# Official Journal C 227/2012

| | ISSN 1977-091X
  doi:10.3000/1977091X.C_2012.227.eng |
| --- | --- |
| Official Journal
  of the European Union | C 227 |
| | |
| English edition | Information and Notices | Volume 5528 July 2012 |

ISSN 1977-091X

doi:10.3000/1977091X.C_2012.227.eng

Official Journal

of the European Union

C 227

English edition

Information and Notices

Volume 5528 July 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 227/01 | Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 217, 21.7.2012 | 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 227/01

Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 217, 21.7.2012

Official Journal of the European Union

1

| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2012/C 227/02 | Case C-542/09: Judgment of the Court (Second Chamber) of 14 June 2012 — European Commission v Kingdom of the Netherlands (Failure of a Member State to fulfil obligations — Freedom of movement for persons — Access to education for migrant workers and their family members — Funding for higher educational studies pursued outside the territory of the Member State concerned — Residence requirement) | 2 |
| 2012/C 227/03 | Case C-533/10: Judgment of the Court (Third Chamber) of 14 June 2012 (reference for a preliminary ruling from the Tribunal d’instance de Roubaix — France) — Compagnie internationale pour la vente à distance (CIVAD) SA v Receveur des douanes de Roubaix, Directeur régional des douanes et droits indirects de Lille, Administration des douanes (Community Customs Code — Article 236(2) — Repayment of duties not legally owed — Time-limit — Regulation (EC) No 2398/97 — Definitive anti-dumping duty on imports of cotton-type bed linen originating in Egypt, India and Pakistan — Regulation (EC) No 1515/2001 — Repayment of anti-dumping duties paid pursuant to a regulation subsequently declared invalid — Concept of force majeure — Time at which the obligation to repay import duties arises) | 2 |
| 2012/C 227/04 | Case C-606/10: Judgment of the Court (Second Chamber) of 14 June 2012 (reference for a preliminary ruling from the Conseil d'État — France) — Association nationale d’assistance aux frontières pour les étrangers (ANAFE) v Ministre de l’Intérieur, de l’Outre-mer, des Collectivités territoriales et de l’Immigration (Regulation (EC) No 562/2006 — Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) — Article 13 — Third-country nationals holding a temporary residence permit — National legislation banning the re-entry of those nationals into the territory of the Member State which issued the temporary residence permit in the absence of a re-entry visa — Meaning of re-entry visa — Earlier administrative practice authorising re entry without re-entry visa — Need for transitional measures — Absence) | 3 |
| 2012/C 227/05 | Joined Cases C-611/10 and C-612/10: Judgment of the Court (Grand Chamber) of 12 June 2012 (reference for a preliminary ruling from the Bundesfinanzhof — Germany) — Waldemar Hudziński v Agentur für Arbeit Wesel — Familienkasse (C-611/10), Jarosław Wawrzyniak v Agentur für Arbeit Mönchengladbach — Familienkasse (C-612/10) (Social security for migrant workers — Regulation (EEC) No 1408/71 — Articles 14(1)(a) and 14a(1)(a) — Articles 45 TFEU and 48 TFEU — Temporary work in a Member State other than that in which work is normally carried out — Family benefits — Applicable legislation — Possibility for child benefit to be granted by the Member State in which the temporary work is carried out but which is not the competent State — Application of a rule of national law against overlapping of benefits which excludes that benefit in the case where a comparable benefit is received in another State) | 4 |
| 2012/C 227/06 | Case C-618/10: Judgment of the Court (First Chamber) of 14 June 2012 (reference for a preliminary ruling from the Audiencia Provincial de Barcelona — Spain) — Banco Español de Crédito SA v Joaquín Calderón Camino (Directive 93/13/EEC — Consumer contracts — Unfair term concerning interest on late payments — Order for payment procedure — Powers of the national court) | 5 |
| 2012/C 227/07 | Case C-158/11: Judgment of the Court (Second Chamber) of 14 June 2012 (reference for a preliminary ruling from the Cour de cassation — France) — Auto 24 SARL v Jaguar Land Rover France SAS (Competition — Article 101 TFEU — Motor vehicle sector — Regulation (EC) No 1400/2002 — Block exemption — Selective distribution system — Concept of specified criteria concerning a quantitative selective distribution system — Refusal to grant authorisation as a distributor of new motor vehicles — Lack of precise, objective, proportionate and non-discriminatory quantitative selection criteria) | 5 |
| 2012/C 227/08 | Case C-355/11: Judgment of the Court (Sixth Chamber) of 14 June 2012 (reference for a preliminary ruling from the College van Beroep voor het Bedrijfsleven — Netherlands) — G. Brouwer v Staatssecretaris van Economische Zaken, Landbouw en Innovatie (Directive 91/629/EEC — Minimum standards for the protection of calves — Regulation (EC) No 1782/2003 — Common rules for direct support schemes under the common agricultural policy — National legislation transposing Directive 91/629/EEC and declaring the management requirements provided for by that directive to be applicable to, inter alia, calves which are kept confined in the context of a dairy farming operation) | 6 |
| 2012/C 227/09 | Case C-474/11 P: Appeal brought on 19 September 2011 by Smanor SA against the order of the General Court (Fifth Chamber) delivered on 15 July 2011 in Case T-185/11 Smanor SA v European Commission, European Ombudsman | 6 |
| 2012/C 227/10 | Case C-118/12 P: Appeal brought on 5 March 2012 by Enviro Tech Europe Ltd against the judgment of the General Court (First Chamber) delivered on 16 December 2011 in Case T-291/04: Enviro Tech Europe Ltd, Enviro Tech International, Inc. v European Commission | 6 |
| 2012/C 227/11 | Case C-194/12: Reference for a preliminary ruling from the Juzgado de lo Social No 1 de Benidorm (Spain) lodged on 26 April 2012 — Concepción Maestre García v Centros Comerciales CARREFOUR SA | 7 |
| 2012/C 227/12 | Case C-204/12: Reference for a preliminary ruling from the Rechtbank van eerste aanleg te Brussel (Belgium) lodged on 30 April 2012 — Essent Belgium NV v Vlaamse Reguleringsinstantie voor de Elektriciteits- en Gasmarkt (VREG) | 7 |
| 2012/C 227/13 | Case C-205/12: Reference for a preliminary ruling from the Rechtbank van eerste aanleg te Brussel (Belgium) lodged on 30 April 2012 — Essent Belgium NV v Vlaamse Reguleringsinstantie voor de Elektriciteits- en Gasmarkt (VREG) | 8 |
| 2012/C 227/14 | Case C-206/12: Reference for a preliminary ruling from the Rechtbank van eerste aanleg te Brussel (Belgium) lodged on 30 April 2012 — Essent Belgium NV v Vlaamse Reguleringsinstantie voor de Elektriciteits- en Gasmarkt (VREG) | 9 |
| 2012/C 227/15 | Case C-207/12: Reference for a preliminary ruling from the Rechtbank van eerste aanleg te Brussel (Belgium) lodged on 30 April 2012 — Essent Belgium NV v Vlaamse Reguleringsinstantie voor de Elektriciteits- en Gasmarkt (VREG) | 10 |
| 2012/C 227/16 | Case C-208/12: Reference for a preliminary ruling from the Rechtbank van eerste aanleg te Brussel (Belgium) lodged on 30 April 2012 — Essent Belgium NV v Vlaamse Reguleringsinstantie voor de Elektriciteits- en Gasmarkt (VREG) | 11 |
| 2012/C 227/17 | Case C-226/12: Reference for a preliminary ruling from the Audiencia Provincial de Oviedo (Spain) lodged on 14 May 2012 — Constructora Principado, S.A. v José Ignacio Menéndez Álvarez | 12 |
| 2012/C 227/18 | Case C-252/12: Reference for a preliminary ruling from Court of Appeal (England & Wales) (Civil Division) (United Kingdom) made on 16 May 2012 — Specsavers International Healthcare Ltd, Specsavers BV, Specsavers Optical Group Ltd, Specsavers Optical Superstores Ltd v Asda Stores Ltd | 13 |
| 2012/C 227/19 | Case C-260/12 P: Appeal brought on 29 May 2012 by Volkswagen AG against the judgment of the General Court (Second Chamber) delivered on 21 March 2012 in Case T-63/09 Volkswagen AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) | 13 |
| 2012/C 227/20 | Case C-261/12 P: Appeal brought on 29 May 2012 by Annunziata Del Prete against the judgment delivered by the General Court (Second Chamber) on 27 March 2012 in Case T-420/10 Girogio Armani v OHIM | 14 |
| 2012/C 227/21 | Case C-274/12 P: Appeal brought on 1 June 2012 by Telefónica SA against the order of the General Court (Eighth Chamber) delivered on 21 March 2012 in Case T-228/10 Telefónica v Commission | 15 |
| 2012/C 227/22 | Case C-288/12: Action brought on 8 June 2012 — European Commission v Hungary | 15 |
| | General Court |
| 2012/C 227/23 | Case T-159/09: Judgment of the General Court of 18 June 2012 — Biofrescos v Commission (Customs union — Frozen shrimps and prawns from Indonesia — Invalid certificates of origin — Post-clearance recovery of import duties — Application for remission of import duties — Article 220(2)(b) and Article 239 of Regulation (EEC) No 2913/92) | 17 |
| 2012/C 227/24 | Case T-276/09: Judgment of the General Court of 21 June 2012 — Kavaklidere-Europe v OHIM — Yakult Honsha (Yakut) (Community trade mark — Opposition proceedings — Application for the Community word mark Yakut — Earlier Community figurative mark Yakult — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009) | 17 |
| 2012/C 227/25 | Joined Cases T-178/10, T-263/10 and T-265/10: Judgment of the General Court of 21 June 2012 — Spain v Commission (Operational programmes of the Cohesion Fund and of the ERDF managed by Spain — Request for interim payment — Evidence suggesting significant deficiency in functioning of management and control systems — Measures interrupting the period for payment — Action for annulment — Admissibility — Audit strategy — Legal certainty — Legitimate expectations — Proportionality) | 17 |
| 2012/C 227/26 | Joined Cases T-264/10 and T-266/10: Judgment of the General Court of 21 June 2012 — Spain v Commission (Cohesion Fund and ERDF operational programme managed by Spain (ESF Combating discrimination 2007-2013 operational programme) — Interim payment application — Decision to suspend the payment deadline because of a significant deficiency in the operation of management and control systems — Actions for annulment — Admissibility — Article 87(2) of Regulation (EC) No 1083/2006) | 18 |
| 2012/C 227/27 | Case T-357/10: Judgment of the General Court of 20 June 2012 — Kraft Foods Schweiz v OHIM — Compañía Nacional de Chocolates (CORONA) (Community trade mark — Opposition proceedings — Application for Community figurative mark CORONA — Earlier national word marks KARUNA and KARŪNA — Relative grounds for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 — Article 8(5) of Regulation No 207/2009) | 18 |
| 2012/C 227/28 | Case T-514/10: Judgment of the General Court of 21 June 2012 — Fruit of the Loom v OHIM — Blueshore Management (FRUIT) (Community trade mark — Revocation proceedings — Community word mark FRUIT — Non-use — Article 15(1)(a) and Article 51(1)(a) of Regulation (EC) No 207/2009) | 19 |
| 2012/C 227/29 | Case T-557/10: Judgment of the General Court of 19 June 2012 — H.Eich v OHIM — Arav (H.EICH) (Community trade mark — Opposition proceedings — Application for Community word mark H.EICH — Earlier national figurative mark H SILVIAN HEACH — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009) | 19 |
| 2012/C 227/30 | Case T-234/11 P: Judgment of the General Court of 19 June 2012 — Arango Jaramillo and Others v EIB (Appeals — Staff cases — EIB staff — Pensions — Contribution to the pension scheme — Dismissal of the action at first instance as manifestly inadmissible — Period allowed for commencing proceedings — Lateness — Reasonable period of time) | 19 |
| 2012/C 227/31 | Case T-206/10: Order of the General Court of 12 June 2012 — Vesteda Groep v Commission (State aid — Scheme of aid granted by the Netherlands to social housing corporations — Existing aid — Decision accepting the commitments made by the Member State — Action for annulment — Locus standi — Inadmissibility) | 20 |
| 2012/C 227/32 | Case T-527/10: Order of the General Court of 16 December 2011 — Google v OHIM — G-mail (GMail) (Community trade mark — Opposition — Withdrawal of the opposition — No need to adjudicate) | 20 |
| 2012/C 227/33 | Joined Cases T-118/11, T-123/11 and T-124/11: Order of the General Court of 4 June 2012 — Attey and Others v Council (Common foreign and security policy — Restrictive measures adopted having regard to the situation in Côte d’Ivoire — Withdrawal of the list of persons concerned — Action for annulment — No need to adjudicate) | 20 |
| 2012/C 227/34 | Case T-203/11: Order of the General Court of 18 June 2012 — Transports Schiocchet — Excursions v Council and Commission (Non-contractual liability — Coach and bus services between Member States — Regulation (EEC) No 684/92 — Sufficiently serious breach of a rule of law conferring rights on individuals — Lack — Action manifestly lacking any foundation in law) | 21 |
| 2012/C 227/35 | Case T-395/11: Order of the General Court of 4 June 2012 — Elti v Delegation of the European Union to Montenegro (Actions for annulment — Public supply contracts — Tender procedure — Digitalisation of the Montenegrin Public Broadcasting — Decision awarding the contract taken by the Delegation of the European Union to Montenegro — No legal capacity to be a defendant — Inadmissibility) | 21 |
| 2012/C 227/36 | Case T-656/11 R II: Order of the General Court (the judge hearing the application for interim measures) of 13 June 2012 — Morison Menon Chartered Accountants and Others v Council (Application for interim measures — No need to adjudicate) | 22 |
| 2012/C 227/37 | Case T-65/12 P: Order of the General Court of 12 June 2012 — Strack v Commission (Appeal — Civil service — Officials — Order of referral — Decision which cannot be the object of an appeal — Appeal manifestly inadmissible) | 22 |
| 2012/C 227/38 | Case T-212/12: Action brought on 21 May 2012 — Ålands Industrihus v Commission | 22 |
| 2012/C 227/39 | Case T-214/12: Action brought on 21 May 2012 — Indesit Company v OHIM — ILVE (quadrio) | 23 |
| 2012/C 227/40 | Case T-219/12: Action brought on 28 May 2012 — Saobraćajni institut CIP v Commission | 24 |
| 2012/C 227/41 | Case T-222/12: Action brought on 24 May 2012 — National Trust for Scotland v OHIM — Comhairle na Eilean Siar (ST KILDA) | 24 |
| 2012/C 227/42 | Case T-223/12: Action brought on 28 May 2012 — Ntouvas v ECDC | 25 |
| 2012/C 227/43 | Case T-225/12: Action brought on 29 May 2012 — Lidl Stiftung v OHIM — LĺDL MUSIC (LIDL express) | 25 |
| 2012/C 227/44 | Case T-226/12: Action brought on 29 May 2012 — Lidl Stiftung v OHIM — LĺDL MUSIC (LIDL) | 26 |
| 2012/C 227/45 | Case T-227/12: Action brought on 30 May 2012 — Saobraćajni institut CIP v Commission | 26 |
| 2012/C 227/46 | Case T-229/12: Action brought on 25 May 2012 — Advance Magazine Publishers/OHIM — Eduardo López Cabré (VOGUE) | 27 |
| 2012/C 227/47 | Case T-231/12: Action brought on 30 May 2012 — Rocket Dog Brands/OHIM — Julius-K9 (JULIUS K9) | 27 |
| 2012/C 227/48 | Case T-241/12: Action brought on 4 June 2012 — Versalis v Commission | 28 |
| 2012/C 227/49 | Case T-248/12: Action brought on 8 June 2012 — Fuhr v Commission | 28 |
| 2012/C 227/50 | Case T-251/12: Action brought on 6 June 2012 — EGL and Others v Commission | 29 |
| 2012/C 227/51 | Case T-252/12: Action brought on 11 June 2012 — Gretsch-Unitas v Commission | 30 |
| 2012/C 227/52 | Case T-254/12: Action brought on 11 June 2012 — Kühne + Nagel International AG and Others v Commission | 31 |
| 2012/C 227/53 | Case T-256/12: Action brought on 13 June 2012 — Hautau v Commission | 31 |
| 2012/C 227/54 | Case T-257/12: Action brought on 11 June 2012 — Siegenia-Aubi and Noraa v Commission | 32 |
| 2012/C 227/55 | Case T-259/12: Action brought on 11 June 2012 — Alban Giacomo v Commission | 33 |
| | European Union Civil Service Tribunal |
| 2012/C 227/56 | Case F-31/10: Judgment of the Civil Service Tribunal (Third Chamber) of 13 June 2012 — Guittet v Commission (Civil Service — Former official — Social security — Accident — Closure of the procedure for the application of Article 73 of the Staff Regulations — Temporal application of the scale annexed to the new version of the rules concerning insurance against accidents and occupational diseases — Length of the procedure) | 35 |
| 2012/C 227/57 | Case F-61/10: Judgment of the Civil Service Tribunal (Second Chamber) of 16 May 2012 — AF v Commission (Civil Service — Officials — Request for assistance — Psychological harassment and discriminatory treatment — Error of assessment) | 35 |
| 2012/C 227/58 | Case F-63/10: Judgment of the Civil Service Tribunal (Third Chamber) of 13 June 2012 — BL v European Commission (Civil Service — Former official — Social security — Accident — Closure of the procedure for the application of Article 73 of the Staff Regulations — Temporal application of the scale annexed to the new version of the rules concerning insurance against accidents and occupational diseases — Length of the procedure) | 35 |
| 2012/C 227/59 | Case F-41/11: Judgment of the Civil Service Tribunal (Third Chamber) of 13 June 2012 — Mocová v Commission (Civil service — Members of the temporary staff — Non-renewal of a fixed-term contract — Discretion — Article 8 of the Conditions of Employment of other Servants of the European Communities — Article 4 of the decision of the Director General of OLAF, of 30 June 2005, on the engagement and employment of OLAF’s temporary staff — Maximum duration of contracts of a temporary agent) | 36 |
| 2012/C 227/60 | Case F-63/11: Judgment of the Civil Service Tribunal (Third Chamber) of 13 June 2012 — Macchia v Commission (Civil service — Members of the temporary staff — Non-renewal of a fixed-term contract — Administration’s discretion — Duty to have regard to the welfare of officials — Article 8 of the Conditions of Employment of other Servants of the European Communities — Article 4 of the decision of the Director General of OLAF, of 30 June 2005, on the engagement and employment of OLAF’s temporary staff — Maximum duration of contracts of a temporary agent) | 36 |
| 2012/C 227/61 | Case F-105/11: Judgment of the Civil Service Tribunal (Third Chamber) of 13 June 2012 — Davids v Commission (Civil Service — Temporary agents — Temporary agent occupying a permanent post — Non-renewal of a fixed-term contract — Discretion of the administration — Article 8 of the CEOS — Article 4 of the Decision of the Director General of OLAF of 30 June 2005 on a new policy for the engagement and use of OLAF's temporary agents — Maximum duration of temporary staff contracts — Abuse of rights) | 37 |
| 2012/C 227/62 | Case F-47/12: Action brought on 18 June 2012 — ZZ v EMA | 37 |
| 2012/C 227/63 | Case F-57/12: Action brought on 28 May 2012 — ZZ v Commission | 37 |
| 2012/C 227/64 | Case F-59/12: Action brought on 7 June 2012 — ZZ v Court of Auditors | 38 |
| 2012/C 227/65 | Case F-61/12: Action brought on 11 June 2012 — ZZ and ZZ v Commission | 38 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2012/C 227/02

Case C-542/09: Judgment of the Court (Second Chamber) of 14 June 2012 — European Commission v Kingdom of the Netherlands (Failure of a Member State to fulfil obligations — Freedom of movement for persons — Access to education for migrant workers and their family members — Funding for higher educational studies pursued outside the territory of the Member State concerned — Residence requirement)

2

2012/C 227/03

Case C-533/10: Judgment of the Court (Third Chamber) of 14 June 2012 (reference for a preliminary ruling from the Tribunal d’instance de Roubaix — France) — Compagnie internationale pour la vente à distance (CIVAD) SA v Receveur des douanes de Roubaix, Directeur régional des douanes et droits indirects de Lille, Administration des douanes (Community Customs Code — Article 236(2) — Repayment of duties not legally owed — Time-limit — Regulation (EC) No 2398/97 — Definitive anti-dumping duty on imports of cotton-type bed linen originating in Egypt, India and Pakistan — Regulation (EC) No 1515/2001 — Repayment of anti-dumping duties paid pursuant to a regulation subsequently declared invalid — Concept of force majeure — Time at which the obligation to repay import duties arises)

2

2012/C 227/04

Case C-606/10: Judgment of the Court (Second Chamber) of 14 June 2012 (reference for a preliminary ruling from the Conseil d'État — France) — Association nationale d’assistance aux frontières pour les étrangers (ANAFE) v Ministre de l’Intérieur, de l’Outre-mer, des Collectivités territoriales et de l’Immigration (Regulation (EC) No 562/2006 — Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) — Article 13 — Third-country nationals holding a temporary residence permit — National legislation banning the re-entry of those nationals into the territory of the Member State which issued the temporary residence permit in the absence of a re-entry visa — Meaning of re-entry visa — Earlier administrative practice authorising re entry without re-entry visa — Need for transitional measures — Absence)

3

2012/C 227/05

Joined Cases C-611/10 and C-612/10: Judgment of the Court (Grand Chamber) of 12 June 2012 (reference for a preliminary ruling from the Bundesfinanzhof — Germany) — Waldemar Hudziński v Agentur für Arbeit Wesel — Familienkasse (C-611/10), Jarosław Wawrzyniak v Agentur für Arbeit Mönchengladbach — Familienkasse (C-612/10) (Social security for migrant workers — Regulation (EEC) No 1408/71 — Articles 14(1)(a) and 14a(1)(a) — Articles 45 TFEU and 48 TFEU — Temporary work in a Member State other than that in which work is normally carried out — Family benefits — Applicable legislation — Possibility for child benefit to be granted by the Member State in which the temporary work is carried out but which is not the competent State — Application of a rule of national law against overlapping of benefits which excludes that benefit in the case where a comparable benefit is received in another State)

4

2012/C 227/06

Case C-618/10: Judgment of the Court (First Chamber) of 14 June 2012 (reference for a preliminary ruling from the Audiencia Provincial de Barcelona — Spain) — Banco Español de Crédito SA v Joaquín Calderón Camino (Directive 93/13/EEC — Consumer contracts — Unfair term concerning interest on late payments — Order for payment procedure — Powers of the national court)

5

2012/C 227/07

Case C-158/11: Judgment of the Court (Second Chamber) of 14 June 2012 (reference for a preliminary ruling from the Cour de cassation — France) — Auto 24 SARL v Jaguar Land Rover France SAS (Competition — Article 101 TFEU — Motor vehicle sector — Regulation (EC) No 1400/2002 — Block exemption — Selective distribution system — Concept of specified criteria concerning a quantitative selective distribution system — Refusal to grant authorisation as a distributor of new motor vehicles — Lack of precise, objective, proportionate and non-discriminatory quantitative selection criteria)

5

2012/C 227/08

Case C-355/11: Judgment of the Court (Sixth Chamber) of 14 June 2012 (reference for a preliminary ruling from the College van Beroep voor het Bedrijfsleven — Netherlands) — G. Brouwer v Staatssecretaris van Economische Zaken, Landbouw en Innovatie (Directive 91/629/EEC — Minimum standards for the protection of calves — Regulation (EC) No 1782/2003 — Common rules for direct support schemes under the common agricultural policy — National legislation transposing Directive 91/629/EEC and declaring the management requirements provided for by that directive to be applicable to, inter alia, calves which are kept confined in the context of a dairy farming operation)

6

2012/C 227/09

Case C-474/11 P: Appeal brought on 19 September 2011 by Smanor SA against the order of the General Court (Fifth Chamber) delivered on 15 July 2011 in Case T-185/11 Smanor SA v European Commission, European Ombudsman

6

2012/C 227/10

Case C-118/12 P: Appeal brought on 5 March 2012 by Enviro Tech Europe Ltd against the judgment of the General Court (First Chamber) delivered on 16 December 2011 in Case T-291/04: Enviro Tech Europe Ltd, Enviro Tech International, Inc. v European Commission

6

2012/C 227/11

Case C-194/12: Reference for a preliminary ruling from the Juzgado de lo Social No 1 de Benidorm (Spain) lodged on 26 April 2012 — Concepción Maestre García v Centros Comerciales CARREFOUR SA

7

2012/C 227/12

Case C-204/12: Reference for a preliminary ruling from the Rechtbank van eerste aanleg te Brussel (Belgium) lodged on 30 April 2012 — Essent Belgium NV v Vlaamse Reguleringsinstantie voor de Elektriciteits- en Gasmarkt (VREG)

7

2012/C 227/13

Case C-205/12: Reference for a preliminary ruling from the Rechtbank van eerste aanleg te Brussel (Belgium) lodged on 30 April 2012 — Essent Belgium NV v Vlaamse Reguleringsinstantie voor de Elektriciteits- en Gasmarkt (VREG)

8

2012/C 227/14

Case C-206/12: Reference for a preliminary ruling from the Rechtbank van eerste aanleg te Brussel (Belgium) lodged on 30 April 2012 — Essent Belgium NV v Vlaamse Reguleringsinstantie voor de Elektriciteits- en Gasmarkt (VREG)

9

2012/C 227/15

Case C-207/12: Reference for a preliminary ruling from the Rechtbank van eerste aanleg te Brussel (Belgium) lodged on 30 April 2012 — Essent Belgium NV v Vlaamse Reguleringsinstantie voor de Elektriciteits- en Gasmarkt (VREG)

10

2012/C 227/16

Case C-208/12: Reference for a preliminary ruling from the Rechtbank van eerste aanleg te Brussel (Belgium) lodged on 30 April 2012 — Essent Belgium NV v Vlaamse Reguleringsinstantie voor de Elektriciteits- en Gasmarkt (VREG)

11

2012/C 227/17

Case C-226/12: Reference for a preliminary ruling from the Audiencia Provincial de Oviedo (Spain) lodged on 14 May 2012 — Constructora Principado, S.A. v José Ignacio Menéndez Álvarez

12

2012/C 227/18

Case C-252/12: Reference for a preliminary ruling from Court of Appeal (England & Wales) (Civil Division) (United Kingdom) made on 16 May 2012 — Specsavers International Healthcare Ltd, Specsavers BV, Specsavers Optical Group Ltd, Specsavers Optical Superstores Ltd v Asda Stores Ltd

13

2012/C 227/19

Case C-260/12 P: Appeal brought on 29 May 2012 by Volkswagen AG against the judgment of the General Court (Second Chamber) delivered on 21 March 2012 in Case T-63/09 Volkswagen AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Volkswagen AG

