# Official Journal C 79/2008

| | ISSN 1725-2423 |
| --- | --- |
| Official Journal
  of the European Union | C 79 |
| | |
| English edition | Information and Notices | Volume 5129 March 2008 |

ISSN 1725-2423

Official Journal

of the European Union

C 79

English edition

Information and Notices

Volume 5129 March 2008

---

| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES |
| | Court of Justice |
| 2008/C 079/01 | Last publication of the Court of Justice in the Official Journal of the European Union
  OJ C 64, 8.3.2008 | 1 |

Notice No

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Court of Justice

2008/C 079/01

Last publication of the Court of Justice in the Official Journal of the European Union
  OJ C 64, 8.3.2008

Official Journal of the European Union

1

| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2008/C 079/02 | Case C-380/05: Judgment of the Court (Fourth Chamber) of 31 January 2008 (reference for a preliminary ruling from the Consiglio di Stato (Italy) — Centro Europa 7 Srl v Ministero delle Comunicazioni e Autorità per le Garanzie nelle Comunicazioni, Direzione Generale Autorizzazioni e Concessioni Ministero delle Comunicazioni (Freedom to provide services — Electronic communications — Television broadcasting activities — New common regulatory framework — Allocation of radio frequencies) | 2 |
| 2008/C 079/03 | Case C-2/06: Judgment of the Court (Grand Chamber) of 12 February 2008 (reference for a preliminary ruling from the Finanzgericht Hamburg — Germany) — Willy Kempter KG v Hauptzollamt Hamburg-Jonas (Export of cattle — Export refunds — Final administrative decision — Interpretation of a judgment of the Court — Effect of a preliminary ruling given by the Court after that decision — Review and withdrawal — Time-limits — Legal certainty — Principle of cooperation — Article 10 EC) | 3 |
| 2008/C 079/04 | Case C-199/06: Judgment of the Court (Grand Chamber) of 12 February 2008 (Reference for a preliminary ruling from the Conseil d'État (France)) — Centre d'exportation du livre français (CELF), Ministre de la Culture et de la Communication v Société internationale de diffusion et d'édition (State aid — Article 88(3) EC — National courts — Recovery of unlawfully implemented aid — Aid declared compatible with the common market) | 3 |
| 2008/C 079/05 | Case C-244/06: Judgment of the Court (Third Chamber) of 14 February 2008 (reference for a preliminary ruling from the Landgericht Koblenz — Germany) — Dynamic Medien Vertriebs GmbH v Avides Media AG (Free movement of goods — Article 28 EC — Measures having equivalent effect — Directive 2000/31/EC — National rules prohibiting the sale by mail order of image storage media which have not been examined and classified by the competent authority for the purpose of protecting children and which do not bear a label from that authority indicating the age from which they may be viewed — Image storage media imported from another Member State which have been examined and classified by the competent authority of that State and bear an age-limit label — Justification — Child protection — Principle of proportionality) | 4 |
| 2008/C 079/06 | Case C-274/06: Judgment of the Court (Third Chamber) of 14 February 2008 — Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil its obligations — Article 56 EC — National provision limiting the voting rights of shareholders in undertakings in the energy sector — Limitation applicable to public bodies) | 4 |
| 2008/C 079/07 | Case C-419/06: Judgment of the Court (Fourth Chamber) of 14 February 2008 — Commission of the European Communities v Hellenic Republic (Failure of a Member State to fulfil obligations — State aid — Obligation to recover) | 5 |
| 2008/C 079/08 | Case C-449/06: Judgment of the Court (Fourth Chamber) of 14 February 2008 (reference for a preliminary ruling from the Tribunal du travail de Bruxelles (Belgium)) — Sophiane Gysen v Groupe S-Caisse d'Assurances sociales pour indépendants (Officials — Remuneration — Staff Regulations — Family allowances — Calculation of the amount of national family allowances — Determination of the ranking of the children — Child giving rise to entitlement to family allowances under the Staff Regulations) | 5 |
| 2008/C 079/09 | Case C-450/06: Judgment of the Court (Third Chamber) of 14 February 2008 (reference for a preliminary ruling from the Conseil d'État (Belgium)) — Varec SA v Belgian State (Public procurement — Review — Directive 89/665/EEC — Effective review — Meaning — Balance between the adversarial principle and the right to observance of business secrets — Protection, by the body responsible for the review, of the confidentiality of information provided by economic operators) | 6 |
| 2008/C 079/10 | Case C-32/07: Judgment of the Court (Fifth Chamber) of 31 January 2007 — Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil obligations — Directive 2001/84/EC — Copyright — Resale right for the benefit of the author of an original work of art) | 6 |
| 2008/C 079/11 | Case C-58/07: Judgment of the Court (Eighth Chamber) of 14 February 2008 — Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil its obligation — Directive 2003/110/EC — Assistance in cases of transit for the purposes of removal by air — Failure to transpose within the prescribed period) | 7 |
| 2008/C 079/12 | Case C-69/07: Judgment of the Court (Eighth Chamber) of 31 January 2008 — Commission of the European Communities v Italian Republic (Failure of Member State to fulfil obligations — Directive 2003/35/EC — Environment — Public participation in respect of the drawing up of certain plans and programmes — Failure to transpose within the period prescribed) | 7 |
| 2008/C 079/13 | Case C-103/07 P: Judgment of the Court (Seventh Chamber) of 31 January 2008 — Angel Angelidis v European Parliament (Appeal — Officials — Staff report — Single assessor — Conditions — Consultation of preceding immediate superior — Lack of change in post — Reasoning — Annulment — Damages) | 8 |
| 2008/C 079/14 | Case C-147/07: Judgment of the Court (Seventh Chamber) of 31 January 2008 — Commission of the European Communities v French Republic (Failure of a Member State to fulfil obligations — Directives 80/778/EEC and 98/83/EC — Quality of water intended for human consumption — Maximum concentrations of nitrates and pesticides — Incorrect application) | 8 |
| 2008/C 079/15 | Case C-259/07: Judgment of the Court (Sixth Chamber) of 31 January 2008 — Commission of the European Communities v Kingdom of Sweden (Failure of a Member State to fulfil obligations — Directive 2005/51/EC — Public procurement — Procedure for the award of public contracts — Failure to transpose within the prescribed period) | 9 |
| 2008/C 079/16 | Case C-264/07: Judgment of the Court (Seventh Chamber) of 31 January 2008 — Commission of the European Communities v Hellenic Republic (Failure of a Member State to fulfil obligations — Directive 2000/60/EC — Protection and management of water — Failure to undertake the analyses and reviews required — Failure to submit the summary reports required) | 9 |
| 2008/C 079/17 | Case C-268/07: Judgment of the Court (Seventh Chamber) of 31 January 2008 — Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Directive 2004/17/EC — Public procurement proceedings in the water, energy, transport and postal services sectors) | 10 |
| 2008/C 079/18 | Case C-107/07 P: Order of the Court of 29 November 2007 — Friedrich Weber v Commission of the European Communities (Appeal — Refusal of access to documents — Manifest inadmissibility) | 10 |
| 2008/C 079/19 | Case C-361/07: Order of the Court (Seventh Chamber) of 16 January 2008 (reference for a preliminary ruling from the Conseil de prud'hommes de Beauvais (France)) — Olivier Polier v Najar EURL (Reference for a preliminary ruling — Charter of Fundamental Rights of the European Union — Convention No 158 of the International Labour Organisation — European Social Charter — Dismissal of an employee without valid reason — Manifest lack of jurisdiction of the Court) | 11 |
| 2008/C 079/20 | Case C-344/07 P: Appeal brought on 25 July 2007 by Focus Magazin Verlag GmbH against the judgment of the Court of First Instance (Third Chamber) delivered on 16 May 2007 in Case T-491/04 Merant GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Intervener: Focus Magazin Verlag GmbH | 11 |
| 2008/C 079/21 | Case C-555/07: Reference for a preliminary ruling from the Landesarbeitsgericht Düsseldorf (Germany) lodged on 13 December 2007 — Seda Kücükdeveci v Swedex GmbH & Co. KG | 12 |
| 2008/C 079/22 | Case C-564/07: Action brought on 21 December 2007 — Commission of the European Communities v Republic of Austria | 12 |
| 2008/C 079/23 | Case C-570/07: Reference for a preliminary ruling from the Tribunal Superior de Justicia de Asturias (Spain) lodged on 24 December 2007 — José Manuel Blanco Pérez and Maria del Pilar Chao Gómez v Consejería de Salud y Servicios Sanitarios del Principado de Asturias, Federación Empresarial de Farmacéuticos Españoles and Plataforma para la Libre Apertura de Farmacias | 13 |
| 2008/C 079/24 | Case C-571/07: Reference for a preliminary ruling from the Tribunal Superior de Justicia de Asturias (Spain) lodged on 27 December 2007 — José Manuel Blanco Pérez and Maria del Pilar Chao Gómez v Consejería de Salud y Servicios Sanitarios del Principado de Asturias and Celso Fernandez Gómez | 14 |
| 2008/C 079/25 | Case C-572/07: Reference for a preliminary ruling from the Krajský Soud v Ústí nad Labem (Czech Republic) lodged on 24 December 2007 — RLRE Tellmer Property s.r.o. v Finanční ředitelství v Ústí nad Labem | 14 |
| 2008/C 079/26 | Case C-2/08: Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 2 January 2008 — Amministrazione dell'Economia e delle Finanze Agenzia delle Entrate v Olimpiclub Srl | 14 |
| 2008/C 079/27 | Case C-3/08: Reference for a preliminary ruling from the Tribunal du travail de Nivelles (Belgium) lodged on 8 January 2008 — Ketty Leyman v Institut national d'assurance maladie-invalidité (I.N.A.M.I.) | 15 |
| 2008/C 079/28 | Case C-4/08: Reference for a preliminary ruling from the Verwaltungsgerichtshof Baden-Württemberg (Germany) lodged on 4 January 2008 — Michael Mario Karl Kerner v Land Baden-Württemberg | 15 |
| 2008/C 079/29 | Case C-10/08: Action brought on 9 January 2008 — Commission of the European Communities v Republic of Finland | 16 |
| 2008/C 079/30 | Case C-12/08: Reference for a preliminary ruling from the Cour du travail de Liège (Belgium) lodged on 11 January 2008 — Mono Car Styling SA, in liquidation v Dervis Odemis, Marc Bayard, Pietro Dimola, Danielle Marra, Youssef Belkaid, Marie-Christine Henri, Philippe Tistaert, Richard Toussaint, Alexandre Van Rutten, François Cristantielli, Khalid Zari, Isabelle Longaretti, Luigi Deiana, Vincent Hellinx, Christophe Novelli, Domenico Castronovo, Rachid Hitti, Alberto D'Errico, Marco Quaranta, Primo Pecci, Giuseppe Montaperto | 17 |
| 2008/C 079/31 | Case C-17/08 P: Appeal brought on 17 January 2008 by MPDV Mikrolab GmbH, Mikroprozessordatenverarbeitung und Mikroprozessorlabor against the judgment of the Court of First Instance (First Chamber) delivered on 8 November 2007 in Case T-459/05 MPDV Mikrolab GmbH, Mikroprozessordatenverarbeitung und Mikroprozessorlabor v Office for Harmonisation in the Internal Market (Trade Marks and Designs) | 18 |
| 2008/C 079/32 | Case C-18/08: Reference for a preliminary ruling from the Tribunal d'Instance de Bordeaux (France) lodged on 21 January 2008 — Foselev Sud-Ouest SARL v Administration des douanes et des droits indirects | 19 |
| 2008/C 079/33 | Case C-20/08 P: Appeal brought on 22 January 2008 by Enercon GmbH against the judgment of the Court of First Instance (Fifth Chamber) delivered on 15 November 2007 in Case T-71/06 Enercon GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) | 19 |
| 2008/C 079/34 | Case C-24/08: Action brought on 22 January 2008 — Commission of the European Communities v Republic of Portugal | 20 |
| 2008/C 079/35 | Case C-25/08 P: Appeal brought on 24 January 2008 by Giuseppe Gargani against the order of the Court of First Instance (Third Chamber) of 21 November 2007 in Case T-94/06 Giuseppe Gargani v European Parliament | 20 |
| 2008/C 079/36 | Case C-28/08 P: Appeal brought on 24 January 2008 by Commission of the European Communities against the judgment of the Court of First Instance (Third Chamber) delivered on 8 November 2007 in Case T-194/04: Commission of the European Communities v The Bavarian Lager Co. Ltd, European Data Protection Supervisor (EDPS) | 21 |
| 2008/C 079/37 | Case C-29/08: Reference for a preliminary ruling from the Regeringsrätten (Sweden) lodged on 25 January 2008 — Skatteverket v AB SKF | 22 |
| 2008/C 079/38 | Case C-30/08: Action brought on 25 January 2008 — Commission of the European Communities v Italian Republic | 22 |
| 2008/C 079/39 | Case C-31/08: Action brought on 25 January 2008 — Commission of the European Communities v Italian Republic | 23 |
| 2008/C 079/40 | Case C-307/06: Order of the President of the Court of the Court of 21 January 2008 — Commission of the European Communities v Federal Republic of Germany | 23 |
| 2008/C 079/41 | Case C-496/06: Order of the President of the Court of 21 January 2008 — Commission of the European Communities v Federal Republic of Germany | 23 |
| 2008/C 079/42 | Case C-65/07: Order of the President of the Eighth Chamber of the Court of 20 December 2007 — Commission of the European Communities v Ireland | 23 |
| 2008/C 079/43 | Case C-192/07: Order of the President of the Court of 24 January 2008 — Commission of the European Communities v Federal Republic of Germany | 23 |
| 2008/C 079/44 | Case C-329/07: Order of the President of the Court of 11 January 2008 — Commission of the European Communities v French Republic | 24 |
| 2008/C 079/45 | Case C-433/07: Order of the President of the Court of 24 January 2008 — Commission of the European Communities v Portuguese Republic | 24 |
| 2008/C 079/46 | Case C-434/07: Order of the President of the Court of 17 January 2008 — Commission of the European Communities v Portuguese Republic | 24 |
| 2008/C 079/47 | Case C-435/07: Order of the President of the Court of 23 January 2008 — Commission of the European Communities v Portuguese Republic | 24 |
| | Court of First Instance |
| 2008/C 079/48 | Case T-289/03: Judgment of the Court of First Instance of 12 February 2008 — BUPA and Others v Commission (State aid — Risk equalisation scheme introduced by Ireland on the private medical insurance market — Aid system — Services of general economic interest — Article 86(2) EC — Commission decision not to raise objections — Action for annulment — Admissibility — Principles of necessity and proportionality) | 25 |
| 2008/C 079/49 | Case T-39/04: Judgment of the Court of First Instance of 14 February 2008 — Orsay v OHIM — Jiménez Arellano (O orsay) (Community trade mark — Opposition procedure — Application for the word and figurative trade mark O orsay — Earlier national word and figurative trade mark D'ORSAY — Ground for refusal — Risk of confusion — Article 8(1)(b) of Regulation (EC) No 40/94) | 25 |
| 2008/C 079/50 | Case T-266/04: Judgment of the Court of First Instance of 14 February 2008 — Spain v Commission (EAGGF — Guarantee Section — Expenditure excluded from Community financing — Withdrawal of fruit and vegetables — Check on all products withdrawn — Arable crops and beef premiums — Period of 24 months) | 26 |
| 2008/C 079/51 | Case T-378/04: Judgment of the Court of First Instance of 14 February 2008 — Orsay v OHIM — Jiménez Arellano (Orsay) (Community trade mark — Opposition procedure — Application for the word and figurative trade mark Orsay — Earlier national word and figurative trade mark D'ORSAY — Ground for refusal — Risk of confusion — Article 8(1)(b) of Regulation (EC) No 40/94) | 26 |
| 2008/C 079/52 | Case T-189/05: Judgment of the Court of First Instance of 14 February 2008 — Usinor v OHIM — Corus UK (GALVALLOY) (Community trade mark — Opposition proceedings — Application for Community word mark GALVALLOY — Earlier national word mark GALVALLIA — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94) | 27 |
| 2008/C 079/53 | Case T-351/05: Judgment of the Court of First Instance of 14 February 2008 — Provincia di Imperia v Commission (European Social Fund — Community financial aid in the area of innovative measures under Article 6 of Regulation (EC) No 1784/1999 — Call for proposals — Rejection of the proposal) | 27 |
| 2008/C 079/54 | Case T-146/06: Judgment of the Court of First Instance of 13 February 2008 — Sanofi-Aventis v OHIM (Community trade mark — Opposition proceedings — Application for Community word mark ATURION — Earlier national mark URION — Relative ground for refusal — Lack of likelihood of confusion — Lack of similarity between the signs — Article 8(1)(b) of Regulation (EC) No 40/94) | 27 |
| 2008/C 079/55 | Case T-472/07: Action brought on 21 December 2007 — Enercon v OHIM — Hasbro (ENERCON) | 28 |
| 2008/C 079/56 | Case T-474/07: Action brought on 21 December 2007 — Commission v CAE Consulting | 28 |
| 2008/C 079/57 | Case T-13/08: Action brought on 4 January 2008 — Kinotita Grammatikou v Commission | 29 |
| 2008/C 079/58 | Case T-29/08: Action brought on 18 January 2008 — Liga para a Protecção da Natureza v Commission of the European Communities | 29 |
| 2008/C 079/59 | Case T-30/08: Action brought on 23 January 2008 — Winzer Pharma v OHIM — Oftaltech (OFTASIL) | 30 |
| 2008/C 079/60 | Case T-33/08: Action brought on 18 January 2008 — Bastos Viegas v OHIM — Pierre Fabre Médicament (OPDREX) | 31 |
| 2008/C 079/61 | Case T-34/08: Action brought on 21 January 2008 — Berliner Institut für Vergleichende Sozialforschung v Commission | 31 |
| 2008/C 079/62 | Case T-36/08: Action brought on 28 January 2008 — Furukawa Electric North America v OHIM (SLIM LINE) | 32 |
| 2008/C 079/63 | Case T-46/08 P: Appeal brought on 28 January 2008 by Luigi Marcuccio against the judgment of the Civil Service Tribunal delivered on 6 December 2007 in Case F-40/06, Marcuccio v Commission | 32 |
| 2008/C 079/64 | Case T-53/08: Action brought on 31 January 2008 — Italy v Commission | 33 |
| 2008/C 079/65 | Case T-54/08: Action brought on 4 February 2008 — Republic of Cyprus v Commission | 34 |
| | European Union Civil Service Tribunal |
| 2008/C 079/66 | Case F-80/06: Order of the Civil Service Tribunal (First Chamber) of 25 January 2008 — Duyster v Commission (Civil Service — Officials — Parental leave — Application to withdraw parental leave — Lis pendens — Manifest inadmissibility) | 35 |
| 2008/C 079/67 | Case F-77/07: Order of the Civil Service Tribunal (First Chamber) of 1 February 2008 — Kay Labate v Commission of the European Communities (Staff cases — Officials — Social security — Insurance against the risk of accident and occupational disease — Occupational disease — Lung cancer — Passive smoking — No need to adjudicate) | 35 |
| 2008/C 079/68 | Case F-50/07: Action brought on 17 December 2007 — Hristova v Commission | 36 |
| 2008/C 079/69 | Case F-113/07: Action brought on 18 October 2007 — Šimonis v Commission | 36 |
| 2008/C 079/70 | Case F-125/07: Action brought on 29 October 2007 — Hau v European Parliament | 37 |
| 2008/C 079/71 | Case F-136/07: Action brought on 6 December 2007 — Nijs v Court of Auditors | 37 |
| 2008/C 079/72 | Case F-137/07: Action brought on 4 December 2007 — Sergio and Others v Commission | 37 |
| 2008/C 079/73 | Case F-142/07: Action brought on 19 December 2007 — Kaminska v Committee of the Regions | 38 |
| 2008/C 079/74 | Case F-145/07: Action brought on 27 December 2007 — Bosman v Council | 38 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2008/C 079/02

Case C-380/05: Judgment of the Court (Fourth Chamber) of 31 January 2008 (reference for a preliminary ruling from the Consiglio di Stato (Italy) — Centro Europa 7 Srl v Ministero delle Comunicazioni e Autorità per le Garanzie nelle Comunicazioni, Direzione Generale Autorizzazioni e Concessioni Ministero delle Comunicazioni (Freedom to provide services — Electronic communications — Television broadcasting activities — New common regulatory framework — Allocation of radio frequencies)

2

2008/C 079/03

Case C-2/06: Judgment of the Court (Grand Chamber) of 12 February 2008 (reference for a preliminary ruling from the Finanzgericht Hamburg — Germany) — Willy Kempter KG v Hauptzollamt Hamburg-Jonas (Export of cattle — Export refunds — Final administrative decision — Interpretation of a judgment of the Court — Effect of a preliminary ruling given by the Court after that decision — Review and withdrawal — Time-limits — Legal certainty — Principle of cooperation — Article 10 EC)

3

2008/C 079/04

Case C-199/06: Judgment of the Court (Grand Chamber) of 12 February 2008 (Reference for a preliminary ruling from the Conseil d'État (France)) — Centre d'exportation du livre français (CELF), Ministre de la Culture et de la Communication v Société internationale de diffusion et d'édition (State aid — Article 88(3) EC — National courts — Recovery of unlawfully implemented aid — Aid declared compatible with the common market)

3

2008/C 079/05

Case C-244/06: Judgment of the Court (Third Chamber) of 14 February 2008 (reference for a preliminary ruling from the Landgericht Koblenz — Germany) — Dynamic Medien Vertriebs GmbH v Avides Media AG (Free movement of goods — Article 28 EC — Measures having equivalent effect — Directive 2000/31/EC — National rules prohibiting the sale by mail order of image storage media which have not been examined and classified by the competent authority for the purpose of protecting children and which do not bear a label from that authority indicating the age from which they may be viewed — Image storage media imported from another Member State which have been examined and classified by the competent authority of that State and bear an age-limit label — Justification — Child protection — Principle of proportionality)

4

2008/C 079/06

Case C-274/06: Judgment of the Court (Third Chamber) of 14 February 2008 — Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil its obligations — Article 56 EC — National provision limiting the voting rights of shareholders in undertakings in the energy sector — Limitation applicable to public bodies)

