# Official Journal C 126/2012

| | ISSN 1977-091X
  doi:10.3000/1977091X.C_2012.126.eng |
| --- | --- |
| Official Journal
  of the European Union | C 126 |
| | |
| English edition | Information and Notices | Volume 5528 April 2012 |

ISSN 1977-091X

doi:10.3000/1977091X.C_2012.126.eng

Official Journal

of the European Union

C 126

English edition

Information and Notices

Volume 5528 April 2012

---

| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | Court of Justice of the European Union |
| 2012/C 126/01 | Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 118, 21.4.2012 | 1 |

Notice No

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

2012/C 126/01

Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 118, 21.4.2012

Official Journal of the European Union

1

| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2012/C 126/02 | Case C-524/10: Judgment of the Court (Fourth Chamber) of 8 March 2012 — European Commission v Portuguese Republic (Failure of a Member State to fulfil obligations — Common system of value added tax — Directive 2006/112/EC — Articles 296 to 298 — Common flat-rate scheme for farmers — Flat-rate compensation percentage set at nil rate) | 2 |
| 2012/C 126/03 | Case C-596/10: Judgment of the Court (Seventh Chamber) of 8 March 2012 — European Commission v French Republic (Failure of Member State to fulfil obligations — Value Added Tax — Directive 2006/112/EC — Application of reduced VAT rates to transactions concerning equidae and in particular to horses) | 2 |
| 2012/C 126/04 | Case C-251/11: Judgment of the Court (Sixth Chamber) of 8 March 2012 (reference for a preliminary ruling from the tribunal administratif de Rennes — France) — Martial Huet v Université de Bretagne occidentale (Social policy — Directive 1999/70/EC — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Clause 5(1) — Successive fixed-term employment contracts — Measures to prevent the abuse of such contracts — Conversion of the previous fixed-term contract into a contract of indefinite duration — Obligation to reproduce in identical terms the principal clauses of the previous fixed-term contract) | 3 |
| 2012/C 126/05 | Case C-227/11: Order of the Court (Sixth Chamber) of 19 January 2012 (reference for a preliminary ruling from the Rechtbank Haarlem — Netherlands) — DHL Danzas Air & Ocean (Netherlands) BV v Inspecteur van de Belastingdienst/Douane West, kantoor Hoofddorp Saturnusstraat (Article 104(3) of the Rules of Procedure — Common Customs Tariff — Tariff positions — Network analysers — Classification — Legal value of a classification opinion of the World Customs Organisation) | 3 |
| 2012/C 126/06 | Case C-16/12: Reference for a preliminary ruling from the Gyulai Törvényszék (Hungary) lodged on 13 January 2012 — HERMES Hitel és Faktor Zrt. v Nemzeti Földalapkezelő Szervezet | 4 |
| 2012/C 126/07 | Case C-33/12: Reference for a preliminary ruling from the Fővárosi Törvényszék (Hungary) lodged on 24 January 2012 — Körös-Vidéki Környezetvédelmi és Vízügyi Igazgatóság v Mezőgazdasági és Vidékfejlesztési Hivatal Központi Szerve | 4 |
| 2012/C 126/08 | Case C-38/12: Reference for a preliminary ruling from the Szabolcs-Szatmár-Bereg Megyei Bíróság (Hungary) lodged on 26 January 2012 — Felső-Tisza-vidéki Környezetvédelmi és Vízügyi Igazgatóság v Mezőgazdasági és Vidékfejlesztési Hivatal Központi Szerve | 4 |
| 2012/C 126/09 | Case C-64/12: Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 8 February 2012 — A. Schlecker, trading under the name, Firma Anton Schlecker, other party: M.J. Boedeker | 5 |
| 2012/C 126/10 | Case C-65/12: Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 8 February 2012 — Leidseplein Beheer B.V. and Others, other parties: Red Bull GmbH and Others | 5 |
| 2012/C 126/11 | Case C-79/12: Reference for a preliminary ruling from the Curtea de Apel Alba Iulia (Romania) lodged on 14 February 2012 — SC Mora IPR SRL v Direcția Generală a Finanțelor Publice Sibiu, Directia Județeană pentru Accize și Operațiuni Vamali Sibiu | 6 |
| 2012/C 126/12 | Case C-81/12: Reference for a preliminary ruling from the Curtea de Apel București (Romania) lodged on 14 February 2012 — Asociația ACCEPT v Consiliul Național pentru Combaterea Discriminării | 6 |
| 2012/C 126/13 | Case C-83/12: Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 17 February 2012 — Criminal proceedings against Minh Khoa V o | 7 |
| 2012/C 126/14 | Case C-88/12: Reference for a preliminary ruling from the Rechtbank Roermond (Netherlands), lodged on 20 February 2012 — Criminal proceedings against Jibril Jaoo | 7 |
| 2012/C 126/15 | Case C-90/12: Action brought on 21 February 2012 — European Commission v Republic of Poland | 7 |
| 2012/C 126/16 | Case C-97/12 P: Appeal brought on 23 February 2012 by Louis Vuitton Malletier against the judgment of the General Court (Third Chamber) delivered on 14 December 2011 in Case T-237/10: Louis Vuitton Malletier v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Friis Group International ApS | 8 |
| 2012/C 126/17 | Case C-98/12: Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 24 February 2012 — Wim J. J. Slot v 3 H Camping-Center Heinsberg GmbH | 9 |
| 2012/C 126/18 | Case C-127/12: Action brought on 7 March 2012 — European Commission v Kingdom of Spain | 9 |
| 2012/C 126/19 | Case C-135/12: Action brought on 9 March 2012 — European Commission v Republic of Poland | 10 |
| 2012/C 126/20 | Joined Cases C-328/10 to C-333/10: Order of the President of the Court of 14 February 2012 (references for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia — Sezione Terza (Italy)) — Enipower SpA (C-328/10), ENI SpA (C-329/10), Edison Trading SpA (C-330/10), E.On Produzione SpA (C-331/10), Edipower SpA (C-332/10), E.On Energy Trading SpA (C-333/10) v Autorità per l’energia elettrica e il gás (C-328/10 to C-333/10), Cassa Conguaglio per il Settore Elettrico (C-329/10) intervening parties: Terna Rete Elettrica Nazionale SpA (C-328/10, C-329/10, C-331/10 and C-332/10), Ministero dello Sviluppo Economico (C-328/10 and C-329/10), Gestore dei Servizi Elettrici SpA (C-331/10) | 10 |
| | General Court |
| 2012/C 126/21 | Case T-192/07: Judgment of the General Court of 9 March 2012 — Comité de défense de la viticulture charentaise v Commission (Competition — Decision rejecting a complaint — No Community interest — Scope of the complaint — Competence of the author of the act — Obligation to state reasons) | 11 |
| 2012/C 126/22 | Case T-288/08: Judgment of the General Court of 15 March 2012 — Cadila Healthcare v OHIM — Novartis (ZYDUS) (Community trade mark — Opposition proceedings — Application for the Community word mark ZYDUS — Earlier Community word mark ZIMBUS — Relative ground for refusal — Likelihood of confusion — Similarity of the goods — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009)) | 11 |
| 2012/C 126/23 | Case T-379/08: Judgment of the General Court of 15 March 2012 — Mustang v OHIM — Decathlon (Wavy line) (Community trade mark — Opposition proceedings — Application for a figurative Community mark representing a wavy line — Earlier national and international figurative trade marks representing a white wavy line on a black background — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009)) | 12 |
| 2012/C 126/24 | Case T-391/08: Judgment of the General Court (Seventh Chamber) of 15 March 2012 — Ellinika Nafpigeia v Commission (State aid — Shipbuilding — Aid granted by the Greek authorities to a shipyard — Decision declaring the aid incompatible with the common market and ordering its recovery — Misuse of aid) | 12 |
| 2012/C 126/25 | Case T-450/08: Judgment of the General Court of 9 March 2012 — Coverpla v OHIM — Heinz-Glas (Phial) (Community design — Invalidity proceedings — Registered Community design representing a bottle — Prior design — Ground for invalidity — Disclosure of prior design — Absence of novelty — Articles 5 and 25(1)(b) of Regulation (EC) No 6/2002) | 13 |
| 2012/C 126/26 | Case T-236/09: Judgment of the General Court of 15 March 2012 — Evropaïki Dynamiki v Commission (Public service contracts — Tendering procedure — External service provision for development, studies and support of information systems — Rejection of a tenderer’s bids — Obligation to state reasons — Equal treatment — Transparency — Manifest error of assessment — Non-contractual liability) | 13 |
| 2012/C 126/27 | Case T-32/10: Judgment of the General Court of 9 March 2012 — Ella Valley Vineyards v OHIM — HFP (ELLA VALLEY VINEYARDS) (Community trade mark — Opposition proceedings — Application for Community figurative mark ELLA VALLEY VINEYARDS — Earlier national and Community trade marks ELLE — Relative ground for refusal — Likelihood of association — Link between the signs — Reputation — No similarity of the signs — Article 8(5) of Regulation (EC) No 207/2009)) | 14 |
| 2012/C 126/28 | Case T-172/10: Judgment of the General Court of 9 March 2012 — Colas v OHIM — García-Teresa Gárate and Bouffard Vicente (BASE-SEAL) (Community trade mark — Opposition proceedings — Application for the Community figurative mark BASE-SEAL — Earlier national figurative marks representing a diamond shape — Earlier national and international figurative marks COLAS — Relative ground for refusal — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 207/2009) | 14 |
| 2012/C 126/29 | Case T-417/10: Judgment of the General Court of 9 March 2012 — Cortés del Valle López v OHIM (¡Que buenu ye! HIJOPUTA) (Community trade mark — Application for Community figurative mark ¡Que buenu ye! HIJOPUTA — Absolute ground for refusal — Trade mark contrary to public policy or to accepted principles of morality — Article 7(1)(f) of Regulation (EC) No 207/2009) | 15 |
| 2012/C 126/30 | Joined Cases T-441/10 P to T-443/10 P: Judgment of the General Court of 20 March 2012 — Kurrer and Others v Commission (Appeal — Civil service — Officials — Appointment — Classification in grade — Transitional rules for classification in grade on recruitment — Article 5(4) of Annex XIII to the Staff Regulations — Principle of equal treatment) | 15 |
| 2012/C 126/31 | Case T-207/11: Judgment of the General Court of 9 March 2012 — EyeSense v OHIM — Osypka Medical (ISENSE) (Community trade mark — Opposition proceedings — Application for Community word mark ISENSE — Earlier national word mark EyeSense — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 207/2009) | 15 |
| 2012/C 126/32 | Case T-127/09: Order of the General Court of 28 February 2012 — Abdulrahim v Council and Commission (Common foreign and security policy — Restrictive measures directed against persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban — Regulation (EC) No 881/2002 — Removal of the interested party from the list of persons and entities concerned — Action for annulment — No need to adjudicate — Claim for damages — Causal link — None) | 16 |
| 2012/C 126/33 | Case T-153/10: Order of the General Court of 28 February 2012 — Schneider España de Informática, SA v European Commission (Customs union — Importation of colour television sets assembled in Turkey — Post-clearance recovery of import duties — Application for waiver of post-clearance entry in the accounts of import duties and for remission of those duties — Article 220(2)(b) and Article 239 of Regulation (EEC) No 2913/92 — Commission decision rejecting that application — Annulment by the national court of decisions taken by national authorities ordering post-clearance entry of import duties in the accounts — No need to adjudicate) | 16 |
| 2012/C 126/34 | Case T-573/10: Order of the General Court of 8 March 2012 — Octapharma Pharmazeutika v EMA (Medicinal products for human use — Changes to a plasma master file (PMF) — Fees payable to the EMA — Act with adverse effects — Measure merely confirmatory — Manifest inadmissibility) | 17 |
| 2012/C 126/35 | Case T-126/11 P: Order of the General Court of 8 March 2012 — Marcuccio v Commission (Appeal — Civil service — Officials — Social security — Reimbursement of medical expenses — Act adversely affecting an official — Implied refusal — Duty to state reasons — Appeal in part manifestly unfounded and in part manifestly inadmissible) | 17 |
| 2012/C 126/36 | Case T-183/11: Order of the General Court of 27 February 2012 — MIP Metro v OHIM — Jacinto (My Little Bear) (Community trade mark — Opposition proceedings — Expiry of the earlier national mark — Action devoid of purpose — No need to adjudicate) | 18 |
| 2012/C 126/37 | Case T-531/11: Action brought on 28 September 2011 — Hamas v Council | 18 |
| 2012/C 126/38 | Case T-84/12: Action brought on 31 January 2012 — Uspaskich v Parliament | 19 |
| 2012/C 126/39 | Case T-89/12: Action brought on 17 February 2012 — Repsol YPF v OHIM — Ajuntament de Roses (R) | 19 |
| 2012/C 126/40 | Case T-91/12: Action brought on 23 February 2012 — Flying Holding and Others v Commission | 20 |
| 2012/C 126/41 | Case T-92/12: Action brought on 23 February 2012 — Gas v OHIM — Grotto (GAS) | 21 |
| 2012/C 126/42 | Case T-93/12: Action brought on 23 February 2012 — Gas v OHIM — Grotto (BLUE JEANS GAS) | 21 |
| 2012/C 126/43 | Case T-95/12 P: Appeal brought on 28 February 2012 by Willem Stols against the judgment of the Civil Service Tribunal of 13 December 2011 in Case F-51/08 RENV Stols v Council | 22 |
| 2012/C 126/44 | Case T-109/12: Action brought on 7 March 2012 — Spain v Commission | 23 |
| 2012/C 126/45 | Case T-110/12: Action brought on 27 February 2012 — Iranian Offshore Engineering & Construction v Council | 23 |
| 2012/C 126/46 | Case T-111/12: Action brought on 7 March 2012 — Spain v Commission | 24 |
| 2012/C 126/47 | Case T-116/12: Action brought on 12 March 2012 — Tioxide Europe and Others v Council | 25 |
| | European Union Civil Service Tribunal |
| 2012/C 126/48 | Case F-11/11: Judgment of the Civil Service Tribunal (First Chamber) of 8 February 2012 — Bouillez and Others v Council (Civil service — Officials — Promotion — 2010 promotion exercise — Refusal of promotion — Consideration of comparative merits of officials in the AST function group following their career stream — Obligation on an institution not to apply a provision giving effect to the Staff Regulations which is tainted by illegality) | 26 |
| 2012/C 126/49 | Case F-23/11: Order of the Civil Service Tribunal (First Chamber) of 8 February 2012 — AY v Council (Civil service — Officials — Promotion — 2010 promotion exercise — Consideration of comparative merits — Failure to take into account further training and certification — Error of law) | 26 |
| 2012/C 126/50 | Case F-3/11: Order of the Civil Service Tribunal (First Chamber) of 29 February 2012 — Marcuccio v Commission (Civil service — Officials — Social security — Accident — Request for a document to be placed on the accident file — Request refused — Measure not having an adverse effect — Manifest inadmissibility) | 27 |
| 2012/C 126/51 | Case F-31/11: Order of the Civil Service Tribunal (First Chamber) of 7 March 2012 — BI v Cedefop (Civil service — Time-limit for bringing proceedings — Language of rejection of complaint) | 27 |
| 2012/C 126/52 | Case F-102/11: Action brought on 10 October 2011 — ZZ v Commission | 27 |
| 2012/C 126/53 | Case F-47/11: Order of the Civil Service Tribunal of 9 February 2012 — Zur Oven-Krockhaus v Commission | 28 |
| 2012/C 126/54 | Case F-53/11: Order of the Civil Service Tribunal of 25 January 2012 — Kedzierski v Commission | 28 |
| 2012/C 126/55 | Case F-96/11: Order of the Civil Service Tribunal of 2 February 2012 — Makaronidis v Commission | 28 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2012/C 126/02

Case C-524/10: Judgment of the Court (Fourth Chamber) of 8 March 2012 — European Commission v Portuguese Republic (Failure of a Member State to fulfil obligations — Common system of value added tax — Directive 2006/112/EC — Articles 296 to 298 — Common flat-rate scheme for farmers — Flat-rate compensation percentage set at nil rate)

2

2012/C 126/03

Case C-596/10: Judgment of the Court (Seventh Chamber) of 8 March 2012 — European Commission v French Republic (Failure of Member State to fulfil obligations — Value Added Tax — Directive 2006/112/EC — Application of reduced VAT rates to transactions concerning equidae and in particular to horses)

2

2012/C 126/04

Case C-251/11: Judgment of the Court (Sixth Chamber) of 8 March 2012 (reference for a preliminary ruling from the tribunal administratif de Rennes — France) — Martial Huet v Université de Bretagne occidentale (Social policy — Directive 1999/70/EC — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Clause 5(1) — Successive fixed-term employment contracts — Measures to prevent the abuse of such contracts — Conversion of the previous fixed-term contract into a contract of indefinite duration — Obligation to reproduce in identical terms the principal clauses of the previous fixed-term contract)

3

2012/C 126/05

Case C-227/11: Order of the Court (Sixth Chamber) of 19 January 2012 (reference for a preliminary ruling from the Rechtbank Haarlem — Netherlands) — DHL Danzas Air & Ocean (Netherlands) BV v Inspecteur van de Belastingdienst/Douane West, kantoor Hoofddorp Saturnusstraat (Article 104(3) of the Rules of Procedure — Common Customs Tariff — Tariff positions — Network analysers — Classification — Legal value of a classification opinion of the World Customs Organisation)

3

2012/C 126/06

Case C-16/12: Reference for a preliminary ruling from the Gyulai Törvényszék (Hungary) lodged on 13 January 2012 — HERMES Hitel és Faktor Zrt. v Nemzeti Földalapkezelő Szervezet

4

2012/C 126/07

Case C-33/12: Reference for a preliminary ruling from the Fővárosi Törvényszék (Hungary) lodged on 24 January 2012 — Körös-Vidéki Környezetvédelmi és Vízügyi Igazgatóság v Mezőgazdasági és Vidékfejlesztési Hivatal Központi Szerve

4

2012/C 126/08

Case C-38/12: Reference for a preliminary ruling from the Szabolcs-Szatmár-Bereg Megyei Bíróság (Hungary) lodged on 26 January 2012 — Felső-Tisza-vidéki Környezetvédelmi és Vízügyi Igazgatóság v Mezőgazdasági és Vidékfejlesztési Hivatal Központi Szerve