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

13

2012/C 227/20

Case C-261/12 P: Appeal brought on 29 May 2012 by Annunziata Del Prete against the judgment delivered by the General Court (Second Chamber) on 27 March 2012 in Case T-420/10 Girogio Armani v OHIM

14

2012/C 227/21

Case C-274/12 P: Appeal brought on 1 June 2012 by Telefónica SA against the order of the General Court (Eighth Chamber) delivered on 21 March 2012 in Case T-228/10 Telefónica v Commission

15

2012/C 227/22

Case C-288/12: Action brought on 8 June 2012 — European Commission v Hungary

15

General Court

2012/C 227/23

Case T-159/09: Judgment of the General Court of 18 June 2012 — Biofrescos v Commission (Customs union — Frozen shrimps and prawns from Indonesia — Invalid certificates of origin — Post-clearance recovery of import duties — Application for remission of import duties — Article 220(2)(b) and Article 239 of Regulation (EEC) No 2913/92)

17

2012/C 227/24

Case T-276/09: Judgment of the General Court of 21 June 2012 — Kavaklidere-Europe v OHIM — Yakult Honsha (Yakut) (Community trade mark — Opposition proceedings — Application for the Community word mark Yakut — Earlier Community figurative mark Yakult — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

17

2012/C 227/25

Joined Cases T-178/10, T-263/10 and T-265/10: Judgment of the General Court of 21 June 2012 — Spain v Commission (Operational programmes of the Cohesion Fund and of the ERDF managed by Spain — Request for interim payment — Evidence suggesting significant deficiency in functioning of management and control systems — Measures interrupting the period for payment — Action for annulment — Admissibility — Audit strategy — Legal certainty — Legitimate expectations — Proportionality)

17

2012/C 227/26

Joined Cases T-264/10 and T-266/10: Judgment of the General Court of 21 June 2012 — Spain v Commission (Cohesion Fund and ERDF operational programme managed by Spain (ESF Combating discrimination 2007-2013 operational programme) — Interim payment application — Decision to suspend the payment deadline because of a significant deficiency in the operation of management and control systems — Actions for annulment — Admissibility — Article 87(2) of Regulation (EC) No 1083/2006)

18

2012/C 227/27

Case T-357/10: Judgment of the General Court of 20 June 2012 — Kraft Foods Schweiz v OHIM — Compañía Nacional de Chocolates (CORONA) (Community trade mark — Opposition proceedings — Application for Community figurative mark CORONA — Earlier national word marks KARUNA and KARŪNA — Relative grounds for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 — Article 8(5) of Regulation No 207/2009)

18

2012/C 227/28

Case T-514/10: Judgment of the General Court of 21 June 2012 — Fruit of the Loom v OHIM — Blueshore Management (FRUIT) (Community trade mark — Revocation proceedings — Community word mark FRUIT — Non-use — Article 15(1)(a) and Article 51(1)(a) of Regulation (EC) No 207/2009)

19

2012/C 227/29

Case T-557/10: Judgment of the General Court of 19 June 2012 — H.Eich v OHIM — Arav (H.EICH) (Community trade mark — Opposition proceedings — Application for Community word mark H.EICH — Earlier national figurative mark H SILVIAN HEACH — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

19

2012/C 227/30

Case T-234/11 P: Judgment of the General Court of 19 June 2012 — Arango Jaramillo and Others v EIB (Appeals — Staff cases — EIB staff — Pensions — Contribution to the pension scheme — Dismissal of the action at first instance as manifestly inadmissible — Period allowed for commencing proceedings — Lateness — Reasonable period of time)

19

2012/C 227/31

Case T-206/10: Order of the General Court of 12 June 2012 — Vesteda Groep v Commission (State aid — Scheme of aid granted by the Netherlands to social housing corporations — Existing aid — Decision accepting the commitments made by the Member State — Action for annulment — Locus standi — Inadmissibility)

20

2012/C 227/32

Case T-527/10: Order of the General Court of 16 December 2011 — Google v OHIM — G-mail (GMail) (Community trade mark — Opposition — Withdrawal of the opposition — No need to adjudicate)

20

2012/C 227/33

Joined Cases T-118/11, T-123/11 and T-124/11: Order of the General Court of 4 June 2012 — Attey and Others v Council (Common foreign and security policy — Restrictive measures adopted having regard to the situation in Côte d’Ivoire — Withdrawal of the list of persons concerned — Action for annulment — No need to adjudicate)

20

2012/C 227/34

Case T-203/11: Order of the General Court of 18 June 2012 — Transports Schiocchet — Excursions v Council and Commission (Non-contractual liability — Coach and bus services between Member States — Regulation (EEC) No 684/92 — Sufficiently serious breach of a rule of law conferring rights on individuals — Lack — Action manifestly lacking any foundation in law)

21

2012/C 227/35

Case T-395/11: Order of the General Court of 4 June 2012 — Elti v Delegation of the European Union to Montenegro (Actions for annulment — Public supply contracts — Tender procedure — Digitalisation of the Montenegrin Public Broadcasting — Decision awarding the contract taken by the Delegation of the European Union to Montenegro — No legal capacity to be a defendant — Inadmissibility)

21

2012/C 227/36

Case T-656/11 R II: Order of the General Court (the judge hearing the application for interim measures) of 13 June 2012 — Morison Menon Chartered Accountants and Others v Council (Application for interim measures — No need to adjudicate)

22

2012/C 227/37

Case T-65/12 P: Order of the General Court of 12 June 2012 — Strack v Commission (Appeal — Civil service — Officials — Order of referral — Decision which cannot be the object of an appeal — Appeal manifestly inadmissible)

22

2012/C 227/38

Case T-212/12: Action brought on 21 May 2012 — Ålands Industrihus v Commission

22

2012/C 227/39

Case T-214/12: Action brought on 21 May 2012 — Indesit Company v OHIM — ILVE (quadrio)

23

2012/C 227/40

Case T-219/12: Action brought on 28 May 2012 — Saobraćajni institut CIP v Commission

24

2012/C 227/41

Case T-222/12: Action brought on 24 May 2012 — National Trust for Scotland v OHIM — Comhairle na Eilean Siar (ST KILDA)

24

2012/C 227/42

Case T-223/12: Action brought on 28 May 2012 — Ntouvas v ECDC

25

2012/C 227/43

Case T-225/12: Action brought on 29 May 2012 — Lidl Stiftung v OHIM — LĺDL MUSIC (LIDL express)

25

2012/C 227/44

Case T-226/12: Action brought on 29 May 2012 — Lidl Stiftung v OHIM — LĺDL MUSIC (LIDL)

26

2012/C 227/45

Case T-227/12: Action brought on 30 May 2012 — Saobraćajni institut CIP v Commission

26

2012/C 227/46

Case T-229/12: Action brought on 25 May 2012 — Advance Magazine Publishers/OHIM — Eduardo López Cabré (VOGUE)

27

2012/C 227/47

Case T-231/12: Action brought on 30 May 2012 — Rocket Dog Brands/OHIM — Julius-K9 (JULIUS K9)

27

2012/C 227/48

Case T-241/12: Action brought on 4 June 2012 — Versalis v Commission

28

2012/C 227/49

Case T-248/12: Action brought on 8 June 2012 — Fuhr v Commission

28

2012/C 227/50

Case T-251/12: Action brought on 6 June 2012 — EGL and Others v Commission

29

2012/C 227/51

Case T-252/12: Action brought on 11 June 2012 — Gretsch-Unitas v Commission

30

2012/C 227/52

Case T-254/12: Action brought on 11 June 2012 — Kühne + Nagel International AG and Others v Commission

31

2012/C 227/53

Case T-256/12: Action brought on 13 June 2012 — Hautau v Commission

31

2012/C 227/54

Case T-257/12: Action brought on 11 June 2012 — Siegenia-Aubi and Noraa v Commission

32

2012/C 227/55

Case T-259/12: Action brought on 11 June 2012 — Alban Giacomo v Commission

33

European Union Civil Service Tribunal

2012/C 227/56

Case F-31/10: Judgment of the Civil Service Tribunal (Third Chamber) of 13 June 2012 — Guittet v Commission (Civil Service — Former official — Social security — Accident — Closure of the procedure for the application of Article 73 of the Staff Regulations — Temporal application of the scale annexed to the new version of the rules concerning insurance against accidents and occupational diseases — Length of the procedure)

35

2012/C 227/57

Case F-61/10: Judgment of the Civil Service Tribunal (Second Chamber) of 16 May 2012 — AF v Commission (Civil Service — Officials — Request for assistance — Psychological harassment and discriminatory treatment — Error of assessment)

35

2012/C 227/58

Case F-63/10: Judgment of the Civil Service Tribunal (Third Chamber) of 13 June 2012 — BL v European Commission (Civil Service — Former official — Social security — Accident — Closure of the procedure for the application of Article 73 of the Staff Regulations — Temporal application of the scale annexed to the new version of the rules concerning insurance against accidents and occupational diseases — Length of the procedure)

35

2012/C 227/59

Case F-41/11: Judgment of the Civil Service Tribunal (Third Chamber) of 13 June 2012 — Mocová v Commission (Civil service — Members of the temporary staff — Non-renewal of a fixed-term contract — Discretion — Article 8 of the Conditions of Employment of other Servants of the European Communities — Article 4 of the decision of the Director General of OLAF, of 30 June 2005, on the engagement and employment of OLAF’s temporary staff — Maximum duration of contracts of a temporary agent)

36

2012/C 227/60

Case F-63/11: Judgment of the Civil Service Tribunal (Third Chamber) of 13 June 2012 — Macchia v Commission (Civil service — Members of the temporary staff — Non-renewal of a fixed-term contract — Administration’s discretion — Duty to have regard to the welfare of officials — Article 8 of the Conditions of Employment of other Servants of the European Communities — Article 4 of the decision of the Director General of OLAF, of 30 June 2005, on the engagement and employment of OLAF’s temporary staff — Maximum duration of contracts of a temporary agent)

36

2012/C 227/61

Case F-105/11: Judgment of the Civil Service Tribunal (Third Chamber) of 13 June 2012 — Davids v Commission (Civil Service — Temporary agents — Temporary agent occupying a permanent post — Non-renewal of a fixed-term contract — Discretion of the administration — Article 8 of the CEOS — Article 4 of the Decision of the Director General of OLAF of 30 June 2005 on a new policy for the engagement and use of OLAF's temporary agents — Maximum duration of temporary staff contracts — Abuse of rights)

37

2012/C 227/62

Case F-47/12: Action brought on 18 June 2012 — ZZ v EMA

37

2012/C 227/63

Case F-57/12: Action brought on 28 May 2012 — ZZ v Commission

37

2012/C 227/64

Case F-59/12: Action brought on 7 June 2012 — ZZ v Court of Auditors

38

2012/C 227/65

Case F-61/12: Action brought on 11 June 2012 — ZZ and ZZ v Commission

38

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

EN

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

| 28.7.2012 | EN | Official Journal of the European Union | C 227/1 |
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28.7.2012

EN

Official Journal of the European Union

C 227/1

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2012/C 227/01

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

OJ C 217, 21.7.2012

Past publications

OJ C 209, 14.7.2012

OJ C 200, 7.7.2012

OJ C 194, 30.6.2012

OJ C 184, 23.6.2012

OJ C 174, 16.6.2012

OJ C 165, 9.6.2012

These texts are available on:

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

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V Announcements

COURT PROCEEDINGS

Court of Justice

| 28.7.2012 | EN | Official Journal of the European Union | C 227/2 |
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28.7.2012

EN

Official Journal of the European Union

C 227/2

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Judgment of the Court (Second Chamber) of 14 June 2012 — European Commission v Kingdom of the Netherlands

(Case C-542/09) (1)

(Failure of a Member State to fulfil obligations - Freedom of movement for persons - Access to education for migrant workers and their family members - Funding for higher educational studies pursued outside the territory of the Member State concerned - Residence requirement)

2012/C 227/02

Language of the case: Dutch

Parties

Applicant: European Commission (represented by: G. Rozet and M. van Beek, acting as Agents)

Defendant: Kingdom of the Netherlands (represented by: C. Wissels, J. Langer and K. Bulterman, acting as Agents)

Intervening parties in support of the defendant: Kingdom of Belgium (represented by: L. van den Broeck and M. Jacobs, acting as Agents), Kingdom of Denmark, (represented by: V. Pasternak Jørgensen, acting as Agent), Federal Republic of Germany (represented by: J. Möller and C. Blaschke, acting as Agents), Kingdom of Sweden (represented by A. Falk, acting as Agent)

Re:

Failure to fulfil obligations — Infringement of Article 45 TFEU and Article 7(2) of Council Regulation No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community (OJ, English special edition 1968(II), p. 475) — Access to education — Funding of studies abroad — Residence requirement — ‘3 out of 6 years’ rule

Operative part of the judgment

The Court:

| 1. | Declares that, by requiring that migrant workers and dependent family members comply with a residence requirement — namely, the ‘three out of six years’ rule — in order to be eligible to receive funding for higher educational studies pursued outside the Netherlands, the Kingdom of the Netherlands has failed to fulfil its obligations under Article 45 TFEU and Article 7(2) of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, as amended by Council Regulation (EEC) No 2434/92 of 27 July 1992; |
| --- | --- |

1.

Declares that, by requiring that migrant workers and dependent family members comply with a residence requirement — namely, the ‘three out of six years’ rule — in order to be eligible to receive funding for higher educational studies pursued outside the Netherlands, the Kingdom of the Netherlands has failed to fulfil its obligations under Article 45 TFEU and Article 7(2) of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, as amended by Council Regulation (EEC) No 2434/92 of 27 July 1992;

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

2.

Orders the Kingdom of the Netherlands to pay the costs.

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(1)  OJ C 37, 13.2.2010.

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| 28.7.2012 | EN | Official Journal of the European Union | C 227/2 |
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28.7.2012

EN

Official Journal of the European Union

C 227/2

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Judgment of the Court (Third Chamber) of 14 June 2012 (reference for a preliminary ruling from the Tribunal d’instance de Roubaix — France) — Compagnie internationale pour la vente à distance (CIVAD) SA v Receveur des douanes de Roubaix, Directeur régional des douanes et droits indirects de Lille, Administration des douanes

(Case C-533/10) (1)

(Community Customs Code - Article 236(2) - Repayment of duties not legally owed - Time-limit - Regulation (EC) No 2398/97 - Definitive anti-dumping duty on imports of cotton-type bed linen originating in Egypt, India and Pakistan - Regulation (EC) No 1515/2001 - Repayment of anti-dumping duties paid pursuant to a regulation subsequently declared invalid - Concept of ‘force majeure’ - Time at which the obligation to repay import duties arises)

2012/C 227/03

Language of the case: French

Referring court

Tribunal d’instance de Roubaix

Parties to the main proceedings

Applicant: Compagnie internationale pour la vente à distance (CIVAD) SA

Defendants: Receveur des douanes de Roubaix, Directeur régional des douanes et droits indirects de Lille, Administration des douanes

Re:

Reference for a preliminary ruling — Tribunal d'instance de Roubaix — Interpretation of the second and third sub-paragraphs of Article 236(2) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1) — Application for repayment of anti-dumping duties paid pursuant to Council Regulation (EC) Council Regulation (EC) No 2398/97 of 28 November 1997 imposing a definitive anti-dumping duty on imports of cotton-type bed linen originating in Egypt, India and Pakistan (OJ 1997 L 332, p. 1), subsequently declared invalid — Unlawfulness amounting to force majeure — Time at which the obligation to repay duties arises

Operative part of the judgment

| 1. | The second subparagraph of Article 236(2) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Regulation (EC) No 2700/2000 of the European Parliament and of the Council of 16 November 2000 must be interpreted as meaning that the unlawfulness of a regulation is not a case of force majeure within the meaning of that provision, allowing an extension of the three-year time limit during which an importer can request the repayment of import duties paid pursuant to that regulation. |
| --- | --- |

1.

The second subparagraph of Article 236(2) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Regulation (EC) No 2700/2000 of the European Parliament and of the Council of 16 November 2000 must be interpreted as meaning that the unlawfulness of a regulation is not a case of force majeure within the meaning of that provision, allowing an extension of the three-year time limit during which an importer can request the repayment of import duties paid pursuant to that regulation.

| 2. | The third subparagraph of Article 236(2) of Regulation (EEC) No 2913/92, as amended by Regulation (EC) No 2700/2000, must be interpreted as not allowing national customs authorities to repay, on their own initiative, anti-dumping duties collected pursuant to a European Union regulation, on the basis of a finding by the Disputes Settlement Body that that regulation was not in accordance with the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, set out in Annex 1A of the Agreement establishing the World Trade Organisation (WTO), signed in Marrakech on 15 April 1994 and approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994). |
| --- | --- |

2.

The third subparagraph of Article 236(2) of Regulation (EEC) No 2913/92, as amended by Regulation (EC) No 2700/2000, must be interpreted as not allowing national customs authorities to repay, on their own initiative, anti-dumping duties collected pursuant to a European Union regulation, on the basis of a finding by the Disputes Settlement Body that that regulation was not in accordance with the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, set out in Annex 1A of the Agreement establishing the World Trade Organisation (WTO), signed in Marrakech on 15 April 1994 and approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994).

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(1)  OJ C 30, 29.1.2011.

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| 28.7.2012 | EN | Official Journal of the European Union | C 227/3 |
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28.7.2012

EN

Official Journal of the European Union

C 227/3

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Judgment of the Court (Second Chamber) of 14 June 2012 (reference for a preliminary ruling from the Conseil d'État — France) — Association nationale d’assistance aux frontières pour les étrangers (ANAFE) v Ministre de l’Intérieur, de l’Outre-mer, des Collectivités territoriales et de l’Immigration

(Case C-606/10) (1)

(Regulation (EC) No 562/2006 - Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) - Article 13 - Third-country nationals holding a temporary residence permit - National legislation banning the re-entry of those nationals into the territory of the Member State which issued the temporary residence permit in the absence of a re-entry visa - Meaning of ‘re-entry visa’ - Earlier administrative practice authorising re entry without re-entry visa - Need for transitional measures - Absence)

2012/C 227/04

Language of the case: French

Referring court

Conseil d'État

Parties to the main proceedings

Applicant: Association nationale d’assistance aux frontières pour les étrangers (ANAFE)

Defendant: Ministre de l’Intérieur, de l’Outre-mer, des Collectivités territoriales et de l’Immigration

Re:

Reference for a preliminary ruling — Conseil d’État — Interpretation of Article 5(4)(a) and Article 13 of 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) — National rules prohibiting third-country nationals holding a provisional residence permit from re-entering the territory of the Member State which issued that permit where they do not have a re-entry visa issued by the consular or prefectural authorities — Concept of a ‘re-entry visa’ — Permissibility of transitional measures for such nationals who have left the territory — Principles of legal certainty and protection of legitimate expectations

Operative part of the judgment

| 1. | The rules relating to the refusal of entry to third-country nationals laid down in Article 13 of 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), as amended by Regulation (EC) No 81/2009 of the European Parliament and of the Council of 14 January 2009, are also applicable to third-country nationals subject to the requirement to obtain a visa who wish to return via the Schengen area external borders to the Member State which issued them with a temporary residence permit but not to enter for that purpose the territory of another Member State; |
| --- | --- |

1.

The rules relating to the refusal of entry to third-country nationals laid down in Article 13 of 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), as amended by Regulation (EC) No 81/2009 of the European Parliament and of the Council of 14 January 2009, are also applicable to third-country nationals subject to the requirement to obtain a visa who wish to return via the Schengen area external borders to the Member State which issued them with a temporary residence permit but not to enter for that purpose the territory of another Member State;

| 2. | Article 5(4)(a) of Regulation No 562/2006, as amended by Regulation No 81/2009, must be interpreted as meaning that a Member State which issues to a third-country national a re-entry visa within the meaning of that provision cannot limit entry into the Schengen area solely to points of entry to its national territory; |
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2.

Article 5(4)(a) of Regulation No 562/2006, as amended by Regulation No 81/2009, must be interpreted as meaning that a Member State which issues to a third-country national a re-entry visa within the meaning of that provision cannot limit entry into the Schengen area solely to points of entry to its national territory;

| 3. | The principles of legal certainty and protection of legitimate expectations did not require the provision of transitional measures for the benefit of third-country nationals who had left the territory of a Member State when they were holders of temporary residence permits issued pending examination of a first application for a residence permit or an application for asylum and wanted to return to that territory after the entry into force of Regulation No 562/2006, as amended by Regulation No 81/2009. |
| --- | --- |

3.

The principles of legal certainty and protection of legitimate expectations did not require the provision of transitional measures for the benefit of third-country nationals who had left the territory of a Member State when they were holders of temporary residence permits issued pending examination of a first application for a residence permit or an application for asylum and wanted to return to that territory after the entry into force of Regulation No 562/2006, as amended by Regulation No 81/2009.

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(1)  OJ C 72, 5.3.2011.

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| 28.7.2012 | EN | Official Journal of the European Union | C 227/4 |
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28.7.2012

EN

Official Journal of the European Union

C 227/4

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Judgment of the Court (Grand Chamber) of 12 June 2012 (reference for a preliminary ruling from the Bundesfinanzhof — Germany) — Waldemar Hudziński v Agentur für Arbeit Wesel — Familienkasse (C-611/10), Jarosław Wawrzyniak v Agentur für Arbeit Mönchengladbach — Familienkasse (C-612/10)

(Joined Cases C-611/10 and C-612/10) (1)

(Social security for migrant workers - Regulation (EEC) No 1408/71 - Articles 14(1)(a) and 14a(1)(a) - Articles 45 TFEU and 48 TFEU - Temporary work in a Member State other than that in which work is normally carried out - Family benefits - Applicable legislation - Possibility for child benefit to be granted by the Member State in which the temporary work is carried out but which is not the competent State - Application of a rule of national law against overlapping of benefits which excludes that benefit in the case where a comparable benefit is received in another State)

2012/C 227/05

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicants: Waldemar Hudziński (C-611/10), Jarosław Wawrzyniak (C-612/10)

Defendants: Agentur für Arbeit Wesel — Familienkasse (C-611/10), Agentur für Arbeit Mönchengladbach — Familienkasse (C-612/10)

Re:

References for a preliminary ruling — Bundesfinanzhof — Interpretation of Article 14a(1)(a) of Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (OJ English Special Edition 1971 (II), p. 416) — Determination of the applicable law — Right of a migrant worker to receive in the Member State in which he works family allowances for his children resident in his Member State of origin — Situation of a self-employed person working in his Member State of origin and carrying out employed work in another Member State for a period of four months

Operative part of the judgment

| 1. | Articles 14(1)(a) and 14a(1)(a) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Regulation (EC) No 647/2005 of the European Parliament and of the Council of 13 April 2005, must be interpreted as not precluding a Member State, which is not designated under those provisions as being the competent State, from granting child benefits in accordance with its national law to a migrant worker who is working temporarily within its territory in circumstances such as those in the main proceedings, including in the case where it is established, first, that the worker concerned has not suffered any legal disadvantage by reason of the fact that he has exercised his freedom of movement, since he has retained his entitlement to family benefits of the same kind in the competent Member State, and, second, that neither that worker nor the child for whom the benefit is claimed habitually resides within the territory of the Member State in which the temporary work was carried out.; |
| --- | --- |

1.

Articles 14(1)(a) and 14a(1)(a) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Regulation (EC) No 647/2005 of the European Parliament and of the Council of 13 April 2005, must be interpreted as not precluding a Member State, which is not designated under those provisions as being the competent State, from granting child benefits in accordance with its national law to a migrant worker who is working temporarily within its territory in circumstances such as those in the main proceedings, including in the case where it is established, first, that the worker concerned has not suffered any legal disadvantage by reason of the fact that he has exercised his freedom of movement, since he has retained his entitlement to family benefits of the same kind in the competent Member State, and, second, that neither that worker nor the child for whom the benefit is claimed habitually resides within the territory of the Member State in which the temporary work was carried out.;

| 2. | The rules of the FEU Treaty on the free movement of workers must be interpreted as precluding the application, in a situation such as that at issue in the main proceedings, of a rule of national law, such as that resulting from Paragraph 65 of the Law on income tax (Einkommensteuergesetz), in so far as it involves, not a reduction in the amount of the benefit corresponding to the amount of a comparable benefit received in another State, but exclusion from that benefit. |
| --- | --- |

2.

The rules of the FEU Treaty on the free movement of workers must be interpreted as precluding the application, in a situation such as that at issue in the main proceedings, of a rule of national law, such as that resulting from Paragraph 65 of the Law on income tax (Einkommensteuergesetz), in so far as it involves, not a reduction in the amount of the benefit corresponding to the amount of a comparable benefit received in another State, but exclusion from that benefit.

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(1)  OJ C 103, 2.4.2011.

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| 28.7.2012 | EN | Official Journal of the European Union | C 227/5 |
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28.7.2012

EN

Official Journal of the European Union

C 227/5

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Judgment of the Court (First Chamber) of 14 June 2012 (reference for a preliminary ruling from the Audiencia Provincial de Barcelona — Spain) — Banco Español de Crédito SA v Joaquín Calderón Camino

(Case C-618/10) (1)

(Directive 93/13/EEC - Consumer contracts - Unfair term concerning interest on late payments - Order for payment procedure - Powers of the national court)

2012/C 227/06

Language of the case: Spanish

Referring court

Audiencia Provincial de Barcelona

Parties to the main proceedings

Applicant: Banco Español de Crédito SA

Defendant: Joaquín Calderón Camino

Re:

Reference for a preliminary ruling — Audiencia Provincial de Barcelona — Interpretation of Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29), of Art. 11(2) of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (OJ 2005 L 149, p. 22), of Arts 5, 6(2), 7 and 10 of Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC (OJ 2008 L 133, p. 66) and of Art. 2 of Directive 2009/22/EC of the European Parliament and of the Council of 23 April 2009 on injunctions for the protection of consumers’ interests (OJ 2009 L 110, p. 30) — Consumer credit — Interest rates applicable in the event of late payment — Unfair terms — Order for payment procedure — Powers of the national court

Operative part of the judgment

| 1. | Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as precluding legislation of a Member State, such as that at issue in the main proceedings, which does not allow the court before which an application for an order for payment has been brought to assess of its own motion, in limine litis or at any other stage during the proceedings, even though it already has the legal and factual elements necessary for that task available to it, whether a term relating to interest on late payments contained in a contract concluded between a seller or supplier and a consumer is unfair, in the case where that consumer has not lodged an objection; |
| --- | --- |

1.

Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as precluding legislation of a Member State, such as that at issue in the main proceedings, which does not allow the court before which an application for an order for payment has been brought to assess of its own motion, in limine litis or at any other stage during the proceedings, even though it already has the legal and factual elements necessary for that task available to it, whether a term relating to interest on late payments contained in a contract concluded between a seller or supplier and a consumer is unfair, in the case where that consumer has not lodged an objection;

| 2. | Article 6(1) of Directive 93/13 must be interpreted as precluding legislation of a Member State, such as Article 83 of Royal Legislative Decree 1/2007 approving the consolidated version of the General Law for the protection of consumers and users and other supplementary laws (Real Decreto Legislativo 1/2007 por el que se aprueba el texto refundido de la Ley General para la Defensa de los Consumidores y Usuarios y otras leyes complementarias) of 16 November 2007, which allows a national court, in the case where it finds that an unfair term in a contract concluded between a seller or supplier and a consumer is void, to modify that contract by revising the content of that term. |
| --- | --- |

2.