4

2008/C 079/07

Case C-419/06: Judgment of the Court (Fourth Chamber) of 14 February 2008 — Commission of the European Communities v Hellenic Republic (Failure of a Member State to fulfil obligations — State aid — Obligation to recover)

5

2008/C 079/08

Case C-449/06: Judgment of the Court (Fourth Chamber) of 14 February 2008 (reference for a preliminary ruling from the Tribunal du travail de Bruxelles (Belgium)) — Sophiane Gysen v Groupe S-Caisse d'Assurances sociales pour indépendants (Officials — Remuneration — Staff Regulations — Family allowances — Calculation of the amount of national family allowances — Determination of the ranking of the children — Child giving rise to entitlement to family allowances under the Staff Regulations)

5

2008/C 079/09

Case C-450/06: Judgment of the Court (Third Chamber) of 14 February 2008 (reference for a preliminary ruling from the Conseil d'État (Belgium)) — Varec SA v Belgian State (Public procurement — Review — Directive 89/665/EEC — Effective review — Meaning — Balance between the adversarial principle and the right to observance of business secrets — Protection, by the body responsible for the review, of the confidentiality of information provided by economic operators)

6

2008/C 079/10

Case C-32/07: Judgment of the Court (Fifth Chamber) of 31 January 2007 — Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil obligations — Directive 2001/84/EC — Copyright — Resale right for the benefit of the author of an original work of art)

6

2008/C 079/11

Case C-58/07: Judgment of the Court (Eighth Chamber) of 14 February 2008 — Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil its obligation — Directive 2003/110/EC — Assistance in cases of transit for the purposes of removal by air — Failure to transpose within the prescribed period)

7

2008/C 079/12

Case C-69/07: Judgment of the Court (Eighth Chamber) of 31 January 2008 — Commission of the European Communities v Italian Republic (Failure of Member State to fulfil obligations — Directive 2003/35/EC — Environment — Public participation in respect of the drawing up of certain plans and programmes — Failure to transpose within the period prescribed)

7

2008/C 079/13

Case C-103/07 P: Judgment of the Court (Seventh Chamber) of 31 January 2008 — Angel Angelidis v European Parliament (Appeal — Officials — Staff report — Single assessor — Conditions — Consultation of preceding immediate superior — Lack of change in post — Reasoning — Annulment — Damages)

8

2008/C 079/14

Case C-147/07: Judgment of the Court (Seventh Chamber) of 31 January 2008 — Commission of the European Communities v French Republic (Failure of a Member State to fulfil obligations — Directives 80/778/EEC and 98/83/EC — Quality of water intended for human consumption — Maximum concentrations of nitrates and pesticides — Incorrect application)

8

2008/C 079/15

Case C-259/07: Judgment of the Court (Sixth Chamber) of 31 January 2008 — Commission of the European Communities v Kingdom of Sweden (Failure of a Member State to fulfil obligations — Directive 2005/51/EC — Public procurement — Procedure for the award of public contracts — Failure to transpose within the prescribed period)

9

2008/C 079/16

Case C-264/07: Judgment of the Court (Seventh Chamber) of 31 January 2008 — Commission of the European Communities v Hellenic Republic (Failure of a Member State to fulfil obligations — Directive 2000/60/EC — Protection and management of water — Failure to undertake the analyses and reviews required — Failure to submit the summary reports required)

9

2008/C 079/17

Case C-268/07: Judgment of the Court (Seventh Chamber) of 31 January 2008 — Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Directive 2004/17/EC — Public procurement proceedings in the water, energy, transport and postal services sectors)

10

2008/C 079/18

Case C-107/07 P: Order of the Court of 29 November 2007 — Friedrich Weber v Commission of the European Communities (Appeal — Refusal of access to documents — Manifest inadmissibility)

10

2008/C 079/19

Case C-361/07: Order of the Court (Seventh Chamber) of 16 January 2008 (reference for a preliminary ruling from the Conseil de prud'hommes de Beauvais (France)) — Olivier Polier v Najar EURL (Reference for a preliminary ruling — Charter of Fundamental Rights of the European Union — Convention No 158 of the International Labour Organisation — European Social Charter — Dismissal of an employee without valid reason — Manifest lack of jurisdiction of the Court)

11

2008/C 079/20

Case C-344/07 P: Appeal brought on 25 July 2007 by Focus Magazin Verlag GmbH against the judgment of the Court of First Instance (Third Chamber) delivered on 16 May 2007 in Case T-491/04 Merant GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Intervener: Focus Magazin Verlag GmbH

Merant GmbH

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

11

2008/C 079/21

Case C-555/07: Reference for a preliminary ruling from the Landesarbeitsgericht Düsseldorf (Germany) lodged on 13 December 2007 — Seda Kücükdeveci v Swedex GmbH & Co. KG

12

2008/C 079/22

Case C-564/07: Action brought on 21 December 2007 — Commission of the European Communities v Republic of Austria

12

2008/C 079/23

Case C-570/07: Reference for a preliminary ruling from the Tribunal Superior de Justicia de Asturias (Spain) lodged on 24 December 2007 — José Manuel Blanco Pérez and Maria del Pilar Chao Gómez v Consejería de Salud y Servicios Sanitarios del Principado de Asturias, Federación Empresarial de Farmacéuticos Españoles and Plataforma para la Libre Apertura de Farmacias

13

2008/C 079/24

Case C-571/07: Reference for a preliminary ruling from the Tribunal Superior de Justicia de Asturias (Spain) lodged on 27 December 2007 — José Manuel Blanco Pérez and Maria del Pilar Chao Gómez v Consejería de Salud y Servicios Sanitarios del Principado de Asturias and Celso Fernandez Gómez

14

2008/C 079/25

Case C-572/07: Reference for a preliminary ruling from the Krajský Soud v Ústí nad Labem (Czech Republic) lodged on 24 December 2007 — RLRE Tellmer Property s.r.o. v Finanční ředitelství v Ústí nad Labem

14

2008/C 079/26

Case C-2/08: Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 2 January 2008 — Amministrazione dell'Economia e delle Finanze Agenzia delle Entrate v Olimpiclub Srl

14

2008/C 079/27

Case C-3/08: Reference for a preliminary ruling from the Tribunal du travail de Nivelles (Belgium) lodged on 8 January 2008 — Ketty Leyman v Institut national d'assurance maladie-invalidité (I.N.A.M.I.)

15

2008/C 079/28

Case C-4/08: Reference for a preliminary ruling from the Verwaltungsgerichtshof Baden-Württemberg (Germany) lodged on 4 January 2008 — Michael Mario Karl Kerner v Land Baden-Württemberg

15

2008/C 079/29

Case C-10/08: Action brought on 9 January 2008 — Commission of the European Communities v Republic of Finland

16

2008/C 079/30

Case C-12/08: Reference for a preliminary ruling from the Cour du travail de Liège (Belgium) lodged on 11 January 2008 — Mono Car Styling SA, in liquidation v Dervis Odemis, Marc Bayard, Pietro Dimola, Danielle Marra, Youssef Belkaid, Marie-Christine Henri, Philippe Tistaert, Richard Toussaint, Alexandre Van Rutten, François Cristantielli, Khalid Zari, Isabelle Longaretti, Luigi Deiana, Vincent Hellinx, Christophe Novelli, Domenico Castronovo, Rachid Hitti, Alberto D'Errico, Marco Quaranta, Primo Pecci, Giuseppe Montaperto

17

2008/C 079/31

Case C-17/08 P: Appeal brought on 17 January 2008 by MPDV Mikrolab GmbH, Mikroprozessordatenverarbeitung und Mikroprozessorlabor against the judgment of the Court of First Instance (First Chamber) delivered on 8 November 2007 in Case T-459/05 MPDV Mikrolab GmbH, Mikroprozessordatenverarbeitung und Mikroprozessorlabor v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

MPDV Mikrolab GmbH, Mikroprozessordatenverarbeitung und Mikroprozessorlabor

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

18

2008/C 079/32

Case C-18/08: Reference for a preliminary ruling from the Tribunal d'Instance de Bordeaux (France) lodged on 21 January 2008 — Foselev Sud-Ouest SARL v Administration des douanes et des droits indirects

19

2008/C 079/33

Case C-20/08 P: Appeal brought on 22 January 2008 by Enercon GmbH against the judgment of the Court of First Instance (Fifth Chamber) delivered on 15 November 2007 in Case T-71/06 Enercon GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

19

2008/C 079/34

Case C-24/08: Action brought on 22 January 2008 — Commission of the European Communities v Republic of Portugal

20

2008/C 079/35

Case C-25/08 P: Appeal brought on 24 January 2008 by Giuseppe Gargani against the order of the Court of First Instance (Third Chamber) of 21 November 2007 in Case T-94/06 Giuseppe Gargani v European Parliament

20

2008/C 079/36

Case C-28/08 P: Appeal brought on 24 January 2008 by Commission of the European Communities against the judgment of the Court of First Instance (Third Chamber) delivered on 8 November 2007 in Case T-194/04: Commission of the European Communities v The Bavarian Lager Co. Ltd, European Data Protection Supervisor (EDPS)

21

2008/C 079/37

Case C-29/08: Reference for a preliminary ruling from the Regeringsrätten (Sweden) lodged on 25 January 2008 — Skatteverket v AB SKF

22

2008/C 079/38

Case C-30/08: Action brought on 25 January 2008 — Commission of the European Communities v Italian Republic

22

2008/C 079/39

Case C-31/08: Action brought on 25 January 2008 — Commission of the European Communities v Italian Republic

23

2008/C 079/40

Case C-307/06: Order of the President of the Court of the Court of 21 January 2008 — Commission of the European Communities v Federal Republic of Germany

23

2008/C 079/41

Case C-496/06: Order of the President of the Court of 21 January 2008 — Commission of the European Communities v Federal Republic of Germany

23

2008/C 079/42

Case C-65/07: Order of the President of the Eighth Chamber of the Court of 20 December 2007 — Commission of the European Communities v Ireland

23

2008/C 079/43

Case C-192/07: Order of the President of the Court of 24 January 2008 — Commission of the European Communities v Federal Republic of Germany

23

2008/C 079/44

Case C-329/07: Order of the President of the Court of 11 January 2008 — Commission of the European Communities v French Republic

24

2008/C 079/45

Case C-433/07: Order of the President of the Court of 24 January 2008 — Commission of the European Communities v Portuguese Republic

24

2008/C 079/46

Case C-434/07: Order of the President of the Court of 17 January 2008 — Commission of the European Communities v Portuguese Republic

24

2008/C 079/47

Case C-435/07: Order of the President of the Court of 23 January 2008 — Commission of the European Communities v Portuguese Republic

24

Court of First Instance

2008/C 079/48

Case T-289/03: Judgment of the Court of First Instance of 12 February 2008 — BUPA and Others v Commission (State aid — Risk equalisation scheme introduced by Ireland on the private medical insurance market — Aid system — Services of general economic interest — Article 86(2) EC — Commission decision not to raise objections — Action for annulment — Admissibility — Principles of necessity and proportionality)

25

2008/C 079/49

Case T-39/04: Judgment of the Court of First Instance of 14 February 2008 — Orsay v OHIM — Jiménez Arellano (O orsay) (Community trade mark — Opposition procedure — Application for the word and figurative trade mark O orsay — Earlier national word and figurative trade mark D'ORSAY — Ground for refusal — Risk of confusion — Article 8(1)(b) of Regulation (EC) No 40/94)

25

2008/C 079/50

Case T-266/04: Judgment of the Court of First Instance of 14 February 2008 — Spain v Commission (EAGGF — Guarantee Section — Expenditure excluded from Community financing — Withdrawal of fruit and vegetables — Check on all products withdrawn — Arable crops and beef premiums — Period of 24 months)

26

2008/C 079/51

Case T-378/04: Judgment of the Court of First Instance of 14 February 2008 — Orsay v OHIM — Jiménez Arellano (Orsay) (Community trade mark — Opposition procedure — Application for the word and figurative trade mark Orsay — Earlier national word and figurative trade mark D'ORSAY — Ground for refusal — Risk of confusion — Article 8(1)(b) of Regulation (EC) No 40/94)

26

2008/C 079/52

Case T-189/05: Judgment of the Court of First Instance of 14 February 2008 — Usinor v OHIM — Corus UK (GALVALLOY) (Community trade mark — Opposition proceedings — Application for Community word mark GALVALLOY — Earlier national word mark GALVALLIA — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94)

27

2008/C 079/53

Case T-351/05: Judgment of the Court of First Instance of 14 February 2008 — Provincia di Imperia v Commission (European Social Fund — Community financial aid in the area of innovative measures under Article 6 of Regulation (EC) No 1784/1999 — Call for proposals — Rejection of the proposal)

27

2008/C 079/54

Case T-146/06: Judgment of the Court of First Instance of 13 February 2008 — Sanofi-Aventis v OHIM (Community trade mark — Opposition proceedings — Application for Community word mark ATURION — Earlier national mark URION — Relative ground for refusal — Lack of likelihood of confusion — Lack of similarity between the signs — Article 8(1)(b) of Regulation (EC) No 40/94)

27

2008/C 079/55

Case T-472/07: Action brought on 21 December 2007 — Enercon v OHIM — Hasbro (ENERCON)

28

2008/C 079/56

Case T-474/07: Action brought on 21 December 2007 — Commission v CAE Consulting

28

2008/C 079/57

Case T-13/08: Action brought on 4 January 2008 — Kinotita Grammatikou v Commission

29

2008/C 079/58

Case T-29/08: Action brought on 18 January 2008 — Liga para a Protecção da Natureza v Commission of the European Communities

29

2008/C 079/59

Case T-30/08: Action brought on 23 January 2008 — Winzer Pharma v OHIM — Oftaltech (OFTASIL)

30

2008/C 079/60

Case T-33/08: Action brought on 18 January 2008 — Bastos Viegas v OHIM — Pierre Fabre Médicament (OPDREX)

31

2008/C 079/61

Case T-34/08: Action brought on 21 January 2008 — Berliner Institut für Vergleichende Sozialforschung v Commission

31

2008/C 079/62

Case T-36/08: Action brought on 28 January 2008 — Furukawa Electric North America v OHIM (SLIM LINE)

32

2008/C 079/63

Case T-46/08 P: Appeal brought on 28 January 2008 by Luigi Marcuccio against the judgment of the Civil Service Tribunal delivered on 6 December 2007 in Case F-40/06, Marcuccio v Commission

Marcuccio

Commission

32

2008/C 079/64

Case T-53/08: Action brought on 31 January 2008 — Italy v Commission

33

2008/C 079/65

Case T-54/08: Action brought on 4 February 2008 — Republic of Cyprus v Commission

34

European Union Civil Service Tribunal

2008/C 079/66

Case F-80/06: Order of the Civil Service Tribunal (First Chamber) of 25 January 2008 — Duyster v Commission (Civil Service — Officials — Parental leave — Application to withdraw parental leave — Lis pendens — Manifest inadmissibility)

35

2008/C 079/67

Case F-77/07: Order of the Civil Service Tribunal (First Chamber) of 1 February 2008 — Kay Labate v Commission of the European Communities (Staff cases — Officials — Social security — Insurance against the risk of accident and occupational disease — Occupational disease — Lung cancer — Passive smoking — No need to adjudicate)

35

2008/C 079/68

Case F-50/07: Action brought on 17 December 2007 — Hristova v Commission

36

2008/C 079/69

Case F-113/07: Action brought on 18 October 2007 — Šimonis v Commission

36

2008/C 079/70

Case F-125/07: Action brought on 29 October 2007 — Hau v European Parliament

37

2008/C 079/71

Case F-136/07: Action brought on 6 December 2007 — Nijs v Court of Auditors

37

2008/C 079/72

Case F-137/07: Action brought on 4 December 2007 — Sergio and Others v Commission

37

2008/C 079/73

Case F-142/07: Action brought on 19 December 2007 — Kaminska v Committee of the Regions

38

2008/C 079/74

Case F-145/07: Action brought on 27 December 2007 — Bosman v Council

38

| | Corrigenda |
| --- | --- |
| 2008/C 079/75 | Corrigendum to the notice in the Official Journal in Case F-103/07 (OJ C 315, 22.12.2007, p. 45) | 39 |

Corrigenda

2008/C 079/75

Corrigendum to the notice in the Official Journal in Case F-103/07 (OJ C 315, 22.12.2007, p. 45)

(OJ C 315, 22.12.2007, p. 45)

39

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

EN

---

IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Court of Justice

| 29.3.2008 | EN | Official Journal of the European Union | C 79/1 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/1

---

(2008/C 79/01)

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

OJ C 64, 8.3.2008

Past publications

OJ C 51, 23.2.2008

OJ C 37, 9.2.2008

OJ C 22, 26.1.2008

OJ C 8, 12.1.2008

OJ C 315, 22.12.2007

OJ C 297, 8.12.2007

These texts are available on:

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

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

---

V Announcements

COURT PROCEEDINGS

Court of Justice

| 29.3.2008 | EN | Official Journal of the European Union | C 79/2 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/2

---

Judgment of the Court (Fourth Chamber) of 31 January 2008 (reference for a preliminary ruling from the Consiglio di Stato (Italy) — Centro Europa 7 Srl v Ministero delle Comunicazioni e Autorità per le Garanzie nelle Comunicazioni, Direzione Generale Autorizzazioni e Concessioni Ministero delle Comunicazioni

(Case C-380/05) (1)

(Freedom to provide services - Electronic communications - Television broadcasting activities - New common regulatory framework - Allocation of radio frequencies)

(2008/C 79/02)

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Applicant: Centro Europa 7 Srl

Defendants: Ministero delle Comunicazioni e Autorità per le Garanzie nelle Comunicazioni, Direzione Generale Autorizzazioni e Concessioni Ministero delle Comunicazioni

Re:

Reference for a preliminary ruling — Consiglio di Stato — Interpretation of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) (OJ 2002 L 108, p. 21) and Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ 2002 L 108, p. 33) — Interpretation of Article 10 of the European Convention on Human Rights — Obligation on Member States, in the sector of television broadcasting activities, to ensure access to networks and maintain multiplicity of undertakings on the market — National regulations allowing the grant of individual rights to undertakings not authorised under the national plan determining the licensees of television broadcasting services and not allowing an undertaking authorised under the national plan to carry on its activities

Operative part of the judgment

Article 49 EC and, from the date on which they became applicable, Article 9(1) of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive), Article 5(1), the second subparagraph of Article 5(2) and Article 7(3) of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive), and Article 4 of Commission Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic communications networks and services must be interpreted as precluding, in television broadcasting matters, national legislation the application of which makes it impossible for an operator holding rights to broadcast in the absence of broadcasting radio frequencies granted on the basis of objective, transparent, non-discriminatory and proportionate criteria.

---

(1)  OJ C 10, 14.1.2006.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/3 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/3

---

Judgment of the Court (Grand Chamber) of 12 February 2008 (reference for a preliminary ruling from the Finanzgericht Hamburg — Germany) — Willy Kempter KG v Hauptzollamt Hamburg-Jonas

(Case C-2/06) (1)

(Export of cattle - Export refunds - Final administrative decision - Interpretation of a judgment of the Court - Effect of a preliminary ruling given by the Court after that decision - Review and withdrawal - Time-limits - Legal certainty - Principle of cooperation - Article 10 EC)

(2008/C 79/03)

Language of the case: German

Referring court

Finanzgericht Hamburg

Parties to the main proceedings

Claimant: Willy Kempter KG

Defendant: Hauptzollamt Hamburg-Jonas

Re:

Reference for a preliminary ruling — Finanzgericht Hamburg — Interpretation of Article 10 of the EC Treaty as interpreted by the judgment of the Court in Case C-453/00 Kühne & Heitz [2004] ECR I-837 — Review and amendment by an administrative body of an administrative decision by it that has become final in order to take account of the interpretation of the relevant Community provision given in the meantime in a judgment of the Court although the person to whom the decision was addressed had not relied on infringement of that provision at the time of the initial judicial proceedings and lodged its application for review only 19 months after that judgment was delivered

Operative part of the judgment

| 1. | In the context of a procedure before an administrative body for review of an administrative decision that became final by virtue of a judgment, delivered by a court of final instance, which, in the light of a decision given by the Court subsequent to it, was based on a misinterpretation of Community law, Community law does not require the claimant to have relied on Community law in the legal action under domestic law which he brought against that decision. |
| --- | --- |

1.

In the context of a procedure before an administrative body for review of an administrative decision that became final by virtue of a judgment, delivered by a court of final instance, which, in the light of a decision given by the Court subsequent to it, was based on a misinterpretation of Community law, Community law does not require the claimant to have relied on Community law in the legal action under domestic law which he brought against that decision.

| 2. | Community law does not impose any limit in time for making an application for review of an administrative decision that has become final. The Member States nevertheless remain free to set reasonable time-limits for seeking remedies, in a manner consistent with the Community principles of effectiveness and equivalence. |
| --- | --- |

2.

Community law does not impose any limit in time for making an application for review of an administrative decision that has become final. The Member States nevertheless remain free to set reasonable time-limits for seeking remedies, in a manner consistent with the Community principles of effectiveness and equivalence.

---

(1)  OJ C 60, 11.3.2006.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/3 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/3

---

Judgment of the Court (Grand Chamber) of 12 February 2008 (Reference for a preliminary ruling from the Conseil d'État (France)) — Centre d'exportation du livre français (CELF), Ministre de la Culture et de la Communication v Société internationale de diffusion et d'édition

(Case C-199/06) (1)

(State aid - Article 88(3) EC - National courts - Recovery of unlawfully implemented aid - Aid declared compatible with the common market)

(2008/C 79/04)

Language of the case: French

Referring court

Conseil d'État

Parties to the main proceedings

Applicants: Centre d'exportation du livre français (CELF), Ministre de la Culture et de la Communication

Defendant: Société internationale de diffusion et d'édition

Re:

Reference for a preliminary ruling — Conseil d'Etat (France) — Interpretation of Article 88 EC — Whether it is permissible for a Member State not to recover unlawfully granted aid which the European Commission, after receiving a complaint from a third party, has declared compatible with the common market

Operative part of the judgment

| 1. | The last sentence of Article 88(3) EC is to be interpreted as meaning that the national court is not bound to order the recovery of aid implemented contrary to that provision, where the Commission has adopted a final decision declaring that aid to be compatible with the common market, within the meaning of Article 87 EC. Applying Community law, the national court must order the aid recipient to pay interest in respect of the period of unlawfulness. Within the framework of its domestic law, it may, if appropriate, also order the recovery of the unlawful aid, without prejudice to the Member State's right to re-implement it, subsequently. It may also be required to uphold claims for compensation for damage caused by reason of the unlawful nature of the aid. |
| --- | --- |

1.

