case T-134/09; |
| --- | --- |

1.

Removes the name of the second applicant, I Marchi Italiani Srl, from the list of applicants in Case T-134/09;

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

2.

Dismisses the action;

| 3. | Orders Mr Antonio Basile to pay the costs, other than those relating to the discontinuance; |
| --- | --- |

3.

Orders Mr Antonio Basile to pay the costs, other than those relating to the discontinuance;

| 4. | Orders I Marchi Italiani Srl to bear its own costs. |
| --- | --- |

4.

Orders I Marchi Italiani Srl to bear its own costs.

---

(1)  OJ C 141, 20.6.2009.

---

| 11.8.2012 | EN | Official Journal of the European Union | C 243/15 |
| --- | --- | --- | --- |

11.8.2012

EN

Official Journal of the European Union

C 243/15

---

Judgment of the General Court of 3 July 2012 — Denmark v Commission

(Case T-212/09) (1)

(EAGGF - Guarantee Section - Expenditure excluded from financing - Arable crops - Setting aside of land)

2012/C 243/27

Language of the case: Danish

Parties

Applicant: Kingdom of Denmark (represented initially by: J. Bering Liisberg, and subsequently by: V. Pasternak Jorgensen, acting as Agents, and by P. Biering and J. Pinborg, lawyers)

Defendant: European Commission (represented initially by: N. Rasmussen and F. Jimeno Fernández; and subsequently by F. Jimeno Fernández, acting as Agents, and by T. Ryhl, lawyer)

Re:

Annulment in part of Commission Decision 2009/253/EC of 19 March 2009 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) and under the European Agricultural Guarantee Fund (EAGF) (OJ 2009 L 75, p. 15), in so far as it excludes from Community financing certain expenditure incurred by the Kingdom of Denmark in respect of the setting aside of land

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

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

2.

Orders each party to bear its own costs.

---

(1)  OJ C 193, 15.8.2009.

---

| 11.8.2012 | EN | Official Journal of the European Union | C 243/15 |
| --- | --- | --- | --- |

11.8.2012

EN

Official Journal of the European Union

C 243/15

---

Judgment of the General Court of 29 June 2012 — E.ON Ruhrgas and E.ON v Commission

(Case T-360/09) (1)

(Competition - Agreements, decisions and concerted practices - German and French markets for natural gas - Decision finding an infringement of Article 81 EC - Market sharing - Duration of the infringement - Fines)

2012/C 243/28

Language of the case: German

Parties

Applicants: E.ON Ruhrgas AG (Essen, Germany), and E.ON AG (Düsseldorf, Germany) (represented by: G. Wiedemann and T. Klose, lawyers)

Defendant: European Commission (represented by: V. Di Bucci, A. Bouquet and R. Sauer, acting as Agents, assisted by M. Buntscheck, lawyer)

Re:

Application for annulment of Commission Decision C(2009) 5355 final of 8 July 2009 relating to a proceeding under Article 81 [EC] (Case COMP/39.401 — E.ON/GDF), and, in the alternative, for a reduction in the amount of the fine imposed on the applicants

Operative part of the judgment

The Court:

| 1. | Annuls Article 1 of Commission Decision C(2009) 5355 final of 8 July 2009 relating to a proceeding under Article 81 [EC] (Case COMP/39.401 — E.ON/GDF), first, inasmuch as it found that the duration of the infringement was from 1 January 1980 until at least 24 April 1998 as regards the infringement committed in Germany and, secondly, inasmuch as it found that an infringement was committed in France from 13 August 2004 to 30 September 2005; |
| --- | --- |

1.

Annuls Article 1 of Commission Decision C(2009) 5355 final of 8 July 2009 relating to a proceeding under Article 81 [EC] (Case COMP/39.401 — E.ON/GDF), first, inasmuch as it found that the duration of the infringement was from 1 January 1980 until at least 24 April 1998 as regards the infringement committed in Germany and, secondly, inasmuch as it found that an infringement was committed in France from 13 August 2004 to 30 September 2005;

| 2. | Sets the amount of the fine imposed on E.ON Ruhrgas AG and E.ON AG in Article 2(a) of Decision C(2009) 5355 final at EUR 320 million; |
| --- | --- |

2.

Sets the amount of the fine imposed on E.ON Ruhrgas AG and E.ON AG in Article 2(a) of Decision C(2009) 5355 final at EUR 320 million;

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

3.

Dismisses the action as to the remainder;

| 4. | Orders each party to bear its own costs. |
| --- | --- |

4.

Orders each party to bear its own costs.

---

(1)  OJ C 282, 21.11.2009.

---

| 11.8.2012 | EN | Official Journal of the European Union | C 243/16 |
| --- | --- | --- | --- |

11.8.2012

EN

Official Journal of the European Union

C 243/16

---

Judgment of the General Court of 29 June 2012 — GDF Suez v Commission

(Case T-370/09) (1)

(Competition - Agreements, decisions and concerted practices - German and French markets for natural gas - Decision finding an infringement of Article 81 EC - Market sharing - Duration of the infringement - Fines)

2012/C 243/29

Language of the case: French

Parties

Applicant: GDF Suez (Paris, France) (represented by: J. P. Gunther and C. Breuvart, lawyers)

Defendant: European Commission (represented by: V. Di Bucci, A. Bouquet and R. Sauer, Agents)

Re:

Application for partial annulment of Commission Decision C(2009) 5355 final of 8 July 2009 relating to a proceeding under Article 81 [EC] (Case COMP/39.401 — E.ON/GDF), and, in the alternative, for annulment or reduction of the fine imposed on the applicant.

Operative part of the judgment

The Court:

| 1. | Annuls Article 1 of Commission Decision C(2009) 5355 final of 8 July 2009 relating to a proceeding under Article 81 [EC] (Case COMP/39.401 — E.ON/GDF), first, inasmuch as it found that the duration of the infringement was from 1 January 1980 until at least 24 April 1998 as regards the infringement committed in Germany and, secondly, inasmuch as it found that an infringement was committed in France from 13 August 2004 to 30 September 2005; |
| --- | --- |

1.

Annuls Article 1 of Commission Decision C(2009) 5355 final of 8 July 2009 relating to a proceeding under Article 81 [EC] (Case COMP/39.401 — E.ON/GDF), first, inasmuch as it found that the duration of the infringement was from 1 January 1980 until at least 24 April 1998 as regards the infringement committed in Germany and, secondly, inasmuch as it found that an infringement was committed in France from 13 August 2004 to 30 September 2005;

| 2. | Sets the amount of the fine imposed on GDF Suez SA in Article 2(b) of Decision C(2009) 5355 final at EUR 320 million; |
| --- | --- |

2.

Sets the amount of the fine imposed on GDF Suez SA in Article 2(b) of Decision C(2009) 5355 final at EUR 320 million;

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

3.

Dismisses the action as to the remainder;

| 4. | Orders each party to bear its own costs. |
| --- | --- |

4.

Orders each party to bear its own costs.

---

(1)  OJ C 282, 21.11.2009.

---

| 11.8.2012 | EN | Official Journal of the European Union | C 243/16 |
| --- | --- | --- | --- |

11.8.2012

EN

Official Journal of the European Union

C 243/16

---

Judgment of the General Court of 5 July 2012 — Comercial Losan v OHIM — McDonald’s International Property (Mc. Baby)

(Case T-466/09) (1)

(Community trade mark - Opposition proceedings - Application for the Community figurative mark Mc. Baby - Earlier Community figurative mark Mc Kids. always quality. always fun! - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009)

2012/C 243/30

Language of the case: Spanish

Parties

Applicant: Comercial Losan, SLU (Zaragoza, Spain) (represented by: A. Vela Ballesteros, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM intervening before the General Court: McDonald’s International Property Co. Ltd (Wilmington, Delaware, United States)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 1 September 2009 (Case R 1706/2008-1) concerning opposition proceedings between McDonald’s International Property Co. Ltd and Comercial Losan, SLU.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Comercial Losan, SLU to pay the costs. |
| --- | --- |

2.

Orders Comercial Losan, SLU to pay the costs.

---

(1)  OJ C 24, 30.1.2010.

---

| 11.8.2012 | EN | Official Journal of the European Union | C 243/17 |
| --- | --- | --- | --- |

11.8.2012

EN

Official Journal of the European Union

C 243/17

---

Judgment of the General Court of 5 July 2012 — Deutscher Ring v OHIM (Deutscher Ring Sachversicherungs-AG)

(Case T-209/10) (1)

(Community trade mark - Application for Community word mark Deutscher Ring Sachversicherungs-AG - Absolute grounds for refusal - Descriptive character - Distinctive character - Article 7(1)(b) and (c) of Regulation (EC) No 207/2009)

2012/C 243/31

Language of the case: German

Parties

Applicant: Deutscher Ring Sachversicherungs-AG (Hamburg, Germany) (represented by: E. Busse, lawyer)

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

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 11 March 2010 (Case R 1290/2009-1) concerning an application for registration of the word mark Deutscher Ring Sachversicherungs-AG as a Community trade mark.

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 11 March 2010 (Case R 1290/2009-1); |
| --- | --- |

1.

Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 11 March 2010 (Case R 1290/2009-1);

| 2. | Orders OHIM to pay the costs. |
| --- | --- |

2.

Orders OHIM to pay the costs.

---

(1)  OJ C 179, 3.7.2010.

---

| 11.8.2012 | EN | Official Journal of the European Union | C 243/17 |
| --- | --- | --- | --- |

11.8.2012

EN

Official Journal of the European Union

C 243/17

---

Order of the General Court of 28 June 2012 — Constellation Brands v OHIM (COOK’S)

(Case T-314/10) (1)

(Community trade mark - Word mark COOK’S - Failure to apply for renewal of the mark - Cancellation of the mark upon expiry of the registration - Application for restitutio in integrum - Article 81 of Regulation (EC) No 207/2009)

2012/C 243/32

Language of the case: English

Parties

Applicant: Constellation Brands, Inc. (Fairport, United States of America) (represented by: B. Brandreth, Barrister)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: D. Botis and V. Melgar, acting as Agents)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 29 April 2010 (Case R 1048/2009-1) in so far as it dismissed the application for restitutio in integrum

Operative part of the order

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

1.

Dismisses the action.

| 2. | Orders Constellation Brands, Inc., to pay the costs. |
| --- | --- |

2.

Orders Constellation Brands, Inc., to pay the costs.

---

(1)  OJ C 260, 25.9.2010.

---

| 11.8.2012 | EN | Official Journal of the European Union | C 243/17 |
| --- | --- | --- | --- |

11.8.2012

EN

Official Journal of the European Union

C 243/17

---

Judgment of the General Court of 27 June 2012 — Interkobo v OHIM — XXXLutz Marken (my baby)

(Case T-523/10) (1)

(Community trade mark - Opposition proceedings - Application for Community figurative mark my baby - Earlier national and international word marks MYBABY and earlier national figurative mark mybaby - Relative ground for refusal - Failure to produce evidence in the language of the opposition proceedings - Legitimate expectation - Rules 19(3), 20(1) and 98(1) of Regulation (EC) No 2868/95)

2012/C 243/33

Language of the case: German

Parties

Applicant: Interkobo sp. z o.o. (Łódź (Poland)) (represented by: R. Skubisz and K. Ziemski, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM intervening before the General Court: XXXLutz Marken GmbH (Wels (Austria)) (represented by: H. Pannen, lawyer)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 8 September 2010 (Case R 88/2009-4) relating to opposition proceedings between Interkobo sp. Z o.o. and XXXLutz Marken GmbH

Operative part of the order

The Court:

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

1.

Dismisses the action;

| 2. | Orders Interkobo sp. z o.o. to pay the costs. |
| --- | --- |

2.

Orders Interkobo sp. z o.o. to pay the costs.

---

(1)  OJ C 13, 15.1.2011.

---

| 11.8.2012 | EN | Official Journal of the European Union | C 243/18 |
| --- | --- | --- | --- |

11.8.2012

EN

Official Journal of the European Union

C 243/18

---

Judgment of the General Court of 3 July 2012 — Marcuccio v Commission

(Case T-594/10 P) (1)

(Appeal - Civil service - Officials - Social security - Reimbursement of medical expenses - Acts adversely affecting the applicant - Implied refusal)

2012/C 243/34

Language of the case: Italian

Parties

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

Other party to the proceedings: European Commission (represented by: J. Currall and C. Berardis-Kayser, Agents, and A. Dal Ferro, lawyer)

Re:

Appeal against the order of the Civil Service Tribunal of the European Union (First Chamber) of 6 October 2010 in Case F-2/10 Marcuccio v Commission, not published in the ECR, seeking the setting aside of that order.

Operative part of the judgment

The Court:

| 1. | Sets aside the order of the Civil Service Tribunal of the European Union (First Chamber) of 6 October 2010 in Case F-2/10 Marcuccio v Commission, not published in the ECR. |
| --- | --- |

1.

Sets aside the order of the Civil Service Tribunal of the European Union (First Chamber) of 6 October 2010 in Case F-2/10 Marcuccio v Commission, not published in the ECR.

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

2.

Refers the case back to the Civil Service Tribunal.

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

3.

Reserves the costs.

---

(1)  OJ C 55, 19.2.2011.