Article 6(1) of Directive 93/13 must be interpreted as precluding legislation of a Member State, such as Article 83 of Royal Legislative Decree 1/2007 approving the consolidated version of the General Law for the protection of consumers and users and other supplementary laws (Real Decreto Legislativo 1/2007 por el que se aprueba el texto refundido de la Ley General para la Defensa de los Consumidores y Usuarios y otras leyes complementarias) of 16 November 2007, which allows a national court, in the case where it finds that an unfair term in a contract concluded between a seller or supplier and a consumer is void, to modify that contract by revising the content of that term.

---

(1)  OJ C 95, 26.3.2011.

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| 28.7.2012 | EN | Official Journal of the European Union | C 227/5 |
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28.7.2012

EN

Official Journal of the European Union

C 227/5

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Judgment of the Court (Second Chamber) of 14 June 2012 (reference for a preliminary ruling from the Cour de cassation — France) — Auto 24 SARL v Jaguar Land Rover France SAS

(Case C-158/11) (1)

(Competition - Article 101 TFEU - Motor vehicle sector - Regulation (EC) No 1400/2002 - Block exemption - Selective distribution system - Concept of ‘specified criteria’ concerning a quantitative selective distribution system - Refusal to grant authorisation as a distributor of new motor vehicles - Lack of precise, objective, proportionate and non-discriminatory quantitative selection criteria)

2012/C 227/07

Language of the case: French

Referring court

Cour de cassation

Parties to the main proceedings

Applicant: Auto 24 SARL

Defendant: Jaguar Land Rover France SAS

Re:

Reference for a preliminary ruling — Cour de Cassation (Court of Cassation) — Interpretation of Article 1(1)(f) of Commission Regulation (EC) No 1400/2002 of 31 July 2002 on the application of Article 81(3) of the Treaty to vertical agreements and concerted practices in the motor vehicle sector (OJ 2002 L 203, p. 30) — Selective distribution system — Refusal to authorise as a distributor of new Land Rover vehicles — Concept of ‘specified criteria’ in the context of a quantitative selective distribution system — Lack of precise, objective, proportionate and non-discriminatory quantitative selection criteria

Operative part of the judgment

The term ‘specified criteria’, referred to in Article 1(1)(f) of Commission Regulation (EC) No 1400/2002 of 31 July 2002 on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices in the motor vehicle sector, means, with respect to a quantitative selective distribution system within the meaning of that regulation, criteria the precise content of which may be verified. In order to benefit from the exemption provided for by that regulation, it is not necessary for such a system to be based on criteria that are objectively justified and applied in a uniform and non-differentiated manner in respect of all applicants for authorisation.

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(1)  OJ C 179, 18.6.2011.

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| 28.7.2012 | EN | Official Journal of the European Union | C 227/6 |
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28.7.2012

EN

Official Journal of the European Union

C 227/6

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Judgment of the Court (Sixth Chamber) of 14 June 2012 (reference for a preliminary ruling from the College van Beroep voor het Bedrijfsleven — Netherlands) — G. Brouwer v Staatssecretaris van Economische Zaken, Landbouw en Innovatie

(Case C-355/11) (1)

(Directive 91/629/EEC - Minimum standards for the protection of calves - Regulation (EC) No 1782/2003 - Common rules for direct support schemes under the common agricultural policy - National legislation transposing Directive 91/629/EEC and declaring the management requirements provided for by that directive to be applicable to, inter alia, calves which are kept confined in the context of a dairy farming operation)

2012/C 227/08

Language of the case: Dutch

Referring court

College van Beroep voor het Bedrijfsleven

Parties to the main proceedings

Appellant: G. Brouwer

Respondent: Staatssecretaris van Economische Zaken, Landbouw en Innovatie

Re:

Reference for a preliminary ruling — College van Beroep voor het Bedrijfsleven — Interpretation of Council Directive 91/629/EEC of 19 November 1991 laying down minimum standards for the protection of calves (OJ 1991 L 340, p. 28) and of Articles 4 and 6 of 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) — National legislation transposing the Directive by stating that the management requirements apply not only to calves confined for rearing and fattening, but also to calves confined for dairy farming

Operative part of the judgment

Council Directive 91/629/EEC of 19 November 1991 laying down minimum standards for the protection of calves, as amended by Council Regulation (EC) No 806/2003 of 14 April 2003, must be interpreted as meaning that the requirement, referred to in Article 4 of that directive, according to which the conditions relating to the rearing of calves must comply with the general provisions set out in the annex to that directive, including point 8 of that annex, which prohibits, subject to exceptions, the tethering of calves, applied to calves kept confined by a farmer in the context of a dairy farming operation for agricultural purposes.

---

(1)  OJ C 282, 24.09.2011.

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| 28.7.2012 | EN | Official Journal of the European Union | C 227/6 |
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28.7.2012

EN

Official Journal of the European Union

C 227/6

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Appeal brought on 19 September 2011 by Smanor SA against the order of the General Court (Fifth Chamber) delivered on 15 July 2011 in Case T-185/11 Smanor SA v European Commission, European Ombudsman

(Case C-474/11 P)

2012/C 227/09

Language of the case: French

Parties

Appellant: Smanor SA (represented by: J.-P. Ekeu, lawyer)

Other parties to the proceedings: European Commission, European Ombudsman

By order of 1 March 2012, the Court (Eighth Chamber) dismissed the appeal and ordered Smanor to bear its own costs.

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| 28.7.2012 | EN | Official Journal of the European Union | C 227/6 |
| --- | --- | --- | --- |

28.7.2012

EN

Official Journal of the European Union

C 227/6

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Appeal brought on 5 March 2012 by Enviro Tech Europe Ltd against the judgment of the General Court (First Chamber) delivered on 16 December 2011 in Case T-291/04: Enviro Tech Europe Ltd, Enviro Tech International, Inc. v European Commission

(Case C-118/12 P)

2012/C 227/10

Language of the case: English

Parties

Appellant: Enviro Tech Europe Ltd (represented by: C. Mereu, K. Van Maldegem, avocats)

Other parties to the proceedings: European Commission, Enviro Tech International, Inc.

Form of order sought

The appellant claims that the Court should:

| — | set aside the judgment of the General Court in Case T-291/04 as regards the Appellant's claim for damages; and |
| --- | --- |

—

set aside the judgment of the General Court in Case T-291/04 as regards the Appellant's claim for damages; and

| — | declare the Respondent liable for damages suffered by the Appellant; or |
| --- | --- |

—

declare the Respondent liable for damages suffered by the Appellant; or

| — | alternatively, refer the case back to the General Court to rule on the Appellant's claim for damages; and |
| --- | --- |

—

alternatively, refer the case back to the General Court to rule on the Appellant's claim for damages; and

| — | order the Respondent to pay all the costs of these proceedings (including the costs before the General Court). |
| --- | --- |

—

order the Respondent to pay all the costs of these proceedings (including the costs before the General Court).

Pleas in law and main arguments

The Appellant submits that, in dismissing its application for damages on the grounds that the Appellant had failed to establish the existence of unlawful action on the part of the Commission, the General Court breached European Union law. In particular, the Appellant contends that the General Court committed an error in its interpretation of the Judgment of the Court in Case C-425/08 and, as a consequence, it made an error in law in failing to assess the third part of the Appellant's first plea of illegality in relation to ‘normal handling or use’ and concluding that the application for damages should be dismissed.

For these reasons the Appellant claims that the judgment of the General Court in Case T-291/04 should be set aside as regards the Appellant's claim for damages and the Respondent should be declared liable for damages suffered by the Appellant.

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| 28.7.2012 | EN | Official Journal of the European Union | C 227/7 |
| --- | --- | --- | --- |

28.7.2012

EN

Official Journal of the European Union

C 227/7

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Reference for a preliminary ruling from the Juzgado de lo Social No 1 de Benidorm (Spain) lodged on 26 April 2012 — Concepción Maestre García v Centros Comerciales CARREFOUR SA

(Case C-194/12)

2012/C 227/11

Language of the case: Spanish

Referring court

Juzgado de lo Social No 1 de Benidorm

Parties to the main proceedings

Applicant: Concepción Maestre García

Defendant: Centros Comerciales Carrefour SA

Questions referred

| 1. | Does Article 7(1) of Directive 2003/88 (1) of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time preclude an interpretation of the national legislation that does not allow interruption of a leave period, so that, at a later time, the entire period — or what remains of it — can be taken, where a temporary incapacity takes effect before the period in which leave is taken and there are reasons connected with production or organisation which preclude the leave from being taken in another later period? |
| --- | --- |

1.

Does Article 7(1) of Directive 2003/88 (1) of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time preclude an interpretation of the national legislation that does not allow interruption of a leave period, so that, at a later time, the entire period — or what remains of it — can be taken, where a temporary incapacity takes effect before the period in which leave is taken and there are reasons connected with production or organisation which preclude the leave from being taken in another later period?

| 2. | Does Article 7(1) of Directive 2003/88 of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time preclude an interpretation of the national legislation that permits an undertaking unilaterally to schedule a leave period which coincides with a period of temporary incapacity, where the worker has not expressed in advance a preference to take another period and where there is an agreement between the representatives of the undertaking’s workers and the undertaking which so permits? |
| --- | --- |

2.

Does Article 7(1) of Directive 2003/88 of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time preclude an interpretation of the national legislation that permits an undertaking unilaterally to schedule a leave period which coincides with a period of temporary incapacity, where the worker has not expressed in advance a preference to take another period and where there is an agreement between the representatives of the undertaking’s workers and the undertaking which so permits?

| 3. | Does Article 7(1) of Directive 2003/88 of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time preclude an interpretation of the national legislation that permits payment in lieu of leave not taken as a result of temporary incapacity if there are reasons connected with production or organisation which preclude the leave from actually being taken, even though the employment contract has not been terminated? |
| --- | --- |

3.

Does Article 7(1) of Directive 2003/88 of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time preclude an interpretation of the national legislation that permits payment in lieu of leave not taken as a result of temporary incapacity if there are reasons connected with production or organisation which preclude the leave from actually being taken, even though the employment contract has not been terminated?

---

(1)  OJ 2003 L 299, p. 9

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| 28.7.2012 | EN | Official Journal of the European Union | C 227/7 |
| --- | --- | --- | --- |

28.7.2012

EN

Official Journal of the European Union

C 227/7

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Reference for a preliminary ruling from the Rechtbank van eerste aanleg te Brussel (Belgium) lodged on 30 April 2012 — Essent Belgium NV v Vlaamse Reguleringsinstantie voor de Elektriciteits- en Gasmarkt (VREG)

(Case C-204/12)

2012/C 227/12

Language of the case: Dutch

Referring court

Rechtbank van eerste aanleg te Brussel

Parties to the main proceedings

Applicant: Essent Belgium NV

Defendant: Vlaamse Reguleringsinstantie voor de Elektriciteits- en Gasmarkt (VREG)

Other Party:

| | Vlaamse Gewest |
| --- | --- |

Vlaamse Gewest

| | Vlaamse Gemeenschap |
| --- | --- |

Vlaamse Gemeenschap

Questions referred

| 1. | Is a national rule, such as that embodied in the Flemish Decreet van 17 juli 2000 houdende de organisatie van de elektriciteitsmarkt (Decree of 17 July 2000 on the organisation of the market in electricity), as implemented by the Besluit (Decision) of the Flemish Government of 5 March 2004, as amended by the Besluit of the Flemish Government of 25 February 2005 on the promotion of the generation of electricity from renewable energy sources, where






  — | an obligation is imposed on the suppliers of electricity to final customers connected to the distribution network or the transmission network, to submit a certain number of green certificates annually to the Regulatory Authority (Article 23 of the aforementioned Decreet); |
| --- | --- | --- |

1.

Is a national rule, such as that embodied in the Flemish Decreet van 17 juli 2000 houdende de organisatie van de elektriciteitsmarkt (Decree of 17 July 2000 on the organisation of the market in electricity), as implemented by the Besluit (Decision) of the Flemish Government of 5 March 2004, as amended by the Besluit of the Flemish Government of 25 February 2005 on the promotion of the generation of electricity from renewable energy sources, where

—

an obligation is imposed on the suppliers of electricity to final customers connected to the distribution network or the transmission network, to submit a certain number of green certificates annually to the Regulatory Authority (Article 23 of the aforementioned Decreet);

| — | an administrative fine is imposed by the Vlaamse Reguleringsinstantie voor de Elektriciteits- en Gasmarkt (VREG) on the suppliers of electricity to final customers connected to the distribution network or the transmission network when the supplier has not submitted a sufficient number of green certificates to fulfil a quota obligation which has been imposed in respect of green certificates (Article 37(2) of the aforementioned Decreet); |
| --- | --- |

—

an administrative fine is imposed by the Vlaamse Reguleringsinstantie voor de Elektriciteits- en Gasmarkt (VREG) on the suppliers of electricity to final customers connected to the distribution network or the transmission network when the supplier has not submitted a sufficient number of green certificates to fulfil a quota obligation which has been imposed in respect of green certificates (Article 37(2) of the aforementioned Decreet);

| — | the Regulatory Authority cannot or will not take into account any guarantees of origin originating from Norway and the Netherlands, and that being in the absence of implementing measures on the part of the Flemish Government, which has acknowledged the equality or equivalence of those certificates (Article 25 of the aforementioned Decreet and Article 15(1) of the Besluit of 5 March 2004), without that equality or equivalence being investigated by the Regulatory Authority in concrete terms; |
| --- | --- |

—

the Regulatory Authority cannot or will not take into account any guarantees of origin originating from Norway and the Netherlands, and that being in the absence of implementing measures on the part of the Flemish Government, which has acknowledged the equality or equivalence of those certificates (Article 25 of the aforementioned Decreet and Article 15(1) of the Besluit of 5 March 2004), without that equality or equivalence being investigated by the Regulatory Authority in concrete terms;

| — | in fact, during the whole time that the Decreet of 17 July 2000 was in force, only certificates for the production of green energy generated in the Flemish Region were taken into account when ascertaining whether the quota obligation had been fulfilled, whereas for the suppliers of electricity to final customers connected to the distribution network or transmission network there was no possibility whatsoever of demonstrating that the guarantees of origin submitted met the condition of the existence of equal or equivalent guarantees regarding the granting of such certificates, |
| --- | --- |

—

in fact, during the whole time that the Decreet of 17 July 2000 was in force, only certificates for the production of green energy generated in the Flemish Region were taken into account when ascertaining whether the quota obligation had been fulfilled, whereas for the suppliers of electricity to final customers connected to the distribution network or transmission network there was no possibility whatsoever of demonstrating that the guarantees of origin submitted met the condition of the existence of equal or equivalent guarantees regarding the granting of such certificates,

compatible with Article 34 of the Treaty on the Functioning of the European Union and Article 11 of the EEA Agreement and/or Article 36 of that Treaty and Article 13 of the EEA Agreement?’

| 2. | Is a national rule as referred to in subquestion 1 above compatible with Article 5 of the then Directive 2001/77/EC (1) of the European Parliament and of the Council of 27 September 2001 on the promotion of electricity produced from renewable energy sources in the internal electricity market? |
| --- | --- |

2.

Is a national rule as referred to in subquestion 1 above compatible with Article 5 of the then Directive 2001/77/EC (1) of the European Parliament and of the Council of 27 September 2001 on the promotion of electricity produced from renewable energy sources in the internal electricity market?

| 3. | Is a national rule as referred to in subquestion 1 above compatible with the principle of equal treatment and the prohibition of discrimination as embodied inter alia in Article 18 of the Treaty on the Functioning of the European Union and Article 3 of the then Directive 2003/54/EC (2) of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC? |
| --- | --- |

3.

Is a national rule as referred to in subquestion 1 above compatible with the principle of equal treatment and the prohibition of discrimination as embodied inter alia in Article 18 of the Treaty on the Functioning of the European Union and Article 3 of the then Directive 2003/54/EC (2) of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC?

---

(1)  OJ 2001 L 283, p. 33.

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

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| 28.7.2012 | EN | Official Journal of the European Union | C 227/8 |
| --- | --- | --- | --- |

28.7.2012

EN

Official Journal of the European Union

C 227/8

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Reference for a preliminary ruling from the Rechtbank van eerste aanleg te Brussel (Belgium) lodged on 30 April 2012 — Essent Belgium NV v Vlaamse Reguleringsinstantie voor de Elektriciteits- en Gasmarkt (VREG)

(Case C-205/12)

2012/C 227/13

Language of the case: Dutch

Referring court

Rechtbank van eerste aanleg te Brussel

Parties to the main proceedings

Applicant: Essent Belgium NV

Defendant: Vlaamse Reguleringsinstantie voor de Elektriciteits- en Gasmarkt (VREG)

Other Party: Vlaamse Gewest

Questions referred

| 1. | Is a national rule, such as that embodied in the Flemish Decreet van 17 juli 2000 houdende de organisatie van de elektriciteitsmarkt (Decree of 17 July 2000 on the organisation of the market in electricity), as implemented by the Besluit (Decision) of the Flemish Government of 5 March 2004, as amended by the Besluit of the Flemish Government of 25 February 2005 on the promotion of the generation of electricity from renewable energy sources, where






  — | an obligation is imposed on the suppliers of electricity to final customers connected to the distribution network or the transmission network, to submit a certain number of green certificates annually to the Regulatory Authority (Article 23 of the aforementioned Decreet); |
| --- | --- | --- |

1.

Is a national rule, such as that embodied in the Flemish Decreet van 17 juli 2000 houdende de organisatie van de elektriciteitsmarkt (Decree of 17 July 2000 on the organisation of the market in electricity), as implemented by the Besluit (Decision) of the Flemish Government of 5 March 2004, as amended by the Besluit of the Flemish Government of 25 February 2005 on the promotion of the generation of electricity from renewable energy sources, where

—

an obligation is imposed on the suppliers of electricity to final customers connected to the distribution network or the transmission network, to submit a certain number of green certificates annually to the Regulatory Authority (Article 23 of the aforementioned Decreet);

| — | an administrative fine is imposed by the Vlaamse Reguleringsinstantie voor de Elektriciteits- en Gasmarkt (VREG) on the suppliers of electricity to final customers connected to the distribution network or the transmission network when the supplier has not submitted a sufficient number of green certificates to fulfil a quota obligation which has been imposed in respect of green certificates (Article 37(2) of the aforementioned Decreet); |
| --- | --- |

—

an administrative fine is imposed by the Vlaamse Reguleringsinstantie voor de Elektriciteits- en Gasmarkt (VREG) on the suppliers of electricity to final customers connected to the distribution network or the transmission network when the supplier has not submitted a sufficient number of green certificates to fulfil a quota obligation which has been imposed in respect of green certificates (Article 37(2) of the aforementioned Decreet);

| — | it is expressly provided that guarantees of origin from other countries may be submitted under certain conditions in order to fulfil the quota obligation (Article 15c(2) of the Besluit of the Flemish Government of 5 March 2004, as applicable in this case); |
| --- | --- |

—

it is expressly provided that guarantees of origin from other countries may be submitted under certain conditions in order to fulfil the quota obligation (Article 15c(2) of the Besluit of the Flemish Government of 5 March 2004, as applicable in this case);

| — | the Regulatory Authority cannot or will not take into account any guarantees of origin originating from Norway and Denmark, and that being in the absence of implementing measures on the part of the Flemish Government, which has acknowledged the equality or equivalence of those certificates (Article 25 of the aforementioned Decreet and Article 15c(2) of the Besluit of 5 March 2004), without that equality or equivalence being investigated by the Regulatory Authority in concrete terms; |
| --- | --- |

—

the Regulatory Authority cannot or will not take into account any guarantees of origin originating from Norway and Denmark, and that being in the absence of implementing measures on the part of the Flemish Government, which has acknowledged the equality or equivalence of those certificates (Article 25 of the aforementioned Decreet and Article 15c(2) of the Besluit of 5 March 2004), without that equality or equivalence being investigated by the Regulatory Authority in concrete terms;

| — | in fact, during the whole time that the Decreet of 17 July 2000 was in force, only certificates for the production of green energy generated in the Flemish Region were taken into account when ascertaining whether the quota obligation had been fulfilled, whereas for the suppliers of electricity to final customers connected to the distribution network or transmission network there was no possibility whatsoever of demonstrating that the guarantees of origin from other Member States of the European Union met the condition of the existence of equal or equivalent guarantees regarding the granting of such certificates, |
| --- | --- |

—

in fact, during the whole time that the Decreet of 17 July 2000 was in force, only certificates for the production of green energy generated in the Flemish Region were taken into account when ascertaining whether the quota obligation had been fulfilled, whereas for the suppliers of electricity to final customers connected to the distribution network or transmission network there was no possibility whatsoever of demonstrating that the guarantees of origin from other Member States of the European Union met the condition of the existence of equal or equivalent guarantees regarding the granting of such certificates,

compatible with Article 34 of the Treaty on the Functioning of the European Union and Article 11 of the EEA Agreement and/or Article 36 of that Treaty and Article 13 of the EEA Agreement?

| 2. | Is a national rule as referred to in subquestion 1 above compatible with Article 5 of the then Directive 2001/77/EC (1) of the European Parliament and of the Council of 27 September 2001 on the promotion of electricity produced from renewable energy sources in the internal electricity market? |
| --- | --- |

2.

Is a national rule as referred to in subquestion 1 above compatible with Article 5 of the then Directive 2001/77/EC (1) of the European Parliament and of the Council of 27 September 2001 on the promotion of electricity produced from renewable energy sources in the internal electricity market?

| 3. | Is a national rule as referred to in subquestion 1 above compatible with the principle of equal treatment and the prohibition of discrimination as embodied inter alia in Article 18 of the Treaty on the Functioning of the European Union and Article 3 of the then Directive 2003/54/EC (2) of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC? |
| --- | --- |

3.

Is a national rule as referred to in subquestion 1 above compatible with the principle of equal treatment and the prohibition of discrimination as embodied inter alia in Article 18 of the Treaty on the Functioning of the European Union and Article 3 of the then Directive 2003/54/EC (2) of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC?

---

(1)  OJ 2001 L 283, p. 33.

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

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| 28.7.2012 | EN | Official Journal of the European Union | C 227/9 |
| --- | --- | --- | --- |

28.7.2012

EN

Official Journal of the European Union

C 227/9

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Reference for a preliminary ruling from the Rechtbank van eerste aanleg te Brussel (Belgium) lodged on 30 April 2012 — Essent Belgium NV v Vlaamse Reguleringsinstantie voor de Elektriciteits- en Gasmarkt (VREG)

(Case C-206/12)

2012/C 227/14

Language of the case: Dutch

Referring court

Rechtbank van eerste aanleg te Brussel

Parties to the main proceedings

Applicant: Essent Belgium NV

Defendant: Vlaamse Reguleringsinstantie voor de Elektriciteits- en Gasmarkt (VREG)

Other Party:

| | Vlaamse Gewest |
| --- | --- |

Vlaamse Gewest

| | Vlaamse Gemeenschap |
| --- | --- |

Vlaamse Gemeenschap

Questions referred

| 1. | Is a national rule, such as that embodied in the Flemish Decreet van 17 juli 2000 houdende de organisatie van de elektriciteitsmarkt (Decree of 17 July 2000 on the organisation of the market in electricity), as implemented by the Besluit (Decision) of the Flemish Government of 5 March 2004, as amended by the Besluit of the Flemish Government of 25 February 2005 on the promotion of the generation of electricity from renewable energy sources, where






  — | an obligation is imposed on the suppliers of electricity to final customers connected to the distribution network or the transmission network, to submit a certain number of green certificates annually to the Regulatory Authority (Article 23 of the aforementioned Decreet); |
| --- | --- | --- |

1.

Is a national rule, such as that embodied in the Flemish Decreet van 17 juli 2000 houdende de organisatie van de elektriciteitsmarkt (Decree of 17 July 2000 on the organisation of the market in electricity), as implemented by the Besluit (Decision) of the Flemish Government of 5 March 2004, as amended by the Besluit of the Flemish Government of 25 February 2005 on the promotion of the generation of electricity from renewable energy sources, where

—

an obligation is imposed on the suppliers of electricity to final customers connected to the distribution network or the transmission network, to submit a certain number of green certificates annually to the Regulatory Authority (Article 23 of the aforementioned Decreet);

| — | an administrative fine is imposed by the Vlaamse Reguleringsinstantie voor de Elektriciteits- en Gasmarkt (VREG) on the suppliers of electricity to final customers connected to the distribution network or the transmission network when the supplier has not submitted a sufficient number of green certificates to fulfil a quota obligation which has been imposed in respect of green certificates (Article 37(2) of the aforementioned Decreet); |
| --- | --- |

—

an administrative fine is imposed by the Vlaamse Reguleringsinstantie voor de Elektriciteits- en Gasmarkt (VREG) on the suppliers of electricity to final customers connected to the distribution network or the transmission network when the supplier has not submitted a sufficient number of green certificates to fulfil a quota obligation which has been imposed in respect of green certificates (Article 37(2) of the aforementioned Decreet);

| — | it is expressly provided that guarantees of origin from other countries may be submitted under certain conditions in order to fulfil the quota obligation (Article 15c(2) of the Besluit of the Flemish Government of 5 March 2004, as applicable in this case); |
| --- | --- |

—

it is expressly provided that guarantees of origin from other countries may be submitted under certain conditions in order to fulfil the quota obligation (Article 15c(2) of the Besluit of the Flemish Government of 5 March 2004, as applicable in this case);

| — | the Regulatory Authority cannot or will not take into account any guarantees of origin originating from Norway and Denmark/Sweden, and that being in the absence of implementing measures on the part of the Flemish Government, which has acknowledged the equality or equivalence of those certificates (Article 25 of the aforementioned Decreet and Article 15c(2) of the Besluit of 5 March 2004), without that equality or equivalence being investigated by the Regulatory Authority in concrete terms; |
| --- | --- |

—

the Regulatory Authority cannot or will not take into account any guarantees of origin originating from Norway and Denmark/Sweden, and that being in the absence of implementing measures on the part of the Flemish Government, which has acknowledged the equality or equivalence of those certificates (Article 25 of the aforementioned Decreet and Article 15c(2) of the Besluit of 5 March 2004), without that equality or equivalence being investigated by the Regulatory Authority in concrete terms;

| — | in fact, during the whole time that the Decreet of 17 July 2000 was in force, only certificates for the production of green energy generated in the Flemish Region were taken into account when ascertaining whether the quota obligation had been fulfilled, whereas for the suppliers of electricity to final customers connected to the distribution network or transmission network there was no possibility whatsoever of demonstrating that the guarantees of origin from other Member States of the European Union met the condition of the existence of equal or equivalent guarantees regarding the granting of such certificates, |
| --- | --- |

—

in fact, during the whole time that the Decreet of 17 July 2000 was in force, only certificates for the production of green energy generated in the Flemish Region were taken into account when ascertaining whether the quota obligation had been fulfilled, whereas for the suppliers of electricity to final customers connected to the distribution network or transmission network there was no possibility whatsoever of demonstrating that the guarantees of origin from other Member States of the European Union met the condition of the existence of equal or equivalent guarantees regarding the granting of such certificates,

compatible with Article 34 of the Treaty on the Functioning of the European Union and Article 11 of the EEA Agreement and/or Article 36 of that Treaty and Article 13 of the EEA Agreement?

| 2. | Is a national rule as referred to in subquestion 1 above compatible with Article 5 of the then Directive 2001/77/EC (1) of the European Parliament and of the Council of 27 September 2001 on the promotion of electricity produced from renewable energy sources in the internal electricity market? |
| --- | --- |

2.