The last sentence of Article 88(3) EC is to be interpreted as meaning that the national court is not bound to order the recovery of aid implemented contrary to that provision, where the Commission has adopted a final decision declaring that aid to be compatible with the common market, within the meaning of Article 87 EC. Applying Community law, the national court must order the aid recipient to pay interest in respect of the period of unlawfulness. Within the framework of its domestic law, it may, if appropriate, also order the recovery of the unlawful aid, without prejudice to the Member State's right to re-implement it, subsequently. It may also be required to uphold claims for compensation for damage caused by reason of the unlawful nature of the aid.

| 2. | In a procedural situation such as that in the main proceedings, the obligation, arising from the last sentence of Article 88(3) EC, to remedy the consequences of the aid's unlawfulness extends also, for the purposes of calculating the sums to be paid by the recipient, and save for exceptional circumstances, to the period between a decision of the Commission of the European Communities declaring the aid to be compatible with the common market and the annulment of that decision by the Community court. |
| --- | --- |

2.

In a procedural situation such as that in the main proceedings, the obligation, arising from the last sentence of Article 88(3) EC, to remedy the consequences of the aid's unlawfulness extends also, for the purposes of calculating the sums to be paid by the recipient, and save for exceptional circumstances, to the period between a decision of the Commission of the European Communities declaring the aid to be compatible with the common market and the annulment of that decision by the Community court.

---

(1)  OJ C 154, 1.7.2006.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/4 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/4

---

Judgment of the Court (Third Chamber) of 14 February 2008 (reference for a preliminary ruling from the Landgericht Koblenz — Germany) — Dynamic Medien Vertriebs GmbH v Avides Media AG

(Case C-244/06) (1)

(Free movement of goods - Article 28 EC - Measures having equivalent effect - Directive 2000/31/EC - National rules prohibiting the sale by mail order of image storage media which have not been examined and classified by the competent authority for the purpose of protecting children and which do not bear a label from that authority indicating the age from which they may be viewed - Image storage media imported from another Member State which have been examined and classified by the competent authority of that State and bear an age-limit label - Justification - Child protection - Principle of proportionality)

(2008/C 79/05)

Language of the case: German

Referring court

Landgericht Koblenz

Parties to the main proceedings

Applicant: Dynamic Medien Vertriebs GmbH

Defendant: Avides Media AG

Re:

Reference for a preliminary ruling — Landgericht Koblenz — Interpretation of Articles 28 EC and 30 EC and the provisions of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the internal market (OJ 2000 L 178, p. 1) — National legislation on the protection of youth prohibiting mail order sales of image storage media not labelled as having been declared available to young persons by the competent authority of the Member State — Image storage media imported from another Member State having been declared available to young persons above a certain age limit by the competent authority of that Member State — Principle of proportionality

Operative part of the judgment

Article 28 EC does not preclude national rules, such as those at issue in the main proceedings, which prohibit the sale and transfer by mail order of image storage media which have not been examined and classified by a higher regional authority or a national voluntary self-regulation body for the purposes of protecting young persons and which do not bear a label from that authority or that body indicating the age from which they may be viewed, unless it appears that the procedure for examination, classification and labelling of image storage media established by those rules is not readily accessible or cannot be completed within a reasonable period, or that a decision of refusal is not open to challenge before the courts.

---

(1)  OJ C 178, 29.7.2006.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/4 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/4

---

Judgment of the Court (Third Chamber) of 14 February 2008 — Commission of the European Communities v Kingdom of Spain

(Case C-274/06) (1)

(Failure of a Member State to fulfil its obligations - Article 56 EC - National provision limiting the voting rights of shareholders in undertakings in the energy sector - Limitation applicable to public bodies)

(2008/C 79/06)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (represented by: H. Stovlbæk and R. Vidal Puig, Agents, acting as Agents)

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

Re:

Failure of a Member State to fulfil its obligations — Infringement of Article 56 EC — National provision which provides, in certain cases, for the limitation of voting rights in undertakings in the energy sector

Operative part of the judgment

The Court:

| 1. | Declares that, by maintaining in force measures such as those laid down in the Supplementary Provision No 27 to Law 55/1999 of 29 December 1999 on fiscal, administrative and social measures, in the version of that provision in Article 94 of Law 62/2003 of 30 December 2003, which limits the voting rights of shares held by public bodies in Spanish undertakings operating in the energy sector, the Kingdom of Spain has failed to fulfil its obligations under Article 56 EC. |
| --- | --- |

1.

Declares that, by maintaining in force measures such as those laid down in the Supplementary Provision No 27 to Law 55/1999 of 29 December 1999 on fiscal, administrative and social measures, in the version of that provision in Article 94 of Law 62/2003 of 30 December 2003, which limits the voting rights of shares held by public bodies in Spanish undertakings operating in the energy sector, the Kingdom of Spain has failed to fulfil its obligations under Article 56 EC.

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

2.

Orders the Kingdom of Spain to pay the costs.

---

(1)  OJ C 212 of 2.9.2006.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/5 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/5

---

Judgment of the Court (Fourth Chamber) of 14 February 2008 — Commission of the European Communities v Hellenic Republic

(Case C-419/06) (1)

(Failure of a Member State to fulfil obligations - State aid - Obligation to recover)

(2008/C 79/07)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (represented by: E. Righini, M. Konstantinidis, D. Triantafyllou and I. Chatzigiannis, acting as Agents)

Defendant: Hellenic Republic (represented by: A. Samoni-Rantou, P. Mylonopoulos, acting as Agents, V. Christianos and P. Anestis, dikigoroi)

Re:

Failure of a Member State to fulfil obligations — Failure to take measures to comply with Commission Decision C(2005) 2706 of 14 September 2005 on the recovery of aid granted to Olympic Airlines

Operative part of the judgment

The Court:

| 1. | Declares that, by not taking, within the prescribed period, all measures necessary to put an end to aid declared unlawful and incompatible with the common market by the Commission Decision of 14 December 2005 concerning State aid granted by Greece to Olympic Airways and Olympic Airlines, and to recover that aid from the recipients, the Hellenic Republic has failed to fulfil its obligations under Articles 2 to 4 of that decision. |
| --- | --- |

1.

Declares that, by not taking, within the prescribed period, all measures necessary to put an end to aid declared unlawful and incompatible with the common market by the Commission Decision of 14 December 2005 concerning State aid granted by Greece to Olympic Airways and Olympic Airlines, and to recover that aid from the recipients, the Hellenic Republic has failed to fulfil its obligations under Articles 2 to 4 of that decision.

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

2.

Orders the Hellenic Republic to pay the costs.

---

(1)  OJ C 310, 16.12.2006.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/5 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/5

---

Judgment of the Court (Fourth Chamber) of 14 February 2008 (reference for a preliminary ruling from the Tribunal du travail de Bruxelles (Belgium)) — Sophiane Gysen v Groupe S-Caisse d'Assurances sociales pour indépendants

(Case C-449/06) (1)

(Officials - Remuneration - Staff Regulations - Family allowances - Calculation of the amount of national family allowances - Determination of the ranking of the children - Child giving rise to entitlement to family allowances under the Staff Regulations)

(2008/C 79/08)

Language of the case: French

Referring court

Tribunal du travail de Bruxelles (Belgium)

Parties to the main proceedings

Applicant: Sophiane Gysen

Defendant: Groupe S-Caisse d'Assurances sociales pour indépendants

Re:

Reference for a preliminary ruling — Tribunal du travail de Bruxelles — Interpretation [of Article 67] of Regulation (EEC, Euratom, ECSC) No 259/68 of the Council of 29 February 1968 laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Communities (OJ 1968 L 56, p. 1) — Family allowances — Permissibility of a national family allowance system which excludes, from the calculation of the order of the beneficiary children, children in respect of whom there is entitlement to family allowances under the Staff Regulations — Legal classification of the Staff Regulations of Officials under national law

Operative part of the judgment

Regulation (EEC, Euratom, ECSC) No 259/68 of the Council of 29 February 1968 laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Communities and instituting special measures temporarily applicable to officials of the Commission, as amended by Council Regulation (EEC, Euratom, ECSC) No 2074/83 of 21 July 1983, has general application, is binding in its entirety and is directly applicable in all Member States. In view of the direct applicability of that regulation in the legal systems of the Member States, a child giving rise to entitlement to family allowances under the Staff Regulations of Officials of the European Communities must be treated in the same way as a child giving rise to entitlement to family allowances under national law or an international social security convention in force in the Member State concerned.

---

(1)  OJ C 326, 30.12.2006.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/6 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/6

---

Judgment of the Court (Third Chamber) of 14 February 2008 (reference for a preliminary ruling from the Conseil d'État (Belgium)) — Varec SA v Belgian State

(Case C-450/06) (1)

(Public procurement - Review - Directive 89/665/EEC - Effective review - Meaning - Balance between the adversarial principle and the right to observance of business secrets - Protection, by the body responsible for the review, of the confidentiality of information provided by economic operators)

(2008/C 79/09)

Language of the case: French

Referring court

Conseil d'État

Parties to the main proceedings

Applicant: Varec SA

Defendant: Belgian State

Intervener: Diehl Remscheid GmbH & Co

Re:

Reference for a preliminary ruling — Conseil d'État (Belgium) — Interpretation of Article 1(1) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ 1989 L 395, p. 33), read with Article 15(2) of Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts (OJ 1993 L 199, p. 1) and Articles 6 and 41(3) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114) — Supply of military material — Balance between the principles that both parties be heard and that defence rights be complied with and the right to respect for business secrets and the protection of sensitive or confidential information.

Operative part of the judgment

Article 1(1) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, read in conjunction with Article 15(2) of Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts, as amended by European Parliament and Council Directive 97/52/EC of 13 October 1997, must be interpreted as meaning that the body responsible for the reviews provided for in Article 1(1) must ensure that confidentiality and business secrecy are safeguarded in respect of information contained in files communicated to that body by the parties to an action, particularly by the contracting authority, although it may apprise itself of such information and take it into consideration. It is for that body to decide to what extent and by what process it is appropriate to safeguard the confidentiality and secrecy of that information, having regard to the requirements of effective legal protection and the rights of defence of the parties to the dispute and, in the case of judicial review or a review by another body which is a court or tribunal within the meaning of Article 234 EC, so as to ensure that the proceedings as a whole accord with the right to a fair trial.

---

(1)  OJ C 326, 30.12.2006.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/6 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/6

---

Judgment of the Court (Fifth Chamber) of 31 January 2007 — Commission of the European Communities v Kingdom of Spain

(Case C-32/07) (1)

(Failure of a Member State to fulfil obligations - Directive 2001/84/EC - Copyright - Resale right for the benefit of the author of an original work of art)

(2008/C 79/10)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (represented by: R. Vidal Puig and W. Wils, acting as Agent(s))

Defendant: Kingdom of Spain (represented by: F. Díez Moreno, Agent)

Re:

Failure of a Member State to fulfil obligations — Failure to adopt within the period prescribed all the measures necessary to comply with Directive 2001/84/EC of the European Parliament and of the Council of 27 September 2001 on the resale right for the benefit of the author of an original work of art (OJ 2001 L 272, p. 32)

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to adopt, within the period prescribed, all the laws, regulations and administrative provisions necessary to comply with Directive 2001/84/EC of the European Parliament and of the Council of 27 September 2001 on the resale right for the benefit of the author of an original work of art, the Kingdom of Spain has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that, by failing to adopt, within the period prescribed, all the laws, regulations and administrative provisions necessary to comply with Directive 2001/84/EC of the European Parliament and of the Council of 27 September 2001 on the resale right for the benefit of the author of an original work of art, the Kingdom of Spain has failed to fulfil its obligations under that directive;

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

2.

Orders the Kingdom of Spain to pay the costs.

---

(1)  OJ C 82, 14.4.2007.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/7 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/7

---

Judgment of the Court (Eighth Chamber) of 14 February 2008 — Commission of the European Communities v Kingdom of Spain

(Case C-58/07) (1)

(Failure of a Member State to fulfil its obligation - Directive 2003/110/EC - Assistance in cases of transit for the purposes of removal by air - Failure to transpose within the prescribed period)

(2008/C 79/11)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (represented by: M. Condou-Durande and A. Alcover San Pedro, acting as Agents)

Defendant: Kingdom of Spain (represented by: M.Muñoz Pérez, acting as Agent)

Re:

Failure of a Member State to fulfil its obligations — Failure to adopt, within the prescribed period, the provisions necessary to comply with Council Directive 2003/110/EC of 25 November 2003 on assistance in cases of transit for the purposes of removal by air (OJ 2003 L 321, p. 26)

Operative part of the judgment of

The Court:

| 1. | Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2003/110/EC of 25 November 2003 on assistance in cases of transit for the purposes of removal by air, the Kingdom of Spain has failed to fulfil its obligations under that directive. |
| --- | --- |

1.

Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2003/110/EC of 25 November 2003 on assistance in cases of transit for the purposes of removal by air, the Kingdom of Spain has failed to fulfil its obligations under that directive.

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

2.

Orders the Kingdom of Spain to pay the costs.

---

(1)  OJ C 69 of 24.3.2006.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/7 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/7

---

Judgment of the Court (Eighth Chamber) of 31 January 2008 — Commission of the European Communities v Italian Republic

(Case C-69/07) (1)

(Failure of Member State to fulfil obligations - Directive 2003/35/EC - Environment - Public participation in respect of the drawing up of certain plans and programmes - Failure to transpose within the period prescribed)

(2008/C 79/12)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: D. Recchia and J.-B. Laignelot, acting as Agents)

Defendant: Italian Republic (represented by: I.M. Braguglia, Agent, and S. Fiorentino, avvocato dello Stato)

Re:

Failure of a Member State to fulfil obligations — Failure to implement, within the period prescribed, the provisions necessary to comply with Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC (OJ 2003 L 156, p. 17)

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to implement the laws, regulations and administrative provisions necessary to comply with Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC, the Italian Republic has failed to fulfil its obligations under Article 6 of the Directive; |
| --- | --- |

1.

Declares that, by failing to implement the laws, regulations and administrative provisions necessary to comply with Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC, the Italian Republic has failed to fulfil its obligations under Article 6 of the Directive;

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

2.

Orders the Italian Republic to pay the costs.

---

(1)  OJ C 82, 14.4.2007.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/8 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/8

---

Judgment of the Court (Seventh Chamber) of 31 January 2008 — Angel Angelidis v European Parliament

(Case C-103/07 P) (1)

(Appeal - Officials - Staff report - Single assessor - Conditions - Consultation of preceding immediate superior - Lack of change in post - Reasoning - Annulment - Damages)

(2008/C 79/13)

Language of the case: French

Parties

Appellant: Angel Angelidis (represented by: E. Boigelot, avocat)

Other party to the proceedings: European Parliament (represented by: M. Mustapha Pacha and A. Lukošiūte, acting as Agents)

Re:

Appeal against the judgment of the Court of First Instance (Fifth Chamber) of 5 December 2006 in Case T-416/03 Angelidis v Parliament, in which the Court rejected the applicant's application, first, to annul his staff report for the period from 1 January to 31 December 2001 and, second, for compensation for the harm he suffered by reason both of alleged irregularities in the disputed staff report and of its allegedly late establishment

Operative part of the judgment

The Court:

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

1.

Dismisses the appeal;

| 2. | Orders Mr Angelidis to bear his own costs and to pay those of the European Parliament. |
| --- | --- |

2.

Orders Mr Angelidis to bear his own costs and to pay those of the European Parliament.

---

(1)  OJ C 129, 9.6.2007.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/8 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/8

---

Judgment of the Court (Seventh Chamber) of 31 January 2008 — Commission of the European Communities v French Republic

(Case C-147/07) (1)

(Failure of a Member State to fulfil obligations - Directives 80/778/EEC and 98/83/EC - Quality of water intended for human consumption - Maximum concentrations of nitrates and pesticides - Incorrect application)

(2008/C 79/14)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: S. Pardo Quintillán, J. Hottiaux and J.-B. Laignelot, acting as Agents)

Defendant: French Republic (represented by: G. de Bergues and S. Gasri, acting as Agents)

Re:

Failure of a Member State to fulfil obligations — Failure to adopt, within the prescribed period, the measures necessary to comply with Article 4 of Council Directive 98/83/EC of 3 November 1998 on the quality of water intended for human consumption (OJ 1998 L 330, p. 32) — Failure, in certain départements, to remain within the chemical parameters laid down in Annex I, Part B to Directive 98/83 — Nitrates and pesticides

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to take the measures necessary to comply with Article 4 of Council Directive 98/83/EC of 3 November 1998 on the quality of water intended for human consumption, the French Republic has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that, by failing to take the measures necessary to comply with Article 4 of Council Directive 98/83/EC of 3 November 1998 on the quality of water intended for human consumption, the French Republic has failed to fulfil its obligations under that directive;

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

2.

Orders the French Republic to pay the costs.

---

(1)  OJ C 95, 28.4.2007.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/9 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/9

---

Judgment of the Court (Sixth Chamber) of 31 January 2008 — Commission of the European Communities v Kingdom of Sweden

(Case C-259/07) (1)

(Failure of a Member State to fulfil obligations - Directive 2005/51/EC - Public procurement - Procedure for the award of public contracts - Failure to transpose within the prescribed period)

(2008/C 79/15)

Language of the case: Swedish

Parties

Applicant: Commission of the European Communities (represented by: D. Kukovec and K. Nyberg, acting as Agents)

Defendant: Kingdom of Sweden (represented by: A. Falk, acting as Agent)

Re:

Failure of a Member State to fulfil obligations — Failure to adopt, within the period prescribed, the provisions necessary to comply with Commission Directive 2005/51/EC of 7 September 2005 amending Annex XX to Directive 2004/17/EC and Annex VIII to Directive 2004/18/EC of the European Parliament and the Council on public procurement (OJ 2005 L 257, p. 127)

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Commission Directive 2005/51/EC of 7 September 2005 amending Annex XX to Directive 2004/17/EC and Annex VIII to Directive 2004/18/EC of the European Parliament and the Council on public procurement, the Kingdom of Sweden has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Commission Directive 2005/51/EC of 7 September 2005 amending Annex XX to Directive 2004/17/EC and Annex VIII to Directive 2004/18/EC of the European Parliament and the Council on public procurement, the Kingdom of Sweden has failed to fulfil its obligations under that directive;

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

2.

Orders the Kingdom of Sweden to pay the costs.

---

(1)  OJ C 183, 4.8.2007.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/9 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/9

---

Judgment of the Court (Seventh Chamber) of 31 January 2008 — Commission of the European Communities v Hellenic Republic

(Case C-264/07) (1)

(Failure of a Member State to fulfil obligations - Directive 2000/60/EC - Protection and management of water - Failure to undertake the analyses and reviews required - Failure to submit the summary reports required)

(2008/C 79/16)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (represented by: M. Patakia and M. Konstantinidis, acting as Agents)

Defendant: Hellenic Republic (represented by: E. Skandalou, Agent)

Re:

Failure of a Member State to fulfil obligations — Breach of Articles 5(1) and 15(2) of Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (OJ 2000 L 327, p. 1) — Failure to submit summary reports of the analyses required under Article 5 as regards certain river basin districts — Failure to undertake the analyses and reviews required by Article 5(1) of the Directive

Operative part of the judgment

The Court:

| 1. | Declares that, by failing ensure that, for each river basin district or for the portion of an international river basin district falling within its territory, an analysis of its characteristics, a review of the impact of human activity on the status of surface waters and on groundwater, and an economic analysis of water use, are undertaken according to the technical specifications set out in Annexes II and III of Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, the Hellenic Republic has failed to fulfil its obligations under Article 5(1) of the Directive and, by failing to submit summary reports of the analyses required by that provision, it has also failed to fulfil its obligations under Article 15(2) of the Directive; |
| --- | --- |

1.

Declares that, by failing ensure that, for each river basin district or for the portion of an international river basin district falling within its territory, an analysis of its characteristics, a review of the impact of human activity on the status of surface waters and on groundwater, and an economic analysis of water use, are undertaken according to the technical specifications set out in Annexes II and III of Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, the Hellenic Republic has failed to fulfil its obligations under Article 5(1) of the Directive and, by failing to submit summary reports of the analyses required by that provision, it has also failed to fulfil its obligations under Article 15(2) of the Directive;

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

2.

Orders the Hellenic Republic to pay the costs.

---

(1)  OJ C 170, 21.7.2007.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/10 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/10

---

Judgment of the Court (Seventh Chamber) of 31 January 2008 — Commission of the European Communities v Grand Duchy of Luxembourg

(Case C-268/07) (1)

(Failure of a Member State to fulfil obligations - Directive 2004/17/EC - Public procurement proceedings in the water, energy, transport and postal services sectors)

(2008/C 79/17)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: B. Stromsky and D. Kukovec, acting as Agents)

Defendant: Grand Duchy of Luxembourg (represented by: C. Schiltz, Agent)

Re:

Failure of a Member State to fulfil obligations — Failure to adopt, within the period prescribed, the provisions necessary to comply with Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (OJ 2004 L 134, p. 1)

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to adopt, within the period prescribed, the laws, regulations and administrative provisions necessary to comply with Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that, by failing to adopt, within the period prescribed, the laws, regulations and administrative provisions necessary to comply with Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;

| 2. | Orders the Grand Duchy of Luxembourg to pay the costs. |
| --- | --- |

2.

Orders the Grand Duchy of Luxembourg to pay the costs.