---

| 11.8.2012 | EN | Official Journal of the European Union | C 243/18 |
| --- | --- | --- | --- |

11.8.2012

EN

Official Journal of the European Union

C 243/18

---

Judgment of the General Court of (Fifth Chamber) of 4 July 2012 — Laboratoires CTRS v Commission

(Case T-12/12) (1)

(Medicinal products for human use - Marketing authorisation for the medicinal product Orphacol - Letter informing the applicant of the Commission’s intention to refuse authorisation - Application for a declaration of failure to act - Definition of position by the Commission - Inadmissibility - Application for annulment - Adoption of a new decision - No need to adjudicate)

2012/C 243/35

Language of the case: English

Parties

Applicant: Laboratoires CTRS (Boulogne-Billancourt, France) (represented by: K. Bacon, Barrister, M. Utges Manley and M. Barnden, Solicitors)

Defendant: European Commission (represented by: E. White and L. Banciella, acting as Agents)

Interveners in support of the applicant: Czech Republic (represented by: M. Smolek and D. Hadroušek, acting as Agents), French Republic (represented by: G. de Bergues, acting as Agent), and by United Kingdom of Great Britain and Northern Ireland (represented: initially by E. Jenkinson and S. Ossowski, and subsequently by E. Jenkinson and H. Walker, acting as Agents, and by J. Holmes, Barrister)

Re:

Application for a declaration that the Commission failed to act in unlawfully failing to adopt a final decision in relation to the applicant’s application for a marketing authorisation for the medicinal product Orphacol, and, in the alternative, for annulment of the decision, allegedly contained in the Commission’s letter of 5 December 2011, not to grant that authorisation to the applicant

Operative part of the judgment

The Court:

| 1. | Dismisses the application for a declaration of failure to act as inadmissible; |
| --- | --- |

1.

Dismisses the application for a declaration of failure to act as inadmissible;

| 2. | Rules that there is no longer any need to adjudicate on the application for annulment submitted in the alternative; |
| --- | --- |

2.

Rules that there is no longer any need to adjudicate on the application for annulment submitted in the alternative;

| 3. | Orders the European Commission to bear its own costs and to pay those incurred by Laboratoires CTRS; |
| --- | --- |

3.

Orders the European Commission to bear its own costs and to pay those incurred by Laboratoires CTRS;

| 4. | Orders the Czech Republic, the French Republic and the United Kingdom of Great Britain and Northern Ireland to bear their own respective costs. |
| --- | --- |

4.

Orders the Czech Republic, the French Republic and the United Kingdom of Great Britain and Northern Ireland to bear their own respective costs.

---

(1)  OJ C 58, 25.2.2012.

---

| 11.8.2012 | EN | Official Journal of the European Union | C 243/19 |
| --- | --- | --- | --- |

11.8.2012

EN

Official Journal of the European Union

C 243/19

---

Action brought on 18 May 2012 — Technion and Technion Research & Development Foundation v Commission

(Case T-216/12)

2012/C 243/36

Language of the case: French

Parties

Applicants: Technion — Israel Institute of Technology (Haïfa, Israel) and Technion Research & Development Foundation Ltd (Haïfa) (represented by: D. Grisay, lawyer)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

| — | admit this action for annulment based on Article 263 of the Treaty on the Functioning of the European Union; |
| --- | --- |

—

admit this action for annulment based on Article 263 of the Treaty on the Functioning of the European Union;

| — | declare it to be admissible, and |
| --- | --- |

—

declare it to be admissible, and

| — | primarily, declare the action well-founded and annul the decision for compensation of the Commission, Directorate General of Information Society and Media, contained in its letter of 13 March 2012, directed against TECHNION; |
| --- | --- |

—

primarily, declare the action well-founded and annul the decision for compensation of the Commission, Directorate General of Information Society and Media, contained in its letter of 13 March 2012, directed against TECHNION;

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

—

order the European Commission to pay the costs.

Pleas in law and main arguments

In support of the action, the applicants rely on two pleas in law which are essentially identical or similar to those put forward in Case T-657/11 Technion and Technion Research & Development Foundation v Commission. (1)

---

(1)  OJ 2012 C 73, p. 28.

---

| 11.8.2012 | EN | Official Journal of the European Union | C 243/19 |
| --- | --- | --- | --- |

11.8.2012

EN

Official Journal of the European Union

C 243/19

---

Action brought on 23 May 2012 — Accorinti and Others v ECB

(Case T-224/12)

2012/C 243/37

Language of the case: Italian

Parties

Applicants: Alessandro Accorinti (Nichelino, Italy) Michael Acherer (Bressanone, Italy), Giuliano Agostinetti (Mestre, Italy), Marco Alagna (Milan, Italy), Riccardo Alagna (Milan, Italy), Agostino Amalfitano (Forio, Italy), Emanuela Amsler (Turin, Italy), Francine Amsler (Turin, Italy), Alessandro Anelli (Bellinzago Novarese, Italy), Angelo Giovanni Angione (Potenza, Italy), Giancarlo Antonelli (Verona, Italy), Giuseppe Aronica (Licata, Italy), Elisa Arsenio (Sesto San Giovanni, Italy), Pasquale Arsenio (Sesto San Giovanni, Italy), Luigi Azzano (Concordia Sagittaria, Italy), Giovanni Baglivo (Lecce, Italy), Stefano Baldoni (Matera, Italy), Giulio Ballini (Lonato, Italy), Antonino Barbara (Naples, Italy), Armida Baron (Cassola, Italy), Paolo Baroni (Rome, Italy), Lucia Benassi (Scandiano, Italy), Michele Benelli (Madignano, Italy), Erich Bernard (Lana, Italy), Flaminia Berni (Rome, Italy), Adriano Bianchi (Omegna, Italy), Massimiliano Bigi (Montecchio Emilia, Italy), Daniele Fabrizio Bignami (Milan, Italy), Sergio Borghesi (Coredo, Italy), Borghesi Srl (Cles, Italy), Sergio Bovini (Cogoleto, Italy), Savino Brizzi (Turin, Italy), Annunziata Brum (Badiola, Italy), Christina Brunner (Laives, Italy), Giovanni Busso (Caselette, Italy), Fabio Edoardo Cacciuttolo (Milan, Italy), Vincenzo Calabrò (Rome, Italy), Carlo Cameranesi (Ancona, Italy), Giuseppe Campisciano (Besana in Brianza, Italy), Allegra Canepa (Pisa, Italy), Luca Canonaco (Como, Italy), Piero Cantù (Vimercate, Italy), Fabio Capelli (Tortona, Italy), Gianluca Capello (Sanremo, Italy), Sergio Capello (Sanremo, Italy), Mario Carchini (Carrara, Italy), Filippo Carosi (Rome, Italy), Elena Carra (Rome, Italy), Claudio Carrara (Nembro, Italy), Ivan Michele Casarotto (Verona, Italy), Anna Maria Cavagnetto (Turin, Italy), Gabriele Lucio Cazzulani (Segrate, Italy), Davide Celli (Rimini, Italy), Antonio Cerigato (Ferrara, Italy), Paolo Enrico Chirichilli (Rome, Italy), Celestino Ciocca (Rome, Italy), Mariagiuseppa Civale (Milan, Italy), Roberto Colicchio (Milan, Italy), Edoardo Colli (Trieste, Italy), Nello Paolo Colombo (Casatenovo, Italy), Mario Concini (Tuenno, Italy), Marika Congestrì (S. Onofrio, Italy), Luigi Corsini (Pistoia, Italy), Maria Chiara Corsini (Genoa, Italy), Aniello Cucurullo (Civitavecchia, Italy), Roberto Cugola (Melara, Italy), Roberto Cupioli (Rimini, Italy), Giuseppe D’Acunto (Lucca — S. Anna, Italy), Stefano D’Andrea (Ancona, Italy), Nazzareno D’Amici (Rome, Italy), Michele Damelon (Gruaro, Italy), Piermaria Carlo Davoli (Milan, Italy), Iole De Angelis (Rome, Italy), Roberto De Pieri (Treviso, Italy), Stefano De Pieri (Martellago, Italy), Ario Deasti (Sanremo, Italy), Stefano Marco Debernardi (Aosta, Italy), Gianfranco Del Mondo (Casoria, Italy), Salvatore Del Mondo (Gaeta, Italy), Gianmaria Dellea (Castelveccana, Italy), Gianmarco Di Luigi (Sant’Antimo, Italy), Alessandro Di Tomizio (Reggello, Italy), Donata Dibenedetto (Altamura, Italy), Angela Dolcini (Pavia, Italy), Denis Dotti (Milan, Italy), Raffaele Duino (San Martino Buon Albergo, Italy), Simona Elefanti (Montecchio Emilia, Italy), Maurizio Elia (Rome, Italy), Claudio Falzoni (Besnate, Italy), Enrico Maria Ferrari (Rome, Italy), Giuseppe Ferraro (Pago Vallo Lauro, Italy), Fiduciaria Cavour Srl (Rome, Italy), Giorgio Filipello (Caccamo, Italy), Giovanni Filipello (Caccamo, Italy), Dario Fiorin (Venice, Italy), Guido Fortunati (Verona, Italy), Achille Furioso (Agrigento, Italy), Monica Furlanis (Concordia Sagittaria, Italy), Vitaliano Gaglianese (San Giuliano Terme, Italy), Antonio Galbo (Palermo, Italy), Gianluca Gallino (Milan, Italy), Giandomenico Gambacorta (Rome, Italy), Federico Gatti (Besana in Brianza, Italy), Raffaella Maria Fatima Gerardi (Lavello, Italy), Mauro Gini (Bressanone, Italy), Barbara Giudiceandrea (Rome, Italy), Riccardo Grillini (Lugo, Italy), Luciano Iaccarino (Verona, Italy), Vittorio Iannetti (Carrara, Italy), Franz Anton Inderst (Marlengo, Italy), Hermann Kofler (Merano, Italy), Alessandro Lepore (Giovinazzo, Italy), Fabio Lo Presti (Ponte S. Pietro, Italy), Silvia Locatelli (Brembate, Italy), Nicola Lozito (Grumo Appula, Italy), Rocco Lozito (Grumo Appula, Italy), Fabio Maffoni (Soncino, Italy), Silvano Maffoni (Orzinuovi, Italy), Bruno Maironi Da Ponte (Bergamo, Italy), Franco Maironi Da Ponte (Bergamo, Italy), Michele Maironi Da Ponte (Bergamo, Italy), Francesco Makovec (Lesmo, Italy), Concetta Mansi (Matera, Italy), Angela Marano (Melito di Napoli, Italy), Bruno Marchetto (Milan, Italy), Fabio Marchetto (Milan, Italy), Sergio Mariani (Milan, Italy), Lucia Martini (Scandicci, Italy), Alessandro Mattei (Treviso, Italy), Giorgio Matterazzo (Seregno, Italy), Mauro Mazzone (Verona, Italy), Ugo Mereghetti (Brescia, Italy), authorised to act for Fulvia Mereghetti (Casamassima, Italy), Vitale Micheletti (Brescia, Italy), Giuseppe Mignano (Genoa, Italy), Fabio Mingo (Ladispoli, Italy), Giovanni Minorenti (Guidonia Montecelio, Italy), Filippo Miuccio (Rome, Italy), Fulvio Moneta Caglio de Suvich (Milan, Italy), Giancarlo Monti (Milan, Italy), Angelo Giuseppe Morellini (Besana in Brianza, Italy), Barbara Mozzambani (San Martino Buon Albergo, Italy), Mario Nardelli (Gubbio, Italy), Eugenio Novajra (Udine, Italy), Giorgio Omizzolo (Baone, Italy), Patrizia Paesani (Rome, Italy), Luigi Paparo (Volla, Italy), Davide Pascale (Milan, Italy), Salvatore Pasciuto (Gaeta, Italy), Sergio Pederzani (Ossuccio, Italy), Aldo Perna (Naples, Italy), Marco Piccinini (San Mauro Torinese, Italy), Nicola Piccioni (Soncino, Italy), Mauro Piliego (Bolzano, Italy), Vincenzo Pipolo (Rome, Italy), Johann Poder (Silandro, Italy), Giovanni Polazzi (Milan, Italy), Santo Pullarà (Rimini, Italy), Patrizio Ragusa (Rome, Italy), Rosangela Raimondi (Arluno, Italy), Massimo Ratti (Milan, Italy), Gianni Resta (Imola, Italy), Giuseppe Ricciarelli (San Giustino, Italy), Enrica Rivi (Scandiano, Italy), Maria Rizescu (Pesaro, Italy), Alessandro Roca (Turin, Italy), Mario Romani (Milan, Italy), Claudio Romano (Naples, Italy), Gianfranco Romano (Pisticci, Italy), Ivo Rossi (Nettuno, Italy), Alfonso Russo (Scandiano, Italy), Iginio Russolo (San Quirinino, Italy), Francesco Sabato (Barcelona, Spain), Giuseppe Salvatore (Silvi, Italy), Luca Eudilio Sarzi Amadé, (Milan, Italy), Tiziano Scagliola (Terlizzi, Italy), Antonio Scalzullo (Avellino, Italy), Liviano Semeraro (Gavirate, Italy), Laura Liliana Serpente (Ancona, Italy), Maria Grazia Serpente (Ancona, Italy), Luciana Serra (Milan, Italy), Giuseppe Silecchia (Altamura, Italy), Paolo Sillani (Bergamo, Italy), Vincenzo Solombrino (Naples, Italy), Patrizia Spiezia (Casoria, Italy), Alberto Tarantini (Rome, Italy), Halyna Terentyeva (Concordia Sagittaria, Italy), Vincenzo Tescione (Caserta, Italy), Riccardo Testa (Cecina, Italy), Salvatore Testa (Pontinia, Italy), Nadia Toneatti (Trieste, Italy), Giuseppe Ucci (Como, Italy), Giovanni Urbanelli (Pescara, Italy), Giuseppina Urciuoli (Avellino, Italy), Amelia Vaccaro (Chiavari, Italy), Maria Grazia Valentini (Tuenno, Italy), Giancarlo Vargiu (Bologna, Italy), Salvatore Veltri Barraco Alestra (Marsala, Italy), Roberto Vernero (Milan, Italy), Vincenza Vigilia (Castello d’Agogna, Italy), Celso Giuliano Vigna (Castel San Pietro Terme, Italy), Roberto Vignoli (Santa Marinella, Italy), Georg Weger (Merano, Italy), Albino Zanichelli (Busana, Italy), Andrea Zecca (Rome, Italy) (represented by: S. Sutti and R. Spelta, lawyers)

Defendant: European Central Bank

Form of order sought

The applicants claim that the Court should:

| — | Declare the action admissible; |
| --- | --- |

—

Declare the action admissible;

| — | Annul Decision ECB 2012/153/EU of 5 March 2012 on ‘the eligibility of market debt instruments issued or fully guaranteed by the Hellenic Republic in the context of the Hellenic Republic’s debt exchange offer’; |
| --- | --- |

—

Annul Decision ECB 2012/153/EU of 5 March 2012 on ‘the eligibility of market debt instruments issued or fully guaranteed by the Hellenic Republic in the context of the Hellenic Republic’s debt exchange offer’;

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

—

Order the ECB to pay the costs.

