# Official Journal C 267/2009

| | ISSN 1725-2423
  doi:10.3000/17252423.C_2009.267.eng |
| --- | --- |
| Official Journal
  of the European Union | C 267 |
| | |
| English edition | Information and Notices | Volume 527 November 2009 |

ISSN 1725-2423

doi:10.3000/17252423.C_2009.267.eng

Official Journal

of the European Union

C 267

English edition

Information and Notices

Volume 527 November 2009

---

| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES |
| | Court of Justice |
| 2009/C 267/01 | Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 256, 24.10.2009 | 1 |
| 2009/C 267/02 | Taking of the oath by the new Members of the Court of Justice | 1 |
| 2009/C 267/03 | Election of the President of the Court of Justice | 2 |
| 2009/C 267/04 | Election of Presidents of Chambers | 2 |
| 2009/C 267/05 | Appointment of the First Advocate General | 2 |
| 2009/C 267/06 | Assignment of Judges to the Chambers | 2 |
| 2009/C 267/07 | Lists for the purposes of determining the composition of the formations of the Court | 3 |
| 2009/C 267/08 | Designation of the Chamber responsible for cases of the kind referred to in Article 104b of the Rules of Procedure of the Court of Justice | 5 |
| 2009/C 267/09 | Taking of the oath by the new Members of the Court of First Instance | 5 |
| 2009/C 267/10 | Taking of the oath of a new Member of the Civil Service Tribunal | 5 |
| | Court of First Instance |
| 2009/C 267/11 | Election of a President of a Chamber | 6 |
| 2009/C 267/12 | Assignment of Judges to Chambers | 6 |

Notice No

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Court of Justice

2009/C 267/01

Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 256, 24.10.2009

Official Journal of the European Union

1

2009/C 267/02

Taking of the oath by the new Members of the Court of Justice

1

2009/C 267/03

Election of the President of the Court of Justice

2

2009/C 267/04

Election of Presidents of Chambers

2

2009/C 267/05

Appointment of the First Advocate General

2

2009/C 267/06

Assignment of Judges to the Chambers

2

2009/C 267/07

Lists for the purposes of determining the composition of the formations of the Court

3

2009/C 267/08

Designation of the Chamber responsible for cases of the kind referred to in Article 104b of the Rules of Procedure of the Court of Justice

5

2009/C 267/09

Taking of the oath by the new Members of the Court of First Instance

5

2009/C 267/10

Taking of the oath of a new Member of the Civil Service Tribunal

5

Court of First Instance

2009/C 267/11

Election of a President of a Chamber

6

2009/C 267/12

Assignment of Judges to Chambers

6

| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2009/C 267/13 | Case C-242/06: Judgment of the Court (First Chamber) of 17 September 2009 (reference for a preliminary ruling from the Raad van State (Netherlands)) — Minister voor Vreemdelingenzaken en Integratie v T. Sahin (EEC-Turkey Association Agreement — Freedom of movement for workers — Introduction of administrative charges for obtaining a residence permit in the host Member State — Infringement of the standstill clause in Article 13 of Decision No 1/80 of the Association Council) | 8 |
| 2009/C 267/14 | Case C-411/06: Judgment of the Court (Grand Chamber) of 8 September 2009 — Commission of the European Communities v European Parliament, Council of the European Union (Action for annulment — Regulation (EC) No 1013/2006 — Shipments of waste — Choice of legal basis — Articles 133 EC and 175(1) EC) | 8 |
| 2009/C 267/15 | Case C-42/07: Judgment of the Court (Grand Chamber) of 8 September 2009 (reference for a preliminary ruling from the Tribunal de Pequena Instância Criminal do Porto (Portugal)) — Liga Portuguesa de Futebol Profissional (CA/LPFP), Bwin International Ltd, formerly Baw International Ltd v Departamento de Jogos da Santa Casa da Misericórdia de Lisboa (Reference for a preliminary ruling — Article 49 EC — Restrictions on the freedom to provide services — Offer of games of chance via the internet) | 9 |
| 2009/C 267/16 | Case C-269/07: Judgment of the Court (Second Chamber) of 10 September 2009 — Commission of the European Communities v Federal Republic of Germany (Failure of a Member State to fulfil obligations — Freedom of movement for workers — Regulation (EEC) No 1612/68 — Savings-pension bonus — Full liability to tax) | 9 |
| 2009/C 267/17 | Case C-416/07: Judgment of the Court (Third Chamber) of 10 September 2009 — Commission of the European Communities v Hellenic Republic (Failure of a Member State to fulfil obligations — Directives 91/628/EEC and 93/119/EC — Regulation (EC) No 1/2005 — Protection of animals during transport and at the time of slaughter or killing — Structural and general infringement of Community rules) | 10 |
| 2009/C 267/18 | Joined Cases C-445/07 P and C-455/07 P: Judgment of the Court (First Chamber) of 10 September 2009 — Commission of the European Communities v Ente per le Ville Vesuviane (C-445/07 P), Ente per le Ville Vesuviane v Commission of the European Communities (C-455/07 P) (Appeal — European Regional Development Fund (ERDF) — Development of infrastructure for the expansion of tourism in Regione Campania (Italy) — Closure of Community financial assistance — Actions for annulment — Admissibility — Local or regional entity — Measures of direct and individual concern to that entity) | 11 |
| 2009/C 267/19 | Case C-446/07: Judgment of the Court (Fourth Chamber) of 10 September 2009 (reference for a preliminary ruling from the Tribunale civile di Modena (Italy)) — Alberto Severi, in his own name, and as legal representative of Cavazzuti e figli SpA, now known as Grandi Salumifici Italiani SpA v Regione Emilia-Romagna (Directive 2000/13/EC — Labelling of foodstuffs to be delivered as such to the ultimate consumer — Labelling likely to mislead the purchaser as to the origin or provenance of the foodstuff — Generic names within the meaning of Article 3 of Regulation (EEC) No 2081/92 — Effect) | 11 |
| 2009/C 267/20 | Case C-457/07: Judgment of the Court (Fourth Chamber) of 10 September 2009 — Commission of the European Communities v Portuguese Republic (Failure of a Member State to fulfil obligations — Articles 28 EC and 30 EC — Construction products — National approval procedure — Failure to take account of approval certificates drawn up in other Member States — Judgment of the Court establishing the failure of a Member State to fulfil its obligations — Non-implementation — Article 228 EC — Subject-matter of the dispute — Determination during the pre-litigation procedure — Subsequent extension — Not permissible) | 12 |
| 2009/C 267/21 | Case C-478/07: Judgment of the Court (Grand Chamber) of 8 September 2009 (reference for a preliminary ruling from the Handelsgericht Wien (Austria)) — Budějovický Budvar National Corporation v Rudolf Ammersin GmbH (Bilateral agreements between Member States — Protection in a Member State of a geographical indication of provenance of another Member State — Designation Bud — Use of the mark American Bud — Articles 28 EC and 30 EC — Regulation (EC) No 510/2006 — Community system of protection of geographical indications and of designations of origin — Accession of the Czech Republic — Transitional measures — Regulation (EC) No 918/2004 — Scope of the Community system — Exhaustive nature) | 12 |
| 2009/C 267/22 | Case C-519/07 P: Judgment of the Court (Third Chamber) of 17 September 2009 — Commission of the European Communities v Koninklijke FrieslandCampina NV, formerly Koninklijke Friesland Foods NV, formerly Friesland Coberco Dairy Foods Holding NV (Appeal — State aid — State aid scheme implemented by the Netherlands for international financing activities — Decision No 2003/515/EC — Incompatibility with the common market — Transitional provision — Admissibility — Standing to bring proceedings — Interest in bringing proceedings — Principle of protection of legitimate expectations — Principle of equal treatment) | 13 |
| 2009/C 267/23 | Case C-520/07 P: Judgment of the Court (First Chamber) of 17 September 2009 — Commission of the European Communities v MTU Friedrichshafen GmbH (Appeals — Restructuring aid — Decision ordering the recovery of aid incompatible with the common market — Article 13(1) of Regulation (EC) No 659/1999 — Joint and several liability) | 14 |
| 2009/C 267/24 | Case C-573/07: Judgment of the Court (Third Chamber) of 10 September 2009 (reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia (Italy)) — Sea s.r.l. v Comune di Ponte Nossa (Public procurement — Award procedures — Contract relating to a service for the collection, transport and disposal of urban waste — Awarded without any call for tenders — Awarded to a company limited by shares whose capital is wholly owned by public bodies but under whose statutes a private capital holding is possible) | 14 |
| 2009/C 267/25 | Case C-37/08: Judgment of the Court (First Chamber) of 3 September 2009 (Reference for a preliminary ruling from the VAT and Duties Tribunal, London — United Kingdom) — RCI Europe v Commissioners for Her Majesty’s Revenue and Customs (Sixth VAT Directive — Fiscal connection — Supply of services connected with immovable property — Services consisting in facilitating the exchange by owners of rights to occupy holiday homes) | 15 |
| 2009/C 267/26 | Case C-44/08: Judgment of the Court (Fourth Chamber) of 10 September 2009 (reference for a preliminary ruling from the Korkein oikeus (Finland)) — Akavan Erityisalojen Keskusliitto AEK ry and Others v Fujitsu Siemens Computers Oy (Preliminary ruling procedure — Directive 98/59/EC — Approximation of the laws of the Member States relating to collective redundancies — Article 2 — Protection of workers — Informing and consulting with workers — Group of undertakings — Parent company — Subsidiary) | 15 |
| 2009/C 267/27 | Case C-76/08: Judgment of the Court (Second Chamber) of 10 September 2009 — Commission of the European Communities v Republic of Malta (Failure of a Member State to fulfil obligations — Admissibility — Conservation of wild birds — Directive 79/409/EEC — Spring hunting — Prohibition — Derogation from the system of protection — Condition that there be no other satisfactory solution — Legitimate expectations) | 16 |
| 2009/C 267/28 | Case C-97/08 P: Judgment of the Court (Third Chamber) of 10 September 2009 — Akzo Nobel NV, Akzo Nobel Nederland BV, Akzo Nobel Chemicals International BV, Akzo Nobel Chemicals BV, Akzo Nobel Functional Chemicals BV v Commission of the European Communities (Appeal — Competition — Agreements, decisions and concerted practices — Article 81(1) EC — Article 53(1) of the EEA Agreement — Article 23(2) of Regulation (EC) No 1/2003 — Groups of undertakings — Imputability of infringements — Responsibility of a parent company for the infringement of competition rules by its subsidiaries — Decisive influence exercised by the parent company — Rebuttable presumption where the parent company has a 100 % shareholding) | 17 |
| 2009/C 267/29 | Case C-100/08: Judgment of the Court (Third Chamber) of 10 September 2009 — Commission of the European Communities v Kingdom of Belgium (Failure of a Member State to fulfil its obligations — Articles 28 EC and 30 EC — Protection of species of wild fauna and flora — Legislation on the keeping and marketing of birds born and bred in captivity legally placed on the market in other Member States) | 17 |
| 2009/C 267/30 | Case C-128/08: Judgment of the Court (First Chamber) of 16 July 2009 (reference for a preliminary ruling from the Tribunal de première instance de Liège (Belgium)) — Jacques Damseaux v État belge (Free movement of capital — Taxation of investment income — Double taxation convention — Obligation of the Member States under Article 293 EC) | 18 |
| 2009/C 267/31 | Case C-182/08: Judgment of the Court (First Chamber) of 17 September 2009 (reference for a preliminary ruling from the Bundesfinanzhof (Germany)) — Glaxo Wellcome GmbH & Co. v Finanzamt München II (Freedom of establishment and free movement of capital — Corporation tax — Acquisition of shares in a capital company — Conditions for taking into account, when determining the acquirer’s tax base, the reduction in value of the shares resulting from the dividend distribution) | 18 |
| 2009/C 267/32 | Case C-199/08: Judgment of the Court (Second Chamber) of 10 September 2009 (reference for a preliminary ruling from the Oberster Gerichtshof — Austria) — Dr. Erhard Eschig v UNIQA Sachversicherung AG (Legal expenses insurance — Directive 87/344/EEC — Article 4(1) — Right of insured persons to choose their own lawyer — Contractual limitation — Multiple insured persons suffering loss as a result of the same event — Selection of the legal representative by the insurer) | 19 |
| 2009/C 267/33 | Case C-201/08: Judgment of the Court (Third Chamber) of 10 September 2009 (reference for a preliminary ruling from the Hessisches Finanzgericht, Kassel (Germany)) — Plantanol GmbH & Co. KG v Hauptzollamt Darmstadt (Directive 2003/30/EC — Promotion of the use of biofuels or other renewable fuels for transport — Directive 2003/96/EC — Community framework for the taxation of energy products and electricity — Blend of vegetable oil, additives and fuel — Biofuels — National rules — Tax exemption — Replacement of the exemption by an obligation to maintain a minimum biofuel content in fuels — Conformity with Directives 2003/30/EC and 2003/96/EC — General principles of legal certainty and the protection of legitimate expectations) | 19 |
| 2009/C 267/34 | Case C-206/08: Judgment of the Court (Third Chamber) of 10 September 2009 (Reference for a preliminary ruling from the Thüringer Oberlandesgericht (Germany)) — Wasser- und Abwasserzweckverband Gotha und Landkreisgemeinden (WAZV Gotha) v Eurawasser Aufbereitungs- und Entsorgungsgesellschaft mbH (Procurement procedures of entities operating in the water, energy, transport and postal services sectors — Public service for the distribution of drinking water and the treatment of sewage — Service concession — Definition — Transfer to the supplier of the risk connected with operating the service in question) | 20 |
| 2009/C 267/35 | Case C-277/08: Judgment of the Court (First Chamber) of 10 September 2009 (reference for a preliminary ruling from the Juzgado de lo Social de Madrid (Spain)) — Francisco Vicente Pereda v Madrid Movilidad SA (Directive 2003/88/EC — Organisation of working time — Entitlement to paid annual leave — Sick leave — Annual leave coinciding with sick leave — Entitlement to take annual leave at another time) | 20 |
| 2009/C 267/36 | Case C-286/08: Judgment of the Court (Fifth Chamber) of 10 September 2009 — Commission of the European Communities v Hellenic Republic (Failure of a Member State to fulfil obligations — Environment — Directives 2006/12/EC and 91/689/EEC — Hazardous waste — Obligation to draw up and adopt a hazardous-waste management plan — Obligation to establish an integrated and adequate network of disposal installations for hazardous waste — Directive 1999/31/EC — Landfill of waste — Disposal of hazardous waste) | 21 |
| 2009/C 267/37 | Case C-292/08: Judgment of the Court (First Chamber) of 10 September 2009 (reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands)) — German Graphics Graphische Maschinen GmbH v Alice van der Schee, acting as liquidator of Holland Binding BV (Insolvency — Application of the law of the Member State of the opening of proceedings — Reservation of title — Situation of assets) | 22 |
| 2009/C 267/38 | Case C-347/08: Judgment of the Court (Third Chamber) of 17 September 2009 (reference for a preliminary ruling from the Landesgericht Feldkirch (Austria)) — Vorarlberger Gebietskrankenkasse v WGV-Schwäbische Allgemeine Versicherungs AG (Regulation (EC) No 44/2001 — Articles 9(1)(b) and 11(2) — Jurisdiction in matters relating to insurance — Motor accident — Statutory assignment of the rights of an injured party in favour of a social security institution — Action for recovery against the insurer of a person allegedly liable — Objective of protecting the weaker party) | 22 |
| 2009/C 267/39 | Case C-366/08: Judgment of the Court (Fourth Chamber) of 10 September 2009 (reference for a preliminary ruling from the Oberlandesgericht München — Germany) — Zentrale zur Bekämpfung unlauteren Wettbewerbs eV v Adolf Darbo AG (Harmonisation of laws — Directive 95/2/EC — Part A of Annex III — Directive 2001/113/EC — Second paragraph of Part II of Annex I — Extra jam with a soluble dry matter content of 58 % and containing potassium sorbate (E 202) as a preservative — Term low sugar jam) | 23 |
| 2009/C 267/40 | Case C-498/08 P: Order of the Court of 9 July 2009 — Fornaci Laterizi Danesi SpA v Commission of the European Communities (Appeal — Action for annulment — Time-limit for bringing an action — Inadmissibility because out of time — Appeal manifestly unfounded) | 23 |
| 2009/C 267/41 | Case C-225/08P: Appeal brought on 23 May 2008 by Nuova Argricast Srl against the order of the Court of First Instance (Fifth Chamber) of 12 March 2008 in Case T-443/07 Nuova Agricast Srl v Commission of the European Communities | 24 |
| 2009/C 267/42 | Case C-295/08 P: Appeal brought on 3 July 2008 by Cofra srl against the order of the Court of First Instance (Fifth Chamber) made on 15 April 2008 in Case T-478/07 Cofra srl v Commission of the European Communities | 24 |
| 2009/C 267/43 | Case C-580/08 P: Appeal brought on 24 December 2008 by Devrajan Srinivasan against the order of the Court of First Instance (Sixth Chamber) delivered on 03 November 2008 in Case T-196/08: Srinivasan/Médiateur | 24 |
| 2009/C 267/44 | Case C-29/09 P: Appeal brought on 21 January 2009 by Daniela Marinova against the order of the Court of First Instance (Sixth Chamber) delivered on 05 November 2008 in Case T-213/08: Marinova/Université Libre de Bruxelles and Commission | 24 |
| 2009/C 267/45 | Case C-59/09 P: Appeal brought on 9 December 2008 by Hasbro, Inc. against the decision of the Court of First Instance (Sixth Chamber) contained in a letter of 22 September 2008 in Case T-472/07: Enercon v OHIM | 24 |
| 2009/C 267/46 | Case C-262/09: Reference for a preliminary ruling from the Finanzgericht Köln (Germany) lodged on 13 July 2009 — Wienand Meilicke, Frau Heidi Christa Weyde and Marina Stöffler v Finanzamt Bonn-Innenstadt | 25 |
| 2009/C 267/47 | Case C-266/09: Reference for a preliminary ruling from the College van Beroep voor het Bedrijfsleven (The Netherlands) lodged on 10 June 2009 — Stichting Natuur en Milieu, Vereniging Milieudefensie, Vereniging Goede Waar & Co. v College voor het toelating van gewasbeschermingsmiddelen en biociden, other parties: Bayer CropScience BV and Nederlandse Stichting voor Fytofarmacie | 26 |
| 2009/C 267/48 | Case C-270/09: Reference for a preliminary ruling from Court of Session (Scotland), Edinburgh (United Kingdom) made on 14 July 2009 — Macdonald Resorts Limited v The Commissioners for Her Majesty's Revenue & Customs | 26 |
| 2009/C 267/49 | Case C-273/09: Reference for a preliminary ruling from the Rechtbank Haarlem (Netherlands), lodged on 16 July 2009 — Premis Medical BV v Inspecteur van de Belastingdienst/Douane Rotterdam, kantoor Rotterdam Laan op Zuid | 27 |
| 2009/C 267/50 | Case C-274/09: Reference for a preliminary ruling from the Oberlandesgericht München (Germany) lodged on 20 July 2009 — Privater Rettungsdienst und Krankentransport Stadler v Zweckverband für Rettungsdienst und Feuerwehralarmierung Passau — Joined parties: Malteser Hilfsdienst e.V. and Bayerisches Rotes Kreuz | 28 |
| 2009/C 267/51 | Case C-275/09: Reference for a preliminary ruling from the Raad van State (Belgium) lodged on 21 July 2009 — Brussels Hoofdstedelijk Gewest and Others v Vlaamse Gewest. Other party: Brussels International Airport Company NV, now The Brussels Airport Company NV | 28 |
| 2009/C 267/52 | Case C-276/09: Reference for a preliminary ruling from High Court of Justice (Chancery Division) (England and Wales) made on 20 July 2009 — T-Mobile (UK) Ltd v The Commissioners for Her Majesty's Revenue & Customs | 29 |
| 2009/C 267/53 | Case C-277/09: Reference for a preliminary ruling from Court of Session (Scotland), Edinburgh (United Kingdom) made on 21 July 2009 — The Commissioners for Her Majesty's Revenue & Customs v RBS Deutschland Holdings GmbH | 30 |
| 2009/C 267/54 | Case C-279/09: Reference for a preliminary ruling from the Kammergericht Berlin (Germany), lodged on 22 July 2009 — DEB Deutsche Energiehandels- und Beratungsgesellschaft mbH v Bundesrepublik Deutschland | 31 |
| 2009/C 267/55 | Case C-285/09: Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 24 July 2009 — Criminal proceedings against R | 31 |
| 2009/C 267/56 | Case C-291/09: Reference for a preliminary ruling from the Rechtbank van Koophandel te Brussel (Belgium) lodged on 27 July 2009 — Francesco Guarnieri & Cie v Vandevelde Eddy VOF | 31 |
| 2009/C 267/57 | Case C-296/09: Reference for a preliminary ruling from the Hof van Cassatie van België lodged on 29 July 2009 — Vlaamse Gemeenschap v M. Baesen | 31 |
| 2009/C 267/58 | Case C-298/09: Reference for a preliminary ruling from the Fővárosi Bíróság Gazdasági Kollégiuma (Hungary) lodged on 29 July 2009 — RANI Slovakia s.r.o. v Hankook Tire Magyarország Kft. | 32 |
| 2009/C 267/59 | Case C-299/09: Reference for a preliminary ruling from the Nejvyšší správní soud (Czech Republic) lodged on 30 July 2009 — DAR Duale Abfallwirtschaft und Verwertung Ruhrgebiet GmbH v Ministerstvo životního prostředí | 32 |
| 2009/C 267/60 | Case C-300/09: Reference for a preliminary ruling from the Raad van State (Netherlands), lodged on 30 July 2009 — Staatssecretaris van Justitie; other party: F. Toprak | 33 |
| 2009/C 267/61 | Case C-301/09: Reference for a preliminary ruling from the Raad van State (Netherlands), lodged on 30 July 2009 — Staatssecretaris van Justitie; other party: I. Oguz | 33 |
| 2009/C 267/62 | Case C-307/09: Reference for a preliminary ruling from the Raad van State (Netherlands), lodged on 3 August 2009 — Vicoplus SC PUH; other party: Minister van Sociale Zaken en Werkgelegenheid | 34 |
| 2009/C 267/63 | Case C-308/09: Reference for a preliminary ruling from the Raad van State (Netherlands), lodged on 3 August 2009 — B.A.M. Vermeer Contracting Sp. z o.o.; other party: Minister van Sociale Zaken en Werkgelegenheid | 34 |
| 2009/C 267/64 | Case C-309/09: Reference for a preliminary ruling from the Raad van State (Netherlands), lodged on 3 August 2009 — Olbek Industrial Services sp. z.o.o.; other party: Minister van Sociale Zaken en Werkgelegenheid | 34 |
| 2009/C 267/65 | Case C-314/09: Reference for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 7 August 2009 — Stadt Graz v Strabag AG, Teerag-Asdag AG, Bauunternehmung Granit GesmbH | 35 |
| 2009/C 267/66 | Case C-316/09: Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 10 August 2009 — MSD Sharp & Dohme GmbH v Merckle GmbH | 35 |
| 2009/C 267/67 | Case C-317/09 P: Appeal brought on 10 August 2009 by ArchiMEDES against the judgment of the Court of First Instance (Fifth Chamber) delivered on 10 June 2009 in Joined Cases T-396/05 and T-397/05 ArchiMEDES v Commission | 36 |
| 2009/C 267/68 | Case C-318/09 P: Appeal brought on 11 August 2009 by A2A SpA, formerly ASM Brescia SpA, against the judgment of the Court of First Instance (Eighth Chamber, Extended Composition) delivered on 11 June 2009 in Case T-189/03 ASM Brescia SpA v Commission of the European Communities | 37 |
| 2009/C 267/69 | Case C-319/09 P: Appeal brought on 11 August 2009 by ACEA SpA against the judgment of the Court of First Instance (Eighth Chamber, Extended Composition) delivered on 11 June 2009 in Case T-297/02 ACEA S.p.A. v Commission of the European Communities | 38 |
| 2009/C 267/70 | Case C-320/09 P: Appeal brought on 11 August 2009 by A2A SpA, formerly ASM Brescia SpA, against the judgment of the Court of First Instance (Eighth Chamber, Extended Composition) delivered on 11 June 2009 in Case T-301/02 AEM v Commission | 39 |
| 2009/C 267/71 | Case C-324/09: Reference for a preliminary ruling from High Court of Justice (England and Wales), Chancery Division, made on 12 August 2009 — L'Oréal SA, Lancôme parfums et beauté & Cie SNC, Laboratoire Garnier & Cie, L'Oréal (UK) Limited v eBay International AG, eBay Europe SARL, eBay (UK) Limited, Stephan Potts, Tracy Ratchford, Marie Ormsby, James Clarke, Joanna Clarke, Glen Fox, Rukhsana Bi | 40 |
| 2009/C 267/72 | Case C-329/09 P: Appeal brought on 17 August 2009 by Iride SpA, formerly AMGA SpA, against the judgment of the Court of First Instance (Eighth Chamber, extended Composition) delivered on 11 June 2009 in Case T-300/02 AMGA v Commission | 41 |
| 2009/C 267/73 | Case C-334/09: Reference for a preliminary ruling from the Verwaltungsgericht Meiningen (Germany) lodged on 24 August 2009 — Frank Scheffler v Landkreis Wartburgkreis | 42 |
| 2009/C 267/74 | Case C-341/09 P: Appeal brought on 21 August 2009 by Acegas-APS SpA, formerly Acqua, Elettricità, Gas e servizi SpA (Acegas) against the judgment of the Court of First Instance (Eighth Chamber, Extended Composition) delivered on 11 June 2009 in Case T-307/02 Acegas v Commission | 42 |
| 2009/C 267/75 | Case C-342/09 P: Appeal brought on 26 August 2009 by Victor Guedes — Indústria e Comércio, SA against the judgment of the Court of First Instance (Eighth Chamber) delivered on 11 June 2009 in Case T-151/08: Guedes — Indústria e Comércio v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Consorci de l'Espai Rural de Gallecs | 43 |
| 2009/C 267/76 | Case C-343/09: Reference for a preliminary ruling from High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court) made on 26 August 2009 — Afton Chemical Limited v Secretary of State for Transport | 44 |
| 2009/C 267/77 | Case C-351/09: Action brought on 28 August 2009 — Commission of the European Communities v Republic of Malta | 45 |
| 2009/C 267/78 | Case C-353/09 P: Appeal brought on 2 September 2009 by Perfetti Van Melle SpA against the judgment of the Court of First Instance (Eighth Chamber) delivered on 1 July 2009 in Case T-16/08: Perfetti Van Melle SpA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Cloetta Fazer AB | 45 |
| 2009/C 267/79 | Case C-357/09: Reference for a preliminary ruling from the Administrativen Sad Sofia-grad, Bulgaria lodged on 7 September 2009 — Saïd Shamilovich Kadzoev v Direktsia Migratsia pri Ministerstvo na vatreshnite raboti | 46 |
| 2009/C 267/80 | Case C-363/09: Action brought on 11 September 2009 — Commission of the European Communities v Kingdom of Spain | 48 |
| 2009/C 267/81 | Case C-364/09 P: Appeal brought on 14 September 2009 by Mineralbrunnen Rhön-Sprudel Egon Schindel GmbH against the judgment of the Court of First Instance (Eighth Chamber) delivered on 8 July 2009 in Case T-226/08 Mineralbrunnen Rhön-Sprudel Egon Schindel GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs); the other party to the proceedings being: Schwarzbräu GmbH | 48 |
| 2009/C 267/82 | Case C-365/09 P: Appeal brought on 14 September 2009 by Mineralbrunnen Rhön-Sprudel Egon Schindel GmbH against the judgment of the Court of First Instance (Eighth Chamber) delivered on 8 July 2009 in Case T-225/08 Mineralbrunnen Rhön-Sprudel Egon Schindel GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs); the other party to the proceedings being: Schwarzbräu GmbH | 49 |
| 2009/C 267/83 | Case C-370/09: Action brought on 15 September 2009 — Commission of the European Communities v Hellenic Republic | 50 |
| 2009/C 267/84 | Case C-371/09: Reference for a preliminary ruling from the High Court of Justice (England and Wales), Chancery Division, made on 14 September 2009 — Commissioners for Her Majesty's Revenue and Customs v Isaac International Limited | 50 |
| 2009/C 267/85 | Case C-376/09: Action brought on 22 September 2009 — Commission of the European Communities v Republic of Malta | 51 |
| 2009/C 267/86 | Case C-547/07: Order of the President of the Court of 29 June 2009 — Commission of the European Communities v Republic of Poland | 52 |
| 2009/C 267/87 | Case C-72/08: Order of the President of the Eighth Chamber of the Court of 1 July 2009 — Commission of the European Communities v Republic of Poland | 52 |
| 2009/C 267/88 | Case C-129/08: Order of the President of the Seventh Chamber of the Court of 4 June 2009 (reference for a preliminary ruling from the Rechtbank van eerste aanleg te Brugge (Belgium)) — Carlos Cloet, Jacqueline Cloet v Westvlaamse Intercommunale voor Economische Expansie, Huisvestingsbeleid en Technische Bijstand CVBA (WVI) | 52 |
| | Court of First Instance |
| 2009/C 267/89 | Case T-341/05 (Agriculture — Common organisation of the market in milk and milk products — Abolition of export refunds for all milk products to Ceuta and Melilla — Conditions — Principle of non-discrimination — Proportionality: Judgment of the Court of First Instance of 23 September 2009 — Spain v Commission | 53 |
| 2009/C 267/90 | Case T-385/05: Judgment of the Court of First Instance of 23 September 2009 — Transnáutica v Commission (Customs union — External Community transit operations — Consignments of tobacco and ethyl alcohol for third countries — Fraud — Claim for remission of import duties — Article 239 of Regulation (EEC) No 2913/92 — Article 905 of Regulation (EEC) No 2454/93 — Fairness clause — Existence of a special situation — Comprehensive guarantee) | 53 |
| 2009/C 267/91 | Case T-99/06: Judgment of the Court of First Instance of 23 September 2009 — Phildar v OHIM — Comercial Jacinto Parera (FILDOR) (Community trade mark — Opposition proceedings — Application for the Community word mark FILDOR — Earlier national semi-figurative mark PHILDAR — Earlier national word mark FILDOR — Earlier international word and semi-figurative marks PHILDAR — Relative ground for refusal — Likelihood of confusion — Articles 8(1)(b), 62 and 73 of Regulation (EC) No 40/94 (now Articles 8(1)(b), 64 and 75 of Regulation (EC) No 207/2009) | 54 |
| 2009/C 267/92 | Case T-221/06: Judgment of the Court of First Instance of 16 September 2009 — Hipp & Co v OHIM — Laboratoris Ordesa (Bebimil) (Community trade mark — Opposition procedure — Application for Community word mark Bebimil — Earlier Community and national word marks BLEMIL — Earlier national word mark BLEMIL 1 — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009) — Likelihood of confusion) | 54 |
| 2009/C 267/93 | Case T-296/06: Judgment of the Court of First Instance of 23 September 2009 — Dongguan Nanzha Leco Stationery v Council of the European Union (Dumping — Imports of lever arch mechanisms originating in China — Determination of the dumping margin — Market economy treatment — Comparison between the normal value and the export price — Application of a different method to that used during the initial investigation — Article 2(7)(a) and (10) of Regulation (EC) No 384/96) | 55 |
| 2009/C 267/94 | Case T-391/06: Judgment of the Court of First Instance of 23 September 2009 — Arcandor v OHIM — dm drogerie market (S-HE) (Community trade mark — Opposition proceedings — Application for the Community word mark S-HE — Earlier national word mark SHE, earlier national and international figurative trade mark She — Relative ground for refusal — No likelihood of confusion — Lack of similarity between the signs — Article 8(1)(b) of Regulation (EC) No 40/94 [now Article 8(1)(b) of Regulation (EC) No 207/2009) | 55 |
| 2009/C 267/95 | Case T-400/06: Judgment of the Court of First Instance of 16 September 2009 — Zero Industry v OHIM — zero Germany (zerorh+) (Community trade mark — Opposition proceedings — Application for figurative Community mark zerorh+ — Earlier national figurative and word marks zero — Likelihood of confusion — Similarity of the signs — Similarity between products — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009) | 56 |
| 2009/C 267/96 | Case T-80/07: Judgment of the Court of First Instance of 16 September 2009 — JanSport Apparel v OHIM (BUILT TO RESIST) (Community trade mark — Application for the Community word mark BUILT TO RESIST — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 40/94 (now Article 7(1)(c) of Regulation (EC) No 207/2009) | 56 |
| 2009/C 267/97 | Case T-103/07: Judgment of the Court of First Instance of 23 September 2009 — Fratex Industria e Comércio v OHIM– USA Track & Field (TRACK & FIELD USA) (Community trade mark — Opposition proceedings — Application for figurative Community mark TRACK & FIELD USA — Earlier national figurative mark TRACK & FIELD — Relative ground for refusal — No likelihood of confusion — Lack of similarity between the signs — Article 8(1)(b) of Regulation (EC) No 40/94 [now Article 8(1)(b) of Regulation (EC) No 207/2009) | 56 |
| 2009/C 267/98 | Case T-162/07: Judgment of the Court of First Instance of 16 September 2009 — Pigasos Alieftiki Naftiki Etairia v Council and Commission (Non-contractual liability — Customs union — Proof of the Community nature of products of sea-fishing — Submission of certain documents as proof not possible — Sufficiently serious breach of a rule of law conferring rights on individuals — Liability of the Community in the absence of unlawful conduct by its bodies) | 57 |
| 2009/C 267/99 | Case T-180/07: Judgment of the Court of First Instance of 16 September 2009 — Promomadrid v OHIM (MADRIDEXPORTA) (Community trade mark — Application for Community figurative mark MADRIDEXPORTA — Absolute grounds for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 40/94 (now Article 7(1)(c) of Regulation (EC) No 207/2009) | 57 |
| 2009/C 267/00 | Case T-183/07: Judgment of the Court of First Instance of 23 September 2009 — Poland v Commission (Environment — Directive 2003/87/EC — Emissions trading system for greenhouse gas allowances — National allocation plan for emission allowances for Poland for the period from 2008 to 2012 — Three month time-limit — Respective powers of the Member States and the Commission — Equal treatment — Duty to state reasons — Article 9(1) and (3) and Article 11(2) of Directive 2003/87) | 58 |
| 2009/C 267/01 | Joined Cases T-225/07 and T-364/07: Judgment of the Court of First Instance of 29 September 2009 — Thomson Sales Europe v Commission (Customs union — Imports of colour television receivers manufactured in Thailand — Refund of import duties — Manifest negligence — Post-clearance recovery of import duties — Action for annulment — Act having adverse effects — Inadmissibility) | 58 |
| 2009/C 267/02 | Case T-263/07: Judgment of the Court of First Instance of 23 September 2009 — Estonia v Commission (Environment — Directive 2003/87/EC — Emissions trading system for greenhouse gases — National plan allocating emissions allowances for Estonia for the period from 2008 to 2012 — Respective powers of the Member States and the Commission — Equal treatment — Article 9(1) and (3) and Article 11(2) of Directive 2003/87) | 59 |
| 2009/C 267/03 | Case T-291/07: Judgment of the Court of First Instance of 23 September 2009 — Viñedos y Bodegas Príncipe Alfonso de Hohenlohe v OHIM — Byass (ALFONSO) (Community trade mark — Opposition proceedings — Application for the Community word mark ALFONSO — Earlier Community and national word marks PRINCIPE ALFONSO — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009) — Scope of the examination to be carried out by the Board of Appeal — Obligation to rule on the entirety of the action — Article 62(1) of Regulation No 40/94 (now Article 64(1) of Regulation No 207/2009) | 59 |
| 2009/C 267/04 | Joined Cases T-305/07 and T-306/07: Judgment of the Court of First Instance of 16 September 2009 — Offshore Legends v OHIM — Acteon (OFFSHORE LEGENDS in black and white and OFFSHORE LEGENDS in blue, black and green) (Community trade mark — Opposition proceedings — Application for two Community figurative marks OFFSHORE LEGENDS, one in black and white, the other in blue, black and green — Earlier national figurative mark OFFSHORE 1 — Relative grounds for refusal — Likelihood of confusion — Similarity of goods and signs — Absence of request for proof of genuine use of the earlier mark — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009) — Article 43(2) and (3) of Regulation No 40/94 in conjunction with Article 15(2)(a) of Regulation No 40/94 (now Article 42(2) and (3) and point (a) of the second subparagraph of Article 15(1) of Regulation No 207/2009) | 60 |
| 2009/C 267/05 | Case T-391/07: Judgment of the Court of First Instance of 16 September 2009 — Alber v OHIM (hand grip) (Community trade mark — Application for a three-dimensional Community trade mark — Hand grip — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 40/94 (now Article 7(1)(b) of Regulation (EC) No 207/2009) — Duty to give reasons — Article 73 of Regulation No 40/94 (now Article 75 of Regulation No 207/2009) — Principle of examination of the facts of its own motion — Article 74(1) of Regulation No 40/94 (now Article 76(1) of Regulation No 207/2009) | 60 |
| 2009/C 267/06 | Case T-396/07: Judgment of the Court of First Instance of 23 September 2009 — France Télécom v OHIM (UNIQUE) (Community trade mark — Application for the Community word mark UNIQUE — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 40/94 (now Article 7(1)(b) of Regulation (EC) No 207/2009) | 60 |
| 2009/C 267/07 | Case T-409/07: Judgment of the Court of First Instance of 23 September 2009 — Cohausz v OHIM — Izquierdo Faces (acopat) (Community trade mark — Invalidity proceedings — Community figurative mark acopat — Earlier national word marks COPAT — Relative ground for refusal — No genuine use of the earlier marks — Article 56(2) and (3) of Regulation (EC) No 40/94 (now Article 57(2) and (3) of Regulation (EC) No 207/2009) | 61 |
| 2009/C 267/08 | Case T-458/07: Judgment of the Court of First Instance of 16 September 2009 — Dominio de la Vega v OHIM — Ambrosio Velasco (DOMINIO DE LA VEGA) (Community trade mark — Opposition proceedings — Application for Community figurative mark DOMINIO DE LA VEGA — Earlier Community figurative mark PALACIO DE LA VEGA — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009) | 61 |
| 2009/C 267/09 | Joined Cases T-493/07, T- 26/08 and T-27/08: Judgment of the Court of First Instance of 23 September 2009 — GlaxoSmithKline and others v OHIM — Serono Genetics Institute (FAMOXIN) (Community trade mark — Invalidity proceedings — Community word mark FAMOXIN — Earlier national word marks LANOXIN — Relative ground for refusal — No likelihood of confusion — Article 8(1)(b) and Article 52(1)(a) of Regulation (EC) No 40/94 (now Article 8(1)(b) and Article 53(1)(a) of Regulation (EC) No 207/2009) — Proof of use — Article 56(2) and (3) of Regulation No 40/94 (now Article 57(2) and (3) of Regulation No 207/2009) | 62 |
| 2009/C 267/10 | Joined Cases T-20/08 and T-21/08: Judgment of the Court of First Instance of 23 September 2009 — Evets v OHIM (DANELECTRO and QWIK TUNE) (Community trade mark — Community word mark DANELECTRO and Community figurative mark QWIK TUNE — Failure to observe the time-limit for submitting a request for renewal of the trade marks — Application for restitutio in integrum — Reformatio in pejus — Rights of the defence — Right to be heard — Article 61(2), second sentence of Article 73, and Article 78 of Regulation (EC) No 40/94 (now Article 63(2), second sentence of Article 75, and Article 81 of Regulation (EC) No 207/2009) | 62 |
| 2009/C 267/11 | Case T-130/08: Judgment of the Court of First Instance of 16 September 2009 — Gres La Sagra v OHIM — Ceramicalcora (VENATTO MARBLE STONE) (Community trade mark — Opposition proceedings — Application for Community figurative mark VENATTO MARBLE STONE — Earlier national figurative marks VENETO CERÁMICAS — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009) | 62 |
| 2009/C 267/12 | Case T-139/08: Judgment of the Court of First Instance of 29 September 2009 — The Smiley Company v OHIM (Representation of half a smiley smile) (Community trade mark — International registration designating the European Community — Figurative mark representing half a smiley smile — Absolute ground for refusal — Lack of distinctive character — Article 146(1) and Article 7(1)(b) of Regulation (EC) No 40/94 (now Article 151(1) and Article 7(1)(b) of Regulation (EC) No 207/2009) | 63 |
| 2009/C 267/13 | Case T-271/08: Judgment of the Court of First Instance of 16 September 2009 — Boudova and Others v Commission (Appeal — Public service — Officials — Former members of the auxiliary staff — Appointment — Classification in grade — Competition published before the entry in force of the new Staff Regulations — Reclassification by another institution of its officials — Refusal to reclassify — Principle of equal treatment — Action for annulment — Non-actionable measure — Confirmatory act — Absence of new and substantive facts — Absence of excusable error — Inadmissibility) | 63 |
| 2009/C 267/14 | Case T-57/07: Order of the Court of First Instance of 2 September 2009 — E.ON Ruhrgas and E.ON Földgáz Trade v Commission (Action for annulment — Competition — Concentrations — Decision declaring the concentration compatible with the common market — Commitments — Commission letters regarding the commitments — Non-actionable measures — Inadmissibility) | 64 |
| 2009/C 267/15 | Case T-139/07: Order of the Court of First Instance of 4 September 2009 — Pioneer Hi-Bred International v Commission (Approximation of laws — Deliberate release into the environment of genetically modified organisms — Authorisation procedure for placing on the market — Failure by the Commission to submit draft measures to the regulatory committee — Action for failure to act — Action which becomes devoid of purpose in the course of proceedings — No need to adjudicate) | 64 |
| 2009/C 267/16 | Case T-186/08: Order of the Court of First Instance of 7 September 2009 — LPN v Commission (Action for annulment and damages — Environment — Directive 92/43/EEC — Decision to take no further action on a complaint — Failure to bring an action for failure to fulfil obligations — Access to documents — Regulation (EC) No 1049/2001 — Manifest inadmissibility — No need to adjudicate) | 64 |
| 2009/C 267/17 | Case T-375/08 P: Order of the Court of First Instance of 9 September 2009 — Nijs v Court of Auditors (Appeal — Public service — Officials — Decision of the Court of Auditors to renew the mandate of its Secretary General — Decision not to promote the appellant in the 2004 promotion year — Appeal partly inadmissible and partly manifestly unfounded) | 65 |
| 2009/C 267/18 | Case T -309/09: Action brought on 4 August 2009 — Sanyō Denki v OHIM — Telefónica O2 Germany (eneloop) | 65 |
| 2009/C 267/19 | Case T-315/09: Action brought on 10 August 2009 — Hoelzer v OHIM (SAFELOAD) | 66 |
| 2009/C 267/20 | Case T-317/09: Action brought on 14 August 2009 — Concord Power Nordal v Commission | 66 |
| 2009/C 267/21 | Case T-318/09: Action brought on 14 August 2009 — Audi and Volkswagen v OHIM (TDI) | 67 |
| 2009/C 267/22 | Case T-320/09: Action brought on 14 August 2009 — Planet v Commission | 67 |
| 2009/C 267/23 | Case T-321/09: Action brought on 14 August 2009 — skytron energy v OHIM (arraybox) | 68 |
| 2009/C 267/24 | Case T-327/09: Action brought on 18 August 2009 — Connefroy and Others v Commission | 68 |
| 2009/C 267/25 | Case T-328/09: Action brought on 19 August 2009 — Producteurs de Légumes de France v Commission | 69 |
| 2009/C 267/26 | Case T-329/09: Action brought on 24 August 2009 — Fédération Internationale des Logis v OHIM (Brown convex square) | 69 |
| 2009/C 267/27 | Case T-330/09: Action brought on 19 August 2009 — RapidEye v Commission | 69 |
| 2009/C 267/28 | Case T -331/09: Action brought on 25 August 2009 — Novartis v OHIM — Sanochemia Pharmazeutika AG | 70 |
| 2009/C 267/29 | Case T-332/09: Action brought on 20 August 2009 — Electrabel v Commission | 71 |
| 2009/C 267/30 | Case T-333/09: Action brought on 20 August 2009 — Poland v Commission | 71 |
| 2009/C 267/31 | Case T-335/09: Action brought on 24 August 2009 — Groupement Adriano, Jaime Ribeiro, Conduril-Construção v Commission | 72 |
| 2009/C 267/32 | Case T -338/09: Action brought on 27 August 2009 — Müller-Boré & Partner v OHIM — Popp and Other (MBP) | 73 |
| 2009/C 267/33 | Case T-340/09: Action brought on 19 August 2009 — Evropaïki Dynamiki v Publications Office of the European Union | 73 |
| 2009/C 267/34 | Case T-343/09: Action brought on 1 September 2009 — Amecke Fruchtsaft v OHIM — Beate Uhse (69 Sex up) | 75 |
| 2009/C 267/35 | Case T-347/09: Action brought on 31 August 2009 — Germany v Commission | 75 |
| 2009/C 267/36 | Case T-349/09: Action brought on 3 September 2009 — PAGO International v OHIM — Tirol Milch (Pago) | 76 |
| 2009/C 267/37 | Case T-350/09: Action brought on 4 September 2009 — ICO Satellite v Commission | 76 |
| 2009/C 267/38 | Case T-352/09: Action brought on 14 September 2009 — Novácke chemické závody/Commission | 77 |
| 2009/C 267/39 | Case T-356/09: Action brought on 16 September 2009 — Commission v Association Fédération Club B2A | 78 |
| 2009/C 267/40 | Case T-357/09: Action brought on 15 September 2009 — Pucci International v OHIM — El Corte Inglés (Emidio Tucci) | 78 |
| 2009/C 267/41 | Case T-358/09: Action brought on 16 September 2009 — Sociedad Agricola Requingua v OHIM — Consejo Regulador de la Denominación de Origen Toro (TORO DE PIEDRA) | 79 |
| 2009/C 267/42 | Case T-359/09: Action brought on 14 September 2009 — Jurašinović v Council | 80 |
| 2009/C 267/43 | Case T-363/09: Action brought on 17 September 2009 — Longevity Health Products v OHIM — Gruppo Lepetit (RESVEROL) | 80 |
| 2009/C 267/44 | Case T-365/09: Action brought on 17 September 2009 — Michalakopoulou Ktimatiki Touristiki v OHIM — Free (FREE) | 81 |
| 2009/C 267/45 | Case T-367/09: Action brought on 18 September 2009 — Tecnoprocess v Commission and Delegation of the European Commission to the Republic of Nigeria | 82 |
| 2009/C 267/46 | Case T-113/06: Order of the Court of First Instance of 22 September 2009 — Fjord Seafood Norway and Others v Council | 82 |
| 2009/C 267/47 | Case T-404/07: Order of the Court of First Instance of 21 September 2009 — Ryanair v Commission | 82 |
| | European Union Civil Service Tribunal |
| 2009/C 267/48 | Case F-37/05: Judgment of the Civil Service Tribunal (Second Chamber) of 24 September 2009 — Brown v Commission (Staff case — Competition internal to the institution — Admission criteria — Members of the auxiliary staff — Rejection of candidature) | 83 |
| 2009/C 267/49 | Case F-139/07: Judgment of the Civil Service Tribunal (Second Chamber) of 10 September 2009 — Van Arum v Parliament (Staff case — Officials — Appraisal — Staff Report — Scope of the complaint referred to in Article 90 of the Staff Regulations) | 83 |
| 2009/C 267/50 | Case F-9/08: Judgment of the Civil Service Tribunal (Second Chamber) of 10 September 2009 — Rosenbaum v Commission (Staff case — Officials — Appointment — Grading — Request for reclassification — Scope of Article 13 in Annex XIII to the Staff Regulations — Taking into account professional experience — Recruitment in the grade of the competition — Article 31 of the Staff Regulations — Principle of non-discrimination — Free movement of workers) | 83 |
| 2009/C 267/51 | Case F-36/08: Judgment of the Civil Service Tribunal (Second Chamber) of 24 September 2009 — Schell v Commission (Staff case — Officials — Promotion — Allocation of promotion points by Directors-General — 2007 promotion procedure) | 84 |
| 2009/C 267/52 | Case F-141/06: Order of the Civil Service Tribunal (Second Chamber) of 15 September 2009 — Hartwig v Commission (Appointment — Members of the temporary staff appointed as officials — Candidates names included on a reserve list of a competition published prior to the entry into force of the new Staff Regulations — Grading pursuant to the new less favourable rules — Transitional measures of Annex XIII to the Staff Regulations) | 84 |
| 2009/C 267/53 | Case F-73/09: Action brought on 10 September 2009 — Sukup v Commission | 84 |
| 2009/C 267/54 | Case F-74/09: Action brought on 10 September 2009 — Gowitzke v Europol | 85 |
| 2009/C 267/55 | Case F-75/09: Action brought on 11 September 2009 –Wenig v Commission | 85 |
| 2009/C 267/56 | Case F -32/05: Order of the Civil Service Tribunal of 15 September 2009 — Perez Santander v Council | 85 |
| 2009/C 267/57 | Case F-38/07: Order of the Civil Service Tribunal of 25 September 2009 — Caleprico v Commission | 86 |
| 2009/C 267/58 | Case F-58/08: Order of the Civil Service Tribunal of 25 September 2009 — Avogadri and Others v Commission | 86 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2009/C 267/13