---

(1)  OJ C 211, 8.9.2007.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/10 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/10

---

Order of the Court of 29 November 2007 — Friedrich Weber v Commission of the European Communities

(Case C-107/07 P) (1)

(Appeal - Refusal of access to documents - Manifest inadmissibility)

(2008/C 79/18)

Language of the case: German

Parties

Applicant: Friedrich Weber (represented by: W. Declair, Rechtsanwalt)

Other party to the proceedings: Commission of the European Communities (represented by: P. Costa de Oliveira and C. Ladenburger, acting as Agents)

Re:

Appeal brought against the order of the Court of First Instance (Second Chamber) of 11 December 2006 in Case T-290/05 Weber v Commission by which the Court of First Instance dismissed as inadmissible an action brought against the decision of the Secretary-General of the Commission of 27 May 2005 rejecting the applicant's request for access to a letter sent by the Directorate-General for Competition to the German Federal Government concerning State aid proceedings in relation to the financing of public-law broadcasting bodies in Germany

Operative part of the order

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

1.

The appeal is dismissed.

| 2. | Mr Weber is ordered to pay the costs. |
| --- | --- |

2.

Mr Weber is ordered to pay the costs.

---

(1)  OJ C 95, 28.4.2007.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/11 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/11

---

Order of the Court (Seventh Chamber) of 16 January 2008 (reference for a preliminary ruling from the Conseil de prud'hommes de Beauvais (France)) — Olivier Polier v Najar EURL

(Case C-361/07) (1)

(Reference for a preliminary ruling - Charter of Fundamental Rights of the European Union - Convention No 158 of the International Labour Organisation - European Social Charter - Dismissal of an employee without valid reason - Manifest lack of jurisdiction of the Court)

(2008/C 79/19)

Language of the case: French

Referring court

Conseil de prud'hommes de Beauvais (France)

Parties

Applicant: Olivier Polier

Defendant: Najar EURL

Re:

Reference for a preliminary ruling — Conseil de Prud'Hommes de Beauvais — Interpretation of the Charter of Fundamental Rights of the European Union (Articles 30 and 33), the European Social Charter (Articles 24 and 27) and Convention No 158 of the International Labour Organisation on termination of employment — Dismissal of an employee without valid reason — Whether national legislation is valid in the light of the abovementioned provisions

Operative part of the order

The Court of Justice of the European Communities manifestly does not have jurisdiction to answer the questions posed by the Conseil de prud'hommes de Beauvais by decision of 9 July 2007.

---

(1)  OJ C 269, 10.11.2007.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/11 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/11

---

Appeal brought on 25 July 2007 by Focus Magazin Verlag GmbH against the judgment of the Court of First Instance (Third Chamber) delivered on 16 May 2007 in Case T-491/04 Merant GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Intervener: Focus Magazin Verlag GmbH

(Case C-344/07 P)

(2008/C 79/20)

Language of the case: German

Parties

Appellant: Focus Magazin Verlag GmbH (represented by: M. Herrmann and B. Müller, lawyers)

Other parties to the proceedings:

| 1. | Office for Harmonisation in the Internal Market (Trade Marks and Designs) |
| --- | --- |

1.

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

| 2. | Merant GmbH |
| --- | --- |

2.

Merant GmbH

Form of order sought

| — | set aside the judgment of the Court of First Instance of the European Communities (Third Chamber) of 16 May 2007 in Case T-491/04 and dismiss the action |
| --- | --- |

—

set aside the judgment of the Court of First Instance of the European Communities (Third Chamber) of 16 May 2007 in Case T-491/04 and dismiss the action

Pleas in law and main arguments

| 1. | The judgment is based on an incorrect interpretation of Article 8(1)(b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (1) and thus on a serious infringement of the intervener's/appellant's rights. |
| --- | --- |

1.

The judgment is based on an incorrect interpretation of Article 8(1)(b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (1) and thus on a serious infringement of the intervener's/appellant's rights.

| 2. | The infringement is constituted by an incorrect and cursory assessment of the facts on which the decision is based and an extension of the scope of the expression ‘likelihood of confusion’ for the purposes of Article 8(1)(b) of Regulation No 40/94. |
| --- | --- |

2.

The infringement is constituted by an incorrect and cursory assessment of the facts on which the decision is based and an extension of the scope of the expression ‘likelihood of confusion’ for the purposes of Article 8(1)(b) of Regulation No 40/94.

| 3. | The Court of First Instance's interpretation that the conceptual content of the sign ‘MICRO FOCUS’ is ‘small focus’ is not in accordance with the general principles governing the issue of likelihood of confusion. The concept can only be interpreted in that way if the grammatical rules of the German language are incorrectly applied. On the basis of that interpretation of the sign ‘MICRO FOCUS’ the Court arrived at the incorrect finding that only the figurative element ‘Focus’ of the word/figurative sign ‘MICRO FOCUS’ should be compared with the sign ‘FOCUS’ in respect of which registration is sought. Building on that interpretation, the Court then erred in law in finding that there was a likelihood of confusion. If the Court had considered the whole of the word/figurative sign ‘MICRO FOCUS’, it would have correctly interpreted Article 8(1)(b) of Regulation No 40/94. |
| --- | --- |

3.

The Court of First Instance's interpretation that the conceptual content of the sign ‘MICRO FOCUS’ is ‘small focus’ is not in accordance with the general principles governing the issue of likelihood of confusion. The concept can only be interpreted in that way if the grammatical rules of the German language are incorrectly applied. On the basis of that interpretation of the sign ‘MICRO FOCUS’ the Court arrived at the incorrect finding that only the figurative element ‘Focus’ of the word/figurative sign ‘MICRO FOCUS’ should be compared with the sign ‘FOCUS’ in respect of which registration is sought. Building on that interpretation, the Court then erred in law in finding that there was a likelihood of confusion. If the Court had considered the whole of the word/figurative sign ‘MICRO FOCUS’, it would have correctly interpreted Article 8(1)(b) of Regulation No 40/94.

---

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

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/12 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/12

---

Reference for a preliminary ruling from the Landesarbeitsgericht Düsseldorf (Germany) lodged on 13 December 2007 — Seda Kücükdeveci v Swedex GmbH & Co. KG

(Case C-555/07)

(2008/C 79/21)

Language of the case: German

Referring court

Landesarbeitsgericht Düsseldorf

Parties to the main proceedings

Applicant: Seda Kücükdeveci

Defendant: Swedex GmbH & Co. KG

Questions referred

| 1. | (a) | Is a national provision which provides for the periods of notice on termination which employers are required to observe to be increased incrementally with the length of service, but which disregards periods of the employee's employment before the age of 25, incompatible with the Community law prohibition against discrimination on the ground of age, and specifically with primary Community law or with Council Directive 2000/78/EC of 27 November 2000 (1)? |
| --- | --- | --- |

1.

(a)

Is a national provision which provides for the periods of notice on termination which employers are required to observe to be increased incrementally with the length of service, but which disregards periods of the employee's employment before the age of 25, incompatible with the Community law prohibition against discrimination on the ground of age, and specifically with primary Community law or with Council Directive 2000/78/EC of 27 November 2000 (1)?

| (b) | Can the fact that employers are required to observe only a basic period of notice when terminating the employment of younger employees be justified on the grounds that employers are recognised as having a commercial interest in flexibility as regards staffing — an interest which would be adversely affected by longer periods of notice — and that younger employees are not recognised as having the protection available to older employees (in the form of longer notice periods) with respect to their employment status or arrangements, for example because, having regard to their age and/or their lesser social, family and private obligations they are assumed to have greater professional and personal flexibility and mobility? |
| --- | --- |

(b)

Can the fact that employers are required to observe only a basic period of notice when terminating the employment of younger employees be justified on the grounds that employers are recognised as having a commercial interest in flexibility as regards staffing — an interest which would be adversely affected by longer periods of notice — and that younger employees are not recognised as having the protection available to older employees (in the form of longer notice periods) with respect to their employment status or arrangements, for example because, having regard to their age and/or their lesser social, family and private obligations they are assumed to have greater professional and personal flexibility and mobility?

| 2. | If Question 1(a) is answered in the affirmative and Question 1(b) is answered in the negative:
  In legal proceedings between private individuals, must a national court disapply a statutory provision which is clearly incompatible with Community law, or is the legitimate expectation of persons subject to the law — that national laws which are in force will be applied — to be taken into account so that a national law is disapplied only after the Court of Justice has ruled on the provision at issue or on a substantially similar provision? |
| --- | --- |

2.

If Question 1(a) is answered in the affirmative and Question 1(b) is answered in the negative:

In legal proceedings between private individuals, must a national court disapply a statutory provision which is clearly incompatible with Community law, or is the legitimate expectation of persons subject to the law — that national laws which are in force will be applied — to be taken into account so that a national law is disapplied only after the Court of Justice has ruled on the provision at issue or on a substantially similar provision?

---

(1)  OJ L 303, p. 16.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/12 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/12

---

Action brought on 21 December 2007 — Commission of the European Communities v Republic of Austria

(Case C-564/07)

(2008/C 79/22)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: E. Traversa and H. Krämer, acting as Agents)

Defendant: Republic of Austria

Form of order sought

| — | declare that the Republic of Austria has infringed its obligations under Article 49 EC, by






  — | requiring all patent lawyers lawfully established in another Member State wishing to provide services temporarily in Austria to first enrol in the special Austrian registers, insofar as registration is conditional on taking out professional liability insurance, |
| --- | --- | --- |

—

declare that the Republic of Austria has infringed its obligations under Article 49 EC, by

—

requiring all patent lawyers lawfully established in another Member State wishing to provide services temporarily in Austria to first enrol in the special Austrian registers, insofar as registration is conditional on taking out professional liability insurance,

| — | making patent lawyers lawfully established in another Member State wishing to provide services temporarily in Austria subject to disciplinary supervision by the Austrian authorities, even as regards sanctions for conduct other than the serious breach of professional duties, |
| --- | --- |

—

making patent lawyers lawfully established in another Member State wishing to provide services temporarily in Austria subject to disciplinary supervision by the Austrian authorities, even as regards sanctions for conduct other than the serious breach of professional duties,

| — | making any provision of service by a patent lawyer lawfully established in another Member State wishing to provide services temporarily in Austria conditional on taking out professional liability insurance, |
| --- | --- |

—

making any provision of service by a patent lawyer lawfully established in another Member State wishing to provide services temporarily in Austria conditional on taking out professional liability insurance,

| — | requiring patent lawyers lawfully established in another Member State temporarily wishing to provide services temporarily in Austria to instruct a locally registered domestic lawyer or to appoint a person residing in Austria as process agent. |
| --- | --- |

—

requiring patent lawyers lawfully established in another Member State temporarily wishing to provide services temporarily in Austria to instruct a locally registered domestic lawyer or to appoint a person residing in Austria as process agent.

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

—

order Austria to pay the costs.

Pleas in law and main arguments

According to consistent case-law of the Court of Justice, Article 49 EC requires not only the elimination of any kind of discrimination on the grounds of nationality against a service provider established in another Member State, but also the removal of all restrictions — even if they apply uniformly to domestic service providers and service providers who are nationals of other Member States — which are liable to prohibit, impede or render less attractive the activities of service providers established in another Member State in which they legally provide equivalent services.

According to the Commission, the Austrian legal provisions regarding patent lawyers represent a restriction on the freedom to provide services within the meaning of Article 49 EC, by requiring patent lawyers lawfully established in another Member State wishing to provide services temporarily in Austria to take out professional liability insurance, to enrol in the Austrian register, to submit to the disciplinary supervision of the Austrian Patent Lawyers Association and, if they wish to represent clients, to instruct a locally registered domestic lawyer.

Those requirements are liable to impede the temporary provision of services in Austria by a patent lawyer lawfully established in another Member State, or at least to render the provision of such services less attractive. That is to say that compliance with the legal provisions of both the Member State of establishment and the Member State in which the service is provided places an additional financial burden on the service provider, since he has to familiarise himself with the provisions applicable in the Member State in which the service is provided; in addition, he is subject to two regulatory systems, without the Member State in which the service is provided taking into consideration the rules to which he is already subject in the Member State of origin. Moreover, the rules in issue are also likely to discourage consumers from enlisting the services of a service provider established in another Member State, as this generates additional costs that are not incurred if the service provider is Austrian.

National provisions that prohibit, impede or render less attractive the exercise of the fundamental freedoms guaranteed by the Treaty are compatible with the Treaty only if, first, they are justified by imperative requirements in the public interest, second, they are applied without discrimination, third, they are suitable for achieving the objective which they pursue, and, fourth, they do not go beyond what is strictly necessary to attain that objective. The recognition of interests as imperative requirements in the public interest is limited to those interests that are not already protected by provisions to which the service provider is subject in his Member State of establishment.

The Commission is of the view that the restrictions in dispute are not allowed as a derogation expressly provided for by the Treaty or justified, in accordance with the case-law of the Court of Justice, by overriding reasons relating to the public interest. The requirements in question to which patent lawyers established in other Member States are subject go beyond that which is necessary to achieve the objectives of consumer protection and the proper conduct of proceedings.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/13 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/13

---

Reference for a preliminary ruling from the Tribunal Superior de Justicia de Asturias (Spain) lodged on 24 December 2007 — José Manuel Blanco Pérez and Maria del Pilar Chao Gómez v Consejería de Salud y Servicios Sanitarios del Principado de Asturias, Federación Empresarial de Farmacéuticos Españoles and Plataforma para la Libre Apertura de Farmacias

(Case C-570/07)

(2008/C 79/23)

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia de Asturias

Parties to the main proceedings

Applicants: José Manuel Blanco Pérez and Maria del Pilar Chao Gómez

Defendants: Consejería de Salud y Servicios Sanitarios del Principado de Asturias, Federación Empresarial de Farmacéuticos Españoles and Plataforma para la Libre Apertura de Farmacias

Question referred

Should Articles 2, 3 and 4 of Decree 72/2001 dated 19 July of the Principality of Asturias regulating pharmacies and pharmaceutical dispensaries, and Sections 4, 6 and 7 of the Annex thereto, be considered to be in breach of Article 43 of the EC Treaty?

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/14 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/14

---

Reference for a preliminary ruling from the Tribunal Superior de Justicia de Asturias (Spain) lodged on 27 December 2007 — José Manuel Blanco Pérez and Maria del Pilar Chao Gómez v Consejería de Salud y Servicios Sanitarios del Principado de Asturias and Celso Fernandez Gómez

(Case C-571/07)

(2008/C 79/24)

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia de Asturias

Parties to the main proceedings

Applicants: José Manuel Blanco Pérez and Maria del Pilar Chao Gómez

Defendants: Consejería de Salud y Servicios Sanitarios del Principado de Asturias and Celso Fernandez Gómez

Question referred

Does Article 43 [EC] preclude the legislation of the Autonomous Community of the Principality of Asturias concerning authorisation for the establishment of pharmacies?

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/14 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/14

---

Reference for a preliminary ruling from the Krajský Soud v Ústí nad Labem (Czech Republic) lodged on 24 December 2007 — RLRE Tellmer Property s.r.o. v Finanční ředitelství v Ústí nad Labem

(Case C-572/07)

(2008/C 79/25)

Language of the case: Czech

Referring court

Krajský Soud v Ústí nad Labem

Parties to the main proceedings

Applicant: RLRE Tellmer Property s.r.o.

Defendant: Finanční ředitelství v Ústí nad Labem

Questions referred

| 1. | Whether the provisions of Article 6 (Supply of services) and Article 13 (Exemptions within the territory of the country) of the 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 (1) can be interpreted as meaning that the letting of an apartment (and possibly of non-residential premises) on the one hand and the related cleaning of the common parts on the other hand can be regarded as independent, mutually-divisible taxable transactions. |
| --- | --- |

1.

Whether the provisions of Article 6 (Supply of services) and Article 13 (Exemptions within the territory of the country) of the 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 (1) can be interpreted as meaning that the letting of an apartment (and possibly of non-residential premises) on the one hand and the related cleaning of the common parts on the other hand can be regarded as independent, mutually-divisible taxable transactions.

| 2. | If, as the referring court suspects, the answer to the first question is in the negative, it further asks the Court of Justice whether the provisions of Article 13 of that directive, and in particular the introduction and part B(b) thereof: (1) require; (2) preclude; or (3) leave to the determination of the Member State the application of VAT to payment for cleaning of the common parts of a rented apartment block. |
| --- | --- |

2.

If, as the referring court suspects, the answer to the first question is in the negative, it further asks the Court of Justice whether the provisions of Article 13 of that directive, and in particular the introduction and part B(b) thereof: (1) require; (2) preclude; or (3) leave to the determination of the Member State the application of VAT to payment for cleaning of the common parts of a rented apartment block.

---

(1)  OJ 1977 L 145, p. 1.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/14 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/14

---

Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 2 January 2008 — Amministrazione dell'Economia e delle Finanze Agenzia delle Entrate v Olimpiclub Srl

(Case C-2/08)

(2008/C 79/26)

Language of the case: Italian

Referring court

Corte Suprema di Cassazione

Parties to the main proceedings

Appellants: Amministrazione dell'Economia e delle Finanze, Agenzia delle Entrate

Respondent: Fallimento Olimpiclub Srl

Question referred

‘Does Community law preclude the application of a provision of national law, such as Article 2909 of the [Italian] Civil Code, laying down the principle of res judicata, where the application of that provision would lead to a result incompatible with Community law, thereby thwarting its application, even in areas other than State aid (in relation to which, see Case C-119/05 Lucchini SpA [2007] ECR I-0000) and, in particular, in matters relating to VAT and with respect to the misuse of rights in order to obtain undue tax savings, in particular in the light also of the rules of national law — as interpreted in the case-law of this Court — according to which, in tax disputes, where a giudicato esterno [a final judgment drawn up by another court in a case on the same subject] contains a finding on a fundamental issue common to other cases, it has binding authority as regards that issue, even if it was drawn up in relation to a different tax period?’

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/15 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/15

---

Reference for a preliminary ruling from the Tribunal du travail de Nivelles (Belgium) lodged on 8 January 2008 — Ketty Leyman v Institut national d'assurance maladie-invalidité (I.N.A.M.I.)

(Case C-3/08)

(2008/C 79/27)

Language of the case: French

Referring court

Tribunal du travail de Nivelles

Parties to the main proceedings

Applicant: Ketty Leyman

Defendant: Institut national d'assurance maladie-invalidité (I.N.A.M.I.)

Questions referred

| 1. | Are Article 40(3)(b) of Regulation (EEC) No 1408/71 (1) and Article 93 of the Consolidated Laws of 14 July 1994 on medical care and sickness insurance benefit contrary to Article 18 of the EC Treaty in that, where a worker lives and works in a type A country (in this case, Belgium) and moves to a type B country (in this case, the Grand Duchy of Luxembourg), they do not permit, during the first year of incapacity for work, the grant of an allowance that takes into account the length of time worked and the period of contribution in the type A country (Belgium)? |
| --- | --- |

1.

Are Article 40(3)(b) of Regulation (EEC) No 1408/71 (1) and Article 93 of the Consolidated Laws of 14 July 1994 on medical care and sickness insurance benefit contrary to Article 18 of the EC Treaty in that, where a worker lives and works in a type A country (in this case, Belgium) and moves to a type B country (in this case, the Grand Duchy of Luxembourg), they do not permit, during the first year of incapacity for work, the grant of an allowance that takes into account the length of time worked and the period of contribution in the type A country (Belgium)?

| 2. | Are Article 40(3)(b) of Regulation (EEC) No 1408/71 and Article 93 of the Consolidated Laws of 14 July 1994 on medical care and sickness insurance benefit contrary to Article 18 of the EC Treaty in that, where a worker lives and works in a type A country (in this case, Belgium) and moves to a type B country (in this case, the Grand Duchy of Luxembourg), they give rise to discrimination to the detriment of a worker exercising her right of free movement in not permitting the grant to her, during the first year of incapacity for work, of an allowance that takes into account the length of time worked and the period of contribution in the type A country (Belgium)? |
| --- | --- |

2.

Are Article 40(3)(b) of Regulation (EEC) No 1408/71 and Article 93 of the Consolidated Laws of 14 July 1994 on medical care and sickness insurance benefit contrary to Article 18 of the EC Treaty in that, where a worker lives and works in a type A country (in this case, Belgium) and moves to a type B country (in this case, the Grand Duchy of Luxembourg), they give rise to discrimination to the detriment of a worker exercising her right of free movement in not permitting the grant to her, during the first year of incapacity for work, of an allowance that takes into account the length of time worked and the period of contribution in the type A country (Belgium)?

---

(1)  Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, self-employed persons and to members of their families moving within the Community (OJ 1971 L 149, p. 2), as amended.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/15 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/15

---

Reference for a preliminary ruling from the Verwaltungsgerichtshof Baden-Württemberg (Germany) lodged on 4 January 2008 — Michael Mario Karl Kerner v Land Baden-Württemberg

(Case C-4/08)

(2008/C 79/28)

Language of the case: German

Referring court

Verwaltungsgerichtshof Baden-Württemberg

Parties to the main proceedings

Appellant: Michael Mario Karl Kerner

Respondent: Land Baden-Württemberg

Questions referred

| 1. | Does Article 8(4) of Council Directive 91/439/EEC of 29 July 1991 on driving licences (1) preclude the application of a provision of national law which, in the event of a previous withdrawal of a driving licence in the Member State in question, makes possible recognition of a driving licence issued by another Member State on condition that it is established that the facts which originally led to the withdrawal of the driving licence no longer exist, even if






  — | recognition of that driving licence is not required in the interest of giving effect to the fundamental freedom of free movement on the part of citizens of the Union, |
| --- | --- | --- |

1.