4

2012/C 126/09

Case C-64/12: Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 8 February 2012 — A. Schlecker, trading under the name, Firma Anton Schlecker, other party: M.J. Boedeker

5

2012/C 126/10

Case C-65/12: Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 8 February 2012 — Leidseplein Beheer B.V. and Others, other parties: Red Bull GmbH and Others

5

2012/C 126/11

Case C-79/12: Reference for a preliminary ruling from the Curtea de Apel Alba Iulia (Romania) lodged on 14 February 2012 — SC Mora IPR SRL v Direcția Generală a Finanțelor Publice Sibiu, Directia Județeană pentru Accize și Operațiuni Vamali Sibiu

6

2012/C 126/12

Case C-81/12: Reference for a preliminary ruling from the Curtea de Apel București (Romania) lodged on 14 February 2012 — Asociația ACCEPT v Consiliul Național pentru Combaterea Discriminării

6

2012/C 126/13

Case C-83/12: Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 17 February 2012 — Criminal proceedings against Minh Khoa V o

7

2012/C 126/14

Case C-88/12: Reference for a preliminary ruling from the Rechtbank Roermond (Netherlands), lodged on 20 February 2012 — Criminal proceedings against Jibril Jaoo

7

2012/C 126/15

Case C-90/12: Action brought on 21 February 2012 — European Commission v Republic of Poland

7

2012/C 126/16

Case C-97/12 P: Appeal brought on 23 February 2012 by Louis Vuitton Malletier against the judgment of the General Court (Third Chamber) delivered on 14 December 2011 in Case T-237/10: Louis Vuitton Malletier v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Friis Group International ApS

8

2012/C 126/17

Case C-98/12: Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 24 February 2012 — Wim J. J. Slot v 3 H Camping-Center Heinsberg GmbH

9

2012/C 126/18

Case C-127/12: Action brought on 7 March 2012 — European Commission v Kingdom of Spain

9

2012/C 126/19

Case C-135/12: Action brought on 9 March 2012 — European Commission v Republic of Poland

10

2012/C 126/20

Joined Cases C-328/10 to C-333/10: Order of the President of the Court of 14 February 2012 (references for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia — Sezione Terza (Italy)) — Enipower SpA (C-328/10), ENI SpA (C-329/10), Edison Trading SpA (C-330/10), E.On Produzione SpA (C-331/10), Edipower SpA (C-332/10), E.On Energy Trading SpA (C-333/10) v Autorità per l’energia elettrica e il gás (C-328/10 to C-333/10), Cassa Conguaglio per il Settore Elettrico (C-329/10) intervening parties: Terna Rete Elettrica Nazionale SpA (C-328/10, C-329/10, C-331/10 and C-332/10), Ministero dello Sviluppo Economico (C-328/10 and C-329/10), Gestore dei Servizi Elettrici SpA (C-331/10)

10

General Court

2012/C 126/21

Case T-192/07: Judgment of the General Court of 9 March 2012 — Comité de défense de la viticulture charentaise v Commission (Competition — Decision rejecting a complaint — No Community interest — Scope of the complaint — Competence of the author of the act — Obligation to state reasons)

11

2012/C 126/22

Case T-288/08: Judgment of the General Court of 15 March 2012 — Cadila Healthcare v OHIM — Novartis (ZYDUS) (Community trade mark — Opposition proceedings — Application for the Community word mark ZYDUS — Earlier Community word mark ZIMBUS — Relative ground for refusal — Likelihood of confusion — Similarity of the goods — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))

11

2012/C 126/23

Case T-379/08: Judgment of the General Court of 15 March 2012 — Mustang v OHIM — Decathlon (Wavy line) (Community trade mark — Opposition proceedings — Application for a figurative Community mark representing a wavy line — Earlier national and international figurative trade marks representing a white wavy line on a black background — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))

12

2012/C 126/24

Case T-391/08: Judgment of the General Court (Seventh Chamber) of 15 March 2012 — Ellinika Nafpigeia v Commission (State aid — Shipbuilding — Aid granted by the Greek authorities to a shipyard — Decision declaring the aid incompatible with the common market and ordering its recovery — Misuse of aid)

12

2012/C 126/25

Case T-450/08: Judgment of the General Court of 9 March 2012 — Coverpla v OHIM — Heinz-Glas (Phial) (Community design — Invalidity proceedings — Registered Community design representing a bottle — Prior design — Ground for invalidity — Disclosure of prior design — Absence of novelty — Articles 5 and 25(1)(b) of Regulation (EC) No 6/2002)

13

2012/C 126/26

Case T-236/09: Judgment of the General Court of 15 March 2012 — Evropaïki Dynamiki v Commission (Public service contracts — Tendering procedure — External service provision for development, studies and support of information systems — Rejection of a tenderer’s bids — Obligation to state reasons — Equal treatment — Transparency — Manifest error of assessment — Non-contractual liability)

13

2012/C 126/27

Case T-32/10: Judgment of the General Court of 9 March 2012 — Ella Valley Vineyards v OHIM — HFP (ELLA VALLEY VINEYARDS) (Community trade mark — Opposition proceedings — Application for Community figurative mark ELLA VALLEY VINEYARDS — Earlier national and Community trade marks ELLE — Relative ground for refusal — Likelihood of association — Link between the signs — Reputation — No similarity of the signs — Article 8(5) of Regulation (EC) No 207/2009))

14

2012/C 126/28

Case T-172/10: Judgment of the General Court of 9 March 2012 — Colas v OHIM — García-Teresa Gárate and Bouffard Vicente (BASE-SEAL) (Community trade mark — Opposition proceedings — Application for the Community figurative mark BASE-SEAL — Earlier national figurative marks representing a diamond shape — Earlier national and international figurative marks COLAS — Relative ground for refusal — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 207/2009)

14

2012/C 126/29

Case T-417/10: Judgment of the General Court of 9 March 2012 — Cortés del Valle López v OHIM (¡Que buenu ye! HIJOPUTA) (Community trade mark — Application for Community figurative mark ¡Que buenu ye! HIJOPUTA — Absolute ground for refusal — Trade mark contrary to public policy or to accepted principles of morality — Article 7(1)(f) of Regulation (EC) No 207/2009)

15

2012/C 126/30

Joined Cases T-441/10 P to T-443/10 P: Judgment of the General Court of 20 March 2012 — Kurrer and Others v Commission (Appeal — Civil service — Officials — Appointment — Classification in grade — Transitional rules for classification in grade on recruitment — Article 5(4) of Annex XIII to the Staff Regulations — Principle of equal treatment)

15

2012/C 126/31

Case T-207/11: Judgment of the General Court of 9 March 2012 — EyeSense v OHIM — Osypka Medical (ISENSE) (Community trade mark — Opposition proceedings — Application for Community word mark ISENSE — Earlier national word mark EyeSense — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 207/2009)

15

2012/C 126/32

Case T-127/09: Order of the General Court of 28 February 2012 — Abdulrahim v Council and Commission (Common foreign and security policy — Restrictive measures directed against persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban — Regulation (EC) No 881/2002 — Removal of the interested party from the list of persons and entities concerned — Action for annulment — No need to adjudicate — Claim for damages — Causal link — None)

16

2012/C 126/33

Case T-153/10: Order of the General Court of 28 February 2012 — Schneider España de Informática, SA v European Commission (Customs union — Importation of colour television sets assembled in Turkey — Post-clearance recovery of import duties — Application for waiver of post-clearance entry in the accounts of import duties and for remission of those duties — Article 220(2)(b) and Article 239 of Regulation (EEC) No 2913/92 — Commission decision rejecting that application — Annulment by the national court of decisions taken by national authorities ordering post-clearance entry of import duties in the accounts — No need to adjudicate)

16

2012/C 126/34

Case T-573/10: Order of the General Court of 8 March 2012 — Octapharma Pharmazeutika v EMA (Medicinal products for human use — Changes to a plasma master file (PMF) — Fees payable to the EMA — Act with adverse effects — Measure merely confirmatory — Manifest inadmissibility)

17

2012/C 126/35

Case T-126/11 P: Order of the General Court of 8 March 2012 — Marcuccio v Commission (Appeal — Civil service — Officials — Social security — Reimbursement of medical expenses — Act adversely affecting an official — Implied refusal — Duty to state reasons — Appeal in part manifestly unfounded and in part manifestly inadmissible)

17

2012/C 126/36

Case T-183/11: Order of the General Court of 27 February 2012 — MIP Metro v OHIM — Jacinto (My Little Bear) (Community trade mark — Opposition proceedings — Expiry of the earlier national mark — Action devoid of purpose — No need to adjudicate)

18

2012/C 126/37

Case T-531/11: Action brought on 28 September 2011 — Hamas v Council

18

2012/C 126/38

Case T-84/12: Action brought on 31 January 2012 — Uspaskich v Parliament

19

2012/C 126/39

Case T-89/12: Action brought on 17 February 2012 — Repsol YPF v OHIM — Ajuntament de Roses (R)

19

2012/C 126/40

Case T-91/12: Action brought on 23 February 2012 — Flying Holding and Others v Commission

20

2012/C 126/41

Case T-92/12: Action brought on 23 February 2012 — Gas v OHIM — Grotto (GAS)

21

2012/C 126/42

Case T-93/12: Action brought on 23 February 2012 — Gas v OHIM — Grotto (BLUE JEANS GAS)

21

2012/C 126/43

Case T-95/12 P: Appeal brought on 28 February 2012 by Willem Stols against the judgment of the Civil Service Tribunal of 13 December 2011 in Case F-51/08 RENV Stols v Council

22

2012/C 126/44

Case T-109/12: Action brought on 7 March 2012 — Spain v Commission

23

2012/C 126/45

Case T-110/12: Action brought on 27 February 2012 — Iranian Offshore Engineering & Construction v Council

23

2012/C 126/46

Case T-111/12: Action brought on 7 March 2012 — Spain v Commission

24

2012/C 126/47

Case T-116/12: Action brought on 12 March 2012 — Tioxide Europe and Others v Council

25

European Union Civil Service Tribunal

2012/C 126/48

Case F-11/11: Judgment of the Civil Service Tribunal (First Chamber) of 8 February 2012 — Bouillez and Others v Council (Civil service — Officials — Promotion — 2010 promotion exercise — Refusal of promotion — Consideration of comparative merits of officials in the AST function group following their career stream — Obligation on an institution not to apply a provision giving effect to the Staff Regulations which is tainted by illegality)

26

2012/C 126/49

Case F-23/11: Order of the Civil Service Tribunal (First Chamber) of 8 February 2012 — AY v Council (Civil service — Officials — Promotion — 2010 promotion exercise — Consideration of comparative merits — Failure to take into account further training and certification — Error of law)

26

2012/C 126/50

Case F-3/11: Order of the Civil Service Tribunal (First Chamber) of 29 February 2012 — Marcuccio v Commission (Civil service — Officials — Social security — Accident — Request for a document to be placed on the accident file — Request refused — Measure not having an adverse effect — Manifest inadmissibility)

27

2012/C 126/51

Case F-31/11: Order of the Civil Service Tribunal (First Chamber) of 7 March 2012 — BI v Cedefop (Civil service — Time-limit for bringing proceedings — Language of rejection of complaint)

27

2012/C 126/52

Case F-102/11: Action brought on 10 October 2011 — ZZ v Commission

27

2012/C 126/53

Case F-47/11: Order of the Civil Service Tribunal of 9 February 2012 — Zur Oven-Krockhaus v Commission

28

2012/C 126/54

Case F-53/11: Order of the Civil Service Tribunal of 25 January 2012 — Kedzierski v Commission

28

2012/C 126/55

Case F-96/11: Order of the Civil Service Tribunal of 2 February 2012 — Makaronidis v Commission

28

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

EN

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

| 28.4.2012 | EN | Official Journal of the European Union | C 126/1 |
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28.4.2012

EN

Official Journal of the European Union

C 126/1

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2012/C 126/01

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

OJ C 118, 21.4.2012

Past publications

OJ C 109, 14.4.2012

OJ C 89, 24.3.2012

OJ C 80, 17.3.2012

OJ C 73, 10.3.2012

OJ C 65, 3.3.2012

OJ C 58, 25.2.2012

These texts are available on:

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

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V Announcements

COURT PROCEEDINGS

Court of Justice

| 28.4.2012 | EN | Official Journal of the European Union | C 126/2 |
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28.4.2012

EN

Official Journal of the European Union

C 126/2

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Judgment of the Court (Fourth Chamber) of 8 March 2012 — European Commission v Portuguese Republic

(Case C-524/10) (1)

(Failure of a Member State to fulfil obligations - Common system of value added tax - Directive 2006/112/EC - Articles 296 to 298 - Common flat-rate scheme for farmers - Flat-rate compensation percentage set at nil rate)

2012/C 126/02

Language of the case: Portuguese

Parties

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

Defendant: Portuguese Republic (represented by: L. Inez Fernandes and R. Laires, acting as Agents)

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 296 to 298 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — Flat-rate scheme designed to offset the VAT levied on the purchases of goods and services by flat-rate farmers — Flat-rate compensation percentage set at nil rate

Operative part of the judgment

The Court:

| 1. | Declares that by applying to farmers a special scheme which does not comply with the scheme established by Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, because it exempts farmers from payment of value added tax and involves the application of a flat-rate compensation percentage at a nil rate, the Portuguese Republic failed to fulfil its obligations under Articles 296 to 298 of that directive; |
| --- | --- |

1.

Declares that by applying to farmers a special scheme which does not comply with the scheme established by Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, because it exempts farmers from payment of value added tax and involves the application of a flat-rate compensation percentage at a nil rate, the Portuguese Republic failed to fulfil its obligations under Articles 296 to 298 of that directive;

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

2.

Dismisses the action as to the remainder;

| 3. | Orders the European Commission and the Portuguese Republic to bear their own costs. |
| --- | --- |

3.

Orders the European Commission and the Portuguese Republic to bear their own costs.

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(1)  OJ C 30, 29.1.2011.

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| 28.4.2012 | EN | Official Journal of the European Union | C 126/2 |
| --- | --- | --- | --- |

28.4.2012

EN

Official Journal of the European Union

C 126/2

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Judgment of the Court (Seventh Chamber) of 8 March 2012 — European Commission v French Republic

(Case C-596/10) (1)

(Failure of Member State to fulfil obligations - Value Added Tax - Directive 2006/112/EC - Application of reduced VAT rates to transactions concerning equidae and in particular to horses)

2012/C 126/03

Language of the case: French

Parties

Applicant: European Commission (represented by: F. Dintilhac and M. Alfonso, Agents)

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

Intervener: Ireland (represented by: D. O’Hagan, agent and N. Travers and G. Clohessy, barristers)

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 96 to 99 of Annex III to Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — Application of a reduced rate of VAT to equidae and in particular to horses

Operative part of the judgment

The Court:

| 1. | Declares that, by applying reduced rates of VAT to transactions relating to equidae and, in particular, to horses, where they are not as a matter of course intended for use in the preparation of foodstuffs or in agricultural production, the French Republic has failed to fulfil its obligations under Articles 96 to 99 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, read in conjunction with Annex III thereto; |
| --- | --- |

1.

Declares that, by applying reduced rates of VAT to transactions relating to equidae and, in particular, to horses, where they are not as a matter of course intended for use in the preparation of foodstuffs or in agricultural production, the French Republic has failed to fulfil its obligations under Articles 96 to 99 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, read in conjunction with Annex III thereto;

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

2.

Orders the French Republic to pay the costs;

| 3. | Orders Ireland to bear its own costs. |
| --- | --- |

3.

Orders Ireland to bear its own costs.

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(1)  OJ C 72, 5.3.2011.

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| 28.4.2012 | EN | Official Journal of the European Union | C 126/3 |
| --- | --- | --- | --- |

28.4.2012

EN

Official Journal of the European Union

C 126/3

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Judgment of the Court (Sixth Chamber) of 8 March 2012 (reference for a preliminary ruling from the tribunal administratif de Rennes — France) — Martial Huet v Université de Bretagne occidentale

(Case C-251/11) (1)

(Social policy - Directive 1999/70/EC - Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP - Clause 5(1) - Successive fixed-term employment contracts - Measures to prevent the abuse of such contracts - Conversion of the previous fixed-term contract into a contract of indefinite duration - Obligation to reproduce in identical terms the principal clauses of the previous fixed-term contract)

2012/C 126/04

Language of the case: French

Referring court

Tribunal administratif de Rennes

Parties to the main proceedings

Applicant: Martial Huet

Defendant: Université de Bretagne occidentale

Re:

Reference for a preliminary ruling — Administrative Court of Rennes — Interpretation of Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43) — Successive fixed-term contracts in the public sector — Obligation to reproduce in identical terms the principal clauses of the previous fixed-term contract where that contract is converted into an employment contract of indefinite duration — Principles of equivalence and of non-reduction of the earlier level of protection

Operative part of the judgment

Clause 5 of the framework agreement on fixed-term work, concluded on 18 March 1999, which is set out in the Annex to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be interpreted as meaning that a Member State, which provides in its national legislation for conversion of fixed-term employment contracts into an employment contract of indefinite duration when the fixed-term employment contracts have reached a certain duration, is not obliged to require that the employment contract of indefinite duration reproduces in identical terms the principal clauses set out in the previous contract. However, in order not to undermine the practical effect of, or the objectives pursued by, Directive 1999/70, that Member State must ensure that the conversion of fixed-term employment contracts into an employment contract of indefinite duration is not accompanied by material amendments to the clauses of the previous contract in a way that is, overall, unfavourable to the person concerned when the subject-matter of that person’s tasks and the nature of his functions remain unchanged.