Is a national rule as referred to in subquestion 1 above compatible with Article 5 of the then Directive 2001/77/EC (1) of the European Parliament and of the Council of 27 September 2001 on the promotion of electricity produced from renewable energy sources in the internal electricity market?

| 3. | Is a national rule as referred to in subquestion 1 above compatible with the principle of equal treatment and the prohibition of discrimination as embodied inter alia in Article 18 of the Treaty on the Functioning of the European Union and Article 3 of the then Directive 2003/54/EC (2) of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC? |
| --- | --- |

3.

Is a national rule as referred to in subquestion 1 above compatible with the principle of equal treatment and the prohibition of discrimination as embodied inter alia in Article 18 of the Treaty on the Functioning of the European Union and Article 3 of the then Directive 2003/54/EC (2) of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC?

---

(1)  OJ 2001 L 283, p. 33.

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

---

| 28.7.2012 | EN | Official Journal of the European Union | C 227/10 |
| --- | --- | --- | --- |

28.7.2012

EN

Official Journal of the European Union

C 227/10

---

Reference for a preliminary ruling from the Rechtbank van eerste aanleg te Brussel (Belgium) lodged on 30 April 2012 — Essent Belgium NV v Vlaamse Reguleringsinstantie voor de Elektriciteits- en Gasmarkt (VREG)

(Case C-207/12)

2012/C 227/15

Language of the case: Dutch

Referring court

Rechtbank van eerste aanleg te Brussel

Parties to the main proceedings

Applicant: Essent Belgium NV

Defendant: Vlaamse Reguleringsinstantie voor de Elektriciteits- en Gasmarkt (VREG)

Other Party: Vlaamse Gewest

Questions referred

| 1. | Is a national rule, such as that embodied in the Flemish Decreet van 17 juli 2000 houdende de organisatie van de elektriciteitsmarkt (Decree of 17 July 2000 on the organisation of the market in electricity), as implemented by the Besluit (Decision) of the Flemish Government of 5 March 2004, as amended by the Besluit of the Flemish Government of 25 February 2005 on the promotion of the generation of electricity from renewable energy sources, where






  — | an obligation is imposed on the suppliers of electricity to final customers connected to the distribution network or the transmission network, to submit a certain number of green certificates annually to the Regulatory Authority (Article 23 of the aforementioned Decreet); |
| --- | --- | --- |

1.

Is a national rule, such as that embodied in the Flemish Decreet van 17 juli 2000 houdende de organisatie van de elektriciteitsmarkt (Decree of 17 July 2000 on the organisation of the market in electricity), as implemented by the Besluit (Decision) of the Flemish Government of 5 March 2004, as amended by the Besluit of the Flemish Government of 25 February 2005 on the promotion of the generation of electricity from renewable energy sources, where

—

an obligation is imposed on the suppliers of electricity to final customers connected to the distribution network or the transmission network, to submit a certain number of green certificates annually to the Regulatory Authority (Article 23 of the aforementioned Decreet);

| — | it is expressly provided that guarantees of origin from other countries may be submitted under certain conditions in order to fulfil the quota obligation (Article 15c(2) of the Besluit of the Flemish Government of 5 March 2004, as applicable in this case); |
| --- | --- |

—

it is expressly provided that guarantees of origin from other countries may be submitted under certain conditions in order to fulfil the quota obligation (Article 15c(2) of the Besluit of the Flemish Government of 5 March 2004, as applicable in this case);

| — | an administrative fine is imposed by the Vlaamse Reguleringsinstantie voor de Elektriciteits- en Gasmarkt (VREG) on the suppliers of electricity to final customers connected to the distribution network or the transmission network when the supplier has not submitted a sufficient number of green certificates to fulfil a quota obligation which has been imposed in respect of green certificates (Article 37(2) of the aforementioned Decreet); |
| --- | --- |

—

an administrative fine is imposed by the Vlaamse Reguleringsinstantie voor de Elektriciteits- en Gasmarkt (VREG) on the suppliers of electricity to final customers connected to the distribution network or the transmission network when the supplier has not submitted a sufficient number of green certificates to fulfil a quota obligation which has been imposed in respect of green certificates (Article 37(2) of the aforementioned Decreet);

| — | the Regulatory Authority cannot or will not take into account any guarantees of origin originating from Norway and that being in the absence of implementing measures on the part of the Flemish Government, which has acknowledged the equality or equivalence of those certificates (Article 25 of the aforementioned Decreet and Article 15c(2) of the Besluit of 5 March 2004), without that equality or equivalence being investigated by the Regulatory Authority in concrete terms; |
| --- | --- |

—

the Regulatory Authority cannot or will not take into account any guarantees of origin originating from Norway and that being in the absence of implementing measures on the part of the Flemish Government, which has acknowledged the equality or equivalence of those certificates (Article 25 of the aforementioned Decreet and Article 15c(2) of the Besluit of 5 March 2004), without that equality or equivalence being investigated by the Regulatory Authority in concrete terms;

| — | in fact, during the whole time that the Decreet of 17 July 2000 was in force, only certificates for the production of green energy generated in the Flemish Region were taken into account when ascertaining whether the quota obligation had been fulfilled, whereas for the suppliers of electricity to final customers connected to the distribution network or transmission network there was no possibility whatsoever of demonstrating that the guarantees of origin from other Member States of the European Union met the condition of the existence of equal or equivalent guarantees regarding the granting of such certificates, |
| --- | --- |

—

in fact, during the whole time that the Decreet of 17 July 2000 was in force, only certificates for the production of green energy generated in the Flemish Region were taken into account when ascertaining whether the quota obligation had been fulfilled, whereas for the suppliers of electricity to final customers connected to the distribution network or transmission network there was no possibility whatsoever of demonstrating that the guarantees of origin from other Member States of the European Union met the condition of the existence of equal or equivalent guarantees regarding the granting of such certificates,

compatible with Article 11 of the EEA Agreement and Article 13 of the EEA Agreement?

| 2. | Is a national rule as referred to in subquestion 1 above compatible with Article 5 of the then Directive 2001/77/EC (1) of the European Parliament and of the Council of 27 September 2001 on the promotion of electricity produced from renewable energy sources in the internal electricity market (in so far as relevant to the EEA)? |
| --- | --- |

2.

Is a national rule as referred to in subquestion 1 above compatible with Article 5 of the then Directive 2001/77/EC (1) of the European Parliament and of the Council of 27 September 2001 on the promotion of electricity produced from renewable energy sources in the internal electricity market (in so far as relevant to the EEA)?

| 3. | Is a national rule as referred to in subquestion 1 above compatible with the principle of equal treatment and the prohibition of discrimination as embodied inter alia in Article 14 of the EEA Agreement and Article 3 of the then Directive 2003/54/EC (2) of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC (in so far as relevant to the EEA)? |
| --- | --- |

3.

Is a national rule as referred to in subquestion 1 above compatible with the principle of equal treatment and the prohibition of discrimination as embodied inter alia in Article 14 of the EEA Agreement and Article 3 of the then Directive 2003/54/EC (2) of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC (in so far as relevant to the EEA)?

---

(1)  OJ 2001 L 283, p. 33.

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

---

| 28.7.2012 | EN | Official Journal of the European Union | C 227/11 |
| --- | --- | --- | --- |

28.7.2012

EN

Official Journal of the European Union

C 227/11

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Reference for a preliminary ruling from the Rechtbank van eerste aanleg te Brussel (Belgium) lodged on 30 April 2012 — Essent Belgium NV v Vlaamse Reguleringsinstantie voor de Elektriciteits- en Gasmarkt (VREG)

(Case C-208/12)

2012/C 227/16

Language of the case: Dutch

Referring court

Rechtbank van eerste aanleg te Brussel

Parties to the main proceedings

Applicant: Essent Belgium NV

Defendant: Vlaamse Reguleringsinstantie voor de Elektriciteits- en Gasmarkt (VREG)

Other Party:

| | Vlaamse Gewest |
| --- | --- |

Vlaamse Gewest

| | Vlaamse Gemeenschap |
| --- | --- |

Vlaamse Gemeenschap

Questions referred

| 1. | Is a national rule, such as that embodied in the Flemish Decreet van 17 juli 2000 houdende de organisatie van de elektriciteitsmarkt (Decree of 17 July 2000 on the organisation of the market in electricity), as implemented by the Besluit (Decision) of the Flemish Government of 5 March 2004, as amended by the Besluit of the Flemish Government of 25 February 2005 on the promotion of the generation of electricity from renewable energy sources, where






  — | an obligation is imposed on the suppliers of electricity to final customers connected to the distribution network or the transmission network, to submit a certain number of green certificates annually to the Regulatory Authority (Article 23 of the aforementioned Decreet); |
| --- | --- | --- |

1.

Is a national rule, such as that embodied in the Flemish Decreet van 17 juli 2000 houdende de organisatie van de elektriciteitsmarkt (Decree of 17 July 2000 on the organisation of the market in electricity), as implemented by the Besluit (Decision) of the Flemish Government of 5 March 2004, as amended by the Besluit of the Flemish Government of 25 February 2005 on the promotion of the generation of electricity from renewable energy sources, where

—

an obligation is imposed on the suppliers of electricity to final customers connected to the distribution network or the transmission network, to submit a certain number of green certificates annually to the Regulatory Authority (Article 23 of the aforementioned Decreet);

| — | an administrative fine is imposed by the Vlaamse Reguleringsinstantie voor de Elektriciteits- en Gasmarkt (VREG) on the suppliers of electricity to final customers connected to the distribution network or the transmission network when the supplier has not submitted a sufficient number of green certificates to fulfil a quota obligation which has been imposed in respect of green certificates (Article 37(2) of the aforementioned Decreet); |
| --- | --- |

—

an administrative fine is imposed by the Vlaamse Reguleringsinstantie voor de Elektriciteits- en Gasmarkt (VREG) on the suppliers of electricity to final customers connected to the distribution network or the transmission network when the supplier has not submitted a sufficient number of green certificates to fulfil a quota obligation which has been imposed in respect of green certificates (Article 37(2) of the aforementioned Decreet);

| — | it is expressly provided that guarantees of origin from other countries may be submitted under certain conditions in order to fulfil the quota obligation (Article 15c(2) of the Besluit of the Flemish Government of 5 March 2004, as applicable in this case); |
| --- | --- |

—

it is expressly provided that guarantees of origin from other countries may be submitted under certain conditions in order to fulfil the quota obligation (Article 15c(2) of the Besluit of the Flemish Government of 5 March 2004, as applicable in this case);

| — | the Regulatory Authority cannot or will not take into account any guarantees of origin originating from Norway and that being in the absence of implementing measures on the part of the Flemish Government, which has acknowledged the equality or equivalence of those certificates (Article 25 of the aforementioned Decreet and Article 15c(2) of the Besluit of 5 March 2004), without that equality or equivalence being investigated by the Regulatory Authority in concrete terms; |
| --- | --- |

—

the Regulatory Authority cannot or will not take into account any guarantees of origin originating from Norway and that being in the absence of implementing measures on the part of the Flemish Government, which has acknowledged the equality or equivalence of those certificates (Article 25 of the aforementioned Decreet and Article 15c(2) of the Besluit of 5 March 2004), without that equality or equivalence being investigated by the Regulatory Authority in concrete terms;

| — | in fact, during the whole time that the Decreet of 17 July 2000 was in force, only certificates for the production of green energy generated in the Flemish Region were taken into account when ascertaining whether the quota obligation had been fulfilled, whereas for the suppliers of electricity to final customers connected to the distribution network or transmission network there was no possibility whatsoever of demonstrating that the guarantees of origin from other Member States of the European Union met the condition of the existence of equal or equivalent guarantees regarding the granting of such certificates, |
| --- | --- |

—

in fact, during the whole time that the Decreet of 17 July 2000 was in force, only certificates for the production of green energy generated in the Flemish Region were taken into account when ascertaining whether the quota obligation had been fulfilled, whereas for the suppliers of electricity to final customers connected to the distribution network or transmission network there was no possibility whatsoever of demonstrating that the guarantees of origin from other Member States of the European Union met the condition of the existence of equal or equivalent guarantees regarding the granting of such certificates,

compatible with Article 11 of the EEA Agreement and/or Article 13 of the EEA Agreement?’

| 2. | Is a national rule as referred to in subquestion 1 above compatible with Article 5 of the then Directive 2001/77/EC (1) of the European Parliament and of the Council of 27 September 2001 on the promotion of electricity produced from renewable energy sources in the internal electricity market (in so far as relevant to the EEA)? |
| --- | --- |

2.

Is a national rule as referred to in subquestion 1 above compatible with Article 5 of the then Directive 2001/77/EC (1) of the European Parliament and of the Council of 27 September 2001 on the promotion of electricity produced from renewable energy sources in the internal electricity market (in so far as relevant to the EEA)?

| 3. | Is a national rule as referred to in subquestion 1 above compatible with the principle of equal treatment and the prohibition of discrimination as embodied inter alia in Article 14 of the EEA Agreement and Article 3 of the then Directive 2003/54/EC (2) of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC (in so far as relevant to the EEA)? |
| --- | --- |

3.

Is a national rule as referred to in subquestion 1 above compatible with the principle of equal treatment and the prohibition of discrimination as embodied inter alia in Article 14 of the EEA Agreement and Article 3 of the then Directive 2003/54/EC (2) of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC (in so far as relevant to the EEA)?

---

(1)  OJ 2001 L 283, p. 33.

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

---

| 28.7.2012 | EN | Official Journal of the European Union | C 227/12 |
| --- | --- | --- | --- |

28.7.2012

EN

Official Journal of the European Union

C 227/12

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Reference for a preliminary ruling from the Audiencia Provincial de Oviedo (Spain) lodged on 14 May 2012 — Constructora Principado, S.A. v José Ignacio Menéndez Álvarez

(Case C-226/12)

2012/C 227/17

Language of the case: Spanish

Referring court

Audiencia Provincial de Oviedo

Parties to the main proceedings

Applicant: Constructora Principado, S.A.

Defendant: José Ignacio Menéndez Álvarez

Question referred

In the case of a contractual term which passes on to the consumer payment of an amount which by law is payable by the seller or supplier, is the imbalance referred to in Article 3(1) of Directive 93/13 (1) to be interpreted as arising merely from the act of passing on to the consumer an obligation to pay which by law falls on the seller or supplier, or does the fact that the Directive requires the imbalance to be significant mean that, in addition, the financial burden on the consumer must be significant in relation to the total amount of the transaction?

---

(1)  Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts

OJ 1993 L 95, p. 29.

---

| 28.7.2012 | EN | Official Journal of the European Union | C 227/13 |
| --- | --- | --- | --- |

28.7.2012

EN

Official Journal of the European Union

C 227/13

---

Reference for a preliminary ruling from Court of Appeal (England & Wales) (Civil Division) (United Kingdom) made on 16 May 2012 — Specsavers International Healthcare Ltd, Specsavers BV, Specsavers Optical Group Ltd, Specsavers Optical Superstores Ltd v Asda Stores Ltd

(Case C-252/12)

2012/C 227/18

Language of the case: English

Referring court

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

Parties to the main proceedings

Applicants: Specsavers International Healthcare Ltd, Specsavers BV, Specsavers Optical Group Ltd, Specsavers Optical Superstores Ltd

Defendants: Asda Stores Ltd

Questions referred

| 1. | Where a trader has separate registrations of Community trade marks for






  (i) | a graphic device mark; |
| --- | --- | --- |

1.

Where a trader has separate registrations of Community trade marks for

(i)

a graphic device mark;

| (ii) | a word mark; |
| --- | --- |

(ii)

a word mark;

and uses the two together, is such use capable of amounting to use of the graphic device mark for the purposes of Articles 15 and 51 of Regulation 207/2009? (1) If yes, how is the question of use of the graphic mark to be assessed?

| 2. | Does it make a difference if:






  (i) | the word mark is superimposed over the graphic device? |
| --- | --- | --- |

2.

Does it make a difference if:

(i)

the word mark is superimposed over the graphic device?

| (ii) | the trader also has the combined mark comprising graphic device and word mark registered as a Community trade mark? |
| --- | --- |

(ii)

the trader also has the combined mark comprising graphic device and word mark registered as a Community trade mark?

| 3. | Does the answer to A or B depend upon whether the graphic device and the words are perceived by the average consumer as (i) being separate signs; or (ii) each having an independent distinctive role? If so, how? |
| --- | --- |

3.

Does the answer to A or B depend upon whether the graphic device and the words are perceived by the average consumer as (i) being separate signs; or (ii) each having an independent distinctive role? If so, how?

| 4. | Where a Community trade mark is not registered in colour, but the proprietor has used it extensively in a particular colour or combination of colours such that it has become associated in the mind of a significant portion of the public (in a part but not the whole of the Community) with that colour or combination of colours, is the colour or colours with which the defendant uses the sign complained of relevant in the global assessment of (i) likelihood of confusion under Article 9(1)(b) or (ii) unfair advantage under Article 9(1)(c) of Regulation 207/2009? If so, how? |
| --- | --- |

4.

Where a Community trade mark is not registered in colour, but the proprietor has used it extensively in a particular colour or combination of colours such that it has become associated in the mind of a significant portion of the public (in a part but not the whole of the Community) with that colour or combination of colours, is the colour or colours with which the defendant uses the sign complained of relevant in the global assessment of (i) likelihood of confusion under Article 9(1)(b) or (ii) unfair advantage under Article 9(1)(c) of Regulation 207/2009? If so, how?

| 5. | If so, is it relevant as part of the global assessment that the defendant itself is associated in the mind of a significant portion of the public with the colour or particular combination of colours which it is using for the sign complained of? |
| --- | --- |

5.

If so, is it relevant as part of the global assessment that the defendant itself is associated in the mind of a significant portion of the public with the colour or particular combination of colours which it is using for the sign complained of?

---

(1)  OJ L 78, p. 1

---

| 28.7.2012 | EN | Official Journal of the European Union | C 227/13 |
| --- | --- | --- | --- |

28.7.2012

EN

Official Journal of the European Union

C 227/13

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Appeal brought on 29 May 2012 by Volkswagen AG against the judgment of the General Court (Second Chamber) delivered on 21 March 2012 in Case T-63/09 Volkswagen AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-260/12 P)

2012/C 227/19

Language of the case: German

Parties

Appellant: Volkswagen AG (represented by: H.-P. Schrammek, C. Drzymalla, S. Risthaus, Rechsanwälte)

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

Form of order sought

The appellant claims that the Court of Justice should:

| — | set aside in its entirety the judgment of the General Court (Second Chamber) of 21 March 2012 in Case T-63/09. |
| --- | --- |

—

set aside in its entirety the judgment of the General Court (Second Chamber) of 21 March 2012 in Case T-63/09.

Grounds of appeal and main arguments

The appeal has been brought against the judgment of the General Court of the European Union of 21 March 2012 in Case T-63/09, by which that court dismissed the action brought by Volkswagen AG against the decision of the Second Board of Appeal of OHIM of 9 December 2008 (Case R 749/2007-2) in opposition proceedings between Volkswagen AG and Suzuki Motor Corporation.

The appellant raises the following grounds of appeal:

| — | procedural errors in that it was denied the right to a fair hearing and the substance of the case was distorted, |
| --- | --- |

—

procedural errors in that it was denied the right to a fair hearing and the substance of the case was distorted,

| — | infringement of European Union law by a wrongful application of Article 8(1)(b) and (2)(a) of the Community trade mark regulation (Regulation No 207/2009). (1) |
| --- | --- |

—

infringement of European Union law by a wrongful application of Article 8(1)(b) and (2)(a) of the Community trade mark regulation (Regulation No 207/2009). (1)

The General Court infringed the appellant’s right to a fair hearing and distorted the substance of the case by failing to have regard to the facts put forward by the appellant. Contrary to the General Court’s findings, the appellant gave ample information in relation to the descriptive meaning of the designation SWIFT in the English language. The General Court also paid little attention to the information provided by the appellant in its appeal on the differences in commercial usage of the designation ‘GTI’ in individual countries.

Moreover, the General Court wrongly rejected the appellant’s submission of examples of descriptive meaning in the form of three-letter signs containing the letter ‘I’ which have been registered as having distinctive character. Furthermore, the General Court infringed the principles of a fair procedure by according different probative value to the fact of trade mark registration. The appellant’s right to a fair hearing was infringed in that the General Court paid no regard to its claims regarding the unique position of the designation ‘GTI’.

Finally, the General Court distorted the facts of the case by wrongly accusing the appellant of having failed to provide sufficient information on the legal enforcement of the mark ‘GTI’. The appellant’s submission in relation to the strength of the evidence, from which the Office for Harmonisation inferred the alleged commercial usage in Sweden, was also ignored by the General Court.

The General Court misapplied Article 8(1) and (2) of Regulation No 207/2009, thereby infringing European Union law. An application for a Community trade mark is to be rejected if an earlier mark exists in one of the Member States which is likely to be confused with the mark applied for. However, the General Court examined ‘the EU as a whole’ and thus incorporated aspects from countries in which such trade mark protection does not exist. This goes against the case-law of the Court of Justice in Matratzen Concord. (2)

The General Court infringed European Union law by classing the designation ‘GTI’ as a descriptive indication of a technical nature, even though that designation is registered as a mark in a number of Member States. It is purely the task of the national authorities to decide on the descriptive meaning of a mark in their respective territories. Only if an application has been made to remove a mark from the register can a body of the European Union take account of the invalidity of a national mark in determining whether there is a likelihood of confusion.

Moreover, the General Court unjustifiably specified new criteria to examine the individual position of a component within the contested mark. Furthermore, it infringed European Union law by taking the view that the mark itself was not sufficient for consumers to determine the commercial origin of the goods, and consumers would seek information unrelated to the registered mark, in particular indications as to who manufactures the goods. Finally, the General Court failed to have regard for the conditions for a likelihood of confusion in the context of a series of marks, since it rejected the addition of the mark ‘SWIFT GTI’ to the appellant’s series of signs ‘Golf GTI’ and ‘Lupo GTI’.

---

(1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).

(2)  Order in Case C-3/03 P Matratzen Concord [2004] ECR I-3657.

---

| 28.7.2012 | EN | Official Journal of the European Union | C 227/14 |
| --- | --- | --- | --- |

28.7.2012

EN

Official Journal of the European Union

C 227/14

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Appeal brought on 29 May 2012 by Annunziata Del Prete against the judgment delivered by the General Court (Second Chamber) on 27 March 2012 in Case T-420/10 Girogio Armani v OHIM

(Case C-261/12 P)

2012/C 227/20

Language of the case: Italian

Parties

Appellant: Annunziata Del Prete (represented by: R. Bocchini, avvocato)

Other parties to the proceedings: Girogio Armani SpA, Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Form of order sought

| — | Set aside in full the judgment of the General Court of the European Union of 27 March 2012 and, accordingly, uphold the decision of the Second Board of Appeal of OHIM delivered on 8 July 2010 and notified on 19 July 2010, on the ground that the latter fully complied with and applied the rules laid down in the Regulation on the Community trade mark, (1) in particular Article 8(1)(b) thereof, the only provision relied on in Opposition No B1309485. |
| --- | --- |

—

Set aside in full the judgment of the General Court of the European Union of 27 March 2012 and, accordingly, uphold the decision of the Second Board of Appeal of OHIM delivered on 8 July 2010 and notified on 19 July 2010, on the ground that the latter fully complied with and applied the rules laid down in the Regulation on the Community trade mark, (1) in particular Article 8(1)(b) thereof, the only provision relied on in Opposition No B1309485.

| — | Order the other parties to the proceedings to pay the costs. |
| --- | --- |

—

Order the other parties to the proceedings to pay the costs.

Pleas in law and main arguments

| 1. | It is disputed that there is graphic similarity between Community trade mark No 6314462 ‘AMICI JUNIOR’ and Italian national figurative mark Nos 912114 ‘AJ ARMANI JEANS’ and 998554 ‘ARMANI JUNIOR’, or any aural similarity. |
| --- | --- |

1.

It is disputed that there is graphic similarity between Community trade mark No 6314462 ‘AMICI JUNIOR’ and Italian national figurative mark Nos 912114 ‘AJ ARMANI JEANS’ and 998554 ‘ARMANI JUNIOR’, or any aural similarity.

| 2. | Article 8(5) of Regulation No 207/2009 and the princple that marks must be well known were applied in the judgment under appeal, even though Girogio Armani S.p.A. did not make any express reference to or rely on that provision or princple. |
| --- | --- |

2.

Article 8(5) of Regulation No 207/2009 and the princple that marks must be well known were applied in the judgment under appeal, even though Girogio Armani S.p.A. did not make any express reference to or rely on that provision or princple.

---

(1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).

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| 28.7.2012 | EN | Official Journal of the European Union | C 227/15 |
| --- | --- | --- | --- |

28.7.2012

EN

Official Journal of the European Union

C 227/15

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Appeal brought on 1 June 2012 by Telefónica SA against the order of the General Court (Eighth Chamber) delivered on 21 March 2012 in Case T-228/10 Telefónica v Commission

(Case C-274/12 P)

2012/C 227/21

Language of the case: Spanish

Parties

Appellant: Telefónica SA (represented by: J. Ruiz Calzado, abogado, M. Núñez-Müller, Rechtsanwalt, and J. Domínguez Pérez, abogado)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court of Justice should:

| — | set aside the order under appeal; |
| --- | --- |

—

set aside the order under appeal;

| — | declare the action for annulment in Case T-228/10 admissible and refer the case back to the General Court for it to give judgment on the substance of the dispute; |
| --- | --- |

—

declare the action for annulment in Case T-228/10 admissible and refer the case back to the General Court for it to give judgment on the substance of the dispute;

| — | order the Commission to pay all the costs of the proceedings at both instances relating to admissibility. |
| --- | --- |

—

order the Commission to pay all the costs of the proceedings at both instances relating to admissibility.