Does Article 8(4) of Council Directive 91/439/EEC of 29 July 1991 on driving licences (1) preclude the application of a provision of national law which, in the event of a previous withdrawal of a driving licence in the Member State in question, makes possible recognition of a driving licence issued by another Member State on condition that it is established that the facts which originally led to the withdrawal of the driving licence no longer exist, even if

—

recognition of that driving licence is not required in the interest of giving effect to the fundamental freedom of free movement on the part of citizens of the Union,

| — | the driving licence was issued in the other Member State in clear breach of the provisions of the Directive (residence requirement), |
| --- | --- |

—

the driving licence was issued in the other Member State in clear breach of the provisions of the Directive (residence requirement),

| — | the issuing Member State itself, when issuing the driving licence, must have been aware of this clear breach of the provisions of the Directive, |
| --- | --- |

—

the issuing Member State itself, when issuing the driving licence, must have been aware of this clear breach of the provisions of the Directive,

| — | according to the Member State of residence, the issuing Member State generally refuses to annul driving licences issued in breach of Community law, |
| --- | --- |

—

according to the Member State of residence, the issuing Member State generally refuses to annul driving licences issued in breach of Community law,

| — | the driving licence was obtained by the person concerned in the other Member State through an abusive exercise of rights in order to circumvent the provisions of the Member State of residence, which, according to the Directive, are the provisions which determine reissue, and the issuing Member State must have been aware of that abusive exercise of rights, |
| --- | --- |

—

the driving licence was obtained by the person concerned in the other Member State through an abusive exercise of rights in order to circumvent the provisions of the Member State of residence, which, according to the Directive, are the provisions which determine reissue, and the issuing Member State must have been aware of that abusive exercise of rights,

| — | and the medical examination to determine the fitness of the person concerned to drive, carried out before issue of the driving licence in knowledge of the reasons for the original withdrawal of the driving licence in the issuing Member State, clearly did not meet the requirements imposed on it in view of the grounds for the earlier withdrawal of the driving licence, with the result that the continued presence on the roads of the person involved represents a significant danger to the life and physical safety of other road users? |
| --- | --- |

—

and the medical examination to determine the fitness of the person concerned to drive, carried out before issue of the driving licence in knowledge of the reasons for the original withdrawal of the driving licence in the issuing Member State, clearly did not meet the requirements imposed on it in view of the grounds for the earlier withdrawal of the driving licence, with the result that the continued presence on the roads of the person involved represents a significant danger to the life and physical safety of other road users?

In the event that the answer to Question 1 is in the affirmative:

| 2. | Is Article 8(2) of Directive 91/439/EEC to be interpreted as meaning that while, in the circumstances described in Question 1, the Member State of residence is obliged to recognise the driving licence issued in another Member State of the European Union, with the result that, within its national territory, the holder is in principle entitled to drive motor vehicles, the Member State of residence is, in the interests of road safety, none the less at the very least empowered, in order to safeguard against the significant danger presented by this licence holder, to verify his fitness to drive in view of the circumstances which previously led to the withdrawal of the driving licence in the Member State of residence and which, because of the subsequent issue of the driving licence in another Member State of the European Union, precisely cannot be regarded as having been overcome? |
| --- | --- |

2.

Is Article 8(2) of Directive 91/439/EEC to be interpreted as meaning that while, in the circumstances described in Question 1, the Member State of residence is obliged to recognise the driving licence issued in another Member State of the European Union, with the result that, within its national territory, the holder is in principle entitled to drive motor vehicles, the Member State of residence is, in the interests of road safety, none the less at the very least empowered, in order to safeguard against the significant danger presented by this licence holder, to verify his fitness to drive in view of the circumstances which previously led to the withdrawal of the driving licence in the Member State of residence and which, because of the subsequent issue of the driving licence in another Member State of the European Union, precisely cannot be regarded as having been overcome?

---

(1)  OJ L 237, p. 1.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/16 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/16

---

Action brought on 9 January 2008 — Commission of the European Communities v Republic of Finland

(Case C-10/08)

(2008/C 79/29)

Language of the case: Finnish

Parties

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

Defendant: Republic of Finland

Form of order sought

| — | declare that, by maintaining in force Paragraph 5 of the Autoverolaki (Law on car tax) and Paragraph 102(1)(4) of the Arvonlisäverolaki (Law on value added tax), applying, for the purposes of car tax assessment, the same taxable value to cars under three months old as to new cars and applying to cars under six months old a scale according to which the value of a car decreases by 0,8 % per month in circumstances where it has not been established that there are any such vehicles on the Finnish market, the Republic of Finland has failed to fulfil its obligations under Article 90 of the EC Treaty and that, by allowing the tax under Paragraph 5 of the Autoverolaki to be deducted from the value added tax payable on sale, Finland has failed to fulfil its obligations under Article 17(1) and (2) of Sixth Council Directive 77/388/EEC (1), replaced after the recasting of Directive 77/388/EEC by Articles 167 and 168 of Council Directive 2006/112/EC (2); |
| --- | --- |

—

declare that, by maintaining in force Paragraph 5 of the Autoverolaki (Law on car tax) and Paragraph 102(1)(4) of the Arvonlisäverolaki (Law on value added tax), applying, for the purposes of car tax assessment, the same taxable value to cars under three months old as to new cars and applying to cars under six months old a scale according to which the value of a car decreases by 0,8 % per month in circumstances where it has not been established that there are any such vehicles on the Finnish market, the Republic of Finland has failed to fulfil its obligations under Article 90 of the EC Treaty and that, by allowing the tax under Paragraph 5 of the Autoverolaki to be deducted from the value added tax payable on sale, Finland has failed to fulfil its obligations under Article 17(1) and (2) of Sixth Council Directive 77/388/EEC (1), replaced after the recasting of Directive 77/388/EEC by Articles 167 and 168 of Council Directive 2006/112/EC (2);

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

—

order the Republic of Finland to pay the costs.

Pleas in law and main arguments

A person liable for value added tax who imports a vehicle into Finland has to pay value added tax on car tax to the customs authorities in accordance with Paragraph 5 of the Autoverolaki, but since, according to Paragraph 102(1)(4) of the Arvonlisäverolaki, he can deduct the corresponding amount of VAT payable on the sale, there is no VAT on car tax left in the value of the vehicle. The VAT on car tax which has been deducted is not transferred to the amount the consumer has to pay. If a private individual registers a vehicle for the first time in Finland he also has to pay VAT on car tax to the customs authorities but he cannot deduct it. That system, which distinguishes between sales by persons liable to VAT related to commercial activities at different stages of trade and acquisitions by final consumers from other Member States means that the VAT on car tax that a private individual has to pay for a used vehicle obtained in another Member State and registered for the first time in Finland is probably higher than the residual VAT on car tax in the value of a similar used car which has already been registered in Finland when the person liable to car tax was also liable to VAT and the vehicle has been sold in connection with taxable commercial activities, in which latter case the value of the vehicle does not include VAT on car tax because it has been deducted in its entirety, infringes Article 90 of the EC Treaty.

In Case C-101/00 Siilin the Court held that VAT on car tax was not VAT within the meaning of the Sixth Directive. The right under the Finnish Arvonlisäverolaki to deduct VAT on car tax related to commercial activities subject to tax was contrary to the Sixth VAT Directive 77/388/EEC, according to which VAT may be deducted only from VAT.

According to the Finnish Autoverolaki, the value of cars under three months old which are in use is not reduced and they are taxed as new vehicles. The value of a vehicle begins to go down from the moment the vehicle is purchased or brought into use. The taxation of used cars under three months old at the same level as new cars is contrary to Article 90 of the EC Treaty. The provisions of the Autoverolaki also infringe Article 90 of the EC Treaty because they apply a scale to cars between 3 and 6 months of age according to which the value of a car decreases by 0,8 % per month in circumstances where it has not been established that there are any similar vehicles on the Finnish market, because using that scale for a linear reduction in value of 0,8 % there is no guarantee that the amount of tax chargeable does not exceed in any circumstances the amount of residual tax included in the value of similar vehicles already registered in Finland.

---

(1)  Sixth Council Directive 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).

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

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/17 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/17

---

Reference for a preliminary ruling from the Cour du travail de Liège (Belgium) lodged on 11 January 2008 — Mono Car Styling SA, in liquidation v Dervis Odemis, Marc Bayard, Pietro Dimola, Danielle Marra, Youssef Belkaid, Marie-Christine Henri, Philippe Tistaert, Richard Toussaint, Alexandre Van Rutten, François Cristantielli, Khalid Zari, Isabelle Longaretti, Luigi Deiana, Vincent Hellinx, Christophe Novelli, Domenico Castronovo, Rachid Hitti, Alberto D'Errico, Marco Quaranta, Primo Pecci, Giuseppe Montaperto

(Case C-12/08)

(2008/C 79/30)

Language of the case: French

Referring court

Cour du travail de Liège

Parties to the main proceedings

Applicant: Mono Car Styling SA, in liquidation

Defendants: Dervis Odemis, Marc Bayard, Pietro Dimola, Danielle Marra, Youssef Belkaid, Marie-Christine Henri, Philippe Tistaert, Richard Toussaint, Alexandre Van Rutten, François Cristantielli, Khalid Zari, Isabelle Longaretti, Luigi Deiana, Vincent Hellinx, Christophe Novelli, Domenico Castronovo, Rachid Hitti, Alberto D'Errico, Marco Quaranta, Primo Pecci, Giuseppe Montaperto

Questions referred

| 1. | Should Article 6 of Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies (1), which provides that:

  ‘Member States shall ensure that judicial and/or administrative procedures for the enforcement of obligations under this Directive are available to the workers' representatives and/or workers’,
  be interpreted as precluding a provision of national law, such as Article 67 of the Law of 13 February 1998 on measures in favour of employment, in so far as it provides that a worker can no longer challenge compliance with the procedure for informing and consulting,






  — | except on the ground that the employer has not complied with the conditions referred to in Article 66(1)(ii) of that law, |
| --- | --- | --- |

1.

Should Article 6 of Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies (1), which provides that:

‘Member States shall ensure that judicial and/or administrative procedures for the enforcement of obligations under this Directive are available to the workers' representatives and/or workers’,

be interpreted as precluding a provision of national law, such as Article 67 of the Law of 13 February 1998 on measures in favour of employment, in so far as it provides that a worker can no longer challenge compliance with the procedure for informing and consulting,

—

except on the ground that the employer has not complied with the conditions referred to in Article 66(1)(ii) of that law,

| — | and to the extent that the staff representatives within the Works Council or, where no such council exists, the members of the union delegation or, where no such delegation exists, those workers who should be informed and consulted, have notified the employer of objections, in respect of compliance with one or more of the conditions referred to in Article 66(1)(ii) within 30 days of the display referred to in the second subparagraph of Article 66(2), |
| --- | --- |

—

and to the extent that the staff representatives within the Works Council or, where no such council exists, the members of the union delegation or, where no such delegation exists, those workers who should be informed and consulted, have notified the employer of objections, in respect of compliance with one or more of the conditions referred to in Article 66(1)(ii) within 30 days of the display referred to in the second subparagraph of Article 66(2),

| — | and where the worker made redundant has informed the employer, in a letter sent by recorded delivery [within 30 days from the date of redundancy] or from the date on which the redundancies acquired their status as collective redundancies, that he was challenging compliance with the procedure for informing and consulting and he was seeking to be reinstated in his post? |
| --- | --- |

—

and where the worker made redundant has informed the employer, in a letter sent by recorded delivery [within 30 days from the date of redundancy] or from the date on which the redundancies acquired their status as collective redundancies, that he was challenging compliance with the procedure for informing and consulting and he was seeking to be reinstated in his post?

| 2. | Assuming that Article 6 of Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies may be interpreted as allowing Member States to adopt provisions of national law such as Article 67 of the Law of 13 February 1998 on measures in favour of employment, in so far as it provides that a worker made redundant can no longer challenge compliance with the procedure for informing and consulting except on the ground that the employer has not fulfilled the conditions referred to in Article 66(1)(ii) of that law, and to the extent that staff representatives within the Works Council or, where no such council exists, the members of the union delegation or, where no such delegation exists, the workers who should be informed and consulted, have notified the employer of objections in respect of compliance with one or more of the conditions referred to in Article 66(1)(ii) within a period of 30 days from the display referred to in the second subparagraph of Article 66(2) and where the worker made redundant has informed the employer, in a letter sent by recorded delivery within 30 days from the date of redundancy or from the date on which the redundancies acquired their status as collective redundancies, that he was challenging compliance with the procedure for informing and consulting and he was seeking to be reinstated in his post,
  is such a system compatible with the fundamental rights of the individual which form an integral part of the general principles of law — respect for which is ensured by the Community judicature — and more particularly with Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms? |
| --- | --- |

2.

Assuming that Article 6 of Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies may be interpreted as allowing Member States to adopt provisions of national law such as Article 67 of the Law of 13 February 1998 on measures in favour of employment, in so far as it provides that a worker made redundant can no longer challenge compliance with the procedure for informing and consulting except on the ground that the employer has not fulfilled the conditions referred to in Article 66(1)(ii) of that law, and to the extent that staff representatives within the Works Council or, where no such council exists, the members of the union delegation or, where no such delegation exists, the workers who should be informed and consulted, have notified the employer of objections in respect of compliance with one or more of the conditions referred to in Article 66(1)(ii) within a period of 30 days from the display referred to in the second subparagraph of Article 66(2) and where the worker made redundant has informed the employer, in a letter sent by recorded delivery within 30 days from the date of redundancy or from the date on which the redundancies acquired their status as collective redundancies, that he was challenging compliance with the procedure for informing and consulting and he was seeking to be reinstated in his post,

is such a system compatible with the fundamental rights of the individual which form an integral part of the general principles of law — respect for which is ensured by the Community judicature — and more particularly with Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms?

| 3. | Can a national court seised of a dispute between two individuals — in the present case a worker and his former employer — disapply a provision of national law which is contrary to the provisions of a Community directive, such as Article 67 of the Law of 13 February 1998 on measures in favour of employment, in order to give effect to other provisions of national law which transpose, apparently correctly, a Community directive, such as the provisions contained in Collective Labour Agreement No 24 of 2 October 1975, made compulsory by Royal Decree of 21 January 1976, but whose effective application is frustrated by the provision of national law which is contrary to a Community directive, in the present case Article 67 of the Law of 13 February 1998; |
| --- | --- |

3.

Can a national court seised of a dispute between two individuals — in the present case a worker and his former employer — disapply a provision of national law which is contrary to the provisions of a Community directive, such as Article 67 of the Law of 13 February 1998 on measures in favour of employment, in order to give effect to other provisions of national law which transpose, apparently correctly, a Community directive, such as the provisions contained in Collective Labour Agreement No 24 of 2 October 1975, made compulsory by Royal Decree of 21 January 1976, but whose effective application is frustrated by the provision of national law which is contrary to a Community directive, in the present case Article 67 of the Law of 13 February 1998;

| 4. | (1) | Must Article 2 of Council Directive 98/59/EC of 20 July 1998, particularly paragraphs (1), (2) and (3) thereof, be interpreted as precluding a provision of national law, such as Article 66(1) of the Law of 13 February 1998 on measures in favour of employment, in so far as it provides that an employer who intends to satisfy his obligations in the context of collective redundancies is only bound to provide evidence that he has fulfilled the following conditions:






  1. | he must present to the Works Council or, where no such council exists, to the union delegation or, where no such delegation exists, to the workers, a written report in which he indicates his intention to proceed with collective redundancies; |
| --- | --- | --- | --- |

4.

(1)

Must Article 2 of Council Directive 98/59/EC of 20 July 1998, particularly paragraphs (1), (2) and (3) thereof, be interpreted as precluding a provision of national law, such as Article 66(1) of the Law of 13 February 1998 on measures in favour of employment, in so far as it provides that an employer who intends to satisfy his obligations in the context of collective redundancies is only bound to provide evidence that he has fulfilled the following conditions:

1.

he must present to the Works Council or, where no such council exists, to the union delegation or, where no such delegation exists, to the workers, a written report in which he indicates his intention to proceed with collective redundancies;

| 2. | he must be able to provide evidence, in respect of the intention to proceed with collective redundancies, that he has assembled the Works Council or, where no such council exists, that he has met with the union delegation or, where no such delegation exists, with the workers; |
| --- | --- |

2.

he must be able to provide evidence, in respect of the intention to proceed with collective redundancies, that he has assembled the Works Council or, where no such council exists, that he has met with the union delegation or, where no such delegation exists, with the workers;

| 3. | he must have allowed the staff representatives within the Works Council or, where no such council exists, the members of the union delegation or, where no such delegation exits, the workers, to raise questions regarding the collective redundancies contemplated and to make arguments or submit counter-proposals on that issue; |
| --- | --- |

3.

he must have allowed the staff representatives within the Works Council or, where no such council exists, the members of the union delegation or, where no such delegation exits, the workers, to raise questions regarding the collective redundancies contemplated and to make arguments or submit counter-proposals on that issue;

| 4. | he must have examined those questions, arguments and counter-proposals referred to in (iii) and have replied to them. |
| --- | --- |

4.

he must have examined those questions, arguments and counter-proposals referred to in (iii) and have replied to them.

| (2) | Must that same provision be interpreted as precluding a provision of national law, such as Article 67(2) of the Law of 13 February 1998 on measures in favour of employment, in so far as it provides that a worker made redundant can challenge compliance with the procedure for informing and consulting only on the ground that the employer has not complied with the conditions referred to in Article 66(1)(ii) at issue in point 1 above? |
| --- | --- |

(2)

Must that same provision be interpreted as precluding a provision of national law, such as Article 67(2) of the Law of 13 February 1998 on measures in favour of employment, in so far as it provides that a worker made redundant can challenge compliance with the procedure for informing and consulting only on the ground that the employer has not complied with the conditions referred to in Article 66(1)(ii) at issue in point 1 above?

---

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

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/18 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/18

---

Appeal brought on 17 January 2008 by MPDV Mikrolab GmbH, Mikroprozessordatenverarbeitung und Mikroprozessorlabor against the judgment of the Court of First Instance (First Chamber) delivered on 8 November 2007 in Case T-459/05 MPDV Mikrolab GmbH, Mikroprozessordatenverarbeitung und Mikroprozessorlabor v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-17/08 P)

(2008/C 79/31)

Language of the case: German

Parties

Appellant: MPDV Mikrolab GmbH, Mikroprozessordatenverarbeitung und Mikroprozessorlabor (represented by: W. Göpfert, Rechtsanwalt)

Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Form of order sought

| — | set aside the judgment under appeal insofar as the Court of First Instance dismissed the heads of claim submitted before it, |
| --- | --- |

—

set aside the judgment under appeal insofar as the Court of First Instance dismissed the heads of claim submitted before it,

| — | annul the decision of the Second Board of Appeal of 19 October 2005 in the appeal proceedings R 1059/2004-2, and |
| --- | --- |

—

annul the decision of the Second Board of Appeal of 19 October 2005 in the appeal proceedings R 1059/2004-2, and

| — | order the respondent to pay the costs of the appeal. |
| --- | --- |

—

order the respondent to pay the costs of the appeal.

Pleas in law and main arguments

The appeal is based on errors in law in the interpretation in the judgment under appeal of Article 7(1)(b) and (c) of the Community Trade Mark Regulation.

That erroneous interpretation resulted in an erroneous outcome — rejection of the application for registration of the Community word mark ‘manufacturing score card’. In particular, not only did the Court of First Instance make a wrong assessment of the content; it also seriously misinterpreted the requirements of distinctive character and the need to keep terms free as formulated by the European Court of Justice in relation to applications for a Community trade mark and the relevant classes of persons.

It was not permissible for the Court of First Instance to divide the verbal composition submitted in the application into its constituent parts and to find, on that basis, that the mark was not eligible for protection. Dividing it up in this way does not correspond to how the ‘normal’ class of persons assesses and interprets the mark when it sees it as a whole. Moreover, the Court of First Instance was wrong to base its finding that the mark lacked distinctive character and that there was a need to keep the term free on the observation that the verbal composition consisted of parts which, in the course of trade, were normally used to explain the purpose and function of the services covered. The relevant trade circles would not, however, recognise any immediately obvious meaning in the application for a Community trade mark ‘manufacturing score card’, consisting of a combination of three English words. Consequently, the mark applied for has the minimum distinctive character required by Article 7(1)(b) of the Community Trade Mark Regulation and also does not designate characteristics of goods or services in accordance with Article 7(1)(c) of the Community Trade Mark Regulation.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/19 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/19

---

Reference for a preliminary ruling from the Tribunal d'Instance de Bordeaux (France) lodged on 21 January 2008 — Foselev Sud-Ouest SARL v Administration des douanes et des droits indirects

(Case C-18/08)

(2008/C 79/32)

Language of the case: French

Referring court

Tribunal d'Instance de Bordeaux

Parties to the main proceedings

Applicant: Foselev Sud-Ouest SARL

Defendant: Administration des douanes et des droits indirects

Question referred

Article 6(2)(b) of Directive 1999/62/EC of the European Parliament and of the Council on the charging of heavy goods vehicles for the use of certain infrastructures (1) provides for the possibility for a Member State to exempt certain categories of vehicle. In this context, is the authorisation given to France by the Commission on 20 June 2005 (2), in Decision 2005/449/EC, to exempt certain categories of vehicles directly applicable to individuals or, as it concerns an authorisation decision addressed to France, is a measure transposing it into national law necessary?

---

(1)  OJ 1999 L 187, p. 42.

(2)  2005/449/EC: Commission Decision of 20 June 2005 concerning a request for exemption from the vehicle tax rules submitted by France pursuant to Article 6(2)(b) of Directive 1999/62/EC of the European Parliament and of the Council on the charging of heavy goods vehicles for the use of certain infrastructures (OJ 2005 L 158, p. 23).

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/19 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/19

---

Appeal brought on 22 January 2008 by Enercon GmbH against the judgment of the Court of First Instance (Fifth Chamber) delivered on 15 November 2007 in Case T-71/06 Enercon GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-20/08 P)

(2008/C 79/33)

Language of the case: German

Parties

Appellant: Enercon GmbH (represented by: R. Böhm and U. Sander, Rechtsanwälte)

Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

Form of order sought

| — | Set aside the judgment of the Fifth Chamber of the Court of First Instance of 15 November 2007 (Case T-71/06); |
| --- | --- |

—

Set aside the judgment of the Fifth Chamber of the Court of First Instance of 15 November 2007 (Case T-71/06);

| — | uphold the forms of order sought at first instance; |
| --- | --- |

—

uphold the forms of order sought at first instance;

| — | in the alternative, refer the case back to the Court of First Instance; |
| --- | --- |

—

in the alternative, refer the case back to the Court of First Instance;

| — | order OHIM to pay the costs of both instances. |
| --- | --- |

—

order OHIM to pay the costs of both instances.