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(1)  OJ C 238, 13.8.2011

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| 28.4.2012 | EN | Official Journal of the European Union | C 126/3 |
| --- | --- | --- | --- |

28.4.2012

EN

Official Journal of the European Union

C 126/3

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Order of the Court (Sixth Chamber) of 19 January 2012 (reference for a preliminary ruling from the Rechtbank Haarlem — Netherlands) — DHL Danzas Air & Ocean (Netherlands) BV v Inspecteur van de Belastingdienst/Douane West, kantoor Hoofddorp Saturnusstraat

(Case C-227/11) (1)

(Article 104(3) of the Rules of Procedure - Common Customs Tariff - Tariff positions - Network analysers - Classification - Legal value of a classification opinion of the World Customs Organisation)

2012/C 126/05

Language of the case: Dutch

Referring court

Rechtbank Haarlem

Parties to the main proceedings

Applicant: DHL Danzas Air & Ocean (Netherlands) BV

Defendant: Inspecteur van de Belastingdienst/Douane West, kantoor Hoofddorp Saturnusstraat

Re:

Reference for a preliminary ruling — Rechtbank Haarlem — Validity of Commission Regulation (EC) No 129/2005 of 20 January 2005 concerning the classification of certain goods in the Combined Nomenclature and amending Regulation (EC) No 955/98 (OJ 2005 L 25, p. 37) — Network analysers

Operative part of the order

The combined nomenclature set out in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended, respectively by Commission Regulation (EC) No 1810/2004 of 7 September 2004, and by Commission Regulation (EC) No 1719/2005 of 27 October 2005, must be interpreted as meaning that network analysers such as those at issue in the main proceedings may be classified in the subheading 9030 40 90 of the combined nomenclature, as amended by Regulation No 1810/2004, or in the subheading 9030 40 00 of the combined nomenclature, as amended by Regulation No 1719/2005, according to the date of import, on condition that such apparatus have the purpose of measuring or checking electrical quantities, which is for the national court to establish. Otherwise, those apparatus must be classified in the subheading 9031 80 39 of the combined nomenclature, as amended by Regulation No 1810/2004, or in the subheading 9031 80 38 of the combined nomenclature, as amended by Regulation No 1719/2005, according to the date of import.

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(1)  OJ C 226, 30.7.2011.

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| 28.4.2012 | EN | Official Journal of the European Union | C 126/4 |
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28.4.2012

EN

Official Journal of the European Union

C 126/4

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Reference for a preliminary ruling from the Gyulai Törvényszék (Hungary) lodged on 13 January 2012 — HERMES Hitel és Faktor Zrt. v Nemzeti Földalapkezelő Szervezet

(Case C-16/12)

2012/C 126/06

Language of the case: Hungarian

Referring court

Gyulai Törvényszék

Parties to the main proceedings

Applicant: HERMES Hitel és Faktor Zrt.

Defendant: Nemzeti Földalapkezelő Szervezet

Questions referred

| 1. | Must the principles of legal certainty and protection of legitimate expectations, which are considered to be fundamental principles of European Union law, be interpreted as meaning that they preclude a Member State from adopting provisions which vary the content of a contract concluded by a Member State, in its capacity as proprietor, to the detriment of the other party to the contract, classifying the object of the contract as non-transferable and thereby preventing the other party from exercising the rights derived from the contract? |
| --- | --- |

1.

Must the principles of legal certainty and protection of legitimate expectations, which are considered to be fundamental principles of European Union law, be interpreted as meaning that they preclude a Member State from adopting provisions which vary the content of a contract concluded by a Member State, in its capacity as proprietor, to the detriment of the other party to the contract, classifying the object of the contract as non-transferable and thereby preventing the other party from exercising the rights derived from the contract?

| 2. | If the first question is answered in the affirmative, is the national court obliged, by the principle of sincere cooperation laid down by Article 4(3) of the Treaty on European Union and the case-law of the Court of Justice of the European Union, to disapply the domestic provision governing the legal position on non-transferability and declare the object of the contract transferable, contrary to the provisions of the national legislation? |
| --- | --- |

2.

If the first question is answered in the affirmative, is the national court obliged, by the principle of sincere cooperation laid down by Article 4(3) of the Treaty on European Union and the case-law of the Court of Justice of the European Union, to disapply the domestic provision governing the legal position on non-transferability and declare the object of the contract transferable, contrary to the provisions of the national legislation?

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| 28.4.2012 | EN | Official Journal of the European Union | C 126/4 |
| --- | --- | --- | --- |

28.4.2012

EN

Official Journal of the European Union

C 126/4

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Reference for a preliminary ruling from the Fővárosi Törvényszék (Hungary) lodged on 24 January 2012 — Körös-Vidéki Környezetvédelmi és Vízügyi Igazgatóság v Mezőgazdasági és Vidékfejlesztési Hivatal Központi Szerve

(Case C-33/12)

2012/C 126/07

Language of the case: Hungarian

Referring court

Fővárosi Törvényszék

Parties to the main proceedings

Applicant: Körös-Vidéki Környezetvédelmi és Vízügyi Igazgatóság

Defendant: Mezőgazdasági és Vidékfejlesztési Hivatal Központi Szerve

Question referred

In the case of use as permanent grassland, do dykes constitute utilised agricultural areas within the meaning of Article 143b(4) of Regulation (EC) No 1782/2003 (1) although their agricultural use is not the primary one but they are also used for water management and flood prevention purposes?

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(1)  Council Regulation (EC) No 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers and amending Regulations (EEC) No 2019/93, (EC) No 1452/2001, (EC) No 1453/2001, (EC) No 1454/2001, (EC) No 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, (EC) No 1673/2000, (EEC) No 2358/71 and (EC) No 2529/2001 (OJ 2003 L 270, p. 1).

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| 28.4.2012 | EN | Official Journal of the European Union | C 126/4 |
| --- | --- | --- | --- |

28.4.2012

EN

Official Journal of the European Union

C 126/4

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Reference for a preliminary ruling from the Szabolcs-Szatmár-Bereg Megyei Bíróság (Hungary) lodged on 26 January 2012 — Felső-Tisza-vidéki Környezetvédelmi és Vízügyi Igazgatóság v Mezőgazdasági és Vidékfejlesztési Hivatal Központi Szerve

(Case C-38/12)

2012/C 126/08

Language of the case: Hungarian

Referring court

Szabolcs-Szatmár-Bereg Megyei Bíróság

Parties to the main proceedings

Applicant: Felső-Tisza-vidéki Környezetvédelmi és Vízügyi Igazgatóság

Defendant: Mezőgazdasági és Vidékfejlesztési Hivatal Központi Szerve

Questions referred

| 1. | Is Article 143b(4) and (5) of Council Regulation (EC) No 1782/2003 (1) to be interpreted as meaning that, for 2008, the sloping sides of dykes and embankments constructed in order to prevent flooding are excluded from the single area payment scheme (SAPS) financed by the European Agricultural Guarantee Fund, even in cases where, as at 30 June 2003 and thereafter, the pasture planted on it has been well kept, by being mown regularly and used for grazing, and constitutes area which is maintained in good agricultural condition? |
| --- | --- |

1.

Is Article 143b(4) and (5) of Council Regulation (EC) No 1782/2003 (1) to be interpreted as meaning that, for 2008, the sloping sides of dykes and embankments constructed in order to prevent flooding are excluded from the single area payment scheme (SAPS) financed by the European Agricultural Guarantee Fund, even in cases where, as at 30 June 2003 and thereafter, the pasture planted on it has been well kept, by being mown regularly and used for grazing, and constitutes area which is maintained in good agricultural condition?

| 2. | Is Article 143b(4) and (5) of Council Regulation (EC) No 1782/2003 to be interpreted as meaning that areas that have a secondary agricultural use are excluded from single area payments? |
| --- | --- |

2.

Is Article 143b(4) and (5) of Council Regulation (EC) No 1782/2003 to be interpreted as meaning that areas that have a secondary agricultural use are excluded from single area payments?

---

(1)  Council Regulation (EC) No 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers and amending Regulations (EEC) No 2019/93, (EC) No 1452/2001, (EC) No 1453/2001, (EC) No 1454/2001, (EC) 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, (EC) No 1673/2000, (EEC) No 2358/71 and (EC) No 2529/2001; (OJ 2003 L 270, p. 1).

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| 28.4.2012 | EN | Official Journal of the European Union | C 126/5 |
| --- | --- | --- | --- |

28.4.2012

EN

Official Journal of the European Union

C 126/5

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Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 8 February 2012 — A. Schlecker, trading under the name, ‘Firma Anton Schlecker’, other party: M.J. Boedeker

(Case C-64/12)

2012/C 126/09

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicant: A. Schlecker, trading under the name, ‘Firma Anton Schlecker’

Defendant: M.J. Boedeker

Questions referred

| 1. | Should Article 6(2) (1) of the Convention on the law applicable to contractual obligations be interpreted in such a way that, if an employee carries out the work in performance of the contract not only habitually but also for a lengthy period and without interruption in the same country, the law of that country should be applied in all cases, even if all other circumstances point to a close connection between the employment contract and another country? |
| --- | --- |

1.

Should Article 6(2) (1) of the Convention on the law applicable to contractual obligations be interpreted in such a way that, if an employee carries out the work in performance of the contract not only habitually but also for a lengthy period and without interruption in the same country, the law of that country should be applied in all cases, even if all other circumstances point to a close connection between the employment contract and another country?

| 2. | Does an affirmative answer to Question 1 require that the employer and the employee, when concluding the contract of employment, or at least at the commencement of the work, intended, or at least were aware of the fact, that the work would be carried out over a long period and without interruption in the same country? |
| --- | --- |

2.

Does an affirmative answer to Question 1 require that the employer and the employee, when concluding the contract of employment, or at least at the commencement of the work, intended, or at least were aware of the fact, that the work would be carried out over a long period and without interruption in the same country?

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(1)  Convention on the law applicable to contractual obligations, opened for signature in Rome on 19 June 1980 (OJ 1980 L 266, p. 1).

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| 28.4.2012 | EN | Official Journal of the European Union | C 126/5 |
| --- | --- | --- | --- |

28.4.2012

EN

Official Journal of the European Union

C 126/5

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Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 8 February 2012 — Leidseplein Beheer B.V. and Others, other parties: Red Bull GmbH and Others

(Case C-65/12)

2012/C 126/10

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicant:

| | Leidseplein Beheer B.V. |
| --- | --- |

Leidseplein Beheer B.V.

| | H.J.M de Vries |
| --- | --- |

H.J.M de Vries

Defendants:

| | Red Bull GmbH |
| --- | --- |

Red Bull GmbH

| | Red Bull Nederland B.V. |
| --- | --- |

Red Bull Nederland B.V.

Question referred

Is Article 5(2) of Directive 89/104/EEC (1) to be interpreted as meaning that there can be due cause within the meaning of that provision also where the sign that is identical or similar to the trade mark with a reputation was already being used in good faith by the third party/parties concerned before that trade mark was filed?

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(1)  First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1).

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| 28.4.2012 | EN | Official Journal of the European Union | C 126/6 |
| --- | --- | --- | --- |

28.4.2012

EN

Official Journal of the European Union

C 126/6

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Reference for a preliminary ruling from the Curtea de Apel Alba Iulia (Romania) lodged on 14 February 2012 — SC Mora IPR SRL v Direcția Generală a Finanțelor Publice Sibiu, Directia Județeană pentru Accize și Operațiuni Vamali Sibiu

(Case C-79/12)

2012/C 126/11

Language of the case: Romanian

Referring court

Curtea de Apel Alba Iulia

Parties to the main proceedings

Applicant: SC Mora IPR SRL

Defendants: Direcția Generală a Finanțelor Publice Sibiu, Directia Județeană pentru Accize și Operațiuni Vamali Sibiu

Questions referred

| 1. | Is Article 211 of Directive 2006/112/EC (1) to be interpreted as precluding the introduction of a condition (such as the requirement that a deferred payment certificate be obtained, within a specific period, on the conditions established by order of the Minister for the Economy and Finance) additional to the condition relating to the entries in the VAT return to be made by taxable persons who are authorised not to pay to the customs authorities VAT on importation? |
| --- | --- |

1.

Is Article 211 of Directive 2006/112/EC (1) to be interpreted as precluding the introduction of a condition (such as the requirement that a deferred payment certificate be obtained, within a specific period, on the conditions established by order of the Minister for the Economy and Finance) additional to the condition relating to the entries in the VAT return to be made by taxable persons who are authorised not to pay to the customs authorities VAT on importation?

| 2. | Are Articles 26(2), 28, 30 and 107(1) of the Treaty on the Functioning of the European Union to be interpreted as precluding repeated legislative intervention such as that provided for in paragraphs 1 and 2 of Decree-Law No 22 of 28 March 2007 or in paragraph 69 of Decree-Law No 106 of 4 October 2007, by which Article 157(4) of the Fiscal Code was amended to the effect that only some taxable persons for VAT purposes (who have imported, or who are thought to have imported, goods after 15 April 2007 and who have obtained a deferred payment certificate) from among those in identical situations (inasmuch as they hold goods imported temporarily during the period preceding accession) are allowed not to pay VAT at customs? |
| --- | --- |

2.

Are Articles 26(2), 28, 30 and 107(1) of the Treaty on the Functioning of the European Union to be interpreted as precluding repeated legislative intervention such as that provided for in paragraphs 1 and 2 of Decree-Law No 22 of 28 March 2007 or in paragraph 69 of Decree-Law No 106 of 4 October 2007, by which Article 157(4) of the Fiscal Code was amended to the effect that only some taxable persons for VAT purposes (who have imported, or who are thought to have imported, goods after 15 April 2007 and who have obtained a deferred payment certificate) from among those in identical situations (inasmuch as they hold goods imported temporarily during the period preceding accession) are allowed not to pay VAT at customs?

---

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

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| 28.4.2012 | EN | Official Journal of the European Union | C 126/6 |
| --- | --- | --- | --- |

28.4.2012

EN

Official Journal of the European Union

C 126/6

---

Reference for a preliminary ruling from the Curtea de Apel București (Romania) lodged on 14 February 2012 — Asociația ACCEPT v Consiliul Național pentru Combaterea Discriminării

(Case C-81/12)

2012/C 126/12

Language of the case: Romanian

Referring court

Curtea de Apel București

Parties to the main proceedings

Applicant: Asociația ACCEPT

Defendant: Consiliul Național pentru Combaterea Discriminării

Questions referred

| 1. | Do the provisions of Article 2(2)(a) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (1) apply when a shareholder of a football club who presents himself as, and is considered in the mass media as, the principal director (or ‘manager’) of that football club makes a statement to the mass media in the following terms:
  ‘Not even if I had to close Steaua down would I accept a homosexual on the team. Obviously people will talk, but how could anyone write something like that if it’s not true and, what’s more, put it on the front page... Perhaps he’s not a homosexual [X, a Bulgarian footballer] ... But what if he is? ... I said to an uncle of mine who didn’t believe in Satan or in Christ. I said to him: “Let’s say God doesn’t exist. But suppose he does? What do you lose by taking communion? Wouldn’t it be good to go to Heaven?” He said I was right. A month before he died he took communion. May God forgive him. There’s no room for gays in my family, and Steaua is my family. It would be better to play with a junior rather than someone who was gay. That’s not discrimination. No one can force me to work with anyone. I have rights just as they do and I have the right to work with whoever I choose.
  Not even if I had to close Steaua down would I accept a homosexual on the team. ... Perhaps he’s not a homosexual, but what if he is? There’s no room for gays in my family, and Steaua is my family. Rather than having a homosexual on the team, it would be better to play a junior. That’s not discrimination. No one can force me to work with anyone. I have rights just as they do and I have the right to work with whoever I choose. Even if God told me in a dream that it was 100 percent certain that X wasn’t a homosexual I still wouldn’t take him! Too much has been written in the papers about his being a homosexual. Even if ȚSKA gave him to me for free I wouldn’t have him! He could be the biggest troublemaker, the biggest drunk ... but if he’s a homosexual I don’t want to know about him’? |
| --- | --- |

1.

Do the provisions of Article 2(2)(a) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (1) apply when a shareholder of a football club who presents himself as, and is considered in the mass media as, the principal director (or ‘manager’) of that football club makes a statement to the mass media in the following terms:

‘Not even if I had to close Steaua down would I accept a homosexual on the team. Obviously people will talk, but how could anyone write something like that if it’s not true and, what’s more, put it on the front page... Perhaps he’s not a homosexual [X, a Bulgarian footballer] ... But what if he is? ... I said to an uncle of mine who didn’t believe in Satan or in Christ. I said to him: “Let’s say God doesn’t exist. But suppose he does? What do you lose by taking communion? Wouldn’t it be good to go to Heaven?” He said I was right. A month before he died he took communion. May God forgive him. There’s no room for gays in my family, and Steaua is my family. It would be better to play with a junior rather than someone who was gay. That’s not discrimination. No one can force me to work with anyone. I have rights just as they do and I have the right to work with whoever I choose.

Not even if I had to close Steaua down would I accept a homosexual on the team. ... Perhaps he’s not a homosexual, but what if he is? There’s no room for gays in my family, and Steaua is my family. Rather than having a homosexual on the team, it would be better to play a junior. That’s not discrimination. No one can force me to work with anyone. I have rights just as they do and I have the right to work with whoever I choose. Even if God told me in a dream that it was 100 percent certain that X wasn’t a homosexual I still wouldn’t take him! Too much has been written in the papers about his being a homosexual. Even if ȚSKA gave him to me for free I wouldn’t have him! He could be the biggest troublemaker, the biggest drunk ... but if he’s a homosexual I don’t want to know about him’?

| 2. | To what extent may the abovementioned statements be regarded as ‘facts from which it may be presumed that there has been direct or indirect discrimination’ within the meaning of Article 10(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, as regards the defendant S.C. Fotbal Club Steaua București S.A.? |
| --- | --- |

2.

To what extent may the abovementioned statements be regarded as ‘facts from which it may be presumed that there has been direct or indirect discrimination’ within the meaning of Article 10(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, as regards the defendant S.C. Fotbal Club Steaua București S.A.?

| 3. | To what extent would there be probatio diabolica if the burden of proof referred to in Article 10(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation were to be reversed in this case and the defendant S.C. Fotbal Club Steaua București S.A. were required to demonstrate that there has been no breach of the principle of equal treatment and, in particular, that recruitment is unconnected with sexual orientation? |
| --- | --- |

3.

To what extent would there be probatio diabolica if the burden of proof referred to in Article 10(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation were to be reversed in this case and the defendant S.C. Fotbal Club Steaua București S.A. were required to demonstrate that there has been no breach of the principle of equal treatment and, in particular, that recruitment is unconnected with sexual orientation?

| 4. | Does the fact that it is not possible to impose a fine in cases of discrimination after the expiry of the limitation period of six months from the date of the relevant fact, laid down in Article 13(1) of Government Decree No 2/2001 on the legal regime for sanctions, conflict with Article 17 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation given that sanctions, in cases of discrimination, must be effective, proportionate and dissuasive? |
| --- | --- |

4.