Pleas in law and main arguments

The decision challenged in these proceedings provides that collateral enhancement is to be provided by the Hellenic Republic to national central banks in the form of a buy-back scheme, which constitutes a quid pluris, as well as a necessary prerequisite, in order for it to be possible for debt instruments issued or fully guaranteed by the Hellenic Republic to be regarded as eligible in the context of the Hellenic Republic’s debt exchange offer, for at least as long as such additional collateral enhancement continues to be provided by that Member State; that is a form of credit facility and is subject to the conditions of a buy-back mechanism unilaterally geared by the Governing Council of the ECB in favour of national central banks. According to the applicants, no reference is made whatsoever in the contested decision to private investors, the so-called retail buyers of Greek bonds.

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

| 1. | First plea in law, alleging breach of essential procedural requirements (failure to state reasons and misidentification of the legal basis).






  — | It is submitted in this regard, in particular, that the contested decision fails to state reasons with regard, inter alia, to why the ECB decided to accept Greek bonds, why collateral enhancement should be provided by the Hellenic Republic to all national central banks and to them alone, and why retail private investors should, on the other hand, be burdened with the consequences of the preferential treatment afforded to certain persons. |
| --- | --- | --- |

1.

First plea in law, alleging breach of essential procedural requirements (failure to state reasons and misidentification of the legal basis).

—

It is submitted in this regard, in particular, that the contested decision fails to state reasons with regard, inter alia, to why the ECB decided to accept Greek bonds, why collateral enhancement should be provided by the Hellenic Republic to all national central banks and to them alone, and why retail private investors should, on the other hand, be burdened with the consequences of the preferential treatment afforded to certain persons.

| — | As regards the legal basis, the contested decision has no connection whatsoever with monetary policy or price stability, which underlies Article 127 TFEU. |
| --- | --- |

—

As regards the legal basis, the contested decision has no connection whatsoever with monetary policy or price stability, which underlies Article 127 TFEU.

| 2. | Second plea in law, alleging breach of the Treaty or the rules of law governing its application (breach of the principle of equal treatment, breach of the principle of sound administration, breach of the principle of sovereign debt, breach of Article 123 TFEU and Article 21 of the Statute of the European Central Bank, breach of the principle of proportionality).






  — | According to the applicants, it is abundantly clear that the principle of equal treatment has been infringed in the present case, since all of them are, in exactly the same way as the ECB and the national central banks, creditors of the Greek State, in that they are holders of the relevant bonds, and the harm suffered by them has, in equal measure, the same capacity to have a systemic impact on the European economy. |
| --- | --- | --- |

2.

Second plea in law, alleging breach of the Treaty or the rules of law governing its application (breach of the principle of equal treatment, breach of the principle of sound administration, breach of the principle of sovereign debt, breach of Article 123 TFEU and Article 21 of the Statute of the European Central Bank, breach of the principle of proportionality).

—

According to the applicants, it is abundantly clear that the principle of equal treatment has been infringed in the present case, since all of them are, in exactly the same way as the ECB and the national central banks, creditors of the Greek State, in that they are holders of the relevant bonds, and the harm suffered by them has, in equal measure, the same capacity to have a systemic impact on the European economy.

| — | The principle of sovereign debt is also infringed, as may be inferred from the very structure of the European Union, under which each Member State is responsible, specifically, for its own debt, and the debt of an individual State cannot, in any circumstances, jeopardise finance or the stability of the single currency. The very structure of EMU, as established by the Maastricht Treaty, does not allow for the mutualisation of debt, but, on the contrary, requires each Member State to keep public finances in order and to discharge its own responsbilities. |
| --- | --- |

—

The principle of sovereign debt is also infringed, as may be inferred from the very structure of the European Union, under which each Member State is responsible, specifically, for its own debt, and the debt of an individual State cannot, in any circumstances, jeopardise finance or the stability of the single currency. The very structure of EMU, as established by the Maastricht Treaty, does not allow for the mutualisation of debt, but, on the contrary, requires each Member State to keep public finances in order and to discharge its own responsbilities.

| — | By the contested decision, the ECB has therefore infringed the rules laid down by primary and secondary law concerning the grant of financial assistance in a number of respects, in breach in particular of Article 123 TFEU. |
| --- | --- |

—

By the contested decision, the ECB has therefore infringed the rules laid down by primary and secondary law concerning the grant of financial assistance in a number of respects, in breach in particular of Article 123 TFEU.

| 3. | Third plea in law, alleging misuse of powers in the present case.






  — | The applicants doubt whether a decision which makes the eligibility of a Member State’s debt instruments conditional on that Member State being required to take action in the form of a buy-back scheme in favour of national central banks is consistent with the anti-inflationary objective set out in Article 127 TFEU, which forms the legal basis of the contested decision. |
| --- | --- | --- |

3.

Third plea in law, alleging misuse of powers in the present case.

—

The applicants doubt whether a decision which makes the eligibility of a Member State’s debt instruments conditional on that Member State being required to take action in the form of a buy-back scheme in favour of national central banks is consistent with the anti-inflationary objective set out in Article 127 TFEU, which forms the legal basis of the contested decision.

| — | Moreover, by the contested decision, the ECB has in fact created yet another form of indirect financial assistance for the Hellenic Republic, suspending the Eurosystem’s credit quality thresholds with regard to the Greek government bonds that are covered by the collateral enhancement, thus exceeding its statutory powers, which do not envisage any form of credit facility. |
| --- | --- |

—

Moreover, by the contested decision, the ECB has in fact created yet another form of indirect financial assistance for the Hellenic Republic, suspending the Eurosystem’s credit quality thresholds with regard to the Greek government bonds that are covered by the collateral enhancement, thus exceeding its statutory powers, which do not envisage any form of credit facility.

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| 11.8.2012 | EN | Official Journal of the European Union | C 243/21 |
| --- | --- | --- | --- |

11.8.2012

EN

Official Journal of the European Union

C 243/21

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Action brought on 23 May 2012 — Axa Belgium v Commission

(Case T-230/12)

2012/C 243/38

Language of the case: French

Parties

Applicant: Axa Belgium (Brussels, Belgium) (represented by: G. Cleenewerck de Crayencour, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul debit notes No 7141101047 in the amount of EUR 1 590,62 dated 23 March 2012 and No 7141101053 in the amount of EUR 10 160,88 dated 23 March 2012; |
| --- | --- |

—

annul debit notes No 7141101047 in the amount of EUR 1 590,62 dated 23 March 2012 and No 7141101053 in the amount of EUR 10 160,88 dated 23 March 2012;

| — | annul the payment by means of offsetting outstanding claims against debts which the Commission effected by letter of 26 March 2012 addressed to S.A. Axa Belgium (a letter bearing the reference D(2012) C4 — B.2 — 000212 and signed by Mr B. of DG Budget); |
| --- | --- |

—

annul the payment by means of offsetting outstanding claims against debts which the Commission effected by letter of 26 March 2012 addressed to S.A. Axa Belgium (a letter bearing the reference D(2012) C4 — B.2 — 000212 and signed by Mr B. of DG Budget);

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging infringement of the Treaties and an error of law, inasmuch as the Commission issued debit notes in respect of unfounded claims and effected recovery by offsetting claims that are not certain, of a fixed amount and due. The applicant submits that the Commission is demanding sums which exceed those granted under the legal rules currently in force in connection with the subrogation of the Commission to the rights of its officials who are the victims of accidents caused by persons who are insured in respect of statutory liability by the applicant. |
| --- | --- |

1.

First plea in law, alleging infringement of the Treaties and an error of law, inasmuch as the Commission issued debit notes in respect of unfounded claims and effected recovery by offsetting claims that are not certain, of a fixed amount and due. The applicant submits that the Commission is demanding sums which exceed those granted under the legal rules currently in force in connection with the subrogation of the Commission to the rights of its officials who are the victims of accidents caused by persons who are insured in respect of statutory liability by the applicant.

| 2. | Second plea in law, alleging infringement of the principles of sound administration and of the protection of legitimate expectations, inasmuch as the Commission offset notwithstanding a contractual undertaking not to do so and notwithstanding the fact that, for many years, the Commission has always agreed to settle cases by negotiation without having recourse to offsetting and waiting for decisions to be given by the Belgian courts. |
| --- | --- |

2.

Second plea in law, alleging infringement of the principles of sound administration and of the protection of legitimate expectations, inasmuch as the Commission offset notwithstanding a contractual undertaking not to do so and notwithstanding the fact that, for many years, the Commission has always agreed to settle cases by negotiation without having recourse to offsetting and waiting for decisions to be given by the Belgian courts.

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| 11.8.2012 | EN | Official Journal of the European Union | C 243/21 |
| --- | --- | --- | --- |

11.8.2012

EN

Official Journal of the European Union

C 243/21

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Action brought on 29 may 2012 — Wilmar Trading v OHIM — Agroekola EOOD (ULTRA CHOCO)

(Case T-232/12)

2012/C 243/39

Language in which the application was lodged: English

Parties

Applicant: Wilmar Trading Pte Ltd (Singapore, Singapore) (represented by: E. Miller, lawyer)

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

Other party to the proceedings before the Board of Appeal: Agroekola EOOD (Sofia, Bulgaria)

Form of order sought

| — | Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 27 March 2012 in case R 87/2012-1; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 27 March 2012 in case R 87/2012-1;

| — | Order OHIM to consider the appeal filed against the decision of the Opposition Division of 10 November 2011 on opposition No B001760043 and to process in the normal course. |
| --- | --- |

—

Order OHIM to consider the appeal filed against the decision of the Opposition Division of 10 November 2011 on opposition No B001760043 and to process in the normal course.

Pleas in law and main arguments

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

Community trade mark concerned: The word mark ‘ULTRA CHOCO’, for goods in classes 29, 30 and 31 — Community trade mark application No 9221111

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

Mark or sign cited in opposition: Singaporean trade mark registration T0113987B of the word mark ‘ultra choco’ for goods in class 29; European and Bulgarian non-registered trade mark ‘ULTRA CHOCO’, invoking Articles 8(3) and 8(4) of Council Regulation No 207/2009

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

Decision of the Board of Appeal: Deemed the appeal not to have been filed

Pleas in law: Infringement of Articles 8(3)(a)(ii) and (b) and 8(4) of Commission Regulation (EC) No 2869/95 of 13 December 1995 on the fees payable to the Office for Harmonisation in the Internal Market (Trade Marks and Designs).

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| 11.8.2012 | EN | Official Journal of the European Union | C 243/22 |
| --- | --- | --- | --- |

11.8.2012

EN

Official Journal of the European Union

C 243/22

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Action brought on 1 June 2012 — Amitié v Commission

(Case T-234/12)

2012/C 243/40

Language of the case: English

Parties

Applicant: Amitié Srl (Bologna, Italy) (represented by: D. Bogaert and M. Picat, lawyers)

Defendant: European Union, represented by the European Commission

Form of order sought

| — | Declare that the following debit notes sent by the Commission are not due:






  — | 50 458,23 EUR in the framework of the MINERVAPLUS Agreement concluded between the applicant and the Commission; |
| --- | --- | --- |

—

Declare that the following debit notes sent by the Commission are not due:

—

50 458,23 EUR in the framework of the MINERVAPLUS Agreement concluded between the applicant and the Commission;

| — | 358 712,35 EUR in the framework of the MICHAEL Agreement concluded between the applicant and the Commission. |
| --- | --- |

—

358 712,35 EUR in the framework of the MICHAEL Agreement concluded between the applicant and the Commission.

| — | Declare that the recovery request of the total amount of 1 083 616,89 EUR is not grounded; |
| --- | --- |

—

Declare that the recovery request of the total amount of 1 083 616,89 EUR is not grounded;

| — | Recognize that the Commission could not on 11 June 2011 impose to the applicant an extrapolation procedure in the framework of the BSOLE Agreement; |
| --- | --- |

—

Recognize that the Commission could not on 11 June 2011 impose to the applicant an extrapolation procedure in the framework of the BSOLE Agreement;

| — | State that the extrapolation procedure is therefore not grounded under Belgian Law; |
| --- | --- |

—

State that the extrapolation procedure is therefore not grounded under Belgian Law;

| — | Declare that the Commission is not entitled to apply an extrapolation process to BSOLE Agreement since 14 January 2010; |
| --- | --- |

—

Declare that the Commission is not entitled to apply an extrapolation process to BSOLE Agreement since 14 January 2010;

| — | Proclaim the unilateral freezing of the payments of the Community Financial Contributions for ATHENA and JUDAICA Agreements as not grounded under Luxemburg Law; |
| --- | --- |