Grounds of appeal and main arguments

By its first ground of appeal the appellant claims that there has been an infringement of the duty to give reasons under Article 73 of the Community Trade Mark Regulation. Neither in the decision of the Board of Appeal nor in the judgment under appeal of the Court of First Instance were any findings set out or explanations given regarding the shapes which OHIM or the Court of First Instance recognised as being common on the market and in what ways the shape applied for would have to differ from common shapes on the market to be found to be distinctive. In the absence of such findings or explanations it is not conceivable how OHIM or the Court of First Instance could have come to the conclusion that the shape applied for was not distinctive.

By its second ground of appeal the appellant alleges that Article 7(1)(b) of the Community Trade Mark Regulation has been infringed by an assessment of distinctiveness which, in the absence of a statement of the factual basis for its decision, could only have come about as a result of a distortion by the Court of First Instance of the facts presented to it, a matter open to review by the Court of Justice. Contrary to the view of the Court of First Instance in the judgment under appeal, the appellant claims that the shape applied for is distinctive since it is significantly different from the normal shapes found on the market and is not merely a variant of such shapes. Among the relevant public the shape applied for can be recognised and indeed is recognisable as an indication of origin irrespective of its use and without further enquiries or thought.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/20 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/20

---

Action brought on 22 January 2008 — Commission of the European Communities v Republic of Portugal

(Case C-24/08)

(2008/C 79/34)

Language of the case: Portuguese

Parties

Applicant: Commission of the European Communities (represented by: M. Afonso and H. Kraemer, acting as Agents)

Defendant: Republic of Portugal

Form of order sought

| — | Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2004/48/EC (1) of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights, or in any event by not communicating such measures to the Commission, the Republic of Portugal has failed to fulfil its obligations under that directive; |
| --- | --- |

—

Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2004/48/EC (1) of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights, or in any event by not communicating such measures to the Commission, the Republic of Portugal has failed to fulfil its obligations under that directive;

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

—

order the Republic of Portugal to pay the costs.

Pleas in law and main arguments

The period prescribed for transposing the Directive into national law expired on 29 April 2004.

---

(1)  OJ 2004 L 157, p. 45.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/20 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/20

---

Appeal brought on 24 January 2008 by Giuseppe Gargani against the order of the Court of First Instance (Third Chamber) of 21 November 2007 in Case T-94/06 Giuseppe Gargani v European Parliament

(Case C-25/08 P)

(2008/C 79/35)

Language of the case: German

Parties

Appellant: Giuseppe Gargani (represented by: W. Rothley, Rechtsanwalt)

Other party to the proceedings: European Parliament

Form of order sought

| — | Set aside the order of the Court of First Instance (Third Chamber) of 21 November 2007 in its entirety; |
| --- | --- |

—

Set aside the order of the Court of First Instance (Third Chamber) of 21 November 2007 in its entirety;

| — | refer the case back to the Court of First Instance for a fresh decision; |
| --- | --- |

—

refer the case back to the Court of First Instance for a fresh decision;

| — | order the respondent to pay the costs of the appeal. |
| --- | --- |

—

order the respondent to pay the costs of the appeal.

Pleas in law and main arguments

The Court of First Instance failed to give the appellant a fair hearing by failing to address the appellant's submissions and, instead, changing the parties and then declaring the action to be inadmissible.

The action, which was brought by the Chairman of the European Parliament's Committee on Legal Affairs, not (as stated in the order under appeal) by an individual as such, is expressly directed against the then President of the European Parliament, and not against the European Parliament itself or against a ‘natural person’. The Court of First Instance regards the appellant as any Italian applicant seeking a declaration that the conduct of the European Parliament is unlawful, and the President of the European Parliament at the time as any Spanish defendant being accused in respect of the unlawful conduct of the President of the European Parliament.

The Court of First Instance failed to ascertain whether the judicial system provides a means of redress that would enable the chairman of a committee to apply for a declaration of unlawfulness in respect of the conduct of the President of the European Parliament where the latter exceeds his powers under the Rules of Procedure and thereby infringes the participation rights of a committee chairman or of the Parliament as a whole.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/21 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/21

---

Appeal brought on 24 January 2008 by Commission of the European Communities against the judgment of the Court of First Instance (Third Chamber) delivered on 8 November 2007 in Case T-194/04: Commission of the European Communities v The Bavarian Lager Co. Ltd, European Data Protection Supervisor (EDPS)

(Case C-28/08 P)

(2008/C 79/36)

Language of the case: English

Parties

Appellant: Commission of the European Communities (represented by: C. Docksey and P. Aalto, Agents)

Other parties to the proceedings: The Bavarian Lager Co. Ltd, European Data Protection Supervisor

Form of order sought

The appellant claims that the Court should:

| — | to quash the contested judgment in full; |
| --- | --- |

—

to quash the contested judgment in full;

| — | to give final judgment in the matters that are the subject of this appeal; and |
| --- | --- |

—

to give final judgment in the matters that are the subject of this appeal; and

| — | to order the Applicant in Case T-194/04 to pay the costs of the Commission arising from that case and from the present appeal, or, in the event of a ruling against the Commission upon appeal, to order that the Commission should pay half the costs of the Applicant in Case T-194/04 arising from that case. |
| --- | --- |

—

to order the Applicant in Case T-194/04 to pay the costs of the Commission arising from that case and from the present appeal, or, in the event of a ruling against the Commission upon appeal, to order that the Commission should pay half the costs of the Applicant in Case T-194/04 arising from that case.

Pleas in law and main arguments

This appeal concerns the interpretation of the exceptions relating to the protection of privacy and data protection and investigations set forth respectively in Articles 4(1)(b) and 4(2), 2nd indent of Regulation (EC) No 1049/2001 of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (1).

The Court of First Instance the Court held that Article 8(b) of Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (2) may not be applied in the case of personal data in documents held by an institution falling under Regulation 1049/2001. However no provision of either Regulation 45/2001 or Regulation 1049/2001 requires or permits this provision to be disabled in order to permit a norm under Regulation 1049/2001 to have effect. The CFI has therefore erred in law in interpreting Article 4(1)(b) of Regulation 1049/2001 so as require a provision of Community law to be set aside.

Second, the Court held that, notwithstanding the specific reference in Article 4(1)(b) to Community legislation on data protection, personal data in documents shall be disclosed to the public under Regulation 1049/2001 except in cases where there is a clear risk of undermining the protection of the right of privacy and integrity of the individual.

By limiting the scope of the exception under Article 4(1)(b) to such cases, the Court has adopted a restrictive interpretation of the exception in Article 4(1)(b) which deprives the additional requirement in the second part of that exception (‘in particular in accordance with Community legislation on data protection’) of its effet utile. The Court has erred in law in limiting the said exception to exclude Community legislation on data protection from its scope in cases where access is requested to personal data contained in a document.

Third, the Court adopted an interpretation of the exception relating to the protection of ‘investigations’ which casts doubt on the ability of the Commission to carry out its functions effectively by relying on information received on a confidential basis from third parties in order for them to assist the Commission in conducting its inquiries.

The CFI has erred in law by interpreting the exception relating to investigations in Article 4(2), third indent, of Regulation 1049/2001 to the effect that the Commission may not provide assurances of confidentiality made in the course of its investigations of an alleged violation of Community law, nor respect such assurances in the future.

Finally, the Commission has appealed on costs.

---

(1)  OJ L 145, p. 43.

(2)  OJ L 8, p. 1.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/22 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/22

---

Reference for a preliminary ruling from the Regeringsrätten (Sweden) lodged on 25 January 2008 — Skatteverket v AB SKF

(Case C-29/08)

(2008/C 79/37)

Language of the case: Swedish

Referring court

Regeringsrätten

Parties to the main proceedings

Applicant: Skatteverket

Defendant: AB SKF

Questions referred

| 1. | Are Articles 2 and 4 of the Sixth VAT Directive and Articles 2 and 9 of Council Directive 2006/112/EC on the common system for value added tax to be interpreted as meaning that, where a taxable person liable for tax on sales of services to a subsidiary sells the interests in the subsidiary, that transaction is subject to VAT? |
| --- | --- |

1.

Are Articles 2 and 4 of the Sixth VAT Directive and Articles 2 and 9 of Council Directive 2006/112/EC on the common system for value added tax to be interpreted as meaning that, where a taxable person liable for tax on sales of services to a subsidiary sells the interests in the subsidiary, that transaction is subject to VAT?

| 2. | If the answer to the first question is that the sale constitutes a taxable transaction, is it then covered by the exemption from taxation relating to interests in companies under Article 13B(d)(5) of the Sixth VAT Directive and Article 135(1)(f) of Council Directive on a common system of value added tax? |
| --- | --- |

2.

If the answer to the first question is that the sale constitutes a taxable transaction, is it then covered by the exemption from taxation relating to interests in companies under Article 13B(d)(5) of the Sixth VAT Directive and Article 135(1)(f) of Council Directive on a common system of value added tax?

| 3. | Irrespective of the answer to the above questions, can there be a right to deduct for expenditure directly attributable to the sale, in the same way as there is for general expenses? |
| --- | --- |

3.

Irrespective of the answer to the above questions, can there be a right to deduct for expenditure directly attributable to the sale, in the same way as there is for general expenses?

| 4 | Is it of significance for the answers to the above questions if the sale of interests in a subsidiary takes place in stages? |
| --- | --- |

4

Is it of significance for the answers to the above questions if the sale of interests in a subsidiary takes place in stages?

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/22 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/22

---

Action brought on 25 January 2008 — Commission of the European Communities v Italian Republic

(Case C-30/08)

(2008/C 79/38)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: C. Zadra, Agent, acting as Agent)

Defendant: Italian Republic

Form of order sought

| — | declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Commission Directive 2005/78/EC of 14 November 2005 (1) implementing Directive 2005/55/EC of the European Parliament and of the Council on the approximation of the laws of the Member States relating to the measures to be taken against the emission of gaseous and particulate pollutants from compression-ignition engines for use in vehicles, and the emission of gaseous pollutants from positive ignition engines fuelled with natural gas or liquefied petroleum gas for use in vehicles (2) and amending Annexes I, II, III, IV and VI thereto, and, in any event, by failing to communicate such provisions to the Commission, the Italian Republic has failed to fulfil its obligations under Article 3 of that directive; |
| --- | --- |

—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Commission Directive 2005/78/EC of 14 November 2005 (1) implementing Directive 2005/55/EC of the European Parliament and of the Council on the approximation of the laws of the Member States relating to the measures to be taken against the emission of gaseous and particulate pollutants from compression-ignition engines for use in vehicles, and the emission of gaseous pollutants from positive ignition engines fuelled with natural gas or liquefied petroleum gas for use in vehicles (2) and amending Annexes I, II, III, IV and VI thereto, and, in any event, by failing to communicate such provisions to the Commission, the Italian Republic has failed to fulfil its obligations under Article 3 of that directive;

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

—

order the Italian Republic to pay the costs.

Pleas in law and main arguments

The period for transposition of Directive 2005/78/EC expired on 8 November 2006.

---

(1)  OJ L 313 of 29.11.2005, p. 1.

(2)  OJ L 275 of 20.10.2005, p. 1.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/23 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/23

---

Action brought on 25 January 2008 — Commission of the European Communities v Italian Republic

(Case C-31/08)

(2008/C 79/39)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: C. Zadra, acting as Agent)

Defendant: Italian Republic

Form of order sought

| — | declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Commission Directive 2006/51/EC of 6 June 2006 (1) amending for the purposes of adapting to technical progress Annex I to Directive 2005/55/EC of the European Parliament and of the Council (2) and Annexes IV and V to Directive 2005/78/EC (3) as regards requirements for the emission control monitoring system for use in vehicles and exemptions for gas engines and, in any event, by failing to communicate such provisions to the Commission, the Italian Republic has failed to fulfil its obligations under Article 3 of that directive; |
| --- | --- |

—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Commission Directive 2006/51/EC of 6 June 2006 (1) amending for the purposes of adapting to technical progress Annex I to Directive 2005/55/EC of the European Parliament and of the Council (2) and Annexes IV and V to Directive 2005/78/EC (3) as regards requirements for the emission control monitoring system for use in vehicles and exemptions for gas engines and, in any event, by failing to communicate such provisions to the Commission, the Italian Republic has failed to fulfil its obligations under Article 3 of that directive;

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

—

order the Italian Republic to pay the costs.

Pleas in law and main arguments

The period for transposition of Directive 2006/51/EC expired on 8 November 2006.

---

(1)  OJ L 152 of 7.6.2006, p. 11.

(2)  OJ L 275 of 20.10.2005, p. 1.

(3)  OJ L 313 of 29.11.2005, p. 1.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/23 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/23

---

Order of the President of the Court of the Court of 21 January 2008 — Commission of the European Communities v Federal Republic of Germany

(Case C-307/06) (1)

(2008/C 79/40)

Language of the case: German

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

---

(1)  OJ C 224, 16.9.2006.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/23 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/23

---

Order of the President of the Court of 21 January 2008 — Commission of the European Communities v Federal Republic of Germany

(Case C-496/06) (1)

(2008/C 79/41)

Language of the case: German

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

---

(1)  OJ C 326, 30.12.2006.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/23 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/23

---

Order of the President of the Eighth Chamber of the Court of 20 December 2007 — Commission of the European Communities v Ireland

(Case C-65/07) (1)

(2008/C 79/42)

Language of the case: English

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

---

(1)  OJ C 69, 24.3.2007.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/23 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/23

---

Order of the President of the Court of 24 January 2008 — Commission of the European Communities v Federal Republic of Germany

(Case C-192/07) (1)

(2008/C 79/43)

Language of the case: German

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

---

(1)  OJ C 117, 26.5.2007.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/24 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/24

---

Order of the President of the Court of 11 January 2008 — Commission of the European Communities v French Republic

(Case C-329/07) (1)

(2008/C 79/44)

Language of the case: French

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

---

(1)  OJ C 211, 8.9.2007.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/24 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/24

---

Order of the President of the Court of 24 January 2008 — Commission of the European Communities v Portuguese Republic

(Case C-433/07) (1)

(2008/C 79/45)

Language of the case: Portuguese

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

---

(1)  OJ C 269, 10.11.2007.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/24 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/24

---

Order of the President of the Court of 17 January 2008 — Commission of the European Communities v Portuguese Republic

(Case C-434/07) (1)

(2008/C 79/46)

Language of the case: Portuguese

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

---

(1)  OJ C 269, 10.11.2007.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/24 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/24

---

Order of the President of the Court of 23 January 2008 — Commission of the European Communities v Portuguese Republic

(Case C-435/07) (1)

(2008/C 79/47)

Language of the case: Portuguese

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

---

(1)  OJ C 269, 10.11.2007.

---

Court of First Instance

| 29.3.2008 | EN | Official Journal of the European Union | C 79/25 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/25

---

Judgment of the Court of First Instance of 12 February 2008 — BUPA and Others v Commission

(Case T-289/03) (1)

(State aid - Risk equalisation scheme introduced by Ireland on the private medical insurance market - Aid system - Services of general economic interest - Article 86(2) EC - Commission decision not to raise objections - Action for annulment - Admissibility - Principles of necessity and proportionality)

(2008/C 79/48)

Language of the case: English

Parties

Applicants: British United Provident Association Ltd (BUPA) (London, United Kingdom); BUPA Insurance Ltd (London); and BUPA Ireland Ltd (Dublin, Ireland) (represented by: N. Green QC, K. Bacon and J. Burke, Barristers, and B. Amory, lawyer)

Defendant: Commission of the European Communities (represented by: initially N Khan and J. Flett, then N. Kahn and T. Scharf, Agents)

Interveners in support of the defendant: Kingdom of the Netherlands represented by: N. Bel, Agent; Ireland (represented by: D. O'Hagan, Agent, with G. Hogan SC and E. Regan, Barrister); and Voluntary Health Insurance Board (Dublin) (represented by: D. Collins, G. FitzGerald and D. Clarke, Solicitors, and P. Gallagher SC)

Re:

Application by, inter alia, BUPA Ireland Ltd, a provider of private medical insurance services in Ireland, for annulment of the Commission's Decision C(2003)1322 final of 13 May 2003 not to raise objections under Article 4(2) and (3) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88 EC] (OJ 1999 L 83, p. 1), concerning the establishment of a risk equalisation scheme (RES) in the Irish health insurance market (State aid N 46/2003 — Ireland).

Operative part of the judgment

The Court:

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

1.

Dismisses the application;

| 2. | Orders British United Provident Association Ltd (BUPA), BUPA Insurance Ltd and BUPA Ireland Ltd to bear their own costs and to pay the costs incurred by the Commission and the Voluntary Health Insurance Board; |
| --- | --- |

2.

Orders British United Provident Association Ltd (BUPA), BUPA Insurance Ltd and BUPA Ireland Ltd to bear their own costs and to pay the costs incurred by the Commission and the Voluntary Health Insurance Board;

| 3. | Orders Ireland and the Kingdom of the Netherlands to bear their own costs. |
| --- | --- |

3.

Orders Ireland and the Kingdom of the Netherlands to bear their own costs.

---

(1)  OJ C 264, 1.11.2003.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/25 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/25

---

Judgment of the Court of First Instance of 14 February 2008 — Orsay v OHIM — Jiménez Arellano (O orsay)

(Case T-39/04) (1)

(Community trade mark - Opposition procedure - Application for the word and figurative trade mark O orsay - Earlier national word and figurative trade mark D'ORSAY - Ground for refusal - Risk of confusion - Article 8(1)(b) of Regulation (EC) No 40/94)

(2008/C 79/49)

Language of the case: German

Parties

Applicant: Orsay GmbH (Willstät, Germany) (represented by: D. von Schultz and S. Elbe, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented initially, by: U. Pfeghar, later by: G. Schneider, Agents)

Other party to the proceedings before the Board of Appeal of OHIM: José Jiménez Arellano S.A. (Madrid, Spain) (represented initially, by: J. Astiz Suárez, later by: S. Hernán-Carrillo Portolés and finally by: A. Tarí Lázaro, lawyers,

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 3 November 2003 (Case R 394/2002-4) concerning an opposition procedure between José Jiménez Arellano S.A. and Orsay GmbH.

Operative part of the judgment

| 1. | The application is dismissed; |
| --- | --- |

1.

The application is dismissed;

| 2. | Orsay GmbH is ordered to pay the costs. |
| --- | --- |

2.

Orsay GmbH is ordered to pay the costs.

---

(1)  OJ C 106 of 30.4.2004.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/26 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/26

---

Judgment of the Court of First Instance of 14 February 2008 — Spain v Commission

(Case T-266/04) (1)

(EAGGF - Guarantee Section - Expenditure excluded from Community financing - Withdrawal of fruit and vegetables - Check on all products withdrawn - Arable crops and beef premiums - Period of 24 months)

(2008/C 79/50)

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by: F. Díez Moreno, abogado del Estado)

Defendant: Commission of the European Communities (represented by: L. Visaggio, S. Pardo Quintillán and F. Jimeno Fernández, acting as Agents)

Re:

Partial annulment of Commission Decision 2004/457/EC of 29 April 2004 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 2004 L 156, p. 48, corrigendum in OJ 2004 L 202, p. 35), inasmuch as it excludes certain expenditure incurred by Spain

Operative part of the judgment

The Court:

| 1. | Annuls Commission Decision 2004/457/EC of 29 April 2004 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 2004 L 156, p. 48, corrigendum in OJ 2004 L 202, p. 35), inasmuch as it excludes expenditure incurred by the Kingdom of Spain in the Autonomous Communities of the Basque Region and La Rioja in financial year 1998/1999 relating to arable crops and beef premiums, on the one hand, and expenditure incurred before 22 March 2000 by the Kingdom of Spain in the Autonomous Community of the Basque Region in financial year 1999/2000 relating to arable crops and beef premiums, on the other; |
| --- | --- |

1.

Annuls Commission Decision 2004/457/EC of 29 April 2004 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 2004 L 156, p. 48, corrigendum in OJ 2004 L 202, p. 35), inasmuch as it excludes expenditure incurred by the Kingdom of Spain in the Autonomous Communities of the Basque Region and La Rioja in financial year 1998/1999 relating to arable crops and beef premiums, on the one hand, and expenditure incurred before 22 March 2000 by the Kingdom of Spain in the Autonomous Community of the Basque Region in financial year 1999/2000 relating to arable crops and beef premiums, on the other;

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

2.

Dismisses the remainder of the action;

| 3. | Orders each party to bear its own costs. |
| --- | --- |

3.

Orders each party to bear its own costs.

---

(1)  OJ C 217, 28.8.2004.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/26 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/26

---

Judgment of the Court of First Instance of 14 February 2008 — Orsay v OHIM — Jiménez Arellano (Orsay)

(Case T-378/04) (1)

(Community trade mark - Opposition procedure - Application for the word and figurative trade mark Orsay - Earlier national word and figurative trade mark D'ORSAY - Ground for refusal - Risk of confusion - Article 8(1)(b) of Regulation (EC) No 40/94)

(2008/C 79/51)

Language of the case: German

Parties

Applicant: Orsay GmbH (Willstät, Germany) (represented by: D. von Schultz and S. Elbe, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented initially, by: T. Eichenberg, later by: G. Schneider, Agents)

Other party to the proceedings before the Board of Appeal of OHIM: José Jiménez Arellano S.A. (Madrid, Spain) (represented initially, by: J. Astiz Suárez, later by: S. Hernán-Carrillo Portolés and finally by: A. Tarí Lázaro, lawyers,

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 15 June 2004 (Case R 909/2002-4) concerning an opposition procedure between José Jiménez Arellano S.A. and Orsay GmbH.

Operative part of the judgment

| 1. | The application is dismissed; |
| --- | --- |

1.

The application is dismissed;

| 2. | Orsay GmbH is ordered to pay the costs. |
| --- | --- |

2.

Orsay GmbH is ordered to pay the costs.

---

(1)  OJ C 314 of 18.12.2004.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/27 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/27

---

Judgment of the Court of First Instance of 14 February 2008 — Usinor v OHIM — Corus UK (GALVALLOY)

(Case T-189/05) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark GALVALLOY - Earlier national word mark GALVALLIA - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94)

(2008/C 79/52)

Language of the case: English

Parties

Applicant: Usinor SA (Puteaux, France) (represented by: P. de Candé and J. Blanchard, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Corus UK Ltd (London, United Kingdom) (represented by: S. Malynicz, Barrister)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 10 February 2005 (Case R 411/2004-1) in respect of opposition proceedings between Usinor SA and Corus UK Ltd.