Does the fact that it is not possible to impose a fine in cases of discrimination after the expiry of the limitation period of six months from the date of the relevant fact, laid down in Article 13(1) of Government Decree No 2/2001 on the legal regime for sanctions, conflict with Article 17 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation given that sanctions, in cases of discrimination, must be effective, proportionate and dissuasive?

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(1)  OJ 2000 L 303, p. 16.

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| 28.4.2012 | EN | Official Journal of the European Union | C 126/7 |
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Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 17 February 2012 — Criminal proceedings against Minh Khoa V o

(Case C-83/12)

2012/C 126/13

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Minh Khoa V o

Other party: Generalbundesanwalt beim Bundesgerichtshof

Question referred

Are Articles 21 and 34 of Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (‘the Visa Code’), (1) which regulate the issue and annulment of a uniform visa, to be interpreted as precluding criminal liability, resulting from the application of national legislation, for the smuggling of foreign nationals in cases where, although they hold visas, the persons smuggled obtained those visas by deceiving the competent authorities of another Member State as to the true purpose of their journey?

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(1)  OJ 2009 L 243, p. 1.

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| 28.4.2012 | EN | Official Journal of the European Union | C 126/7 |
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28.4.2012

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Official Journal of the European Union

C 126/7

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Reference for a preliminary ruling from the Rechtbank Roermond (Netherlands), lodged on 20 February 2012 — Criminal proceedings against Jibril Jaoo

(Case C-88/12)

2012/C 126/14

Language of the case: Dutch

Referring court

Rechtbank Roermond

Party to the main proceedings

Jibril Jaoo

Questions referred

| 1. | Does Article 4.17a of the Vreemdelingenbesluit 2000 (Decree on Foreign Nationals 2000) contravene the prohibition of border checks or the prohibition of checks equivalent to border checks within the terms, respectively, of Articles 20 and 21 of the Schengen Borders Code? (1) |
| --- | --- |

1.

Does Article 4.17a of the Vreemdelingenbesluit 2000 (Decree on Foreign Nationals 2000) contravene the prohibition of border checks or the prohibition of checks equivalent to border checks within the terms, respectively, of Articles 20 and 21 of the Schengen Borders Code? (1)

| 2. | If so, are non-EU citizens or persons who do not have a residence permit for one of the Member States of the EU also entitled to rely thereon? |
| --- | --- |

2.

If so, are non-EU citizens or persons who do not have a residence permit for one of the Member States of the EU also entitled to rely thereon?

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(1)  Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ 2006 L 105, p. 1).

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| 28.4.2012 | EN | Official Journal of the European Union | C 126/7 |
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Action brought on 21 February 2012 — European Commission v Republic of Poland

(Case C-90/12)

2012/C 126/15

Language of the case: Polish

Parties

Applicant: European Commission (represented by: K. Simonsson and M. Owsiany-Hornung, acting as Agents)

Defendant: Republic of Poland

Form of order sought

| — | declare that, by not adopting appropriate measures needed to comply with Articles 5 and 6 of Regulation (EC) No 847/2004 of the European Parliament and of the Council of 29 April 2004 on the negotiation and implementation of air service agreements between Member States and third countries (1) and in any event by not informing the Commission of such measures, the Republic of Poland has failed to fulfil its obligations under those articles of the directive; |
| --- | --- |

—

declare that, by not adopting appropriate measures needed to comply with Articles 5 and 6 of Regulation (EC) No 847/2004 of the European Parliament and of the Council of 29 April 2004 on the negotiation and implementation of air service agreements between Member States and third countries (1) and in any event by not informing the Commission of such measures, the Republic of Poland has failed to fulfil its obligations under those articles of the directive;

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

—

order the Republic of Poland to pay the costs.

Pleas in law and main arguments

Article 5 of Regulation No 847/2004 requires Member States to ensure ‘a distribution of traffic rights among eligible [European Union] air carriers on the basis of a non-discriminatory and transparent procedure’. In addition, under Article 6 of the regulation, Member States are obliged to inform the Commission without delay of the procedures applied for the purposes of Article 5. The Commission publishes those procedures in the Official Journal. The carrying out of the procedures referred to in those provisions is dependent upon the adoption of an appropriate implementing regulation by the minister responsible for transport matters. That regulation had still not been adopted when the present action was brought and in any event the Polish authorities have not informed the Commission in that regard. In those circumstances, the Commission assumes that the carrying out of the procedures envisaged in Article 5 of Regulation No 847/2004 and the appropriate notification of the Commission on the basis of Article 6 of the regulation are not possible, given the lack of appropriate provisions in Polish law.

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(1)  OJ 2004 L 157, p. 7.

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| 28.4.2012 | EN | Official Journal of the European Union | C 126/8 |
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28.4.2012

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Official Journal of the European Union

C 126/8

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Appeal brought on 23 February 2012 by Louis Vuitton Malletier against the judgment of the General Court (Third Chamber) delivered on 14 December 2011 in Case T-237/10: Louis Vuitton Malletier v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Friis Group International ApS

(Case C-97/12 P)

2012/C 126/16

Language of the case: English

Parties

Appellant: Louis Vuitton Malletier (represented by: P. Roncaglia, G. Lazzeretti, M. Boletto, E. Gavuzzi, avvocati)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Friis Group International ApS

Form of order sought

The appellant claims that the Court should:

| — | set aside the judgment under appeal in so far as it dismissed the appeal filed by tha Appellant against the contested decision and thus annul the First Board of Appeal decision in so far as it declared Community trademark registration No. 3693116 (figurative) invalid for ‘optical apparatus and instruments, including spectacles, sunglasses and spectacle cases’ in class 9, ‘jewel boxes in precious metals, their alloys or coated therewith’ in class 14, and ‘travel bags, travelling sets (leather goods), trunks and travelling bags, garment bags for travel, vanity cases, rucksacks, shoulder bats, handbags, attaché cases, document cases and briefcases of leather, pouches, wallets, purses, key cases, card cases’ in class 18; |
| --- | --- |

—

set aside the judgment under appeal in so far as it dismissed the appeal filed by tha Appellant against the contested decision and thus annul the First Board of Appeal decision in so far as it declared Community trademark registration No. 3693116 (figurative) invalid for ‘optical apparatus and instruments, including spectacles, sunglasses and spectacle cases’ in class 9, ‘jewel boxes in precious metals, their alloys or coated therewith’ in class 14, and ‘travel bags, travelling sets (leather goods), trunks and travelling bags, garment bags for travel, vanity cases, rucksacks, shoulder bats, handbags, attaché cases, document cases and briefcases of leather, pouches, wallets, purses, key cases, card cases’ in class 18;

| — | order OHIM to pay the costs incurred by Louis Vuitton Malletier S.A. during these proceedings; |
| --- | --- |

—

order OHIM to pay the costs incurred by Louis Vuitton Malletier S.A. during these proceedings;

| — | order Friis Group International ApS to pay the costs incurred by Louis Vuitton Malletier S.A. during these proceedings. |
| --- | --- |

—

order Friis Group International ApS to pay the costs incurred by Louis Vuitton Malletier S.A. during these proceedings.

Pleas in law and main arguments

The present appeal is aimed at showing that the General Court infringed Article 7(l)(b) CTM Regulation (1) by holding that the absolute ground for refusal set forth in this provision is applicable to Community trademark registration No. 3693116 (figurative) (the so called ‘FERMOIR S’) with respect to all the goods it covers in classes 9, 14 and 18, save for ‘jewellery, including rings, key rings, buckles and earrings, cuff links, bracelets, trinkets, brooches, necklaces, ties pins, ornaments, medallions; horological and chronometric instruments and apparatus, including watches, watchcases, alarm clocks; nutcrackers in precious metals, their alloys or coated therewith, candlesticks in precious metals, their alloys or coated therewith’ in class 14 and ‘leather and imitations of leather’ and ‘umbrellas’ in class 18.

Firstly, the Appellant submits that the General Court erred in applying the case-law on three-dimensional shape marks to the present case (at least with respect to the majority of the goods covered by the contested mark) and thus in requiring as a legal standard for distinctiveness that the ‘FERMOIR S’‘departs significantly from the norm or customs of the sector’, which is a threshold higher than the general one (i.e., the ‘minimum degree of distinctiveness’).

In fact, the case-law clearly shows that, to apply the ‘departing significantly’ threshold, originally tailored for three-dimensional shape marks only, the relevant sign should be unequivocally related to the concerned goods, meaning that such sign must consist of, and be perceived by consumers as, a faithful representation either of the whole product or of one of its main parts, immediately recognizable as such.

Contrastingly, the General Court took the view that any sign representing the shape of a part of a product is subject to the principles set forth in connection with three-dimensional shape marks unless it is absolutely impossible to conceptually view such sign as a part of the products it designates. As a result, instead of asking whether the contested mark could be perceived by the public as an essential part of the goods it designates, the General Court limited itself to establishing whether this mark could theoretically be used as a closing mechanism for goods in classes 9, 14, and 18.

Secondly, the Appellant submits that the General Court erred when it came to assessing the validity of the contested mark with respect to those goods that it had found capable of including a closing mechanism, by infringing the rules concerning the burden of proof and distorting the clear sense of evidence.

In particular, the General Court failed to give sufficient deference to the presumption of validity afforded to CTM registrations by requiring that the Appellant ‘provide specific and substantiated information to show that the trade mark applied for has inherent inherent distinctive character’ and thus shifting from Friis the burden of proving the invalidity of the contested mark.

For all the reasons above, the Appellant requests that the Court set aside the judgment under appeal, in so far as it partially upheld the decision of the First Board of Appeal of the Office for Harmonization in the Internal Market (Trade Marks and Designs) (OHIM) of February 24, 2010, in Case R 1590/2008-1 that had declared the contested mark invalid for the goods it covers in classes 9, 14 and 18.

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(1)  OJ L 11, p. 1

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| 28.4.2012 | EN | Official Journal of the European Union | C 126/9 |
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Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 24 February 2012 — Wim J. J. Slot v 3 H Camping-Center Heinsberg GmbH

(Case C-98/12)

2012/C 126/17

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Appellant: Wim J. J. Slot

Respondent: 3 H Camping-Center Heinsberg GmbH

Questions referred

| 1. | Is there a matter relating to a consumer contract within the meaning of Article 15(1)(c) of Regulation No 44/2001 (1) if a trader has, by the design of his website, directed his activities to another Member State and a consumer domiciled in the territory of that Member State, on the basis of the information on the trader’s website, travels to where his business is located and the parties sign the contract there,
  or
  does Article 15(1)(c) of Regulation No 44/2001 presuppose in that case that a distance contract is concluded? |
| --- | --- |

1.

Is there a matter relating to a consumer contract within the meaning of Article 15(1)(c) of Regulation No 44/2001 (1) if a trader has, by the design of his website, directed his activities to another Member State and a consumer domiciled in the territory of that Member State, on the basis of the information on the trader’s website, travels to where his business is located and the parties sign the contract there,

or

does Article 15(1)(c) of Regulation No 44/2001 presuppose in that case that a distance contract is concluded?

| 2. | If Article 15(1)(c) of Regulation No 44/2001 is to be interpreted as meaning that in that case the contract must in principle be a distance contract:
  Does the consumer jurisdiction under Article 15(1)(c) in conjunction with Article 16(2) of Regulation No 44/2001 apply if the parties to the contract enter into a distance pre-contractual commitment which subsequently flows directly into the conclusion of the contract? |
| --- | --- |

2.

If Article 15(1)(c) of Regulation No 44/2001 is to be interpreted as meaning that in that case the contract must in principle be a distance contract:

Does the consumer jurisdiction under Article 15(1)(c) in conjunction with Article 16(2) of Regulation No 44/2001 apply if the parties to the contract enter into a distance pre-contractual commitment which subsequently flows directly into the conclusion of the contract?

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

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| 28.4.2012 | EN | Official Journal of the European Union | C 126/9 |
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Action brought on 7 March 2012 — European Commission v Kingdom of Spain

(Case C-127/12)

2012/C 126/18

Language of the case: Spanish

Parties

Applicant: European Commission (represented by: W. Roels and F. Jimeno Fernández, Agents)

Defendant: Kingdom of Spain

Form of order sought

The applicant claims that the Court should:

| — | declare that, by applying different tax treatment to donations and successions between beneficiaries and donees resident in Spain and those not resident in Spain, between bequeathers resident in Spain and those not resident in Spain, and between donations and similar transfers of immovable property situated within and outside of Spain, the Kingdom of Spain has failed to fulfil its obligations under Articles 21 and 63 of the Treaty on the Functioning of the European Union (TFEU) and Articles 28 and 40 of the Agreement on the European Economic Area (EEA); |
| --- | --- |

—

declare that, by applying different tax treatment to donations and successions between beneficiaries and donees resident in Spain and those not resident in Spain, between bequeathers resident in Spain and those not resident in Spain, and between donations and similar transfers of immovable property situated within and outside of Spain, the Kingdom of Spain has failed to fulfil its obligations under Articles 21 and 63 of the Treaty on the Functioning of the European Union (TFEU) and Articles 28 and 40 of the Agreement on the European Economic Area (EEA);

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

—

order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

| 1. | In Spain, the Impuesto sobre Sucesiones y Donaciones (succession and donation tax) is a national tax, the basic provisions for which are laid down in Ley 29/87 (Law 29/87) of 18 December 1987, and in the regulation adopted by Real Decreto (Royal Decree) 1629/1991 of 8 November 1991. The management and collection of the tax was granted to the Autonomous Communities, although national legislation applies in the cases laid down therein, that is, primarily in cases in which there is no personal or real connection with an Autonomous Community. |
| --- | --- |

1.

In Spain, the Impuesto sobre Sucesiones y Donaciones (succession and donation tax) is a national tax, the basic provisions for which are laid down in Ley 29/87 (Law 29/87) of 18 December 1987, and in the regulation adopted by Real Decreto (Royal Decree) 1629/1991 of 8 November 1991. The management and collection of the tax was granted to the Autonomous Communities, although national legislation applies in the cases laid down therein, that is, primarily in cases in which there is no personal or real connection with an Autonomous Community.

| 2. | In all of the Autonomous Communities which have adopted succession and donation tax legislation, the tax burden born by the tax payer is considerably lower than that imposed under national legislation, which leads to a difference in tax treatment of donations and successions between beneficiaries and donees resident in Spain and those not resident in Spain, between bequeathers resident in Spain and those not resident in Spain, and between donations and similar transfers of immovable property situated within and outside of Spain. |
| --- | --- |

2.

In all of the Autonomous Communities which have adopted succession and donation tax legislation, the tax burden born by the tax payer is considerably lower than that imposed under national legislation, which leads to a difference in tax treatment of donations and successions between beneficiaries and donees resident in Spain and those not resident in Spain, between bequeathers resident in Spain and those not resident in Spain, and between donations and similar transfers of immovable property situated within and outside of Spain.

| 3. | The Spanish national legislation at issue infringes Articles 21 and 63 TFEU and Articles 28 and 40 EEA. |
| --- | --- |

3.

The Spanish national legislation at issue infringes Articles 21 and 63 TFEU and Articles 28 and 40 EEA.

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| 28.4.2012 | EN | Official Journal of the European Union | C 126/10 |
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Action brought on 9 March 2012 — European Commission v Republic of Poland

(Case C-135/12)

2012/C 126/19

Language of the case: Polish

Parties

Applicant: European Commission (represented by: Z. Maluskova and D. Milanowska, acting as Agents)

Defendant: Republic of Poland

Form of order sought

| — | declare that, by not adopting the laws, regulations and administrative provisions necessary to comply with Commission Directive 2009/145/EC of 26 November 2009 providing for certain derogations, for acceptance of vegetable landraces and varieties which have been traditionally grown in particular localities and regions and are threatened by genetic erosion and of vegetable varieties with no intrinsic value for commercial crop production but developed for growing under particular conditions and for marketing of seed of those landraces and varieties, (1) and in any event by not informing the Commission of such provisions, the Republic of Poland has failed to fulfil its obligations under Article 36 of that directive; |
| --- | --- |

—

declare that, by not adopting the laws, regulations and administrative provisions necessary to comply with Commission Directive 2009/145/EC of 26 November 2009 providing for certain derogations, for acceptance of vegetable landraces and varieties which have been traditionally grown in particular localities and regions and are threatened by genetic erosion and of vegetable varieties with no intrinsic value for commercial crop production but developed for growing under particular conditions and for marketing of seed of those landraces and varieties, (1) and in any event by not informing the Commission of such provisions, the Republic of Poland has failed to fulfil its obligations under Article 36 of that directive;

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

—

order the Republic of Poland to pay the costs.

Pleas in law and main arguments

The time-limit for transposition of the directive expired on 31 December 2010.

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(1)  OJ 2009 L 312, p. 44.

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| 28.4.2012 | EN | Official Journal of the European Union | C 126/10 |
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Official Journal of the European Union

C 126/10

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Order of the President of the Court of 14 February 2012 (references for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia — Sezione Terza (Italy)) — Enipower SpA (C-328/10), ENI SpA (C-329/10), Edison Trading SpA (C-330/10), E.On Produzione SpA (C-331/10), Edipower SpA (C-332/10), E.On Energy Trading SpA (C-333/10) v Autorità per l’energia elettrica e il gás (C-328/10 to C-333/10), Cassa Conguaglio per il Settore Elettrico (C-329/10) intervening parties: Terna Rete Elettrica Nazionale SpA (C-328/10, C-329/10, C-331/10 and C-332/10), Ministero dello Sviluppo Economico (C-328/10 and C-329/10), Gestore dei Servizi Elettrici SpA (C-331/10)

(Joined Cases C-328/10 to C-333/10) (1)

2012/C 126/20

Language of the case: Italian

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

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(1)  OJ C 346, 18.12.2010.

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General Court

| 28.4.2012 | EN | Official Journal of the European Union | C 126/11 |
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Judgment of the General Court of 9 March 2012 — Comité de défense de la viticulture charentaise v Commission

(Case T-192/07) (1)

(Competition - Decision rejecting a complaint - No Community interest - Scope of the complaint - Competence of the author of the act - Obligation to state reasons)

2012/C 126/21

Language of the case: French

Parties

Applicant: Comité de défense de la viticulture charentaise (Sainte-Sévère, France) (represented by: C.-E. Gudin, lawyer)

Defendant: European Commission (represented by: initially F. Arbault and V. Bottka, and subsequently by V. Bottka and L. Malferrari, acting as Agents)

Re:

Application for annulment of Commission Decision SG-Greffe (2007) D/202076 of 3 April 2007 dismissing the complaint in Case COMP/38.863/B2-MODEF in relation to infringements of the EC Treaty

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders the Comité de défense de la viticulture charentaise to bear its own costs and to pay those incurred by the European Commission. |
| --- | --- |

2.