Case C-242/06: Judgment of the Court (First Chamber) of 17 September 2009 (reference for a preliminary ruling from the Raad van State (Netherlands)) — Minister voor Vreemdelingenzaken en Integratie v T. Sahin (EEC-Turkey Association Agreement — Freedom of movement for workers — Introduction of administrative charges for obtaining a residence permit in the host Member State — Infringement of the standstill clause in Article 13 of Decision No 1/80 of the Association Council)

8

2009/C 267/14

Case C-411/06: Judgment of the Court (Grand Chamber) of 8 September 2009 — Commission of the European Communities v European Parliament, Council of the European Union (Action for annulment — Regulation (EC) No 1013/2006 — Shipments of waste — Choice of legal basis — Articles 133 EC and 175(1) EC)

8

2009/C 267/15

Case C-42/07: Judgment of the Court (Grand Chamber) of 8 September 2009 (reference for a preliminary ruling from the Tribunal de Pequena Instância Criminal do Porto (Portugal)) — Liga Portuguesa de Futebol Profissional (CA/LPFP), Bwin International Ltd, formerly Baw International Ltd v Departamento de Jogos da Santa Casa da Misericórdia de Lisboa (Reference for a preliminary ruling — Article 49 EC — Restrictions on the freedom to provide services — Offer of games of chance via the internet)

9

2009/C 267/16

Case C-269/07: Judgment of the Court (Second Chamber) of 10 September 2009 — Commission of the European Communities v Federal Republic of Germany (Failure of a Member State to fulfil obligations — Freedom of movement for workers — Regulation (EEC) No 1612/68 — Savings-pension bonus — Full liability to tax)

9

2009/C 267/17

Case C-416/07: Judgment of the Court (Third Chamber) of 10 September 2009 — Commission of the European Communities v Hellenic Republic (Failure of a Member State to fulfil obligations — Directives 91/628/EEC and 93/119/EC — Regulation (EC) No 1/2005 — Protection of animals during transport and at the time of slaughter or killing — Structural and general infringement of Community rules)

10

2009/C 267/18

Joined Cases C-445/07 P and C-455/07 P: Judgment of the Court (First Chamber) of 10 September 2009 — Commission of the European Communities v Ente per le Ville Vesuviane (C-445/07 P), Ente per le Ville Vesuviane v Commission of the European Communities (C-455/07 P) (Appeal — European Regional Development Fund (ERDF) — Development of infrastructure for the expansion of tourism in Regione Campania (Italy) — Closure of Community financial assistance — Actions for annulment — Admissibility — Local or regional entity — Measures of direct and individual concern to that entity)

11

2009/C 267/19

Case C-446/07: Judgment of the Court (Fourth Chamber) of 10 September 2009 (reference for a preliminary ruling from the Tribunale civile di Modena (Italy)) — Alberto Severi, in his own name, and as legal representative of Cavazzuti e figli SpA, now known as Grandi Salumifici Italiani SpA v Regione Emilia-Romagna (Directive 2000/13/EC — Labelling of foodstuffs to be delivered as such to the ultimate consumer — Labelling likely to mislead the purchaser as to the origin or provenance of the foodstuff — Generic names within the meaning of Article 3 of Regulation (EEC) No 2081/92 — Effect)

11

2009/C 267/20

Case C-457/07: Judgment of the Court (Fourth Chamber) of 10 September 2009 — Commission of the European Communities v Portuguese Republic (Failure of a Member State to fulfil obligations — Articles 28 EC and 30 EC — Construction products — National approval procedure — Failure to take account of approval certificates drawn up in other Member States — Judgment of the Court establishing the failure of a Member State to fulfil its obligations — Non-implementation — Article 228 EC — Subject-matter of the dispute — Determination during the pre-litigation procedure — Subsequent extension — Not permissible)

12

2009/C 267/21

Case C-478/07: Judgment of the Court (Grand Chamber) of 8 September 2009 (reference for a preliminary ruling from the Handelsgericht Wien (Austria)) — Budějovický Budvar National Corporation v Rudolf Ammersin GmbH (Bilateral agreements between Member States — Protection in a Member State of a geographical indication of provenance of another Member State — Designation Bud — Use of the mark American Bud — Articles 28 EC and 30 EC — Regulation (EC) No 510/2006 — Community system of protection of geographical indications and of designations of origin — Accession of the Czech Republic — Transitional measures — Regulation (EC) No 918/2004 — Scope of the Community system — Exhaustive nature)

12

2009/C 267/22

Case C-519/07 P: Judgment of the Court (Third Chamber) of 17 September 2009 — Commission of the European Communities v Koninklijke FrieslandCampina NV, formerly Koninklijke Friesland Foods NV, formerly Friesland Coberco Dairy Foods Holding NV (Appeal — State aid — State aid scheme implemented by the Netherlands for international financing activities — Decision No 2003/515/EC — Incompatibility with the common market — Transitional provision — Admissibility — Standing to bring proceedings — Interest in bringing proceedings — Principle of protection of legitimate expectations — Principle of equal treatment)

13

2009/C 267/23

Case C-520/07 P: Judgment of the Court (First Chamber) of 17 September 2009 — Commission of the European Communities v MTU Friedrichshafen GmbH (Appeals — Restructuring aid — Decision ordering the recovery of aid incompatible with the common market — Article 13(1) of Regulation (EC) No 659/1999 — Joint and several liability)

14

2009/C 267/24

Case C-573/07: Judgment of the Court (Third Chamber) of 10 September 2009 (reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia (Italy)) — Sea s.r.l. v Comune di Ponte Nossa (Public procurement — Award procedures — Contract relating to a service for the collection, transport and disposal of urban waste — Awarded without any call for tenders — Awarded to a company limited by shares whose capital is wholly owned by public bodies but under whose statutes a private capital holding is possible)

14

2009/C 267/25

Case C-37/08: Judgment of the Court (First Chamber) of 3 September 2009 (Reference for a preliminary ruling from the VAT and Duties Tribunal, London — United Kingdom) — RCI Europe v Commissioners for Her Majesty’s Revenue and Customs (Sixth VAT Directive — Fiscal connection — Supply of services connected with immovable property — Services consisting in facilitating the exchange by owners of rights to occupy holiday homes)

15

2009/C 267/26

Case C-44/08: Judgment of the Court (Fourth Chamber) of 10 September 2009 (reference for a preliminary ruling from the Korkein oikeus (Finland)) — Akavan Erityisalojen Keskusliitto AEK ry and Others v Fujitsu Siemens Computers Oy (Preliminary ruling procedure — Directive 98/59/EC — Approximation of the laws of the Member States relating to collective redundancies — Article 2 — Protection of workers — Informing and consulting with workers — Group of undertakings — Parent company — Subsidiary)

15

2009/C 267/27

Case C-76/08: Judgment of the Court (Second Chamber) of 10 September 2009 — Commission of the European Communities v Republic of Malta (Failure of a Member State to fulfil obligations — Admissibility — Conservation of wild birds — Directive 79/409/EEC — Spring hunting — Prohibition — Derogation from the system of protection — Condition that there be no other satisfactory solution — Legitimate expectations)

16

2009/C 267/28

Case C-97/08 P: Judgment of the Court (Third Chamber) of 10 September 2009 — Akzo Nobel NV, Akzo Nobel Nederland BV, Akzo Nobel Chemicals International BV, Akzo Nobel Chemicals BV, Akzo Nobel Functional Chemicals BV v Commission of the European Communities (Appeal — Competition — Agreements, decisions and concerted practices — Article 81(1) EC — Article 53(1) of the EEA Agreement — Article 23(2) of Regulation (EC) No 1/2003 — Groups of undertakings — Imputability of infringements — Responsibility of a parent company for the infringement of competition rules by its subsidiaries — Decisive influence exercised by the parent company — Rebuttable presumption where the parent company has a 100 % shareholding)

17

2009/C 267/29

Case C-100/08: Judgment of the Court (Third Chamber) of 10 September 2009 — Commission of the European Communities v Kingdom of Belgium (Failure of a Member State to fulfil its obligations — Articles 28 EC and 30 EC — Protection of species of wild fauna and flora — Legislation on the keeping and marketing of birds born and bred in captivity legally placed on the market in other Member States)

17

2009/C 267/30

Case C-128/08: Judgment of the Court (First Chamber) of 16 July 2009 (reference for a preliminary ruling from the Tribunal de première instance de Liège (Belgium)) — Jacques Damseaux v État belge (Free movement of capital — Taxation of investment income — Double taxation convention — Obligation of the Member States under Article 293 EC)

18

2009/C 267/31

Case C-182/08: Judgment of the Court (First Chamber) of 17 September 2009 (reference for a preliminary ruling from the Bundesfinanzhof (Germany)) — Glaxo Wellcome GmbH & Co. v Finanzamt München II (Freedom of establishment and free movement of capital — Corporation tax — Acquisition of shares in a capital company — Conditions for taking into account, when determining the acquirer’s tax base, the reduction in value of the shares resulting from the dividend distribution)

18

2009/C 267/32

Case C-199/08: Judgment of the Court (Second Chamber) of 10 September 2009 (reference for a preliminary ruling from the Oberster Gerichtshof — Austria) — Dr. Erhard Eschig v UNIQA Sachversicherung AG (Legal expenses insurance — Directive 87/344/EEC — Article 4(1) — Right of insured persons to choose their own lawyer — Contractual limitation — Multiple insured persons suffering loss as a result of the same event — Selection of the legal representative by the insurer)

19

2009/C 267/33

Case C-201/08: Judgment of the Court (Third Chamber) of 10 September 2009 (reference for a preliminary ruling from the Hessisches Finanzgericht, Kassel (Germany)) — Plantanol GmbH & Co. KG v Hauptzollamt Darmstadt (Directive 2003/30/EC — Promotion of the use of biofuels or other renewable fuels for transport — Directive 2003/96/EC — Community framework for the taxation of energy products and electricity — Blend of vegetable oil, additives and fuel — Biofuels — National rules — Tax exemption — Replacement of the exemption by an obligation to maintain a minimum biofuel content in fuels — Conformity with Directives 2003/30/EC and 2003/96/EC — General principles of legal certainty and the protection of legitimate expectations)

19

2009/C 267/34

Case C-206/08: Judgment of the Court (Third Chamber) of 10 September 2009 (Reference for a preliminary ruling from the Thüringer Oberlandesgericht (Germany)) — Wasser- und Abwasserzweckverband Gotha und Landkreisgemeinden (WAZV Gotha) v Eurawasser Aufbereitungs- und Entsorgungsgesellschaft mbH (Procurement procedures of entities operating in the water, energy, transport and postal services sectors — Public service for the distribution of drinking water and the treatment of sewage — Service concession — Definition — Transfer to the supplier of the risk connected with operating the service in question)

20

2009/C 267/35

Case C-277/08: Judgment of the Court (First Chamber) of 10 September 2009 (reference for a preliminary ruling from the Juzgado de lo Social de Madrid (Spain)) — Francisco Vicente Pereda v Madrid Movilidad SA (Directive 2003/88/EC — Organisation of working time — Entitlement to paid annual leave — Sick leave — Annual leave coinciding with sick leave — Entitlement to take annual leave at another time)

20

2009/C 267/36

Case C-286/08: Judgment of the Court (Fifth Chamber) of 10 September 2009 — Commission of the European Communities v Hellenic Republic (Failure of a Member State to fulfil obligations — Environment — Directives 2006/12/EC and 91/689/EEC — Hazardous waste — Obligation to draw up and adopt a hazardous-waste management plan — Obligation to establish an integrated and adequate network of disposal installations for hazardous waste — Directive 1999/31/EC — Landfill of waste — Disposal of hazardous waste)

21

2009/C 267/37

Case C-292/08: Judgment of the Court (First Chamber) of 10 September 2009 (reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands)) — German Graphics Graphische Maschinen GmbH v Alice van der Schee, acting as liquidator of Holland Binding BV (Insolvency — Application of the law of the Member State of the opening of proceedings — Reservation of title — Situation of assets)

22

2009/C 267/38

Case C-347/08: Judgment of the Court (Third Chamber) of 17 September 2009 (reference for a preliminary ruling from the Landesgericht Feldkirch (Austria)) — Vorarlberger Gebietskrankenkasse v WGV-Schwäbische Allgemeine Versicherungs AG (Regulation (EC) No 44/2001 — Articles 9(1)(b) and 11(2) — Jurisdiction in matters relating to insurance — Motor accident — Statutory assignment of the rights of an injured party in favour of a social security institution — Action for recovery against the insurer of a person allegedly liable — Objective of protecting the weaker party)