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 10 February 2005 (Case R 411/2004-1); |
| --- | --- |

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 10 February 2005 (Case R 411/2004-1);

| 2. | Orders OHIM to bear its own costs and to pay those incurred by Usinor SA; |
| --- | --- |

2.

Orders OHIM to bear its own costs and to pay those incurred by Usinor SA;

| 3. | Orders Corus UK Ltd to bear its own costs. |
| --- | --- |

3.

Orders Corus UK Ltd to bear its own costs.

---

(1)  OJ C 182, 23.7.2005.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/27 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/27

---

Judgment of the Court of First Instance of 14 February 2008 — Provincia di Imperia v Commission

(Case T-351/05) (1)

(European Social Fund - Community financial aid in the area of innovative measures under Article 6 of Regulation (EC) No 1784/1999 - Call for proposals - Rejection of the proposal)

(2008/C 79/53)

Language of the case: Italian

Parties

Applicant: Provincia di Imperia (Italy) (represented by: S. Rostagno and K. Platteau, lawyers)

Defendant: Commission of the European Communities (represented by: D. Martin and A. Weimar, acting as Agents)

Re:

Annulment of the Commission's decision of 30 June 2005 not to accept the proposal presented by the applicant in response to call for proposals VP/2003/21 ‘Innovative Approaches to the Management of Change’, published in the context of innovative measures under Article 6 of the Regulation on the European Social Fund and all measures connected with that decision

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders the Provincia di Imperia to bear its own costs and to pay the costs of the Commission. |
| --- | --- |

2.

Orders the Provincia di Imperia to bear its own costs and to pay the costs of the Commission.

---

(1)  OJ C 296, 26.11.2005.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/27 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/27

---

Judgment of the Court of First Instance of 13 February 2008 — Sanofi-Aventis v OHIM

(Case T-146/06) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark ATURION - Earlier national mark URION - Relative ground for refusal - Lack of likelihood of confusion - Lack of similarity between the signs - Article 8(1)(b) of Regulation (EC) No 40/94)

(2008/C 79/54)

Language of the case: Spanish

Parties

Applicant: Sanofi-Aventis SA (Paris, France) (represented by: E. Armijo Chávarri and A. Castán Pérez-Gómez, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: GD Searle LLC (New York, New York, United States of America)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 3 February 2006 (Case R 227/2005-1) concerning opposition proceedings between Sanofi-Aventis SA and GD Searle LLC.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Sanofi-Aventis SA to pay the costs. |
| --- | --- |

2.

Orders Sanofi-Aventis SA to pay the costs.

---

(1)  OJ C 190, 12.8.2006.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/28 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/28

---

Action brought on 21 December 2007 — Enercon v OHIM — Hasbro (ENERCON)

(Case T-472/07)

(2008/C 79/55)

Language in which the application was lodged: English

Parties

Applicant: Enercon GmbH (Aurich, Germany) (represented by: R. Böhm, lawyer)

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

Other party to the proceedings before the Board of Appeal: Hasbro Inc. (Pawtucket, United States)

Form of order sought

| — | That the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 25 October 2007 in Case R 959/2006-4 be annulled insofar as it dismissed the appeal of Enercon GmbH against the decision of the opposition division of 26 May 2006 ruling on opposition No B 763 666; |
| --- | --- |

—

That the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 25 October 2007 in Case R 959/2006-4 be annulled insofar as it dismissed the appeal of Enercon GmbH against the decision of the opposition division of 26 May 2006 ruling on opposition No B 763 666;

| — | that the Office for Harmonisation in the Internal Market (Trade Marks and Designs) is to be ordered to bear its own costs and to pay those of the applicant. |
| --- | --- |

—

that the Office for Harmonisation in the Internal Market (Trade Marks and Designs) is to be ordered to bear its own costs and to pay those of the applicant.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The Community word mark ‘ENERCON’ for goods in Classes 16, 18, 24, 25, 28 and 32 — Application No 3 326 031

Proprietor of the mark or sign cited in the opposition proceedings: Hasbro Inc.

Mark or sign cited: The Community word mark ‘TRANSFORMERS ENERGON’ for goods in classes 16, 18, 24, 25, 28, 30 and 32 — Application No 3 152 121 as well as the earlier non-registered marks ‘TRANSFORMERS ENERGON’ and ‘ENERGON’

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

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of the Community Trade Mark Regulation (EC) No 40/94.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/28 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/28

---

Action brought on 21 December 2007 — Commission v CAE Consulting

(Case T-474/07)

(2008/C 79/56)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: A.-M. Rouchaud-Joët, S. Lejeune, acting as Agents, and O. Prost, avocat)

Defendant: CAE Consulting GmbH (Sexau, Germany)

Form of order sought

| — | declare the Commission's application to be admissible and well founded and, in accordance with it, |
| --- | --- |

—

declare the Commission's application to be admissible and well founded and, in accordance with it,

| — | order the defendant to pay to the Commission the sum of EUR 25 574 in capital, together with the sum of EUR 10 189,31 by way of default interest until 31 December 2007, and, from 1 January 2008 onwards until all sums have been paid, to pay EUR 3,67 for each day of delay, with this interest to be capitalised from 31 May 2001 onwards; |
| --- | --- |

—

order the defendant to pay to the Commission the sum of EUR 25 574 in capital, together with the sum of EUR 10 189,31 by way of default interest until 31 December 2007, and, from 1 January 2008 onwards until all sums have been paid, to pay EUR 3,67 for each day of delay, with this interest to be capitalised from 31 May 2001 onwards;

| — | order the defendant to pay all costs. |
| --- | --- |

—

order the defendant to pay all costs.

Pleas in law and main arguments

By this action, the applicant requests that the defendant be ordered to repay the balance of the advance disbursed to it by the Community, together with default interest, following its failure to perform the part of the cost reimbursement contract EP No 26970 concluded with the consortium of which it was a member, concerning the project ‘Neutral Archiving of EDA Data (ARCHIVE)’, implemented within the framework of the Fourth European Strategic Programme for Research and Development in Information Technologies (ESPRIT) (1994-1998).

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/29 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/29

---

Action brought on 4 January 2008 — Kinotita Grammatikou v Commission

(Case T-13/08)

(2008/C 79/57)

Language of the case: Greek

Parties

Applicant: Kinotita Grammatikou (Community of Grammatiko) (Athens, Greece) (represented by: A. Papakonstantinou and M. Khaïntarlis, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | annul Commission Decision C(2004) 5509 of 21 December 2004 relating to the grant of assistance from the Cohesion Fund for the project ‘Construction of a Landfill Site at the Integrated Waste Management Facility of North-East Attica at the location “Mavro Vouno Grammatikou”, in the Hellenic Republic’; |
| --- | --- |

—

annul Commission Decision C(2004) 5509 of 21 December 2004 relating to the grant of assistance from the Cohesion Fund for the project ‘Construction of a Landfill Site at the Integrated Waste Management Facility of North-East Attica at the location “Mavro Vouno Grammatikou”, in the Hellenic Republic’;

| — | in the event of doubt, order an on-the-spot inspection in the project area and seek independent technical opinions to corroborate the applicant's submissions; |
| --- | --- |

—

in the event of doubt, order an on-the-spot inspection in the project area and seek independent technical opinions to corroborate the applicant's submissions;

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

—

order the Commission to pay the applicant's costs.

Pleas in law and main arguments

As regards its locus standi to bring the action for annulment on the basis of Article 230 EC, the applicant considers that the contested decision, which seeks the creation of a landfill site on an area which is within the boundaries of the Community of Grammatiko, is of direct and individual concern to it because it is a public body responsible for the protection of public health and the environment in the area where the project that is being financed is located.

The applicant submits that the contested decision, the content of which it maintains came to its notice on 9 November 2007, infringes a number of provisions of primary Community law for the protection of health and the environment as well as provisions of secondary Community law giving concrete expression to the primary law.

Specifically, the applicant claims that the financing of the project contravenes the aims of maintaining, protecting and improving the quality of the environment, of protecting public health and of using natural resources in a wise and rational manner. In addition, in the applicant's view the contested Commission decision infringes first and foremost Articles 3, 4 and 6 of Directive 75/442 (1) and Articles 3 and 4 of Directive 91/156 (2), which lay down specific obligations in the areas of prevention or reduction of waste production and its harmfulness.

Lastly, according to the applicant, it is clear that the creation of a waste management and disposal facility within a protected area cannot in any circumstances be regarded as a project eligible for financing by a financial instrument such as the Cohesion Fund, which by definition should finance only works complying with the requirements of protection of the environment.

---

(1)  Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39).

(2)  Council Directive 91/156/EEC of 18 March 1991 amending Directive 75/442/EEC on waste (OJ 1991 L 78, p. 32).

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/29 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/29

---

Action brought on 18 January 2008 — Liga para a Protecção da Natureza v Commission of the European Communities

(Case T-29/08)

(2008/C 79/58)

Language of the case: Portuguese

Parties

Applicant: Liga para a Protecção da Natureza (LPN) (Lisbon, Portugal) (represented by: P. Vinagre e Silva, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul the decision of the General Secretariat of the European Commission, in response to a confirmatory application, rejecting the LPN's application for access to the documents concerning the procedure for the construction of the dam in the lower Sabor. |
| --- | --- |

—

Annul the decision of the General Secretariat of the European Commission, in response to a confirmatory application, rejecting the LPN's application for access to the documents concerning the procedure for the construction of the dam in the lower Sabor.

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

—

order the European Commission to pay all the costs of the proceedings.

Pleas in law and main arguments

The information requested by the LPN from the Commission should be regarded, from the outset, as information which can and must be made available to it given the significant environmental interest which that entity seeks to defend and take charge of in the context of the project to construct the dam in the lower Sabor (Regulations Nos 1367/2006 (1) and 1049/2001 (2)).

The derogation from the presumption that there is an overriding public interest in disclosure (Article 6(1) of Regulation No 1367/2006) does not relieve the Commission of the obligation to weigh up the basis of that interest in each individual case. Any grounds for refusal must be interpreted restrictively by the Commission.

It is not sufficient for the Commission to rely on a theoretical model that the exception related to inspections and audits prevails, without giving any additional, concrete reasons on a document by document basis, in order to adopt a decision refusing access to all of the documents requested by the LPN.

The Commission refused partial access, basing that refusal on general reasons without making any effort to divide the documents into ‘confidential and non-confidential parts’, on the basis that access may not be given to any of the documents relating to the inspection and investigation proceedings. However, the Commission also has to make a concrete assessment here of the information contained in the documents to which access is sought.

---

(1)  Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ 2006 L 264, p. 13).

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

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/30 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/30

---

Action brought on 23 January 2008 — Winzer Pharma v OHIM — Oftaltech (OFTASIL)

(Case T-30/08)

(2008/C 79/59)

Language in which the application was lodged: German

Parties

Applicant: Dr. Robert Winzer Pharma GmbH (Berlin, Germany) (represented by: S. Schneller, Rechtsanwalt)

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

Other party to the proceedings before the Board of Appeal of OHIM: Oftaltech S.A. (L'Hospitalet de Llobregat, Spain)

Forms of order sought

| — | Annulment of the decision of the Board of Appeal of OHIM of 29 October 2007 (R 599/2007-2) and the decision of the Opposition Division of OHIM of 19 February 2007 (B 925 554); |
| --- | --- |

—

Annulment of the decision of the Board of Appeal of OHIM of 29 October 2007 (R 599/2007-2) and the decision of the Opposition Division of OHIM of 19 February 2007 (B 925 554);

| — | rejection of Community trade mark application No 4 229 274 ‘OFTASIL’; |
| --- | --- |

—

rejection of Community trade mark application No 4 229 274 ‘OFTASIL’;

| — | holding of oral proceedings; |
| --- | --- |

—

holding of oral proceedings;

| — | an order that OHIM pays the costs of the proceedings; |
| --- | --- |

—

an order that OHIM pays the costs of the proceedings;

| — | in the alternative, a referral of the case back to OHIM. |
| --- | --- |

—

in the alternative, a referral of the case back to OHIM.

Pleas in law and main arguments

Applicant for a Community trade mark: Oftaltech S.A.

Community trade mark concerned: the figurative trade mark ‘OFTASIL’ for goods in Class 5 (application No 4 229 274)

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

Mark or sign cited in opposition: the word mark ‘Ophtal’ for goods in Classes 5 and 10 (Community trade mark No 489 948), the word mark ‘Ophtal’ for goods in Class 5 (German trade mark No 800 702) and the word mark ‘OPHTAN’ for goods in Classes 5, 29 and 30 (German trade mark No 303 349 033)

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) 40/94 (1) and of the principles to be applied under this provision to examine whether there is a likelihood of confusion.

---

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

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/31 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/31

---

Action brought on 18 January 2008 — Bastos Viegas v OHIM — Pierre Fabre Médicament (OPDREX)

(Case T-33/08)

(2008/C 79/60)

Language in which the application was lodged: Spanish

Parties

Applicant: Bastos Viegas, AS (Penafiel, Portugal) (represented by: G. Marín Raigal and P. López Ronda, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Pierre Fabre Médicament, S.A.

Form of order sought

| — | Annul the Decision of the Fourth Board of Appeal of OHIM of 14 November 2007 (Case R 1238/2006-4) so as to dismiss the opposition lodged by Pierre Fabre and grant Community trade mark application No 2 429 249 ‘OPDREX’ (figurative) and order the opponent to pay the costs of both proceedings; |
| --- | --- |

—

Annul the Decision of the Fourth Board of Appeal of OHIM of 14 November 2007 (Case R 1238/2006-4) so as to dismiss the opposition lodged by Pierre Fabre and grant Community trade mark application No 2 429 249 ‘OPDREX’ (figurative) and order the opponent to pay the costs of both proceedings;

| — | Order the defendant to bear its own costs and to pay the costs of the applicant; |
| --- | --- |

—

Order the defendant to bear its own costs and to pay the costs of the applicant;

| — | Order the intervener to bear its own costs and to pay the costs of the applicant in these proceedings |
| --- | --- |

—

Order the intervener to bear its own costs and to pay the costs of the applicant in these proceedings

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: Figurative mark ‘OPDREX’ (application for registration No 2 429 249, for goods in Classes 5 and 10 and services in Class 35).

Proprietor of the mark or sign cited in the opposition proceedings: Pierre Fabre Médicament, S.A.

Mark or sign cited in opposition: National word mark ‘OPTREX’ for goods in Class 5 (pharmaceutical goods).

Decision of the Opposition Division: Upholding in part of the opposition, in respect of certain goods in Classes 5 and 10.

Decision of the Board of Appeal: Annulment of the contested decision, in so far as it rejects the Community trade mark application in respect of ‘surgical apparatus and instruments’ in Class 10.

Pleas in law: Incorrect application of Article 8(1)(b) of Regulation (EC) No 40/94 on the Community trade mark.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/31 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/31

---

Action brought on 21 January 2008 — Berliner Institut für Vergleichende Sozialforschung v Commission

(Case T-34/08)

(2008/C 79/61)

Language of the case: German

Parties

Applicant: Berliner Institut für Vergleichende Sozialforschung e.V. (Berlin, Germany) (represented by: B. Henning, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul the Commission's decision of 16 November 2007 disallowing part of the applicant's costs in the context of the ‘Daphne Grant Agreement JAI/DAP/2004-2/052/W’; |
| --- | --- |

—

Annul the Commission's decision of 16 November 2007 disallowing part of the applicant's costs in the context of the ‘Daphne Grant Agreement JAI/DAP/2004-2/052/W’;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

In May 2005, the applicant and the Commission signed an agreement on support for a project in connection with the Daphne II programme (1). By letter of 16 November 2007, the defendant sent the applicant a revised calculation of the payment to the applicant that was still outstanding, in which part of the applicant's costs were deemed to be ineligible for support. The applicant brought the present action against that decision.

The applicant claims in support of its action that the contested decision is based on an erroneous assessment of the facts. In particular, adequate supporting evidence was inappropriately regarded as being inadequate, and costs of employing temporary assistants and trainees, together with costs provided for in the budget and certain travel costs were inappropriately disallowed.

---

(1)  Decision No 803/2004/EC of the European Parliament and of the Council of 21 April 2004 adopting a programme of Community action (2004 to 2008) to prevent and combat violence against children, young people and women and to protect victims and groups at risk (the Daphne II programme) (OJ 2004 L 143, p. 1).

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/32 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/32

---

Action brought on 28 January 2008 — Furukawa Electric North America v OHIM (SLIM LINE)

(Case T-36/08)

(2008/C 79/62)

Language in which the application was lodged: German

Parties

Applicant: Furukawa Electric North America, Inc. (Norcross, United States of America) (represented by O. Rauscher, lawyer)

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

Form of order sought

The applicant claims that the Court should:

| — | annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 22 November 2007 in case number R 1532/2007-2; |
| --- | --- |

—

annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 22 November 2007 in case number R 1532/2007-2;

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

—

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

Pleas in law and main arguments

Community trade mark concerned: the word mark ‘SLIM LINE’ for goods in Class 9 (Application No 5 907 266)

Decision of the Examiner: Refusal of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Misapplication of Article 7(1)(b) and (c) of Regulation (EC) No 40/94 (1), as the name ‘SLIM LINE’ is neither a descriptive indication nor is it devoid of any distinctive character.

---

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

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/32 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/32

---

Appeal brought on 28 January 2008 by Luigi Marcuccio against the judgment of the Civil Service Tribunal delivered on 6 December 2007 in Case F-40/06, Marcuccio v Commission

(Case T-46/08 P)

(2008/C 79/63)

Language of the case: Italian

Parties

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

Other party to the proceedings: Commission of the European Communities

Form of order sought by the appellant

| — | annul the order delivered on 6 December 2007 in Case F-40/06 Marcuccio v Commission of the First Chamber of the Public Service Tribunal of the European Union insofar as (a) the action brought by the applicant at first instance was dismissed on grounds other than absence of legal interest in bringing proceedings; (b) the applicant's claims to obtain compensation in respect of the damage (‘the damage in question’) arising from the facts in the case were rejected; and (c) the applicant was ordered to pay the defendant's costs; |
| --- | --- |

—

annul the order delivered on 6 December 2007 in Case F-40/06 Marcuccio v Commission of the First Chamber of the Public Service Tribunal of the European Union insofar as (a) the action brought by the applicant at first instance was dismissed on grounds other than absence of legal interest in bringing proceedings; (b) the applicant's claims to obtain compensation in respect of the damage (‘the damage in question’) arising from the facts in the case were rejected; and (c) the applicant was ordered to pay the defendant's costs;

| — | declare that the action at first instance was admissible, and in particular that the applicant, at the time he brought that action, had a legal interest in bringing proceedings; |
| --- | --- |

—

declare that the action at first instance was admissible, and in particular that the applicant, at the time he brought that action, had a legal interest in bringing proceedings;

| — | uphold the conclusions relating to compensation for the damage in question and order the defendant to pay all the costs borne by the applicant in respect of both the action at first instance and the present appeal; |
| --- | --- |

—

uphold the conclusions relating to compensation for the damage in question and order the defendant to pay all the costs borne by the applicant in respect of both the action at first instance and the present appeal;

| — | in the alternative, refer the present case back to the Public Service Tribunal for a ruling on: (a) all those parts of the present case on which the court did not rule or which were annulled by the judgment to be made in this appeal; (b) the costs of the action at first instance and of the appeal. |
| --- | --- |

—

in the alternative, refer the present case back to the Public Service Tribunal for a ruling on: (a) all those parts of the present case on which the court did not rule or which were annulled by the judgment to be made in this appeal; (b) the costs of the action at first instance and of the appeal.

Pleas in law and main arguments

Absolute failure to state reasons and reasons which are, inter alia, manifestly illogical, inconsistent and confused, absence of preliminary enquiries, failure to rule on a fundamental fact of the present case and infringement of the obligation of clare loqui, misrepresentation and distortion of the facts (in particular, paragraphs 10, 12, 26 to 38 inclusive and 42 to 46 inclusive of the contested order).

Erroneous interpretation, misinterpretation and misapplication of the general principles and provisions of law and Community case-law on compensation for damage (in particular, paragraphs 42 to 46 of the contested order).

Manifest lack of logic of the judgment and ruling of the Civil Service Tribunal on costs as well as unreasonableness, absolute failure to state reasons, inconsistency, misrepresentation and distortion of the actual facts, arbitrariness (in particular, paragraphs 49 and 50 of the contested order).

Absolute failure to state the reasons for the decision which is the subject-matter of the complaint in the action at first instance (in particular, paragraphs 26 to 38 inclusive of the contested order).

Misrepresentation and distortion of the facts and related procedural errors which are so serious that they infringe irremediably the rights of the applicant to a defence and infringe essential procedural requirements such as to invalidate irremediably the contested order (in particular, paragraph 24 of the contested order).

Infringement of the rules concerning a fair trial, with particular reference to the provisions of the European Convention on Human Rights (paragraphs 24 and 26 to 38 inclusive of the contested order).

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/33 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/33

---

Action brought on 31 January 2008 — Italy v Commission

(Case T-53/08)

(2008/C 79/64)

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: S. Fiorentino, Avvocato dello Stato)

Defendant: Commission of the European Communities

Form of order sought

| — | annul Commission decision C(2007) 5400 final of 20 November 2007, notified on 21 November 2007, concerning State aid No C 36/A/2006 (ex NN 38/2006) which Italy paid to ThyssenKrupp, Cementir and Nuova Terni Industrie Chimiche. |
| --- | --- |

—

annul Commission decision C(2007) 5400 final of 20 November 2007, notified on 21 November 2007, concerning State aid No C 36/A/2006 (ex NN 38/2006) which Italy paid to ThyssenKrupp, Cementir and Nuova Terni Industrie Chimiche.

Pleas in law and main arguments

By the contested decision, the State aid paid by Italy to ThyssenKrupp, Cementir and Nuova Terni Industrie Chimiche, and that granted but not yet paid to the same beneficiaries, in the form of favourable tariff conditions for the supply of electricity, were declared incompatible with the common market.