Grounds of appeal and main arguments

| 1. | The General Court erred in law in adopting a decision which infringes the right to an effective remedy. In considering, in a general manner, that the option of a reference for a preliminary ruling is always adequate and possible, the General Court infringed the appellant’s right at first instance to an effective remedy, such as laid down in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and which is recognised expressly in Article 47 of the Charter of Fundamental Rights of the European Union. |
| --- | --- |

1.

The General Court erred in law in adopting a decision which infringes the right to an effective remedy. In considering, in a general manner, that the option of a reference for a preliminary ruling is always adequate and possible, the General Court infringed the appellant’s right at first instance to an effective remedy, such as laid down in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and which is recognised expressly in Article 47 of the Charter of Fundamental Rights of the European Union.

| 2. | The General Court erred in law by wrongly interpreting the case-law on the admissibility of actions against decisions on State aid declaring an aid scheme unlawful and incompatible. |
| --- | --- |

2.

The General Court erred in law by wrongly interpreting the case-law on the admissibility of actions against decisions on State aid declaring an aid scheme unlawful and incompatible.

| 3. | The General Court erred in law in interpreting the fourth paragraph of Article 263 TFEU, in fine. The General Court erred in law in stating that decisions regarding State aid schemes, such as the contested decision, entail implementing measures within the meaning of the new Treaty provision (the fourth paragraph of Article 263 TFEU). In its order, the General Court failed to recognise that a negative decision regarding State aid has direct effect, immediately renders the aid granted unlawful, and normally implies an obligation on the part of the Member States to recover such aid. |
| --- | --- |

3.

The General Court erred in law in interpreting the fourth paragraph of Article 263 TFEU, in fine. The General Court erred in law in stating that decisions regarding State aid schemes, such as the contested decision, entail implementing measures within the meaning of the new Treaty provision (the fourth paragraph of Article 263 TFEU). In its order, the General Court failed to recognise that a negative decision regarding State aid has direct effect, immediately renders the aid granted unlawful, and normally implies an obligation on the part of the Member States to recover such aid.

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| 28.7.2012 | EN | Official Journal of the European Union | C 227/15 |
| --- | --- | --- | --- |

28.7.2012

EN

Official Journal of the European Union

C 227/15

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Action brought on 8 June 2012 — European Commission v Hungary

(Case C-288/12)

2012/C 227/22

Language of the case: Hungarian

Parties

Applicant: European Commission (represented by: B. Martenczuk and B.D. Simon, acting as Agent(s))

Defendant(s): Hungary

Form of order sought

| — | Declare that Hungary has failed to fulfil its obligations under Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data by removing the data protection supervisor from office before time. |
| --- | --- |

—

Declare that Hungary has failed to fulfil its obligations under Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data by removing the data protection supervisor from office before time.

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

—

Order Hungary to pay the costs.

Pleas in law and main arguments

Directive 95/46/EC provides that one or more public authorities of the Member States, which are to act with complete independence in exercising the functions entrusted to them, are to be responsible for monitoring the application of the national provisions transposing that Directive.

In Hungary, that authority was, until 31 December 2011, the data protection supervisor. Under the Hungarian legislation in force until 31 December 2011, the data protection supervisor was elected by the Hungarian Parliament for a period of six years. The term of office of the data protection supervisor in post on 31 December 2011 began on 29 September 2008, so that, in normal circumstances, he should have remained in post until September 2014.

With effect from 1 January 2012 the Hungarian legislation on this subject was amended. As a result of those amendments, the post of data protection supervisor was withdrawn and the data protection supervisor who had occupied the post since 29 September 2008 was removed from office. The authority responsible for supervising data protection in Hungary, within the meaning of Directive 95/46 was thereafter the newly created Nemzeti Adatvédelmi és Információszabadság Hatóság (national authority for data protection and freedom of information, ‘the authority’). According to the new legislation, the head of that authority is appointed by the President of the Republic on the proposal of the Prime Minister for a term of nine years. The previous data protection supervisor was not appointed to that post.

In the opinion of the Commission, the removal from office before time of the authority responsible for supervising data protection undermines the independence required by the Directive of that authority. The Directive does not fix the duration of the term of office of that supervisory authority, so that, in principle, the Member States are free to fix it. However, the term of office has to be of reasonable duration and it is indispensable that once a Member State has fixed the duration of that term of office, that duration should be respected. Otherwise, there would be a risk that the exercise of the functions of the supervisory authority would be influenced by the risk of removal from office before time, and that risk would undermine the independence of that authority.

As regards the admissibility of the application, the Commission alleges that, given that the authority previously entrusted with the supervision of data was not reinstated before the end of the period prescribed in the reasoned opinion, the infringement had not been remedied at that time. It takes the view that it is not impossible to remedy the infringement: Hungary needs to adopt the necessary measures to reinstate the previous data protection supervisor in the post referred to in Directive 95/46 for the remainder of his term of office from 31 December 2011. The Commission would consider it an adequate remedy if the previous data protection supervisor were appointed for that period of time to the post of head of the new authority. In that regard, Hungary cannot pray in aid the independence of the current head of the new authority, because that would require it to plead its own infringement in its defence. The effects of the infringement must be remedied, not maintained.

According to the Commission, removal from office before time can only be justified by overriding and objectively verifiable reasons, but Hungary has not put forward any such reasons.

The Commission does not dispute the right of Hungary to reorganise the supervisory authority, moving, for example, from the previous model of ‘data protection supervisor’ to a model consistent with Hungarian law in the form of an ‘authority’. However, the reform of the type of institution did not require in any way that the previous supervisory authority be removed from office. Hungary could have provided in its national legislation either that the new model should be applicable once the term of office of the data protection supervisor occupying the post had expired, or that the previous data protection supervisor should be appointed the first head of the new authority for the remainder of his term of office.

According to the Commission, if the position of the Member State regarding the change of model were to be accepted, all authorities responsible for supervising data protection in the Union would be permanently exposed to the risk of removal from office through a legislative measure cancelling the existing authority and establishing a newly created authority in its place to carry out the functions set out in Directive 95/46. It cannot be ruled out that such reforms could be used to penalise and monitor the authorities responsible for supervising data protection which earn the disapproval of the political authorities. The slightest risk of such influence is incompatible with the total independence of the supervisory authorities.

On the other hand, in the opinion of the Commission, Hungary cannot rely on vague statements by the previous data protection supervisor published in the press to presume that the latter was not prepared to fulfil the functions provided for by Article 28 of Directive 95/46, or to remove him from office before time on that basis.

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General Court

| 28.7.2012 | EN | Official Journal of the European Union | C 227/17 |
| --- | --- | --- | --- |

28.7.2012

EN

Official Journal of the European Union

C 227/17

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Judgment of the General Court of 18 June 2012 — Biofrescos v Commission

(Case T-159/09) (1)

(Customs union - Frozen shrimps and prawns from Indonesia - Invalid certificates of origin - Post-clearance recovery of import duties - Application for remission of import duties - Article 220(2)(b) and Article 239 of Regulation (EEC) No 2913/92)

2012/C 227/23

Language of the case: Portuguese

Parties

Applicant: Biofrescos — Comércio de Produtos Alimentares, Lda (Linda-a-Velha, Portugal) (represented by: A. de Magalhães Menezes, lawyer)

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

Re:

Application for annulment of Commission Decision C(2009) 72 final of 16 January 2009 finding that there should be post-clearance recovery of import duties and that remission of those duties is not justified in a particular case

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Biofrescos — Comércio de Produtos Alimentares, Lda to pay the costs. |
| --- | --- |

2.

Orders Biofrescos — Comércio de Produtos Alimentares, Lda to pay the costs.

---

(1)  OJ C 153, 4.7.2009.

---

| 28.7.2012 | EN | Official Journal of the European Union | C 227/17 |
| --- | --- | --- | --- |

28.7.2012

EN

Official Journal of the European Union

C 227/17

---

Judgment of the General Court of 21 June 2012 — Kavaklidere-Europe v OHIM — Yakult Honsha (Yakut)

(Case T-276/09) (1)

(Community trade mark - Opposition proceedings - Application for the Community word mark Yakut - Earlier Community figurative mark Yakult - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009)

2012/C 227/24

Language of the case: English

Parties

Applicant: Kavaklidere-Europe (Schoten, Belgium) (represented: initially by J. Vercraeye and I. Tytgat, and subsequently by J. Vercraeye and B. De Vuyst, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Yakult Honsha Kabushiki Kaisha (Tokyo, Japan) (represented by M. Edenborough QC, P. Harris, Solicitor, and T. Elias, Barrister)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 8 May 2009 (Case R 1396/2008-4) concerning opposition proceedings between Yakult Honsha Kabushiki Kaisha and Kavaklidere-Europe

Operative part of the judgment

The General Court:

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

1.

Dismisses the action;

| 2. | Orders Kavaklidere-Europe to pay the costs. |
| --- | --- |

2.

Orders Kavaklidere-Europe to pay the costs.

---

(1)  OJ C 244, 10.10.2009.

---

| 28.7.2012 | EN | Official Journal of the European Union | C 227/17 |
| --- | --- | --- | --- |

28.7.2012

EN

Official Journal of the European Union

C 227/17

---

Judgment of the General Court of 21 June 2012 — Spain v Commission

(Joined Cases T-178/10, T-263/10 and T-265/10) (1)

(Operational programmes of the Cohesion Fund and of the ERDF managed by Spain - Request for interim payment - Evidence suggesting significant deficiency in functioning of management and control systems - Measures interrupting the period for payment - Action for annulment - Admissibility - Audit strategy - Legal certainty - Legitimate expectations - Proportionality)

2012/C 227/25

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by: N. Díaz Abad, agent)

Defendant: European Commission (represented by: C. Urraca Caviedes and B. Conte and, in Case T-178/10, A. Steiblytė, agents)

Re:

Actions against the Commission decisions of 12 February 2010 (Case T-178/10), 8 April 2010 (Case T-263/10) and 15 April 2010 (Case T-265/10) informing the Spanish authorities of the interruption of the period for the settlement of certain requests for interim payment submitted by the Kingdom of Spain.

Operative part of the judgment

The Court:

| 1. | Orders that Cases T-178/10, T-263/10 and T-265/10 be joined for the purposes of judgment; |
| --- | --- |

1.

Orders that Cases T-178/10, T-263/10 and T-265/10 be joined for the purposes of judgment;

| 2. | Dismisses the actions; |
| --- | --- |

2.

Dismisses the actions;

| 3. | Orders the Kingdom of Spain to pay the costs. |
| --- | --- |

3.

Orders the Kingdom of Spain to pay the costs.

---

(1)  OJ C 161, 19.6.2010.

---

| 28.7.2012 | EN | Official Journal of the European Union | C 227/18 |
| --- | --- | --- | --- |

28.7.2012

EN

Official Journal of the European Union

C 227/18

---

Judgment of the General Court of 21 June 2012 — Spain v Commission

(Joined Cases T-264/10 and T-266/10) (1)

(Cohesion Fund and ERDF operational programme managed by Spain (ESF Combating discrimination 2007-2013 operational programme) - Interim payment application - Decision to suspend the payment deadline because of a significant deficiency in the operation of management and control systems - Actions for annulment - Admissibility - Article 87(2) of Regulation (EC) No 1083/2006)

2012/C 227/26

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by: N. Díaz Abad, agent)

Defendant: European Commission (represented by: C. Urraca Caviedes and B. Conte, agents)

Re:

Actions brought against the Commission decisions of 10 May (T-264/10) and 11 May 2010 (T-266/10) informing the Spanish authorities of the suspension of the deadline for the settlement of certain interim payment applications submitted by the Kingdom of Spain.

Operative part of the judgment

The Court:

| 1. | joins Cases T-264/10 and T-266/10 for the purposes of the judgment; |
| --- | --- |

1.

joins Cases T-264/10 and T-266/10 for the purposes of the judgment;

| 2. | annuls the Commission decisions of 10 May and 11 May 2010 informing the Spanish authorities of the suspension of the deadline for the settlement of certain interim payment applications submitted by the Kingdom of Spain;. |
| --- | --- |

2.

annuls the Commission decisions of 10 May and 11 May 2010 informing the Spanish authorities of the suspension of the deadline for the settlement of certain interim payment applications submitted by the Kingdom of Spain;.

| 3. | rejects the application for acknowledgment that the application for payment of interest for late payment is well founded; |
| --- | --- |

3.

rejects the application for acknowledgment that the application for payment of interest for late payment is well founded;

| 4. | declares that that there is no need to adjudicate on the head of claim that the General Court order a measure of organisation of procedure based on Article 64 of its Rules of Procedure; |
| --- | --- |

4.

declares that that there is no need to adjudicate on the head of claim that the General Court order a measure of organisation of procedure based on Article 64 of its Rules of Procedure;

| 5. | orders the Commission to pay the costs. |
| --- | --- |

5.

orders the Commission to pay the costs.

---

(1)  OJ C 221, 14.8.2010.

---

| 28.7.2012 | EN | Official Journal of the European Union | C 227/18 |
| --- | --- | --- | --- |

28.7.2012

EN

Official Journal of the European Union

C 227/18

---

Judgment of the General Court of 20 June 2012 — Kraft Foods Schweiz v OHIM — Compañía Nacional de Chocolates (CORONA)

(Case T-357/10) (1)

(Community trade mark - Opposition proceedings - Application for Community figurative mark CORONA - Earlier national word marks KARUNA and KARŪNA - Relative grounds for refusal - No likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009 - Article 8(5) of Regulation No 207/2009)

2012/C 227/27

Language of the case: English

Parties

Applicant: Kraft Foods Schweiz Holding GmbH (Zug, Switzerland) (represented by: P. Péters and T. de Haan, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Compañia Nacional de Chocolates, SA (Medellín, Colombia) (represented by: I. Temiño Ceniceros, lawyer)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 29 June 2010 (Case R 696/2009-4), relating to opposition proceedings between Kraft Foods Schweiz Holding GmbH and Compañia Nacional de Chocolates, SA.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Kraft Foods Schweiz Holding GmbH to pay the costs. |
| --- | --- |

2.

Orders Kraft Foods Schweiz Holding GmbH to pay the costs.

---

(1)  OJ C 288, 23.10.2010.

---

| 28.7.2012 | EN | Official Journal of the European Union | C 227/19 |
| --- | --- | --- | --- |

28.7.2012

EN

Official Journal of the European Union

C 227/19

---

Judgment of the General Court of 21 June 2012 — Fruit of the Loom v OHIM — Blueshore Management (FRUIT)

(Case T-514/10) (1)

(Community trade mark - Revocation proceedings - Community word mark FRUIT - Non-use - Article 15(1)(a) and Article 51(1)(a) of Regulation (EC) No 207/2009)

2012/C 227/28

Language of the case: English

Parties

Applicant: Fruit of the Loom, Inc. (Bowling Green, Kentucky, United States) (represented by: S. Malynicz, Barrister, and V. Marsland, Solicitor)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: initially by S. Schäffner, subsequently by G. Schneider, subsequently by D. Botis, and finally by J. Crespo Carrillo, acting as Agents)

Other party to the proceedings before the Board of Appeal of OHIM intervening before the General Court: Blueshore Management SA (Cernusco Sul Naviglio, Italy) (represented by: S. Corona and G. Ciccone, lawyers)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 30 August 2010 (Case R 1686/2008-4) concerning revocation proceedings between Blueshore Management SA and Fruit of the Loom, Inc.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Fruit of the Loom, Inc. to bear its own costs and to pay those incurred by OHIM; |
| --- | --- |

2.

Orders Fruit of the Loom, Inc. to bear its own costs and to pay those incurred by OHIM;

| 3. | Orders Blueshore Management SA to bear its own costs. |
| --- | --- |

3.

Orders Blueshore Management SA to bear its own costs.

---

(1)  OJ C 13, 15.1.2011.

---

| 28.7.2012 | EN | Official Journal of the European Union | C 227/19 |
| --- | --- | --- | --- |

28.7.2012

EN

Official Journal of the European Union

C 227/19

---

Judgment of the General Court of 19 June 2012 — H.Eich v OHIM — Arav (H.EICH)

(Case T-557/10) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark H.EICH - Earlier national figurative mark H SILVIAN HEACH - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009)

2012/C 227/29

Language of the case: Italian

Parties

Applicant: H.Eich Srl (Signa, Italy) (represented by: D. Mainini, T. Rubin, A. Masetti Zannini de Concina, M. Bucarelli, G. Petrocchi and B. Passaretti, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Arav Holding Srl (Palma Campania, Italy) (represented by: R. Bocchini, lawyer)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 9 September 2010 (Case R 1411/2009-1) concerning opposition proceedings between Arav Holding Srl and H.Eich Srl.

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 9 September 2010 (Case R 1411/2009-1); |
| --- | --- |

1.

Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 9 September 2010 (Case R 1411/2009-1);

| 2. | Orders OHIM to bear its own costs and pay those incurred by H.Eich Srl in the proceedings before the General Court; |
| --- | --- |

2.

Orders OHIM to bear its own costs and pay those incurred by H.Eich Srl in the proceedings before the General Court;

| 3. | Orders OHIM to pay the costs necessarily incurred for the purposes of the proceedings before the First Board of Appeal; |
| --- | --- |

3.

Orders OHIM to pay the costs necessarily incurred for the purposes of the proceedings before the First Board of Appeal;

| 4. | Orders Arav Holding Srl to bear its own costs. |
| --- | --- |

4.

Orders Arav Holding Srl to bear its own costs.

---

(1)  OJ C 30, 29.1.2011.

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| 28.7.2012 | EN | Official Journal of the European Union | C 227/19 |
| --- | --- | --- | --- |

28.7.2012

EN

Official Journal of the European Union

C 227/19

---

Judgment of the General Court of 19 June 2012 — Arango Jaramillo and Others v EIB

(Case T-234/11 P) (1)

(Appeals - Staff cases - EIB staff - Pensions - Contribution to the pension scheme - Dismissal of the action at first instance as manifestly inadmissible - Period allowed for commencing proceedings - Lateness - Reasonable period of time)

2012/C 227/30

Language of the case: French

Parties

Appellants: Oscar Orlando Arango Jaramillo (Luxembourg, Luxembourg) and the 34 other members of the staff of the European Investment Bank whose names appear in the Annex to the judgment (represented by: B. Cortese and C. Cortese, lawyers)

Other party to the proceedings: European Investment Bank (represented by: C. Gómez de la Cruz and T. Gilliams, acting as Agents, assisted by P.-E. Partsch, lawyer)

Re:

Appeal against the Order of the Civil Service Tribunal of the European Union (First Chamber) of 4 February 2011 in Case F-34/10 Arango Jaramillo and Others v EIB ECR SC I-A-1-0000 and II-A-1-0000, seeking to have that order set aside.

Operative part of the judgment

The Court:

| 1. | dismisses the appeal; |
| --- | --- |

1.

dismisses the appeal;

| 2. | orders Mr Oscar Orlando Arango Jaramillo and the 34 other members of the staff of the European Investment Bank (EIB) whose names appear in the Annex to bear their own costs and to pay those incurred by the EIB in these proceedings. |
| --- | --- |

2.

orders Mr Oscar Orlando Arango Jaramillo and the 34 other members of the staff of the European Investment Bank (EIB) whose names appear in the Annex to bear their own costs and to pay those incurred by the EIB in these proceedings.

---

(1)  OJ C 211, 16.7.2011.

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| 28.7.2012 | EN | Official Journal of the European Union | C 227/20 |
| --- | --- | --- | --- |

28.7.2012

EN

Official Journal of the European Union

C 227/20

---

Order of the General Court of 12 June 2012 — Vesteda Groep v Commission

(Case T-206/10) (1)

(State aid - Scheme of aid granted by the Netherlands to social housing corporations - Existing aid - Decision accepting the commitments made by the Member State - Action for annulment - Locus standi - Inadmissibility)

2012/C 227/31

Language of the case: Dutch

Parties

Applicant: Vesteda Groep BV (Maastricht, Netherlands) (represented by: G. van der Wal and T. Boesman, lawyers)

Defendant: European Commission (represented by: H. van Vliet, S. Noë and S. Thomas, acting as Agents, assisted by H. Gilliams, lawyer)

Re:

Application for annulment of Commission Decision C(2009) 9963 final of 15 December 2009 relating to State aid E 2/2005 and N 642/2009 — (Netherlands) — Existing and special project aid to housing corporations

Operative part of the order

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

1.

The action is dismissed.

| 2. | Vesteda Groep BV shall bear its own costs and pay those incurred by the European Commission. |
| --- | --- |

2.

Vesteda Groep BV shall bear its own costs and pay those incurred by the European Commission.

---

(1)  OJ C 179, 3.7.2010.

---

| 28.7.2012 | EN | Official Journal of the European Union | C 227/20 |
| --- | --- | --- | --- |

28.7.2012

EN

Official Journal of the European Union

C 227/20

---

Order of the General Court of 16 December 2011 — Google v OHIM — G-mail (GMail)

(Case T-527/10) (1)

(Community trade mark - Opposition - Withdrawal of the opposition - No need to adjudicate)

2012/C 227/32

Language of the case: English

Parties

Applicant: Google, Inc. (Wilmington, United States) (represented by: M. Kinkeldey and A. Bognár, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervening before the General Court: G-mail GmbH (Los Angeles, United States) (represented by: S. Eble, lawyer)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 8 September 2010 (Case R 342/2010-4) in relation to opposition proceedings between Giersch Ventures LLC and Google, Inc.

Operative part of the order

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

1.

There is no need to adjudicate on the action.

| 2. | The applicant and the intervener shall bear their own costs and shall each pay half of those incurred by the defendant. |
| --- | --- |

2.

The applicant and the intervener shall bear their own costs and shall each pay half of those incurred by the defendant.

---

(1)  OJ C 30, 29.1.2011.

---

| 28.7.2012 | EN | Official Journal of the European Union | C 227/20 |
| --- | --- | --- | --- |

28.7.2012

EN

Official Journal of the European Union

C 227/20

---

Order of the General Court of 4 June 2012 — Attey and Others v Council

(Joined Cases T-118/11, T-123/11 and T-124/11) (1)

(Common foreign and security policy - Restrictive measures adopted having regard to the situation in Côte d’Ivoire - Withdrawal of the list of persons concerned - Action for annulment - No need to adjudicate)

2012/C 227/33

Language of the case: French

Parties

Applicants: Philipp Attey (Abidjan, Côte d’Ivoire) (Case T-118/11); Thierry Legré (Abidjan) (Case T-123/11); and Stéphane Kipré (Abidjan) (T-124/11) (represented by: J.-C. Tchikaya, lawyer)

Defendant: Council of the European Union (represented by: B. Driessen and M. Chavrier, Agents)

Parties intervening in support of the defendant: Republic of Côte d’Ivoire (represented by: J.P. Mignard and J.P. Benoit, lawyers); and European Commission (represented by: A. Bordes and M. Konstantinidis, Agents)

Re:

Applications for annulment, first, of Council Decision 2011/18/CFSP of 14 January 2011, amending Council Decision 2010/656/CFSP renewing the restrictive measures against Côte d’Ivoire (OJ 2011 L 11, p. 36) and, secondly, of Council Regulation (EU) No 25/2011 of 14 January 2011 amending Regulation (EC) No 560/2005 imposing certain specific restrictive measures directed against certain persons and entities in view of the situation in Côte d’Ivoire (OJ 2011 L 11, p. 1), in so far as the applicants’ names have been placed on the list of persons and entities to which those restrictive measures apply.

Operative part of the order

| 1. | Cases T-118/11, T-123/11 and T-124/11 are to be joined for the purposes of the order. |
| --- | --- |

1.

Cases T-118/11, T-123/11 and T-124/11 are to be joined for the purposes of the order.

| 2. | There is no longer any need to adjudicate on the actions. |
| --- | --- |

2.

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

| 3. | The Council of the European Union is ordered to pay, in addition to its own costs, the costs incurred by Mr Philipp Attey, Mr Thierry Legré and Mr Stéphane Kipré. |
| --- | --- |

3.

The Council of the European Union is ordered to pay, in addition to its own costs, the costs incurred by Mr Philipp Attey, Mr Thierry Legré and Mr Stéphane Kipré.

| 4. | The Republic of Côte d’Ivoire and the European Commission are to bear their own costs. |
| --- | --- |

4.

The Republic of Côte d’Ivoire and the European Commission are to bear their own costs.

---

(1)  OJ C 130, 30.4.2011.

---

| 28.7.2012 | EN | Official Journal of the European Union | C 227/21 |
| --- | --- | --- | --- |

28.7.2012

EN

Official Journal of the European Union

C 227/21

---

Order of the General Court of 18 June 2012 — Transports Schiocchet — Excursions v Council and Commission

(Case T-203/11) (1)

(Non-contractual liability - Coach and bus services between Member States - Regulation (EEC) No 684/92 - Sufficiently serious breach of a rule of law conferring rights on individuals - Lack - Action manifestly lacking any foundation in law)

2012/C 227/34

Language of the case: French

Parties

Applicant: Transports Schiocchet — Excursions (Beuvillers, France) (represented by: É. Deshoulières, lawyer)

Defendants: Council of the European Union (represented by: E. Karlsson and E. Dumitriu-Segnana, Agents) and European Commission (represented by: G. Rozet and N. Yerrell, Agents)

Re:

Application for compensation for the damage purportedly suffered by the applicant by reason of the application of the system laid down in Council Regulation (EEC) No 684/92 of 16 March 1992 on common rules for the international carriage of passengers by coach and bus (OJ 1992 L 74, p. 1).

Operative part of the order

| 1. | The action is dismissed as manifestly lacking any foundation in law. |
| --- | --- |

1.

The action is dismissed as manifestly lacking any foundation in law.

| 2. | Transports Schiocchet — Excursions shall bear its own costs. |
| --- | --- |

2.

Transports Schiocchet — Excursions shall bear its own costs.

---

(1)  OJ C 186, 25.6.2011.

---

| 28.7.2012 | EN | Official Journal of the European Union | C 227/21 |
| --- | --- | --- | --- |

28.7.2012

EN

Official Journal of the European Union

C 227/21

---

Order of the General Court of 4 June 2012 — Elti v Delegation of the European Union to Montenegro

(Case T-395/11) (1)

(Actions for annulment - Public supply contracts - Tender procedure - Digitalisation of the Montenegrin Public Broadcasting - Decision awarding the contract taken by the Delegation of the European Union to Montenegro - No legal capacity to be a defendant - Inadmissibility)

2012/C 227/35

Language of the case: English

Parties

Applicant: Elti d.o.o. (Gornja Radgona, Slovenia) (represented by: N. Zidar Klemenčič, lawyer)

Defendant: Delegation of the European Union to Montenegro (represented by: initially N. Bertolini, acting as Agent, subsequently J. Stuyck and A.-M. Vandromme, lawyers)

Re:

Application, principally, for annulment of the decision of the Head of the Delegation of the European Union to Montenegro of 21 March 2011 rejecting the tender submitted by the applicant in the public procurement procedure for the supply of equipment for the digitalisation of the Montenegrin Public Broadcasting and, by way of corollary claim, of the decision to award that contract to another undertaking and, in the alternative, for damages

Operative part of the order

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

1.