22

2009/C 267/39

Case C-366/08: Judgment of the Court (Fourth Chamber) of 10 September 2009 (reference for a preliminary ruling from the Oberlandesgericht München — Germany) — Zentrale zur Bekämpfung unlauteren Wettbewerbs eV v Adolf Darbo AG (Harmonisation of laws — Directive 95/2/EC — Part A of Annex III — Directive 2001/113/EC — Second paragraph of Part II of Annex I — Extra jam with a soluble dry matter content of 58 % and containing potassium sorbate (E 202) as a preservative — Term low sugar jam)

23

2009/C 267/40

Case C-498/08 P: Order of the Court of 9 July 2009 — Fornaci Laterizi Danesi SpA v Commission of the European Communities (Appeal — Action for annulment — Time-limit for bringing an action — Inadmissibility because out of time — Appeal manifestly unfounded)

23

2009/C 267/41

Case C-225/08P: Appeal brought on 23 May 2008 by Nuova Argricast Srl against the order of the Court of First Instance (Fifth Chamber) of 12 March 2008 in Case T-443/07 Nuova Agricast Srl v Commission of the European Communities

24

2009/C 267/42

Case C-295/08 P: Appeal brought on 3 July 2008 by Cofra srl against the order of the Court of First Instance (Fifth Chamber) made on 15 April 2008 in Case T-478/07 Cofra srl v Commission of the European Communities

24

2009/C 267/43

Case C-580/08 P: Appeal brought on 24 December 2008 by Devrajan Srinivasan against the order of the Court of First Instance (Sixth Chamber) delivered on 03 November 2008 in Case T-196/08: Srinivasan/Médiateur

24

2009/C 267/44

Case C-29/09 P: Appeal brought on 21 January 2009 by Daniela Marinova against the order of the Court of First Instance (Sixth Chamber) delivered on 05 November 2008 in Case T-213/08: Marinova/Université Libre de Bruxelles and Commission

24

2009/C 267/45

Case C-59/09 P: Appeal brought on 9 December 2008 by Hasbro, Inc. against the decision of the Court of First Instance (Sixth Chamber) contained in a letter of 22 September 2008 in Case T-472/07: Enercon v OHIM

24

2009/C 267/46

Case C-262/09: Reference for a preliminary ruling from the Finanzgericht Köln (Germany) lodged on 13 July 2009 — Wienand Meilicke, Frau Heidi Christa Weyde and Marina Stöffler v Finanzamt Bonn-Innenstadt

25

2009/C 267/47

Case C-266/09: Reference for a preliminary ruling from the College van Beroep voor het Bedrijfsleven (The Netherlands) lodged on 10 June 2009 — Stichting Natuur en Milieu, Vereniging Milieudefensie, Vereniging Goede Waar & Co. v College voor het toelating van gewasbeschermingsmiddelen en biociden, other parties: Bayer CropScience BV and Nederlandse Stichting voor Fytofarmacie

26

2009/C 267/48

Case C-270/09: Reference for a preliminary ruling from Court of Session (Scotland), Edinburgh (United Kingdom) made on 14 July 2009 — Macdonald Resorts Limited v The Commissioners for Her Majesty's Revenue & Customs

26

2009/C 267/49

Case C-273/09: Reference for a preliminary ruling from the Rechtbank Haarlem (Netherlands), lodged on 16 July 2009 — Premis Medical BV v Inspecteur van de Belastingdienst/Douane Rotterdam, kantoor Rotterdam Laan op Zuid

27

2009/C 267/50

Case C-274/09: Reference for a preliminary ruling from the Oberlandesgericht München (Germany) lodged on 20 July 2009 — Privater Rettungsdienst und Krankentransport Stadler v Zweckverband für Rettungsdienst und Feuerwehralarmierung Passau — Joined parties: Malteser Hilfsdienst e.V. and Bayerisches Rotes Kreuz

28

2009/C 267/51

Case C-275/09: Reference for a preliminary ruling from the Raad van State (Belgium) lodged on 21 July 2009 — Brussels Hoofdstedelijk Gewest and Others v Vlaamse Gewest. Other party: Brussels International Airport Company NV, now The Brussels Airport Company NV

28

2009/C 267/52

Case C-276/09: Reference for a preliminary ruling from High Court of Justice (Chancery Division) (England and Wales) made on 20 July 2009 — T-Mobile (UK) Ltd v The Commissioners for Her Majesty's Revenue & Customs

29

2009/C 267/53

Case C-277/09: Reference for a preliminary ruling from Court of Session (Scotland), Edinburgh (United Kingdom) made on 21 July 2009 — The Commissioners for Her Majesty's Revenue & Customs v RBS Deutschland Holdings GmbH

30

2009/C 267/54

Case C-279/09: Reference for a preliminary ruling from the Kammergericht Berlin (Germany), lodged on 22 July 2009 — DEB Deutsche Energiehandels- und Beratungsgesellschaft mbH v Bundesrepublik Deutschland

31

2009/C 267/55

Case C-285/09: Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 24 July 2009 — Criminal proceedings against R

31

2009/C 267/56

Case C-291/09: Reference for a preliminary ruling from the Rechtbank van Koophandel te Brussel (Belgium) lodged on 27 July 2009 — Francesco Guarnieri & Cie v Vandevelde Eddy VOF

31

2009/C 267/57

Case C-296/09: Reference for a preliminary ruling from the Hof van Cassatie van België lodged on 29 July 2009 — Vlaamse Gemeenschap v M. Baesen

31

2009/C 267/58

Case C-298/09: Reference for a preliminary ruling from the Fővárosi Bíróság Gazdasági Kollégiuma (Hungary) lodged on 29 July 2009 — RANI Slovakia s.r.o. v Hankook Tire Magyarország Kft.

32

2009/C 267/59

Case C-299/09: Reference for a preliminary ruling from the Nejvyšší správní soud (Czech Republic) lodged on 30 July 2009 — DAR Duale Abfallwirtschaft und Verwertung Ruhrgebiet GmbH v Ministerstvo životního prostředí

32

2009/C 267/60

Case C-300/09: Reference for a preliminary ruling from the Raad van State (Netherlands), lodged on 30 July 2009 — Staatssecretaris van Justitie; other party: F. Toprak

33

2009/C 267/61

Case C-301/09: Reference for a preliminary ruling from the Raad van State (Netherlands), lodged on 30 July 2009 — Staatssecretaris van Justitie; other party: I. Oguz

33

2009/C 267/62

Case C-307/09: Reference for a preliminary ruling from the Raad van State (Netherlands), lodged on 3 August 2009 — Vicoplus SC PUH; other party: Minister van Sociale Zaken en Werkgelegenheid

34

2009/C 267/63

Case C-308/09: Reference for a preliminary ruling from the Raad van State (Netherlands), lodged on 3 August 2009 — B.A.M. Vermeer Contracting Sp. z o.o.; other party: Minister van Sociale Zaken en Werkgelegenheid

34

2009/C 267/64

Case C-309/09: Reference for a preliminary ruling from the Raad van State (Netherlands), lodged on 3 August 2009 — Olbek Industrial Services sp. z.o.o.; other party: Minister van Sociale Zaken en Werkgelegenheid

34

2009/C 267/65

Case C-314/09: Reference for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 7 August 2009 — Stadt Graz v Strabag AG, Teerag-Asdag AG, Bauunternehmung Granit GesmbH

35

2009/C 267/66

Case C-316/09: Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 10 August 2009 — MSD Sharp & Dohme GmbH v Merckle GmbH

35

2009/C 267/67

Case C-317/09 P: Appeal brought on 10 August 2009 by ArchiMEDES against the judgment of the Court of First Instance (Fifth Chamber) delivered on 10 June 2009 in Joined Cases T-396/05 and T-397/05 ArchiMEDES v Commission

36

2009/C 267/68

Case C-318/09 P: Appeal brought on 11 August 2009 by A2A SpA, formerly ASM Brescia SpA, against the judgment of the Court of First Instance (Eighth Chamber, Extended Composition) delivered on 11 June 2009 in Case T-189/03 ASM Brescia SpA v Commission of the European Communities

37

2009/C 267/69

Case C-319/09 P: Appeal brought on 11 August 2009 by ACEA SpA against the judgment of the Court of First Instance (Eighth Chamber, Extended Composition) delivered on 11 June 2009 in Case T-297/02 ACEA S.p.A. v Commission of the European Communities

38

2009/C 267/70

Case C-320/09 P: Appeal brought on 11 August 2009 by A2A SpA, formerly ASM Brescia SpA, against the judgment of the Court of First Instance (Eighth Chamber, Extended Composition) delivered on 11 June 2009 in Case T-301/02 AEM v Commission

39

2009/C 267/71

Case C-324/09: Reference for a preliminary ruling from High Court of Justice (England and Wales), Chancery Division, made on 12 August 2009 — L'Oréal SA, Lancôme parfums et beauté & Cie SNC, Laboratoire Garnier & Cie, L'Oréal (UK) Limited v eBay International AG, eBay Europe SARL, eBay (UK) Limited, Stephan Potts, Tracy Ratchford, Marie Ormsby, James Clarke, Joanna Clarke, Glen Fox, Rukhsana Bi

40

2009/C 267/72

Case C-329/09 P: Appeal brought on 17 August 2009 by Iride SpA, formerly AMGA SpA, against the judgment of the Court of First Instance (Eighth Chamber, extended Composition) delivered on 11 June 2009 in Case T-300/02 AMGA v Commission

41

2009/C 267/73

Case C-334/09: Reference for a preliminary ruling from the Verwaltungsgericht Meiningen (Germany) lodged on 24 August 2009 — Frank Scheffler v Landkreis Wartburgkreis

42

2009/C 267/74

Case C-341/09 P: Appeal brought on 21 August 2009 by Acegas-APS SpA, formerly Acqua, Elettricità, Gas e servizi SpA (Acegas) against the judgment of the Court of First Instance (Eighth Chamber, Extended Composition) delivered on 11 June 2009 in Case T-307/02 Acegas v Commission

42

2009/C 267/75

Case C-342/09 P: Appeal brought on 26 August 2009 by Victor Guedes — Indústria e Comércio, SA against the judgment of the Court of First Instance (Eighth Chamber) delivered on 11 June 2009 in Case T-151/08: Guedes — Indústria e Comércio v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Consorci de l'Espai Rural de Gallecs

43

2009/C 267/76

Case C-343/09: Reference for a preliminary ruling from High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court) made on 26 August 2009 — Afton Chemical Limited v Secretary of State for Transport

44

2009/C 267/77

Case C-351/09: Action brought on 28 August 2009 — Commission of the European Communities v Republic of Malta

45

2009/C 267/78

Case C-353/09 P: Appeal brought on 2 September 2009 by Perfetti Van Melle SpA against the judgment of the Court of First Instance (Eighth Chamber) delivered on 1 July 2009 in Case T-16/08: Perfetti Van Melle SpA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Cloetta Fazer AB

45

2009/C 267/79

Case C-357/09: Reference for a preliminary ruling from the Administrativen Sad Sofia-grad, Bulgaria lodged on 7 September 2009 — Saïd Shamilovich Kadzoev v Direktsia Migratsia pri Ministerstvo na vatreshnite raboti

46

2009/C 267/80

Case C-363/09: Action brought on 11 September 2009 — Commission of the European Communities v Kingdom of Spain

48

2009/C 267/81

Case C-364/09 P: Appeal brought on 14 September 2009 by Mineralbrunnen Rhön-Sprudel Egon Schindel GmbH against the judgment of the Court of First Instance (Eighth Chamber) delivered on 8 July 2009 in Case T-226/08 Mineralbrunnen Rhön-Sprudel Egon Schindel GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs); the other party to the proceedings being: Schwarzbräu GmbH

48

2009/C 267/82

Case C-365/09 P: Appeal brought on 14 September 2009 by Mineralbrunnen Rhön-Sprudel Egon Schindel GmbH against the judgment of the Court of First Instance (Eighth Chamber) delivered on 8 July 2009 in Case T-225/08 Mineralbrunnen Rhön-Sprudel Egon Schindel GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs); the other party to the proceedings being: Schwarzbräu GmbH

49

2009/C 267/83

Case C-370/09: Action brought on 15 September 2009 — Commission of the European Communities v Hellenic Republic

50

2009/C 267/84

Case C-371/09: Reference for a preliminary ruling from the High Court of Justice (England and Wales), Chancery Division, made on 14 September 2009 — Commissioners for Her Majesty's Revenue and Customs v Isaac International Limited

50

2009/C 267/85

Case C-376/09: Action brought on 22 September 2009 — Commission of the European Communities v Republic of Malta

51

2009/C 267/86

Case C-547/07: Order of the President of the Court of 29 June 2009 — Commission of the European Communities v Republic of Poland

52

2009/C 267/87

Case C-72/08: Order of the President of the Eighth Chamber of the Court of 1 July 2009 — Commission of the European Communities v Republic of Poland

52

2009/C 267/88

Case C-129/08: Order of the President of the Seventh Chamber of the Court of 4 June 2009 (reference for a preliminary ruling from the Rechtbank van eerste aanleg te Brugge (Belgium)) — Carlos Cloet, Jacqueline Cloet v Westvlaamse Intercommunale voor Economische Expansie, Huisvestingsbeleid en Technische Bijstand CVBA (WVI)

52

Court of First Instance

2009/C 267/89

Case T-341/05 (Agriculture — Common organisation of the market in milk and milk products — Abolition of export refunds for all milk products to Ceuta and Melilla — Conditions — Principle of non-discrimination — Proportionality: Judgment of the Court of First Instance of 23 September 2009 — Spain v Commission

53

2009/C 267/90

Case T-385/05: Judgment of the Court of First Instance of 23 September 2009 — Transnáutica v Commission (Customs union — External Community transit operations — Consignments of tobacco and ethyl alcohol for third countries — Fraud — Claim for remission of import duties — Article 239 of Regulation (EEC) No 2913/92 — Article 905 of Regulation (EEC) No 2454/93 — Fairness clause — Existence of a special situation — Comprehensive guarantee)

53

2009/C 267/91

Case T-99/06: Judgment of the Court of First Instance of 23 September 2009 — Phildar v OHIM — Comercial Jacinto Parera (FILDOR) (Community trade mark — Opposition proceedings — Application for the Community word mark FILDOR — Earlier national semi-figurative mark PHILDAR — Earlier national word mark FILDOR — Earlier international word and semi-figurative marks PHILDAR — Relative ground for refusal — Likelihood of confusion — Articles 8(1)(b), 62 and 73 of Regulation (EC) No 40/94 (now Articles 8(1)(b), 64 and 75 of Regulation (EC) No 207/2009)

54

2009/C 267/92

Case T-221/06: Judgment of the Court of First Instance of 16 September 2009 — Hipp & Co v OHIM — Laboratoris Ordesa (Bebimil) (Community trade mark — Opposition procedure — Application for Community word mark Bebimil — Earlier Community and national word marks BLEMIL — Earlier national word mark BLEMIL 1 — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009) — Likelihood of confusion)

54

2009/C 267/93

Case T-296/06: Judgment of the Court of First Instance of 23 September 2009 — Dongguan Nanzha Leco Stationery v Council of the European Union (Dumping — Imports of lever arch mechanisms originating in China — Determination of the dumping margin — Market economy treatment — Comparison between the normal value and the export price — Application of a different method to that used during the initial investigation — Article 2(7)(a) and (10) of Regulation (EC) No 384/96)

55

2009/C 267/94

Case T-391/06: Judgment of the Court of First Instance of 23 September 2009 — Arcandor v OHIM — dm drogerie market (S-HE) (Community trade mark — Opposition proceedings — Application for the Community word mark S-HE — Earlier national word mark SHE, earlier national and international figurative trade mark She — Relative ground for refusal — No likelihood of confusion — Lack of similarity between the signs — Article 8(1)(b) of Regulation (EC) No 40/94 [now Article 8(1)(b) of Regulation (EC) No 207/2009)

55

2009/C 267/95

Case T-400/06: Judgment of the Court of First Instance of 16 September 2009 — Zero Industry v OHIM — zero Germany (zerorh+) (Community trade mark — Opposition proceedings — Application for figurative Community mark zerorh+ — Earlier national figurative and word marks zero — Likelihood of confusion — Similarity of the signs — Similarity between products — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009)

56

2009/C 267/96

Case T-80/07: Judgment of the Court of First Instance of 16 September 2009 — JanSport Apparel v OHIM (BUILT TO RESIST) (Community trade mark — Application for the Community word mark BUILT TO RESIST — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 40/94 (now Article 7(1)(c) of Regulation (EC) No 207/2009)

56

2009/C 267/97

Case T-103/07: Judgment of the Court of First Instance of 23 September 2009 — Fratex Industria e Comércio v OHIM– USA Track & Field (TRACK & FIELD USA) (Community trade mark — Opposition proceedings — Application for figurative Community mark TRACK & FIELD USA — Earlier national figurative mark TRACK & FIELD — Relative ground for refusal — No likelihood of confusion — Lack of similarity between the signs — Article 8(1)(b) of Regulation (EC) No 40/94 [now Article 8(1)(b) of Regulation (EC) No 207/2009)

56

2009/C 267/98

Case T-162/07: Judgment of the Court of First Instance of 16 September 2009 — Pigasos Alieftiki Naftiki Etairia v Council and Commission (Non-contractual liability — Customs union — Proof of the Community nature of products of sea-fishing — Submission of certain documents as proof not possible — Sufficiently serious breach of a rule of law conferring rights on individuals — Liability of the Community in the absence of unlawful conduct by its bodies)

57

2009/C 267/99

Case T-180/07: Judgment of the Court of First Instance of 16 September 2009 — Promomadrid v OHIM (MADRIDEXPORTA) (Community trade mark — Application for Community figurative mark MADRIDEXPORTA — Absolute grounds for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 40/94 (now Article 7(1)(c) of Regulation (EC) No 207/2009)

57

2009/C 267/00

Case T-183/07: Judgment of the Court of First Instance of 23 September 2009 — Poland v Commission (Environment — Directive 2003/87/EC — Emissions trading system for greenhouse gas allowances — National allocation plan for emission allowances for Poland for the period from 2008 to 2012 — Three month time-limit — Respective powers of the Member States and the Commission — Equal treatment — Duty to state reasons — Article 9(1) and (3) and Article 11(2) of Directive 2003/87)

58

2009/C 267/01

Joined Cases T-225/07 and T-364/07: Judgment of the Court of First Instance of 29 September 2009 — Thomson Sales Europe v Commission (Customs union — Imports of colour television receivers manufactured in Thailand — Refund of import duties — Manifest negligence — Post-clearance recovery of import duties — Action for annulment — Act having adverse effects — Inadmissibility)

58

2009/C 267/02

Case T-263/07: Judgment of the Court of First Instance of 23 September 2009 — Estonia v Commission (Environment — Directive 2003/87/EC — Emissions trading system for greenhouse gases — National plan allocating emissions allowances for Estonia for the period from 2008 to 2012 — Respective powers of the Member States and the Commission — Equal treatment — Article 9(1) and (3) and Article 11(2) of Directive 2003/87)

59

2009/C 267/03

Case T-291/07: Judgment of the Court of First Instance of 23 September 2009 — Viñedos y Bodegas Príncipe Alfonso de Hohenlohe v OHIM — Byass (ALFONSO) (Community trade mark — Opposition proceedings — Application for the Community word mark ALFONSO — Earlier Community and national word marks PRINCIPE ALFONSO — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009) — Scope of the examination to be carried out by the Board of Appeal — Obligation to rule on the entirety of the action — Article 62(1) of Regulation No 40/94 (now Article 64(1) of Regulation No 207/2009)

59

2009/C 267/04

Joined Cases T-305/07 and T-306/07: Judgment of the Court of First Instance of 16 September 2009 — Offshore Legends v OHIM — Acteon (OFFSHORE LEGENDS in black and white and OFFSHORE LEGENDS in blue, black and green) (Community trade mark — Opposition proceedings — Application for two Community figurative marks OFFSHORE LEGENDS, one in black and white, the other in blue, black and green — Earlier national figurative mark OFFSHORE 1 — Relative grounds for refusal — Likelihood of confusion — Similarity of goods and signs — Absence of request for proof of genuine use of the earlier mark — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009) — Article 43(2) and (3) of Regulation No 40/94 in conjunction with Article 15(2)(a) of Regulation No 40/94 (now Article 42(2) and (3) and point (a) of the second subparagraph of Article 15(1) of Regulation No 207/2009)

60

2009/C 267/05

Case T-391/07: Judgment of the Court of First Instance of 16 September 2009 — Alber v OHIM (hand grip) (Community trade mark — Application for a three-dimensional Community trade mark — Hand grip — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 40/94 (now Article 7(1)(b) of Regulation (EC) No 207/2009) — Duty to give reasons — Article 73 of Regulation No 40/94 (now Article 75 of Regulation No 207/2009) — Principle of examination of the facts of its own motion — Article 74(1) of Regulation No 40/94 (now Article 76(1) of Regulation No 207/2009)

60

2009/C 267/06

Case T-396/07: Judgment of the Court of First Instance of 23 September 2009 — France Télécom v OHIM (UNIQUE) (Community trade mark — Application for the Community word mark UNIQUE — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 40/94 (now Article 7(1)(b) of Regulation (EC) No 207/2009)

60

2009/C 267/07

Case T-409/07: Judgment of the Court of First Instance of 23 September 2009 — Cohausz v OHIM — Izquierdo Faces (acopat) (Community trade mark — Invalidity proceedings — Community figurative mark acopat — Earlier national word marks COPAT — Relative ground for refusal — No genuine use of the earlier marks — Article 56(2) and (3) of Regulation (EC) No 40/94 (now Article 57(2) and (3) of Regulation (EC) No 207/2009)

61

2009/C 267/08

Case T-458/07: Judgment of the Court of First Instance of 16 September 2009 — Dominio de la Vega v OHIM — Ambrosio Velasco (DOMINIO DE LA VEGA) (Community trade mark — Opposition proceedings — Application for Community figurative mark DOMINIO DE LA VEGA — Earlier Community figurative mark PALACIO DE LA VEGA — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009)

61

2009/C 267/09

Joined Cases T-493/07, T- 26/08 and T-27/08: Judgment of the Court of First Instance of 23 September 2009 — GlaxoSmithKline and others v OHIM — Serono Genetics Institute (FAMOXIN) (Community trade mark — Invalidity proceedings — Community word mark FAMOXIN — Earlier national word marks LANOXIN — Relative ground for refusal — No likelihood of confusion — Article 8(1)(b) and Article 52(1)(a) of Regulation (EC) No 40/94 (now Article 8(1)(b) and Article 53(1)(a) of Regulation (EC) No 207/2009) — Proof of use — Article 56(2) and (3) of Regulation No 40/94 (now Article 57(2) and (3) of Regulation No 207/2009)

62

2009/C 267/10

Joined Cases T-20/08 and T-21/08: Judgment of the Court of First Instance of 23 September 2009 — Evets v OHIM (DANELECTRO and QWIK TUNE) (Community trade mark — Community word mark DANELECTRO and Community figurative mark QWIK TUNE — Failure to observe the time-limit for submitting a request for renewal of the trade marks — Application for restitutio in integrum — Reformatio in pejus — Rights of the defence — Right to be heard — Article 61(2), second sentence of Article 73, and Article 78 of Regulation (EC) No 40/94 (now Article 63(2), second sentence of Article 75, and Article 81 of Regulation (EC) No 207/2009)

62

2009/C 267/11

Case T-130/08: Judgment of the Court of First Instance of 16 September 2009 — Gres La Sagra v OHIM — Ceramicalcora (VENATTO MARBLE STONE) (Community trade mark — Opposition proceedings — Application for Community figurative mark VENATTO MARBLE STONE — Earlier national figurative marks VENETO CERÁMICAS — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009)

62

2009/C 267/12

Case T-139/08: Judgment of the Court of First Instance of 29 September 2009 — The Smiley Company v OHIM (Representation of half a smiley smile) (Community trade mark — International registration designating the European Community — Figurative mark representing half a smiley smile — Absolute ground for refusal — Lack of distinctive character — Article 146(1) and Article 7(1)(b) of Regulation (EC) No 40/94 (now Article 151(1) and Article 7(1)(b) of Regulation (EC) No 207/2009)

63

2009/C 267/13

Case T-271/08: Judgment of the Court of First Instance of 16 September 2009 — Boudova and Others v Commission (Appeal — Public service — Officials — Former members of the auxiliary staff — Appointment — Classification in grade — Competition published before the entry in force of the new Staff Regulations — Reclassification by another institution of its officials — Refusal to reclassify — Principle of equal treatment — Action for annulment — Non-actionable measure — Confirmatory act — Absence of new and substantive facts — Absence of excusable error — Inadmissibility)

63

2009/C 267/14

Case T-57/07: Order of the Court of First Instance of 2 September 2009 — E.ON Ruhrgas and E.ON Földgáz Trade v Commission (Action for annulment — Competition — Concentrations — Decision declaring the concentration compatible with the common market — Commitments — Commission letters regarding the commitments — Non-actionable measures — Inadmissibility)

64

2009/C 267/15

Case T-139/07: Order of the Court of First Instance of 4 September 2009 — Pioneer Hi-Bred International v Commission (Approximation of laws — Deliberate release into the environment of genetically modified organisms — Authorisation procedure for placing on the market — Failure by the Commission to submit draft measures to the regulatory committee — Action for failure to act — Action which becomes devoid of purpose in the course of proceedings — No need to adjudicate)

64

2009/C 267/16

Case T-186/08: Order of the Court of First Instance of 7 September 2009 — LPN v Commission (Action for annulment and damages — Environment — Directive 92/43/EEC — Decision to take no further action on a complaint — Failure to bring an action for failure to fulfil obligations — Access to documents — Regulation (EC) No 1049/2001 — Manifest inadmissibility — No need to adjudicate)

64

2009/C 267/17

Case T-375/08 P: Order of the Court of First Instance of 9 September 2009 — Nijs v Court of Auditors (Appeal — Public service — Officials — Decision of the Court of Auditors to renew the mandate of its Secretary General — Decision not to promote the appellant in the 2004 promotion year — Appeal partly inadmissible and partly manifestly unfounded)

65

2009/C 267/18

Case T -309/09: Action brought on 4 August 2009 — Sanyō Denki v OHIM — Telefónica O2 Germany (eneloop)

65

2009/C 267/19

Case T-315/09: Action brought on 10 August 2009 — Hoelzer v OHIM (SAFELOAD)

66

2009/C 267/20

Case T-317/09: Action brought on 14 August 2009 — Concord Power Nordal v Commission

66

2009/C 267/21

Case T-318/09: Action brought on 14 August 2009 — Audi and Volkswagen v OHIM (TDI)

67

2009/C 267/22

Case T-320/09: Action brought on 14 August 2009 — Planet v Commission

67

2009/C 267/23

Case T-321/09: Action brought on 14 August 2009 — skytron energy v OHIM (arraybox)

68

2009/C 267/24

Case T-327/09: Action brought on 18 August 2009 — Connefroy and Others v Commission

68

2009/C 267/25

Case T-328/09: Action brought on 19 August 2009 — Producteurs de Légumes de France v Commission

69

2009/C 267/26

Case T-329/09: Action brought on 24 August 2009 — Fédération Internationale des Logis v OHIM (Brown convex square)

69

2009/C 267/27

Case T-330/09: Action brought on 19 August 2009 — RapidEye v Commission

69

2009/C 267/28

Case T -331/09: Action brought on 25 August 2009 — Novartis v OHIM — Sanochemia Pharmazeutika AG

70

2009/C 267/29

Case T-332/09: Action brought on 20 August 2009 — Electrabel v Commission

71

2009/C 267/30

Case T-333/09: Action brought on 20 August 2009 — Poland v Commission

71

2009/C 267/31

Case T-335/09: Action brought on 24 August 2009 — Groupement Adriano, Jaime Ribeiro, Conduril-Construção v Commission

72

2009/C 267/32

Case T -338/09: Action brought on 27 August 2009 — Müller-Boré & Partner v OHIM — Popp and Other (MBP)

73

2009/C 267/33

Case T-340/09: Action brought on 19 August 2009 — Evropaïki Dynamiki v Publications Office of the European Union

73

2009/C 267/34

Case T-343/09: Action brought on 1 September 2009 — Amecke Fruchtsaft v OHIM — Beate Uhse (69 Sex up)

75

2009/C 267/35

Case T-347/09: Action brought on 31 August 2009 — Germany v Commission

75

2009/C 267/36

Case T-349/09: Action brought on 3 September 2009 — PAGO International v OHIM — Tirol Milch (Pago)

76

2009/C 267/37

Case T-350/09: Action brought on 4 September 2009 — ICO Satellite v Commission

76

2009/C 267/38

Case T-352/09: Action brought on 14 September 2009 — Novácke chemické závody/Commission

77

2009/C 267/39

Case T-356/09: Action brought on 16 September 2009 — Commission v Association Fédération Club B2A

78

2009/C 267/40

Case T-357/09: Action brought on 15 September 2009 — Pucci International v OHIM — El Corte Inglés (Emidio Tucci)

78

2009/C 267/41

Case T-358/09: Action brought on 16 September 2009 — Sociedad Agricola Requingua v OHIM — Consejo Regulador de la Denominación de Origen Toro (TORO DE PIEDRA)

79

2009/C 267/42

Case T-359/09: Action brought on 14 September 2009 — Jurašinović v Council

80

2009/C 267/43

Case T-363/09: Action brought on 17 September 2009 — Longevity Health Products v OHIM — Gruppo Lepetit (RESVEROL)

80

2009/C 267/44

Case T-365/09: Action brought on 17 September 2009 — Michalakopoulou Ktimatiki Touristiki v OHIM — Free (FREE)

81

2009/C 267/45

Case T-367/09: Action brought on 18 September 2009 — Tecnoprocess v Commission and Delegation of the European Commission to the Republic of Nigeria

82

2009/C 267/46

Case T-113/06: Order of the Court of First Instance of 22 September 2009 — Fjord Seafood Norway and Others v Council

82

2009/C 267/47

Case T-404/07: Order of the Court of First Instance of 21 September 2009 — Ryanair v Commission

82

European Union Civil Service Tribunal

2009/C 267/48

Case F-37/05: Judgment of the Civil Service Tribunal (Second Chamber) of 24 September 2009 — Brown v Commission (Staff case — Competition internal to the institution — Admission criteria — Members of the auxiliary staff — Rejection of candidature)

83

2009/C 267/49

Case F-139/07: Judgment of the Civil Service Tribunal (Second Chamber) of 10 September 2009 — Van Arum v Parliament (Staff case — Officials — Appraisal — Staff Report — Scope of the complaint referred to in Article 90 of the Staff Regulations)

83

2009/C 267/50

Case F-9/08: Judgment of the Civil Service Tribunal (Second Chamber) of 10 September 2009 — Rosenbaum v Commission (Staff case — Officials — Appointment — Grading — Request for reclassification — Scope of Article 13 in Annex XIII to the Staff Regulations — Taking into account professional experience — Recruitment in the grade of the competition — Article 31 of the Staff Regulations — Principle of non-discrimination — Free movement of workers)

83

2009/C 267/51

Case F-36/08: Judgment of the Civil Service Tribunal (Second Chamber) of 24 September 2009 — Schell v Commission (Staff case — Officials — Promotion — Allocation of promotion points by Directors-General — 2007 promotion procedure)

84

2009/C 267/52

Case F-141/06: Order of the Civil Service Tribunal (Second Chamber) of 15 September 2009 — Hartwig v Commission (Appointment — Members of the temporary staff appointed as officials — Candidates names included on a reserve list of a competition published prior to the entry into force of the new Staff Regulations — Grading pursuant to the new less favourable rules — Transitional measures of Annex XIII to the Staff Regulations)

84

2009/C 267/53

Case F-73/09: Action brought on 10 September 2009 — Sukup v Commission

84

2009/C 267/54

Case F-74/09: Action brought on 10 September 2009 — Gowitzke v Europol

85

2009/C 267/55

Case F-75/09: Action brought on 11 September 2009 –Wenig v Commission

85

2009/C 267/56

Case F -32/05: Order of the Civil Service Tribunal of 15 September 2009 — Perez Santander v Council

85

2009/C 267/57

Case F-38/07: Order of the Civil Service Tribunal of 25 September 2009 — Caleprico v Commission

86

2009/C 267/58

Case F-58/08: Order of the Civil Service Tribunal of 25 September 2009 — Avogadri and Others v Commission

86

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

EN

---

IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Court of Justice

| 7.11.2009 | EN | Official Journal of the European Union | C 267/1 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/1

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2009/C 267/01

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

OJ C 256, 24.10.2009

Past publications

OJ C 244, 10.10.2009

OJ C 233, 26.9.2009

OJ C 220, 12.9.2009

OJ C 205, 29.8.2009

OJ C 193, 15.8.2009

OJ C 180, 1.8.2009

These texts are available on:

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

---

| 7.11.2009 | EN | Official Journal of the European Union | C 267/1 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/1

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Taking of the oath by the new Members of the Court of Justice

2009/C 267/02

Following their appointment as Judges at the Court of Justice of the European Communities for the period from 7 October 2009 to 6 October 2015 by decision of the Representatives of the Governments of the Member States of the European Communities of 25 February 2009, (1) Mr Safjan and Mr Šváby took the oath before the Court on 6 October 2009.