Orders the Comité de défense de la viticulture charentaise to bear its own costs and to pay those incurred by the European Commission.

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(1)  OJ C 170, 21.7.2007.

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| 28.4.2012 | EN | Official Journal of the European Union | C 126/11 |
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Official Journal of the European Union

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Judgment of the General Court of 15 March 2012 — Cadila Healthcare v OHIM — Novartis (ZYDUS)

(Case T-288/08) (1)

(Community trade mark - Opposition proceedings - Application for the Community word mark ZYDUS - Earlier Community word mark ZIMBUS - Relative ground for refusal - Likelihood of confusion - Similarity of the goods - Similarity of the signs - Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))

2012/C 126/22

Language of the case: English

Parties

Applicant: Cadila Healthcare Ltd (Ahmedabad, India) (represented by: S. Bailey, F. Potin, and A. Juaristi, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Novartis AG (Basle, Switzerland) (represented by: N. Hebeis, lawyer)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 7 May 2008 (Case R 1092/2007-2), relating to opposition proceedings between Novartis AG and Cadila Healthcare Ltd.

Operative part of the judgment

The Court:

| 1. | Dismisses the application for a ruling that there is no need to adjudicate; |
| --- | --- |

1.

Dismisses the application for a ruling that there is no need to adjudicate;

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

2.

Dismisses the action;

| 3. | Orders Cadila Healthcare Ltd to pay the costs. |
| --- | --- |

3.

Orders Cadila Healthcare Ltd to pay the costs.

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(1)  OJ C 247, 27.9.2008.

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| 28.4.2012 | EN | Official Journal of the European Union | C 126/12 |
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C 126/12

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Judgment of the General Court of 15 March 2012 — Mustang v OHIM — Decathlon (Wavy line)

(Case T-379/08) (1)

(Community trade mark - Opposition proceedings - Application for a figurative Community mark representing a wavy line - Earlier national and international figurative trade marks representing a white wavy line on a black background - Relative ground for refusal - Likelihood of confusion - Similarity of the signs - Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))

2012/C 126/23

Language of the case: German

Parties

Applicant: Mustang — Bekleidungswerke GmbH & Co. KG (Künzelsau, Germany) (represented by: A. Klett and K. Weimer, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Decathlon SA (Villeneuve d’Ascq, France) (represented by: P. Demoly, lawyer)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 8 July 2008 (Case R 859/2007-4) concerning opposition proceedings between Decathlon SA and Mustang — Bekleidungswerke GmbH & Co. KG.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Mustang — Bekleidungswerke GmbH & Co. KG to pay the costs. |
| --- | --- |

2.

Orders Mustang — Bekleidungswerke GmbH & Co. KG to pay the costs.

---

(1)  OJ C 313, 6.12.2008.

---

| 28.4.2012 | EN | Official Journal of the European Union | C 126/12 |
| --- | --- | --- | --- |

28.4.2012

EN

Official Journal of the European Union

C 126/12

---

Judgment of the General Court (Seventh Chamber) of 15 March 2012 — Ellinika Nafpigeia v Commission

(Case T-391/08) (1)

(State aid - Shipbuilding - Aid granted by the Greek authorities to a shipyard - Decision declaring the aid incompatible with the common market and ordering its recovery - Misuse of aid)

2012/C 126/24

Language of the case: Greek

Parties

Applicant: Ellinika Nafpigeia AE (Skaramagka, Greece) (represented by: I. Drosos, K. Loukopoulos, A. Chiotellis, C. Panagoulea, P. Tzioumas, A. Balla, V. Voutsakis and X. Gkousta, lawyers)

Defendant: European Commission (represented by: C. Urraca Caviedes and M. Konstantinidis, agents)

Re:

Annulment of Article 1(2), Article 2, 3, 5 and 6, Article 8(2) and Articles 9, 11 to 16, 18 and 19 of Commission Decision 2009/610/EC of 2 July 2008 concerning State aid C 16/2004 (formerly NN 29/2004, CP 71/2002 and CP 133/2005) granted by Greece to Hellenic Shipyards SA (OJ 2009 L 225, p. 104).

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Ellinika Nafpigeia AE to bear its own costs and to pay the costs of the Commission. |
| --- | --- |

2.

Orders Ellinika Nafpigeia AE to bear its own costs and to pay the costs of the Commission.

---

(1)  OJ C 327, 20.12.2008.

---

| 28.4.2012 | EN | Official Journal of the European Union | C 126/13 |
| --- | --- | --- | --- |

28.4.2012

EN

Official Journal of the European Union

C 126/13

---

Judgment of the General Court of 9 March 2012 — Coverpla v OHIM — Heinz-Glas (Phial)

(Case T-450/08) (1)

(Community design - Invalidity proceedings - Registered Community design representing a bottle - Prior design - Ground for invalidity - Disclosure of prior design - Absence of novelty - Articles 5 and 25(1)(b) of Regulation (EC) No 6/2002)

2012/C 126/25

Language of the case: French

Parties

Applicant: Coverpla (Nice, France) (represented by: P. Greffe and M. Chaminade, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Heinz-Glas GmbH (Piesau, Germany) (represented by: M. Pütz-Poulalion, lawyer)

Re:

Action brought against the decision of the Third Board of Appeal of OHIM of 7 July 2008 (Case R 1411/2007-3), relating to invalidity proceedings between Heinz-Glas GmbH and Coverpla in respect of a Community design

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

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

2.

Orders Coverpla to pay the costs.

---

(1)  OJ C 6, 10.1.2009.

---

| 28.4.2012 | EN | Official Journal of the European Union | C 126/13 |
| --- | --- | --- | --- |

28.4.2012

EN

Official Journal of the European Union

C 126/13

---

Judgment of the General Court of 15 March 2012 — Evropaïki Dynamiki v Commission

(Case T-236/09) (1)

(Public service contracts - Tendering procedure - External service provision for development, studies and support of information systems - Rejection of a tenderer’s bids - Obligation to state reasons - Equal treatment - Transparency - Manifest error of assessment - Non-contractual liability)

2012/C 126/26

Language of the case: English

Parties

Applicant: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (Athens, Greece) (represented by N. Korogiannakis and M. Dermitzakis, lawyers)

Defendant: European Commission (represented initially by N. Bambara and subsequently by E. Manhaeve, Agents, and by P. Wytinck and B. Hoorelbeke, lawyers)

Re:

APPLICATION, first, for annulment of the Commission’s decisions of 27 March 2009 rejecting the applicant’s tenders for, respectively, lot 1, ‘On-site development expertise (intra muros)’, and lot 2, ‘Off-site development (extra muros)’, in Call for Tenders RTD-R4-2007-001 on external service provision for development, studies and support of information systems for the Commission (OJ 2007 S 238), and the decisions to award the lots to other tenderers and, second, for damages.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to bear its own costs and those incurred by the European Commission. |
| --- | --- |

2.

Orders Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to bear its own costs and those incurred by the European Commission.

---

(1)  OJ C 193, 15.8.2009.

---

| 28.4.2012 | EN | Official Journal of the European Union | C 126/14 |
| --- | --- | --- | --- |

28.4.2012

EN

Official Journal of the European Union

C 126/14

---

Judgment of the General Court of 9 March 2012 — Ella Valley Vineyards v OHIM — HFP (ELLA VALLEY VINEYARDS)

(Case T-32/10) (1)

(Community trade mark - Opposition proceedings - Application for Community figurative mark ELLA VALLEY VINEYARDS - Earlier national and Community trade marks ELLE - Relative ground for refusal - Likelihood of association - Link between the signs - Reputation - No similarity of the signs - Article 8(5) of Regulation (EC) No 207/2009))

2012/C 126/27

Language of the case: French

Parties

Applicant: Ella Valley Vineyards (Adulam) Ltd (Jerusalem, Israel) (represented by: C. de Haas and O. Vanner, 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, intervener before the General Court: Hachette Filipacchi Presse (HFP) (Levallois-Perret, France) (represented by: C. Moyou Joly, lawyer)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 11 November 2009 (Case R 1293/2008-1), relating to opposition proceedings between Hachette Filipacchi Presse (HFP) and Ella Valley Vineyards (Adulam) 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 11 November 2009 (Case R 1293/2008-1); |
| --- | --- |

1.

Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 11 November 2009 (Case R 1293/2008-1);

| 2. | Orders OHIM to bear its own costs and to pay the costs incurred by Ella Valley Vineyards (Adulam) Ltd; |
| --- | --- |

2.

Orders OHIM to bear its own costs and to pay the costs incurred by Ella Valley Vineyards (Adulam) Ltd;

| 3. | Orders Hachette Filipacchi Presse (HFP) to bear its own costs. |
| --- | --- |

3.

Orders Hachette Filipacchi Presse (HFP) to bear its own costs.

---

(1)  OJ C 80, 27.3.2010.

---

| 28.4.2012 | EN | Official Journal of the European Union | C 126/14 |
| --- | --- | --- | --- |

28.4.2012

EN

Official Journal of the European Union

C 126/14

---

Judgment of the General Court of 9 March 2012 — Colas v OHIM — García-Teresa Gárate and Bouffard Vicente (BASE-SEAL)

(Case T-172/10) (1)

(Community trade mark - Opposition proceedings - Application for the Community figurative mark BASE-SEAL - Earlier national figurative marks representing a diamond shape - Earlier national and international figurative marks COLAS - Relative ground for refusal - Similarity of the signs - Article 8(1)(b) of Regulation (EC) No 207/2009)

2012/C 126/28

Language of the case: French

Parties

Applicant: Colas (Boulogne-Billancourt, France) (represented by: E. Logeais, lawyer)

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

Other parties to the proceedings before the Board of Appeal of OHIM: Rosario García-Teresa Gárate and Carmen Bouffard Vicente (Barcelona, Spain)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 4 February 2010 (Case R 450/2009-4), relating to opposition proceedings between, on the one hand, Colas and, on the other hand, Ms Rosario García-Teresa Gárate and Ms Carmen Bouffard Vicente

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 4 February 2010 (Case R 450/2009-4) in respect of goods other than the chemicals used in science, photography, agriculture, horticulture and forestry; manures; and chemical substances for preserving foodstuffs referred to in that decision; |
| --- | --- |

1.

Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 4 February 2010 (Case R 450/2009-4) in respect of goods other than the chemicals used in science, photography, agriculture, horticulture and forestry; manures; and chemical substances for preserving foodstuffs referred to in that decision;

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

2.

Orders OHIM to pay the costs.

---

(1)  OJ C 161, 19.6.2010.

---

| 28.4.2012 | EN | Official Journal of the European Union | C 126/15 |
| --- | --- | --- | --- |

28.4.2012

EN

Official Journal of the European Union

C 126/15

---

Judgment of the General Court of 9 March 2012 — Cortés del Valle López v OHIM (¡Que buenu ye! HIJOPUTA)

(Case T-417/10) (1)

(Community trade mark - Application for Community figurative mark ¡Que buenu ye! HIJOPUTA - Absolute ground for refusal - Trade mark contrary to public policy or to accepted principles of morality - Article 7(1)(f) of Regulation (EC) No 207/2009)

2012/C 126/29

Language of the case: Spanish

Parties

Applicant: Federico Cortés del Valle López (Maliaño, Spain) (represented by: J. Calderón Chavero and T. Villate Consonni, lawyers)

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

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 18 June 2010 (Case R 175/2010-2) concerning an application for registration as a Community trade mark of the figurative sign ¡Que buenu ye! HIJOPUTA.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Mr Federico Cortés del Valle López to pay the costs. |
| --- | --- |

2.

Orders Mr Federico Cortés del Valle López to pay the costs.

---

(1)  OJ C 301, 6.11.2010.

---

| 28.4.2012 | EN | Official Journal of the European Union | C 126/15 |
| --- | --- | --- | --- |

28.4.2012

EN

Official Journal of the European Union

C 126/15

---

Judgment of the General Court of 20 March 2012 — Kurrer and Others v Commission

(Joined Cases T-441/10 P to T-443/10 P) (1)

(Appeal - Civil service - Officials - Appointment - Classification in grade - Transitional rules for classification in grade on recruitment - Article 5(4) of Annex XIII to the Staff Regulations - Principle of equal treatment)

2012/C 126/30

Language of the case: French

Parties

Appellants: Christian Kurrer (Watermael-Boitsfort, Belgium) (Case T-441/10 P); Salvatore Magazzu (Brussels, Belgium) (Case T-442/10 P); and Stefano Sotgia (Dublin, Ireland) (Case T-443/10 P) (represented by: M. Velardo, lawyer)

Other parties to the proceedings: European Commission (represented by: J. Currall, acting as Agent); and Council of the European Union (represented by: B. Driessen and M. Simm, acting as Agents)

Re:

Three appeals brought against the judgments of the European Union Civil Service Tribunal (Second Chamber) of 8 July 2010 in Case F-126/06 Magazzu v Commission (not yet published in the ECR), Case F-130/06 Sotgia v Commission (not yet published in the ECR) and Case F-139/06 Kurrer v Commission (not yet published in the ECR) and seeking to have those judgments set aside.

Operative part of the judgment

The Court:

| 1. | Dismisses the appeals; |
| --- | --- |

1.

Dismisses the appeals;

| 2. | Orders Mr Christian Kurrer, Mr Salvatore Magazzu and Mr Stefano Sotgia to bear their own costs and to pay those incurred by the European Commission in the present proceedings; |
| --- | --- |

2.

Orders Mr Christian Kurrer, Mr Salvatore Magazzu and Mr Stefano Sotgia to bear their own costs and to pay those incurred by the European Commission in the present proceedings;

| 3. | Orders the Council of the European Union to bear its own costs. |
| --- | --- |

3.

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

---

(1)  OJ C 328, 4.12.2010.

---

| 28.4.2012 | EN | Official Journal of the European Union | C 126/15 |
| --- | --- | --- | --- |

28.4.2012

EN

Official Journal of the European Union

C 126/15

---

Judgment of the General Court of 9 March 2012 — EyeSense v OHIM — Osypka Medical (ISENSE)

(Case T-207/11) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark ISENSE - Earlier national word mark EyeSense - Relative ground for refusal - Likelihood of confusion - Similarity of the signs - Article 8(1)(b) of Regulation (EC) No 207/2009)

2012/C 126/31

Language of the case: German

Parties

Applicant: EyeSense AG (Basel, Switzerland) (represented by: N. Aicher, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Osypka Medical GmbH (Berlin, Germany)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 4 February 2011 (Case R 1098/2010-4), relating to opposition proceedings between EyeSense AG and Osypka Medical GmbH.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

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

2.

Orders EyeSense AG to pay the costs.

---

(1)  OJ C 194, 2.7.2011.

---

| 28.4.2012 | EN | Official Journal of the European Union | C 126/16 |
| --- | --- | --- | --- |

28.4.2012

EN

Official Journal of the European Union

C 126/16

---

Order of the General Court of 28 February 2012 — Abdulrahim v Council and Commission

(Case T-127/09) (1)

(Common foreign and security policy - Restrictive measures directed against persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban - Regulation (EC) No 881/2002 - Removal of the interested party from the list of persons and entities concerned - Action for annulment - No need to adjudicate - Claim for damages - Causal link - None)

2012/C 126/32

Language of the case: English

Parties

Applicant: Abdulbasit Abdulrahim (London, United Kingdom) (represented by: initially J. Jones, Barrister, and M. Arani, Solicitor, and subsequently by E. Grieves, Barrister, and H. Miller, Solicitor)

Defendants: Council of the European Union (represented by: E. Finnegan and R. Szostak, acting as Agents); and European Commission (represented by: E. Paasivirta and G. Valero Jordana, acting as Agents)

Re:

Application for (i) partial annulment of Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No 467/2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan (OJ 2002 L 139, p. 9), as amended by Commission Regulation (EC) No 1330/2008 of 22 December 2008 amending for the 103rd time Regulation No 881/2002 (OJ 2008 L 345, p. 60), or of Regulation No 1330/2008; and (ii) compensation for the damage allegedly caused by those acts.

Operative part of the order

| 1. | There is no longer any need to adjudicate on the application for annulment. |
| --- | --- |

1.

There is no longer any need to adjudicate on the application for annulment.

| 2. | The claim for damages is dismissed. |
| --- | --- |

2.

The claim for damages is dismissed.

| 3. | The European Commission shall, in addition to bearing its own costs, pay those incurred by Mr Abdulbasit Abdulrahim up to 18 January 2011 in relation to the application for annulment and shall refund to the cashier of the General Court the sums advanced by way of legal aid in that regard. |
| --- | --- |

3.

The European Commission shall, in addition to bearing its own costs, pay those incurred by Mr Abdulbasit Abdulrahim up to 18 January 2011 in relation to the application for annulment and shall refund to the cashier of the General Court the sums advanced by way of legal aid in that regard.

| 4. | Mr Abdulbasit Abdulrahim shall, in addition to bearing his own costs, pay in their entirety the costs incurred by the Council of the European Union in relation to the application for annulment, together with those incurred by the Commission after 18 January 2011 in that regard, and pay in their entirety the costs incurred by both of those institutions in relation to the claim for damages. |
| --- | --- |

4.

Mr Abdulbasit Abdulrahim shall, in addition to bearing his own costs, pay in their entirety the costs incurred by the Council of the European Union in relation to the application for annulment, together with those incurred by the Commission after 18 January 2011 in that regard, and pay in their entirety the costs incurred by both of those institutions in relation to the claim for damages.

---

(1)  OJ C 167, 18.7.2009.