The action is dismissed.

| 2. | Elti d.o.o. shall pay the costs, including those of the interim proceedings. |
| --- | --- |

2.

Elti d.o.o. shall pay the costs, including those of the interim proceedings.

---

(1)  OJ C 282, 24.9.2011.

---

| 28.7.2012 | EN | Official Journal of the European Union | C 227/22 |
| --- | --- | --- | --- |

28.7.2012

EN

Official Journal of the European Union

C 227/22

---

Order of the General Court (the judge hearing the application for interim measures) of 13 June 2012 — Morison Menon Chartered Accountants and Others v Council

(Case T-656/11 R II)

(Application for interim measures - No need to adjudicate)

2012/C 227/36

Language of the case: English

Parties

Applicants: Morison Menon Chartered Accountants and Others (Dubai, United Arab Emirates); Morison Menon Chartered Accountants — Dubai Office (Dubai); Morison Menon Chartered Accountants — Sharjah Office (Sharjah, United Arab Emirates) (represented by: H. Viaene, T. Ruys and D. Gillet, lawyers)

Defendant: Council of the European Union (represented by: M.-M. Joséphidès and S. Kyriakopoulou, Agents)

Re:

APPLICATION for the suspension of operation of, first, Council Implementing Regulation (EU) No 1245/2011 of 1 December 2011 implementing Regulation (EU) No 961/2010 on restrictive measures against Iran (OJ 2011 L 319, p. 11), and second, Council Decision 2011/783/CFSP of 1 December 2011 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2011 L 319, p. 71), to the extent that they add to the list of persons and entities whose funds and economic resources are to be frozen the entity designated as ‘Morison Menon Chartered Accountant’.

Operative part of the order

| 1. | There is no need to adjudicate on the application for interim measures. |
| --- | --- |

1.

There is no need to adjudicate on the application for interim measures.

| 2. | The costs are reserved. |
| --- | --- |

2.

The costs are reserved.

---

| 28.7.2012 | EN | Official Journal of the European Union | C 227/22 |
| --- | --- | --- | --- |

28.7.2012

EN

Official Journal of the European Union

C 227/22

---

Order of the General Court of 12 June 2012 — Strack v Commission

(Case T-65/12 P) (1)

(Appeal - Civil service - Officials - Order of referral - Decision which cannot be the object of an appeal - Appeal manifestly inadmissible)

2012/C 227/37

Language of the case: German

Parties

Appellant: Guido Strack (Cologne, Germany) (represented by: H. Tettenborn, lawyer)

Other party to the proceedings: European Commission (represented by: H. Krämer and B. Eggers, Agents)

Re:

Appeal brought against the order of the Civil Service Tribunal of the European Union (Second Chamber) of 7 December 2011 in Case F-44/05 RENV Strack v Commission (not published in the ECR), and seeking that that order be quashed.

Operative part of the order

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

1.

The appeal is dismissed.

| 2. | Mr Guido Strack is to bear his own costs and to pay those incurred by the European Commission in the present case. |
| --- | --- |

2.

Mr Guido Strack is to bear his own costs and to pay those incurred by the European Commission in the present case.

---

(1)  OJ C 118, 21.4.2012.

---

| 28.7.2012 | EN | Official Journal of the European Union | C 227/22 |
| --- | --- | --- | --- |

28.7.2012

EN

Official Journal of the European Union

C 227/22

---

Action brought on 21 May 2012 — Ålands Industrihus v Commission

(Case T-212/12)

2012/C 227/38

Language of the case: Swedish

Parties

Applicant: Ålands Industrihus (Mariehamn, Finland) (represented by: L. Laitinen, lawyer)

Defendant: European Commission

Form of order sought

| — | Annul Commission Decision C 6/2008 of 13 July 2011 on measures implemented by the Regional Government of Åland in favour of Ålands Industrihus Ab, and |
| --- | --- |

—

Annul Commission Decision C 6/2008 of 13 July 2011 on measures implemented by the Regional Government of Åland in favour of Ålands Industrihus Ab, and

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

—

Order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging incorrect application of Article 107(1) TFEU — not State aid






  — | The applicant claims that the injection of capital and loan guarantees do not constitute State aid since the aid has not distorted competition to the extent that it affects trade between Member States. The Commission has made a clearly incorrect assessment of the facts of the case, in particular by finding that there is no absolute obstacle to foreign undertakings carrying out their activity in Åland and, indeed, no obstacle which prevents them from investing in the local property market. |
| --- | --- | --- |

1.

First plea in law, alleging incorrect application of Article 107(1) TFEU — not State aid

—

The applicant claims that the injection of capital and loan guarantees do not constitute State aid since the aid has not distorted competition to the extent that it affects trade between Member States. The Commission has made a clearly incorrect assessment of the facts of the case, in particular by finding that there is no absolute obstacle to foreign undertakings carrying out their activity in Åland and, indeed, no obstacle which prevents them from investing in the local property market.

| 2. | Second plea in law, alleging incorrect application of Article 107(1) TFEU as regards the notion of private investor — not State aid






  — | The applicant claims that all the injections of capital were compatible with the market economy investor principle and thus did not distort or was likely to distort competition to the extent that it affects trade between Member States. The Commission has made an incorrect assessment as regards the measure’s compatibility with the market economy investor principle in that the Commission, inter alia, incorrectly and arbitrarily regarded the extent of the expected yield by focussing only on one yearly yield. In the applicant’s submission, the true expected yield was a combination of the yearly yield and the expected increase in value. |
| --- | --- | --- |

2.

Second plea in law, alleging incorrect application of Article 107(1) TFEU as regards the notion of private investor — not State aid

—

The applicant claims that all the injections of capital were compatible with the market economy investor principle and thus did not distort or was likely to distort competition to the extent that it affects trade between Member States. The Commission has made an incorrect assessment as regards the measure’s compatibility with the market economy investor principle in that the Commission, inter alia, incorrectly and arbitrarily regarded the extent of the expected yield by focussing only on one yearly yield. In the applicant’s submission, the true expected yield was a combination of the yearly yield and the expected increase in value.

| 3. | Third plea in law, alleging failure to have regard to the existing aid programme relating to the guarantees






  — | The Commission did not take account of the fact that at least two of the guarantees provided were included in an existing aid scheme. |
| --- | --- | --- |

3.

Third plea in law, alleging failure to have regard to the existing aid programme relating to the guarantees

—

The Commission did not take account of the fact that at least two of the guarantees provided were included in an existing aid scheme.

| 4. | Fourth plea in law, alleging incorrect assessment of the facts and failure to state reasons






  — | If, despite everything, the measures in question were to be regarded as constituting State aid, the amounts which are to be recovered are incorrectly calculated. Firstly, the Commission has, on the basis of weak, incomplete and extremely brief reasons, arbitrarily established that the scope of the recovery covers the entire invested capital sum. Secondly, the Commission has, on the basis of incomplete reasons, arbitrarily fixed the amount of the aid elements relating to the guarantees at an unreasonable and unrealistic level. The applicant claims that the lacunae and arbitrariness in the Commission’s reasons makes it almost impossible for the applicant adequately to counter the Commission’s allegations. |
| --- | --- | --- |

4.

Fourth plea in law, alleging incorrect assessment of the facts and failure to state reasons

—

If, despite everything, the measures in question were to be regarded as constituting State aid, the amounts which are to be recovered are incorrectly calculated. Firstly, the Commission has, on the basis of weak, incomplete and extremely brief reasons, arbitrarily established that the scope of the recovery covers the entire invested capital sum. Secondly, the Commission has, on the basis of incomplete reasons, arbitrarily fixed the amount of the aid elements relating to the guarantees at an unreasonable and unrealistic level. The applicant claims that the lacunae and arbitrariness in the Commission’s reasons makes it almost impossible for the applicant adequately to counter the Commission’s allegations.

| 5. | Fifth plea in law, alleging incorrect application of the rules on the reference rate






  — | The Commission has applied, in the calculation of the aid elements relating to the guarantees, its notice on review of the method for setting the reference and discount rates (1) with retroactive effect. That unfair retroactive application has meant that the aid elements relating to the guarantees to be recovered were fixed higher than they would have been had the correct document, which, in the submission of the applicant, is Notice 97/C 273/03 Commission on the method for setting the reference and discount rates (2) which was in force at the time when the guarantees were issued, formed the basis of the calculation. |
| --- | --- | --- |

5.

Fifth plea in law, alleging incorrect application of the rules on the reference rate

—

The Commission has applied, in the calculation of the aid elements relating to the guarantees, its notice on review of the method for setting the reference and discount rates (1) with retroactive effect. That unfair retroactive application has meant that the aid elements relating to the guarantees to be recovered were fixed higher than they would have been had the correct document, which, in the submission of the applicant, is Notice 97/C 273/03 Commission on the method for setting the reference and discount rates (2) which was in force at the time when the guarantees were issued, formed the basis of the calculation.

| 6. | Sixth plea in law, alleging that the applicant had legitimate expectations as regards the aid






  — | The applicant had, on the basis of the facts set out above under the first, second and third pleas in law, legitimate expectations that the Regional Government’s measures did not constitute unlawful State aid. The applicant none the less raised the question with the Regional Government, which confirmed that the measures were covered by notified aid schemes. |
| --- | --- | --- |

6.

Sixth plea in law, alleging that the applicant had legitimate expectations as regards the aid

—

The applicant had, on the basis of the facts set out above under the first, second and third pleas in law, legitimate expectations that the Regional Government’s measures did not constitute unlawful State aid. The applicant none the less raised the question with the Regional Government, which confirmed that the measures were covered by notified aid schemes.

| 7. | Seventh plea in law, alleging that the Commission’s decision endangers legal certainty and restricts the system of property ownership under Article 345 TFEU






  — | The Commission has totally ignored concurrent investments carried out by the municipality of Mariehamn which makes it impossible for the applicant to treat the shareholders identically in a recovery situation in accordance with binding provisions of Finnish company law. The Commission’s oversight thus distorts the economic end result for those involved in a way which means that the decision infringes Article 345 TFEU, under which the Treaties are in no way to prejudice the rules in Member States governing the system of property ownership. |
| --- | --- | --- |

7.

Seventh plea in law, alleging that the Commission’s decision endangers legal certainty and restricts the system of property ownership under Article 345 TFEU

—

The Commission has totally ignored concurrent investments carried out by the municipality of Mariehamn which makes it impossible for the applicant to treat the shareholders identically in a recovery situation in accordance with binding provisions of Finnish company law. The Commission’s oversight thus distorts the economic end result for those involved in a way which means that the decision infringes Article 345 TFEU, under which the Treaties are in no way to prejudice the rules in Member States governing the system of property ownership.

---

(1)  OJ 2008 C 14, p. 6.

(2)  OJ 1997 C 273, p. 3.

---

| 28.7.2012 | EN | Official Journal of the European Union | C 227/23 |
| --- | --- | --- | --- |

28.7.2012

EN

Official Journal of the European Union

C 227/23

---

Action brought on 21 May 2012 — Indesit Company v OHIM — ILVE (quadrio)

(Case T-214/12)

2012/C 227/39

Language in which the application was lodged: Italian

Parties

Applicant: Indesit Company SpA (Fabriano, Italy) (represented by: G. Floridia and R. Floridia, lawyers)

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

Other party to the proceedings before the Board of Appeal: ILVE-Industria Lavorazione Veneta Elettrodomestici SpA (Campodarsego, Italy)

Form of order sought

The applicant claims that the Court should:

| — | annul the decision of the First Board of Appeal of OHIM of 14 March 2012 in Case R 2219/2010-1 and declare Community trade mark No 7 313 158, which will use the word ‘quadrio’ in special writing to mark refrigerators, legally capable of being registered |
| --- | --- |

—

annul the decision of the First Board of Appeal of OHIM of 14 March 2012 in Case R 2219/2010-1 and declare Community trade mark No 7 313 158, which will use the word ‘quadrio’ in special writing to mark refrigerators, legally capable of being registered

Pleas in law and main arguments

Applicant for a Community trade mark: Indesit Company SpA

Community trade mark concerned: Figurative mark ‘quadrio’ for goods in Class 11 — Application No 7 313 158

Proprietor of the mark or sign cited in the opposition proceedings: ILVE-Industria Lavorazione Veneta Elettrodomestici SpA

Mark or sign cited in opposition: Word mark ‘QUADRA’ for goods in Class 11

Decision of the Opposition Division: Opposition upheld

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: Infringement of Article 8(1)(b) and (5) of Regulation No 207/2009

---

| 28.7.2012 | EN | Official Journal of the European Union | C 227/24 |
| --- | --- | --- | --- |

28.7.2012

EN

Official Journal of the European Union

C 227/24

---

Action brought on 28 May 2012 — Saobraćajni institut CIP v Commission

(Case T-219/12)

2012/C 227/40

Language of the case: English

Parties

Applicant: Saobraćajni institut CIP d.o.o. (Belgrade, Serbia) (represented by: A. Lojpur, lawyer)

Defendant: European Commission

Form of order sought

| — | Annul a call for tender published on 27 March 2012, concerning preparation of technical documentation for the rail modernization project ‘Doubling and upgrading of existing railway corridor Xb, section Novi Sad (excluding the junction)–Subotica–Hungarian border’ in accordance with EU interoperability standards, AGC, AGTC and the SEECP Agreement (OJ 2012/S 60-096517), excluding the applicant from participating in it; |
| --- | --- |

—

Annul a call for tender published on 27 March 2012, concerning preparation of technical documentation for the rail modernization project ‘Doubling and upgrading of existing railway corridor Xb, section Novi Sad (excluding the junction)–Subotica–Hungarian border’ in accordance with EU interoperability standards, AGC, AGTC and the SEECP Agreement (OJ 2012/S 60-096517), excluding the applicant from participating in it;

| — | Award damages for the alleged pecuniary loss; |
| --- | --- |

—

Award damages for the alleged pecuniary loss;

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

—

Order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging






  — | that there was no legal ground for a priori exclusion of the applicant in participating in a call for tender in question since there was no conflict of interest; |
| --- | --- | --- |

1.

First plea in law, alleging

—

that there was no legal ground for a priori exclusion of the applicant in participating in a call for tender in question since there was no conflict of interest;

| 2. | Second plea in law, alleging






  — | that the applicant’s exclusion from tender is contrary to IPA Regulation (1); |
| --- | --- | --- |

2.

Second plea in law, alleging

—

that the applicant’s exclusion from tender is contrary to IPA Regulation (1);

| 3. | Third plea in law, alleging






  — | that the conditions for awarding the contract were unlawful. |
| --- | --- | --- |

3.

Third plea in law, alleging

—

that the conditions for awarding the contract were unlawful.

---

(1)  Council Regulation (EC) No 1085/2006 of 17.7.2006 establishing an Instrument for Pre-Accession Assistance (IPA) (OJ L 210, p. 82)

---

| 28.7.2012 | EN | Official Journal of the European Union | C 227/24 |
| --- | --- | --- | --- |

28.7.2012

EN

Official Journal of the European Union

C 227/24

---

Action brought on 24 May 2012 — National Trust for Scotland v OHIM — Comhairle na Eilean Siar (ST KILDA)

(Case T-222/12)

2012/C 227/41

Language in which the application was lodged: English

Parties

Applicant: National Trust for Scotland (Edinburgh, United Kingdom) (represented by: J. MacKenzie, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Comhairle na Eilean Siar (Isle of Lewis, United Kingdom)

Form of order sought

| — | that the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade marks and Designs) dated 26 March 2012, in case R 310/2011-4, should be annulled in its entirety and that the application be refused; |
| --- | --- |

—

that the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade marks and Designs) dated 26 March 2012, in case R 310/2011-4, should be annulled in its entirety and that the application be refused;

| — | that OHIM and any intervening parties in this Appeal shall bear their own costs and pay the Applicant’s costs of these proceedings and those of the Appeal procedure before the Board of Appeal. |
| --- | --- |

—

that OHIM and any intervening parties in this Appeal shall bear their own costs and pay the Applicant’s costs of these proceedings and those of the Appeal procedure before the Board of Appeal.

Pleas in law and main arguments

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

Community trade mark concerned: The word mark ST KILDA for goods and services in classes 9, 16, 35, 39, 41 and 43 — Community trade mark application No 8 283 871

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

Mark or sign cited in opposition: Grounds laid down in Article 8(4) of Council Regulation No 207/2009, more particularly a non-registered trade mark protected in the UK, as well as third party observations under Article 40 of Council Regulation No 207/2009

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law:

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

—

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

| — | Infringement of Article 8(4) of Council Regulation No 207/2009. |
| --- | --- |

—

Infringement of Article 8(4) of Council Regulation No 207/2009.

---

| 28.7.2012 | EN | Official Journal of the European Union | C 227/25 |
| --- | --- | --- | --- |

28.7.2012

EN

Official Journal of the European Union

C 227/25

---

Action brought on 28 May 2012 — Ntouvas v ECDC

(Case T-223/12)

2012/C 227/42

Language of the case: English

Parties

Applicant: Ioannis Ntouvas (Sundbyberg, Sweden) (represented by: E. Mylonas, lawyer)

Defendant: European Centre for Disease Prevention and Control (Stockholm, Sweden)

Form of order sought

| — | Annul the decision of 27 March 2012 of the defendant to refuse the applicant access to final reports of audits carried out on ECDC by the Internal Audit Service of the European Commission; and |
| --- | --- |

—

Annul the decision of 27 March 2012 of the defendant to refuse the applicant access to final reports of audits carried out on ECDC by the Internal Audit Service of the European Commission; and

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging infringement of an essential procedural requirement (obligation to state reasons), thereby infringing Article 8(1) of Regulation (EC) No 1049/2001 (1) and Article 41(2)(c) of the Charter of Fundamental Rights of the European Union, as:






  — | The defendant stated only abstract and general reasons for refusing access to any, and all, reports it holds of audits carried out on ECDC by the Internal Audit Service of the European Commission; it moreover failed to demonstrate that an overriding public interest in disclosure did not exist; |
| --- | --- | --- |

1.

First plea in law, alleging infringement of an essential procedural requirement (obligation to state reasons), thereby infringing Article 8(1) of Regulation (EC) No 1049/2001 (1) and Article 41(2)(c) of the Charter of Fundamental Rights of the European Union, as:

—

The defendant stated only abstract and general reasons for refusing access to any, and all, reports it holds of audits carried out on ECDC by the Internal Audit Service of the European Commission; it moreover failed to demonstrate that an overriding public interest in disclosure did not exist;

| — | According to settled case-law, reasons stated for refusing access to documents must be concrete and individual, as well as specific and describe effectively the eventual interest prevailing over the applicant’s right of access, while demonstrating the non-existence of an overriding public interest in disclosure. |
| --- | --- |

—

According to settled case-law, reasons stated for refusing access to documents must be concrete and individual, as well as specific and describe effectively the eventual interest prevailing over the applicant’s right of access, while demonstrating the non-existence of an overriding public interest in disclosure.

| 2. | Second plea in law, alleging infringement of the Treaties (Art. 15(3) TFEU) and of a rule of law (Regulation (EC) No 1049/2001) relating to their application, as:






  — | By failing to state appropriate and sufficient reasons for refusing to disclose the requested documents, the defendant also breached its obligation under Articles 2(1) and 8(1) of Regulation (EC) No 1049/2001 and Article 15(3) TFEU to grant the applicant access to the requested documents within 15 working days from registration of his confirmatory application. |
| --- | --- | --- |

2.

Second plea in law, alleging infringement of the Treaties (Art. 15(3) TFEU) and of a rule of law (Regulation (EC) No 1049/2001) relating to their application, as:

—

By failing to state appropriate and sufficient reasons for refusing to disclose the requested documents, the defendant also breached its obligation under Articles 2(1) and 8(1) of Regulation (EC) No 1049/2001 and Article 15(3) TFEU to grant the applicant access to the requested documents within 15 working days from registration of his confirmatory application.

---

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

---

| 28.7.2012 | EN | Official Journal of the European Union | C 227/25 |
| --- | --- | --- | --- |

28.7.2012

EN

Official Journal of the European Union

C 227/25

---

Action brought on 29 May 2012 — Lidl Stiftung v OHIM — LĺDL MUSIC (LIDL express)

(Case T-225/12)

2012/C 227/43

Language in which the application was lodged: English

Parties

Applicant: Lidl Stiftung & Co. KG (Neckarsulm, Germany) (represented by: M. Schaeffer, M. Wolter and A. Marx, lawyers)

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

Other party to the proceedings before the Board of Appeal: LĺDL MUSIC, spol. s r.o. (Brno, Czech Republic)

Form of order sought

| — | Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade marks and Designs) of 21 March 2012 (R 2379/2010-1); |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade marks and Designs) of 21 March 2012 (R 2379/2010-1);

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘LIDL express’ for goods in class 15 — Community trade mark application No 6 857 536

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

Mark or sign cited in opposition: National figurative mark and community word mark ‘LÍDL MUSIC’ for goods in class 15

Decision of the Opposition Division: Upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law:

| — | Infringement of Article 15(1) in combination with Article 42(2) and (3) of Council Regulation No 207/2009 and Rule 22(3) and (4) of Commission Regulation No 2868/95; |
| --- | --- |

—

Infringement of Article 15(1) in combination with Article 42(2) and (3) of Council Regulation No 207/2009 and Rule 22(3) and (4) of Commission Regulation No 2868/95;

| — | Infringement of Article 15(1)(a) in combination with Article 42(2) and (3) of Council Regulation No 207/2009; |
| --- | --- |

—

Infringement of Article 15(1)(a) in combination with Article 42(2) and (3) of Council Regulation No 207/2009;

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

—

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

---

| 28.7.2012 | EN | Official Journal of the European Union | C 227/26 |
| --- | --- | --- | --- |

28.7.2012

EN

Official Journal of the European Union

C 227/26

---

Action brought on 29 May 2012 — Lidl Stiftung v OHIM — LĺDL MUSIC (LIDL)

(Case T-226/12)

2012/C 227/44

Language in which the application was lodged: English

Parties

Applicant: Lidl Stiftung & Co. KG (Neckarsulm, Germany) (represented by: M. Schaeffer, M. Wolter and A. Marx, lawyers)

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

Other party to the proceedings before the Board of Appeal: LĺDL MUSIC, spol. s r.o. (Brno, Czech Republic)

Form of order sought

| — | Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade marks and Designs) of 21 March 2012 (R 2380/2010-1); |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade marks and Designs) of 21 March 2012 (R 2380/2010-1);

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘LIDL’ for goods in class 15 — Community trade mark application No 6 861 025

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

Mark or sign cited in opposition: National figurative mark and community word mark ‘LÍDL MUSIC’ for goods in class 15

Decision of the Opposition Division: Upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law:

| — | Infringement of Article 15(1) in combination with Article 42(2) and (3) of Council Regulation No 207/2009 and Rule 22(3) and (4) of Commission Regulation No 2868/95; |
| --- | --- |

—

Infringement of Article 15(1) in combination with Article 42(2) and (3) of Council Regulation No 207/2009 and Rule 22(3) and (4) of Commission Regulation No 2868/95;

| — | Infringement of Article 15(1)(a) in combination with Article 42(2) and (3) of Council Regulation No 207/2009; |
| --- | --- |

—

Infringement of Article 15(1)(a) in combination with Article 42(2) and (3) of Council Regulation No 207/2009;

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

—

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

---

| 28.7.2012 | EN | Official Journal of the European Union | C 227/26 |
| --- | --- | --- | --- |

28.7.2012

EN

Official Journal of the European Union

C 227/26

---

Action brought on 30 May 2012 — Saobraćajni institut CIP v Commission

(Case T-227/12)

2012/C 227/45

Language of the case: English

Parties

Applicant: Saobraćajni institut CIP d.o.o. (Belgrade, Serbia) (represented by: A. Lojpur, lawyer)

Defendant: European Commission

Form of order sought

| — | Annul a call for tender published on 3 April 2012, concerning preparation of technical documentation for the rail modernization project ‘Construction of new single track railway bypass of Niš, from Robna station to Sicevo station’ in accordance with EU interoperability standards, AGC, AGTC and the SEECP Agreement (OJ 2012/S 65-104847), excluding the applicant from participating in it; |
| --- | --- |

—

Annul a call for tender published on 3 April 2012, concerning preparation of technical documentation for the rail modernization project ‘Construction of new single track railway bypass of Niš, from Robna station to Sicevo station’ in accordance with EU interoperability standards, AGC, AGTC and the SEECP Agreement (OJ 2012/S 65-104847), excluding the applicant from participating in it;

| — | Award damages for the alleged pecuniary loss; |
| --- | --- |

—

Award damages for the alleged pecuniary loss;

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

—

Order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging






  — | that there was no legal ground for a priori exclusion of the applicant in participating in a call for tender in question since there was no conflict of interest; |
| --- | --- | --- |

1.

First plea in law, alleging

—

that there was no legal ground for a priori exclusion of the applicant in participating in a call for tender in question since there was no conflict of interest;

| 2. | Second plea in law, alleging






  — | that the applicant’s exclusion from tender is contrary to IPA Regulation (1); |
| --- | --- | --- |

2.

Second plea in law, alleging

—

that the applicant’s exclusion from tender is contrary to IPA Regulation (1);

| 3. | Third plea in law, alleging






  — | that the conditions for awarding the contract were unlawful. |
| --- | --- | --- |

3.

Third plea in law, alleging

—

that the conditions for awarding the contract were unlawful.

---

(1)  Council Regulation (EC) No 1085/2006 of 17.7.2006 establishing an Instrument for Pre-Accession Assistance (IPA) (OJ L 210, p. 82)

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| 28.7.2012 | EN | Official Journal of the European Union | C 227/27 |
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Action brought on 25 May 2012 — Advance Magazine Publishers/OHIM — Eduardo López Cabré (VOGUE)

(Case T-229/12)

2012/C 227/46

Language in which the application was lodged: English

Parties

Applicant: Advance Magazine Publishers, Inc. (New York, USA) (represented by: C. Aikens, Barrister)

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

Other party to the proceedings before the Board of Appeal: Eduardo López Cabré (Barcelona, Spain)

Form of order sought

| — | Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade marks and Designs) of 26 March 2012 (R 1170/2011-4); |
| --- | --- |

—

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade marks and Designs) of 26 March 2012 (R 1170/2011-4);

| — | alternatively, to uphold the Opposition only so far as it relates to the following goods umbrellas, parasols and accessories for umbrellas and parasols; and |
| --- | --- |

—

alternatively, to uphold the Opposition only so far as it relates to the following goods umbrellas, parasols and accessories for umbrellas and parasols; and

| — | to order the Opponent to pay the costs incurred by the Applicant. |
| --- | --- |

—

to order the Opponent to pay the costs incurred by the Applicant.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘VOGUE’ for goods and services in classes 3, 9, 14, 16, 18, 21, 24, 26, 28, 35, 38, 39, 40, 41, 42, 43, 44 and 45 — Community trade mark application No 4 023 041

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

Mark or sign cited in opposition: The community and national word mark ‘VOGUE’ and the national figurative mark ‘VOGUE moda en lluvia’ for goods in class 18

Decision of the Opposition Division: Partly upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009.