Following her appointment as Judge at the Court of Justice of the European Communities for the period from 7 October 2009 to 6 October 2012 by decision of the Representatives of the Governments of the Member States of the European Communities of 8 July 2009, (2) Ms Berger took the oath before the Court on 6 October 2009.

Following his appointment as Advocate General at the Court of Justice of the European Communities for the period from 7 October 2009 to 6 October 2015 by decision of the Representatives of the Governments of the Member States of the European Communities of 25 February 2009, (1) Mr Jääskinen took the oath before the Court on 6 October 2009.

---

(1)  OJ L 63 of 7 March 2009, p. 13.

(2)  OJ L 181 of 14 July 2009, p. 26.

---

| 7.11.2009 | EN | Official Journal of the European Union | C 267/2 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/2

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Election of the President of the Court of Justice

2009/C 267/03

At a meeting on 7 October 2009, the Judges of the Court of Justice of the European Communities elected Mr Skouris as President of the Court for the period from 7 October 2009 to 6 October 2012, pursuant to Article 7(1) of the Rules of Procedure.

---

| 7.11.2009 | EN | Official Journal of the European Union | C 267/2 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/2

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Election of Presidents of Chambers

2009/C 267/04

At a meeting on 7 October 2009, the Judges of the Court of Justice, pursuant to the first subparagraph of Article 10(1) of the Rules of Procedure, elected Mr Tizzano, Mr Cunha Rodrigues, Mr Lenaerts and Mr Bonichot as Presidents of the First, Second, Third and Fourth Chambers of five Judges respectively, for a period of three years expiring on 6 October 2012.

At a meeting on 8 October 2009, the Judges of the Court of Justice, pursuant to the second subparagraph of Article 10(1) of the Rules of Procedure, elected Mr Levitz, Ms Lindh, Ms Silva de Lapuerta and Ms Toader as Presidents of the Fifth, Sixth, Seventh and Eighth Chambers of three Judges respectively, for a period of one year expiring on 6 October 2010.

---

| 7.11.2009 | EN | Official Journal of the European Union | C 267/2 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/2

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Appointment of the First Advocate General

2009/C 267/05

The Court of Justice appointed Mr Mengozzi as First Advocate General for a period of one year expiring on 6 October 2010, pursuant to the third subparagraph of Article 10(1) of the Rules of Procedure.

---

| 7.11.2009 | EN | Official Journal of the European Union | C 267/2 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/2

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Assignment of Judges to the Chambers

2009/C 267/06

At its meetings on 8 and 9 October 2009, the Court decided to assign the Judges to the Chambers as follows:

| | First Chamber

  Mr Tizzano, President,
  Mr Borg Barthet, Mr Ilešič, Mr Levits, Mr Kasel, Mr Safjan and Ms Berger, Judges |
| --- | --- |

First Chamber

Mr Tizzano, President,

Mr Borg Barthet, Mr Ilešič, Mr Levits, Mr Kasel, Mr Safjan and Ms Berger, Judges

| | Second Chamber

  Mr Cunha Rodrigues, President,
  Mr Rosas, Mr Lõhmus, Mr Ó Caoimh, Ms Lindh and Mr Arabadjiev, Judges |
| --- | --- |

Second Chamber

Mr Cunha Rodrigues, President,

Mr Rosas, Mr Lõhmus, Mr Ó Caoimh, Ms Lindh and Mr Arabadjiev, Judges

| | Third Chamber

  Mr Lenaerts, President,
  Ms Silva de Lapuerta, Mr Juhász, Mr Arestis, Mr Malenovský, Mr von Danwitz and Mr Švaby, Judges |
| --- | --- |

Third Chamber

Mr Lenaerts, President,

Ms Silva de Lapuerta, Mr Juhász, Mr Arestis, Mr Malenovský, Mr von Danwitz and Mr Švaby, Judges

| | Fourth Chamber

  Mr Bonichot, President,
  Mr Timmermans, Sir Konrad Schiemann, Mr Kūris, Mr Bay Larsen and Ms Toader, Judges |
| --- | --- |

Fourth Chamber

Mr Bonichot, President,

Mr Timmermans, Sir Konrad Schiemann, Mr Kūris, Mr Bay Larsen and Ms Toader, Judges

| | Fifth Chamber

  Mr Levits, President,
  Mr Borg Barthet, Mr Ilešič, Mr Kasel, Mr Safjan and Ms Berger, Judges |
| --- | --- |

Fifth Chamber

Mr Levits, President,

Mr Borg Barthet, Mr Ilešič, Mr Kasel, Mr Safjan and Ms Berger, Judges

| | Sixth Chamber

  Ms Lindh, President,
  Mr Rosas, Mr Lõhmus, Mr Ó Caoimh and Mr Arabadjiev, Judges |
| --- | --- |

Sixth Chamber

Ms Lindh, President,

Mr Rosas, Mr Lõhmus, Mr Ó Caoimh and Mr Arabadjiev, Judges

| | Seventh Chamber

  Ms Silva de Lapuerta, President,
  Mr Juhász, Mr Arestis, Mr Malenovský, Mr von Danwitz and Mr Šváby, Judges |
| --- | --- |

Seventh Chamber

Ms Silva de Lapuerta, President,

Mr Juhász, Mr Arestis, Mr Malenovský, Mr von Danwitz and Mr Šváby, Judges

| | Eighth Chamber

  Ms Toader, President,
  Mr Timmermans, Sir Konrad Schiemann, Mr Kūris and Mr Bay Larsen, Judges |
| --- | --- |

Eighth Chamber

Ms Toader, President,

Mr Timmermans, Sir Konrad Schiemann, Mr Kūris and Mr Bay Larsen, Judges

---

| 7.11.2009 | EN | Official Journal of the European Union | C 267/3 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/3

---

Lists for the purposes of determining the composition of the formations of the Court

2009/C 267/07

At its meeting on 8 October 2009, the Court drew up the list referred to in Article 11b(2) of the Rules of Procedure for the purposes of determining the composition of the Grand Chamber as follows:

| — | Mr Timmermans |
| --- | --- |

—

Mr Timmermans

| — | Ms Berger |
| --- | --- |

—

Ms Berger

| — | Mr Rosas |
| --- | --- |

—

Mr Rosas

| — | Mr Šváby |
| --- | --- |

—

Mr Šváby

| — | Ms Silva de Lapuerta |
| --- | --- |

—

Ms Silva de Lapuerta

| — | Mr Safjan |
| --- | --- |

—

Mr Safjan

| — | Sir Konrad Schiemann |
| --- | --- |

—

Sir Konrad Schiemann

| — | Mr Kasel |
| --- | --- |

—

Mr Kasel

| — | Mr Kūris |
| --- | --- |

—

Mr Kūris

| — | Ms Toader |
| --- | --- |

—

Ms Toader

| — | Mr Juhász |
| --- | --- |

—

Mr Juhász

| — | Mr Arabadjiev |
| --- | --- |

—

Mr Arabadjiev

| — | Mr Arestis |
| --- | --- |

—

Mr Arestis

| — | Mr von Danwitz |
| --- | --- |

—

Mr von Danwitz

| — | Mr Borg Barthet |
| --- | --- |

—

Mr Borg Barthet

| — | Ms Lindh |
| --- | --- |

—

Ms Lindh

| — | Mr Ilešič |
| --- | --- |

—

Mr Ilešič

| — | Mr Bay Larsen |
| --- | --- |

—

Mr Bay Larsen

| — | Mr Malenovský |
| --- | --- |

—

Mr Malenovský

| — | Mr Ó Caoimh |
| --- | --- |

—

Mr Ó Caoimh

| — | Mr Lõhmus |
| --- | --- |

—

Mr Lõhmus

| — | Mr Levits |
| --- | --- |

—

Mr Levits

At its meeting on 8 October 2009, the Court drew up the lists referred to in the first subparagraph of Article 11c(2) of the Rules of Procedure for the purposes of determining the composition of the Chambers of five Judges as follows:

| | First Chamber

  Mr Borg Barthet
  Ms Berger
  Mr Ilešič
  Mr Safjan
  Mr Levits
  Mr Kasel |
| --- | --- |

First Chamber

Mr Borg Barthet

Ms Berger

Mr Ilešič

Mr Safjan

Mr Levits

Mr Kasel

| | Second Chamber

  Mr Rosas
  Mr Arabadjiev
  Mr Lõhmus
  Ms Lindh
  Mr Ó Caoimh |
| --- | --- |

Second Chamber

Mr Rosas

Mr Arabadjiev

Mr Lõhmus

Ms Lindh

Mr Ó Caoimh

| | Third Chamber

  Ms Silva de Lapuerta
  Mr Šváby
  Mr Juhász
  Mr von Danwitz
  Mr Arestis
  Mr Malenovský |
| --- | --- |

Third Chamber

Ms Silva de Lapuerta

Mr Šváby

Mr Juhász

Mr von Danwitz

Mr Arestis

Mr Malenovský

| | Fourth Chamber

  Mr Timmermans
  Ms Toader
  Sir Konrad Schiemann
  Mr Bay Larsen
  Mr Kūris |
| --- | --- |

Fourth Chamber

Mr Timmermans

Ms Toader

Sir Konrad Schiemann

Mr Bay Larsen

Mr Kūris

At its meeting on 9 October 2009, the Court drew up the lists referred to in the second subparagraph of Article 11c(2) of the Rules of Procedure for the purposes of determining the composition of the Chambers of three Judges as follows:

| | Fifth Chamber

  Mr Borg Barthet
  Mr Ilešič
  Mr Kasel
  Mr Safjan
  Ms Berger |
| --- | --- |

Fifth Chamber

Mr Borg Barthet

Mr Ilešič

Mr Kasel

Mr Safjan

Ms Berger

| | Sixth Chamber

  Mr Rosas
  Mr Lõhmus
  Mr Ó Caoimh
  Mr Arabadjiev |
| --- | --- |

Sixth Chamber

Mr Rosas

Mr Lõhmus

Mr Ó Caoimh

Mr Arabadjiev

| | Seventh Chamber

  Mr Juhász
  Mr Arestis
  Mr Malenovský
  Mr von Danwitz
  Mr Šváby |
| --- | --- |

Seventh Chamber

Mr Juhász

Mr Arestis

Mr Malenovský

Mr von Danwitz

Mr Šváby

| | Eighth Chamber

  Mr Timmermans
  Sir Konrad Schiemann
  Mr Kūris
  Mr Bay Larsen |
| --- | --- |

Eighth Chamber

Mr Timmermans

Sir Konrad Schiemann

Mr Kūris

Mr Bay Larsen

---

| 7.11.2009 | EN | Official Journal of the European Union | C 267/5 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/5

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Designation of the Chamber responsible for cases of the kind referred to in Article 104b of the Rules of Procedure of the Court of Justice

2009/C 267/08

At its meeting on 9 October 2009, the Court of Justice of the European Communities designated the Third Chamber of the Court as the Chamber which, in accordance with Article 9(1) of the Rules of Procedure of the Court of Justice, is responsible for cases of the kind referred to in Article 104b of the Rules of Procedure, for a period of one year expiring on 6 October 2010.

---

| 7.11.2009 | EN | Official Journal of the European Union | C 267/5 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/5

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Taking of the oath by the new Members of the Court of First Instance

2009/C 267/09

Following their appointment as Judges at the Court of First Instance of the European Communities for the period from 1 September 2009 to 31 August 2010 (Mr Kanninen) and from 7 October 2009 to 31 August 2010 (Mr Schwarcz) by decisions of the Representatives of the Governments of the Member States of the European Communities of 25 February 2009 (1) and 8 July 2009 (2) respectively, Mr Kanninen and Mr Schwarcz took the oath before the Court of Justice on 6 October 2009.

---

(1)  OJ L 56 of 28 February 2009, p. 17.

(2)  OJ L 181 of 14 July 2009, p. 25.

---

| 7.11.2009 | EN | Official Journal of the European Union | C 267/5 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/5

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Taking of the oath of a new Member of the Civil Service Tribunal

2009/C 267/10

Following her appointment as Judge at the European Union Civil Service Tribunal for the period from 1 September 2009 to 31 August 2015 by decision of the Council of the European Union of 9 June 2009 (1), Ms Rofes i Pujol took the oath before the Court of Justice on 6 October 2009.

---

(1)  OJ L 156 of 19 June 2009, p. 56.

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Court of First Instance

| 7.11.2009 | EN | Official Journal of the European Union | C 267/6 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/6

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Election of a President of a Chamber

2009/C 267/11

On 7 October 2009, following the resignation of President of the Chamber Ms Tiili and in accordance with Articles 7(3) and 15 of the Rules of Procedure, the Court of First Instance elected Ms Wiszniewska-Białecka President of the First Chamber composed of five Judges, for the period from 7 October 2009 to 31 August 2010.

---

| 7.11.2009 | EN | Official Journal of the European Union | C 267/6 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/6

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Assignment of Judges to Chambers

2009/C 267/12

On 7 October 2009 the Plenary Meeting of the Court of First Instance decided, in response, first, to Mr Kanninen and Mr Schwarcz’s taking up of their duties as Judges and, secondly, to Ms Wiszniewska-Białecka’s election as President of the First Chamber, to amend the decisions of the Plenary Meetings of 25 September 2007, 8 July and 17 September 2008 on the assignment of the Judges to Chambers.

For the period from 7 October 2009 to 31 August 2010 the Judges are assigned to Chambers as follows:

| | First Chamber (Extended Composition), sitting with five Judges:
  Ms Wiszniewska-Białecka, President of the Chamber, Mr Dehousse, Ms Jürimäe, Mr Soldevila Fragoso and Mr Kanninen, Judges. |
| --- | --- |

First Chamber (Extended Composition), sitting with five Judges:

Ms Wiszniewska-Białecka, President of the Chamber, Mr Dehousse, Ms Jürimäe, Mr Soldevila Fragoso and Mr Kanninen, Judges.

| | First Chamber, sitting with three Judges: | Ms Wiszniewska-Białecka, President of the Chamber; |
| --- | --- | --- |

First Chamber, sitting with three Judges:

Ms Wiszniewska-Białecka, President of the Chamber;

| | Mr Dehousse, Judge; |
| --- | --- |

Mr Dehousse, Judge;

| | Mr Kanninen, Judge. |
| --- | --- |

Mr Kanninen, Judge.

| | Second Chamber (Extended Composition), sitting with five Judges:
  Ms Pelikánová, President of the Chamber, Mr Dehousse, Ms Jürimäe, Mr Soldevila Fragoso and Mr Kanninen, Judges. |
| --- | --- |

Second Chamber (Extended Composition), sitting with five Judges:

Ms Pelikánová, President of the Chamber, Mr Dehousse, Ms Jürimäe, Mr Soldevila Fragoso and Mr Kanninen, Judges.

| | Second Chamber, sitting with three Judges: | Ms Pelikánová, President of the Chamber; |
| --- | --- | --- |

Second Chamber, sitting with three Judges:

Ms Pelikánová, President of the Chamber;

| | Ms Jürimäe, Judge; |
| --- | --- |

Ms Jürimäe, Judge;

| | Mr Soldevila Fragoso, Judge. |
| --- | --- |

Mr Soldevila Fragoso, Judge.

| | Third Chamber (Extended Composition), sitting with five Judges:
  Mr Azizi, President of the Chamber, Ms Cremona, Ms Labucka, Mr Frimodt Nielsen and Mr O’Higgins, Judges. |
| --- | --- |

Third Chamber (Extended Composition), sitting with five Judges:

Mr Azizi, President of the Chamber, Ms Cremona, Ms Labucka, Mr Frimodt Nielsen and Mr O’Higgins, Judges.

| | Third Chamber, sitting with three Judges: | Mr Azizi, President of the Chamber; |
| --- | --- | --- |

Third Chamber, sitting with three Judges:

Mr Azizi, President of the Chamber;

| | Ms Cremona, Judge; |
| --- | --- |

Ms Cremona, Judge;

| | Mr Frimodt Nielsen, Judge. |
| --- | --- |

Mr Frimodt Nielsen, Judge.

| | Fourth Chamber (Extended Composition), sitting with five Judges:
  Mr Czúcz, President of the Chamber, Ms Cremona, Ms Labucka, Mr Frimodt Nielsen and Mr O’Higgins, Judges. |
| --- | --- |

Fourth Chamber (Extended Composition), sitting with five Judges:

Mr Czúcz, President of the Chamber, Ms Cremona, Ms Labucka, Mr Frimodt Nielsen and Mr O’Higgins, Judges.

| | Fourth Chamber, sitting with three Judges: | Mr Czúcz, President of the Chamber; |
| --- | --- | --- |

Fourth Chamber, sitting with three Judges:

Mr Czúcz, President of the Chamber;

| | Ms Labucka, Judge; |
| --- | --- |

Ms Labucka, Judge;

| | Mr O’Higgins |
| --- | --- |

Mr O’Higgins

| | Fifth Chamber (Extended Composition), sitting with five Judges:
  Mr Vilaras, President of the Chamber, Mr Moavero Milanesi, Mr Prek, Mr Ciucă and Mr Schwarcz, Judges. |
| --- | --- |

Fifth Chamber (Extended Composition), sitting with five Judges:

Mr Vilaras, President of the Chamber, Mr Moavero Milanesi, Mr Prek, Mr Ciucă and Mr Schwarcz, Judges.

| | Fifth Chamber, sitting with three Judges: | Mr Vilaras, President of the Chamber; |
| --- | --- | --- |

Fifth Chamber, sitting with three Judges:

Mr Vilaras, President of the Chamber;

| | Mr Prek, Judge; |
| --- | --- |

Mr Prek, Judge;

| | Mr Ciucă, Judge. |
| --- | --- |

Mr Ciucă, Judge.

| | Sixth Chamber (Extended Composition), sitting with five Judges:
  Mr Meij, President of the Chamber, Mr Vadapalas, Mr Tchipev, Mr Dittrich and Mr Truchot, Judges. |
| --- | --- |

Sixth Chamber (Extended Composition), sitting with five Judges:

Mr Meij, President of the Chamber, Mr Vadapalas, Mr Tchipev, Mr Dittrich and Mr Truchot, Judges.

| | Sixth Chamber, sitting with three Judges:
  Mr Meij, President of the Chamber;






  (a) | Mr Vadapalas and Mr Tchipev, Judges; |
| --- | --- | --- |

Sixth Chamber, sitting with three Judges:

Mr Meij, President of the Chamber;

(a)

Mr Vadapalas and Mr Tchipev, Judges;

| (b) | Mr Vadapalas and Mr Truchot, Judges; |
| --- | --- |

(b)

Mr Vadapalas and Mr Truchot, Judges;

| (c) | Mr Tchipev and Mr Truchot, Judges. |
| --- | --- |

(c)

Mr Tchipev and Mr Truchot, Judges.

| | Seventh Chamber (Extended Composition), sitting with five Judges:
  Mr Forwood, President of the Chamber, Mr Moavero Milanesi, Mr Prek, Mr Ciucă and Mr Schwarcz, Judges. |
| --- | --- |

Seventh Chamber (Extended Composition), sitting with five Judges:

Mr Forwood, President of the Chamber, Mr Moavero Milanesi, Mr Prek, Mr Ciucă and Mr Schwarcz, Judges.

| | Seventh Chamber, sitting with three Judges: | Mr Forwood, President of the Chamber; |
| --- | --- | --- |

Seventh Chamber, sitting with three Judges:

Mr Forwood, President of the Chamber;

| | Mr Moavero Milanesi, Judge; |
| --- | --- |

Mr Moavero Milanesi, Judge;

| | Mr Schwarcz, Judge. |
| --- | --- |

Mr Schwarcz, Judge.

| | Eighth Chamber (Extended Composition), sitting with five Judges:
  Ms Martins Ribeiro, President of the Chamber, Mr Papasavvas, Mr Wahl, Mr Tchipev and Mr Dittrich, Judges. |
| --- | --- |

Eighth Chamber (Extended Composition), sitting with five Judges:

Ms Martins Ribeiro, President of the Chamber, Mr Papasavvas, Mr Wahl, Mr Tchipev and Mr Dittrich, Judges.

| | Eighth Chamber, sitting with three Judges:
  Ms Martins Ribeiro, President of the Chamber;






  (a) | Mr Papasavvas and Mr Wahl, Judges. |
| --- | --- | --- |

Eighth Chamber, sitting with three Judges:

Ms Martins Ribeiro, President of the Chamber;

(a)

Mr Papasavvas and Mr Wahl, Judges.

| (b) | Mr Papasavvas and Mr Dittrich, Judges. |
| --- | --- |

(b)

Mr Papasavvas and Mr Dittrich, Judges.

| (c) | Mr Wahl and Mr Dittrich, Judges |
| --- | --- |

(c)

Mr Wahl and Mr Dittrich, Judges

---

V Announcements

COURT PROCEEDINGS

Court of Justice

| 7.11.2009 | EN | Official Journal of the European Union | C 267/8 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/8

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Judgment of the Court (First Chamber) of 17 September 2009 (reference for a preliminary ruling from the Raad van State (Netherlands)) — Minister voor Vreemdelingenzaken en Integratie v T. Sahin

(Case C-242/06) (1)

(EEC-Turkey Association Agreement - Freedom of movement for workers - Introduction of administrative charges for obtaining a residence permit in the host Member State - Infringement of the standstill clause in Article 13 of Decision No 1/80 of the Association Council)

2009/C 267/13

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Applicant: Minister voor Vreemdelingenzaken en Integratie

Defendant: T. Sahin

Re:

Reference for a preliminary ruling — Raad van State (Netherlands) — Interpretation of Article 13 of Decision No 1/80 of 19 September 1980 concerning the development of the Association, adopted by the Association Council established by the Association Agreement between the European Economic Community and Turkey, read in conjunction with Article 59 of the Additional Protocol, approved and confirmed on behalf of the Community by Council Regulation (EEC) No 2760/72 of 19 December 1972 (OJ 1972 L 293, p. 1) — Obligation to pay administrative charges for the processing of the application for extension of a residence permit — Application not lodged in good time

Operative part of the judgment

Article 13 of Decision No 1/80 of 19 September 1980 on the development of the Association, adopted by the Association Council set up by the Agreement establishing an Association between the European Economic Community and Turkey, must be interpreted as precluding the introduction, from the entry into force of that decision in the Member State concerned, of national legislation, such as that at issue in the main proceedings, which makes the granting of a residence permit or an extension of the period of validity thereof conditional on payment of administrative charges, where the amount of those charges payable by Turkish nationals is disproportionate as compared with the amount required from Community nationals.

---

(1)  OJ C 212, 2.9.2006.

---

| 7.11.2009 | EN | Official Journal of the European Union | C 267/8 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/8

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Judgment of the Court (Grand Chamber) of 8 September 2009 — Commission of the European Communities v European Parliament, Council of the European Union

(Case C-411/06) (1)

(Action for annulment - Regulation (EC) No 1013/2006 - Shipments of waste - Choice of legal basis - Articles 133 EC and 175(1) EC)

2009/C 267/14

Language of the case: English

Parties

Applicant: Commission of the European Communities (represented by: G. Valero Jordana, M. Huttunen and M. Konstantinidis, Agents)

Defendants: European Parliament (represented by: I. Anagnostopoulou and U. Rösslein, Agents), Council of the European Union (represented by: M. Moore and K. Michoel, Agents)

Interveners in support of the defendants: French Republic (represented by: G. de Bergues, A. Adam and G. Le Bras, Agents), Republic of Austria (represented by: E. Riedl, Agent), United Kingdom of Great Britain and Northern Ireland (represented by: E. Jenkinson, E. O’Neil and S. Behzadi-Spencer, Agents, A. Dashwood, Barrister)

Re:

Annulment of Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste (OJ 2006 L 190, p. 1) — Choice of legal basis — Act pursuing a dual purpose or having a dual component and requiring cumulative legal bases (Art. 175(1) EC and Art. 133 EC)

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders the Commission of the European Communities to pay the costs; |
| --- | --- |

2.

Orders the Commission of the European Communities to pay the costs;

| 3. | Orders the French Republic, the Republic of Austria and the United Kingdom of Great Britain and Northern Ireland to bear their own costs. |
| --- | --- |

3.

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

---

(1)  OJ C 294, 02.12.2006.

---

| 7.11.2009 | EN | Official Journal of the European Union | C 267/9 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/9

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Judgment of the Court (Grand Chamber) of 8 September 2009 (reference for a preliminary ruling from the Tribunal de Pequena Instância Criminal do Porto (Portugal)) — Liga Portuguesa de Futebol Profissional (CA/LPFP), Bwin International Ltd, formerly Baw International Ltd v Departamento de Jogos da Santa Casa da Misericórdia de Lisboa

(Case C-42/07) (1)

(Reference for a preliminary ruling - Article 49 EC - Restrictions on the freedom to provide services - Offer of games of chance via the internet)

2009/C 267/15

Language of the case: Portuguese

Referring court

Tribunal de Pequena Instância Criminal do Porto

Parties to the main proceedings

Applicants: Liga Portuguesa de Futebol Profissional (CA/LPFP), Bwin International Ltd, formerly Baw International Ltd

Defendant: Departamento de Jogos da Santa Casa da Misericórdia de Lisboa

Re:

Reference for a preliminary ruling — Tribunal de Pequena Instância Criminal do Porto — Interpretation of Articles 43 EC, 49 EC and 56 EC — National legislation granting a specific organisation the exclusive rights to operate games of chance and lotteries, and classing as administrative offences the activities of organising, promoting and collecting bets on sporting events, including over the internet — Prohibition of an undertaking which operates betting and lotteries online, and having its registered office in another Member State, from promoting, organising or operating such betting and lotteries over the internet or from awarding the value of the prizes to the winners

Operative part of the judgment

Article 49 EC does not preclude legislation of a Member State, such as that at issue in the main proceedings, which prohibits operators such as Bwin International Ltd, which are established in other Member States, in which they lawfully provide similar services, from offering games of chance via the internet within the territory of that Member State.

---

(1)  OJ C 69, 24.3.2007.

---

| 7.11.2009 | EN | Official Journal of the European Union | C 267/9 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/9

---

Judgment of the Court (Second Chamber) of 10 September 2009 — Commission of the European Communities v Federal Republic of Germany

(Case C-269/07) (1)

(Failure of a Member State to fulfil obligations - Freedom of movement for workers - Regulation (EEC) No 1612/68 - Savings-pension bonus - Full liability to tax)

2009/C 267/16

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: R. Lyal and W. Mölls, Agents)

Defendant: Federal Republic of Germany (represented by: C. Blaschke and M. Lumma, Agents, W. Wellisch, Rechtsanwalt)

Re:

Failure of Member State to fulfil obligations — Infringement of Articles 12 EC, 18 EC and 39 EC, and of Article 7 of Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition I 1968(II), p. 475) — National legislation concerning incentive allowances for savings pensions, the grant of which is conditional upon full liability to taxation in the Member State, providing for the repayment of the allowance on termination of such liability and prohibiting the use of capital accrued in accordance with such a scheme for the acquisition of residential property occupied by the owner unless the property is situated within the territory of that Member State.

Operative part of the judgment

The Court:

| 1. | Declares that, by introducing and maintaining the provisions for complementary pensions in Paragraphs 79 to 99 of the Federal Law on Income Tax (Einkommensteuergesetz), the Federal Republic of Germany has failed to fulfil its obligations under Article 39 EC 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 and Article 18 EC, in so far as those provisions:






  — | deny cross-border workers and their spouses the right to the savings pension bonus, unless they are fully liable to tax in that Member State; |
| --- | --- | --- |

1.

Declares that, by introducing and maintaining the provisions for complementary pensions in Paragraphs 79 to 99 of the Federal Law on Income Tax (Einkommensteuergesetz), the Federal Republic of Germany has failed to fulfil its obligations under Article 39 EC 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 and Article 18 EC, in so far as those provisions:

—

deny cross-border workers and their spouses the right to the savings pension bonus, unless they are fully liable to tax in that Member State;

| — | prohibit cross-border workers from using the subsidised capital for the acquisition or construction of an owner-occupied dwelling unless the property is situated in Germany, and |
| --- | --- |

—

prohibit cross-border workers from using the subsidised capital for the acquisition or construction of an owner-occupied dwelling unless the property is situated in Germany, and

| — | provide that the bonus be reimbursed on termination of full liability to tax in that Member State; |
| --- | --- |

—

provide that the bonus be reimbursed on termination of full liability to tax in that Member State;

| 2. | Orders the Federal Republic of Germany to pay the costs. |
| --- | --- |

2.

Orders the Federal Republic of Germany to pay the costs.

---

(1)  OJ C 199, 25.8.2007.