---

| 28.4.2012 | EN | Official Journal of the European Union | C 126/16 |
| --- | --- | --- | --- |

28.4.2012

EN

Official Journal of the European Union

C 126/16

---

Order of the General Court of 28 February 2012 — Schneider España de Informática, SA v European Commission

(Case T-153/10) (1)

(Customs union - Importation of colour television sets assembled in Turkey - Post-clearance recovery of import duties - Application for waiver of post-clearance entry in the accounts of import duties and for remission of those duties - Article 220(2)(b) and Article 239 of Regulation (EEC) No 2913/92 - Commission decision rejecting that application - Annulment by the national court of decisions taken by national authorities ordering post-clearance entry of import duties in the accounts - No need to adjudicate)

2012/C 126/33

Language of the case: English

Parties

Applicant: Schneider España de Informática, SA (Torrejón de Ardoz (Spain)) (represented by: P. De Baere and P. Muñiz, lawyers)

Defendant: European Commission (represented by: R. Lyal and L. Bouyon, acting as Agents)

Re:

Application for the annulment of Commission Decision C(2010) 22 final of 18 January 2010 finding that post-clearance entry in the accounts of import duties is justified and that remission of those duties is not justified in a particular case (Case REM 02/08),

Operative part of the order

| 1. | There is no longer any need to adjudicate on the action. |
| --- | --- |

1.

There is no longer any need to adjudicate on the action.

| 2. | Each party shall bear its own costs. |
| --- | --- |

2.

Each party shall bear its own costs.

---

(1)  OJ C 148, 5.6.2010.

---

| 28.4.2012 | EN | Official Journal of the European Union | C 126/17 |
| --- | --- | --- | --- |

28.4.2012

EN

Official Journal of the European Union

C 126/17

---

Order of the General Court of 8 March 2012 — Octapharma Pharmazeutika v EMA

(Case T-573/10) (1)

(Medicinal products for human use - Changes to a plasma master file (PMF) - Fees payable to the EMA - Act with adverse effects - Measure merely confirmatory - Manifest inadmissibility)

2012/C 126/34

Language of the case: German

Parties

Applicant: Octapharma Pharmazeutika Produktionsgesellschaft mbH (Vienna, Austria) (represented by: I. Brinker and T. Holzmüller, lawyers, and J. Schwarze, Professor)

Defendant: European Medicines Agency (EMA) (represented by: V. Salvatore, acting as Agent, and H.-G. Kamann and P. Gey, lawyers)

Re:

Application for annulment of the letter of 21 October 2010 (EMA/643425/2010) by which the European Medicines Agency (EMA) refused to repay to the applicant the sum of EUR 180 700 corresponding to the difference between, on the one hand, the sum the applicant paid to it in respect of fees for the examination of variations to the terms of a marketing authorisation for medicinal products for human use and veterinary medicinal products and, on the other hand, the sum which the applicant maintains it should have paid.

Operative part of the order

| 1. | The action is dismissed. |
| --- | --- |

1.

The action is dismissed.

| 2. | Octapharma Pharmazeutika Produktionsgesellschaft mbH shall pay the costs. |
| --- | --- |

2.

Octapharma Pharmazeutika Produktionsgesellschaft mbH shall pay the costs.

---

(1)  OJ C 55, 19.2.2011.

---

| 28.4.2012 | EN | Official Journal of the European Union | C 126/17 |
| --- | --- | --- | --- |

28.4.2012

EN

Official Journal of the European Union

C 126/17

---

Order of the General Court of 8 March 2012 — Marcuccio v Commission

(Case T-126/11 P) (1)

(Appeal - Civil service - Officials - Social security - Reimbursement of medical expenses - Act adversely affecting an official - Implied refusal - Duty to state reasons - Appeal in part manifestly unfounded and in part manifestly inadmissible)

2012/C 126/35

Language of the case: Italian

Parties

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

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

Re:

Appeal against the judgment delivered by the European Union Civil Service Tribunal (single judge) on 14 December 2010 in Case F-1/10 Marcuccio v Commission, not yet published in the ECR, seeking the annulment in part of that judgment.

Operative part of the order

| 1. | The appeal is dismissed in part as manifestly inadmissible and in part as manifestly devoid of any basis in law. |
| --- | --- |

1.

The appeal is dismissed in part as manifestly inadmissible and in part as manifestly devoid of any basis in law.

| 2. | The cross-appeal is dismissed in part as manifestly inadmissible and in part as manifestly devoid of any basis in law. |
| --- | --- |

2.

The cross-appeal is dismissed in part as manifestly inadmissible and in part as manifestly devoid of any basis in law.

| 3. | Mr Luigi Marcuccio shall bear his own costs and shall pay the costs incurred by the European Commission in the appeal. |
| --- | --- |

3.

Mr Luigi Marcuccio shall bear his own costs and shall pay the costs incurred by the European Commission in the appeal.

| 4. | Each party shall bear its own costs of the cross-appeal. |
| --- | --- |

4.

Each party shall bear its own costs of the cross-appeal.

---

(1)  OJ C 120, 16.4.2011.

---

| 28.4.2012 | EN | Official Journal of the European Union | C 126/18 |
| --- | --- | --- | --- |

28.4.2012

EN

Official Journal of the European Union

C 126/18

---

Order of the General Court of 27 February 2012 — MIP Metro v OHIM — Jacinto (My Little Bear)

(Case T-183/11) (1)

(Community trade mark - Opposition proceedings - Expiry of the earlier national mark - Action devoid of purpose - No need to adjudicate)

2012/C 126/36

Language of the case: English

Parties

Applicant: MIP Metro Group Intellectual Property GmbH & Co. KG (Düsseldorf, Germany) (represented by: J.-C. Plate and R. Kaase, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Manuel Jacinto, Lda (S. Paio de Oleiros, Portugal)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 20 January 2011 (Case R 494/2010-1), relating to opposition proceedings between Manuel Jacinto, Lda, and MIP Metro Group Intellectual Property GmbH & Co. KG.

Operative part of the order

| 1. | There is no longer any need to adjudicate on the action. |
| --- | --- |

1.

There is no longer any need to adjudicate on the action.

| 2. | Each party shall bear its own costs. |
| --- | --- |

2.

Each party shall bear its own costs.

---

(1)  OJ C 145, 14.5.2011.

---

| 28.4.2012 | EN | Official Journal of the European Union | C 126/18 |
| --- | --- | --- | --- |

28.4.2012

EN

Official Journal of the European Union

C 126/18

---

Action brought on 28 September 2011 — Hamas v Council

(Case T-531/11)

2012/C 126/37

Language of the case: French

Parties

Applicant: Hamas (represented by: L. Glock, lawyer)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

| — | annul Council Decision 2011/430/CFSP of 18 July 2011 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism, in so far as that decision concerns Hamas (including Hamas-Izz-al-Din-al-Quassem); |
| --- | --- |

—

annul Council Decision 2011/430/CFSP of 18 July 2011 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism, in so far as that decision concerns Hamas (including Hamas-Izz-al-Din-al-Quassem);

| — | annul Council Implementing Regulation (EU) No 687/2011 of 18 July 2011 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism, and repealing Implementing Regulations (EU) No 610/2010 and (EU) No 83/2011, in so far as that regulation concerns Hamas (including Hamas-Izz-al-Din-al-Quassem); |
| --- | --- |

—

annul Council Implementing Regulation (EU) No 687/2011 of 18 July 2011 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism, and repealing Implementing Regulations (EU) No 610/2010 and (EU) No 83/2011, in so far as that regulation concerns Hamas (including Hamas-Izz-al-Din-al-Quassem);

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

—

order the Council to pay all the costs.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging infringement of Article 1(4) of Common Position 2001/931/CFSP (1) concerning the taking of a decision by a competent authority, in so far as that authority:






  — | should be a judicial authority and not an administrative authority; |
| --- | --- | --- |

1.

First plea in law, alleging infringement of Article 1(4) of Common Position 2001/931/CFSP (1) concerning the taking of a decision by a competent authority, in so far as that authority:

—

should be a judicial authority and not an administrative authority;

| — | should be able to rely upon the principle of cooperation in good faith; |
| --- | --- |

—

should be able to rely upon the principle of cooperation in good faith;

| — | cannot be the Government of the United States because of the special features of the rules governing listing in the United States; |
| --- | --- |

—

cannot be the Government of the United States because of the special features of the rules governing listing in the United States;

| — | cannot be an authority which does not respect the procedural rights of the persons concerned. |
| --- | --- |

—

cannot be an authority which does not respect the procedural rights of the persons concerned.

The applicant further claims that the Council does not produce any evidence showing that, in this case, the national decisions concerned are based on serious evidence or clues.

| 2. | Second plea in law, alleging an error in respect of the accuracy of the facts, since the Council failed to prove the facts that it relies on autonomously. The applicant claims that the inaccuracies observed in its application confirm the error in respect of the accuracy of the facts. |
| --- | --- |

2.

Second plea in law, alleging an error in respect of the accuracy of the facts, since the Council failed to prove the facts that it relies on autonomously. The applicant claims that the inaccuracies observed in its application confirm the error in respect of the accuracy of the facts.

| 3. | Third plea in law, alleging an error of assessment as regards the terrorist nature of the applicant, since the classification proposed by the Council is not consistent with the criteria laid down in Common Position 2001/931/CFSP. The applicant submits that the criteria used by the Council are based on an incorrect interpretation of the term ‘terrorism’ which is incompatible with international substantive law. |
| --- | --- |

3.

Third plea in law, alleging an error of assessment as regards the terrorist nature of the applicant, since the classification proposed by the Council is not consistent with the criteria laid down in Common Position 2001/931/CFSP. The applicant submits that the criteria used by the Council are based on an incorrect interpretation of the term ‘terrorism’ which is incompatible with international substantive law.

| 4. | Fourth plea in law, alleging that insufficient consideration was taken of the evolution of the situation over time, since the Council did not in fact carry out the review provided for in Article 1(6) of Common Position 2001/931/CFSP. |
| --- | --- |

4.

Fourth plea in law, alleging that insufficient consideration was taken of the evolution of the situation over time, since the Council did not in fact carry out the review provided for in Article 1(6) of Common Position 2001/931/CFSP.

| 5. | Fifth plea, alleging infringement of the principle of non-interference. |
| --- | --- |

5.

Fifth plea, alleging infringement of the principle of non-interference.

| 6. | Sixth plea, alleging infringement of the obligation to state reasons, since the statement of reasons sent to the applicant does not contain any details on the serious and credible evidence and clues used against the applicant. |
| --- | --- |

6.

Sixth plea, alleging infringement of the obligation to state reasons, since the statement of reasons sent to the applicant does not contain any details on the serious and credible evidence and clues used against the applicant.

| 7. | Seventh plea in law, alleging infringement of the rights of the defence and the right to effective judicial protection. The applicant submits that those principles were infringed:






  — | during the national phase of the procedure, whilst the Council ought to have carried out a review in this connection, and |
| --- | --- | --- |

7.

Seventh plea in law, alleging infringement of the rights of the defence and the right to effective judicial protection. The applicant submits that those principles were infringed:

—

during the national phase of the procedure, whilst the Council ought to have carried out a review in this connection, and

| — | during the European phase of the procedure, owing to the insufficient nature of the evidence supplied by the Council to the applicant. |
| --- | --- |

—

during the European phase of the procedure, owing to the insufficient nature of the evidence supplied by the Council to the applicant.

| 8. | Eighth plea in law, alleging infringement of the right to property, since an illegal fund-freezing measure cannot be regarded as a justified interference with the right to property. |
| --- | --- |

8.

Eighth plea in law, alleging infringement of the right to property, since an illegal fund-freezing measure cannot be regarded as a justified interference with the right to property.

---

(1)  Council Common Position 2001/931/CFSP of 27 December 2001 on the application of specific measures to combat terrorism (OJ 2001 L 344, p. 93).

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| 28.4.2012 | EN | Official Journal of the European Union | C 126/19 |
| --- | --- | --- | --- |

28.4.2012

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Official Journal of the European Union

C 126/19

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Action brought on 31 January 2012 — Uspaskich v Parliament

(Case T-84/12)

2012/C 126/38

Language of the case: Lithuanian

Parties

Applicant: Viktor Uspaskich (Kėdainiai, Lithuania) (represented by: Aivaras Raišutis, lawyer)

Defendant: European Parliament

Form of order sought

The applicant claims that the Court should:

| — | annul Decision No P7_TA(2011)0541 of the European Parlimanent of 1 December 2011 concerning a request for defence of the applicant’s immunity; |
| --- | --- |

—

annul Decision No P7_TA(2011)0541 of the European Parlimanent of 1 December 2011 concerning a request for defence of the applicant’s immunity;

| — | grant the applicant’s request of 11 April 2011 for renewal of consideration of the Principal State Prosecutor’s request that immunity be waived; |
| --- | --- |

—

grant the applicant’s request of 11 April 2011 for renewal of consideration of the Principal State Prosecutor’s request that immunity be waived;

| — | protect the applicant’s immunity; |
| --- | --- |

—

protect the applicant’s immunity;

| — | award the applicant EUR 10 000 in damages; |
| --- | --- |

—

award the applicant EUR 10 000 in damages;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

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

The first plea is connected with infringement of the right to reconsideration of an earlier decision when new facts giving rise to a presumption of fumus persecutionis have come to light.

The second plea is connected with infringement of the right to impartial consideration of the request, the same person having been appointed rapporteur in the second case concerning defence of immunity.

The third plea is connected with infringement of rights of the defence and the right to have one’s affairs handled fairly.

The fourth plea is connected with infringement of subparagraph (a) of the first paragraph of Article 9 of the Protocol on the Privileges and Immunities of the European Union, it being argued that the European Parliament adopted the contested decision on an incorrect legal basis and infringed subparagraph (a) of the first paragraph of Article 9 of that protocol because it relied on a manifestly incorrect interpretation of the first and second paragraphs of Article 62 of the Lithuanian Constitution.

The fifth plea is connected with a manifestly incorrect assessment of fumus persecutionis. In the applicant’s submission, the European Parliament made an incorrect assessment as regards the binding nature of its previous decisions concerning immunity and as regards the concept of fumus, and it refused to consider the applicant’s arguments concerning fumus persecutionis on the basis of which he had to be recognised as a victim of political persecution.

---

| 28.4.2012 | EN | Official Journal of the European Union | C 126/19 |
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28.4.2012

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Official Journal of the European Union

C 126/19

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Action brought on 17 February 2012 — Repsol YPF v OHIM — Ajuntament de Roses (R)

(Case T-89/12)

2012/C 126/39

Language in which the application was lodged: Spanish

Parties

Applicant: Repsol YPF, SA (Madrid, Spain) (represented by: J.B. Devaureix)

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

Other party to the proceedings before the Board of Appeal: Ajuntament de Roses, Roses (Girona), Spain

Form of order sought

The applicant claims that the General Court should:

| — | declare the action admissible, together with all of the relevant documents and copies; |
| --- | --- |

—

declare the action admissible, together with all of the relevant documents and copies;

| — | declare the proposed evidence admissible; |
| --- | --- |

—

declare the proposed evidence admissible;

| — | accept that evidence, and annul and declare inapplicable the decision of the Second Board of Appeal of OHIM of 5 December 2011 and, consequently, allow the registration of Community trade mark No 7 440 407‘R’ for the goods in Class 25 in respect of which registration was originally sought, and those in Class 35 in respect of which registration has been refused; |
| --- | --- |

—

accept that evidence, and annul and declare inapplicable the decision of the Second Board of Appeal of OHIM of 5 December 2011 and, consequently, allow the registration of Community trade mark No 7 440 407‘R’ for the goods in Class 25 in respect of which registration was originally sought, and those in Class 35 in respect of which registration has been refused;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant.

Community trade mark concerned: figurative mark ‘R’ for goods and services in Classes 25, 35 and 41 (application No 7440407).

Proprietor of the mark or sign cited in the opposition proceedings: Ajuntament de Roses.

Mark or sign cited in opposition: Spanish figurative mark No 2593913 for goods and services in Classes 6, 9, 16, 25 and 35.

Decision of the Opposition Division: opposition upheld for some of the goods and services against which it was brought, in Classes 25 and 35, and application rejected in respect of those goods.

Decision of the Board of Appeal: action dismissed.

Pleas in law: Erroneous application of Article 8(1)(b) of Regulation No 207/2009 since there is no likelihood of confusion between the conflicting signs.

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| 28.4.2012 | EN | Official Journal of the European Union | C 126/20 |
| --- | --- | --- | --- |

28.4.2012

EN

Official Journal of the European Union

C 126/20

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Action brought on 23 February 2012 — Flying Holding and Others v Commission

(Case T-91/12)

2012/C 126/40

Language of the case: French

Parties

Applicants: Flying Holding NV (Antwerpen-Wilrijk, Belgium); Flying Group Lux SA (Luxembourg, Luxembourg); and Flying Service NV (Antwerpen-Deurne, Belgium) (represented by: C. Doutrelepont and V. Chapoulaud, lawyers)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

| — | annul the decisions of the European Commission of 15 December 2011 and 17 January 2012; |
| --- | --- |

—

annul the decisions of the European Commission of 15 December 2011 and 17 January 2012;

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

—

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

Pleas in law and main arguments

By this action, the applicants seek the annulment of the Commission’s decisions rejecting their application to participate in a restricted invitation-to-tender procedure concerning the provision of non-scheduled passenger transport services by air and chartered air-taxi service. (1)

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

| 1. | First plea in law, alleging failure to state or failure sufficiently to state reasons, in so far as, in its second decision of 17 January 2012, the Commission failed either to examine or respond to the evidence sent to it by the applicants after the decision of 15 December 2011. |
| --- | --- |

1.

First plea in law, alleging failure to state or failure sufficiently to state reasons, in so far as, in its second decision of 17 January 2012, the Commission failed either to examine or respond to the evidence sent to it by the applicants after the decision of 15 December 2011.

| 2. | Second plea in law, alleging infringement of the rights of the defence, in so far as the Commission relied on information that it obtained from the Luxembourg authorities although that information had not been communicated to the applicants before the decision of 15 December 2011 was adopted. |
| --- | --- |

2.

Second plea in law, alleging infringement of the rights of the defence, in so far as the Commission relied on information that it obtained from the Luxembourg authorities although that information had not been communicated to the applicants before the decision of 15 December 2011 was adopted.

| 3. | Third plea in law, alleging infringement of the principle of sound administration, since, in the first decision, the Commission used documents without seeking the applicants’ point of view on them and, by the second decision, upheld the first decision without responding to the new evidence provided by the applicants after the first decision. |
| --- | --- |

3.