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| 28.7.2012 | EN | Official Journal of the European Union | C 227/27 |
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28.7.2012

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Action brought on 30 May 2012 — Rocket Dog Brands/OHIM — Julius-K9 (JULIUS K9)

(Case T-231/12)

2012/C 227/47

Language in which the application was lodged: English

Parties

Applicant: Rocket Dog Brands LLC (Heywood, USA) (represented by: C. Aikens, Barrister)

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

Other party to the proceedings before the Board of Appeal: Julius-K9 bt (Szigetszentmiklós, Hungary)

Form of order sought

| — | To annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade marks and Designs) of 21 March 2012 (R 1124/2011-4) insofar as it rejects the Opposition in relation to all goods in class 25; and |
| --- | --- |

—

To annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade marks and Designs) of 21 March 2012 (R 1124/2011-4) insofar as it rejects the Opposition in relation to all goods in class 25; and

| — | to order the Applicant to pay the costs incurred by the Opponent |
| --- | --- |

—

to order the Applicant to pay the costs incurred by the Opponent

Pleas in law and main arguments

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

Community trade mark concerned: The word mark ‘JULIUS K9’ for goods in Classes 18, 25 and 28 — Community trade mark application No 8 542 201

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

Mark or sign cited in opposition: Two figurative marks depicting a dog, (crossed) bone(s) and the alphanumeric combination ‘K 9’ for goods in Classes 14, 18 and 25

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8 (1)(b) of Council Regulation No 207/2009.

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| 28.7.2012 | EN | Official Journal of the European Union | C 227/28 |
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28.7.2012

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C 227/28

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Action brought on 4 June 2012 — Versalis v Commission

(Case T-241/12)

2012/C 227/48

Language of the case: Italian

Parties

Applicant: Versalis SpA (San Donato Milanese, Italy) (represented by: F. Moretti, L. Nascimbene and M. Siragusa, lawyers)

Defendant: European Commission

Form of order sought

The applicant submits that the Court should:

| — | annul the contested measure by which the Commission held that the necessary conditions were present for reopening the procedure for imposing a penalty on Versalis SpA and Eni SpA, and order the Commission to pay the costs of the proceedings. |
| --- | --- |

—

annul the contested measure by which the Commission held that the necessary conditions were present for reopening the procedure for imposing a penalty on Versalis SpA and Eni SpA, and order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The present action has been brought against the decision allegedly contained in the letter from the European Commission of 23 April 2012 (D/2012/042050, entitled: COMP/F/38.638 — Butadiene rubber and emulsion styrene butadiene rubber — Re-adoption) by which Versalis SpA was informed of the Commission’s decision to proceed with the adoption of a new statement of objections and a new infringement decision which will impose a fine on that company, in connection with Procedure COMP/F/38.638 — Butadiene rubber and emulsion styrene butadiene rubber. That letter follows on from the judgment of 13 July 2011 in Case T-59/07, by which the General Court annulled the part of the infringement decision concerning the charge against the applicant — and, jointly and severally with that company, against Eni — relating to the aggravating circumstance of repeat infringements, leading to a recalculation of the fine imposed.

In support of its action, the applicant relies on a single plea in law.

By its first and only plea, the applicant alleges that the Commission lacked competence to reopen the procedure for imposing a penalty on it with a view to the adoption of the new infringement decision. In particular, the applicant maintains that the Commission’s power to impose penalties on Versalis SpA in connection with the subject-matter of Procedure COMP/F/38.638 — Butadiene rubber and emulsion styrene butadiene rubber came to an end following the adoption of the decision of 29 November 2006 (Commission Decision C(2006) 5700 final), as annulled and altered by the General Court of the European Union in its judgment of 13 July 2011 in Case T-59/07, at present under appeal before the Court of Justice.

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| 28.7.2012 | EN | Official Journal of the European Union | C 227/28 |
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28.7.2012

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Official Journal of the European Union

C 227/28

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Action brought on 8 June 2012 — Fuhr v Commission

(Case T-248/12)

2012/C 227/49

Language of the case: German

Parties

Applicant: Carl Fuhr GmbH & Co. KG (Heiligenhaus, Germany) (represented by: C. Bahr, S. Dethof and A. Malec, lawyers)

Defendant: European Commission

Form of order sought

| — | Annul Commission Decision C(2012) 2069 final of 28 March 2012 in Case COMP/39452 — Mountings for windows and window-doors, in so far as it concerns the applicant; |
| --- | --- |

—

Annul Commission Decision C(2012) 2069 final of 28 March 2012 in Case COMP/39452 — Mountings for windows and window-doors, in so far as it concerns the applicant;

| — | in the alternative, reduce, as appropriate, the fine imposed on the applicant in the contested decision; |
| --- | --- |

—

in the alternative, reduce, as appropriate, the fine imposed on the applicant in the contested decision;

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

—

order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

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

First, the applicant alleges infringement of Article 101 TFEU as a result of the assumption that the applicant participated in a complex single infringement. As a result of the global approach and assessment of the conduct of each of the undertakings concerned and an unlawful uniform approach towards all the participants, the defendant was in breach of its obligation to carry out a legal assessment of the individual participation of the undertakings involved. The defendant attributed the participation of others to the applicant without any legal basis for doing so, and thereby breached the principle nulla poena sine lege under Article 49(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’).

Second, the applicant complains of the erroneous assumption that the applicant participated in an EEA-wide infringement. The applicant did not participate in any of the numerous meetings and contacts outside Germany. Furthermore, it was not aware of an EEA-wide infringement, nor, in all the circumstances, should it have recognised this.

Third, the applicant alleges breach of the defendant’s obligation properly to state the reasons for its decision, in accordance with the second paragraph of Article 296 TFEU, on account of the global, uniform view taken of the participation of each of the undertakings concerned.

Fourth, the applicant alleges miscalculation of the fine owing to the inclusion of unrelated turnover, and thus infringement of Article 23(3) of Regulation No 1/2003 and of the 2006 Guidelines on fines. Given the lack of participation in an EEA-wide infringement, the defendant was entitled to take into account only the applicant’s turnover in Germany. Furthermore, the defendant was not entitled to take into account unrelated turnover involving wholesale customers who, as intended, sold the goods purchased exclusively outside the EEA.

Fifth, the applicant alleges fundamental errors of assessment in the calculation of the fine imposed on it, and thus infringement of Article 23(3) of Regulation No 1/2003 and breach of the principle of the proportionality of the penalty to the offence, laid down in Article 49(3), in conjunction with Article 48(1), of the Charter. The fine imposed on the applicant is excessively high and disproportionate. In calculating the fine the defendant failed, in particular, to assess the individual participation of the applicant in terms of duration, scope and intensity, or to take account of mitigating circumstances in the applicant’s favour.

Sixth, the applicant alleges breach of the principle of equal treatment on account of the arbitrary and incomprehensible insufficiently substantial reduction in the applicant’s fine. The reduction in the applicant’s fine is not commensurate with the extent of the reduction in the fines of all other participants, severely disadvantages the applicant and is in no way objectively justified.

Seventh, the applicant alleges breach of the principle of equal treatment in the calculation of the basic amount of the fine. Without taking any account at all of the gravity of the individual participation, the defendant established the same percentage of the basic amount of the fine in respect of all of the undertakings, and thereby severely disadvantaged the applicant.

Eighth, the applicant complains that the excessive duration of the proceedings and the failure to take that into account in the calculation of the fine constitutes an infringement of Article 41 of the Charter.

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| 28.7.2012 | EN | Official Journal of the European Union | C 227/29 |
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Action brought on 6 June 2012 — EGL and Others v Commission

(Case T-251/12)

2012/C 227/50

Language of the case: English

Parties

Applicants: EGL, Inc. (Houston, United States), CEVA Freight (UK) Ltd (Ashby de la Zouch, United Kingdom), CEVA Freight Shanghai Ltd (Shanghai, China) (represented by: M. Brealey, QC (Queen's Counsel), S. Love, Barrister, M. Pullen, D. Gillespie and R. Fawcett-Feuillette, Solicitors)

Defendant: European Commission

Form of order sought

| — | Annul Article 1 of the Commission Decision C(2012) 1959 final, dated 28 March 2012 in case COMP/39462 — Freight Forwarding, relating to proceedings under Article 101 TFEU and Article 53 of the EEA Agreement, insofar as the applicants were found to have been involved in two infringements of Article 101(1) TFEU, consisting of the so-called New Export System (‘NES’) arrangement and the Currency Adjustment Factor (‘CAF’) arrangement; |
| --- | --- |

—

Annul Article 1 of the Commission Decision C(2012) 1959 final, dated 28 March 2012 in case COMP/39462 — Freight Forwarding, relating to proceedings under Article 101 TFEU and Article 53 of the EEA Agreement, insofar as the applicants were found to have been involved in two infringements of Article 101(1) TFEU, consisting of the so-called New Export System (‘NES’) arrangement and the Currency Adjustment Factor (‘CAF’) arrangement;

| — | Annul Article 2 of Commission Decision C(2012) 1959 final, dated 28 March 2012, insofar as it imposes fines on the applicants or, in the alternative, reduce the amount of the fine; and |
| --- | --- |

—

Annul Article 2 of Commission Decision C(2012) 1959 final, dated 28 March 2012, insofar as it imposes fines on the applicants or, in the alternative, reduce the amount of the fine; and

| — | Order the defendant to pay the costs of making the application. |
| --- | --- |

—

Order the defendant to pay the costs of making the application.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging that the defendant failed to define the relevant market affected by the NES and CAF arrangements and has therefore breached the essential requirements of legal certainty. As such, it has committed an error of law and/or assessment of the facts. |
| --- | --- |

1.

First plea in law, alleging that the defendant failed to define the relevant market affected by the NES and CAF arrangements and has therefore breached the essential requirements of legal certainty. As such, it has committed an error of law and/or assessment of the facts.

| 2. | Second plea in law, alleging that the defendant failed to establish that the NES arrangement had an appreciable effect on trade between EU Member States. As such, it has erred in law and/or in its assessment of the facts in finding such an effect. |
| --- | --- |

2.

Second plea in law, alleging that the defendant failed to establish that the NES arrangement had an appreciable effect on trade between EU Member States. As such, it has erred in law and/or in its assessment of the facts in finding such an effect.

| 3. | Third plea in law, alleging that the defendant has imposed a fine in relation to the NES arrangement when it had no authority to do so as a consequence of Council Regulation (EEC) No 141/62 (1) as amended by Council Regulation (EEC) No 3975/87 (2). To this extent the contested decision is vitiated by lack of standing and/or an error of law. |
| --- | --- |

3.

Third plea in law, alleging that the defendant has imposed a fine in relation to the NES arrangement when it had no authority to do so as a consequence of Council Regulation (EEC) No 141/62 (1) as amended by Council Regulation (EEC) No 3975/87 (2). To this extent the contested decision is vitiated by lack of standing and/or an error of law.

| 4. | Fourth plea in law, alleging that the defendant, having erroneously awarded Deutsche Post immunity in respect of the CAF arrangement, has failed properly to recognise the intrinsic value of the evidence provided by the applicants in their immunity/leniency application to the Commission’s case in relation to the CAF arrangement. |
| --- | --- |

4.

Fourth plea in law, alleging that the defendant, having erroneously awarded Deutsche Post immunity in respect of the CAF arrangement, has failed properly to recognise the intrinsic value of the evidence provided by the applicants in their immunity/leniency application to the Commission’s case in relation to the CAF arrangement.

---

(1)  Regulation No 141 of the Council exempting transport from the application of Council Regulation No 17 (OJ 1962 124, p. 2751)

(2)  Council Regulation (EEC) No 3975/87 of 14 December 1987 laying down the procedure for the application of the rules on competition to undertakings in the air transport sector (OJ 1987 L 374, p. 1)

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| 28.7.2012 | EN | Official Journal of the European Union | C 227/30 |
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Action brought on 11 June 2012 — Gretsch-Unitas v Commission

(Case T-252/12)

2012/C 227/51

Language of the case: German

Parties

Applicants: Gretsch-Unitas GmbH (Ditzingen, Germany) and Gretsch-Unitas GmbH Baubeschläge (Ditzingen, Germany) (represented by: H.-J. Hellmann, C. Malz and S. Warken, lawyers)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

| — | annul the defendant’s Decision of 28 March 2012, which was notified to the applicants on 3 April 2012, relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union (TFEU) and Article 53 of the EEA Agreement (COMP/39452 — Mountings for windows and window-doors) in so far as it concerns the applicants; |
| --- | --- |

—

annul the defendant’s Decision of 28 March 2012, which was notified to the applicants on 3 April 2012, relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union (TFEU) and Article 53 of the EEA Agreement (COMP/39452 — Mountings for windows and window-doors) in so far as it concerns the applicants;

| — | in the alternative, reduce the fine imposed on the applicants; |
| --- | --- |

—

in the alternative, reduce the fine imposed on the applicants;

| — | 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 seven pleas in law.

| 1. | First, the defendant did not provide sufficient reasons for the contested decision as regards the determination of the basic amount of the fine imposed on the applicants and thus failed to comply with the obligation to state reasons under the second paragraph of Article 296 TFEU, which is an essential procedural requirement. |
| --- | --- |

1.

First, the defendant did not provide sufficient reasons for the contested decision as regards the determination of the basic amount of the fine imposed on the applicants and thus failed to comply with the obligation to state reasons under the second paragraph of Article 296 TFEU, which is an essential procedural requirement.

| 2. | Secondly, the defendant, in determining the basic amount of the fine imposed on the applicants, and without objective justification, treated them differently from other undertakings, and thus infringed the principles of proportionality and equal treatment. |
| --- | --- |

2.

Secondly, the defendant, in determining the basic amount of the fine imposed on the applicants, and without objective justification, treated them differently from other undertakings, and thus infringed the principles of proportionality and equal treatment.

| 3. | Thirdly, the defendant erred in setting the fine imposed on the applicants as it incorrectly assessed the extent of the reduction in the fine in respect of the applicants as the first undertaking which provided evidence that added significant value. The defendant also failed to explain in the manner required by law how it assessed the extent of the reduction in the fine in respect of the applicants as the first undertaking which provided evidence that added significant value |
| --- | --- |

3.

Thirdly, the defendant erred in setting the fine imposed on the applicants as it incorrectly assessed the extent of the reduction in the fine in respect of the applicants as the first undertaking which provided evidence that added significant value. The defendant also failed to explain in the manner required by law how it assessed the extent of the reduction in the fine in respect of the applicants as the first undertaking which provided evidence that added significant value

| 4. | Fourthly, the defendant infringed the principles of proportionality and equal treatment in calculating the reduction in the fine imposed on the applicants in that it did not make allowance for the competitive advantage which Siegenia received with reference to its economic position. |
| --- | --- |

4.

Fourthly, the defendant infringed the principles of proportionality and equal treatment in calculating the reduction in the fine imposed on the applicants in that it did not make allowance for the competitive advantage which Siegenia received with reference to its economic position.

| 5. | Fifthly, the defendant’s decision is erroneous having regard to the consideration which must be given to the gravity of the infringement in setting the fine imposed on the applicants. |
| --- | --- |

5.

Fifthly, the defendant’s decision is erroneous having regard to the consideration which must be given to the gravity of the infringement in setting the fine imposed on the applicants.

| 6. | Sixthly, the defendant failed to take account, as a mitigating factor when exercising its discretion in setting the fine imposed on the applicants, of their significantly smaller degree of participation in the conduct relevant for the purposes of the law on cartels. |
| --- | --- |

6.

Sixthly, the defendant failed to take account, as a mitigating factor when exercising its discretion in setting the fine imposed on the applicants, of their significantly smaller degree of participation in the conduct relevant for the purposes of the law on cartels.

| 7. | Seventhly, the defendant’s scheme of fines, as a whole, infringes the principle that punishments and penalties set should reflect individual circumstances and is therefore unlawful. |
| --- | --- |

7.

Seventhly, the defendant’s scheme of fines, as a whole, infringes the principle that punishments and penalties set should reflect individual circumstances and is therefore unlawful.

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| 28.7.2012 | EN | Official Journal of the European Union | C 227/31 |
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Action brought on 11 June 2012 — Kühne + Nagel International AG and Others v Commission

(Case T-254/12)

2012/C 227/52

Language of the case: German

Parties

Applicants: Kühne + Nagel International AG (Schindelligi, Switzerland), Kühne + Nagel Management AG (Schindellegi, Switzerland), Kühne +Nagel Ltd (Uxbridge, United Kingdom), Kühne +Nagel Ltd (Shanghai, China), Kühne +Nagel Ltd (Hong Kong, China) (represented by: U. Denzel, C. Klöppner and C. von Köckritz, lawyers)

Defendant: European Commission

Form of order sought

| — | Annul Articles 1, 2 and 3 of Commission Decision C(2012) 1959 final of 28 March 2012 in Case COMP/39462 — Freight Forwarding pursuant to the fourth paragraph of Article 263 TFEU, in so far as it concerns the applicants; |
| --- | --- |

—

Annul Articles 1, 2 and 3 of Commission Decision C(2012) 1959 final of 28 March 2012 in Case COMP/39462 — Freight Forwarding pursuant to the fourth paragraph of Article 263 TFEU, in so far as it concerns the applicants;

| — | In the alternative, reduce the level of the fines imposed on the applicants in Article 2 of the decision; |
| --- | --- |

—

In the alternative, reduce the level of the fines imposed on the applicants in Article 2 of the decision;

| — | Order the Commission to pay the applicants’ costs pursuant to Article 87(2) of the Rules of Procedure of the General Court. |
| --- | --- |

—

Order the Commission to pay the applicants’ costs pursuant to Article 87(2) of the Rules of Procedure of the General Court.

Pleas in law and main arguments

The Commission imposed a fine on the applicants because of participation in four different cartels in connection with the NES, AMS, CAF and PSS surcharges.

In support of the action concerning all the surcharges, the applicants rely on the following pleas in law:

| — | The imposition of the fine on the applicants is unlawful because of errors in the exercise of its discretion: first, the Commission wrongly determined the relevant turnover because the turnover relied upon by it bears no direct or indirect relationship to the infringement; second, and wrongly, no account was taken of the mitigating factors applicable to the applicants; |
| --- | --- |

—

The imposition of the fine on the applicants is unlawful because of errors in the exercise of its discretion: first, the Commission wrongly determined the relevant turnover because the turnover relied upon by it bears no direct or indirect relationship to the infringement; second, and wrongly, no account was taken of the mitigating factors applicable to the applicants;

| — | The level of the fines imposed infringes the principle of proportionality and Article 49(3) of the Charter of Fundamental Rights of the European Union. Owing to the peculiarities of the freight sector, the fines imposed by the Commission are grossly disproportionate and infringe Article 49(3) of the Charter of Fundamental Rights; |
| --- | --- |

—

The level of the fines imposed infringes the principle of proportionality and Article 49(3) of the Charter of Fundamental Rights of the European Union. Owing to the peculiarities of the freight sector, the fines imposed by the Commission are grossly disproportionate and infringe Article 49(3) of the Charter of Fundamental Rights;

| — | The applicants’ defence rights were infringed when the Commission rejected the application made by letter of 30 November 2011 for access to the file (to the file in Case COMP/39.258), thereby unlawfully restricting the applicants’ defence rights. |
| --- | --- |

—

The applicants’ defence rights were infringed when the Commission rejected the application made by letter of 30 November 2011 for access to the file (to the file in Case COMP/39.258), thereby unlawfully restricting the applicants’ defence rights.

In support of the claim in relation to the NES and AMS surcharges, the applicants also rely on the following pleas in law:

| — | Trade between the Member States is not affected. The Commission misapplied the law, since the conditions for application of Article 101(1) TFEU (effect on trade between Member States) are not satisfied; |
| --- | --- |

—

Trade between the Member States is not affected. The Commission misapplied the law, since the conditions for application of Article 101(1) TFEU (effect on trade between Member States) are not satisfied;

| — | The Commission misapplied the law by wrongly assuming the power to sanction infringements in the air transport sector under Article 101(1) TFEU; the Commission in any case unlawfully failed to grant an exemption under Regulation (EEC) No 3975/87 laying down the procedure for the application of the rules on competition to undertakings in the air transport sector. The Commission did not have the legal power to sanction infringements of Article 101(1) TFEU by fines because before 1 May 2004 there was no implementing regulation for aviation and air transport between the Union and third countries was therefore exempt (‘air transport exemption’); |
| --- | --- |

—

The Commission misapplied the law by wrongly assuming the power to sanction infringements in the air transport sector under Article 101(1) TFEU; the Commission in any case unlawfully failed to grant an exemption under Regulation (EEC) No 3975/87 laying down the procedure for the application of the rules on competition to undertakings in the air transport sector. The Commission did not have the legal power to sanction infringements of Article 101(1) TFEU by fines because before 1 May 2004 there was no implementing regulation for aviation and air transport between the Union and third countries was therefore exempt (‘air transport exemption’);

| — | The duration of the infringement was wrongly and unlawfully evaluated by the Commission in relation to the applicants. The Commission misapplied the law and failed to provide sufficient reasons for its decision in relation to the commencement date for the applicants. The applicants participated in the cartels regarding the NES surcharge from 4 November 2002 at the earliest and regarding the AMS surcharge from 21 October 2003 at the earliest. |
| --- | --- |

—

The duration of the infringement was wrongly and unlawfully evaluated by the Commission in relation to the applicants. The Commission misapplied the law and failed to provide sufficient reasons for its decision in relation to the commencement date for the applicants. The applicants participated in the cartels regarding the NES surcharge from 4 November 2002 at the earliest and regarding the AMS surcharge from 21 October 2003 at the earliest.

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| 28.7.2012 | EN | Official Journal of the European Union | C 227/31 |
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Action brought on 13 June 2012 — Hautau v Commission

(Case T-256/12)

2012/C 227/53

Language of the case: German

Parties

Applicant: Hautau GmbH (Helpsen, Germany) (represented by: C. Peter, lawyer)

Defendant: European Commission

Form of order sought

| — | Annul Commission Decision C(2012) 2069 final of 28 March 2012 in Case COMP/39452 — Mountings for windows and window-doors — in so far as it concerns the applicant; |
| --- | --- |

—

Annul Commission Decision C(2012) 2069 final of 28 March 2012 in Case COMP/39452 — Mountings for windows and window-doors — in so far as it concerns the applicant;

| — | in the alternative, reduce, as appropriate, the fine imposed on the applicant; |
| --- | --- |

—

in the alternative, reduce, as appropriate, the fine imposed on the applicant;

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

—

order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

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

| 1. | First, the decision relating to the fine is erroneously based on the assumption of an infringement of Article 101 TFEU, which cannot be the case, however, since discussions took place in the full knowledge and at the request of the other party in the market. |
| --- | --- |

1.

First, the decision relating to the fine is erroneously based on the assumption of an infringement of Article 101 TFEU, which cannot be the case, however, since discussions took place in the full knowledge and at the request of the other party in the market.

| 2. | Second, the decision relating to the fine is erroneously based on the assumption that mountings other than ‘turn-and-tilt’ mountings were the subject of the discussions between the participating undertakings. |
| --- | --- |

2.

Second, the decision relating to the fine is erroneously based on the assumption that mountings other than ‘turn-and-tilt’ mountings were the subject of the discussions between the participating undertakings.

| 3. | Third, even if an infringement of Article 101 TFEU were to have occurred, the decision relating to the fine is in any event erroneously based on the assumption that special mountings were also affected by the anti-competitive conduct. |
| --- | --- |

3.

Third, even if an infringement of Article 101 TFEU were to have occurred, the decision relating to the fine is in any event erroneously based on the assumption that special mountings were also affected by the anti-competitive conduct.

| 4. | Fourth, the assumption that the applicant participated in any anti-competitive collusion beyond the territory of the Federal Republic of Germany is also mistaken. The most that might be envisaged with regard to the applicant would be an infringement of Article 101(1) TFEU in respect of the Italian and Greek market for the year 2007. |
| --- | --- |

4.

Fourth, the assumption that the applicant participated in any anti-competitive collusion beyond the territory of the Federal Republic of Germany is also mistaken. The most that might be envisaged with regard to the applicant would be an infringement of Article 101(1) TFEU in respect of the Italian and Greek market for the year 2007.

| 5. | Fifth, the applicant also complains, in the alternative, further to the second to fourth pleas in law, that account was incorrectly taken, in the calculation of the fine, of turnover in respect of sliding mountings or special mountings, and of turnover not achieved in Germany. As a result of such turnover being included, the turnover established by the defendant for the purpose of establishing the basic amount was much too high. Consequently there was an infringement of Article 23(3) of Regulation No 1/2003. |
| --- | --- |

5.

Fifth, the applicant also complains, in the alternative, further to the second to fourth pleas in law, that account was incorrectly taken, in the calculation of the fine, of turnover in respect of sliding mountings or special mountings, and of turnover not achieved in Germany. As a result of such turnover being included, the turnover established by the defendant for the purpose of establishing the basic amount was much too high. Consequently there was an infringement of Article 23(3) of Regulation No 1/2003.

| 6. | Sixth, the applicant also complains in the alternative of an error of assessment in the calculation of the fine, with regard to the gravity of the infringement and the level of the increase for deterrence (‘entry fee’). The percentage applied in the applicant’s case in respect of the gravity of the infringement or the increase for deterrence was excessively high. To that extent also, there has been an infringement of Article 23(3) of Regulation No 1/2003. |
| --- | --- |

6.

Sixth, the applicant also complains in the alternative of an error of assessment in the calculation of the fine, with regard to the gravity of the infringement and the level of the increase for deterrence (‘entry fee’). The percentage applied in the applicant’s case in respect of the gravity of the infringement or the increase for deterrence was excessively high. To that extent also, there has been an infringement of Article 23(3) of Regulation No 1/2003.

| 7. | Seventh, the applicant further complains in the alternative of an infringement of Article 23(3) of Regulation No 1/2003 on the basis of the account erroneously taken of the turnover which the applicant achieved together with other members of the cartel. |
| --- | --- |

7.

Seventh, the applicant further complains in the alternative of an infringement of Article 23(3) of Regulation No 1/2003 on the basis of the account erroneously taken of the turnover which the applicant achieved together with other members of the cartel.

| 8. | Eighth, the decision is, moreover, vitiated by a grave defect in reasoning. It must therefore be annulled in its entirety on account of an infringement of Article 296 TFEU and consequential breach of the applicant’s rights of defence, irrespective of whether or not the applicant was involved in collusion contrary to Article 101 TFEU. It is not possible for the defect to be remedied during the ongoing proceedings. |
| --- | --- |

8.