---

| 7.11.2009 | EN | Official Journal of the European Union | C 267/10 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/10

---

Judgment of the Court (Third Chamber) of 10 September 2009 — Commission of the European Communities v Hellenic Republic

(Case C-416/07) (1)

(Failure of a Member State to fulfil obligations - Directives 91/628/EEC and 93/119/EC - Regulation (EC) No 1/2005 - Protection of animals during transport and at the time of slaughter or killing - Structural and general infringement of Community rules)

2009/C 267/17

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (represented by: H. Tserepa-Lacombe and F. Erlbacher, acting as Agents)

Defendant: Hellenic Republic (represented by: S. Charitaki, S. Papaïoannou and E.-M. Mamouna, acting as Agents)

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 5, 8, 9 and 18(2) of Council Directive 91/628/EEC of 19 November 1991 on the protection of animals during transport and amending Directives 90/425/EEC and 91/496/EEC (OJ 1991 L 340, p. 17) — Infringement of Articles 5(4), 6(1), 13(3) and (4), 15(1), 25, 26 and 27(1) of Council Regulation (EC) No 1/2005 of 22 December 2004 on the protection of animals during transport and related operations and amending Directives 64/432/EEC and 93/119/EC and Regulation (EC) No 1255/97 (OJ 2005 L 3, p. 1) — Infringement of Articles 3, 5(1), 6(1) and 8 of Council Directive 93/119/EC of 22 December 1993 on the protection of animals at the time of slaughter or killing (OJ 1993 L 340, p. 21)

Operative part of the judgment

The Court:

| 1. | Declares that by failing to take the measures necessary:






  — | to ensure that the competent authorities carry out obligatory checks of route plans; |
| --- | --- | --- |

1.

Declares that by failing to take the measures necessary:

—

to ensure that the competent authorities carry out obligatory checks of route plans;

| — | to provide for facilities in or in the immediate vicinity of ferry ports to enable animals to rest after unloading; |
| --- | --- |

—

to provide for facilities in or in the immediate vicinity of ferry ports to enable animals to rest after unloading;

| — | so as to ensure that the inspections of the means of transport and the animals are actually carried out; |
| --- | --- |

—

so as to ensure that the inspections of the means of transport and the animals are actually carried out;

| — | to ensure that the rules on the stunning of animals at the time of slaughter are complied with, and |
| --- | --- |

—

to ensure that the rules on the stunning of animals at the time of slaughter are complied with, and

| — | to ensure that inspections and controls in slaughterhouses are carried out in an appropriate manner,
  the Hellenic Republic has failed to fulfil its obligations under the first indent of Article 5(A)(2)(d)(i) and Article 8 of Council Directive 91/628/EEC of 19 November 1991 on the protection of animals during transport and amending Directives 90/425/EEC and 91/496/EEC, as amended by Council Regulation (EC) No 806/2003 of 14 April 2003, point 48.7(b) of Chapter VII of the Annex to that directive, as amended by Regulation No 806/2003, and Articles 3, 5(1)(d), 6(1) and 8 of Council Directive 93/119/EC of 22 December 1993 on the protection of animals at the time of slaughter or killing; |
| --- | --- |

—

to ensure that inspections and controls in slaughterhouses are carried out in an appropriate manner,

the Hellenic Republic has failed to fulfil its obligations under the first indent of Article 5(A)(2)(d)(i) and Article 8 of Council Directive 91/628/EEC of 19 November 1991 on the protection of animals during transport and amending Directives 90/425/EEC and 91/496/EEC, as amended by Council Regulation (EC) No 806/2003 of 14 April 2003, point 48.7(b) of Chapter VII of the Annex to that directive, as amended by Regulation No 806/2003, and Articles 3, 5(1)(d), 6(1) and 8 of Council Directive 93/119/EC of 22 December 1993 on the protection of animals at the time of slaughter or killing;

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

2.

Dismisses the action as to the remainder;

| 3. | Orders the Hellenic Republic to pay two thirds of the costs. The Commission of the European Communities is ordered to pay one third of the costs. |
| --- | --- |

3.

Orders the Hellenic Republic to pay two thirds of the costs. The Commission of the European Communities is ordered to pay one third of the costs.

---

(1)  OJ C 283, 24.11.2007.

---

| 7.11.2009 | EN | Official Journal of the European Union | C 267/11 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/11

---

Judgment of the Court (First Chamber) of 10 September 2009 — Commission of the European Communities v Ente per le Ville Vesuviane (C-445/07 P), Ente per le Ville Vesuviane v Commission of the European Communities (C-455/07 P)

(Joined Cases C-445/07 P and C-455/07 P) (1)

(Appeal - European Regional Development Fund (ERDF) - Development of infrastructure for the expansion of tourism in Regione Campania (Italy) - Closure of Community financial assistance - Actions for annulment - Admissibility - Local or regional entity - Measures of direct and individual concern to that entity)

2009/C 267/18

Language of the case: Italian

Parties

Appellants: Commission of the European Communities (represented by: L. Flynn, Agent, A. Dal Ferro, avvocato) (C-445/07 P), Ente per le Ville Vesuviane (represented by: E. Soprano, avvocato) (C-455/07 P)

Other parties to the proceedings: Ente per le Ville Vesuviane (represented by: E. Soprano, avvocato) (C-455/07 P), Commission of the European Communities (represented by: L. Flynn, Agent, A. Dal Ferro, avvocato) (C-445/07 P)

Re

Appeal against the judgment of the Court of First Instance (Second Chamber) of 18 July 2007Ente per le Ville Vesuviane v Commission (T-189/02) by which the Court rejected the action for annulment of Commission Decision D(2002) 810111 of 13 March 2002 ending financial assistance from the European Regional Development Fund (ERDF) in the form of investment in infrastructure in Campania (Italy) relating to an integrated scheme of development of three Vesuvian villas for the purposes of tourism (ERDF No 86/05/04/054).

Operative part of the judgment

The Court:

| 1. | Sets aside the judgment of the Court of First Instance of the European Communities of 18 July 2007 in Case T-189/02 Ente per le Ville Vesuviane v Commission, inasmuch as it declared admissible Ente per le Ville Vesuviane’s action for annulment of Commission Decision D (2002) 810111 of 13 March 2002, closing the financial assistance of the European Regional Development Fund (ERDF) in the form of investment in infrastructure in Campania (Italy) relating to an integrated scheme for the development of three Vesuvian villas for the purposes of tourism; |
| --- | --- |

1.

Sets aside the judgment of the Court of First Instance of the European Communities of 18 July 2007 in Case T-189/02 Ente per le Ville Vesuviane v Commission, inasmuch as it declared admissible Ente per le Ville Vesuviane’s action for annulment of Commission Decision D (2002) 810111 of 13 March 2002, closing the financial assistance of the European Regional Development Fund (ERDF) in the form of investment in infrastructure in Campania (Italy) relating to an integrated scheme for the development of three Vesuvian villas for the purposes of tourism;

| 2. | Dismisses Ente per le Ville Vesuviane’s action for annulment of the said decision as inadmissible; |
| --- | --- |

2.

Dismisses Ente per le Ville Vesuviane’s action for annulment of the said decision as inadmissible;

| 3. | Declares that it is not necessary to rule on the appeal brought by Ente per le Ville Vesuviane; |
| --- | --- |

3.

Declares that it is not necessary to rule on the appeal brought by Ente per le Ville Vesuviane;

| 4. | Orders Ente per le Ville Vesuviane to pay the costs of the proceedings before the present Court and also those connected with the procedure at first instance. |
| --- | --- |

4.

Orders Ente per le Ville Vesuviane to pay the costs of the proceedings before the present Court and also those connected with the procedure at first instance.

---

(1)  OJ C 297, 08.12.2007.

---

| 7.11.2009 | EN | Official Journal of the European Union | C 267/11 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/11

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Judgment of the Court (Fourth Chamber) of 10 September 2009 (reference for a preliminary ruling from the Tribunale civile di Modena (Italy)) — Alberto Severi, in his own name, and as legal representative of Cavazzuti e figli SpA, now known as Grandi Salumifici Italiani SpA v Regione Emilia-Romagna

(Case C-446/07) (1)

(Directive 2000/13/EC - Labelling of foodstuffs to be delivered as such to the ultimate consumer - Labelling likely to mislead the purchaser as to the origin or provenance of the foodstuff - Generic names within the meaning of Article 3 of Regulation (EEC) No 2081/92 - Effect)

2009/C 267/19

Language of the case: Italian

Referring court

Tribunale civile di Modena

Parties to the main proceedings

Applicant: Alberto Severi, in his own name, and as legal representative of Cavazzuti e figli SpA, now known as Grandi Salumifici Italiani SpA

Defendant: Regione Emilia-Romagna

Intervening party: Associazione fra Produttori per la Tutela del ‘Salame Felino’

Re:

Reference for a preliminary ruling — Tribunale civile di Modena — Interpretation of Articles 3(1) and 13(3) of Council Regulation (EEC) No 2081/92 of 14 July 1992 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs (OJ 1992 L 208, p. 1), now Articles 3(1) and 13(2) of Regulation (EC) No 510/06 — Name of a food product which is evocative of a place not registered as a PDO or PGI within the meaning of that regulation — Whether it is possible for producers who have used that name in good faith and uninterruptedly before the entry into force of the regulation to use it in the common market — ‘Salame Felino’

Operative part of the judgment

| 1. | Articles 3(1) and 13(3) of Council Regulation (EEC) No 2081/92 of 14 July 1992 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs, as amended by Commission Regulation (EC) No 2796/2000 of 20 December 2000, must be interpreted as meaning that the designation of a foodstuff containing geographical references, which has been the subject of an application for registration as a protected designation of origin or a protected geographical indication within the meaning of Regulation No 2081/92, as amended by Regulation No 2796/2000, cannot be regarded as generic pending the possible forwarding of the application for registration to the Commission of the European Communities by the national authorities. A designation cannot be presumed to be generic, within the meaning of Regulation No 2081/92, as amended by Regulation No 2796/2000, for as long as the Commission has not taken a decision on the application for registration of the designation, as the case may be, by rejecting it on the specific ground that that designation has become generic. |
| --- | --- |

1.

Articles 3(1) and 13(3) of Council Regulation (EEC) No 2081/92 of 14 July 1992 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs, as amended by Commission Regulation (EC) No 2796/2000 of 20 December 2000, must be interpreted as meaning that the designation of a foodstuff containing geographical references, which has been the subject of an application for registration as a protected designation of origin or a protected geographical indication within the meaning of Regulation No 2081/92, as amended by Regulation No 2796/2000, cannot be regarded as generic pending the possible forwarding of the application for registration to the Commission of the European Communities by the national authorities. A designation cannot be presumed to be generic, within the meaning of Regulation No 2081/92, as amended by Regulation No 2796/2000, for as long as the Commission has not taken a decision on the application for registration of the designation, as the case may be, by rejecting it on the specific ground that that designation has become generic.

| 2. | Articles 3(1) and 13(3) of Regulation No 2081/92, as amended by Regulation No 2796/2000, read with Article 2 of Directive 2000/13/EC of the European Parliament and of the Council of 20 March 2000 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs, must be interpreted as meaning that the designation of a foodstuff containing geographical references, which is not registered as a protected designation of origin or a protected geographical indication, may legitimately be used, on condition that the labelling of the product so named does not mislead the average, reasonably well informed, observant and circumspect consumer. For the purpose of assessing whether that is the case, national courts may have regard to the length of time during which the name has been used. By contrast, any good faith on the part of the manufacturer or retailer is irrelevant in that regard. |
| --- | --- |

2.

Articles 3(1) and 13(3) of Regulation No 2081/92, as amended by Regulation No 2796/2000, read with Article 2 of Directive 2000/13/EC of the European Parliament and of the Council of 20 March 2000 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs, must be interpreted as meaning that the designation of a foodstuff containing geographical references, which is not registered as a protected designation of origin or a protected geographical indication, may legitimately be used, on condition that the labelling of the product so named does not mislead the average, reasonably well informed, observant and circumspect consumer. For the purpose of assessing whether that is the case, national courts may have regard to the length of time during which the name has been used. By contrast, any good faith on the part of the manufacturer or retailer is irrelevant in that regard.

---

(1)  OJ C 51, 23.2.2008.

---

| 7.11.2009 | EN | Official Journal of the European Union | C 267/12 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/12

---

Judgment of the Court (Fourth Chamber) of 10 September 2009 — Commission of the European Communities v Portuguese Republic

(Case C-457/07) (1)

(Failure of a Member State to fulfil obligations - Articles 28 EC and 30 EC - Construction products - National approval procedure - Failure to take account of approval certificates drawn up in other Member States - Judgment of the Court establishing the failure of a Member State to fulfil its obligations - Non-implementation - Article 228 EC - Subject-matter of the dispute - Determination during the pre-litigation procedure - Subsequent extension - Not permissible)

2009/C 267/20

Language of the case: Portuguese

Parties

Applicant: Commission of the European Communities (represented by: S. Pardo Quintillán and P. Andrade, acting as Agents)

Defendant: Portuguese Republic (represented by: L. Inês Fernandes, acting as Agent, N. Ruiz and C. Farinhas, advogados)

Re:

Failure of a Member State to fulfil obligations — Article 228 EC — Failure to comply with the judgment of the Court of Justice of 10 November 2005 in Case C-432/02 — Application for a penalty payment to be imposed

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders the Commission of the European Communities to pay the costs. |
| --- | --- |

2.

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

---

(1)  OJ C 297, 8.12.2007.

---

| 7.11.2009 | EN | Official Journal of the European Union | C 267/12 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/12

---

Judgment of the Court (Grand Chamber) of 8 September 2009 (reference for a preliminary ruling from the Handelsgericht Wien (Austria)) — Budějovický Budvar National Corporation v Rudolf Ammersin GmbH

(Case C-478/07) (1)

(Bilateral agreements between Member States - Protection in a Member State of a geographical indication of provenance of another Member State - Designation ‘Bud’ - Use of the mark ‘American Bud’ - Articles 28 EC and 30 EC - Regulation (EC) No 510/2006 - Community system of protection of geographical indications and of designations of origin - Accession of the Czech Republic - Transitional measures - Regulation (EC) No 918/2004 - Scope of the Community system - Exhaustive nature)

2009/C 267/21

Language of the case: German

Referring court

Handelsgericht Wien

Parties to the main proceedings

Applicant: Budějovický Budvar National Corporation

Defendant: Rudolf Ammersin GmbH

Re:

Reference for a preliminary ruling — Handelsgericht Wien — Interpretation of Articles 28 EC and 30 EC, Commission Regulation (EC) No 918/2004 of 29 April 2004 introducing transitional arrangements for the protection of geographical indications and designations of origin for agricultural products and foodstuffs in connection with the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia (OJ 2004 L 163, p. 88), and Council Regulation (EC) No 510/2006 of 20 March 2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs (OJ 2006 L 93, p. 12) — Designation not the name of a region or place in the State of origin, protected in that Member State as a qualified geographical indication and also protected as a trade mark — Conditions defined by the Court of Justice in its judgment of 18 November 2003 in Case C-216/01 Budějovický Budvar under which the absolute protection of such a designation as a geographical indication may be regarded as compatible with Article 28 EC — Effect of the non-registration of such a designation at Community level on the maintenance of its pre-existing national protection and its protection guaranteed by a bilateral agreement in another Member State

Operative part of the judgment

| 1. | It follows from paragraph 101 of the judgment of 18 November 2003 in Case C-216/01 Budějovický Budvar that:






  — | in order to determine whether a designation can be considered to constitute a simple and indirect indication of geographical provenance, protection of which under the bilateral instruments at issue is capable of being justified on the basis of the criteria laid down in Article 30 EC, the national court must ascertain whether, according to factual circumstances and perceptions prevailing in the Czech Republic, that designation, even if it is not in itself a geographical name, is at least capable of informing the consumer that the product bearing that indication comes from a particular place or region of that Member State; |
| --- | --- | --- |

1.

It follows from paragraph 101 of the judgment of 18 November 2003 in Case C-216/01 Budějovický Budvar that:

—

in order to determine whether a designation can be considered to constitute a simple and indirect indication of geographical provenance, protection of which under the bilateral instruments at issue is capable of being justified on the basis of the criteria laid down in Article 30 EC, the national court must ascertain whether, according to factual circumstances and perceptions prevailing in the Czech Republic, that designation, even if it is not in itself a geographical name, is at least capable of informing the consumer that the product bearing that indication comes from a particular place or region of that Member State;

| — | the national court must, in addition, ascertain, once again in the light of factual circumstances and perceptions prevailing in the Czech Republic, whether, as stated in paragraph 99 of that judgment, the designation at issue in the main proceedings has not, either at the time of the entry into force of the bilateral instruments at issue in the main proceedings or subsequently, become generic in that Member State, the Court of Justice of the European Communities having already held, in paragraphs 99 and 100 of that judgment, that the aim of the system of protection introduced by those instruments falls within the sphere of the protection of industrial and commercial property within the meaning of Article 30 EC; |
| --- | --- |

—

the national court must, in addition, ascertain, once again in the light of factual circumstances and perceptions prevailing in the Czech Republic, whether, as stated in paragraph 99 of that judgment, the designation at issue in the main proceedings has not, either at the time of the entry into force of the bilateral instruments at issue in the main proceedings or subsequently, become generic in that Member State, the Court of Justice of the European Communities having already held, in paragraphs 99 and 100 of that judgment, that the aim of the system of protection introduced by those instruments falls within the sphere of the protection of industrial and commercial property within the meaning of Article 30 EC;

| — | in the absence of any Community provision in that regard, it is for the national court to decide, in accordance with its own national law, whether a consumer survey should be commissioned for the purpose of clarifying the factual circumstances and perceptions prevailing in the Czech Republic in order to ascertain whether the designation ‘Bud’ at issue in the main proceedings can be classified as a simple and indirect indication of geographical provenance and has not become generic in that Member State. It is also in the light of that national law that the national court, if it finds it necessary to commission a consumer survey, must determine, for the purposes of making the necessary assessments, the percentage of consumers that would be sufficiently significant; and |
| --- | --- |

—

in the absence of any Community provision in that regard, it is for the national court to decide, in accordance with its own national law, whether a consumer survey should be commissioned for the purpose of clarifying the factual circumstances and perceptions prevailing in the Czech Republic in order to ascertain whether the designation ‘Bud’ at issue in the main proceedings can be classified as a simple and indirect indication of geographical provenance and has not become generic in that Member State. It is also in the light of that national law that the national court, if it finds it necessary to commission a consumer survey, must determine, for the purposes of making the necessary assessments, the percentage of consumers that would be sufficiently significant; and

| — | Article 30 EC does not lay down specific requirements as to the quality and the duration of the use made of a designation in the Member State of origin for its protection to be justified in the light of that article. Whether such requirements apply in the context of the dispute in the main proceedings must be determined by the national court in the light of the applicable national law, in particular the system of protection laid down by the bilateral instruments at issue in the main proceedings. |
| --- | --- |

—

Article 30 EC does not lay down specific requirements as to the quality and the duration of the use made of a designation in the Member State of origin for its protection to be justified in the light of that article. Whether such requirements apply in the context of the dispute in the main proceedings must be determined by the national court in the light of the applicable national law, in particular the system of protection laid down by the bilateral instruments at issue in the main proceedings.

| 2. | The Community system of protection laid down by Council Regulation (EC) No 510/2006 of 20 March 2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs is exhaustive in nature, with the result that that regulation precludes the application of a system of protection laid down by agreements between two Member States, such as the bilateral instruments at issue in the main proceedings, which confers on a designation, which is recognised under the law of a Member State as constituting a designation of origin, protection in another Member State where that protection is actually claimed, despite the fact that no application for registration of that designation of origin has been made in accordance with that regulation. |
| --- | --- |

2.

The Community system of protection laid down by Council Regulation (EC) No 510/2006 of 20 March 2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs is exhaustive in nature, with the result that that regulation precludes the application of a system of protection laid down by agreements between two Member States, such as the bilateral instruments at issue in the main proceedings, which confers on a designation, which is recognised under the law of a Member State as constituting a designation of origin, protection in another Member State where that protection is actually claimed, despite the fact that no application for registration of that designation of origin has been made in accordance with that regulation.

---

(1)  OJ C 22, 26.1.2008.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/13 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/13

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Judgment of the Court (Third Chamber) of 17 September 2009 — Commission of the European Communities v Koninklijke FrieslandCampina NV, formerly Koninklijke Friesland Foods NV, formerly Friesland Coberco Dairy Foods Holding NV

(Case C-519/07 P) (1)

(Appeal - State aid - State aid scheme implemented by the Netherlands for international financing activities - Decision No 2003/515/EC - Incompatibility with the common market - Transitional provision - Admissibility - Standing to bring proceedings - Interest in bringing proceedings - Principle of protection of legitimate expectations - Principle of equal treatment)

2009/C 267/22

Language of the case: Dutch

Parties

Appellant: Commission of the European Communities (represented by: H. van Vliet and S. Noë, acting as Agents)

Other party to the proceedings: Koninklijke FrieslandCampina NV, formerly Koninklijke Friesland Foods NV, formerly Friesland Coberco Dairy Foods Holding NV (represented by: E. Pijnacker Hordijk and W. Geursen, advocaten)

Re:

Appeal against the judgment of the Court of First Instance (Second Chamber) of 12 September 2007 in Case T-348/03 Koninklijke Friesland Foods NV (formerly Friesland Coberco Dairy Foods Holding NV) v Commission annulling Article 2 of Commission Decision 2003/515/EC of 17 February 2003 on the State aid implemented by the Netherlands for international financing activities (OJ 2003 L 180, p. 52) in so far as it excludes from the transitional scheme those operators who, as at 11 July 2001, had already lodged a request with the Netherlands tax authority for application of the aid scheme in question but whose request had not yet been determined by that date.

Operative part of the judgment

The Court:

| 1. | Sets aside the judgment of the Court of First Instance of the European Communities of 12 September 2007 in Case T-348/03 Koninklijke Friesland Foods v Commission; |
| --- | --- |

1.

Sets aside the judgment of the Court of First Instance of the European Communities of 12 September 2007 in Case T-348/03 Koninklijke Friesland Foods v Commission;

| 2. | Refers the case back to the Court of First Instance of the European Communities; |
| --- | --- |

2.

Refers the case back to the Court of First Instance of the European Communities;

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

3.

Reserves the costs.

---

(1)  OJ C 37, 9.2.2008.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/14 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/14

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Judgment of the Court (First Chamber) of 17 September 2009 — Commission of the European Communities v MTU Friedrichshafen GmbH

(Case C-520/07 P) (1)

(Appeals - Restructuring aid - Decision ordering the recovery of aid incompatible with the common market - Article 13(1) of Regulation (EC) No 659/1999 - Joint and several liability)

2009/C 267/23

Language of the case: German

Parties

Appellant: Commission of the European Communities (represented by: K. Gross and B. Martenczuk, acting as Agents)

Other party to the proceedings: MTU Friedrichshafen GmbH (represented by: Th. Lübbig and M. le Bell, Rechtsanwälte)

Re:

Appeal brought against the judgment of the Court of First Instance (Fourth Chamber, Extended Composition) delivered on 12 September 2007 in Case T-196/02 MTU Friedrichshafen v Commission, in which the Court of First Instance annulled Article 3(2) of Commission Decision 2002/898/EC of 9 April 2002 on the State aid implemented by Germany for SKL Motoren- und Systembautechnik GmbH, in so far as it orders MTU Friedrichshafen GmbH to repay jointly and severally a sum of EUR 2,71 million — Limits and conditions on the application of Article 13(1) of Council Regulation (EC) No 659/1999 of 22 March 1999, allowing the Commission to adopt a final decision finding aid to be incompatible with the common market on the basis of the information available if a Member State fails to comply with an information injunction

Operative part of the judgment

The Court:

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

1.

Dismisses the appeal;

| 2. | Orders the Commission of the European Communities to pay the costs. |
| --- | --- |

2.

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

---

(1)  OJ C 22, 26.1.2008.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/14 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/14

---

Judgment of the Court (Third Chamber) of 10 September 2009 (reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia (Italy)) — Sea s.r.l. v Comune di Ponte Nossa

(Case C-573/07) (1)

(Public procurement - Award procedures - Contract relating to a service for the collection, transport and disposal of urban waste - Awarded without any call for tenders - Awarded to a company limited by shares whose capital is wholly owned by public bodies but under whose statutes a private capital holding is possible)

2009/C 267/24

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per la Lombardia

Parties to the main proceedings

Applicant: Sea s.r.l.

Defendant: Comune di Ponte Nossa

Third party: Servizi Tecnologici Comuni — Se.T.Co. SpA

Re:

Reference for a preliminary ruling — Tribunale Amministrativo Regionale per la Lombardia (Italy) — Interpretation of Articles 12 EC, 43 EC, 49 EC and 86 EC — Procedures for the award of public contracts — Public services for the collection, transport and disposal of urban waste — Direct award of a contract to a limited company with share capital belonging entirely to the public sector but where the statutes of that company allow for the possibility of private investment

Operative part of the judgment

It is not contrary to Articles 43 EC and 49 EC, the principles of equal treatment and of non-discrimination on grounds of nationality or the obligation of transparency arising therefrom for a public service contract to be awarded directly to a company limited by shares with wholly public capital so long as the public authority which is the contracting authority exercises over that company control similar to that which it exercises over its own departments and so long as the company carries out the essential part of its activities with the authority or authorities controlling it.

Without prejudice to the determination by the court making the reference of the effectiveness of the relevant provisions of the statutes, the control exercised over that company by the shareholder authorities may be regarded as similar to that which they exercise over their own departments in circumstances such as those of the case in the main proceedings, when:

| — | that company’s activity is limited to the territory of those authorities and is carried on essentially for their benefit, and |
| --- | --- |

—

that company’s activity is limited to the territory of those authorities and is carried on essentially for their benefit, and

| — | through the bodies established under the company’s statutes made up of representatives of those authorities, the latter exercise conclusive influence on both the strategic objectives of the company and on its significant decisions. |
| --- | --- |

—

through the bodies established under the company’s statutes made up of representatives of those authorities, the latter exercise conclusive influence on both the strategic objectives of the company and on its significant decisions.

---

(1)  OJ C 64, 8.3.2008.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/15 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/15

---

Judgment of the Court (First Chamber) of 3 September 2009 (Reference for a preliminary ruling from the VAT and Duties Tribunal, London — United Kingdom) — RCI Europe v Commissioners for Her Majesty’s Revenue and Customs

(Case C-37/08) (1)

(Sixth VAT Directive - Fiscal connection - Supply of services connected with immovable property - Services consisting in facilitating the exchange by owners of rights to occupy holiday homes)

2009/C 267/25

Language of the case: English

Referring court

VAT and Duties Tribunal, London

Parties to the main proceedings

Applicant: RCI Europe

Defendant: Commissioners for Her Majesty’s Revenue and Customs

Re:

REFERENCE for a preliminary ruling — VAT and Duties Tribunal, London — Interpretation of Articles 9(2)(a) and 26 of Directive 77/388/EEC: Sixth Council Directive of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — Determination of the place where supplies are deemed to be provided — Supplies of services consisting in facilitating the exchange by the holders of rights to occupy a property intended for use by holidaymakers who are members of an association established by the taxable person for that purpose, for the rights of other owners.

Operative part of the judgment

Article 9(2)(a) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment must be interpreted as meaning that the place where services are supplied by an association whose business consists in organising the exchange between its members of their timeshare usage rights in holiday accommodation, in return for which that association receives from its members enrolment, annual subscription and exchange fees, is the place where the property in respect of which the member concerned holds timeshare usage rights is situated.

---

(1)  OJ C 92, 12.4.2008.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/15 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/15

---

Judgment of the Court (Fourth Chamber) of 10 September 2009 (reference for a preliminary ruling from the Korkein oikeus (Finland)) — Akavan Erityisalojen Keskusliitto AEK ry and Others v Fujitsu Siemens Computers Oy

(Case C-44/08) (1)

(Preliminary ruling procedure - Directive 98/59/EC - Approximation of the laws of the Member States relating to collective redundancies - Article 2 - Protection of workers - Informing and consulting with workers - Group of undertakings - Parent company - Subsidiary)

2009/C 267/26

Language of the case: Finnish

Referring court

Korkein oikeus

Parties to the main proceedings

Applicant: Akavan Erityisalojen Keskusliitto AEK ry and Others

Defendant: Fujitsu Siemens Computers Oy

Re:

Reference for a preliminary ruling — Korkein oikeus — Interpretation of Articles 2, 3 and 4 of Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies (OJ 1998 L 225, p. 16) — Determination of the time when an obligation arises on the part of a subsidiary to begin consultations with the representatives of its staff — Plans or decisions adopted within a group of undertakings concerning a change in the activities of one of the subsidiaries of that group

Operative part of the judgment

| 1. | Article 2(1) of Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies must be interpreted to mean that the adoption, within a group of undertakings, of strategic decisions or of changes in activities which compel the employer to contemplate or to plan for collective redundancies gives rise to an obligation on that employer to hold consultations with workers’ representatives. |
| --- | --- |

1.

Article 2(1) of Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies must be interpreted to mean that the adoption, within a group of undertakings, of strategic decisions or of changes in activities which compel the employer to contemplate or to plan for collective redundancies gives rise to an obligation on that employer to hold consultations with workers’ representatives.

| 2. | Whether the obligation has arisen for the employer to start consultations on the collective redundancies contemplated does not depend on whether the employer is already able to supply to the workers’ representatives all the information required in Article 2(3)(b) of Directive 98/59. |
| --- | --- |

2.

Whether the obligation has arisen for the employer to start consultations on the collective redundancies contemplated does not depend on whether the employer is already able to supply to the workers’ representatives all the information required in Article 2(3)(b) of Directive 98/59.

| 3. | Article 2(1) of Directive 98/59, read in conjunction with the first subparagraph of Article 2(4) of that directive, must be interpreted to mean that, in the case of a group of undertakings consisting of a parent company and one or more subsidiaries, the obligation to hold consultations with the workers’ representatives falls on the subsidiary which has the status of employer only once that subsidiary, within which collective redundancies may be made, has been identified. |
| --- | --- |

3.

Article 2(1) of Directive 98/59, read in conjunction with the first subparagraph of Article 2(4) of that directive, must be interpreted to mean that, in the case of a group of undertakings consisting of a parent company and one or more subsidiaries, the obligation to hold consultations with the workers’ representatives falls on the subsidiary which has the status of employer only once that subsidiary, within which collective redundancies may be made, has been identified.

| 4. | Article 2(1) of Directive 98/59, read in conjunction with Article 2(4) of that directive, must be interpreted to mean that, in the case of a group of undertakings, the consultation procedure must be concluded by the subsidiary affected by the collective redundancies before that subsidiary, on the direct instructions of its parent company or otherwise, terminates the contracts of employees who are to be affected by those redundancies. |
| --- | --- |

4.

Article 2(1) of Directive 98/59, read in conjunction with Article 2(4) of that directive, must be interpreted to mean that, in the case of a group of undertakings, the consultation procedure must be concluded by the subsidiary affected by the collective redundancies before that subsidiary, on the direct instructions of its parent company or otherwise, terminates the contracts of employees who are to be affected by those redundancies.