—

Proclaim the unilateral freezing of the payments of the Community Financial Contributions for ATHENA and JUDAICA Agreements as not grounded under Luxemburg Law;

| — | Order the immediate unfreezing of the Community Financial Contributions, i.e. the amount of amount of 263 120 EUR blocked since 8 February 2010 for JUDAICA and since 14 June 2010 for ATHENA; |
| --- | --- |

—

Order the immediate unfreezing of the Community Financial Contributions, i.e. the amount of amount of 263 120 EUR blocked since 8 February 2010 for JUDAICA and since 14 June 2010 for ATHENA;

| — | Order the immediate payment as from the date when the judgment is rendered by way of wire transfer on:






  — | The bank account of the project coordinator, according to Article 6.2 of the JUDAICA Grant Agreement; |
| --- | --- | --- |

—

Order the immediate payment as from the date when the judgment is rendered by way of wire transfer on:

—

The bank account of the project coordinator, according to Article 6.2 of the JUDAICA Grant Agreement;

| — | The bank account of the project coordinator, according to Article 6.2 of the ATHENA Grant Agreement; |
| --- | --- |

—

The bank account of the project coordinator, according to Article 6.2 of the ATHENA Grant Agreement;

| — | Condemn the Commission to the payment of the amount of:






  — | 150 000 EUR corresponding to the compensation of the counsels and Italian auditor fees (provisional); and |
| --- | --- | --- |

—

Condemn the Commission to the payment of the amount of:

—

150 000 EUR corresponding to the compensation of the counsels and Italian auditor fees (provisional); and

| — | 256 824,17 EUR corresponding to the compensation of the damages caused by the ungrounded or abusive unilateral freezing of the payments in the framework of ATHENA and JUDAICA Agreements by the European Commission. |
| --- | --- |

—

256 824,17 EUR corresponding to the compensation of the damages caused by the ungrounded or abusive unilateral freezing of the payments in the framework of ATHENA and JUDAICA Agreements by the European Commission.

| — | Condemn the Commission to reimburse to the applicant any and all costs and expenses incurred by it in the framework of the present proceeding to the extent that the disloyal behaviour of the Commission is the sole cause of the dispute at hand. Taking into account the nature and characteristics of the dispute, the costs are provisionally estimated at EUR 50 000; and |
| --- | --- |

—

Condemn the Commission to reimburse to the applicant any and all costs and expenses incurred by it in the framework of the present proceeding to the extent that the disloyal behaviour of the Commission is the sole cause of the dispute at hand. Taking into account the nature and characteristics of the dispute, the costs are provisionally estimated at EUR 50 000; and

| — | Declare the forthcoming judgment as enforceable notwithstanding that it may be appealed. |
| --- | --- |

—

Declare the forthcoming judgment as enforceable notwithstanding that it may be appealed.

In subsidiary order, assuming that the applicant is liable to pay a certain amount under the Commission’s Audit quod non, the applicant requests the General Court:

| — | To declare that the applicant is only liable for an amount of 54 195,05 EUR and not 1 083 616,89 EUR under the Belgian and Luxemburg case-law relating to the sanction of the abusive behaviour of the Commission which is the reduction of such right to a normal use, i.e. an amount of 54 195,05 EUR and not 1 083 616,89 EUR; and |
| --- | --- |

—

To declare that the applicant is only liable for an amount of 54 195,05 EUR and not 1 083 616,89 EUR under the Belgian and Luxemburg case-law relating to the sanction of the abusive behaviour of the Commission which is the reduction of such right to a normal use, i.e. an amount of 54 195,05 EUR and not 1 083 616,89 EUR; and

| — | To declare the forthcoming judgment as enforceable notwithstanding that it may be appealed. |
| --- | --- |

—

To declare the forthcoming judgment as enforceable notwithstanding that it may be appealed.

Pleas in law and main arguments

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

| 1. | First plea in law, contesting the findings of the Commission’s audit, as:






  — | The findings of the Commission’s audit is contested based upon the report of an external and independent auditor, explicitly appointed by the applicant for this specific issue and for the assessment of the findings of the Commission’s audit; and |
| --- | --- | --- |

1.

First plea in law, contesting the findings of the Commission’s audit, as:

—

The findings of the Commission’s audit is contested based upon the report of an external and independent auditor, explicitly appointed by the applicant for this specific issue and for the assessment of the findings of the Commission’s audit; and

| — | Subsidiary, it is alleged that there was abusive behaviour on the part of the Commission, thereby infringing the principle of good faith (Article 1134 of the Belgian and Luxembourg Civil Codes). |
| --- | --- |

—

Subsidiary, it is alleged that there was abusive behaviour on the part of the Commission, thereby infringing the principle of good faith (Article 1134 of the Belgian and Luxembourg Civil Codes).

| 2. | Second plea in law, contesting the application of the extrapolation process to the BSOLE Agreement, as:






  — | The Commission breached Article 17 of the General Conditions for eTEN Feasibility/Market Validation Contracts; |
| --- | --- | --- |

2.

Second plea in law, contesting the application of the extrapolation process to the BSOLE Agreement, as:

—

The Commission breached Article 17 of the General Conditions for eTEN Feasibility/Market Validation Contracts;

| — | The Commission breached Article 4.2.2.3. of the Guide Financial Issues relating to the Indirect Actions of the Sixth Framework Programmes of October 2003 and February 2005; |
| --- | --- |

—

The Commission breached Article 4.2.2.3. of the Guide Financial Issues relating to the Indirect Actions of the Sixth Framework Programmes of October 2003 and February 2005;

| — | There was breach of contract by the Commission (Article 1134 §1 of Belgian Civil Code); and |
| --- | --- |

—

There was breach of contract by the Commission (Article 1134 §1 of Belgian Civil Code); and

| — | The Commission breached the limitation period for proceeding under the European Law (see under Article 46 (ex Article 43) of the Protocol on the Statute of the Court of Justice of the European Union. |
| --- | --- |

—

The Commission breached the limitation period for proceeding under the European Law (see under Article 46 (ex Article 43) of the Protocol on the Statute of the Court of Justice of the European Union.

| 3. | Third plea in law, alleging the unjustified freezing of the payments made in the framework of ATHENA and JUDAICA Agreements, part of the eCONTENTPLUS project, as:






  — | The freezing is not grounded on the basis of the contractual provisions of the ATHENA and JUDAICA Agreements; |
| --- | --- | --- |

3.

Third plea in law, alleging the unjustified freezing of the payments made in the framework of ATHENA and JUDAICA Agreements, part of the eCONTENTPLUS project, as:

—

The freezing is not grounded on the basis of the contractual provisions of the ATHENA and JUDAICA Agreements;

| — | The freezing could not be justified under Articles 106.4 and 183 of the Commission Regulation No 2342/2002 (1); |
| --- | --- |

—

The freezing could not be justified under Articles 106.4 and 183 of the Commission Regulation No 2342/2002 (1);

| — | Article 183 of the Commission Regulation No 2342/2002 is also not applicable; |
| --- | --- |

—

Article 183 of the Commission Regulation No 2342/2002 is also not applicable;

| — | It is alleged that there was abusive behaviour on the part of the Commission regarding the unilateral and unjustified freezing of the payment of the Community Financial Contributions under Article 1134 of Civil Code; and |
| --- | --- |

—

It is alleged that there was abusive behaviour on the part of the Commission regarding the unilateral and unjustified freezing of the payment of the Community Financial Contributions under Article 1134 of Civil Code; and

| — | The principle of ‘exceptio non adimpleti contractus’ is also not applicable. |
| --- | --- |

—

The principle of ‘exceptio non adimpleti contractus’ is also not applicable.

---

(1)  Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 357, p. 1)

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| 11.8.2012 | EN | Official Journal of the European Union | C 243/23 |
| --- | --- | --- | --- |

11.8.2012

EN

Official Journal of the European Union

C 243/23

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Action brought on 29 May 2012 — CEDC International v OHIM — Underberg (Shape of a blade of grass in a bottle)

(Case T-235/12)

2012/C 243/41

Language in which the application was lodged: English

Parties

Applicant: CEDC International sp. z o.o. (Warsaw, Poland) (represented by: M. Siciarek, lawyer)

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

Other party to the proceedings before the Board of Appeal: Underberg AG (Dietlikon, Suisse)

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 26 March 2012 in case R 2506/2010-4; |
| --- | --- |

—

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 26 March 2012 in case R 2506/2010-4;

| — | Order OHIM to bear the costs of the proceedings at hand. |
| --- | --- |

—

Order OHIM to bear the costs of the proceedings at hand.

Pleas in law and main arguments

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

Community trade mark concerned: The figurative mark with the description ‘the object of the trade mark is a greeny-brown blade of grass in a bottle, the length of the blade of grass is approximately three-quarters the height of the bottle’, for goods in class 33 — Community trade mark application No 33266

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

Mark or sign cited in opposition: French trade mark registration No 95588457 of the three-dimensional mark representing a bottle with a strand of grass for goods in class 33; German trade mark registration No 39848553; Polish trade mark registration No 62018; Polish trade mark registration No 62081 for goods in class 33; Polish trade mark registration No 85811 for goods in class 33; Japanese trade mark registration No 2092826 for goods in class 28; French trade mark registration No 98746752 of the three-dimensional mark representing a bottle with a strand of grass for goods in class 33; Non-registered trade mark used in the course of trade in Germany in connection with ‘vodka’

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

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law:

| — | Infringement of the principle of legality; |
| --- | --- |

—

Infringement of the principle of legality;

| — | Infringement of Article 15(1)(a) of Council Regulation No 207/2009 and Rule 22(3) of Commission Regulation No 2868/95 and consequently also Articles 8(1)(a), 42(2) and (3) of Council Regulation No 207/2009. |
| --- | --- |

—

Infringement of Article 15(1)(a) of Council Regulation No 207/2009 and Rule 22(3) of Commission Regulation No 2868/95 and consequently also Articles 8(1)(a), 42(2) and (3) of Council Regulation No 207/2009.

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| 11.8.2012 | EN | Official Journal of the European Union | C 243/24 |
| --- | --- | --- | --- |

11.8.2012

EN

Official Journal of the European Union

C 243/24

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Action brought on 29 May 2012 — Airbus v OHIM (NEO)

(Case T-236/12)

2012/C 243/42

Language of the case: English

Parties

Applicant: Airbus SAS (France) (represented by: G. Würtenberger and R. Kunze, lawyers)

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

Form of order sought

| — | Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 23 February 2012 in case R 1387/2011-1; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 23 February 2012 in case R 1387/2011-1;

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

—

Order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘NEO’ for goods and services in classes 7, 12, and 39 — Community trade mark application No 9624974

Decision of the Examiner: Partially refused to register the community trade mark application

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law:

| — | Infringement of Articles 64(1) and 59 of Council Regulation No 207/2009; |
| --- | --- |

—

Infringement of Articles 64(1) and 59 of Council Regulation No 207/2009;

| — | Infringement of Articles 7(1)(b), 7(1)(c) and 7(2) of Council Regulation No 207/2009; and |
| --- | --- |

—

Infringement of Articles 7(1)(b), 7(1)(c) and 7(2) of Council Regulation No 207/2009; and

| — | Infringement of Articles 75 and 76 of Council Regulation No 207/2009. |
| --- | --- |

—

Infringement of Articles 75 and 76 of Council Regulation No 207/2009.

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| 11.8.2012 | EN | Official Journal of the European Union | C 243/24 |
| --- | --- | --- | --- |

11.8.2012

EN

Official Journal of the European Union

C 243/24

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Action brought on 4 June 2012 — Gamesa Eólica v OHIM — Enercon (horizontal combination of green colours)

(Case T-245/12)

2012/C 243/43

Language in which the application was lodged: English

Parties

Applicant(s): Gamesa Eólica, SL (Sarriguren, Spain) (represented by: E. Armijo Chávarri and A. Sanz Cerralbo, lawyers)

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

Other party to the proceedings before the Board of Appeal: Enercon GmbH (Aurich, Germany)

Form of order sought

| — | Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 1 March 2012 in case R 260/2011-1; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 1 March 2012 in case R 260/2011-1;

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

—

Order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The figurative mark representing a horizontal combination of green colours, for goods in class 7 — Community trade mark registration No 2346542

Proprietor of the Community trade mark: The other party to the proceedings before the Board of Appeal

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

Grounds for the application for a declaration of invalidity: The party requesting the declaration of invalidity based its request on Article 52(1)(a) and on Article 52(1)(b) of Council Regulation (EC) No 207/2009

Decision of the Cancellation Division: Declared the Community trade mark invalid

Decision of the Board of Appeal: Annulled the contested decision and rejected the request for a declaration of invalidity

Pleas in law:

| — | Infringement of Article 7(1)(b) of Council Regulation No 207/2009; |
| --- | --- |

—

Infringement of Article 7(1)(b) of Council Regulation No 207/2009;

| — | Infringement of Article 62 of the Community trade mark Regulation; and |
| --- | --- |

—

Infringement of Article 62 of the Community trade mark Regulation; and

| — | Infringement of Article 52(1)(b) of Council Regulation No 207/2009. |
| --- | --- |

—

Infringement of Article 52(1)(b) of Council Regulation No 207/2009.