In support of its claims, the applicant relies on the following pleas:

| (1) | Infringement of Articles 87(1) and 88(3) EC and erroneous reconstruction of the facts. In its decision the Commission failed to consider that the contested measure adopted by the Italian State did not constitute State aid since it did not confer an economic advantage. In fact the measure extending the preferential electricity tariffs to be applied to the companies in the proceedings, the assignee of Terni SpA, was owing as a supplement to the expropriation compensation granted previously to Terni SpA on account of the fact that legal provisions adopted subsequently involved a longer term in respect of the concession for the production of the expropriated energy. |
| --- | --- |

(1)

Infringement of Articles 87(1) and 88(3) EC and erroneous reconstruction of the facts. In its decision the Commission failed to consider that the contested measure adopted by the Italian State did not constitute State aid since it did not confer an economic advantage. In fact the measure extending the preferential electricity tariffs to be applied to the companies in the proceedings, the assignee of Terni SpA, was owing as a supplement to the expropriation compensation granted previously to Terni SpA on account of the fact that legal provisions adopted subsequently involved a longer term in respect of the concession for the production of the expropriated energy.

| (2) | Infringement of Articles 87 and 88(3) EC and erroneous reconstruction of the facts. In its decision the Commission failed to consider that the contested measure adopted by the Italian State did not constitute State aid since the aid was not granted through State resources. In fact the cost of the measure is borne by the other users of the energy supply service. |
| --- | --- |

(2)

Infringement of Articles 87 and 88(3) EC and erroneous reconstruction of the facts. In its decision the Commission failed to consider that the contested measure adopted by the Italian State did not constitute State aid since the aid was not granted through State resources. In fact the cost of the measure is borne by the other users of the energy supply service.

| (3) | Infringement of essential procedural requirements in relation to absence of preliminary enquiries and infringement of the rights of the defence. In its decision the Commission stated that the results of an economic study to assess all the sacrifices imposed on Terni in consequence of the expropriation and all the benefits obtained by that company by way of compensation were irrelevant because the suitability of the compensation mechanism can be assessed only ex ante, namely, at the time of the expropriation. The study was carried out in accordance with previous Commission guidance. The Commission, taking the view that in the abstract a study requested by it previously was irrelevant, should have carried out further preliminary enquiries, reopening the discussion concerning the methods of carrying out the study. |
| --- | --- |

(3)

Infringement of essential procedural requirements in relation to absence of preliminary enquiries and infringement of the rights of the defence. In its decision the Commission stated that the results of an economic study to assess all the sacrifices imposed on Terni in consequence of the expropriation and all the benefits obtained by that company by way of compensation were irrelevant because the suitability of the compensation mechanism can be assessed only ex ante, namely, at the time of the expropriation. The study was carried out in accordance with previous Commission guidance. The Commission, taking the view that in the abstract a study requested by it previously was irrelevant, should have carried out further preliminary enquiries, reopening the discussion concerning the methods of carrying out the study.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/34 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/34

---

Action brought on 4 February 2008 — Republic of Cyprus v Commission

(Case T-54/08)

(2008/C 79/65)

Language of the case: Greek

Parties

Applicant: Republic of Cyprus (represented by: P. Kliridis, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | annul the procurement notice under reference EuropeAid/125051/D/SUP/CY for the conclusion of a contract entitled ‘Upgrading the Management of the Energy Sector — Energy Metering and Reactive Power Compensation’, which was published, only in English, on the webpage http://ec.europa.eu/europaid/tender/data/ on or around 24 November 2007, and annul Articles 5 and 23 of the notice; |
| --- | --- |

—

annul the procurement notice under reference EuropeAid/125051/D/SUP/CY for the conclusion of a contract entitled ‘Upgrading the Management of the Energy Sector — Energy Metering and Reactive Power Compensation’, which was published, only in English, on the webpage http://ec.europa.eu/europaid/tender/data/ on or around 24 November 2007, and annul Articles 5 and 23 of the notice;

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

—

order the Commission of the European Communities to pay the costs.

Pleas in law and main arguments

The applicant submits that the notice is unlawful for the following reasons:

| — | first, because, in issuing the notice, the Commission exceeded and/or infringed its legal basis, to be specific Council Regulation (EC) No 389/2006 of 27 February 2006 establishing an instrument of financial support for encouraging the economic development of the Turkish Cypriot community and amending Council Regulation (EC) No 2667/2000 on the European Agency for Reconstruction (1); |
| --- | --- |

—

first, because, in issuing the notice, the Commission exceeded and/or infringed its legal basis, to be specific Council Regulation (EC) No 389/2006 of 27 February 2006 establishing an instrument of financial support for encouraging the economic development of the Turkish Cypriot community and amending Council Regulation (EC) No 2667/2000 on the European Agency for Reconstruction (1);

| — | second, because the notice is contrary to and/or incompatible with Article 299 EC, as amended by Article 19 of the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic (‘the 2003 Act of Accession’) and Protocol No 10, on Cyprus, to the 2003 Act of Accession; and |
| --- | --- |

—

second, because the notice is contrary to and/or incompatible with Article 299 EC, as amended by Article 19 of the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic (‘the 2003 Act of Accession’) and Protocol No 10, on Cyprus, to the 2003 Act of Accession; and

| — | third, because the notice is contrary to or incompatible with both obligations flowing from rules of mandatory international law and United Nations Security Council Resolutions 541(1983) and 550(1984). |
| --- | --- |

—

third, because the notice is contrary to or incompatible with both obligations flowing from rules of mandatory international law and United Nations Security Council Resolutions 541(1983) and 550(1984).

---

(1)  OJ 2006 L 65, p. 5.

---

European Union Civil Service Tribunal

| 29.3.2008 | EN | Official Journal of the European Union | C 79/35 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/35

---

Order of the Civil Service Tribunal (First Chamber) of 25 January 2008 — Duyster v Commission

(Case F-80/06) (1)

(Civil Service - Officials - Parental leave - Application to withdraw parental leave - Lis pendens - Manifest inadmissibility)

(2008/C 79/66)

Language of the case: Dutch

Parties

Applicant: Tineke Duyster (Oetrange, Grand Duchy of Luxembourg) (represented by: W. van den Muijsenbergh, lawyer)

Defendant: Commission of the European Communities (represented by: H. Krämer, acting as Agent, and M. van der Woude, lawyer)

Re:

Annulment of the Appointing Authority's decision of 22 December 2005 declaring inadmissible the applicant's request of 6 December 2005 concerning the Appointing Authority's decision of 17 November 2005 on the date that the applicant's parental leave started

Operative part of the order

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

1.

The action is dismissed as manifestly inadmissible.

| 2. | Each party is ordered to bear its own costs. |
| --- | --- |

2.

Each party is ordered to bear its own costs.

---

(1)  OJ C 261, 28.10.2006, p. 33.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/35 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/35

---

Order of the Civil Service Tribunal (First Chamber) of 1 February 2008 — Kay Labate v Commission of the European Communities

(Case F-77/07) (1)

(Staff cases - Officials - Social security - Insurance against the risk of accident and occupational disease - Occupational disease - Lung cancer - Passive smoking - No need to adjudicate)

(2008/C 79/67)

Language of the case: English

Parties

Applicant: Kay Labate (Tarquinia, Italy) (represented by: I. Forrester, QC)

Defendant: Commission of the European Communities

Re:

Annulment of the Commission decisions of 6 October 2006 and 18 October 2004 not to recognise the cancer which led to the death of the applicant's husband as being an occupational disease caused by passive smoking

Operative part of the order

| 1. | There is no further need to adjudicate on the form of order sought by Mrs Labate in her application. |
| --- | --- |

1.

There is no further need to adjudicate on the form of order sought by Mrs Labate in her application.

| 2. | The claims for compensation submitted in the letter of 25 October 2007 by Mrs Labate are dismissed as manifestly unfounded. |
| --- | --- |

2.

The claims for compensation submitted in the letter of 25 October 2007 by Mrs Labate are dismissed as manifestly unfounded.

| 3. | The Commission of the European Communities is ordered to pay the costs. |
| --- | --- |

3.

The Commission of the European Communities is ordered to pay the costs.

---

(1)  OJ C 233 22.9.2007, p. 22.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/36 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/36

---

Action brought on 17 December 2007 — Hristova v Commission

(Case F-50/07)

(2008/C 79/68)

Language of the case: English

Parties

Applicant: Valentina Hristova, (Pavlikeni, Bulgaria) (represented by: Georgi Kerelov, lawyer)

Defendant: Commission of the European Communities

Pleas in law and main arguments

The annulment of the decision of 3 April 2007 of the selection board of the competition EPSO/AST/14/06 not to admit the applicant to the competition and not to mark her practical test because her post-secondary education is not in a field relevant to the duties described in the Notice of competition and she does not have 3 years full-time professional experience in the relevant field after having obtained the secondary education.

Form of order sought

The applicant claim that the Tribunal should:

| — | annul the decision of 3 April 2007 of the selection board for competition EPSO/AST/14/06 not to admit her to that competition; |
| --- | --- |

—

annul the decision of 3 April 2007 of the selection board for competition EPSO/AST/14/06 not to admit her to that competition;

| — | order the defendant to pay the applicant fixed damages assessed on equitable principles at EUR 28 718 (one year's salary) in respect of the material and non-material damage suffered by the applicant as a result of the illegal decision of the competition selection board, with statutory interest from the date on which the application was lodged; |
| --- | --- |

—

order the defendant to pay the applicant fixed damages assessed on equitable principles at EUR 28 718 (one year's salary) in respect of the material and non-material damage suffered by the applicant as a result of the illegal decision of the competition selection board, with statutory interest from the date on which the application was lodged;

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

—

order the defendant to pay the costs.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/36 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/36

---

Action brought on 18 October 2007 — Šimonis v Commission

(Case F-113/07)

(2008/C 79/69)

Language of the case: Lithuanian

Parties

Applicant: Irmantas Šimonis (Luxembourg) (represented by: V. Vilkas, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | annul the decision of the Commission of the European Communities by which, in the course of the selection procedure to fill a post which is the subject of notice of vacancy No COM/2007/142, it withdrew its request to transfer the applicant to the Commission and excluded him from the selection procedure; |
| --- | --- |

—

annul the decision of the Commission of the European Communities by which, in the course of the selection procedure to fill a post which is the subject of notice of vacancy No COM/2007/142, it withdrew its request to transfer the applicant to the Commission and excluded him from the selection procedure;

| — | annul the decision of the Commission of the European Communities of 8 August 2007 dismissing complaint No R/273/07 filed by the applicant on 27 April 2007; |
| --- | --- |

—

annul the decision of the Commission of the European Communities of 8 August 2007 dismissing complaint No R/273/07 filed by the applicant on 27 April 2007;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

In support of his action, the applicant puts forward three pleas, the first of which alleges infringement of his legitimate expectations resulting from the conclusion of an institutional agreement between the heads of administration in 2005 which provides that a waiting period of three years would be imposed prior to any inter-institutional transfers of newly recruited officials.

In his second three, the applicant claims the Commission's decision is unlawful on the grounds of failure to state reasons, the fact that it is not proportional to the interests protected, and that the Commission exceeded the limits of its discretion. Furthermore, the applicant submits that the decision operates discrimination based on nationality.

In his third plea the applicant claims infringement of the principle of sound administration and breach of the duty of care towards officials.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/37 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/37

---

Action brought on 29 October 2007 — Hau v European Parliament

(Case F-125/07)

(2008/C 79/70)

Language of the case: French

Parties

Applicant: Armin Hau (Luxembourg, Luxembourg) (represented by: E Boigelot, lawyer)

Defendant: European Parliament

Form of order sought

| — | annul the decision of the Appointing Authority not to include the applicant's name on the list of those to be promoted to grade B*6 and B*7 in the ‘2006 promotion exercise’; |
| --- | --- |

—

annul the decision of the Appointing Authority not to include the applicant's name on the list of those to be promoted to grade B*6 and B*7 in the ‘2006 promotion exercise’;

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

—

order the European Parliament to pay the costs.

Pleas in law and main arguments

In support of his application, the applicant pleads infringement of the second paragraph of Article 25 and Article 45 of the Staff Regulations, the decision of the Office of 6 July 2005 and its implementing measures, and Article 5 of the Internal Guidelines for Promotions Advisory Committees.

Furthermore, the applicant claims the existence of manifest errors of assessment, misuse and arrogation of powers, and infringement of a number of general principles of law.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/37 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/37

---

Action brought on 6 December 2007 — Nijs v Court of Auditors

(Case F-136/07)

(2008/C 79/71)

Language of the case: French

Parties

Applicant: Bart Nijs (Aalst, Belgium) (represented by: F. Rollinger, lawyer)

Defendant: European Court of Auditors

The subject-matter and description of the proceedings

Annulment, on the one hand, of the decision of the Appointing Authority of 5 September 2007 to demote the applicant to Grade AD9, step 5, following a disciplinary procedure and, on the other, of the decisions to suspend him from his post, to open an administrative enquiry in respect of him, and not to promote him to Grade AD 11 in 2007 — Claim for compensation for non-material and material harm

Form of order sought

| — | Annul the express decision of the Appointing Authority of 5 September 2007 to demote the applicant to Grade AD 9, step 5, following the disciplinary procedure opened on 27 September 2006; |
| --- | --- |

—

Annul the express decision of the Appointing Authority of 5 September 2007 to demote the applicant to Grade AD 9, step 5, following the disciplinary procedure opened on 27 September 2006;

| — | Annul the associated and subsequent decisions, in particular that of 26 September 2006 to suspend the applicant from his post, that of 27 September 2007 to open an administrative enquiry in respect of him, and that not to promote him to Grade AD 11 in 2007; |
| --- | --- |

—

Annul the associated and subsequent decisions, in particular that of 26 September 2006 to suspend the applicant from his post, that of 27 September 2007 to open an administrative enquiry in respect of him, and that not to promote him to Grade AD 11 in 2007;

| — | Annul the decision of the small-group meeting of the Court of Auditors of 8 March 2007 to renew the appointment of Mr Michel Hervé on 1 July 2007 for a period of six years; |
| --- | --- |

—

Annul the decision of the small-group meeting of the Court of Auditors of 8 March 2007 to renew the appointment of Mr Michel Hervé on 1 July 2007 for a period of six years;

| — | Order the Court of Auditors to pay the applicant the sum of EUR 10 000 in respect of non-material harm suffered during and after the disciplinary procedure and in respect of compensation for the material harm consisting in the difference between the salary which he received since the date of the last promotion decisions and that which he would have received had he been promoted at that time; |
| --- | --- |

—

Order the Court of Auditors to pay the applicant the sum of EUR 10 000 in respect of non-material harm suffered during and after the disciplinary procedure and in respect of compensation for the material harm consisting in the difference between the salary which he received since the date of the last promotion decisions and that which he would have received had he been promoted at that time;

| — | Order the Court of Auditors to pay the costs. |
| --- | --- |

—

Order the Court of Auditors to pay the costs.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/37 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/37

---

Action brought on 4 December 2007 — Sergio and Others v Commission

(Case F-137/07)

(2008/C 79/72)

Language of the case: French

Parties

Applicants: Giovanni Sergio and Others (Brussels, Belgium) (represented by: M. Lucas, lawyer)

Defendant: Commission of the European Communities

The subject-matter and description of the proceedings

Annulment of the ‘Protocol of Agreement between the trade union or professional organisations and the Directorate General for Personnel and Administration (DG ADMIN)’ and the decisions of the Appointing Authority confirmed by the Protocol of 19 December 2006 and the decision of 14 November 2006 — Claim for damages in the form of a symbolic EUR 1.

Form of order sought

| — | Annul the ‘Protocol of Agreement between the trade union or professional organisations and the DG ADMIN concerning the allocation of resources for the representation of the staff for 2006’ sent to the secretary of l'Alliance and to the presidents of the Union Syndicale Fédérale (USF) and of the Fédération de la fonction publique européenne (FFPE) by note of 19 December 2006 from the Director General of Personnel and Administration; |
| --- | --- |

—

Annul the ‘Protocol of Agreement between the trade union or professional organisations and the DG ADMIN concerning the allocation of resources for the representation of the staff for 2006’ sent to the secretary of l'Alliance and to the presidents of the Union Syndicale Fédérale (USF) and of the Fédération de la fonction publique européenne (FFPE) by note of 19 December 2006 from the Director General of Personnel and Administration;

| — | Annul the individual release from service decisions adopted in favour of the representatives of l'Alliance and/or of the FFPE on the basis of that Protocol or of the calculation of 26 May 2006 of the representation of the trade union or professional organisations on the basis of the results of the elections of May 2006 of the Brussels local section and confirmed by the Protocol of 19 December 2006; |
| --- | --- |

—

Annul the individual release from service decisions adopted in favour of the representatives of l'Alliance and/or of the FFPE on the basis of that Protocol or of the calculation of 26 May 2006 of the representation of the trade union or professional organisations on the basis of the results of the elections of May 2006 of the Brussels local section and confirmed by the Protocol of 19 December 2006;

| — | Annul the decision of 14 November 2006 of the Director General of Personnel and Administration putting an end to the detachment on half-time of Mr Marquez-Garcia and reinstating him full-time in his department; |
| --- | --- |

—

Annul the decision of 14 November 2006 of the Director General of Personnel and Administration putting an end to the detachment on half-time of Mr Marquez-Garcia and reinstating him full-time in his department;

| — | Order the Commission to pay to each of the applicants a symbolic EUR 1 as compensation for the non-material and political harm suffered as representatives of the Union Syndicale and the non-material harm suffered and harm caused to their careers as officials or agents; |
| --- | --- |

—

Order the Commission to pay to each of the applicants a symbolic EUR 1 as compensation for the non-material and political harm suffered as representatives of the Union Syndicale and the non-material harm suffered and harm caused to their careers as officials or agents;

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

—

Order the defendant to pay the costs.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/38 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/38

---

Action brought on 19 December 2007 — Kaminska v Committee of the Regions

(Case F-142/07)

(2008/C 79/73)

Language of the case: French

Parties

Applicant: Magdalena Kaminska (Brussels, Belgium) (represented by: L. Levi and S. Engelen, lawyers)

Defendant: Committee of the Regions

The subject-matter and description of the proceedings

Annulment of the decisions of the Committee of the Regions of 30 April 2007 and of 6 September 2007 refusing the applicant payment of the daily allowance and rejecting her note of 6 June 2007 and an order for the defendant to pay default interest on the amounts due by virtue of daily allowance until full payment of the amounts due.

Form of order sought

| — | Annul the decision of 30 April 2007 refusing the applicant payment of the daily allowance; |
| --- | --- |

—

Annul the decision of 30 April 2007 refusing the applicant payment of the daily allowance;

| — | annul, in so far as necessary, the decision of 6 September 2007 rejecting the applicant's complaint; |
| --- | --- |

—

annul, in so far as necessary, the decision of 6 September 2007 rejecting the applicant's complaint;

| — | order the Committee of the Regions to pay default interest on the daily amounts due by virtue of daily allowance from 16 April 2006 until full payment of the amounts due; |
| --- | --- |

—

order the Committee of the Regions to pay default interest on the daily amounts due by virtue of daily allowance from 16 April 2006 until full payment of the amounts due;

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

—

order the defendant to pay the costs.

---

| 29.3.2008 | EN | Official Journal of the European Union | C 79/38 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/38

---

Action brought on 27 December 2007 — Bosman v Council

(Case F-145/07)

(2008/C 79/74)

Language of the case: French

Parties

Applicant: Pierre Bosman (Dendermondsesteenweg, Belgium) (represented by: T. Bontinck and P.S. Gennari Curlo, lawyers)

Defendant: Council of the European Union

The subject-matter and description of the proceedings

Annulment of the individual decision of 28 February 2007 refusing the household allowance for the purposes of calculating retirement pension rights.

Form of order sought

| — | Annul the statement of 27 February 2007 determining retirement pension rights; |
| --- | --- |

—

Annul the statement of 27 February 2007 determining retirement pension rights;

| — | order the defendant to pay the household allowance applied for as from 1 March 2007; |
| --- | --- |

—

order the defendant to pay the household allowance applied for as from 1 March 2007;

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

—

order the defendant to pay the costs.

---

Corrigenda

| 29.3.2008 | EN | Official Journal of the European Union | C 79/39 |
| --- | --- | --- | --- |

29.3.2008

EN

Official Journal of the European Union

C 79/39

---

Corrigendum to the notice in the Official Journal in Case F-103/07

(
  Official Journal of the European Union C 45 of 22.12.2007, p. 45
  )

(2008/C 79/75)

The notice in the OJ in Case F-103/07 Duta v Court of Justice is to be read as follows:

‘Action brought on 5 October 2007 — Duta v Court of Justice

(Case F-103/07)

(2006/C 000/01)

Language of the case: French

Parties

Applicant: Radu Duta (Luxembourg, Luxembourg) (represented by: F. Krieg, lawyer)

Defendant: Court of Justice of the European Communities

Form of order sought

The applicant claims that the Tribunal should:

| — | annul the contested decisions, |
| --- | --- |

—

annul the contested decisions,

| — | refer the case back to the competent authority, |
| --- | --- |

—

refer the case back to the competent authority,

| — | order the defendant to pay the sum of EUR 1 as damages, |
| --- | --- |

—

order the defendant to pay the sum of EUR 1 as damages,

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

By his action, the applicant challenges the rejection of his candidature for a post of Legal Secretary to a judge of the Court of First Instance of the European Communities. The rejection took place by circular letter of 24 January 2007, although the judge in question had previously shown a lively interest in the applicant's candidature.

The applicant pleads, first, the nullity of the decision to reject his complaint. It was dealt with by the “Committee of the Court of First Instance with power to determine complaints” the composition of which does not meet the requirements for a fair hearing as defined by Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The members of the Court of First Instance sitting as that committee cannot determine with complete impartiality cases concerning one of their colleagues.

Secondly, the applicant pleads that he was the victim of discrimination. The judge in question did not exercise his or her discretion reasonably.

Finally, the applicant submits that, in any event, the contested decisions infringe the general principles of transparency, good faith and the protection of legitimate expectations.’.

---