Third plea in law, alleging infringement of the principle of sound administration, since, in the first decision, the Commission used documents without seeking the applicants’ point of view on them and, by the second decision, upheld the first decision without responding to the new evidence provided by the applicants after the first decision.

| 4. | Fourth plea in law, alleging infringement of the principle of proportionality, in so far as the Commission failed to adopt the least restrictive measure for the applicants by preventing them from participating in the restricted procedure for the award of a framework contract on the ground that information provided in relation to the Luxembourg company Flying Group was not accurate, sincere and complete, even though relevant information with a direct connection with the object of the contract was provided in due time. |
| --- | --- |

4.

Fourth plea in law, alleging infringement of the principle of proportionality, in so far as the Commission failed to adopt the least restrictive measure for the applicants by preventing them from participating in the restricted procedure for the award of a framework contract on the ground that information provided in relation to the Luxembourg company Flying Group was not accurate, sincere and complete, even though relevant information with a direct connection with the object of the contract was provided in due time.

| 5. | Fifth plea in law, alleging infringement of Article 89 of the Financial Regulation (2) and Article 135 of the Regulation implementing the Financial Regulation, (3) in so far as the European Commission required the applicants to provide it with information about their Luxembourg company with no direct connection with the object of the contract, which relates only to air transport departing from Brussels. |
| --- | --- |

5.

Fifth plea in law, alleging infringement of Article 89 of the Financial Regulation (2) and Article 135 of the Regulation implementing the Financial Regulation, (3) in so far as the European Commission required the applicants to provide it with information about their Luxembourg company with no direct connection with the object of the contract, which relates only to air transport departing from Brussels.

---

(1)  OJ 2011/S 192-312059.

(2)  Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1).

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

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| 28.4.2012 | EN | Official Journal of the European Union | C 126/21 |
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28.4.2012

EN

Official Journal of the European Union

C 126/21

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Action brought on 23 February 2012 — Gas v OHIM — Grotto (GAS)

(Case T-92/12)

2012/C 126/41

Language in which the application was lodged: French

Parties

Applicant: André Pierre Gas (Marseille, France) (represented by: L. Levy, lawyer)

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

Other party to the proceedings before the Board of Appeal: Grotto Spa (Chiuppano, Italy)

Form of order sought

| — | Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 17 November 2011 in Case R 600/2009-1 in its entirety and refer the case back to OHIM to be reconsidered in the light of the decision to be made; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 17 November 2011 in Case R 600/2009-1 in its entirety and refer the case back to OHIM to be reconsidered in the light of the decision to be made;

| — | Order the proprietor of the disputed Community trade mark to pay all the future costs of these proceedings and to reimburse the applicant for the costs of appeal incurred by him to date. |
| --- | --- |

—

Order the proprietor of the disputed Community trade mark to pay all the future costs of these proceedings and to reimburse the applicant for the costs of appeal incurred by him to date.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: Word mark ‘GAS’ for goods in Classes 9, 18 and 25 — registered Community trade mark No 882548.

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

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

Grounds for the application for a declaration of invalidity: The grounds put forward for the application for the declaration of invalidity are based, on the one hand, on the application of Article 53(1)(a) and (c), Article 8(1)(b), Article 53(2) and Article 8(1) of Regulation No 207/2009 and, on the other, on French registrations No 1594704 and No 1627459 of figurative [marks] ‘-GAS- BIJOUX’ and ‘BIJOUX –GAS-’ for goods in Classes 14 and 25.

Decision of the Cancellation Division: Annulment of the Community trade mark.

Decision of the Board of Appeal: Annulment of the decision of the Cancellation Division and dismissal of the application for annulment.

Pleas in law:

| | Infringement of Article 56(3) of Regulation No 40/94 (now Article 57(3) [of Regulation No 207/2009]) and of Rule 22(3) and (4) of Regulation No 2868/95; infringement of Article 15(1) and (2) of Regulation No 40/94 and of Article L714(5)(b) of the French Intellectual Property Code; infringement of Article 73 of Regulation No 40/94 (now Article 75 [of Regulation No 207/2009]), in that the Board of Appeal committed a number of errors in law and of assessment as regards the evidence of genuine use of the earlier mark under Class 25. |
| --- | --- |

Infringement of Article 56(3) of Regulation No 40/94 (now Article 57(3) [of Regulation No 207/2009]) and of Rule 22(3) and (4) of Regulation No 2868/95; infringement of Article 15(1) and (2) of Regulation No 40/94 and of Article L714(5)(b) of the French Intellectual Property Code; infringement of Article 73 of Regulation No 40/94 (now Article 75 [of Regulation No 207/2009]), in that the Board of Appeal committed a number of errors in law and of assessment as regards the evidence of genuine use of the earlier mark under Class 25.

| | Incorrect application of Article 52(1)(a) and Article 8(1)(b) of Regulation No 40/94 and infringement of Article 53 of Regulation No 40/94 and [the following] provisions of French law: Article 2262 of the Civil Code and Article L714(3) of the French Intellectual Property Code, in that the assessment by the Board of Appeal of the likelihood of confusion is incorrect. |
| --- | --- |

Incorrect application of Article 52(1)(a) and Article 8(1)(b) of Regulation No 40/94 and infringement of Article 53 of Regulation No 40/94 and [the following] provisions of French law: Article 2262 of the Civil Code and Article L714(3) of the French Intellectual Property Code, in that the assessment by the Board of Appeal of the likelihood of confusion is incorrect.

| | Infringement of Article 62(1) of Regulation No 40/94, in that the Board of Appeal was not entitled to limit its examination to only the prior right existing under mark No 1594704, after having decided to exercise the powers of the Cancellation Division, nor to refer the case back to the Cancellation Division to rule on the other rights relied on, which had already been examined. |
| --- | --- |

Infringement of Article 62(1) of Regulation No 40/94, in that the Board of Appeal was not entitled to limit its examination to only the prior right existing under mark No 1594704, after having decided to exercise the powers of the Cancellation Division, nor to refer the case back to the Cancellation Division to rule on the other rights relied on, which had already been examined.

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| 28.4.2012 | EN | Official Journal of the European Union | C 126/21 |
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28.4.2012

EN

Official Journal of the European Union

C 126/21

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Action brought on 23 February 2012 — Gas v OHIM — Grotto (BLUE JEANS GAS)

(Case T-93/12)

2012/C 126/42

Language in which the application was lodged: French

Parties

Applicant: André Pierre Gas (Marseille, France) (represented by: L. Levy, lawyer)

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

Other party to the proceedings before the Board of Appeal: Grotto SpA (Chiuppano, Italy)

Form of order sought

| — | Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 7 December 2011 in Case R 620/2009-1 in its entirety and refer the case back to OHIM to be reconsidered in the light of the decision to be made; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 7 December 2011 in Case R 620/2009-1 in its entirety and refer the case back to OHIM to be reconsidered in the light of the decision to be made;

| — | Order the proprietor of the disputed Community trade mark to pay all the future costs of these proceedings and to reimburse the applicant for the costs of appeal incurred by him to date. |
| --- | --- |

—

Order the proprietor of the disputed Community trade mark to pay all the future costs of these proceedings and to reimburse the applicant for the costs of appeal incurred by him to date.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: Figurative mark including the word elements ‘BLUE JEANS GAS’ for goods in Classes 3, 9, 14 and 25 — Registered Community trade mark No 205050.

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

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

Grounds for the application for a declaration of invalidity: The grounds put forward for the application for the declaration of invalidity are based, on the one hand, on the application of Article 53(1)(a) and (c), Article 8(1)(b), Article 53(2) and Article 8(1) of Regulation No 207/2009 and, on the other, on French registrations No 1594704 and No 1627459 of figurative [marks] ‘-GAS- BIJOUX’ and ‘BIJOUX –GAS-’ for goods in Classes 14 and 25.

Decision of the Cancellation Division: Annulment in part of the Community trade mark.

Decision of the Board of Appeal: Annulment in part of the decision of the Cancellation Division, annulment in part of the Community trade mark and dismissal of the application for annulment.

Pleas in law:

| | Infringement of Article 56(3) of Regulation No 40/94 (now Article 57(3) [of Regulation No 207/2009]) and of Rule 22(3) and (4) of Regulation No 2868/95; infringement of Article 15(1) and (2) of Regulation No 40/94 and of Article L714(5)(b) of the French Intellectual Property Code; infringement of Article 73 of Regulation No 40/94 (now Article 75 [of Regulation No 207/2009]), in that the Board of Appeal committed a number of errors in law and of assessment as regards the evidence of genuine use of the earlier mark under Class 25. |
| --- | --- |

Infringement of Article 56(3) of Regulation No 40/94 (now Article 57(3) [of Regulation No 207/2009]) and of Rule 22(3) and (4) of Regulation No 2868/95; infringement of Article 15(1) and (2) of Regulation No 40/94 and of Article L714(5)(b) of the French Intellectual Property Code; infringement of Article 73 of Regulation No 40/94 (now Article 75 [of Regulation No 207/2009]), in that the Board of Appeal committed a number of errors in law and of assessment as regards the evidence of genuine use of the earlier mark under Class 25.

| | Incorrect application of Article 52(1)(a) and Article 8(1)(b) of Regulation No 40/94 and infringement of Article 53 of Regulation No 40/94 and [the following] provisions of French law: Article 2262 of the Civil Code and Article L714(3) of the French Intellectual Property Code, in that the assessment by the Board of Appeal of the likelihood of confusion is incorrect. |
| --- | --- |

Incorrect application of Article 52(1)(a) and Article 8(1)(b) of Regulation No 40/94 and infringement of Article 53 of Regulation No 40/94 and [the following] provisions of French law: Article 2262 of the Civil Code and Article L714(3) of the French Intellectual Property Code, in that the assessment by the Board of Appeal of the likelihood of confusion is incorrect.

| | Infringement of Article 74 of Regulation No 40/94, in that the Board of Appeal ruled ultra petita by ruling on the comparison of the goods in Class 14, which was not part of the subject-matter of the appeal brought before it. |
| --- | --- |

Infringement of Article 74 of Regulation No 40/94, in that the Board of Appeal ruled ultra petita by ruling on the comparison of the goods in Class 14, which was not part of the subject-matter of the appeal brought before it.

| | Infringement of Article 62(1) of Regulation No 40/94, in that the Board of Appeal was not entitled to limit its examination to only the prior right existing under mark No 1594704, after having decided to exercise the powers of the Cancellation Division, nor to refer the case back to the Cancellation Division to rule on the other rights relied on, which had already been examined. |
| --- | --- |

Infringement of Article 62(1) of Regulation No 40/94, in that the Board of Appeal was not entitled to limit its examination to only the prior right existing under mark No 1594704, after having decided to exercise the powers of the Cancellation Division, nor to refer the case back to the Cancellation Division to rule on the other rights relied on, which had already been examined.

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| 28.4.2012 | EN | Official Journal of the European Union | C 126/22 |
| --- | --- | --- | --- |

28.4.2012

EN

Official Journal of the European Union

C 126/22

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Appeal brought on 28 February 2012 by Willem Stols against the judgment of the Civil Service Tribunal of 13 December 2011 in Case F-51/08 RENV Stols v Council

(Case T-95/12 P)

2012/C 126/43

Language of the case: French

Parties

Appellant: Willem Stols (Halsteren, Netherlands) (represented by S. Rodrigues, A. Blot and C. Bernard-Glanz, lawyers)

Other party to the proceedings: Council of the European Union

Form of order sought by the appellant

| — | Declare the present appeal admissible; |
| --- | --- |

—

Declare the present appeal admissible;

| — | Set aside the judgment of 13 December 2011 of the First Chamber of the Civil Service Tribunal of the European Union in Case F-51/08 RENV; |
| --- | --- |

—

Set aside the judgment of 13 December 2011 of the First Chamber of the Civil Service Tribunal of the European Union in Case F-51/08 RENV;

| — | Grant the form of order submitted by him at first instance; |
| --- | --- |

—

Grant the form of order submitted by him at first instance;

| — | Order the Council to pay the costs of both sets of proceedings. |
| --- | --- |

—

Order the Council to pay the costs of both sets of proceedings.

Pleas in law and main arguments

In support of the appeal, the appellant relies on the following pleas in law.

| 1. | First plea in law, alleging that the Civil Service Tribunal, when it examined the first plea in law submitted at first instance claiming that Article 45(1) of the Staff Regulations of Officials of the European Union had been infringed and claiming a manifest error of assessment, infringed European Union law by:






  — | using a criterion which was not provided for under Article 45(1) of the Staff Regulations (see paragraphs 46 and 47 of the judgment under appeal); |
| --- | --- | --- |

1.

First plea in law, alleging that the Civil Service Tribunal, when it examined the first plea in law submitted at first instance claiming that Article 45(1) of the Staff Regulations of Officials of the European Union had been infringed and claiming a manifest error of assessment, infringed European Union law by:

—

using a criterion which was not provided for under Article 45(1) of the Staff Regulations (see paragraphs 46 and 47 of the judgment under appeal);

| — | providing inadequate reasoning for its judgment and calling into question the classification into two function groups provided for in Article 5 of the Staff Regulations (see paragraphs 52 to 54 of the judgment under appeal); and |
| --- | --- |

—

providing inadequate reasoning for its judgment and calling into question the classification into two function groups provided for in Article 5 of the Staff Regulations (see paragraphs 52 to 54 of the judgment under appeal); and

| — | providing reasoning which contained substantive inaccuracies and by misreading the language criterion referred to in Article 45(1) of the Staff Regulations (see paragraphs 50 and 51 of the judgment under appeal) |
| --- | --- |

—

providing reasoning which contained substantive inaccuracies and by misreading the language criterion referred to in Article 45(1) of the Staff Regulations (see paragraphs 50 and 51 of the judgment under appeal)

| 2. | Second plea in law, alleging that the Civil Service Tribunal, when examining the second plea in law claiming infringement of Article 59(1) of the Staff Regulations and failure to observe the non-discrimination principle, reached a conclusion lacking all legal foundation, in so far as it rejected the second plea as ineffective because the first plea had not been established, whereas it made several errors of law in concluding that the first plea in law was not established (paragraphs 59 and 60 of the judgment under appeal). |
| --- | --- |

2.

Second plea in law, alleging that the Civil Service Tribunal, when examining the second plea in law claiming infringement of Article 59(1) of the Staff Regulations and failure to observe the non-discrimination principle, reached a conclusion lacking all legal foundation, in so far as it rejected the second plea as ineffective because the first plea had not been established, whereas it made several errors of law in concluding that the first plea in law was not established (paragraphs 59 and 60 of the judgment under appeal).

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| 28.4.2012 | EN | Official Journal of the European Union | C 126/23 |
| --- | --- | --- | --- |

28.4.2012

EN

Official Journal of the European Union

C 126/23

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Action brought on 7 March 2012 — Spain v Commission

(Case T-109/12)

2012/C 126/44

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by: A. Rubio González)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | Annul Commission Decision C(2011) 9992 of 22 December 2011 reducing the assistance from the Cohesion Fund granted to the following projects: ‘Measures to be undertaken to implement the 2nd phase of the master plan for urban solid waste management in the Autonomous Community of Extremadura’ (CCI No 2000.ES.16.C.PE.020); Outfall: ‘Middle basin, Getafe and lower basin of the Arroyo del Culebro (Tagus basin-Wastewater drainage)’ (CCI No 2002.ES.16.C.PE.002); ‘Re-use of treated water for the irrigation of green spaces in Santa Cruz de Tenerife’ (CCI No 2003.ES.16.C.PE.003) and ‘Technical assistance for the study and drafting of the project to supply water to the Mancomunidad de Algodor and to increase that supply’ (CCI No 2002.ES.16.C.PE.040); |
| --- | --- |

—

Annul Commission Decision C(2011) 9992 of 22 December 2011 reducing the assistance from the Cohesion Fund granted to the following projects: ‘Measures to be undertaken to implement the 2nd phase of the master plan for urban solid waste management in the Autonomous Community of Extremadura’ (CCI No 2000.ES.16.C.PE.020); Outfall: ‘Middle basin, Getafe and lower basin of the Arroyo del Culebro (Tagus basin-Wastewater drainage)’ (CCI No 2002.ES.16.C.PE.002); ‘Re-use of treated water for the irrigation of green spaces in Santa Cruz de Tenerife’ (CCI No 2003.ES.16.C.PE.003) and ‘Technical assistance for the study and drafting of the project to supply water to the Mancomunidad de Algodor and to increase that supply’ (CCI No 2002.ES.16.C.PE.040);

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

—

order the European Commission to pay the costs.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging infringement of Article 18(3) of Commission Regulation (EC) No 1386/2002 of 29 July 2002 laying down detailed rules for the implementation of Council Regulation (EC) No 1164/94 as regards the management and control systems for assistance granted from the Cohesion Fund and the procedure for making financial corrections, (1) since more than three months elapsed between the date of the hearing and the decision. |
| --- | --- |

1.

First plea in law, alleging infringement of Article 18(3) of Commission Regulation (EC) No 1386/2002 of 29 July 2002 laying down detailed rules for the implementation of Council Regulation (EC) No 1164/94 as regards the management and control systems for assistance granted from the Cohesion Fund and the procedure for making financial corrections, (1) since more than three months elapsed between the date of the hearing and the decision.

| 2. | Second plea in law, alleging infringement of Article H of Annex II of Council Regulation (EC) No 1164/94 of 16 May 1994 establishing a Cohesion Fund, (2) since the procedure laid down in that article was applied without the necessary verifications having been completed. |
| --- | --- |

2.

Second plea in law, alleging infringement of Article H of Annex II of Council Regulation (EC) No 1164/94 of 16 May 1994 establishing a Cohesion Fund, (2) since the procedure laid down in that article was applied without the necessary verifications having been completed.

| 3. | Third plea in law, alleging infringement of Article H of Annex II of Council Regulation (EC) No 1164/94 of 16 May 1994 establishing a Cohesion Fund, on the ground that there was a lack of verification to refute the end-of-project declarations. |
| --- | --- |

3.

Third plea in law, alleging infringement of Article H of Annex II of Council Regulation (EC) No 1164/94 of 16 May 1994 establishing a Cohesion Fund, on the ground that there was a lack of verification to refute the end-of-project declarations.

| 4. | Fourth plea in law, alleging infringement of Article H of Annex II of Council Regulation (EC) No 1164/94 of 16 May 1994 establishing a Cohesion Fund, since it has not been established that there were irregularities. |
| --- | --- |

4.