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| 11.8.2012 | EN | Official Journal of the European Union | C 243/25 |
| --- | --- | --- | --- |

11.8.2012

EN

Official Journal of the European Union

C 243/25

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Action brought on 4 June 2012 — Cat Media Pty v OHIM — Avon Products (RETANEW)

(Case T-246/12)

2012/C 243/44

Language in which the application was lodged: English

Parties

Applicant: Cat Media Pty Ltd (Warriewood, Australia) (represented by: I. De Freitas, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Avon Products, Inc. (New York, United States)

Form of order sought

| — | Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 21 March 2012 in case R 740/2011-1; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 21 March 2012 in case R 740/2011-1;

| — | Order the defendant and the other party to the proceedings before the Board of Appeal to pay the appellant’s costs in relation to these proceedings. |
| --- | --- |

—

Order the defendant and the other party to the proceedings before the Board of Appeal to pay the appellant’s costs in relation to these proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘RETANEW’, for goods in class 3 — Community trade mark application No W00884450

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

Mark or sign cited in opposition: Community trade mark registration No 3531051 of the word mark ‘ANEW’ for goods in classes 3 and 5

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

Decision of the Board of Appeal: Annulled the contested decision and refused the application in its entirety

Pleas in law:

| — | Infringement of Article 8(1)(b) of Council Regulation No 207/2009. |
| --- | --- |

—

Infringement of Article 8(1)(b) of Council Regulation No 207/2009.

---

| 11.8.2012 | EN | Official Journal of the European Union | C 243/25 |
| --- | --- | --- | --- |

11.8.2012

EN

Official Journal of the European Union

C 243/25

---

Action brought on 6 June 2012 — Argo Group International v OHIM — Arisa Assurances (ARIS)

(Case T-247/12)

2012/C 243/45

Language in which the application was lodged: English

Parties

Applicant: Argo Group International Holdings Ltd (Hamilton, Bermuda) (represented by: R. Hoy, S. Levine, and N. Edbrooke, Solicitors)

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

Other party to the proceedings before the Board of Appeal: Arisa Assurances SA (Luxembourg, Luxembourg)

Form of order sought

| — | Annul or alter the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 9 March 2012 in case R 193/2011-2, so that the applicant’s mark is registered; |
| --- | --- |

—

Annul or alter the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 9 March 2012 in case R 193/2011-2, so that the applicant’s mark is registered;

| — | Order OHIM to pay the costs of the applicant. |
| --- | --- |

—

Order OHIM to pay the costs of the applicant.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The figurative mark in colour ‘ARIS’, for goods and services in class 36 — Community trade mark application No 7390404

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

Mark or sign cited in opposition: Community trade mark registration No 307470 of the figurative mark in colours ‘ARISA ASSURANCES S.A.’ for goods and services in class 36

Decision of the Opposition Division: Rejected the Community trade mark application in its entirety

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: The applicant submits that OHIM and the Board erred as a matter of law in concluding that the marks are legally similar and in concluding ipso facto that there is a likelihood of confusion on the part of the relevant public.

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| 11.8.2012 | EN | Official Journal of the European Union | C 243/26 |
| --- | --- | --- | --- |

11.8.2012

EN

Official Journal of the European Union

C 243/26

---

Action brought on 5 June 2012 — Uralita v Commission

(Case T-250/12)

2012/C 243/46

Language of the case: English

Parties

Applicant: Uralita, SA (Madrid, Spain) (represented by: K. Struckmann, lawyer and G. Forwood, Barrister)

Defendant: European Commission

Form of order sought

| — | Annul Article 1(2) of the Decision of the European Commission C(2012) 1965 of 27 March 2012 amending Decision C(2008)2626 of 11 June 2008 relating to a proceeding under Article 81 of the EC Treaty (now Article 101 of the Treaty on the Functioning of the European Union) and Article 53 of the EEA Agreement (Case COMP/38.695 — SODIUM CHLORATE), in so far as it imposes a fine of EUR 4 231 000 on the applicant; |
| --- | --- |

—

Annul Article 1(2) of the Decision of the European Commission C(2012) 1965 of 27 March 2012 amending Decision C(2008)2626 of 11 June 2008 relating to a proceeding under Article 81 of the EC Treaty (now Article 101 of the Treaty on the Functioning of the European Union) and Article 53 of the EEA Agreement (Case COMP/38.695 — SODIUM CHLORATE), in so far as it imposes a fine of EUR 4 231 000 on the applicant;

| — | Article 2 of the Commission’s decision C(2012) 1965 of 27 March 2012 — Case COMP/38.695 — Sodium Chlorate; and |
| --- | --- |

—

Article 2 of the Commission’s decision C(2012) 1965 of 27 March 2012 — Case COMP/38.695 — Sodium Chlorate; and

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

—

Order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging that the decision to impose a fine after the expiry of the limitation period contained in Article 25(1) of Council Regulation (EC) No 1/2003 (1), and to retain the interest accrued on this sum, was unlawful. |
| --- | --- |

1.

First plea in law, alleging that the decision to impose a fine after the expiry of the limitation period contained in Article 25(1) of Council Regulation (EC) No 1/2003 (1), and to retain the interest accrued on this sum, was unlawful.

| 2. | Second plea in law, alleging, in the alternative, that it was unlawful for the Commission to withhold the amount of the fine imposed by Decision C(2012) 1965 of 27 March 2012, including interest, before the fine became due. |
| --- | --- |

2.

Second plea in law, alleging, in the alternative, that it was unlawful for the Commission to withhold the amount of the fine imposed by Decision C(2012) 1965 of 27 March 2012, including interest, before the fine became due.

---

(1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1)

---

| 11.8.2012 | EN | Official Journal of the European Union | C 243/26 |
| --- | --- | --- | --- |

11.8.2012

EN

Official Journal of the European Union

C 243/26

---

Action brought on 13 June 2012 — Diadikasia Symvouloi Epicheiriseon v Commission

(Case T-261/12)

2012/C 243/47

Language of the case: English

Parties

Applicant: Diadikasia Symvouloi Epicheiriseon AE (Chalandri, Greece) (represented by: A. Krystallidis, lawyer)

Defendant: European Commission

Form of order sought

| — | Repair the damages caused to the applicant by the unlawful decision of the EU Delegation to Serbia of 23 March 2012 to cancel the award of the contract ‘Strengthening the institutional capacity of the Commission for protection of Competition (CPC) in the Republic of Serbia’ (OJ 2011 S 147) which was awarded to the applicant, as leader of the consortium for the project above; |
| --- | --- |

—

Repair the damages caused to the applicant by the unlawful decision of the EU Delegation to Serbia of 23 March 2012 to cancel the award of the contract ‘Strengthening the institutional capacity of the Commission for protection of Competition (CPC) in the Republic of Serbia’ (OJ 2011 S 147) which was awarded to the applicant, as leader of the consortium for the project above;

| — | Order that the costs of and occasioned by these proceedings be borne by the defendant. |
| --- | --- |

—

Order that the costs of and occasioned by these proceedings be borne by the defendant.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging that the defendant acted unlawfully by accusing the applicant of having an unfair advantage in relation to the other tenderers, since this conflict of interest that the applicant is being accused of concerns a totally independent third company, i.e. European profiles SA and not the applicant. |
| --- | --- |

1.

First plea in law, alleging that the defendant acted unlawfully by accusing the applicant of having an unfair advantage in relation to the other tenderers, since this conflict of interest that the applicant is being accused of concerns a totally independent third company, i.e. European profiles SA and not the applicant.

| 2. | Second plea in law, alleging that the defendant violated its obligation to provide a clear and grounded decision of cancellation of the award, in violation of Article 18 of the European Code of Good Administrative Behaviour, in that it failed to justify the reason for which the applicant was given an unfair advantage in relation to the other tenderers. |
| --- | --- |

2.

Second plea in law, alleging that the defendant violated its obligation to provide a clear and grounded decision of cancellation of the award, in violation of Article 18 of the European Code of Good Administrative Behaviour, in that it failed to justify the reason for which the applicant was given an unfair advantage in relation to the other tenderers.

| 3. | Third plea in law, alleging that the defendant violated its right to be heard by failing to invite the applicant to express its opinion on what may be the matter constituting conflict of interest, in violation of article 16 of the European Code of Good Administrative Behaviour. |
| --- | --- |

3.

Third plea in law, alleging that the defendant violated its right to be heard by failing to invite the applicant to express its opinion on what may be the matter constituting conflict of interest, in violation of article 16 of the European Code of Good Administrative Behaviour.

| 4. | Fourth plea in law, alleging that the defendant violated its obligation to give the applicant the access to the documents which would prove the alleged illegal link and the unfair advantage to DIADIKASIA Consortium, according to Article 42 of EU Charter of Fundamental Rights. |
| --- | --- |

4.

Fourth plea in law, alleging that the defendant violated its obligation to give the applicant the access to the documents which would prove the alleged illegal link and the unfair advantage to DIADIKASIA Consortium, according to Article 42 of EU Charter of Fundamental Rights.

| 5. | Fifth plea in law, alleging that those actions by the defendant constitute a serious violation of the principle of legal certainty and an error in law as well as of the Article 4 of the European Code of Good Administrative Behaviour, when it unexpectedly cancelled its decision to award the subject project to the applicant’s consortium on alleged grounds of ‘conflict of interest’. |
| --- | --- |

5.

Fifth plea in law, alleging that those actions by the defendant constitute a serious violation of the principle of legal certainty and an error in law as well as of the Article 4 of the European Code of Good Administrative Behaviour, when it unexpectedly cancelled its decision to award the subject project to the applicant’s consortium on alleged grounds of ‘conflict of interest’.

---

| 11.8.2012 | EN | Official Journal of the European Union | C 243/27 |
| --- | --- | --- | --- |

11.8.2012

EN

Official Journal of the European Union

C 243/27

---

Action brought on 12 June 2012 — Central Bank of Iran v Council

(Case T-262/12)

2012/C 243/48

Language of the case: English

Parties

Applicant: Central Bank of Iran (Tehran, Iran) (represented by: M. Lester, Barrister)

Defendant: Council of the European Union

Form of order sought

| — | Annul Council Decision 2012/35/CFSP of 23 January 2012 (1) and Council Regulation (EU) No 267/2012 of 23 March 2012 (2), in so far as the measures adopted through such legal acts apply to the applicant; |
| --- | --- |

—

Annul Council Decision 2012/35/CFSP of 23 January 2012 (1) and Council Regulation (EU) No 267/2012 of 23 March 2012 (2), in so far as the measures adopted through such legal acts apply to the applicant;

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging that the defendant manifestly erred in considering that any of the criteria for listing in Council Decision 2012/35/CFSP and Council Regulation (EU) No 267/2012 were fulfilled. |
| --- | --- |

1.

First plea in law, alleging that the defendant manifestly erred in considering that any of the criteria for listing in Council Decision 2012/35/CFSP and Council Regulation (EU) No 267/2012 were fulfilled.

| 2. | Second plea in law, alleging that the defendant failed to give adequate or sufficient reasons for including the applicant in the list of persons and entities to which the restrictive measures apply. |
| --- | --- |

2.

Second plea in law, alleging that the defendant failed to give adequate or sufficient reasons for including the applicant in the list of persons and entities to which the restrictive measures apply.

| 3. | Third plea in law, alleging that the defendant failed to safeguard the applicant’s rights of defence and to effective judicial review. |
| --- | --- |

3.

Third plea in law, alleging that the defendant failed to safeguard the applicant’s rights of defence and to effective judicial review.

| 4. | Fourth plea in law, alleging that the defendant infringed, without justification or proportion, the applicant’s fundamental rights, including its rights to protection of its property and reputation. |
| --- | --- |

4.

Fourth plea in law, alleging that the defendant infringed, without justification or proportion, the applicant’s fundamental rights, including its rights to protection of its property and reputation.

---

(1)  Council Decision 2012/35/CFSP of 23 January 2012 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2012 L 19, p. 22)

(2)  Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation (EU) No 961/2010 (OJ 2012 L 88, p. 1)

---

| 11.8.2012 | EN | Official Journal of the European Union | C 243/27 |
| --- | --- | --- | --- |

11.8.2012

EN

Official Journal of the European Union

C 243/27

---

Action brought on 12 June 2012 — Schenker v Commission

(Case T-265/12)

2012/C 243/49

Language of the case: English

Parties

Applicant: Schenker Ltd (Feltham, United Kingdom) (represented by: F. Montag and B. Kacholdt, lawyers, D. Colgan and T. Morgan, Solicitors)

Defendant: European Commission

Form of order sought

| — | Annul Article 1(1)(a) of the Decision of the European Commission of 28 March 2012 relating to proceedings under Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the EEA Agreement (Case COMP/39.462-Freight Forwarding); |
| --- | --- |

—

Annul Article 1(1)(a) of the Decision of the European Commission of 28 March 2012 relating to proceedings under Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the EEA Agreement (Case COMP/39.462-Freight Forwarding);

| — | Annul in total or, in the alternative, reduce the fine set out in Article 2(1)(a) of the contested decision; and |
| --- | --- |

—

Annul in total or, in the alternative, reduce the fine set out in Article 2(1)(a) of the contested decision; and

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

—

Order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging that the Commission infringed the applicant’s rights of defence, the principles of a fair trial and sound administration by not terminating its investigation upon receipt of notice that evidence submitted by Cleary Gottlieb Steen & Hamilton LLP on behalf of Deutsche Post AG was tainted by a series of breaches of law. |
| --- | --- |

1.

First plea in law, alleging that the Commission infringed the applicant’s rights of defence, the principles of a fair trial and sound administration by not terminating its investigation upon receipt of notice that evidence submitted by Cleary Gottlieb Steen & Hamilton LLP on behalf of Deutsche Post AG was tainted by a series of breaches of law.

| 2. | Second plea in law, alleging that the Commission exceeded its competence by adopting the contested decision although it was barred from doing so under Council Regulation No 141/1962 (1). |
| --- | --- |

2.