Eighth, the decision is, moreover, vitiated by a grave defect in reasoning. It must therefore be annulled in its entirety on account of an infringement of Article 296 TFEU and consequential breach of the applicant’s rights of defence, irrespective of whether or not the applicant was involved in collusion contrary to Article 101 TFEU. It is not possible for the defect to be remedied during the ongoing proceedings.

| 9. | Ninth, the Commission erroneously proceeds on the assumption that the applicant participated in the (allegedly) anti-competitive collusion from 16 November 1999 to 3 July 2007. The complaint of a single and continuous infringement from 16 November 1999 to 3 July 2007 cannot, however, be sustained owing to an independent price increase for 2001 and the absence of agreement in respect of 2002. Thus, at most, the decision could include the period from 2003. However, in so far as it is asserted that the applicant engaged in anti-competitive conduct beyond the German market, the most that might be attributed to the applicant would be an infringement of Article 101 TFEU in 2007. The applicant therefore takes the view that there is no basis for any assumption, with regard to the applicant, of an infringement lasting seven years and seven months. |
| --- | --- |

9.

Ninth, the Commission erroneously proceeds on the assumption that the applicant participated in the (allegedly) anti-competitive collusion from 16 November 1999 to 3 July 2007. The complaint of a single and continuous infringement from 16 November 1999 to 3 July 2007 cannot, however, be sustained owing to an independent price increase for 2001 and the absence of agreement in respect of 2002. Thus, at most, the decision could include the period from 2003. However, in so far as it is asserted that the applicant engaged in anti-competitive conduct beyond the German market, the most that might be attributed to the applicant would be an infringement of Article 101 TFEU in 2007. The applicant therefore takes the view that there is no basis for any assumption, with regard to the applicant, of an infringement lasting seven years and seven months.

---

| 28.7.2012 | EN | Official Journal of the European Union | C 227/32 |
| --- | --- | --- | --- |

28.7.2012

EN

Official Journal of the European Union

C 227/32

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Action brought on 11 June 2012 — Siegenia-Aubi and Noraa v Commission

(Case T-257/12)

2012/C 227/54

Language of the case: German

Parties

Applicants: Siegenia-Aubi KG (Wilnsdorf, Germany) and Noraa GmbH (Wilnsdorf, Germany) (represented by: T. Caspary and J. van Kann, lawyers)

Defendant: European Commission

Form of order sought

| — | Annul in part Commission Decision C(2012) 2069 final of 28 March 2012 in Case COMP/39452 — Mountings for windows and window-doors in so far as it concerns the applicants; |
| --- | --- |

—

Annul in part Commission Decision C(2012) 2069 final of 28 March 2012 in Case COMP/39452 — Mountings for windows and window-doors in so far as it concerns the applicants;

| — | in the alternative, reduce, as appropriate, the amount of the fine imposed on the applicants in the contested decision, pursuant to Article 261 TFEU; |
| --- | --- |

—

in the alternative, reduce, as appropriate, the amount of the fine imposed on the applicants in the contested decision, pursuant to Article 261 TFEU;

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

—

order the defendant to pay the costs of these proceedings.

Pleas in law and main arguments

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

| 1. | First, in its findings the defendant breached the principles of the burden of proof (Article 2 of Regulation No 1/2003), the standard of proof and the obligation to state the reasons for its decision. In particular, the defendant failed to demonstrate sufficiently the existence of any alleged ‘signal effects’ on all mounting technologies and materials throughout the entire European Economic Area (EEA) of German prices for ‘turn-and-tilt’ systems, and thereby unlawfully reduced the burden of proof on the defendant. |
| --- | --- |

1.

First, in its findings the defendant breached the principles of the burden of proof (Article 2 of Regulation No 1/2003), the standard of proof and the obligation to state the reasons for its decision. In particular, the defendant failed to demonstrate sufficiently the existence of any alleged ‘signal effects’ on all mounting technologies and materials throughout the entire European Economic Area (EEA) of German prices for ‘turn-and-tilt’ systems, and thereby unlawfully reduced the burden of proof on the defendant.

| 2. | Second, the defendant erred in law in assuming that the alleged collusion affected the whole of the EEA, or failed to adduce sufficient evidence in that respect. |
| --- | --- |

2.

Second, the defendant erred in law in assuming that the alleged collusion affected the whole of the EEA, or failed to adduce sufficient evidence in that respect.

| 3. | Third, the defendant erred in law in assuming that the alleged infringement related to all mounting technologies and materials, and failed to adduce sufficient evidence in that respect. |
| --- | --- |

3.

Third, the defendant erred in law in assuming that the alleged infringement related to all mounting technologies and materials, and failed to adduce sufficient evidence in that respect.

| 4. | Fourth, the defendant erred in law in assuming that collusion on prices occurred in 2002, and failed to adduce sufficient evidence in that respect. As a result the Guidelines on fines were also applied incorrectly in law, in so far as it was erroneously assumed that the infringement lasted from 1999 until 2007. Furthermore the defendant infringed Article 25 of Regulation No 1/2003, because events that occurred before 2002 are time-barred. |
| --- | --- |

4.

Fourth, the defendant erred in law in assuming that collusion on prices occurred in 2002, and failed to adduce sufficient evidence in that respect. As a result the Guidelines on fines were also applied incorrectly in law, in so far as it was erroneously assumed that the infringement lasted from 1999 until 2007. Furthermore the defendant infringed Article 25 of Regulation No 1/2003, because events that occurred before 2002 are time-barred.

| 5. | Fifth, the defendant erred in law in attributing to the applicants the conduct of a company in which only a minority shareholding was held, thereby infringing the rules on the attribution of the actions of subsidiaries to the parent company, as well as the obligation to state reasons. |
| --- | --- |

5.

Fifth, the defendant erred in law in attributing to the applicants the conduct of a company in which only a minority shareholding was held, thereby infringing the rules on the attribution of the actions of subsidiaries to the parent company, as well as the obligation to state reasons.

| 6. | Sixth, in making an adjustment of the fine, the defendant breached the principles of equal treatment, proportionality, sound administration, and of the obligation to state reasons. Furthermore, the defendant acted contrary to the wording, logic and purpose of the Guidelines on fines. |
| --- | --- |

6.

Sixth, in making an adjustment of the fine, the defendant breached the principles of equal treatment, proportionality, sound administration, and of the obligation to state reasons. Furthermore, the defendant acted contrary to the wording, logic and purpose of the Guidelines on fines.

| 7. | Seventh, in determining the gravity of the infringement, the defendant breached the principles of proportionality and sound administration and infringed points 20, 23, and 25 of the Guidelines on fines, as well as the obligation to state reasons. |
| --- | --- |

7.

Seventh, in determining the gravity of the infringement, the defendant breached the principles of proportionality and sound administration and infringed points 20, 23, and 25 of the Guidelines on fines, as well as the obligation to state reasons.

| 8. | Eighth, in determining mitigating circumstances, the defendant breached the principles of equal treatment, point 29 of the Guidelines on fines and the obligation to state reasons. In particular the defendant failed to take into account the fact of the applicants’ non-intentional conduct and of their active cooperation. |
| --- | --- |

8.

Eighth, in determining mitigating circumstances, the defendant breached the principles of equal treatment, point 29 of the Guidelines on fines and the obligation to state reasons. In particular the defendant failed to take into account the fact of the applicants’ non-intentional conduct and of their active cooperation.

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| 28.7.2012 | EN | Official Journal of the European Union | C 227/33 |
| --- | --- | --- | --- |

28.7.2012

EN

Official Journal of the European Union

C 227/33

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Action brought on 11 June 2012 — Alban Giacomo v Commission

(Case T-259/12)

2012/C 227/55

Language of the case: Italian

Parties

Applicant: Alban Giacomo SpA (Romano d’Ezzelino, Italy) (represented by: S. Nanni Costa, F. Di Gianni, G. Coppo, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | Annul or, in the alternative, reduce the fine imposed on the applicant, if necessary by having recourse to the unlimited jurisdiction conferred on the Court by Article 261 TFEU; |
| --- | --- |

—

Annul or, in the alternative, reduce the fine imposed on the applicant, if necessary by having recourse to the unlimited jurisdiction conferred on the Court by Article 261 TFEU;

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

—

Order the Commission to pay the costs.

Pleas in law and main arguments

The decision contested in the present proceedings is the same as that in Case T-248/12 Carl Fuhr GmbH & C. KG v Commission.

The applicant relies on two pleas in law in support of its action.

| 1. | First plea, alleging that the determination of the duration of the infringement ascribed to Alban Giacomo SpA was unlawful.






  — | By the first plea, the applicant submits that the infringement established in its case ended at the time of the last meeting at which it particpated, namely on 11 September 2006, and not at the time of the inspections carried out by the Commission on 3 July 2007. |
| --- | --- | --- |

1.

First plea, alleging that the determination of the duration of the infringement ascribed to Alban Giacomo SpA was unlawful.

—

By the first plea, the applicant submits that the infringement established in its case ended at the time of the last meeting at which it particpated, namely on 11 September 2006, and not at the time of the inspections carried out by the Commission on 3 July 2007.

| — | The applicant puts forward the following arguments in support of this plea: (i) it has not been established that during the meeting held on 11 September 2006 the applicant concluded an agreement on price increases for 2007; (ii) it has not been established that the applicant implemented the purported agreement concerning price increases for 2007; (iii) it has not been established that the applicant remained in contact with competitors after the meeting of 11 September 2006. |
| --- | --- |

—

The applicant puts forward the following arguments in support of this plea: (i) it has not been established that during the meeting held on 11 September 2006 the applicant concluded an agreement on price increases for 2007; (ii) it has not been established that the applicant implemented the purported agreement concerning price increases for 2007; (iii) it has not been established that the applicant remained in contact with competitors after the meeting of 11 September 2006.

| 2. | Second plea in law, alleging that the fine imposed on Alban Giacomo SpA is unlawful, in so far as it is contrary to the principle that penalties must be specific to the offender and to the offence and the principles of non-discrimination, equal treatment and proportionality.






  — | By the second plea, the applicant claims that the Commission failed correctly to ensure that the fine imposed on it was commensurate with its degree of responsibilty vis-à-vis that of the other undertakings participating in the cartel, in breach of the fundametal princples of proportionality and equal treatment and the principle that penalties must be specific to the offender and to the offence. |
| --- | --- | --- |

2.

Second plea in law, alleging that the fine imposed on Alban Giacomo SpA is unlawful, in so far as it is contrary to the principle that penalties must be specific to the offender and to the offence and the principles of non-discrimination, equal treatment and proportionality.

—

By the second plea, the applicant claims that the Commission failed correctly to ensure that the fine imposed on it was commensurate with its degree of responsibilty vis-à-vis that of the other undertakings participating in the cartel, in breach of the fundametal princples of proportionality and equal treatment and the principle that penalties must be specific to the offender and to the offence.

| — | The applicant puts forward the following arguments in support of this plea: (i) the percentage of sales used for the purpose of calculating the fine is excessive; (ii) in the alternative, the refusal to grant the applicant the benefit of an attenuating circumstance is unjustified; (iii) in the further alternative, the Commission should have further reduced the fine imposed on the applicant. |
| --- | --- |

—

The applicant puts forward the following arguments in support of this plea: (i) the percentage of sales used for the purpose of calculating the fine is excessive; (ii) in the alternative, the refusal to grant the applicant the benefit of an attenuating circumstance is unjustified; (iii) in the further alternative, the Commission should have further reduced the fine imposed on the applicant.

---

European Union Civil Service Tribunal

| 28.7.2012 | EN | Official Journal of the European Union | C 227/35 |
| --- | --- | --- | --- |

28.7.2012

EN

Official Journal of the European Union

C 227/35

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Judgment of the Civil Service Tribunal (Third Chamber) of 13 June 2012 — Guittet v Commission

(Case F-31/10) (1)

(Civil Service - Former official - Social security - Accident - Closure of the procedure for the application of Article 73 of the Staff Regulations - Temporal application of the scale annexed to the new version of the rules concerning insurance against accidents and occupational diseases - Length of the procedure)

2012/C 227/56

Language of the case: French

Parties

Applicant: Christian Guittet (Cannes, France) (represented by: L. Levi, lawyer)

Defendant: European Commission (represented by: J. Currall and D. Martin, acting as Agents, and J.-L. Fagnart, lawyer)

Re:

Application to annul the decision to close the procedure opened under Article 73 of the Staff Regulations by granting the applicant a rate of permanent invalidity of 64,5 % and, secondly, the application for compensation for the material and non-material harm suffered.

Operative part of the judgment

The Tribunal:

| 1. | Annuls the decision of 27 July 2008 to close the procedure opened under Article 73 of the Staff Regulations of Officials of the European Union following the accident to Mr Guittet on 8 December 2003; |
| --- | --- |

1.

Annuls the decision of 27 July 2008 to close the procedure opened under Article 73 of the Staff Regulations of Officials of the European Union following the accident to Mr Guittet on 8 December 2003;

| 2. | Orders the European Commission to pay Mr Guittet the sum of EUR 2 500; |
| --- | --- |

2.

Orders the European Commission to pay Mr Guittet the sum of EUR 2 500;

| 3. | Dismisses the remainder of the action; |
| --- | --- |

3.

Dismisses the remainder of the action;

| 4. | Orders the European Commission to bear its own costs and to pay the costs incurred by Mr Guittet. |
| --- | --- |

4.

Orders the European Commission to bear its own costs and to pay the costs incurred by Mr Guittet.

---

(1)  OJ C 179, 3.7.2010, p. 59.

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| 28.7.2012 | EN | Official Journal of the European Union | C 227/35 |
| --- | --- | --- | --- |

28.7.2012

EN

Official Journal of the European Union

C 227/35

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Judgment of the Civil Service Tribunal (Second Chamber) of 16 May 2012 — AF v Commission

(Case F-61/10) (1)

(Civil Service - Officials - Request for assistance - Psychological harassment and discriminatory treatment - Error of assessment)

2012/C 227/57

Language of the case: French

Parties

Applicant: AF (represented by: F. Frabetti, lawyer)

Defendant: European Commission (represented by: D. Martin and J. Baquero Cruz, acting as Agents)

Re:

Application to annul the defendant’s decision rejecting the applicant’s request for assistance relating to psychological harassment of which he claims to have been a victim and application for compensation for the non-material damage suffered.

Operative part of the judgment

The Tribunal:

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

1.

Dismisses the action;

| 2. | Orders AF to pay all the costs. |
| --- | --- |

2.

Orders AF to pay all the costs.

---

(1)  OJ C 301, 6.11.2010, p. 63.

---

| 28.7.2012 | EN | Official Journal of the European Union | C 227/35 |
| --- | --- | --- | --- |

28.7.2012

EN

Official Journal of the European Union

C 227/35

---

Judgment of the Civil Service Tribunal (Third Chamber) of 13 June 2012 — BL v European Commission

(Case F-63/10) (1)

(Civil Service - Former official - Social security - Accident - Closure of the procedure for the application of Article 73 of the Staff Regulations - Temporal application of the scale annexed to the new version of the rules concerning insurance against accidents and occupational diseases - Length of the procedure)

2012/C 227/58

Language of the case: French

Parties

Applicant: BL (Brussels, Belgium) (represented by: L. Levi and C. Bernard-Glanz, lawyers)

Defendant: European Commission (represented by: J. Currall and D. Martin, acting as Agents)

Re:

Application to annul the Commission’s decision to close the procedure opened under Article 73 of the Staff Regulations following the applicant’s accident on 13 August 2001 by granting the applicant a rate of permanent invalidity of 6 % and an order that the defendant pay the applicant an amount in respect of damages.

Operative part of the judgment

The Tribunal:

| 1. | Annuls the decision of 28 October 2009 to close the opened under Article 73 of the Staff Regulations of Officials of the European Union following the accident to BL on 13 August 2001; |
| --- | --- |

1.

Annuls the decision of 28 October 2009 to close the opened under Article 73 of the Staff Regulations of Officials of the European Union following the accident to BL on 13 August 2001;

| 2. | Orders the European Commission to pay BL the sum of EUR 2 500; |
| --- | --- |

2.

Orders the European Commission to pay BL the sum of EUR 2 500;

| 3. | Dismisses the remainder of the action; |
| --- | --- |

3.

Dismisses the remainder of the action;

| 4. | Orders the European Commission to bear its own costs and to pay the costs incurred by BL. |
| --- | --- |

4.

Orders the European Commission to bear its own costs and to pay the costs incurred by BL.

---

(1)  OJ C 260, 25.9.2010, p. 29.

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| 28.7.2012 | EN | Official Journal of the European Union | C 227/36 |
| --- | --- | --- | --- |

28.7.2012

EN

Official Journal of the European Union

C 227/36

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Judgment of the Civil Service Tribunal (Third Chamber) of 13 June 2012 — Mocová v Commission

(Case F-41/11) (1)

(Civil service - Members of the temporary staff - Non-renewal of a fixed-term contract - Discretion - Article 8 of the Conditions of Employment of other Servants of the European Communities - Article 4 of the decision of the Director General of OLAF, of 30 June 2005, on the engagement and employment of OLAF’s temporary staff - Maximum duration of contracts of a temporary agent)

2012/C 227/59

Language of the case: French

Parties

Applicant: Dana Mocová (Brussels, Belgium) (represented by:D. Abreu Caldas, S. Orlandi, A.. Coolen, J.-N. Louis and É. Marchal, lawyers)

Defendant: European Commission (represented by: J Currall and D Martin, acting as Agents)

Re:

Application for annulment of the decision of the Director General of OLAF to reject the applicant’s application to extend her contract as a member of the temporary staff for the purposes of Article 2(1) of the Conditions of Employment of other Servants of the European Communities.

Operative part of the judgment

The Tribunal:

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

1.

Dismisses the action;

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

2.

Orders each party to bear its own costs.

---

(1)  OJ C 282 of 24/09/11, p. 51.

---

| 28.7.2012 | EN | Official Journal of the European Union | C 227/36 |
| --- | --- | --- | --- |

28.7.2012

EN

Official Journal of the European Union

C 227/36

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Judgment of the Civil Service Tribunal (Third Chamber) of 13 June 2012 — Macchia v Commission

(Case F-63/11) (1)

(Civil service - Members of the temporary staff - Non-renewal of a fixed-term contract - Administration’s discretion - Duty to have regard to the welfare of officials - Article 8 of the Conditions of Employment of other Servants of the European Communities - Article 4 of the decision of the Director General of OLAF, of 30 June 2005, on the engagement and employment of OLAF’s temporary staff - Maximum duration of contracts of a temporary agent)

2012/C 227/60

Language of the case: French

Parties

Applicant: Luigi Macchia (Woluwé-Saint-Lambert, Belgium) (represented by: S. Rogrigues, A. Blot and C. Bernard-Glanz, lawyers)

Defendant: European Commission (represented by: J. Currall and D. Martin, acting as Agents)

Re:

Application for annulment of the implied decision not to renew the applicant’s contract as a member of the temporary staff.

Operative part of the judgment

The Tribunal:

| 1. | Annuls the decision of the acting Director General of the European Anti-Fraud Office, of 12 August 2010, rejecting the application to extend Mr Macchia’s contract as a member of the temporary staff; |
| --- | --- |

1.

Annuls the decision of the acting Director General of the European Anti-Fraud Office, of 12 August 2010, rejecting the application to extend Mr Macchia’s contract as a member of the temporary staff;

| 2. | Rejects the application for the rest. |
| --- | --- |

2.

Rejects the application for the rest.

---

(1)  OJ C 226 of 30 July 2011, p. 32

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| 28.7.2012 | EN | Official Journal of the European Union | C 227/37 |
| --- | --- | --- | --- |

28.7.2012

EN

Official Journal of the European Union

C 227/37

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Judgment of the Civil Service Tribunal (Third Chamber) of 13 June 2012 — Davids v Commission

(Case F-105/11) (1)

(Civil Service - Temporary agents - Temporary agent occupying a permanent post - Non-renewal of a fixed-term contract - Discretion of the administration - Article 8 of the CEOS - Article 4 of the Decision of the Director General of OLAF of 30 June 2005 on a new policy for the engagement and use of OLAF's temporary agents - Maximum duration of temporary staff contracts - Abuse of rights)

2012/C 227/61

Language of the case: French

Parties

Applicant: Hans Davids (Doorn, Netherlands) (represented by: D. Abreu Caldas, S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal, lawyers)

Defendant: European Commission (represented by: J. Currall and D. Martin, acting as Agents)

Re:

Application for annulment of the decision of the Director-General of OLAF to reject the applicant’s request for the extension of the applicant’s contract as a member of the temporary staff within the meaning of Article 2(b) of the Conditions of Employment

Operative part of the judgment

The Tribunal:

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

1.

Dismisses the action;

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

2.

Orders each party to bear its own costs.

---

(1)  OJ C 6, 7.1.12, p. 26.

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| 28.7.2012 | EN | Official Journal of the European Union | C 227/37 |
| --- | --- | --- | --- |

28.7.2012

EN

Official Journal of the European Union

C 227/37

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Action brought on 18 June 2012 — ZZ v EMA

(Case F-47/12)

2012/C 227/62

Language of the case: French

Parties

Applicant: ZZ (represented by: D. Abreu Caldas, A. Coolen, J.-N. Louis, É. Marchal and S. Orlandi, lawyers)

Defendant: European Medicines Agency

Subject-matter and description of the proceedings

Annulment of the decision of the European Medicines Agency not to recognise the applicant’s permanent invalidity and not to award him an invalidity allowance.

Form of order sought

| — | Annul the decision of the European Medicines Agency of 15 September 2011 not to award the applicant an invalidity allowance because of his total permanent invalidity preventing him from performing the duties corresponding to a post in his function group and his grade; |
| --- | --- |

—

Annul the decision of the European Medicines Agency of 15 September 2011 not to award the applicant an invalidity allowance because of his total permanent invalidity preventing him from performing the duties corresponding to a post in his function group and his grade;

| — | so far as necessary, annul the decision of 16 January 2012 rejecting his complaint; |
| --- | --- |

—

so far as necessary, annul the decision of 16 January 2012 rejecting his complaint;

| — | order the European Medicines Agency to pay the costs. |
| --- | --- |

—

order the European Medicines Agency to pay the costs.

---

| 28.7.2012 | EN | Official Journal of the European Union | C 227/37 |
| --- | --- | --- | --- |

28.7.2012

EN

Official Journal of the European Union

C 227/37

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Action brought on 28 May 2012 — ZZ v Commission

(Case F-57/12)

2012/C 227/63

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 Commission’s decision to reduce the applicant’s invalidity allowance for the months of June to September 2011.

Form of order sought

| — | Annul the Commission’s decision, in so far as, ultraque incerta sunt, it exists, rejecting the request of 19 October 2011; |
| --- | --- |

—

Annul the Commission’s decision, in so far as, ultraque incerta sunt, it exists, rejecting the request of 19 October 2011;

| — | Annul the Commission’s decision, in so far as, ultraque incerta sunt, it exits, rejecting the request of 20 October 2011; |
| --- | --- |

—

Annul the Commission’s decision, in so far as, ultraque incerta sunt, it exits, rejecting the request of 20 October 2011;

| — | Annul each of the decisions, if and to the extent that, ultraque incerta sunt, they exist, on the basis of which the Commission unlawfully deducted from each monthly instalment of the invalidity allowance to which the applicant was entitled for the months of June to September 2011 sums totalling EUR 1 661, and annul the decisions, if and to the extent that they exist, to make those deductions; |
| --- | --- |

—

Annul each of the decisions, if and to the extent that, ultraque incerta sunt, they exist, on the basis of which the Commission unlawfully deducted from each monthly instalment of the invalidity allowance to which the applicant was entitled for the months of June to September 2011 sums totalling EUR 1 661, and annul the decisions, if and to the extent that they exist, to make those deductions;

| — | Order the Commission to pay to the applicant the sum of EUR 1 661, together with interest on that sum at the rate of 15 % per annum, with annual capitalisation, from 27 October 2011 until the date on which sums in question are actually paid, |
| --- | --- |

—

Order the Commission to pay to the applicant the sum of EUR 1 661, together with interest on that sum at the rate of 15 % per annum, with annual capitalisation, from 27 October 2011 until the date on which sums in question are actually paid,

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

—

Order the Commission to pay the costs.

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| 28.7.2012 | EN | Official Journal of the European Union | C 227/38 |
| --- | --- | --- | --- |

28.7.2012

EN

Official Journal of the European Union

C 227/38

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Action brought on 7 June 2012 — ZZ v Court of Auditors

(Case F-59/12)

2012/C 227/64

Language of the case: French

Parties

Applicant: ZZ (represented by: L. Levi, lawyer)

Defendant: European Court of Auditors

Subject-matter and description of the proceedings

Annulment of the vacancy notice ECA/2011/67 for the post of Director of the Directorate for Human Resources.

Form of order sought

| — | Annul the vacancy notice ECA/2011/67; |
| --- | --- |

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Annul the vacancy notice ECA/2011/67;

| — | annul all of the decisions taken in the course of the recruitment procedure opened following the vacancy notice ECA/2011/67; |
| --- | --- |

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annul all of the decisions taken in the course of the recruitment procedure opened following the vacancy notice ECA/2011/67;

| — | pay compensation for the material damage suffered consisting in the loss of financial rights connected to the appointment (including career and pension rights) and, therefore, the payment of those rights with effect from 1 January 2001; |
| --- | --- |

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pay compensation for the material damage suffered consisting in the loss of financial rights connected to the appointment (including career and pension rights) and, therefore, the payment of those rights with effect from 1 January 2001;

| — | taking account of the context of those decisions, award EUR 15 000 as compensation for the non-material damage; |
| --- | --- |

—

taking account of the context of those decisions, award EUR 15 000 as compensation for the non-material damage;

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

—

order the Court of Auditors to pay the costs.

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| 28.7.2012 | EN | Official Journal of the European Union | C 227/38 |
| --- | --- | --- | --- |

28.7.2012

EN

Official Journal of the European Union

C 227/38

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Action brought on 11 June 2012 — ZZ and ZZ v Commission

(Case F-61/12)

2012/C 227/65

Language of the case: French

Parties

Applicants: ZZ and ZZ (represented by: D. Abreu Caldas, A. Coolen, J.-N. Louis, É. Marchal and S. Orlandi, lawyers)

Defendant: European Commission

Subject-matter and description of the proceedings

Annulment of proposals for transfer of pension rights acquired before entering the service of the Commission on the basis of the calculation taking into account new GIP (general implementing provisions) entering into force after the applicants’ applications for transfer.

Form of order sought

| — | Annul the decisions rejecting the applicants’ complaints seeking the application of the GIP and actuarial rates in force when their applications for transfer of pension rights were made; |
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Annul the decisions rejecting the applicants’ complaints seeking the application of the GIP and actuarial rates in force when their applications for transfer of pension rights were made;

| — | So far as necessary, annul the decisions concerning calculation of the value of their pension rights acquired before they entered the service of the Commission; |
| --- | --- |

—

So far as necessary, annul the decisions concerning calculation of the value of their pension rights acquired before they entered the service of the Commission;

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

—

order the Commission to pay the costs.

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