Fourth plea in law, alleging infringement of Article H of Annex II of Council Regulation (EC) No 1164/94 of 16 May 1994 establishing a Cohesion Fund, since it has not been established that there were irregularities.

| 5. | Fifth plea in law, alleging failure to observe the principle of the protection of legitimate expectations, in relation to Project CCI No 2000.ES. 16.C PE.020, since the Commission applied to that project criteria from a document (the guidelines for determining financial corrections for public procurement, presented to the Member States at the Coordination Committee of the Funds of 28 November 2007) which was not made public until some 29 months after the Spanish authorities had submitted the documents for the final balance. |
| --- | --- |

5.

Fifth plea in law, alleging failure to observe the principle of the protection of legitimate expectations, in relation to Project CCI No 2000.ES. 16.C PE.020, since the Commission applied to that project criteria from a document (the guidelines for determining financial corrections for public procurement, presented to the Member States at the Coordination Committee of the Funds of 28 November 2007) which was not made public until some 29 months after the Spanish authorities had submitted the documents for the final balance.

---

(1)  OJ 2002 L 201, p. 5.

(2)  OJ 1994 L 130 p. 1, amended by Council Regulation (EC) No 1264/1999 of 21 June 1999 (OJ 1999 L 161, p. 57).

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| 28.4.2012 | EN | Official Journal of the European Union | C 126/23 |
| --- | --- | --- | --- |

28.4.2012

EN

Official Journal of the European Union

C 126/23

---

Action brought on 27 February 2012 — Iranian Offshore Engineering & Construction v Council

(Case T-110/12)

2012/C 126/45

Language of the case: Spanish

Parties

Applicant: Iranian Offshore Engineering & Construction Co. (Tehran, Iran) (represented by: J. Viñals Camallonga, L. Barriola Urruticoechea and J. Iriarte Ángel, lawyers)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

| — | annul Article 1 of Council Decision 2011/783/CFSP in so far as it concerns it and remove its name from the annex thereto; |
| --- | --- |

—

annul Article 1 of Council Decision 2011/783/CFSP in so far as it concerns it and remove its name from the annex thereto;

| — | annul Article 1 of Council Implementing Regulation (EU) No 1245/2011 in so far as it concerns it and remove its name from the annex thereto; |
| --- | --- |

—

annul Article 1 of Council Implementing Regulation (EU) No 1245/2011 in so far as it concerns it and remove its name from the annex thereto;

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

—

order the Council to pay the costs.

Pleas in law and main arguments

The present proceedings have been brought against Council Decision 2011/783/CFSP of 1 December 2011 amending Decision 2010/413/CFSP concerning restrictive measures against Iran, and Council Implementing Regulation (EU) No 1245/2011 of 1 December 2011 implementing Regulation (EU) No 961/2010 on restrictive measures against Iran, in so far as the applicant's name has been added to the list of addressees of the measures laid down therein.

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

| 1. | First plea in law: failure to comply with the duty to state reasons, since the contested acts contain erroneous grounds which are unfounded in respect of the applicant. |
| --- | --- |

1.

First plea in law: failure to comply with the duty to state reasons, since the contested acts contain erroneous grounds which are unfounded in respect of the applicant.

| 2. | Second plea in law: infringement of the right to effective judicial protection in relation to the grounds on which the acts are based, since the duty to state reasons was not complied with. |
| --- | --- |

2.

Second plea in law: infringement of the right to effective judicial protection in relation to the grounds on which the acts are based, since the duty to state reasons was not complied with.

| 3. | Third plea in law: infringement of the right to property, since that right was restricted without valid justification. |
| --- | --- |

3.

Third plea in law: infringement of the right to property, since that right was restricted without valid justification.

| 4. | Fourth plea in law: infringement of the principle of equal treatment, as the applicant was treated in the same way as the undertakings which actually participated in Iran's nuclear proliferation, which unjustly relegates it to an inferior competitive position compared with the other national and foreign entities which compete with it on various markets. |
| --- | --- |

4.

Fourth plea in law: infringement of the principle of equal treatment, as the applicant was treated in the same way as the undertakings which actually participated in Iran's nuclear proliferation, which unjustly relegates it to an inferior competitive position compared with the other national and foreign entities which compete with it on various markets.

| 5. | Fifth plea in law: misuse of powers, since objective, precise and consistent evidence exists to show that, in adopting the fund-freezing measure, aims have been pursued which are different from those claimed by the Council. |
| --- | --- |

5.

Fifth plea in law: misuse of powers, since objective, precise and consistent evidence exists to show that, in adopting the fund-freezing measure, aims have been pursued which are different from those claimed by the Council.

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| 28.4.2012 | EN | Official Journal of the European Union | C 126/24 |
| --- | --- | --- | --- |

28.4.2012

EN

Official Journal of the European Union

C 126/24

---

Action brought on 7 March 2012 — Spain v Commission

(Case T-111/12)

2012/C 126/46

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by: A. Rubio González)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | Annul Commission Decision C(2011) 9990 of 22 December 2011 reducing the assistance from the Cohesion Fund granted to the following projects: ‘Management of waste by the Autonomous Community of Extremadura — 2001’ (CCI No 2001.ES.16.C.PE.043); ‘Drainage and water supply in the Douro river basin — 2001’ (CCI No 2000.ES.16.C.PE.070); ‘Management of Waste by the Autonomous Community of Valencia — 2011 — Group II’ (CCI No 2001.ES.16.C.PE.026); and ‘Waste-water disposal and treatment in Bierzo Bajo’ (CCI No. 2000.ES.16.C.PE.036); |
| --- | --- |

—

Annul Commission Decision C(2011) 9990 of 22 December 2011 reducing the assistance from the Cohesion Fund granted to the following projects: ‘Management of waste by the Autonomous Community of Extremadura — 2001’ (CCI No 2001.ES.16.C.PE.043); ‘Drainage and water supply in the Douro river basin — 2001’ (CCI No 2000.ES.16.C.PE.070); ‘Management of Waste by the Autonomous Community of Valencia — 2011 — Group II’ (CCI No 2001.ES.16.C.PE.026); and ‘Waste-water disposal and treatment in Bierzo Bajo’ (CCI No. 2000.ES.16.C.PE.036);

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

—

order the European Commission to pay the costs.

Pleas in law and main arguments

In support of its action, the applicant relies on pleas in law essentially identical to those already raised in Case T-109/12 Spain v Commission.

The applicant alleges, in particular, a failure to state reasons with regard to the application of the principle of proportionality under Article H.2 of Annex II of Council Regulation (EC) No 1164/94 of 16 May 1994 establishing a Cohesion Fund (OJ 1994 L 130 p. 1), since the Commission simply referred to the document ‘Guidelines for determining financial corrections to [be made to expenditure cofinanced by the structural funds or the cohesion fund for non-compliance with the rules on] public procurement’ — presented to the Member States at the Coordination Committee of the Funds of 28 November 2007 — even though that document does not analyse the reasons which could justify setting the flat-rate correction percentages set out therein.

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| 28.4.2012 | EN | Official Journal of the European Union | C 126/25 |
| --- | --- | --- | --- |

28.4.2012

EN

Official Journal of the European Union

C 126/25

---

Action brought on 12 March 2012 — Tioxide Europe and Others v Council

(Case T-116/12)

2012/C 126/47

Language of the case: English

Parties

Applicants: Tioxide Europe Ltd (Billingham, United Kingdom); Tioxide Europe Srl (Scarlino, Italy); Tioxide Europe SL (Huelva, Spain); and Huntsman (Holdings) Netherlands BV (Rotterdam, Netherlands) (represented by: D. Arts, lawyer)

Defendant: Council of the European Union

Form of order sought

| — | Annul Council Regulation (EU) no 1344/2011 of 19 December 2011 suspending the autonomous Common Customs Tariff duties on certain agricultural, fishery and industrial products and repealing Regulation (EC) No 1255/96 (OJ L 349, p. 1), insofar as it suspends the import duty levied on rutile titanium dioxide containing by weight 90 % or more of titanium dioxide, not more than 4 % of aluminium hydroxide and not more than 6 % of silicon dioxide, under CN code 3206 11 00; |
| --- | --- |

—

Annul Council Regulation (EU) no 1344/2011 of 19 December 2011 suspending the autonomous Common Customs Tariff duties on certain agricultural, fishery and industrial products and repealing Regulation (EC) No 1255/96 (OJ L 349, p. 1), insofar as it suspends the import duty levied on rutile titanium dioxide containing by weight 90 % or more of titanium dioxide, not more than 4 % of aluminium hydroxide and not more than 6 % of silicon dioxide, under CN code 3206 11 00;

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging failure in duty to provide reasons






  — | By their first plea, the applicants submit that the Council has failed in its obligation to provide sufficient reasons for suspending the import duty in relation to the relevant products; |
| --- | --- | --- |

1.

First plea in law, alleging failure in duty to provide reasons

—

By their first plea, the applicants submit that the Council has failed in its obligation to provide sufficient reasons for suspending the import duty in relation to the relevant products;

| 2. | Second plea in law, alleging manifest error of assessment






  — | By their second plea, the applicants consider that Regulation (EU) no 1344/2011 infringes Articles 31 and 32 TFEU since the Council, by basing itself on an unlawful proposal of the Commission without any further examination of the relevant facts, has committed a manifest error of assessment; |
| --- | --- | --- |

2.

Second plea in law, alleging manifest error of assessment

—

By their second plea, the applicants consider that Regulation (EU) no 1344/2011 infringes Articles 31 and 32 TFEU since the Council, by basing itself on an unlawful proposal of the Commission without any further examination of the relevant facts, has committed a manifest error of assessment;

| 3. | Third plea in law, alleging breach of principle of proportionality






  — | By their third plea, the applicants further submit that the Council has breached the principle of proportionality by adopting a tariff suspension under the contested Regulation, as opposed to the less onerous measure available to it, i.e. a tariff quota, since ‘identical, equivalent or substitute products’ were being manufactured within the Union. |
| --- | --- | --- |

3.

Third plea in law, alleging breach of principle of proportionality

—

By their third plea, the applicants further submit that the Council has breached the principle of proportionality by adopting a tariff suspension under the contested Regulation, as opposed to the less onerous measure available to it, i.e. a tariff quota, since ‘identical, equivalent or substitute products’ were being manufactured within the Union.

---

European Union Civil Service Tribunal

| 28.4.2012 | EN | Official Journal of the European Union | C 126/26 |
| --- | --- | --- | --- |

28.4.2012

EN

Official Journal of the European Union

C 126/26

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Judgment of the Civil Service Tribunal (First Chamber) of 8 February 2012 — Bouillez and Others v Council

(Case F-11/11) (1)

(Civil service - Officials - Promotion - 2010 promotion exercise - Refusal of promotion - Consideration of comparative merits of officials in the AST function group following their career stream - Obligation on an institution not to apply a provision giving effect to the Staff Regulations which is tainted by illegality)

2012/C 126/48

Language of the case: French

Parties

Applicants: Bouillez and Others (Overijse, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal, lawyers)

Defendant: Council of the European Union (represented by: M. Bauer and J. Herrmann, agents)

Re:

Application for annulment of the decision of the appointing authority not to promote the applicants to a higher grade in the 2010 promotion exercise.

Operative part of the judgment

The Tribunal:

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

1.

Dismisses the action;

| 2. | Orders the Council of the European Union to bear its own costs and to pay the applicants’ costs. |
| --- | --- |

2.

Orders the Council of the European Union to bear its own costs and to pay the applicants’ costs.

---

(1)  OJ 7.5.2011 C 139, p. 30.

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| 28.4.2012 | EN | Official Journal of the European Union | C 126/26 |
| --- | --- | --- | --- |

28.4.2012

EN

Official Journal of the European Union

C 126/26

---

Order of the Civil Service Tribunal (First Chamber) of 8 February 2012 — AY v Council

(Case F-23/11) (1)

(Civil service - Officials - Promotion - 2010 promotion exercise - Consideration of comparative merits - Failure to take into account further training and certification - Error of law)

2012/C 126/49

Language of the case: French

Parties

Applicant: AY (Bousval, Belgium) (represented initially by É. Boigelot and S. Woog, then by É. Boigelot, lawyers)

Defendant: Council of the European Union (represented by: M. Bauer and J. Herrmann, agents)

Re:

Action for annulment of the decision of the Council not to include the applicant in the list of officials promoted to grade AST 9 in the 2010 promotion exercise and compensation for the non-material harm suffered.

Operative part of the order

The Tribunal:

| 1. | annuls the decision of the Council of the European Union not to promote AY to grade AST 9 in the 2010 promotion exercise; |
| --- | --- |

1.

annuls the decision of the Council of the European Union not to promote AY to grade AST 9 in the 2010 promotion exercise;

| 2. | declares that there is no need to adjudicate on AY’s alternative heads of claim; |
| --- | --- |

2.

declares that there is no need to adjudicate on AY’s alternative heads of claim;

| 3. | dismisses AY’s action as to the remainder; |
| --- | --- |

3.

dismisses AY’s action as to the remainder;

| 4. | orders the Council of the European Union to pay all costs. |
| --- | --- |

4.

orders the Council of the European Union to pay all costs.

---

(1)  OJ 30.7.2011 C 226, p. 31.

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| 28.4.2012 | EN | Official Journal of the European Union | C 126/27 |
| --- | --- | --- | --- |

28.4.2012

EN

Official Journal of the European Union

C 126/27

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Order of the Civil Service Tribunal (First Chamber) of 29 February 2012 — Marcuccio v Commission

(Case F-3/11) (1)

(Civil service - Officials - Social security - Accident - Request for a document to be placed on the accident file - Request refused - Measure not having an adverse effect - Manifest inadmissibility)

2012/C 126/50

Language of the case: Italian

Parties

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

Defendant: European Commission (represented by: J. Currall and C. Berardis-Kayser, Agents, and A. Dal Ferro, lawyer)

Re:

Application for annulment of the implied decision rejecting the applicant’s request of 15 March 2010 and the claim for compensation for the damage suffered.

Operative part of the order

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

1.

The application is dismissed as manifestly inadmissible.

| 2. | Mr Marcuccio is ordered to pay all the costs. |
| --- | --- |

2.

Mr Marcuccio is ordered to pay all the costs.

| 3. | Mr Marcuccio is ordered to pay to the Tribunal the sum of EUR 2 000. |
| --- | --- |

3.

Mr Marcuccio is ordered to pay to the Tribunal the sum of EUR 2 000.

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(1)  OJ C 113, 9.4.2011, p. 22.

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| 28.4.2012 | EN | Official Journal of the European Union | C 126/27 |
| --- | --- | --- | --- |

28.4.2012

EN

Official Journal of the European Union

C 126/27

---

Order of the Civil Service Tribunal (First Chamber) of 7 March 2012 — BI v Cedefop

(Case F-31/11) (1)

(Civil service - Time-limit for bringing proceedings - Language of rejection of complaint)

2012/C 126/51

Language of the case: French

Parties

Applicant: BI (Evosmos, Greece) (represented by: M.-A. Lucas, lawyer)

Defendant: European Centre for the Development of Vocational Training (Cedefop) (represented by: M. Fuchs, agent, and B. Wägenbaur, lawyer)

Re:

Application for annulment of the decision of the Director of Cedefop to terminate the employment of the applicant and for reparation of material and non-material loss sustained.

Operative part of the order

The Tribunal:

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

1.

Dismisses the action as manifestly inadmissible;

| 2. | Orders BI to pay all costs. |
| --- | --- |

2.

Orders BI to pay all costs.

---

(1)  OJ 25.6.2011 C 186, p. 33.

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| 28.4.2012 | EN | Official Journal of the European Union | C 126/27 |
| --- | --- | --- | --- |

28.4.2012

EN

Official Journal of the European Union

C 126/27

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Action brought on 10 October 2011 — ZZ v Commission

(Case F-102/11)

2012/C 126/52

Language of the case: Italian

Parties

Applicant: ZZ (represented by: G. Cipressa, lawyer)

Defendant: European Commission

Subject-matter and description of the proceedings

Application for annulment of the implied decision by which the Commission refused to pay to the applicant travelling expenses from the place of his employment to his place of origin for the period 2005 to 2010.

Form of order sought

| — | Annul the defendant’s decision refusing the applicant’s claims set out in his complaint of 13 August 2010, whatever the form in which the decision was adopted and irrespective of whether the refusal was total or partial; |
| --- | --- |

—

Annul the defendant’s decision refusing the applicant’s claims set out in his complaint of 13 August 2010, whatever the form in which the decision was adopted and irrespective of whether the refusal was total or partial;

| — | annul, quatenus opus est, the Note of 22 December 2010 bearing reference PMO.1/NS/AV D(2010) 986451; |
| --- | --- |

—

annul, quatenus opus est, the Note of 22 December 2010 bearing reference PMO.1/NS/AV D(2010) 986451;

| — | annul the Commission’s decision rejecting the applicant’s claims set out in the complaint of 25 February 2011, whatever the form in which the decision was adopted; |
| --- | --- |

—

annul the Commission’s decision rejecting the applicant’s claims set out in the complaint of 25 February 2011, whatever the form in which the decision was adopted;

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

—

order the Commission to pay the costs.

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| 28.4.2012 | EN | Official Journal of the European Union | C 126/28 |
| --- | --- | --- | --- |

28.4.2012

EN

Official Journal of the European Union

C 126/28

---

Order of the Civil Service Tribunal of 9 February 2012 — Zur Oven-Krockhaus v Commission

(Case F-47/11) (1)

2012/C 126/53

Language of the case: German

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

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(1)  OJ C 252, 27.8.11, p. 56.

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| 28.4.2012 | EN | Official Journal of the European Union | C 126/28 |
| --- | --- | --- | --- |

28.4.2012

EN

Official Journal of the European Union

C 126/28

---

Order of the Civil Service Tribunal of 25 January 2012 — Kedzierski v Commission

(Case F-53/11) (1)

2012/C 126/54

Language of the case: French

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

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(1)  OJ C 186, 25.6.2011 p. 37.

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| 28.4.2012 | EN | Official Journal of the European Union | C 126/28 |
| --- | --- | --- | --- |

28.4.2012

EN

Official Journal of the European Union

C 126/28

---

Order of the Civil Service Tribunal of 2 February 2012 — Makaronidis v Commission

(Case F-96/11) (1)

2012/C 126/55

Language of the case: Greek

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

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(1)  No publication in the OJ.

---