Second plea in law, alleging that the Commission exceeded its competence by adopting the contested decision although it was barred from doing so under Council Regulation No 141/1962 (1).

| 3. | Third plea in law, alleging that the Commission breached Article 101(1) TFEU and Articles 4 and 7 of Council Regulation No 1/2003 (2) by holding that the appreciable effect on interstate trade criterion was fulfilled. |
| --- | --- |

3.

Third plea in law, alleging that the Commission breached Article 101(1) TFEU and Articles 4 and 7 of Council Regulation No 1/2003 (2) by holding that the appreciable effect on interstate trade criterion was fulfilled.

| 4. | Fourth plea in law, alleging that the Commission breached Articles 101(1) and 296 TFEU, Article 41 of the Charter of Fundamental Rights of the European Union, Articles 4, 7 and 23(2) of Council Regulation No 1/2003 and the principles of personal liability and sound administration in holding the applicant liable for the conduct of BAX Global Ltd. (UK) and by fining solely the applicant for that conduct although BAX Global Ltd. (UK) had been a subsidiary belonging to another undertaking headed by The Brink’s Company during the entire period of the conduct defined in Article 1(1)(a) of the contested decision. |
| --- | --- |

4.

Fourth plea in law, alleging that the Commission breached Articles 101(1) and 296 TFEU, Article 41 of the Charter of Fundamental Rights of the European Union, Articles 4, 7 and 23(2) of Council Regulation No 1/2003 and the principles of personal liability and sound administration in holding the applicant liable for the conduct of BAX Global Ltd. (UK) and by fining solely the applicant for that conduct although BAX Global Ltd. (UK) had been a subsidiary belonging to another undertaking headed by The Brink’s Company during the entire period of the conduct defined in Article 1(1)(a) of the contested decision.

| 5. | Fifth plea in law, alleging that the Commission breached Articles 23 and 27 of Council Regulation No 1/2003, the applicant’s rights of defence, the 2006 Fining Guidelines (3), the principle that the punishment must fit the offence as well as the principles of sound administration, nulla poena sine culpa and proportionality and it committed a manifest error of assessment in determining the amount of the fine on the basis of turnover exceeding the maximum theoretical amount that could have been generated by the conduct defined in Article 1(1)(a) of the contested decision. |
| --- | --- |

5.

Fifth plea in law, alleging that the Commission breached Articles 23 and 27 of Council Regulation No 1/2003, the applicant’s rights of defence, the 2006 Fining Guidelines (3), the principle that the punishment must fit the offence as well as the principles of sound administration, nulla poena sine culpa and proportionality and it committed a manifest error of assessment in determining the amount of the fine on the basis of turnover exceeding the maximum theoretical amount that could have been generated by the conduct defined in Article 1(1)(a) of the contested decision.

| 6. | Sixth plea in law, alleging that the Commission breached Article 23 of Council Regulation No 1/2003, the Leniency Notice (4) as well as the principle of equal treatment and committed a manifest error of assessment in determining the applicant’s fine reduction rate. |
| --- | --- |

6.

Sixth plea in law, alleging that the Commission breached Article 23 of Council Regulation No 1/2003, the Leniency Notice (4) as well as the principle of equal treatment and committed a manifest error of assessment in determining the applicant’s fine reduction rate.

| 7. | Seventh plea in law, alleging that the Commission breached Article 23 of Council Regulation No 1/2003, the principle of equal treatment and committed a manifest error of assessment by refusing to initiate settlement talks under the Settlement Notice (5). |
| --- | --- |

7.

Seventh plea in law, alleging that the Commission breached Article 23 of Council Regulation No 1/2003, the principle of equal treatment and committed a manifest error of assessment by refusing to initiate settlement talks under the Settlement Notice (5).

---

(1)  Council Regulation No 141 of 26 November 1962 exempting transport from the application of Council Regulation No 17 (OJ, English Special Edition 1959-1962, p. 291).

(2)  Council Regulation No 1/2003 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).

(3)  Guidelines on the method of setting fines imposed pursuant to Art. 23(2)(a) of Reg. 1/2003 (OJ 2006 C 210, p. 2).

(4)  Commission Notice on immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 11).

(5)  Commission Notice on the conduct of settlement procedures in view of the adoption of Decisions pursuant to Art. 7 and Art. 23 of Reg. 1/2003 in cartel cases (OJ 2008 C 167, p. 1).

---

| 11.8.2012 | EN | Official Journal of the European Union | C 243/28 |
| --- | --- | --- | --- |

11.8.2012

EN

Official Journal of the European Union

C 243/28

---

Action brought on 12 June 2012 — Deutsche Bahn and Others v Commission

(Case T-267/12)

2012/C 243/50

Language of the case: English

Parties

Applicants: Deutsche Bahn AG (Berlin, Germany), Schenker AG (Essen, Germany), Schenker China Ltd (Shanghai, China), Schenker International (H.K.) Ltd (Hong Kong, China) (represented by: F. Montag and B. Kacholdt, lawyers, D. Colgan and T. Morgan, Solicitors)

Defendant: European Commission

Form of order sought

| — | Annul Articles 1(2)(g), 1(3)(a), 1(3)(b) and 1(4)(h) of European Commission’s decision of 28 March 2012 relating to proceedings under Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the EEA Agreement (Case COMP/39.462 — Freight Forwarding); |
| --- | --- |

—

Annul Articles 1(2)(g), 1(3)(a), 1(3)(b) and 1(4)(h) of European Commission’s decision of 28 March 2012 relating to proceedings under Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the EEA Agreement (Case COMP/39.462 — Freight Forwarding);

| — | Annul in total or, in the alternative, reduce fines set out in Articles 2(2)(g), 2(3)(a), 2(3)(b) and 2(4)(h) of the contested decision; and |
| --- | --- |

—

Annul in total or, in the alternative, reduce fines set out in Articles 2(2)(g), 2(3)(a), 2(3)(b) and 2(4)(h) of the contested decision; and

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

—

Order the defendant to pay the costs of the present proceedings.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging






  — | that the Commission infringed the applicants’ rights of defence, principles of a fair trial and sound administration by not terminating its investigation upon receipt of notice that evidence submitted by legal representatives on behalf of a certain company was tainted by a series of breaches of law; |
| --- | --- | --- |

1.

First plea in law, alleging

—

that the Commission infringed the applicants’ rights of defence, principles of a fair trial and sound administration by not terminating its investigation upon receipt of notice that evidence submitted by legal representatives on behalf of a certain company was tainted by a series of breaches of law;

| 2. | Second plea in law, alleging






  — | that the Commission exceeded its competence by adopting the contested decision although it was barred from doing so under Regulation No 141/1962 (1) |
| --- | --- | --- |

2.

Second plea in law, alleging

—

that the Commission exceeded its competence by adopting the contested decision although it was barred from doing so under Regulation No 141/1962 (1)

| 3. | Third plea in law, alleging






  — | that the Commission breached Articles 101(1) and 296 TFEU, Article 41 of the Charter of Fundamental Rights of the European Union, Articles 4, 7 and 23(2) of Regulation No 1/2003 and the principles of personal liability and sound administration in holding Schenker China Ltd liable for the conduct of BAX Global (China) Co. Ltd and by fining solely Schenker China Ltd for that conduct although BAX Global (China) Co. Ltd had been a subsidiary belonging to another undertaking headed by a certain company during most of the period of the conduct defined in Article 1(3)(a) of the contested decision; |
| --- | --- | --- |

3.

Third plea in law, alleging

—

that the Commission breached Articles 101(1) and 296 TFEU, Article 41 of the Charter of Fundamental Rights of the European Union, Articles 4, 7 and 23(2) of Regulation No 1/2003 and the principles of personal liability and sound administration in holding Schenker China Ltd liable for the conduct of BAX Global (China) Co. Ltd and by fining solely Schenker China Ltd for that conduct although BAX Global (China) Co. Ltd had been a subsidiary belonging to another undertaking headed by a certain company during most of the period of the conduct defined in Article 1(3)(a) of the contested decision;

| 4. | Fourth plea in law, alleging






  — | that the Commission breached Articles 23 and 27 of Regulation No 1/2003, the applicants’ rights of defence, the 2006 Fining Guidelines (2), the principle that the punishment must fit the offence, as well as the principles of sound administration, nulla poena sine culpa and proportionality and it committed a manifest error of assessment in determining the amount of the fines on the basis of turnover exceeding the maximum theoretical amount that could have been generated by the conduct defined in Articles 1(2)(g), 1(3)(a), 1(3)(b) and 1(4)(h) of the contested decision; |
| --- | --- | --- |

4.

Fourth plea in law, alleging

—

that the Commission breached Articles 23 and 27 of Regulation No 1/2003, the applicants’ rights of defence, the 2006 Fining Guidelines (2), the principle that the punishment must fit the offence, as well as the principles of sound administration, nulla poena sine culpa and proportionality and it committed a manifest error of assessment in determining the amount of the fines on the basis of turnover exceeding the maximum theoretical amount that could have been generated by the conduct defined in Articles 1(2)(g), 1(3)(a), 1(3)(b) and 1(4)(h) of the contested decision;

| 5. | Fifth plea in law, alleging






  — | that the Commission breached Article 23 of Regulation No 1/2003, the Leniency Notice (3), as well as the principle of equal treatment and committed a manifest error of assessment in determining the applicants’ fine reduction rates; |
| --- | --- | --- |

5.

Fifth plea in law, alleging

—

that the Commission breached Article 23 of Regulation No 1/2003, the Leniency Notice (3), as well as the principle of equal treatment and committed a manifest error of assessment in determining the applicants’ fine reduction rates;

| 6. | Sixth plea in law, alleging






  — | that the Commission breached Article 23 of Regulation No 1/2003, the principle of equal treatment and committed a manifest error of assessment by refusing to initiate settlement talks under the Settlement Notice (4). |
| --- | --- | --- |

6.

Sixth plea in law, alleging

—

that the Commission breached Article 23 of Regulation No 1/2003, the principle of equal treatment and committed a manifest error of assessment by refusing to initiate settlement talks under the Settlement Notice (4).

---

(1)  Council Regulation No 141 of 26 November 1962 exempting transport from the application of Council Regulation No 17 (OJ, English Special Edition 1959-1962, p. 291)

(2)  Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2)

(3)  Commission Notice on immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 11)

(4)  Commission Notice on the conduct of settlement procedures in view of the adoption of decisions pursuant to Articles 7 and 23 of Regulation No 1/2003 in cartel cases (OJ 2008 C 167, p. 1)

---

| 11.8.2012 | EN | Official Journal of the European Union | C 243/29 |
| --- | --- | --- | --- |

11.8.2012

EN

Official Journal of the European Union

C 243/29

---

Action brought on 18 June 2012 — Suwaid v Conseil

(Case T-268/12)

2012/C 243/51

Language of the case: English

Parties

Applicant: Joseph Suwaid (Damascus, Syria) (represented by: L. Defalque and T. Bontinck, lawyers)

Defendant: Council of the European Union

Form of order sought

| — | Annul paragraph 7, of Section A, of Annex I to Council implementing Decision 2012/172/CFSP of 23 March 2012 implementing Decision 2011/782/CFSP concerning restrictive measures against Syria (OJ L 87, p. 103); |
| --- | --- |

—

Annul paragraph 7, of Section A, of Annex I to Council implementing Decision 2012/172/CFSP of 23 March 2012 implementing Decision 2011/782/CFSP concerning restrictive measures against Syria (OJ L 87, p. 103);

| — | Annul paragraph 7, of Section A, of Annex I to Council implementing Regulation (EU) No 266/2012 of 23 March 2012 implementing Article 32(1) of Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria (OJ L 87, p. 45); |
| --- | --- |

—

Annul paragraph 7, of Section A, of Annex I to Council implementing Regulation (EU) No 266/2012 of 23 March 2012 implementing Article 32(1) of Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria (OJ L 87, p. 45);

| — | Failing that, declare the contested decision and regulation inapplicable to the applicant and order the removal of his name and personal data from the list of persons subject to EU sanctions; |
| --- | --- |

—

Failing that, declare the contested decision and regulation inapplicable to the applicant and order the removal of his name and personal data from the list of persons subject to EU sanctions;

| — | Order the defendant to pay all the costs and in particular all charges, fees and disbursements incurred by the present proceedings. |
| --- | --- |

—

Order the defendant to pay all the costs and in particular all charges, fees and disbursements incurred by the present proceedings.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging






  — | infringement of fundamental rights and procedural guarantees and violation of Article 21(2) of Council Decision 2011/782/CFSP and of Article 32(2) of Council Regulation No 36/2012 since the contested measures were not notified to the applicant and neither was he sent any evidence or serious indications to justify his inclusion in the list of persons subject to sanctions; |
| --- | --- | --- |

1.

First plea in law, alleging

—

infringement of fundamental rights and procedural guarantees and violation of Article 21(2) of Council Decision 2011/782/CFSP and of Article 32(2) of Council Regulation No 36/2012 since the contested measures were not notified to the applicant and neither was he sent any evidence or serious indications to justify his inclusion in the list of persons subject to sanctions;

| 2. | Second plea in law, alleging






  — | a manifest error of assessment since the applicant is not involved in the Syrian regime’s policy; |
| --- | --- | --- |

2.

Second plea in law, alleging

—

a manifest error of assessment since the applicant is not involved in the Syrian regime’s policy;

| 3. | Third plea in law, alleging






  — | infringement of the rights of defence, the principle of a fair trail, and the principle of effective judicial protection, in so far as the Council has not responded to the applicant’s request, and has therefore not explained why the applicant’s name was added to the sanctions’ lists, neither produced the evidence justifying his inclusion in these lists, nor offered him the opportunity of being heard orally, before and after, the disputed restrictive measures had been adopted; |
| --- | --- | --- |

3.