---

(1)  OJ C 107, 26.4.2008.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/16 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/16

---

Judgment of the Court (Second Chamber) of 10 September 2009 — Commission of the European Communities v Republic of Malta

(Case C-76/08) (1)

(Failure of a Member State to fulfil obligations - Admissibility - Conservation of wild birds - Directive 79/409/EEC - Spring hunting - Prohibition - Derogation from the system of protection - Condition that there be no ‘other satisfactory solution’ - Legitimate expectations)

2009/C 267/27

Language of the case: English

Parties

Applicant: Commission of the European Communities (represented by: D. Recchia, D. Lawunmi and P. Oliver, acting as Agents)

Defendant: Republic of Malta (represented by: S. Camilleri, D. Mangion, acting as Agents and J. Bouckaert, advocaat)

Re:

Failure of a Member State to fulfil obligations — Breach of Article 9 of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1) — Failure to comply with the criteria laid down by the Directive for the grant of a derogation authorising hunting in spring of quail and turtle doves

Operative part of the judgment

The Court:

| 1. | Declares that, by authorising the opening of a hunting season for quails (Coturnix coturnix) and turtle doves (Streptopelia turtur) during the spring migration period in the years 2004 to 2007, without complying with the conditions laid down in Article 9(1) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, as amended, in respect of 2004 to 2006, by Council Regulation (EC) No 807/2003 of 14 April 2003, and, in respect of 2007, by Council Directive 2006/105/EC of 20 November 2006, the Republic of Malta has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that, by authorising the opening of a hunting season for quails (Coturnix coturnix) and turtle doves (Streptopelia turtur) during the spring migration period in the years 2004 to 2007, without complying with the conditions laid down in Article 9(1) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, as amended, in respect of 2004 to 2006, by Council Regulation (EC) No 807/2003 of 14 April 2003, and, in respect of 2007, by Council Directive 2006/105/EC of 20 November 2006, the Republic of Malta has failed to fulfil its obligations under that directive;

| 2. | Orders the Republic of Malta to pay the costs. |
| --- | --- |

2.

Orders the Republic of Malta to pay the costs.

---

(1)  OJ C 92, 12.4.2008.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/17 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/17

---

Judgment of the Court (Third Chamber) of 10 September 2009 — Akzo Nobel NV, Akzo Nobel Nederland BV, Akzo Nobel Chemicals International BV, Akzo Nobel Chemicals BV, Akzo Nobel Functional Chemicals BV v Commission of the European Communities

(Case C-97/08 P) (1)

(Appeal - Competition - Agreements, decisions and concerted practices - Article 81(1) EC - Article 53(1) of the EEA Agreement - Article 23(2) of Regulation (EC) No 1/2003 - Groups of undertakings - Imputability of infringements - Responsibility of a parent company for the infringement of competition rules by its subsidiaries - Decisive influence exercised by the parent company - Rebuttable presumption where the parent company has a 100 % shareholding)

2009/C 267/28

Language of the case: English

Parties

Appellants: Akzo Nobel NV, Akzo Nobel Nederland BV, Akzo Nobel Chemicals International BV, Akzo Nobel Chemicals BV and Akzo Nobel Functional Chemicals BV (represented by: C. Swaak, M. van der Woude and M. Mollica, avocats)

Other party to the proceedings: Commission of the European Communities (represented by: X. Lewis and F. Castillo de la Torre, Agents)

Re:

Appeal against the judgment of the Court of First Instance (Second Chamber) of 12 December 2007 in Case T-112/05 Akzo Nobel NV and Others v Commission of the European Communities, which rejected an application for annulment of Commission Decision 2005/566/EC of 9 December 2004 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/E-2/37.533 — Choline chloride) (OJ 2005 L 190, p. 22) concerning a complex of agreements and concerted practices consisting of price fixing, market sharing and agreed actions against competitors in the European market for choline chloride — Concept of undertaking within the meaning of Article 81 EC and Article 23(2) of Regulation No 1/2003.

Operative part of the judgment

The Court:

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

1.

Dismisses the appeal;

| 2. | Orders Akzo Nobel NV, Akzo Nobel Nederland BV, Akzo Nobel Chemicals International BV, Akzo Nobel Chemicals BV and Akzo Nobel Functional Chemicals BV to pay the costs. |
| --- | --- |

2.

Orders Akzo Nobel NV, Akzo Nobel Nederland BV, Akzo Nobel Chemicals International BV, Akzo Nobel Chemicals BV and Akzo Nobel Functional Chemicals BV to pay the costs.

---

(1)  OJ C 128, 24.5.2008.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/17 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/17

---

Judgment of the Court (Third Chamber) of 10 September 2009 — Commission of the European Communities v Kingdom of Belgium

(Case C-100/08) (1)

(Failure of a Member State to fulfil its obligations - Articles 28 EC and 30 EC - Protection of species of wild fauna and flora - Legislation on the keeping and marketing of birds born and bred in captivity legally placed on the market in other Member States)

2009/C 267/29

Language of the case: Dutch

Parties

Applicant: Commission of the European Communities (represented by: S. Pardo Quintillán and R. Troosters, acting as Agents)

Defendant: Kingdom of Belgium (represented by: T. Materne, acting as Agent, G. Van Calster, avocat)

Re:

Failure of a Member State to fulfil its obligations — Infringement of Article 28 EC — Protection of species of wild fauna and flora — Prohibition to keep certain birds legally brought to the market in other Member States

Operative part of the judgment

The Court:

| 1. | Declares that the Kingdom of Belgium has failed to fulfil its obligations under Article 28 EC by






  — | making the import, keeping and sale of specimens of birds born and bred in captivity that were brought to the market legally in other Member States subject to restrictive conditions that require the market participants concerned to alter the marking of the birds so as to comply with the special Belgian legislative requirements, and failing to recognise the marking accepted in other Member States or certificates issued in accordance with Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein; and |
| --- | --- | --- |

1.

Declares that the Kingdom of Belgium has failed to fulfil its obligations under Article 28 EC by

—

making the import, keeping and sale of specimens of birds born and bred in captivity that were brought to the market legally in other Member States subject to restrictive conditions that require the market participants concerned to alter the marking of the birds so as to comply with the special Belgian legislative requirements, and failing to recognise the marking accepted in other Member States or certificates issued in accordance with Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein; and

| — | denying traders the possibility to receive exemptions from the prohibition to keep indigenous European birds which were brought to the market legally in other Member States. |
| --- | --- |

—

denying traders the possibility to receive exemptions from the prohibition to keep indigenous European birds which were brought to the market legally in other Member States.

| 2. | orders the Kingdom of Belgium to pay the costs. |
| --- | --- |

2.

orders the Kingdom of Belgium to pay the costs.

---

(1)  OJ C 128, 24.5.2008.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/18 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/18

---

Judgment of the Court (First Chamber) of 16 July 2009 (reference for a preliminary ruling from the Tribunal de première instance de Liège (Belgium)) — Jacques Damseaux v État belge

(Case C-128/08) (1)

(Free movement of capital - Taxation of investment income - Double taxation convention - Obligation of the Member States under Article 293 EC)

2009/C 267/30

Language of the case: French

Referring court

Tribunal de première instance de Liège

Parties to the main proceedings

Applicant: Jacques Damseaux

Defendant: État belge

Re:

Reference for a preliminary ruling — Tribunal de première instance de Liège — Interpretation of Articles 56, 58 and 293 EC — Heavier taxation of investment income from abroad than of investment income paid by a company established in the Member State of residence — Obstacle to free movement of capital — Scope of conventions preventing double taxation — Obligation of Member States under Article 293 EC

Operative part of the judgment

In so far as Community law, in its current state and in a situation such as that at issue in the main proceedings, does not lay down any general criteria for the attribution of areas of competence between the Member States in relation to the elimination of double taxation within the European Community, Article 56 EC does not preclude a bilateral tax convention, such as that at issue in the main proceedings, under which dividends distributed by a company established in one Member State to a shareholder residing in another Member State are liable to be taxed in both Member States, and which does not provide that the Member State in which the shareholder resides is unconditionally obliged to prevent the resulting juridical double taxation.

---

(1)  OJ C 142, 7.6.2008.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/18 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/18

---

Judgment of the Court (First Chamber) of 17 September 2009 (reference for a preliminary ruling from the Bundesfinanzhof (Germany)) — Glaxo Wellcome GmbH & Co. v Finanzamt München II

(Case C-182/08) (1)

(Freedom of establishment and free movement of capital - Corporation tax - Acquisition of shares in a capital company - Conditions for taking into account, when determining the acquirer’s tax base, the reduction in value of the shares resulting from the dividend distribution)

2009/C 267/31

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: Glaxo Wellcome GmbH & Co.

Defendant: Finanzamt München II

Re:

Reference for a preliminary ruling — Bundesfinanzhof — Interpretation of Articles 43 and 56 EC — Acquisition by a taxpayer who is entitled to a corporation tax credit of shares in a capital company which is fully taxable — National legislation providing for the taking into account, when determining the acquirer’s tax base, of depreciation of the shares by reason of the payment of dividends where the shares were acquired from a shareholder who is entitled to a corporation tax credit, but which excludes that reduction of the tax base where the shares were acquired from a shareholder who is not entitled to a tax credit of that kind

Operative part of the judgment

Article 73b of the EC Treaty (now Article 56 EC) must be interpreted as not precluding legislation of a Member State which excludes the reduction in value of shares as a result of the distribution of dividends from the basis of assessment for a resident taxpayer, where that taxpayer has acquired shares in a resident capital company from a non-resident shareholder, whereas, had the shares been acquired from a resident shareholder, such a reduction in value would have reduced the acquirer’s basis of assessment.

This applies in cases where such legislation does not exceed what is necessary to maintain a balanced allocation of the power to impose taxes between the Member States and to prevent wholly artificial arrangements which do not reflect economic reality and whose only purpose is unduly to obtain a tax advantage. It is for the national court to examine whether the legislation at issue in the main proceedings is limited to what is necessary in order to attain those objectives.

---

(1)  OJ C 197, 2.8.2008.

---

| 7.11.2009 | EN | Official Journal of the European Union | C 267/19 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/19

---

Judgment of the Court (Second Chamber) of 10 September 2009 (reference for a preliminary ruling from the Oberster Gerichtshof — Austria) — Dr. Erhard Eschig v UNIQA Sachversicherung AG

(Case C-199/08) (1)

(Legal expenses insurance - Directive 87/344/EEC - Article 4(1) - Right of insured persons to choose their own lawyer - Contractual limitation - Multiple insured persons suffering loss as a result of the same event - Selection of the legal representative by the insurer)

2009/C 267/32

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Applicant: Dr. Erhard Eschig

Defendant: UNIQA Sachversicherung AG

Re:

Reference for a preliminary ruling — Oberster Gerichtshof (Austria) — Interpretation of Article 4(1), of Council Directive 87/344/EEC on the coordination of the laws, regulations and administrative provisions relating to legal expenses insurance (OJ 1987 L 185, p. 77) — Clause contained in the standard terms and conditions of insurance of a legal expenses insurer enabling it, in the case of an accident in which a large number of insured persons suffer losses as a result of the same event, to choose a legal representative, and thereby limiting the right of the individual insured person to choose his own lawyer (‘mass torts clause’).

Operative part of the judgment

Article 4(1)(a) of Council Directive 87/344/EEC of 22 June 1987 on the coordination of laws, regulations and administrative provisions relating to legal expenses insurance must be interpreted as not permitting the legal expenses insurer to reserve the right, where a large number of insured persons suffer loss as a result of the same event, itself to select the legal representative of all the insured persons concerned.

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(1)  OJ C 197, 02.08.2008.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/19 |
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7.11.2009

EN

Official Journal of the European Union

C 267/19

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Judgment of the Court (Third Chamber) of 10 September 2009 (reference for a preliminary ruling from the Hessisches Finanzgericht, Kassel (Germany)) — Plantanol GmbH & Co. KG v Hauptzollamt Darmstadt

(Case C-201/08) (1)

(Directive 2003/30/EC - Promotion of the use of biofuels or other renewable fuels for transport - Directive 2003/96/EC - Community framework for the taxation of energy products and electricity - Blend of vegetable oil, additives and fuel - Biofuels - National rules - Tax exemption - Replacement of the exemption by an obligation to maintain a minimum biofuel content in fuels - Conformity with Directives 2003/30/EC and 2003/96/EC - General principles of legal certainty and the protection of legitimate expectations)

2009/C 267/33

Language of the case: German

Referring court

Hessisches Finanzgericht, Kassel

Parties to the main proceedings

Applicant: Plantanol GmbH & Co. KG

Defendant: Hauptzollamt Darmstadt

Re:

Reference for a preliminary ruling — Hessisches Finanzgericht (Germany) — Interpretation of Article 3 of Directive 2003/30/EC of the European Parliament and of the Council of 8 May 2003 on the promotion of the use of biofuels or other renewable fuels for transport (OJ 2003 L 123, p. 42) and the principles of legal certainty and legitimate expectation — National legislation replacing, before the time-limit laid down by the previous legislation, rules providing for tax exemptions for biofuels forming part of a fuel blend with an obligation to add biofuels to conventional fuels, with the effect of placing producers who had taken advantage of those exemptions at an economic disadvantage.

Operative part of the judgment

| 1. | Article 3 of Directive 2003/30/EC of the European Parliament and of the Council of 8 May 2003 on the promotion of the use of biofuels or other renewable fuels for transport must be interpreted as meaning that it does not preclude national rules such as those at issue in the main proceedings which exclude, from the tax exemption scheme provided for in those rules for biofuels, a product, such as the one at issue in the main proceedings, which is composed of a blend of vegetable oil, fossil gas oil and specific additives. |
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1.

Article 3 of Directive 2003/30/EC of the European Parliament and of the Council of 8 May 2003 on the promotion of the use of biofuels or other renewable fuels for transport must be interpreted as meaning that it does not preclude national rules such as those at issue in the main proceedings which exclude, from the tax exemption scheme provided for in those rules for biofuels, a product, such as the one at issue in the main proceedings, which is composed of a blend of vegetable oil, fossil gas oil and specific additives.

| 2. | The general principles of legal certainty and the protection of legitimate expectations do not in principle preclude a Member State, with regard to a product such as the one at issue in the main proceedings, from withdrawing, before the expiry date initially laid down in the national rules, a tax exemption scheme which applied to such products. In any event, such a withdrawal does not require the presence of exceptional circumstances. However, it is for the national court to consider, in the context of an overall assessment in the specific case, whether those principles have been respected in the main proceedings by taking account of all relevant circumstances relating to the case. |
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2.

The general principles of legal certainty and the protection of legitimate expectations do not in principle preclude a Member State, with regard to a product such as the one at issue in the main proceedings, from withdrawing, before the expiry date initially laid down in the national rules, a tax exemption scheme which applied to such products. In any event, such a withdrawal does not require the presence of exceptional circumstances. However, it is for the national court to consider, in the context of an overall assessment in the specific case, whether those principles have been respected in the main proceedings by taking account of all relevant circumstances relating to the case.

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(1)  OJ C 183, 19.7.2008.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/20 |
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7.11.2009

EN

Official Journal of the European Union

C 267/20

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Judgment of the Court (Third Chamber) of 10 September 2009 (Reference for a preliminary ruling from the Thüringer Oberlandesgericht (Germany)) — Wasser- und Abwasserzweckverband Gotha und Landkreisgemeinden (WAZV Gotha) v Eurawasser Aufbereitungs- und Entsorgungsgesellschaft mbH

(Case C-206/08) (1)

(Procurement procedures of entities operating in the water, energy, transport and postal services sectors - Public service for the distribution of drinking water and the treatment of sewage - Service concession - Definition - Transfer to the supplier of the risk connected with operating the service in question)

2009/C 267/34

Language of the case: German

Referring court

Thüringer Oberlandesgericht

Parties to the main proceedings

Applicant: Wasser- und Abwasserzweckverband Gotha und Landkreisgemeinden (WAZV Gotha)

Defendant: Eurawasser Aufbereitungs- und Entsorgungsgesellschaft mbH

Intervening parties: Stadtwirtschaft Gotha GmbH, Wasserverband Lausitz Betriebsführungs GmbH (WAL)

Re:

Reference for a preliminary ruling — Thüringer Oberlandesgericht — Interpretation of Article 1(2)(a) and (d) and 1(3)(b) of Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (OJ 2004 L 134, p. 1) — Call for bids for the provision, in the form of a public service concession, of a service to the public in respect of the production, transport and distribution of drinking water and in respect of the disposal and treatment of sewage — Criteria for distinguishing a public service contract from a public service concession

Operative part of the judgment

In relation to a contract for the supply of services, the fact that the supplier does not receive consideration directly from the contracting authority, but is entitled to collect payment under private law from third parties, is sufficient for the contract in question to be categorised as a ‘service concession’ within the meaning of Article 1(3)(b) of Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors, where the supplier assumes all, or at least a significant share, of the operating risk faced by the contracting authority, even if that risk is, from the outset, very limited on account of the detailed rules of public law governing that service.

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(1)  OJ C 247, 27.9.2008.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/20 |
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7.11.2009

EN

Official Journal of the European Union

C 267/20

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Judgment of the Court (First Chamber) of 10 September 2009 (reference for a preliminary ruling from the Juzgado de lo Social de Madrid (Spain)) — Francisco Vicente Pereda v Madrid Movilidad SA

(Case C-277/08) (1)

(Directive 2003/88/EC - Organisation of working time - Entitlement to paid annual leave - Sick leave - Annual leave coinciding with sick leave - Entitlement to take annual leave at another time)

2009/C 267/35

Language of the case: Spanish

Referring court

Juzgado de lo Social de Madrid

Parties to the main proceedings

Applicant: Francisco Vicente Pereda

Defendant: Madrid Movilidad SA

Re:

Reference for a preliminary ruling — Juzgado de lo Social de Madrid — Interpretation of Article 7(1) of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (OJ 2003 L 299, p. 9) — Employee on sick leave during the period of annual leave allocated by the undertaking as a result of an accident at work which happened before that period of leave began — Right of the worker to take his annual leave during a different period

Operative part of the judgment

Article 7(1) of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time must be interpreted as precluding national provisions or collective agreements which provide that a worker who is on sick leave during a period of annual leave scheduled in the annual leave planning schedule of the undertaking which employs him does not have the right, after his recovery, to take his annual leave at a time other than that originally scheduled, if necessary outside the corresponding reference period.

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(1)  OJ C 223, 30.8.2008.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/21 |
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7.11.2009

EN

Official Journal of the European Union

C 267/21

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Judgment of the Court (Fifth Chamber) of 10 September 2009 — Commission of the European Communities v Hellenic Republic

(Case C-286/08) (1)

(Failure of a Member State to fulfil obligations - Environment - Directives 2006/12/EC and 91/689/EEC - Hazardous waste - Obligation to draw up and adopt a hazardous-waste management plan - Obligation to establish an integrated and adequate network of disposal installations for hazardous waste - Directive 1999/31/EC - Landfill of waste - Disposal of hazardous waste)

2009/C 267/36

Language of the case: Greek

Parties

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

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

Re:

Failure of a Member State to fulfil obligations — Breach of Articles 1(2) and 6 of Council Directive 91/689/EEC of 12 December 1991 on hazardous waste (OJ 1991 L 377, p. 20) and Articles 5(1) and (2), 7(1), 4 and 8 of Directive 2006/12/EC of the European Parliament and of the Council of 5 April 2006 on waste (OJ 2006 L 114, p. 9) (formerly Council Directive 75/442/EEC of 15 July 1975, as amended by Council Directive 91/156/EEC of 18 March 1991) — Breach of Articles 3(1), 6 to 9, 13 and 14 of Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste (OJ 1999 L 182, p. 1) — Failure to draw up a hazardous-waste management plan that accords with the requirements of the Community legislation and to establish an integrated and adequate network of disposal installations for hazardous waste — Failure to fulfil obligations so far as concerns the management and landfill of waste.

Operative part of the judgment

The Court:

| 1. | declares that, by failing to draw up and adopt within a reasonable period a hazardous-waste management plan that accords with the requirements of the relevant Community legislation, and by failing to establish an integrated and adequate network of disposal installations for hazardous waste characterised by the most appropriate methods in order to ensure a high level of protection for the environment and public health, and |
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1.

declares that, by failing to draw up and adopt within a reasonable period a hazardous-waste management plan that accords with the requirements of the relevant Community legislation, and by failing to establish an integrated and adequate network of disposal installations for hazardous waste characterised by the most appropriate methods in order to ensure a high level of protection for the environment and public health, and

| 2. | by failing to take all the necessary measures to ensure, as regards the management of hazardous waste, compliance with Articles 4 and 8 of Directive 2006/12/EC of the European Parliament and of the Council of 5 April 2006 on waste and Articles 3(1), 6 to 9, 13 and 14 of Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste,
  the Hellenic Republic has failed to fulfil its obligations under, first, Articles 1(2) and 6 of Council Directive 91/689/EEC of 12 December 1991 on hazardous waste, read in conjunction with Articles 5(1) and (2) and 7(1) of Directive 2006/12, second, Article 1(2) of Directive 91/689, read in conjunction with the provisions of Articles 4 and 8 of Directive 2006/12, and, third, Articles 3(1), 6 to 9, 13 and 14 of Directive 1999/31. |
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2.

by failing to take all the necessary measures to ensure, as regards the management of hazardous waste, compliance with Articles 4 and 8 of Directive 2006/12/EC of the European Parliament and of the Council of 5 April 2006 on waste and Articles 3(1), 6 to 9, 13 and 14 of Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste,

the Hellenic Republic has failed to fulfil its obligations under, first, Articles 1(2) and 6 of Council Directive 91/689/EEC of 12 December 1991 on hazardous waste, read in conjunction with Articles 5(1) and (2) and 7(1) of Directive 2006/12, second, Article 1(2) of Directive 91/689, read in conjunction with the provisions of Articles 4 and 8 of Directive 2006/12, and, third, Articles 3(1), 6 to 9, 13 and 14 of Directive 1999/31.

| 3. | orders the Hellenic Republic to pay the costs. |
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3.

orders the Hellenic Republic to pay the costs.

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(1)  OJ C 223, 30.08.2008.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/22 |
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7.11.2009

EN

Official Journal of the European Union

C 267/22

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Judgment of the Court (First Chamber) of 10 September 2009 (reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands)) — German Graphics Graphische Maschinen GmbH v Alice van der Schee, acting as liquidator of Holland Binding BV

(Case C-292/08) (1)

(Insolvency - Application of the law of the Member State of the opening of proceedings - Reservation of title - Situation of assets)

2009/C 267/37

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicant: German Graphics Graphische Maschinen GmbH

Defendant: Alice van der Schee, acting as liquidator of Holland Binding BV

Re:

Reference for a preliminary ruling — Hoge Raad der Nederlanden — Interpretation of Articles 4(2)(b), 7(1) and 25 of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings (OJ 2000 L 160, p. 1) and of Article 1(2)(b) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1) — Material scope of the regulations — Rights of the ‘State of the opening of proceedings’ — Reservation of title — Location of the goods — Exclusion from the scope of the Brussels I Regulation

Operative part of the judgment

| 1. | Article 25(2) of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings must be interpreted as meaning that the words ‘provided that that Convention is applicable’ imply that, before it can be concluded that the recognition and enforcement provisions of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters are applicable to judgments other than those referred to in Article 25(1) of Regulation No 1346/2000, it is necessary to determine whether such judgments fall outside the material scope of Regulation No 44/2001. |
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1.

Article 25(2) of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings must be interpreted as meaning that the words ‘provided that that Convention is applicable’ imply that, before it can be concluded that the recognition and enforcement provisions of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters are applicable to judgments other than those referred to in Article 25(1) of Regulation No 1346/2000, it is necessary to determine whether such judgments fall outside the material scope of Regulation No 44/2001.

| 2. | The exception provided for in Article 1(2)(b) of Regulation No 44/2001, read in conjunction with Article 7(1) of Regulation No 1346/2000, must be interpreted, account being taken of the provisions of Article 4(2)(b) of the latter regulation, as meaning that it does not apply to an action brought by a seller based on a reservation of title against a purchaser who is insolvent, where the asset covered by the reservation of title is situated in the Member State of the opening of those proceedings at the time of opening of those proceedings against that purchaser. |
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2.

The exception provided for in Article 1(2)(b) of Regulation No 44/2001, read in conjunction with Article 7(1) of Regulation No 1346/2000, must be interpreted, account being taken of the provisions of Article 4(2)(b) of the latter regulation, as meaning that it does not apply to an action brought by a seller based on a reservation of title against a purchaser who is insolvent, where the asset covered by the reservation of title is situated in the Member State of the opening of those proceedings at the time of opening of those proceedings against that purchaser.

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(1)  OJ C 272, 25.10.2008.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/22 |
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7.11.2009

EN

Official Journal of the European Union

C 267/22

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Judgment of the Court (Third Chamber) of 17 September 2009 (reference for a preliminary ruling from the Landesgericht Feldkirch (Austria)) — Vorarlberger Gebietskrankenkasse v WGV-Schwäbische Allgemeine Versicherungs AG

(Case C-347/08) (1)

(Regulation (EC) No 44/2001 - Articles 9(1)(b) and 11(2) - Jurisdiction in matters relating to insurance - Motor accident - Statutory assignment of the rights of an injured party in favour of a social security institution - Action for recovery against the insurer of a person allegedly liable - Objective of protecting the weaker party)

2009/C 267/38

Language of the case: German

Referring court

Landesgericht Feldkirch

Parties to the main proceedings

Applicant: Vorarlberger Gebietskrankenkasse

Defendant: WGV-Schwäbische Allgemeine Versicherungs AG

Re:

Reference for a preliminary ruling — Landesgericht Feldkirch — Interpretation of Articles 9(1)(b) and 11(2) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1) — Jurisdiction in insurance matters — Action brought under statutory subrogation by a social security institution before the court for the place where that institution is established against an insurer established in another Member State.

Operative part of the judgment

The reference in Article 11(2) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters to Article 9(1)(b) thereof must be interpreted as meaning that a social security institution, acting as the statutory assignee of the rights of the directly injured party in a motor accident, may not bring an action directly in the courts of its Member State of establishment against the insurer of the person allegedly responsible for the accident, where that insurer is established in another Member State.

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(1)  OJ C 272, 25.10.2008.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/23 |
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7.11.2009

EN

Official Journal of the European Union

C 267/23

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Judgment of the Court (Fourth Chamber) of 10 September 2009 (reference for a preliminary ruling from the Oberlandesgericht München — Germany) — Zentrale zur Bekämpfung unlauteren Wettbewerbs eV v Adolf Darbo AG

(Case C-366/08) (1)

(Harmonisation of laws - Directive 95/2/EC - Part A of Annex III - Directive 2001/113/EC - Second paragraph of Part II of Annex I - Extra jam with a soluble dry matter content of 58 % and containing potassium sorbate (E 202) as a preservative - Term ‘low sugar jam’)

2009/C 267/39

Language of the case: German

Referring court

Oberlandesgericht München

Parties to the main proceedings

Applicant: Zentrale zur Bekämpfung unlauteren Wettbewerbs eV

Defendant: Adolf Darbo AG

Re:

Reference for a preliminary ruling — Oberlandesgericht München — Interpretation of Part A of Annex III to European Parliament and Council Directive 95/2/EC of 20 February 1995 on food additives other than colours and sweeteners (OJ 1995 L 61, p. 1) and the second paragraph of Part II of Annex I to Council Directive 2001/113/EC of 20 December 2001 relating to fruit jams, jellies and marmalades and sweetened chestnut purée intended for human consumption (OJ 2002 L 10, p. 67) — Ability to market, under the name ‘extra jam’, jam with a soluble dry matter content of 58 % and containing potassium sorbate (E 202) as a preservative — Term ‘low-sugar jam’.

Operative part of the judgment

The term ‘low-sugar jams’ in Part A of Annex III to European Parliament and Council Directive 95/2/EC of 20 February 1995 on food additives other than colours and sweeteners, as amended by Directive 98/72/EC of the European Parliament and of the Council of 15 October 1998, covers jams described as ‘jam’ and ‘extra jam’ which have a sugar content appreciably lower than the reference value of 60 %. Products described as ‘extra jam’ which have a sugar content of 58 % cannot be considered to be low sugar within the meaning of that provision.

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(1)  OJ C 272, 25.10.2008.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/23 |
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7.11.2009

EN

Official Journal of the European Union

C 267/23

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Order of the Court of 9 July 2009 — Fornaci Laterizi Danesi SpA v Commission of the European Communities

(Case C-498/08 P) (1)

(Appeal - Action for annulment - Time-limit for bringing an action - Inadmissibility because out of time - Appeal manifestly unfounded)

2009/C 267/40

Language of the case: Italian

Parties

Appellant: Fornaci Laterizi Danesi SpA (represented by: M. Salvi, avvocato)

Other party to the proceedings: Commission of the European Communities (represented by: C. Zadra and D. Recchia, acting as Agents)

Re:

Appeal brought against the order of the Court of First Instance (First Chamber) of 9 September 2008 in Case T-224/08 Fornaci Laterizi Danesi v Commission — by which the Court of First Instance dismissed as inadmissible the application for annulment of Commission Decision 2008/25/EC of 13 November 2007 adopting, pursuant to Council Directive 92/43/EEC, a first updated list of sites of Community importance for the Continental biogeographical region (OJ 2008 L 12, p. 383), in so far as a plot of land belonging to the applicant, under reference IT20A0018, was included in that list.

Operative part of the order

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

The appeal is dismissed.

| 2. | Fornaci Laterizi Danesi SpA is ordered to pay the costs. |
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2.

Fornaci Laterizi Danesi SpA is ordered to pay the costs.

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(1)  OJ C 69, 21.3.2009.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/24 |
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7.11.2009

EN

Official Journal of the European Union

C 267/24

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Appeal brought on 23 May 2008 by Nuova Argricast Srl against the order of the Court of First Instance (Fifth Chamber) of 12 March 2008 in Case T-443/07 Nuova Agricast Srl v Commission of the European Communities

(Case C-225/08P)

2009/C 267/41

Language of the case: Italian

Parties

Appellant: Nuova Agricast Srl (represented by: M. A. Calabrese, avvocato)

Other party to the proceedings: Commission of the European Communities

By order of 29 June 2009, the Court of Justice (Eighty Chamber) dismissed the the appeal application.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/24 |
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7.11.2009

EN

Official Journal of the European Union

C 267/24

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Appeal brought on 3 July 2008 by Cofra srl against the order of the Court of First Instance (Fifth Chamber) made on 15 April 2008 in Case T-478/07 Cofra srl v Commission of the European Communities

(Case C-295/08 P)

2009/C 267/42

Language of the case: Italian

Parties

Appellant(s): Cofra srl (represented by A. Calabrese, avvocato)

Other party to the proceedings: Commission of the European Communities

By order of 29 June 2009 the Court of Justice (Eighth Chamber) dismissed the appeal.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/24 |
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7.11.2009

EN

Official Journal of the European Union

C 267/24

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Appeal brought on 24 December 2008 by Devrajan Srinivasan against the order of the Court of First Instance (Sixth Chamber) delivered on 03 November 2008 in Case T-196/08: Srinivasan/Médiateur

(Case C-580/08 P)

2009/C 267/43

Language of the case: English

Parties

Appellant: Devrajan Srinivasan (represented by: J. Morton, Solicitor)

Other party to the proceedings: Médiateur européen

By order of 25 June 2009 the Court of Justice (Sixth Chamber) held that the appeal was inadmissible.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/24 |
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7.11.2009

EN

Official Journal of the European Union

C 267/24

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Appeal brought on 21 January 2009 by Daniela Marinova against the order of the Court of First Instance (Sixth Chamber) delivered on 05 November 2008 in Case T-213/08: Marinova/Université Libre de Bruxelles and Commission

(Case C-29/09 P)

2009/C 267/44

Language of the case: English

Parties

Appellant: Daniela Marinova (represented by: G. Georgiev, advocate)

Other parties to the proceedings: Université Libre de Bruxelles, Commission of the European Communities

By order of 1 July 2009 the Court of Justice (Eight Chamber) held that the appeal was inadmissible.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/24 |
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7.11.2009

EN

Official Journal of the European Union

C 267/24

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Appeal brought on 9 December 2008 by Hasbro, Inc. against the decision of the Court of First Instance (Sixth Chamber) contained in a letter of 22 September 2008 in Case T-472/07: Enercon v OHIM

(Case C-59/09 P)

2009/C 267/45

Language of the case: English

Parties

Appellant: Hasbro, Inc. (represented by: M. Edenborough, Barrister)

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

By order of 10 July 2009 the Court of Justice (Fifth Chamber) held that the appeal was inadmissible.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/25 |
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7.11.2009

EN

Official Journal of the European Union

C 267/25

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Reference for a preliminary ruling from the Finanzgericht Köln (Germany) lodged on 13 July 2009 — Wienand Meilicke, Frau Heidi Christa Weyde and Marina Stöffler v Finanzamt Bonn-Innenstadt

(Case C-262/09)

2009/C 267/46

Language of the case: German

Referring court

Finanzgericht Köln

Parties to the main proceedings

Applicants: Wienand Meilicke, Frau Heidi Christa Weyde and Marina Stöffler

Defendant: Finanzamt Bonn-Innenstadt

Questions referred

| 1. | Do the free movement of capital under Articles 56(1) EC and 58(1)(a) and (3) EC, the principle of effectiveness and the principle of ‘effet utile’ preclude legislation — like Paragraph 36(2), second sentence, point 3 of the Einkommensteuergesetz (Law on income tax, ‘the EStG’) (in the version in force during the relevant years) — under which corporation tax amounting to three sevenths of the gross dividends is set off against the income tax, provided such dividends do not originate from distributions for which capital and reserves are deemed to have been used within the meaning of Paragraph 30(2)(1) of the Körperschaftsteuergesetz (Law on corporation tax, ‘the KStG’) (in the version in force during the relevant years), although the corporation tax charged on dividends received from a company resident in another EC country which was actually paid is in practice impossible to determine and could be higher? |
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1.

Do the free movement of capital under Articles 56(1) EC and 58(1)(a) and (3) EC, the principle of effectiveness and the principle of ‘effet utile’ preclude legislation — like Paragraph 36(2), second sentence, point 3 of the Einkommensteuergesetz (Law on income tax, ‘the EStG’) (in the version in force during the relevant years) — under which corporation tax amounting to three sevenths of the gross dividends is set off against the income tax, provided such dividends do not originate from distributions for which capital and reserves are deemed to have been used within the meaning of Paragraph 30(2)(1) of the Körperschaftsteuergesetz (Law on corporation tax, ‘the KStG’) (in the version in force during the relevant years), although the corporation tax charged on dividends received from a company resident in another EC country which was actually paid is in practice impossible to determine and could be higher?

| 2. | Do the free movement of capital under Articles 56(1) EC and 58(1)(a) and (3) EC, the principle of effectiveness and the principle of ‘effet utile’ preclude legislation — like Paragraph 36(2), second sentence, point 3, fourth sentence, (b) of the EStG (in the version in force in the relevant years) — under which credit for corporation tax requires the submission of a corporation tax certificate within the meaning of Paragraphs 44 et seq. of the KStG (in the version in force in the relevant years), which must contain, inter alia, the amount of corporation tax deductible and the composition of the payment under the various parts of the capital and reserves available for distribution on the basis of a special division of capital and reserves within the meaning of Paragraph 30 of the KStG (in the version in force in the relevant years), although it is in practice impossible to determine the foreign corporation tax actually paid which is to be set off and to provide the certificate in respect of foreign dividends? |
| --- | --- |

2.

Do the free movement of capital under Articles 56(1) EC and 58(1)(a) and (3) EC, the principle of effectiveness and the principle of ‘effet utile’ preclude legislation — like Paragraph 36(2), second sentence, point 3, fourth sentence, (b) of the EStG (in the version in force in the relevant years) — under which credit for corporation tax requires the submission of a corporation tax certificate within the meaning of Paragraphs 44 et seq. of the KStG (in the version in force in the relevant years), which must contain, inter alia, the amount of corporation tax deductible and the composition of the payment under the various parts of the capital and reserves available for distribution on the basis of a special division of capital and reserves within the meaning of Paragraph 30 of the KStG (in the version in force in the relevant years), although it is in practice impossible to determine the foreign corporation tax actually paid which is to be set off and to provide the certificate in respect of foreign dividends?

| 3. | Does the free movement of capital under Articles 56(1) EC and 58(1)(a) and (3) EC require that where it is actually impossible to submit a corporation tax certificate within the meaning of Paragraph 44 of the KStG (in the version in force in the relevant years) and in the absence of being able to determine the corporation tax charged on the foreign dividends which was actually paid, the amount of the charge to corporation tax should be estimated and if appropriate at the same time indirect prior charges to corporation tax should be taken into account? |
| --- | --- |

3.

Does the free movement of capital under Articles 56(1) EC and 58(1)(a) and (3) EC require that where it is actually impossible to submit a corporation tax certificate within the meaning of Paragraph 44 of the KStG (in the version in force in the relevant years) and in the absence of being able to determine the corporation tax charged on the foreign dividends which was actually paid, the amount of the charge to corporation tax should be estimated and if appropriate at the same time indirect prior charges to corporation tax should be taken into account?

| 4. | (a) | If the second question is answered in the negative and a corporation tax certificate is required:
  Should the principle of effectiveness and the principle of ‘effet utile’ be understood as meaning that they preclude legislation — like the second sentence of Paragraph 175(2) of the Abgabenordnung (Tax Code, ‘AO’) in conjunction with Article 97(9)(3) of the Einführungsgesetz zur Abgabenordnung (Introductory law of the Tax Code, ‘EGAO’) — under which, from 29 October 2004, without any transitional period for the purposes of claiming credit for foreign corporation tax, the submission, inter alia, of a corporation tax certificate is no longer deemed to be an event with retroactive effect, as a result of which it is made procedurally impossible to set off foreign corporation tax where income tax assessments have become final? |
| --- | --- | --- |

4.

(a)

If the second question is answered in the negative and a corporation tax certificate is required:

Should the principle of effectiveness and the principle of ‘effet utile’ be understood as meaning that they preclude legislation — like the second sentence of Paragraph 175(2) of the Abgabenordnung (Tax Code, ‘AO’) in conjunction with Article 97(9)(3) of the Einführungsgesetz zur Abgabenordnung (Introductory law of the Tax Code, ‘EGAO’) — under which, from 29 October 2004, without any transitional period for the purposes of claiming credit for foreign corporation tax, the submission, inter alia, of a corporation tax certificate is no longer deemed to be an event with retroactive effect, as a result of which it is made procedurally impossible to set off foreign corporation tax where income tax assessments have become final?

| (b) | If the second question is answered in the affirmative and no corporation tax certificate is required:
  Should the free movement of capital under Article 56 EC, the principle of effectiveness and the principle of ‘effet utile’ be understood to preclude legislation — like Paragraph 175(1), first sentence, point 2, of the AO — under which a tax assessment notice must be amended provided that an event with retroactive effect occurs — such as for example the submission of a corporation tax certificate — and consequently a corporation tax credit is possible in relation to domestic dividends even where income tax assessments have become final, whereas this would not be possible in relation to foreign dividends for want of a corporation tax certificate? |
| --- | --- |

(b)

If the second question is answered in the affirmative and no corporation tax certificate is required:

Should the free movement of capital under Article 56 EC, the principle of effectiveness and the principle of ‘effet utile’ be understood to preclude legislation — like Paragraph 175(1), first sentence, point 2, of the AO — under which a tax assessment notice must be amended provided that an event with retroactive effect occurs — such as for example the submission of a corporation tax certificate — and consequently a corporation tax credit is possible in relation to domestic dividends even where income tax assessments have become final, whereas this would not be possible in relation to foreign dividends for want of a corporation tax certificate?

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/26 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/26

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Reference for a preliminary ruling from the College van Beroep voor het Bedrijfsleven (The Netherlands) lodged on 10 June 2009 — Stichting Natuur en Milieu, Vereniging Milieudefensie, Vereniging Goede Waar & Co. v College voor het toelating van gewasbeschermingsmiddelen en biociden, other parties: Bayer CropScience BV and Nederlandse Stichting voor Fytofarmacie

(Case C-266/09)

2009/C 267/47

Language of the case: Dutch

Referring court

College van Beroep voor het Bedrijfsleven

Parties to the main proceedings

| Applicants | : | | Stichting Natuur en Milieu |
| --- | --- | --- | --- |

Applicants

:

Stichting Natuur en Milieu

| | Vereniging Milieudefensie |
| --- | --- |

Vereniging Milieudefensie

| | Vereniging Goede Waar & Co |
| --- | --- |

Vereniging Goede Waar & Co

Defendants

:

College voor het toelating van gewasbeschermingsmiddelen en biociden

Other parties

:

| | Bayer CropScience BV |
| --- | --- |

Bayer CropScience BV

| | Nederlandse Stichting voor Fytofarmacie |
| --- | --- |

Nederlandse Stichting voor Fytofarmacie

Questions referred

| 1. | Must the term ‘environmental information’ in Article 2 of Directive 2003/4/EC (1) be interpreted as meaning that it includes information submitted within the framework of a national procedure for the authorisation, or the extension of the authorisation, of a plant protection product with a view to setting the maximum quantity of a pesticide, a component thereof or reaction products which may be present in food or beverages? |
| --- | --- |

1.

Must the term ‘environmental information’ in Article 2 of Directive 2003/4/EC (1) be interpreted as meaning that it includes information submitted within the framework of a national procedure for the authorisation, or the extension of the authorisation, of a plant protection product with a view to setting the maximum quantity of a pesticide, a component thereof or reaction products which may be present in food or beverages?

| 2. | If question 1 is answered in the affirmative, what is the relationship between Article 14 of Directive 91/414/EEC (2) and Directive 2003/4/EC in so far as it is relevant to application to information as defined in the previous question, and specifically, is that relationship such that Article 14 of Directive 91/414/EEC may be applied only if such application does not detract from the obligations laid down in Article 4(2) of Directive 2003/4/EC? |
| --- | --- |

2.

If question 1 is answered in the affirmative, what is the relationship between Article 14 of Directive 91/414/EEC (2) and Directive 2003/4/EC in so far as it is relevant to application to information as defined in the previous question, and specifically, is that relationship such that Article 14 of Directive 91/414/EEC may be applied only if such application does not detract from the obligations laid down in Article 4(2) of Directive 2003/4/EC?

| 3. | If it follows from the answers to the first and second questions above that the defendant is bound in the present case to apply Article 4 of Directive 2003/4/EC, does Article 4 of that directive mean that the weighing prescribed in that provision of the general interest served by disclosure against the specific interest served by the refusal to disclose should take place at application level or that it may be effected in national legislation? |
| --- | --- |

3.

If it follows from the answers to the first and second questions above that the defendant is bound in the present case to apply Article 4 of Directive 2003/4/EC, does Article 4 of that directive mean that the weighing prescribed in that provision of the general interest served by disclosure against the specific interest served by the refusal to disclose should take place at application level or that it may be effected in national legislation?

---

(1)  Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC (OJ 2003 L 41, p. 26).

(2)  Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (OJ 1991 L 230, p. 1)

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/26 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/26

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Reference for a preliminary ruling from Court of Session (Scotland), Edinburgh (United Kingdom) made on 14 July 2009 — Macdonald Resorts Limited v The Commissioners for Her Majesty's Revenue & Customs

(Case C-270/09)

2009/C 267/48

Language of the case: English

Referring court

Court of Session (Scotland), Edinburgh

Parties to the main proceedings

Applicant: Macdonald Resorts Limited

Defendant: The Commissioners for Her Majesty's Revenue & Customs

Questions referred

| 1. | Where MRL, in accordance with the provisions of the Constitution of the Club and the contracts associated therewith, makes supplies of contractual rights (‘Points Rights’) which entitle the purchaser to Points redeemable annually for the occupation and use of timeshare accommodation in MRL's resorts, is that supply to be characterised:






  (a) | as the leasing or letting of immovable property within the meaning of Article 13B(b) of the Sixth VAT Directive (now Article 135(1)(I) of Directive 2006/112 (1)); or |
| --- | --- | --- |

1.

Where MRL, in accordance with the provisions of the Constitution of the Club and the contracts associated therewith, makes supplies of contractual rights (‘Points Rights’) which entitle the purchaser to Points redeemable annually for the occupation and use of timeshare accommodation in MRL's resorts, is that supply to be characterised:

(a)

as the leasing or letting of immovable property within the meaning of Article 13B(b) of the Sixth VAT Directive (now Article 135(1)(I) of Directive 2006/112 (1)); or

| (b) | as membership of a club; or |
| --- | --- |

(b)

as membership of a club; or

| (c) | in some other manner? |
| --- | --- |

(c)

in some other manner?

| 2. | Does it affect the answer to question 1 that:






  (a) | In some cases the contractual rights are acquired in return for the customer depositing with MRL pre-existing rights of occupation held by the customer in timeshare accommodation at a particular place for one or more fixed weeks? |
| --- | --- | --- |

2.

Does it affect the answer to question 1 that:

(a)

In some cases the contractual rights are acquired in return for the customer depositing with MRL pre-existing rights of occupation held by the customer in timeshare accommodation at a particular place for one or more fixed weeks?

| (b) | the customer may in any year decide not to redeem his or her Points entitlement for that year in whole or in part for any rights of occupation and may instead elect to augment his or her entitlement in the following year, or, subject to the contractual conditions of the scheme in any year, may augment that year's entitlement by ‘borrowing’ from his or her entitlement to Points in the following year; |
| --- | --- |

(b)

the customer may in any year decide not to redeem his or her Points entitlement for that year in whole or in part for any rights of occupation and may instead elect to augment his or her entitlement in the following year, or, subject to the contractual conditions of the scheme in any year, may augment that year's entitlement by ‘borrowing’ from his or her entitlement to Points in the following year;

| (c) | the properties comprising the pool of accommodation may change between the time when Points Rights are acquired and the time when Points are redeemed for the right to occupy a property; |
| --- | --- |

(c)

the properties comprising the pool of accommodation may change between the time when Points Rights are acquired and the time when Points are redeemed for the right to occupy a property;

| (d) | the number of Points to which the customer is entitled each year may be varied by the supplier in accordance with the contractual conditions of the scheme; |
| --- | --- |

(d)

the number of Points to which the customer is entitled each year may be varied by the supplier in accordance with the contractual conditions of the scheme;

| (e) | The Appellant may from time to time arrange for persons holding Points Rights to have access to an external timeshare programme; |
| --- | --- |

(e)

The Appellant may from time to time arrange for persons holding Points Rights to have access to an external timeshare programme;

| (f) | The Appellant may from time to time make arrangements for persons holding Points Rights to exchange their Points for accommodation in hotels operated by the Appellant or for other benefits provided by the Appellant? |
| --- | --- |

(f)

The Appellant may from time to time make arrangements for persons holding Points Rights to exchange their Points for accommodation in hotels operated by the Appellant or for other benefits provided by the Appellant?

| 3. | Where a taxable person makes supplies of the services described in questions 1 and 2 above,






  (a) | are these ‘services connected with immovable property’ within the meaning of Article 9(2)(a) of the Sixth VAT Directive (now Article 45 of Directive 2006/112); |
| --- | --- | --- |

3.

Where a taxable person makes supplies of the services described in questions 1 and 2 above,

(a)

are these ‘services connected with immovable property’ within the meaning of Article 9(2)(a) of the Sixth VAT Directive (now Article 45 of Directive 2006/112);

| (b) | if the answer to question 3 a) is ‘Yes’: in circumstances where Members of the Club may exercise their contractual rights by occupying timeshare accommodation in more than one Member State, and it is not known at the time of supply which accommodation will be so occupied, how is the place of supply to be determined? |
| --- | --- |

(b)

if the answer to question 3 a) is ‘Yes’: in circumstances where Members of the Club may exercise their contractual rights by occupying timeshare accommodation in more than one Member State, and it is not known at the time of supply which accommodation will be so occupied, how is the place of supply to be determined?

---

(1)  Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax

OJ L 347, p. 1

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/27 |
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7.11.2009

EN

Official Journal of the European Union

C 267/27

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Reference for a preliminary ruling from the Rechtbank Haarlem (Netherlands), lodged on 16 July 2009 — Premis Medical BV v Inspecteur van de Belastingdienst/Douane Rotterdam, kantoor Rotterdam Laan op Zuid

(Case C-273/09)

2009/C 267/49

Language of the case: Dutch

Referring court

Rechtbank Haarlem

Parties to the main proceedings

Applicant: Premis Medical BV

Defendant: Inspecteur van de Belastingdienst/Douane Rotterdam, kantoor Rotterdam Laan op Zuid

Questions referred

| 1. | Is Commission Regulation (EC) No 729/2004 (1) of 15 April 2004, published on 20 April 2004 in Official Journal of the European Union L 113, page 5, with a corrigendum published on 7 May 2004 in Official Journal of the European Union L 173, page 9, valid in the sense that the annex contained in the corrigendum is the valid annex? If so: |
| --- | --- |

1.

Is Commission Regulation (EC) No 729/2004 (1) of 15 April 2004, published on 20 April 2004 in Official Journal of the European Union L 113, page 5, with a corrigendum published on 7 May 2004 in Official Journal of the European Union L 173, page 9, valid in the sense that the annex contained in the corrigendum is the valid annex? If so:

| 2. | Is Commission Regulation (EC) No 729/2004 of 15 April 2004, published on 20 April 2004 in Official Journal of the European Union L 113, page 5, with a corrigendum published on 7 May 2004 in Official Journal of the European Union L 173, page 9, invalid on the ground that the Commission has restricted the scope of heading 9021 in that regulation? If the regulation is valid: |
| --- | --- |

2.

Is Commission Regulation (EC) No 729/2004 of 15 April 2004, published on 20 April 2004 in Official Journal of the European Union L 113, page 5, with a corrigendum published on 7 May 2004 in Official Journal of the European Union L 173, page 9, invalid on the ground that the Commission has restricted the scope of heading 9021 in that regulation? If the regulation is valid:

| 3. | Is Commission Regulation (EC) No 729/2004 of 15 April 2004, published on 20 April 2004 in Official Journal of the European Union L 113, page 5, with a corrigendum published on 7 May 2004 in Official Journal of the European Union L 173, page 9, invalid on the ground that the Commission has incorrectly classified the rollator in the CN? |
| --- | --- |

3.

Is Commission Regulation (EC) No 729/2004 of 15 April 2004, published on 20 April 2004 in Official Journal of the European Union L 113, page 5, with a corrigendum published on 7 May 2004 in Official Journal of the European Union L 173, page 9, invalid on the ground that the Commission has incorrectly classified the rollator in the CN?

---

(1)  Commission Regulation (EC) No 729/2004 of 15 April 2004 concerning the classification of certain goods in the Combined Nomenclature (OJ 2004 L 113, p. 5).

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/28 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/28

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Reference for a preliminary ruling from the Oberlandesgericht München (Germany) lodged on 20 July 2009 — Privater Rettungsdienst und Krankentransport Stadler v Zweckverband für Rettungsdienst und Feuerwehralarmierung Passau — Joined parties: Malteser Hilfsdienst e.V. and Bayerisches Rotes Kreuz

(Case C-274/09)

2009/C 267/50

Language of the case: German

Referring court

Oberlandesgericht München

Parties to the main proceedings

Claimant: Privater Rettungsdienst und Krankentransport Stadler

Defendant: Zweckverband für Rettungsdienst und Feuerwehralarmierung Passau

Joined parties: Malteser Hilfsdienst e.V. and Bayerisches Rotes Kreuz

Questions referred

The following questions are referred to the Court of Justice of the European Community for a preliminary ruling on the interpretation of Directive 2004/18/EC of the European Parliament and of the Council on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (1) (‘the Directive’) pursuant to the first paragraph of Article 234 EC:

| 1. | Is a contract relating to the supply of services (here, rescue services) under the terms of which the contracting authority does not make a direct payment of consideration to the contractor, but:






  (a) | the usage fee for the services to be provided is set by negotiation between the contractor and third parties who are contracting authorities (here, social security institutions), |
| --- | --- | --- |

1.

Is a contract relating to the supply of services (here, rescue services) under the terms of which the contracting authority does not make a direct payment of consideration to the contractor, but:

(a)

the usage fee for the services to be provided is set by negotiation between the contractor and third parties who are contracting authorities (here, social security institutions),

| (b) | if agreement is not reached provision is made for a decision by an arbitration board established to this end, whose decision is subject to review by State courts, and |
| --- | --- |

(b)

if agreement is not reached provision is made for a decision by an arbitration board established to this end, whose decision is subject to review by State courts, and

| (c) | the fee is paid to the contractor not directly by the users, but in regular payments on account by a central settlement office whose services the contractor is statutorily required to call upon, |
| --- | --- |

(c)

the fee is paid to the contractor not directly by the users, but in regular payments on account by a central settlement office whose services the contractor is statutorily required to call upon,

to be regarded for that reason alone as a service concession within the meaning of Article 1(4) of the Directive as distinct from a service contract for the purposes of Article 1(2)(a) and (d) of the Directive?

| 2. | If the first question referred is to be answered in the negative, is there a service concession where the operating risk connected with the public services is limited because:






  (a) | under a statutory provision, the usage fees for the provision of the services are to be based on the costs that can be estimated in accordance with economic principles applicable to undertakings and that are consistent with proper provision of services, economical and cost-efficient management and efficient organisation, |
| --- | --- | --- |

2.

If the first question referred is to be answered in the negative, is there a service concession where the operating risk connected with the public services is limited because:

(a)

under a statutory provision, the usage fees for the provision of the services are to be based on the costs that can be estimated in accordance with economic principles applicable to undertakings and that are consistent with proper provision of services, economical and cost-efficient management and efficient organisation,

| (b) | the usage fees are due from solvent social security institutions, |
| --- | --- |

(b)

the usage fees are due from solvent social security institutions,

| (c) | a certain exclusivity of exploitation is guaranteed in the contractually stipulated area, |
| --- | --- |

(c)

a certain exclusivity of exploitation is guaranteed in the contractually stipulated area,

but the contractor assumes this limited risk entirely?

---

(1)  OJ 2004 L 134, p. 114.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/28 |
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7.11.2009

EN

Official Journal of the European Union

C 267/28

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Reference for a preliminary ruling from the Raad van State (Belgium) lodged on 21 July 2009 — Brussels Hoofdstedelijk Gewest and Others v Vlaamse Gewest. Other party: Brussels International Airport Company NV, now The Brussels Airport Company NV

(Case C-275/09)

2009/C 267/51

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Applicant: Brussels Hoofdstedelijk Gewest and Others

Defendant: Vlaamse Gewest

Intervening party: Brussels International Airport Company NV (Now: The Brussels Airport Company NV)

Questions referred

| 1. | When separate development consents are required for, on the one hand, the infrastructure works for an airport with a basic runway length of 2 100 m or more and, on the other hand, for the operation of that airport, and the latter development consent — the environmental permit — is only granted for a fixed period, should the term ‘construction’, referred to in paragraph 7(a) of Annex I to Council Directive 85/337/EEC (1) of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, as amended by Council Directive 97/11/EC of 3 March 1997, be interpreted as meaning that an environmental impact report should be compiled not only for the execution of the infrastructure works but also for the operation of the airport? |
| --- | --- |

1.

When separate development consents are required for, on the one hand, the infrastructure works for an airport with a basic runway length of 2 100 m or more and, on the other hand, for the operation of that airport, and the latter development consent — the environmental permit — is only granted for a fixed period, should the term ‘construction’, referred to in paragraph 7(a) of Annex I to Council Directive 85/337/EEC (1) of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, as amended by Council Directive 97/11/EC of 3 March 1997, be interpreted as meaning that an environmental impact report should be compiled not only for the execution of the infrastructure works but also for the operation of the airport?

| 2. | Is that mandatory environmental impact assessment also required for the renewal of the environmental permit for the airport, both in the case where that renewal is not accompanied by any change or extension to the operation, and in the case where such a change or extension is indeed intended? |
| --- | --- |

2.

Is that mandatory environmental impact assessment also required for the renewal of the environmental permit for the airport, both in the case where that renewal is not accompanied by any change or extension to the operation, and in the case where such a change or extension is indeed intended?

| 3. | Does it make a difference to the mandatory environmental impact reporting in the context of the renewal of an environmental permit for an airport whether an environmental impact report was compiled earlier, in relation to a previous operational consent, and whether the airport was already in operation at the time that environmental impact reporting was introduced by the European or the national legislator? |
| --- | --- |

3.

Does it make a difference to the mandatory environmental impact reporting in the context of the renewal of an environmental permit for an airport whether an environmental impact report was compiled earlier, in relation to a previous operational consent, and whether the airport was already in operation at the time that environmental impact reporting was introduced by the European or the national legislator?

---

(1)  OJ L 175, p. 40.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/29 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/29

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Reference for a preliminary ruling from High Court of Justice (Chancery Division) (England and Wales) made on 20 July 2009 — T-Mobile (UK) Ltd v The Commissioners for Her Majesty's Revenue & Customs

(Case C-276/09)

2009/C 267/52

Language of the case: English

Referring court

High Court of Justice (Chancery Division) (England and Wales)

Parties to the main proceedings

Applicant: T-Mobile (UK) Ltd

Defendant: The Commissioners for Her Majesty's Revenue & Customs

Questions referred

| 1. | What are the characteristics of an exempt service that has ‘the effect of transferring funds and entail[sl changes in the legal and financial situation’?
  In particular:






  (a) | Is the exemption applicable to services which would not otherwise have to be performed by any of the financial institutions which (i) make a debit to one account, (ii) make a corresponding credit to another account, or (iii) perform an intervening task between (i) or (ii)? |
| --- | --- | --- |

1.

What are the characteristics of an exempt service that has ‘the effect of transferring funds and entail[sl changes in the legal and financial situation’?

In particular:

(a)

Is the exemption applicable to services which would not otherwise have to be performed by any of the financial institutions which (i) make a debit to one account, (ii) make a corresponding credit to another account, or (iii) perform an intervening task between (i) or (ii)?

| (b) | Is the exemption applicable to services which do not include the carrying out of tasks of making a debit to one account and a corresponding credit to another account, but which may, where a transfer of funds results, be seen in retrospect as having been the cause of that transfer? |
| --- | --- |

(b)

Is the exemption applicable to services which do not include the carrying out of tasks of making a debit to one account and a corresponding credit to another account, but which may, where a transfer of funds results, be seen in retrospect as having been the cause of that transfer?

| 2. | Does the exemption in Article 13B(d)(3) of the Sixth Directive (1) for ‘transactions concerning payments [or] transfers’ apply to a service of obtaining and processing payments by credit and debit cards, such as those performed by the taxpayer in the present case? In particular, where the transmission of settlement files at the end of each day by the taxpayer has the effect of automatically causing the customer's account to be debited and the taxpayer's account to be credited, will those services fall within the scope of Article 13B(d)(3)? |
| --- | --- |

2.

Does the exemption in Article 13B(d)(3) of the Sixth Directive (1) for ‘transactions concerning payments [or] transfers’ apply to a service of obtaining and processing payments by credit and debit cards, such as those performed by the taxpayer in the present case? In particular, where the transmission of settlement files at the end of each day by the taxpayer has the effect of automatically causing the customer's account to be debited and the taxpayer's account to be credited, will those services fall within the scope of Article 13B(d)(3)?

| 3. | Does the answer to Question 2 depend on whether the taxpayer itself obtains authorisation codes for onward transmission or obtains those codes through the agency of its acquiring bank? |
| --- | --- |

3.

Does the answer to Question 2 depend on whether the taxpayer itself obtains authorisation codes for onward transmission or obtains those codes through the agency of its acquiring bank?

| 4. | Does the exemption in Article 13B(d)(l) of the Sixth Directive for ‘the negotiation of credit’ apply to services such as those offered by the taxpayer in the present case in relation to credit card payments, whereby as a result of those services the customer's credit card account is debited with further amounts of credit? |
| --- | --- |

4.

Does the exemption in Article 13B(d)(l) of the Sixth Directive for ‘the negotiation of credit’ apply to services such as those offered by the taxpayer in the present case in relation to credit card payments, whereby as a result of those services the customer's credit card account is debited with further amounts of credit?

| 5. | Does the exemption for ‘transactions concerning payments [or] transfers’ apply to services of accepting and processing payments made using third party agents, such as those offered by the taxpayer through the Post Office and PayPoint in the present case? |
| --- | --- |

5.

Does the exemption for ‘transactions concerning payments [or] transfers’ apply to services of accepting and processing payments made using third party agents, such as those offered by the taxpayer through the Post Office and PayPoint in the present case?

| 6. | Does the exemption for ‘transactions concerning payments [or] transfers’ apply to services of obtaining and processing payments made by cheque sent to the taxpayer or his agent, which payments have to be processed by the taxpayer and its bank? |
| --- | --- |

6.

Does the exemption for ‘transactions concerning payments [or] transfers’ apply to services of obtaining and processing payments made by cheque sent to the taxpayer or his agent, which payments have to be processed by the taxpayer and its bank?

| 7. | Does the exemption for ‘transactions concerning payments [or] transfers’ apply to services, such as those offered by the taxpayer in the present case, of receiving and processing payments made over the counter at a bank for credit, through the banking system, to the taxpayer's bank account? |
| --- | --- |

7.

Does the exemption for ‘transactions concerning payments [or] transfers’ apply to services, such as those offered by the taxpayer in the present case, of receiving and processing payments made over the counter at a bank for credit, through the banking system, to the taxpayer's bank account?

| 8. | What particular factors have to be taken into account when deciding whether a charge (such as the payment handling charge in the present case) that is applied by a taxpayer to its customer in respect of the customer's choice to make payment to the taxpayer using a particular payment method, and which is individually identified in the contractual document and separately itemised in invoices issued to customers, is a separate supply for VAT purposes? |
| --- | --- |

8.