Third plea in law, alleging

—

infringement of the rights of defence, the principle of a fair trail, and the principle of effective judicial protection, in so far as the Council has not responded to the applicant’s request, and has therefore not explained why the applicant’s name was added to the sanctions’ lists, neither produced the evidence justifying his inclusion in these lists, nor offered him the opportunity of being heard orally, before and after, the disputed restrictive measures had been adopted;

| 4. | Fourth plea in law, alleging






  — | infringement of the duty to state reasons, in so far as the Council merely used an affirmative and vague wording in the contested decision and regulation, without providing detailed justification, when adopting the restrictive measures against the applicant; |
| --- | --- | --- |

4.

Fourth plea in law, alleging

—

infringement of the duty to state reasons, in so far as the Council merely used an affirmative and vague wording in the contested decision and regulation, without providing detailed justification, when adopting the restrictive measures against the applicant;

| 5. | Fifth plea in law, alleging






  — | that the Council is at fault in deliberately failing to mention in the contested acts fundamental rights and principles granted under EU law in the European Union. In this connection the applicant further stresses that the Council has adopted the contested acts on the basis of Article 215 TFUE, which provides no ‘democratic safeguards’. |
| --- | --- | --- |

5.

Fifth plea in law, alleging

—

that the Council is at fault in deliberately failing to mention in the contested acts fundamental rights and principles granted under EU law in the European Union. In this connection the applicant further stresses that the Council has adopted the contested acts on the basis of Article 215 TFUE, which provides no ‘democratic safeguards’.

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| 11.8.2012 | EN | Official Journal of the European Union | C 243/30 |
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Action brought on 18 June 2012 — Makro autoservicio mayorista v Commission

(Case T-269/12)

2012/C 243/52

Language of the case: English

Parties

Applicant: Makro autoservicio mayorista, SA (Madrid, Spain) (represented by: P. De Baere and P. Muñiz, lawyers)

Defendant: European Commission

Form of order sought

| — | Annul Commission Decision COM (2010) 22 final of 18 January 2010 finding that post-clearance entry in the accounts of import duties is justified and remission of those duties is not justified in a particular case (REM 2/08), notified to the applicant by a letter dated 19 April 2012; and |
| --- | --- |

—

Annul Commission Decision COM (2010) 22 final of 18 January 2010 finding that post-clearance entry in the accounts of import duties is justified and remission of those duties is not justified in a particular case (REM 2/08), notified to the applicant by a letter dated 19 April 2012; and

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging






  — | that import duties were entered in the account contrary to Article 220(2)(b) CCC (1), since the defendant erroneously considered that anti-dumping regulations adopted against imports from third countries are automatically applicable to goods in free circulation in the EU-Turkey customs union, and as a result, the defendant erroneously failed to inform traders that the AD Regulation concerned was also applicable to goods in free circulation in the EU-Turkey customs union. Alternatively, the Turkish authorities committed an error when they confirmed that the anti-dumping duties imposed on goods from third countries were not applicable to goods in free circulation in the EU-Turkey customs union. Further, the applicant submits that the Spanish customs authorities also committed an error since they assumed that goods accompanied by an A.TR certificate could not be subject to any additional duties or trade protection measures, and failed to inform economic operator that their imports from Turkey could be subject to trade measures, even if such goods were in free circulation. |
| --- | --- | --- |

1.

First plea in law, alleging

—

that import duties were entered in the account contrary to Article 220(2)(b) CCC (1), since the defendant erroneously considered that anti-dumping regulations adopted against imports from third countries are automatically applicable to goods in free circulation in the EU-Turkey customs union, and as a result, the defendant erroneously failed to inform traders that the AD Regulation concerned was also applicable to goods in free circulation in the EU-Turkey customs union. Alternatively, the Turkish authorities committed an error when they confirmed that the anti-dumping duties imposed on goods from third countries were not applicable to goods in free circulation in the EU-Turkey customs union. Further, the applicant submits that the Spanish customs authorities also committed an error since they assumed that goods accompanied by an A.TR certificate could not be subject to any additional duties or trade protection measures, and failed to inform economic operator that their imports from Turkey could be subject to trade measures, even if such goods were in free circulation.

| 2. | Second plea in law, alleging






  — | that the error committed by the competent customs authorities could not have been reasonably detected by the person liable for payment, having acted in good faith and complied with all the provisions laid down by legislation in force as regards the customs declaration. |
| --- | --- | --- |

2.

Second plea in law, alleging

—

that the error committed by the competent customs authorities could not have been reasonably detected by the person liable for payment, having acted in good faith and complied with all the provisions laid down by legislation in force as regards the customs declaration.

| 3. | Third plea in law, alleging






  — | that it finds itself in a special situation of Article 239 CCC, and that no deception or obvious negligence can be attributed to the applicant pursuant to Article 239 CCC. |
| --- | --- | --- |

3.

Third plea in law, alleging

—

that it finds itself in a special situation of Article 239 CCC, and that no deception or obvious negligence can be attributed to the applicant pursuant to Article 239 CCC.

---

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

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| 11.8.2012 | EN | Official Journal of the European Union | C 243/30 |
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Action brought on 12 June 2012 — Panalpina Welttransport and Others v Commission

(Case T-270/12)

2012/C 243/53

Language of the case: English

Parties

Applicants: Panalpina Welttransport (Holding) AG (Basel, Switzerland), Panalpina Management AG (Basel, Switzerland) and Panalpina China Ltd (Hong Kong, China) (represented by: S. Mobley, A. Stratakis, T. Grimmer and B. Smith, Solicitors)

Defendant: European Commission

Form of order sought

| — | Annul the Commission Decision of 28 March 2012 relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the EEA Agreement (Case COMP/39.462 — Freight Forwarding) in its entirety to the extent that it applies to the applicants; |
| --- | --- |

—

Annul the Commission Decision of 28 March 2012 relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the EEA Agreement (Case COMP/39.462 — Freight Forwarding) in its entirety to the extent that it applies to the applicants;

| — | In the alternative:






  — | insofar as the Court upholds the first and/or the second plea made by the applicants, modify Articles 2(2), 2(3) and 2(4) of the Decision as they pertain to the applicants, so as to annul or in the alternative reduce the fine imposed on the applicants therein; |
| --- | --- | --- |

—

In the alternative:

—

insofar as the Court upholds the first and/or the second plea made by the applicants, modify Articles 2(2), 2(3) and 2(4) of the Decision as they pertain to the applicants, so as to annul or in the alternative reduce the fine imposed on the applicants therein;

| — | insofar as the Court upholds the applicants’ third plea, annul or modify Article 1(2)(f) of the Decision to reflect the reduced duration of the infringement, and consequentially modify Article 2(2) of the Decision as it pertains to the applicants, so as to annul or reduce the fine imposed on the applicants therein; and |
| --- | --- |

—

insofar as the Court upholds the applicants’ third plea, annul or modify Article 1(2)(f) of the Decision to reflect the reduced duration of the infringement, and consequentially modify Article 2(2) of the Decision as it pertains to the applicants, so as to annul or reduce the fine imposed on the applicants therein; and

| — | insofar as the Court upholds the applicants’ fourth plea, modify Articles 2(2), 2(3) and 2(4) of the Decision as it pertains to the applicants, so as to annul or in the alternative reduce the fine imposed on the applicants therein; and, in any event; |
| --- | --- |

—

insofar as the Court upholds the applicants’ fourth plea, modify Articles 2(2), 2(3) and 2(4) of the Decision as it pertains to the applicants, so as to annul or in the alternative reduce the fine imposed on the applicants therein; and, in any event;

| — | Order that the Commission pay its own costs and the applicants’ costs in connection with these proceedings. |
| --- | --- |

—

Order that the Commission pay its own costs and the applicants’ costs in connection with these proceedings.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging that the Commission departed from its rules of practice, erred in law and breached its duty to state reasons, the principle of proportionality and the principle of equality in setting the basic amount of the fine by calculating the ‘value of sales’ relevant to the infringement on the basis of total sales to EEA customers. |
| --- | --- |

1.

First plea in law, alleging that the Commission departed from its rules of practice, erred in law and breached its duty to state reasons, the principle of proportionality and the principle of equality in setting the basic amount of the fine by calculating the ‘value of sales’ relevant to the infringement on the basis of total sales to EEA customers.

| 2. | Second plea in law, alleging that the Commission departed from its rules of practice, erred in law and breached its duty to state reasons, the principle of proportionality and the principle of equality in setting the basic amount of the fine by failing to take into account the particularities of the case and the nature of the industry in question (including the impact of the Air Cargo cartel). |
| --- | --- |

2.

Second plea in law, alleging that the Commission departed from its rules of practice, erred in law and breached its duty to state reasons, the principle of proportionality and the principle of equality in setting the basic amount of the fine by failing to take into account the particularities of the case and the nature of the industry in question (including the impact of the Air Cargo cartel).

| 3. | Third plea in law, alleging that the Commission erred in law by concluding that it had jurisdiction in respect of the advanced manifest system (‘AMS’) infringement prior to 1 May 2004. |
| --- | --- |

3.

Third plea in law, alleging that the Commission erred in law by concluding that it had jurisdiction in respect of the advanced manifest system (‘AMS’) infringement prior to 1 May 2004.

| 4. | Fourth plea in law, alleging that the Commission departed from its rules of practice by misapplying its discretion in relation to the settlement procedure. |
| --- | --- |

4.

Fourth plea in law, alleging that the Commission departed from its rules of practice by misapplying its discretion in relation to the settlement procedure.

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| 11.8.2012 | EN | Official Journal of the European Union | C 243/31 |
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Action brought on 15 June 2012 — Unister v OHIM (Ab in den Urlaub)

(Case T-273/12)

2012/C 243/54

Language of the case: German

Parties

Applicant: Unister GmbH (Leipzig, Germany) (represented by H. Hug and A. Kessler-Jensch, lawyers)

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

Form of order sought

| — | Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 3 April 2012 in Case R 2150/2011-1; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 3 April 2012 in Case R 2150/2011-1;

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

—

order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘Ab in den Urlaub’ for services in classes 35, 39, 41 and 43 — Community trade mark application No 9 692 286

Decision of the Examiner: Registration refused

Decision of the Board of Appeal: Appeal dismissed

Pleas in law:

| — | Infringement of Article 7(1)(b) of Regulation No 207/2009 |
| --- | --- |

—

Infringement of Article 7(1)(b) of Regulation No 207/2009

| — | Infringement of Article 7(3) of Regulation No 207/2009 |
| --- | --- |

—

Infringement of Article 7(3) of Regulation No 207/2009

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Action brought on 15 June 2012 — Alfastar Benelux v Council

(Case T-274/12)

2012/C 243/55

Language of the case: English

Parties

Applicant: Alfastar Benelux (Ixelles, Belgium) (represented by: N. Keramidas and N. Korogiannakis, lawyers)

Defendant: Council of the European Union

Form of order sought

| — | Declare and rule that the defendant has failed to fulfil its obligation under Article 266 TFEU, since, despite having been formally invited to do so, it failed to take any measure to comply with the judgment of the General Court of the European Union issued on 20 October 2011 in Case T-57/09 Alfastar Benelux v Council and to define its position in that regard within the time limit set thereon; |
| --- | --- |

—

Declare and rule that the defendant has failed to fulfil its obligation under Article 266 TFEU, since, despite having been formally invited to do so, it failed to take any measure to comply with the judgment of the General Court of the European Union issued on 20 October 2011 in Case T-57/09 Alfastar Benelux v Council and to define its position in that regard within the time limit set thereon;

| — | Order the defendant to take all necessary measures to comply with the judgment of the General Court of the European Union issued on 20 October 2011 in Case T-57/09 Alfastar Benelux v Council and to define its position in that regard; |
| --- | --- |

—

Order the defendant to take all necessary measures to comply with the judgment of the General Court of the European Union issued on 20 October 2011 in Case T-57/09 Alfastar Benelux v Council and to define its position in that regard;

| — | Order the defendant to pay to the applicant damages for the amount of EUR 20 000 based on Article 340 TFEU; and |
| --- | --- |

—

Order the defendant to pay to the applicant damages for the amount of EUR 20 000 based on Article 340 TFEU; and

| — | Order the defendant to pay the applicant’s legal and other costs and expenses incurred in connection with this application, even if the current application is rejected. |
| --- | --- |

—

Order the defendant to pay the applicant’s legal and other costs and expenses incurred in connection with this application, even if the current application is rejected.

Pleas in law and main arguments

In support of the action, the applicant relies on one plea in law, alleging that the defendant failed to fulfil its obligation under Article 266 TFEU, since, despite having been formally invited to do so, it failed to take any measure to comply with the judgment of the General Court of the European Union issued on 20 October 2011 in Case T-57/09 Alfastar Benelux v Council and to define its position in that regard within the time limit set thereon.

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| 11.8.2012 | EN | Official Journal of the European Union | C 243/32 |
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Action brought on 25 June 2012 — S.I.C.O.M v Commission

(Case T-279/12)

2012/C 243/56

Language of the case: Italian

Parties

Applicant: S.I.C.O.M. Srl — Società industriale per il confezionamento degli olii meridionale (Cercola, Italy) (represented by: R. Manzi, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | Declare that S.I.C.O.M. Srl, in liquidation, is owed by the Commission the sum of EUR 24 338,10 plus interest and adjustment to be calculated in accordance with Article 18(7) of Commission Regulation No 2519/1997, or such other sum as the Court may decide and, consequently, order the Commission to pay the sums thereby awarded; |
| --- | --- |

—

Declare that S.I.C.O.M. Srl, in liquidation, is owed by the Commission the sum of EUR 24 338,10 plus interest and adjustment to be calculated in accordance with Article 18(7) of Commission Regulation No 2519/1997, or such other sum as the Court may decide and, consequently, order the Commission to pay the sums thereby awarded;

| — | Consequently, order the Commission to pay the costs together with any tax or contribution due. |
| --- | --- |

—

Consequently, order the Commission to pay the costs together with any tax or contribution due.

Pleas in law and main arguments

The applicant in the present case is the successful tenderer in Action No 35 — adjudicated upon pursuant to Commission Regulation (EC) No 664/2001 of 2 April 2001 on the supply of vegetable oil as food aid (OJ 2001 L 93, p. 3) — concerning the provision of 500 tonnes of refined rapeseed oil, in 5-litre cans, which were delivered on a free-at-destination basis at Tombo PAM Warehouse in Guinea by 17 June 2001. The applicant challenges the fact that the Commission withheld part of the payment, imposing a penalty for late delivery and a further penalty for non-delivery.

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

| 1. | As regards the imposition of the penalty for non-delivery of goods, the applicant states that, in fact, the goods actually delivered amounted to 498,819 tonnes, namely, 1,435 tonnes less than that laid down in the call for tenders. In that connection, the applicant relies on the 1 % tolerance laid down in Article 17 of Commission Regulation (EC) No 2519/97 of 16 December 1997 laying down general rules for the mobilisation of products to be supplied under Council Regulation (EC) No 1292/96 as Community food aid (OJ 1997 L 346, p. 23). As regards Article 15 of that regulation, the applicant states that, in the present case, it is a fact that the goods actually delivered to the beneficiary amounted to 498,819 tonnes, as is apparent from the delivery certificate and, therefore, any subsequent event resulting in a reduction in the amount of goods could not have been attributable to the applicant. |
| --- | --- |

1.

As regards the imposition of the penalty for non-delivery of goods, the applicant states that, in fact, the goods actually delivered amounted to 498,819 tonnes, namely, 1,435 tonnes less than that laid down in the call for tenders. In that connection, the applicant relies on the 1 % tolerance laid down in Article 17 of Commission Regulation (EC) No 2519/97 of 16 December 1997 laying down general rules for the mobilisation of products to be supplied under Council Regulation (EC) No 1292/96 as Community food aid (OJ 1997 L 346, p. 23). As regards Article 15 of that regulation, the applicant states that, in the present case, it is a fact that the goods actually delivered to the beneficiary amounted to 498,819 tonnes, as is apparent from the delivery certificate and, therefore, any subsequent event resulting in a reduction in the amount of goods could not have been attributable to the applicant.

| 2. | As regards the penalty for late delivery, the applicant invokes the force majeure exemption with regard to the sudden delay of the motor vessel involved in the operation — near to the port of landing of Naples — and, consequently, the 30-day extension laid down in Article 14(15) of Regulation No 2519/97. On that point, the applicant also invokes Articles 22(4) and 25 of that regulation. |
| --- | --- |

2.

As regards the penalty for late delivery, the applicant invokes the force majeure exemption with regard to the sudden delay of the motor vessel involved in the operation — near to the port of landing of Naples — and, consequently, the 30-day extension laid down in Article 14(15) of Regulation No 2519/97. On that point, the applicant also invokes Articles 22(4) and 25 of that regulation.

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| 11.8.2012 | EN | Official Journal of the European Union | C 243/32 |
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Action brought on 22 June 2012 — FIS’D v Commission

(Case T-283/12)

2012/C 243/57

Language of the case: Italian

Parties

Applicant: FIS’D — Formazione integrata superiore del design (Catanzaro, Italy) (represented by: S. Baratti and A. Sodano, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul the contested decision; |
| --- | --- |

—

annul the contested decision;

| — | grant the requests for measures of organisation of procedure and/or for measures of inquiry; |
| --- | --- |

—

grant the requests for measures of organisation of procedure and/or for measures of inquiry;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

The present action is brought against the European Commission’s decision of 12 April 2012 (Ref. Ares (2012) 446225), which dismissed the applicant’s administrative appeal lodged under Article 22 of Council Regulation (EC) No 58/2003 of 19 December 2002 against the decision of the Education, Audiovisual and Culture Executive Agency (‘the EACEA’) of 13 January 2012 (‘Termination of the Framework Partnership Agreement 2011-0181, Erasmus Mundus Masters Course in City Regeneration’) terminating early the Framework Partnership Agreement 2011-0181 concluded under the Erasmus Mundus programme 2009-2013.

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

| 1. | First plea in law, alleging infringement of legal provisions in the form of a manifest error of assessment and failure to state adequate reasons:






  — | The applicant submits that the Commission failed to find that the EACEA clearly infringed (i) Sections II.A.1 and II.B.4 of the Administrative and Financial Handbook — which forms an integral part of the Specific Grant Agreement annexed to the Framework Partnership Agreement — and (ii) Article II.12.3 of the Framework Partnership Agreement, when the EACEA assessed the modified plan for the reCity Erasmus Mundus Master Course submitted by the Università degli Studi ‘Mediterranea’ di Reggio Calabria on 21 December 2011 on behalf of a consortium different from the original one. |
| --- | --- | --- |

1.

First plea in law, alleging infringement of legal provisions in the form of a manifest error of assessment and failure to state adequate reasons:

—

The applicant submits that the Commission failed to find that the EACEA clearly infringed (i) Sections II.A.1 and II.B.4 of the Administrative and Financial Handbook — which forms an integral part of the Specific Grant Agreement annexed to the Framework Partnership Agreement — and (ii) Article II.12.3 of the Framework Partnership Agreement, when the EACEA assessed the modified plan for the reCity Erasmus Mundus Master Course submitted by the Università degli Studi ‘Mediterranea’ di Reggio Calabria on 21 December 2011 on behalf of a consortium different from the original one.

| 2. | Second plea in law, alleging infringement of legal provisions in the form of a manifest error of assessment:






  — | In that connection, the applicant states that the Commission failed to find that the EACEA’s decision agreeing to the extension of the Specific Grant Agreement for funding the Masters Course underway — on the basis of the new plan submitted by the Università degli Studi ‘Mediterranea’ di Reggio Calabria on 21 December 2011 to be implemented by a consortium with a different membership from the original one — was vitiated by a manifest infringement of Articles I.3 and II.12.3 of the Framework Partnership Agreement, misuse of powers and, in particular, distortion, failure to fulfil an essential precondition, illogical and inconsistent reasoning and failure to state adequate reasons. |
| --- | --- | --- |

2.

Second plea in law, alleging infringement of legal provisions in the form of a manifest error of assessment:

—

In that connection, the applicant states that the Commission failed to find that the EACEA’s decision agreeing to the extension of the Specific Grant Agreement for funding the Masters Course underway — on the basis of the new plan submitted by the Università degli Studi ‘Mediterranea’ di Reggio Calabria on 21 December 2011 to be implemented by a consortium with a different membership from the original one — was vitiated by a manifest infringement of Articles I.3 and II.12.3 of the Framework Partnership Agreement, misuse of powers and, in particular, distortion, failure to fulfil an essential precondition, illogical and inconsistent reasoning and failure to state adequate reasons.

| 3. | Third plea in law, alleging infringement of legal provisions in the form of a manifest error of assessment and failure to state adequate reasons






  — | On that point, the applicant states that the Commission failed to find that, in terminating the Framework Partnership Agreement and agreeing to the extension of the Specific Grant Agreement for a plan with a different structure and content from that which had been used in the call for proposals, the EACEA infringed and misapplied Annex I to the Framework Partnership Agreement, misused its powers and, in particular, distorted the evidence, failed to fulfil an essential precondition, employed inconsistent reasoning, and failed to observe the general principle of sound administration and the related principles of good faith, transparency, impartiality and proportionality, and the principle of the protection of legitimate expectations. |
| --- | --- | --- |

3.

Third plea in law, alleging infringement of legal provisions in the form of a manifest error of assessment and failure to state adequate reasons

—

On that point, the applicant states that the Commission failed to find that, in terminating the Framework Partnership Agreement and agreeing to the extension of the Specific Grant Agreement for a plan with a different structure and content from that which had been used in the call for proposals, the EACEA infringed and misapplied Annex I to the Framework Partnership Agreement, misused its powers and, in particular, distorted the evidence, failed to fulfil an essential precondition, employed inconsistent reasoning, and failed to observe the general principle of sound administration and the related principles of good faith, transparency, impartiality and proportionality, and the principle of the protection of legitimate expectations.

---

European Union Civil Service Tribunal

| 11.8.2012 | EN | Official Journal of the European Union | C 243/34 |
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Action brought on 22 May 2012 — ZZ v Commission

(Case F-56/12)

2012/C 243/58

Language of the case: German

Parties

Applicant: ZZ (represented by: EurAA Anwälte für Arbeitnehmer Rechtsanwaltsgesellschaft mbH, lawyers)

Defendant: European Commission

Subject-matter and description of the proceedings

Application (i) for annulment of the Commission’s decision not to pay any pension contributions in respect of the applicant to the German pension insurance scheme or to the European Union pension scheme after the end of his contract for the period of his unemployment, and (ii) for the applicant to be included in the European Union pension scheme or for his pension rights to be transferred to the German pension insurance scheme.

Form of order sought

| — | Annul the decision of the authority authorised to conclude contracts of employment of the European Commission’s Directorate-General of 24 February 2012 (No R/813/11); |
| --- | --- |

—

Annul the decision of the authority authorised to conclude contracts of employment of the European Commission’s Directorate-General of 24 February 2012 (No R/813/11);

| — | order the defendant to include the applicant in the pension scheme for officials and other servants of the European Community for the period from 1 April 2008 to 31 August 2009 and to pay the appropriate contributions; |
| --- | --- |

—

order the defendant to include the applicant in the pension scheme for officials and other servants of the European Community for the period from 1 April 2008 to 31 August 2009 and to pay the appropriate contributions;

| — | in the alternative, order the defendant to apply to the German pension insurance scheme for retroactive insurance in respect of the applicant for the period from 1 April 2008 to 31 August 2009 and to pay statutory pension contributions for the applicant for German pension insurance; |
| --- | --- |

—

in the alternative, order the defendant to apply to the German pension insurance scheme for retroactive insurance in respect of the applicant for the period from 1 April 2008 to 31 August 2009 and to pay statutory pension contributions for the applicant for German pension insurance;

| — | in the alternative, declare that the defendant is obliged, from the date on which the applicant’s pension becomes payable, to pay to the applicant compensation for the amount by which the applicant’s pension is reduced in relation to the pension which he would receive if pension contributions at the statutory rate had been paid towards the State pension for the period from 1 April 2008 to 31 August 2009. |
| --- | --- |

—

in the alternative, declare that the defendant is obliged, from the date on which the applicant’s pension becomes payable, to pay to the applicant compensation for the amount by which the applicant’s pension is reduced in relation to the pension which he would receive if pension contributions at the statutory rate had been paid towards the State pension for the period from 1 April 2008 to 31 August 2009.

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Action brought on 08 June 2012 — ZZ v Commission

(Case F-60/12)

2012/C 243/59

Language of the case: English

Parties

Applicant: ZZ (represented by: E. Guerrieri Piaceri, lawyer)

Defendant: European Commission

Subject-matter and description of the proceedings

The annulment of the decision not to grant the Applicant six promotion points under the 2011 promotion procedure, the revision of the appraisal report and the attribution of the necessary points in order to be promoted to the grade AST 2.

Form of order sought

| — | Annul the appraisal report appraising the Applicant for the period 01.01.2010 — 31.12.2010 and the decision awarding the applicant two promotion points for the same period; |
| --- | --- |

—

Annul the appraisal report appraising the Applicant for the period 01.01.2010 — 31.12.2010 and the decision awarding the applicant two promotion points for the same period;

| — | as a consequence of the annulment, order the defendant to undertake a further examination of the appraisal report of the Applicant, awarding the necessary points for promoting her to AST2 with retroactive effect from 01.01.2011; |
| --- | --- |

—

as a consequence of the annulment, order the defendant to undertake a further examination of the appraisal report of the Applicant, awarding the necessary points for promoting her to AST2 with retroactive effect from 01.01.2011;

| — | order the defendant to pay the sum estimated ex aequo et bono EUR 20 000,00 (including procedure costs). |
| --- | --- |

—

order the defendant to pay the sum estimated ex aequo et bono EUR 20 000,00 (including procedure costs).

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Action brought on 25 June 2012 — ZZ v Commission

(Case F-65/12)

2012/C 243/60

Language of the case: French

Parties

Applicant: ZZ (represented by: D. Abreu Caldas, A. Coolen, J.-N. Louis, É. Marchal and S. Orlandi, lawyers)

Defendant: European Commission

Subject-matter and description of the proceedings

Annulment of the decision of the Commission not to grant the applicant family allowance in respect of his wife’s son of a previous marriage.

Form of order sought

| — | Annul the Commission’s decision of 17 August 2011 to refuse the applicant’s application of 20 July 2011, concerning his wife’s child, for family allowance and the advantages resulting therefrom and annual travel expenses; |
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Annul the Commission’s decision of 17 August 2011 to refuse the applicant’s application of 20 July 2011, concerning his wife’s child, for family allowance and the advantages resulting therefrom and annual travel expenses;

| — | Insofar as it is necessary, annul the decision rejecting his claim of 13 March 2012; |
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Insofar as it is necessary, annul the decision rejecting his claim of 13 March 2012;

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

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