What particular factors have to be taken into account when deciding whether a charge (such as the payment handling charge in the present case) that is applied by a taxpayer to its customer in respect of the customer's choice to make payment to the taxpayer using a particular payment method, and which is individually identified in the contractual document and separately itemised in invoices issued to customers, is a separate supply for VAT purposes?

---

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

OJ L 145, p. 1

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/30 |
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Reference for a preliminary ruling from Court of Session (Scotland), Edinburgh (United Kingdom) made on 21 July 2009 — The Commissioners for Her Majesty's Revenue & Customs v RBS Deutschland Holdings GmbH

(Case C-277/09)

2009/C 267/53

Language of the case: English

Referring court

Court of Session (Scotland), Edinburgh

Parties to the main proceedings

Applicant: The Commissioners for Her Majesty's Revenue & Customs

Defendant: RBS Deutschland Holdings GmbH

Questions referred

In circumstances such as those of the present case, where:

| (a) | a German subsidiary of a United Kingdom bank purchased cars in the United Kingdom with a view to leasing them to an unconnected company in the United Kingdom and paid value added tax on these purchases; |
| --- | --- |

(a)

a German subsidiary of a United Kingdom bank purchased cars in the United Kingdom with a view to leasing them to an unconnected company in the United Kingdom and paid value added tax on these purchases;

| (b) | under the relevant United Kingdom legislation the supplies consisting of the rental of cars were treated as supplies of services made in Germany and accordingly not subject to value added tax in the United Kingdom. Under German law these supplies were treated as supplies of goods made in the United Kingdom and accordingly not subject to value added tax in Germany. The consequence was that no output tax was charged on these supplies in either member state; |
| --- | --- |

(b)

under the relevant United Kingdom legislation the supplies consisting of the rental of cars were treated as supplies of services made in Germany and accordingly not subject to value added tax in the United Kingdom. Under German law these supplies were treated as supplies of goods made in the United Kingdom and accordingly not subject to value added tax in Germany. The consequence was that no output tax was charged on these supplies in either member state;

| (c) | the United Kingdom bank selected its German subsidiary as lessor and determined the duration of the leasing arrangements with a view to obtaining the tax advantage of no VAT being chargeable on the rental payments: |
| --- | --- |

(c)

the United Kingdom bank selected its German subsidiary as lessor and determined the duration of the leasing arrangements with a view to obtaining the tax advantage of no VAT being chargeable on the rental payments:

| 1. | Is Article 17(3)(a) of the Sixth Directive (1) (now Article 169(a) of the Principal VAT Directive) to be interpreted as entitling the United Kingdom tax authorities to refuse to allow the German subsidiary to deduct VAT which it paid in the United Kingdom in respect of the purchase of the cars? |
| --- | --- |

1.

Is Article 17(3)(a) of the Sixth Directive (1) (now Article 169(a) of the Principal VAT Directive) to be interpreted as entitling the United Kingdom tax authorities to refuse to allow the German subsidiary to deduct VAT which it paid in the United Kingdom in respect of the purchase of the cars?

| 2. | In determining the answer to the first question, is it necessary for the national court to extend its analysis to consider the possible application of the principle of prohibiting abusive practices? |
| --- | --- |

2.

In determining the answer to the first question, is it necessary for the national court to extend its analysis to consider the possible application of the principle of prohibiting abusive practices?

| 3. | If the answer to Question 2 is yes, would the deduction of input tax on the purchase of the cars be contrary to the purpose of the relevant provisions of the Sixth Directive and thus satisfy the first requirement for an abusive practice as described in paragraph 74 of the decision of the Court in Halifax plc and Others v Customs & Excise Commissioners (Case C-255/02) having regard among other principles to the principle of the neutrality of taxation? |
| --- | --- |

3.

If the answer to Question 2 is yes, would the deduction of input tax on the purchase of the cars be contrary to the purpose of the relevant provisions of the Sixth Directive and thus satisfy the first requirement for an abusive practice as described in paragraph 74 of the decision of the Court in Halifax plc and Others v Customs & Excise Commissioners (Case C-255/02) having regard among other principles to the principle of the neutrality of taxation?

| 4. | Again if the answer to Question 2 is yes, should the court consider that the essential aim of the transactions is to obtain a tax advantage, so that the second requirement for an abusive practice as described in paragraph 75 of the said decision of the Court is satisfied, in circumstances where in a commercial transaction between parties operating at arm's length, the choice of a German subsidiary to lease the cars to a United Kingdom customer, and of the terms of the leases, are made with a view to obtaining the tax advantage of no output tax being charged on the rental payments? |
| --- | --- |

4.

Again if the answer to Question 2 is yes, should the court consider that the essential aim of the transactions is to obtain a tax advantage, so that the second requirement for an abusive practice as described in paragraph 75 of the said decision of the Court is satisfied, in circumstances where in a commercial transaction between parties operating at arm's length, the choice of a German subsidiary to lease the cars to a United Kingdom customer, and of the terms of the leases, are made with a view to obtaining the tax advantage of no output tax being charged on the rental payments?

---

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

OJ L 145, p. 1

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/31 |
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Reference for a preliminary ruling from the Kammergericht Berlin (Germany), lodged on 22 July 2009 — DEB Deutsche Energiehandels- und Beratungsgesellschaft mbH v Bundesrepublik Deutschland

(Case C-279/09)

2009/C 267/54

Language of the case: German

Referring court

Kammergericht Berlin

Parties to the main proceedings

Appellant: DEB Deutsche Energiehandels- und Beratungsgesellschaft mbH

Respondent: Bundesrepublik Deutschland

Question referred

The following question is referred, pursuant to Article 234 EC, to the Court of Justice of the European Communities for a preliminary ruling:

In view of the fact that Member States may not, through the structuring of conditions under national law governing the award of damages and of the procedure for pursuing a claim seeking to establish State liability under Community law, make the award of compensation in accordance with the principles of State liability under Community law virtually impossible or excessively difficult, must there be reservations with regard to a national rule under which the pursuit of a claim before the courts is subject to the making of an advance payment in respect of costs, and a legal person, which is unable to make that advance payment, does not qualify for legal aid?

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/31 |
| --- | --- | --- | --- |

7.11.2009

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Official Journal of the European Union

C 267/31

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Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 24 July 2009 — Criminal proceedings against R

(Case C-285/09)

2009/C 267/55

Language of the case: German

Referring court

Bundesgerichtshof

Party to the main proceedings

R

Question referred

| 1. | Must Article 28cA(a) of the Sixth Council Directive 77/388/EEC (1) be interpreted as meaning that a supply of goods within the meaning of that provision is to be refused exemption from value added tax if the supply has actually been effected, but it is established on the basis of objective factors that the vendor, a taxable person,






  (a) | knew that, by his supply, he was participating in a transaction aimed at evading VAT, or |
| --- | --- | --- |

1.

Must Article 28cA(a) of the Sixth Council Directive 77/388/EEC (1) be interpreted as meaning that a supply of goods within the meaning of that provision is to be refused exemption from value added tax if the supply has actually been effected, but it is established on the basis of objective factors that the vendor, a taxable person,

(a)

knew that, by his supply, he was participating in a transaction aimed at evading VAT, or

| (b) | took actions aimed at concealing the true identity of the person to whom the goods were supplied in order to enable the latter person or a third person to evade VAT? |
| --- | --- |

(b)

took actions aimed at concealing the true identity of the person to whom the goods were supplied in order to enable the latter person or a third person to evade VAT?

---

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

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/31 |
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7.11.2009

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Official Journal of the European Union

C 267/31

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Reference for a preliminary ruling from the Rechtbank van Koophandel te Brussel (Belgium) lodged on 27 July 2009 — Francesco Guarnieri & Cie v Vandevelde Eddy VOF

(Case C-291/09)

2009/C 267/56

Language of the case: Dutch

Referring court

Rechtbank van Koophandel te Brussel

Parties to the main proceedings

Applicant: Francesco Guarnieri & Cie

Defendant: Vandevelde Eddy VOF

Question referred

Do Articles 28, 29 and 30 of the Treaty of 25 March 1957 establishing the European Community preclude a claimant of Monegasque nationality, who lodges a claim in Belgium for payment of invoices relating to the delivery of ‘twister-glazen’ (glasses) and tea-lights with accessories, from being required, upon application by a defendant of Belgian nationality, to give security for the costs and damages arising from the proceedings which he may be ordered to pay?

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/31 |
| --- | --- | --- | --- |

7.11.2009

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Official Journal of the European Union

C 267/31

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Reference for a preliminary ruling from the Hof van Cassatie van België lodged on 29 July 2009 — Vlaamse Gemeenschap v M. Baesen

(Case C-296/09)

2009/C 267/57

Language of the case: Dutch

Referring court

Hof van Cassatie van België

Parties to the main proceedings

Applicant: Vlaamse Gemeenschap

Defendant: M. Baesen

Questions referred

| 1. | For the purpose of Article 13(2)(d) of Regulation No 1408/71, (1) should the expression ‘civil servants and persons treated as such’ be interpreted on the basis of the national social security scheme to which the person concerned is affiliated? |
| --- | --- |

1.

For the purpose of Article 13(2)(d) of Regulation No 1408/71, (1) should the expression ‘civil servants and persons treated as such’ be interpreted on the basis of the national social security scheme to which the person concerned is affiliated?

| 2. | If the first question is answered in the affirmative, should a person who is employed under a contract of employment by an employer in the public sector and who is subject, under the national scheme, to the social security scheme for employed persons in respect of some of the branches of social security referred to in Article 4(1) of the Regulation and to a special scheme for civil servants in respect of the branches of social security referred to in Article 4(1)(e) of the Regulation be regarded as a person treated as a civil servant within the meaning of Article 13(2)(d) of Regulation No 1408/71? |
| --- | --- |

2.

If the first question is answered in the affirmative, should a person who is employed under a contract of employment by an employer in the public sector and who is subject, under the national scheme, to the social security scheme for employed persons in respect of some of the branches of social security referred to in Article 4(1) of the Regulation and to a special scheme for civil servants in respect of the branches of social security referred to in Article 4(1)(e) of the Regulation be regarded as a person treated as a civil servant within the meaning of Article 13(2)(d) of Regulation No 1408/71?

---

(1)  Council Regulation 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 (OJ 1971 L 149, p. 2).

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/32 |
| --- | --- | --- | --- |

7.11.2009

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Official Journal of the European Union

C 267/32

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Reference for a preliminary ruling from the Fővárosi Bíróság Gazdasági Kollégiuma (Hungary) lodged on 29 July 2009 — RANI Slovakia s.r.o. v Hankook Tire Magyarország Kft.

(Case C-298/09)

2009/C 267/58

Language of the case: Hungarian

Referring court

Fővárosi Bíróság Gazdasági Kollégiuma

Parties to the main proceedings

Applicant: RANI Slovakia s.r.o.

Defendant: Hankook Tire Magyarország Kft.

Questions referred

| 1. | In view of Articles 3(c) and 59 of the Treaty of Rome, can the 19th recital in the preamble to Directive 96/71/EC (1) of the European Parliament and of the Council concerning the posting of workers in the framework of the provision of services be interpreted as meaning that, in relation to the activity of temporary employment undertakings, the national law of a Member State may freely establish the requirements to be imposed on employers (undertakings) for the taking up and pursuit of such an activity in the territory of the Member State concerned and, in that regard, restrict the recognition of temporary employment undertakings to those undertakings established in its territory? |
| --- | --- |

1.

In view of Articles 3(c) and 59 of the Treaty of Rome, can the 19th recital in the preamble to Directive 96/71/EC (1) of the European Parliament and of the Council concerning the posting of workers in the framework of the provision of services be interpreted as meaning that, in relation to the activity of temporary employment undertakings, the national law of a Member State may freely establish the requirements to be imposed on employers (undertakings) for the taking up and pursuit of such an activity in the territory of the Member State concerned and, in that regard, restrict the recognition of temporary employment undertakings to those undertakings established in its territory?

| 2. | Can Article 1(4) of Directive 96/71/EC of the European Parliament and of the Council be interpreted as meaning that, in relation to the authorisation to undertake their activity, undertakings established in the Member State in question may be given more favourable treatment than undertakings established in another Member State? |
| --- | --- |

2.

Can Article 1(4) of Directive 96/71/EC of the European Parliament and of the Council be interpreted as meaning that, in relation to the authorisation to undertake their activity, undertakings established in the Member State in question may be given more favourable treatment than undertakings established in another Member State?

| 3. | Can Articles 59, 62 and 63 of the Treaty of Rome, read together, be interpreted as meaning that the restrictions in place at the time of accession to the European Union may remain applicable, without being contrary to Community law, until the Council adopts a program laying down the conditions for the liberalisation of that type of service or the directives required for the implementation of that program? |
| --- | --- |

3.

Can Articles 59, 62 and 63 of the Treaty of Rome, read together, be interpreted as meaning that the restrictions in place at the time of accession to the European Union may remain applicable, without being contrary to Community law, until the Council adopts a program laying down the conditions for the liberalisation of that type of service or the directives required for the implementation of that program?

| 4. | If the above questions are answered in the negative, is there any reason in the general interest justifying the restriction that the activity of temporary employment undertakings can be carried out only by undertakings which are established and registered in the Member State in question and thus making it possible to regard that restriction as being compatible with Articles 59 and 65 of the Treaty of Rome? |
| --- | --- |

4.

If the above questions are answered in the negative, is there any reason in the general interest justifying the restriction that the activity of temporary employment undertakings can be carried out only by undertakings which are established and registered in the Member State in question and thus making it possible to regard that restriction as being compatible with Articles 59 and 65 of the Treaty of Rome?

---

(1)  OJ 1997 L l8, p. 1.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/32 |
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Reference for a preliminary ruling from the Nejvyšší správní soud (Czech Republic) lodged on 30 July 2009 — DAR Duale Abfallwirtschaft und Verwertung Ruhrgebiet GmbH v Ministerstvo životního prostředí

(Case C-299/09)

2009/C 267/59

Language of the case: Czech

Referring court

Nejvyšší správní soud

Parties to the main proceedings

Applicant: DAR Duale Abfallwirtschaft und Verwertung Ruhrgebiet GmbH

Defendant: Ministerstvo životního prostředí

Questions referred

| 1. | Must Article 2(i) and (k) of Council Regulation (EEC) No 259/93 of 1 February 1993 on the supervision and control of shipments of waste within, into and out of the European Community, (1) in conjunction with Article 1(e) and (f) of Council Directive 75/442/EEC of 15 July 1975 on waste, (2) and with point D10 of Annex IIA and point R1 of Annex IIB to that directive, be interpreted to the effect that the first of the criteria defined by the Court of Justice in its judgment of 13 February 2003 in Case C-458/00 Commission v Luxembourg [2003] ECR I-1553 for it to be possible for the incineration of waste to be regarded as the recovery of waste to generate energy within the meaning of point R1 of Annex IIB to that directive (that is, the main purpose of the operation must be to enable waste to fulfil a useful function, namely the generation of energy) may also be satisfied in a case in which none of the circumstances is present which the Court of Justice mentioned in that judgment as factors testifying to recovery of waste, that is to say, where the operator of the installation in which waste is to be incinerated does not make a payment for the operation to the supplier of the waste and the installation is not technically adapted to be capable of operation on the basis of primary energy sources in the event of a shortage of waste? |
| --- | --- |

1.

Must Article 2(i) and (k) of Council Regulation (EEC) No 259/93 of 1 February 1993 on the supervision and control of shipments of waste within, into and out of the European Community, (1) in conjunction with Article 1(e) and (f) of Council Directive 75/442/EEC of 15 July 1975 on waste, (2) and with point D10 of Annex IIA and point R1 of Annex IIB to that directive, be interpreted to the effect that the first of the criteria defined by the Court of Justice in its judgment of 13 February 2003 in Case C-458/00 Commission v Luxembourg [2003] ECR I-1553 for it to be possible for the incineration of waste to be regarded as the recovery of waste to generate energy within the meaning of point R1 of Annex IIB to that directive (that is, the main purpose of the operation must be to enable waste to fulfil a useful function, namely the generation of energy) may also be satisfied in a case in which none of the circumstances is present which the Court of Justice mentioned in that judgment as factors testifying to recovery of waste, that is to say, where the operator of the installation in which waste is to be incinerated does not make a payment for the operation to the supplier of the waste and the installation is not technically adapted to be capable of operation on the basis of primary energy sources in the event of a shortage of waste?

| 2. | If the answer to that question is in the affirmative, under what conditions may the operation be regarded in such a case as the recovery of waste?






  (a) | May the aspect of payment for the waste operation be disregarded altogether, or is it necessary at the very least, for it to be possible to regard the operation as the recovery of waste, that the income of the operator of the installation from the sale of the thermal or electrical energy obtained by the incineration of a certain quantity of waste exceeds the income of the operator of the installation from the payment for receiving the waste? |
| --- | --- | --- |

2.

If the answer to that question is in the affirmative, under what conditions may the operation be regarded in such a case as the recovery of waste?

(a)

May the aspect of payment for the waste operation be disregarded altogether, or is it necessary at the very least, for it to be possible to regard the operation as the recovery of waste, that the income of the operator of the installation from the sale of the thermal or electrical energy obtained by the incineration of a certain quantity of waste exceeds the income of the operator of the installation from the payment for receiving the waste?

| (b) | As regards the nature of the installation of the recipient of waste, may it be regarded as a sufficient factor testifying to a waste recovery operation that in the decision authorising the operation of the installation it is formally classified as an installation for the recovery of waste for energy purposes and that the operator of the installation has contractually bound himself to feeding a certain quantity of thermal energy into the network and would face a contractual penalty if that obligation were breached, or is it a minimum condition for assessing the operation as the recovery of waste that the operator of the installation would from the legal, technical and economic point of view actually be capable of operating the installation, at least temporarily, on the basis of fuels other than waste? |
| --- | --- |

(b)

As regards the nature of the installation of the recipient of waste, may it be regarded as a sufficient factor testifying to a waste recovery operation that in the decision authorising the operation of the installation it is formally classified as an installation for the recovery of waste for energy purposes and that the operator of the installation has contractually bound himself to feeding a certain quantity of thermal energy into the network and would face a contractual penalty if that obligation were breached, or is it a minimum condition for assessing the operation as the recovery of waste that the operator of the installation would from the legal, technical and economic point of view actually be capable of operating the installation, at least temporarily, on the basis of fuels other than waste?

---

(1)  OJ 1993 L 30, p. 1.

(2)  OJ 1975 L 194, p. 39.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/33 |
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Reference for a preliminary ruling from the Raad van State (Netherlands), lodged on 30 July 2009 — Staatssecretaris van Justitie; other party: F. Toprak

(Case C-300/09)

2009/C 267/60

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Appellant: Staatssecretaris van Justitie

Other party: F. Toprak

Question referred

Must Article 13 of Decision No 1/80 [of 19 September 1980 on the development of the Association, taken by the Association Council set up under the Agreement establishing an Association between the European Economic Community and Turkey] be interpreted as meaning that a new restriction, within the terms of that provision, includes a tightening in respect of a provision which entered into force after 1 December 1980, and which constituted a relaxation of the provision which had been in force on 1 December 1980, if that tightening does not amount to a deterioration vis-à-vis the provision which was in force on 1 December 1980?

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/33 |
| --- | --- | --- | --- |

7.11.2009

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C 267/33

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Reference for a preliminary ruling from the Raad van State (Netherlands), lodged on 30 July 2009 — Staatssecretaris van Justitie; other party: I. Oguz

(Case C-301/09)

2009/C 267/61

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Appellant: Staatssecretaris van Justitie

Other party: I. Oguz

Question referred

Must Article 13 of Decision No 1/80 [of 19 September 1980 on the development of the Association, taken by the Association Council set up under the Agreement establishing an Association between the European Economic Community and Turkey] be interpreted as meaning that a new restriction, within the terms of that provision, includes a tightening in respect of a provision which entered into force after 1 December 1980, and which constituted a relaxation of the provision which had been in force on 1 December 1980, if that tightening does not amount to a deterioration vis-à-vis the provision which was in force on 1 December 1980?

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/34 |
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7.11.2009

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C 267/34

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Reference for a preliminary ruling from the Raad van State (Netherlands), lodged on 3 August 2009 — Vicoplus SC PUH; other party: Minister van Sociale Zaken en Werkgelegenheid

(Case C-307/09)

2009/C 267/62

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Appellant: Vicoplus SC PUH

Other party: Minister van Sociale Zaken en Werkgelegenheid

Questions referred

| 1. | Must Articles 49 EC and 50 EC be interpreted as precluding a national arrangement, as set out in Article 2 of the Netherlands Law on the Employment of Foreign Nationals (Wet arbeid vreemdelingen), read in conjunction with Article 1e(1)(c) of the Decree implementing the Law on the Employment of Foreign Nationals (Besluit uitvoering Wet arbeid vreemdelingen), under which a work permit is required for the hiring-out of workers as referred to in Article 1(3)(c) of Directive 96/71/EC? (1) |
| --- | --- |

1.

Must Articles 49 EC and 50 EC be interpreted as precluding a national arrangement, as set out in Article 2 of the Netherlands Law on the Employment of Foreign Nationals (Wet arbeid vreemdelingen), read in conjunction with Article 1e(1)(c) of the Decree implementing the Law on the Employment of Foreign Nationals (Besluit uitvoering Wet arbeid vreemdelingen), under which a work permit is required for the hiring-out of workers as referred to in Article 1(3)(c) of Directive 96/71/EC? (1)

| 2. | On the basis of what criteria should it be determined whether workers have been hired out within the meaning of Article 1(3)(c) of Directive 96/71/EC? |
| --- | --- |

2.

On the basis of what criteria should it be determined whether workers have been hired out within the meaning of Article 1(3)(c) of Directive 96/71/EC?

---

(1)  Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services (OJ 1997 L 18, p. 1).

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/34 |
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Reference for a preliminary ruling from the Raad van State (Netherlands), lodged on 3 August 2009 — B.A.M. Vermeer Contracting Sp. z o.o.; other party: Minister van Sociale Zaken en Werkgelegenheid

(Case C-308/09)

2009/C 267/63

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Appellant: B.A.M. Vermeer Contracting Sp. z. o.o.

Other party: Minister van Sociale Zaken en Werkgelegenheid

Questions referred

| 1. | Must Articles 49 EC and 50 EC be interpreted as precluding a national arrangement, as set out in Article 2 of the Netherlands Law on the Employment of Foreign Nationals (Wet arbeid vreemdelingen), read in conjunction with Article 1e(1)(c) of the Decree implementing the Law on the Employment of Foreign Nationals (Besluit uitvoering Wet arbeid vreemdelingen), under which a work permit is required for the hiring-out of workers as referred to in Article 1(3)(c) of Directive 96/71/EC? (1) |
| --- | --- |

1.

Must Articles 49 EC and 50 EC be interpreted as precluding a national arrangement, as set out in Article 2 of the Netherlands Law on the Employment of Foreign Nationals (Wet arbeid vreemdelingen), read in conjunction with Article 1e(1)(c) of the Decree implementing the Law on the Employment of Foreign Nationals (Besluit uitvoering Wet arbeid vreemdelingen), under which a work permit is required for the hiring-out of workers as referred to in Article 1(3)(c) of Directive 96/71/EC? (1)

| 2. | On the basis of what criteria should it be determined whether workers have been hired out within the meaning of Article 1(3)(c) of Directive 96/71/EC? |
| --- | --- |

2.

On the basis of what criteria should it be determined whether workers have been hired out within the meaning of Article 1(3)(c) of Directive 96/71/EC?

---

(1)  Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services (OJ 1997 L 18, p. 1).

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/34 |
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Reference for a preliminary ruling from the Raad van State (Netherlands), lodged on 3 August 2009 — Olbek Industrial Services sp. z.o.o.; other party: Minister van Sociale Zaken en Werkgelegenheid

(Case C-309/09)

2009/C 267/64

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Appellant: Olbek Industrial Services sp. z o.o.

Other party: Minister van Sociale Zaken en Werkgelegenheid

Questions referred

| 1. | Must Articles 49 EC and 50 EC be interpreted as precluding a national arrangement, as set out in Article 2 of the Netherlands Law on the Employment of Foreign Nationals (Wet arbeid vreemdelingen), read in conjunction with Article 1e(1)(c) of the Decree implementing the Law on the Employment of Foreign Nationals (Besluit uitvoering Wet arbeid vreemdelingen), under which a work permit is required for the hiring-out of workers as referred to in Article 1(3)(c) of Directive 96/71/EC? (1) |
| --- | --- |

1.

Must Articles 49 EC and 50 EC be interpreted as precluding a national arrangement, as set out in Article 2 of the Netherlands Law on the Employment of Foreign Nationals (Wet arbeid vreemdelingen), read in conjunction with Article 1e(1)(c) of the Decree implementing the Law on the Employment of Foreign Nationals (Besluit uitvoering Wet arbeid vreemdelingen), under which a work permit is required for the hiring-out of workers as referred to in Article 1(3)(c) of Directive 96/71/EC? (1)

| 2. | On the basis of what criteria should it be determined whether workers have been hired out within the meaning of Article 1(3)(c) of Directive 96/71/EC? |
| --- | --- |

2.

On the basis of what criteria should it be determined whether workers have been hired out within the meaning of Article 1(3)(c) of Directive 96/71/EC?

---

(1)  Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services (OJ 1997 L 18, p. 1).

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/35 |
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Official Journal of the European Union

C 267/35

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Reference for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 7 August 2009 — Stadt Graz v Strabag AG, Teerag-Asdag AG, Bauunternehmung Granit GesmbH

(Case C-314/09)

2009/C 267/65

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Appellant: Stadt Graz

Respondents: Strabag AG, Teerag-Asdag AG, Bauunternehmung Granit GesmbH

Questions referred

| 1. | Does Article 1(1)(c) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, (1) or other provisions of that directive, preclude a national rule under which damages claims for the contracting authority’s infringement of Community procurement law are subject to the requirement of fault, also where that rule is applied to the effect that in principle fault on the part of organs of the contracting authority is to be assumed and its reliance on the absence of individual abilities, and thus to a lack of personal fault, is excluded? |
| --- | --- |

1.

Does Article 1(1)(c) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, (1) or other provisions of that directive, preclude a national rule under which damages claims for the contracting authority’s infringement of Community procurement law are subject to the requirement of fault, also where that rule is applied to the effect that in principle fault on the part of organs of the contracting authority is to be assumed and its reliance on the absence of individual abilities, and thus to a lack of personal fault, is excluded?

| 2. | If question 1 is answered in the negative:
  Is Article 2(7) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts to be interpreted as meaning that, for the purposes of the obligation in it to ensure the effective enforcement of decisions taken in review procedures, the decision of a procurement review body binds all parties to the procedure, thus also including the contracting authority? |
| --- | --- |

2.

If question 1 is answered in the negative:

Is Article 2(7) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts to be interpreted as meaning that, for the purposes of the obligation in it to ensure the effective enforcement of decisions taken in review procedures, the decision of a procurement review body binds all parties to the procedure, thus also including the contracting authority?

| 3. | If question 2 is answered in the affirmative:
  Is it permissible under Article 2(7) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts for the contracting authority to disregard a final decision of a procurement review body, or is it even obliged to disregard it and, if so, under what conditions? |
| --- | --- |

3.

If question 2 is answered in the affirmative:

Is it permissible under Article 2(7) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts for the contracting authority to disregard a final decision of a procurement review body, or is it even obliged to disregard it and, if so, under what conditions?

---

(1)  OJ 1989 L 395, p. 33.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/35 |
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Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 10 August 2009 — MSD Sharp & Dohme GmbH v Merckle GmbH

(Case C-316/09)

2009/C 267/66

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: MSD Sharp & Dohme GmbH

Defendant: Merckle GmbH

Question referred

The following question relating to the interpretation of Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use, (1) most recently amended by Directive 2008/89/EC of the European Parliament and of the Council of 11 March 2008, (2) is hereby referred to the Court of Justice of the European Communities for a preliminary ruling:

Does the scope of application of Article 88(1)(a) of Directive 2001/83/EC on the Community code relating to medicinal products for human use extend to the advertising to the general public of medicinal products which are available only on prescription where that advertising contains only information which was placed before the authorising authority in the course of the marketing authorisation procedure and which is accessible in any event to every person acquiring the product, and where that information is not made available to an interested party on an unsolicited basis but can be accessed only through the internet when the party concerned takes steps to do so?

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(1)  OJ 2001 L 311, p. 67.

(2)  OJ 2008 L 81, p. 51.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/36 |
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7.11.2009

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Official Journal of the European Union

C 267/36

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Appeal brought on 10 August 2009 by ArchiMEDES against the judgment of the Court of First Instance (Fifth Chamber) delivered on 10 June 2009 in Joined Cases T-396/05 and T-397/05 ArchiMEDES v Commission

(Case C-317/09 P)

2009/C 267/67

Language of the case: French

Parties

Appellant: Architecture, Microclimat, Énergies Douces Europe et Sud, sarl (ArchiMEDES) (represented by: P.-P. Van Gehuchten, avocat)

Other party to the proceedings: Commission of the European Communities

Form of order sought

ArchiMEDES requests the Court of Justice of the European Communities to set aside the judgment delivered on 10 June 2009 by the Court of First Instance of the European Communities in Joined Cases T-396/05 and T-397/05 and grant the appellant's actions by which it sought:

| — | annulment of the Commission's decision contained in a letter of 5 October 2005, notified to the applicant on 10 October 2005, to impose a set-off of their reciprocal claims, and |
| --- | --- |

—

annulment of the Commission's decision contained in a letter of 5 October 2005, notified to the applicant on 10 October 2005, to impose a set-off of their reciprocal claims, and

| — | annulment of the recovery decision contained in the letters of 30 August 2005 and debit note No 3240705638 of 23 August 2005, notified to the applicant on 2 September 2005, |
| --- | --- |

—

annulment of the recovery decision contained in the letters of 30 August 2005 and debit note No 3240705638 of 23 August 2005, notified to the applicant on 2 September 2005,

| — | annulment of the Commission's decision to terminate the contract of 30 August 2005, |
| --- | --- |

—

annulment of the Commission's decision to terminate the contract of 30 August 2005,

| — | an order for the Commission to pay the sum of EUR 125 906, plus statutory default interest since 12 February 2002, |
| --- | --- |

—

an order for the Commission to pay the sum of EUR 125 906, plus statutory default interest since 12 February 2002,

| — | in the alternative, an order for the Commission to pay the sum of EUR 103 551,90, plus statutory default interest since 12 February 2002, |
| --- | --- |

—

in the alternative, an order for the Commission to pay the sum of EUR 103 551,90, plus statutory default interest since 12 February 2002,

and an order for the Commission to pay all the costs of the proceedings.

Pleas in law and main arguments

ArchiMEDES raises four grounds in support of its appeal.

By its first ground of appeal, concerning its application for annulment of the decision to set-off their claims contained in the letter of 5 October 2005, the appellant alleges the infringement, by the Court of First Instance, of Article 230 EC, Article 1291 of the French Civil Code and an erroneous or a lack of reasoning of the judgment under appeal. In its view, the set-off decision is an act which may be challenged under Article 230 EC and the decision adopted by the Commission in the present case was taken without complying with the conditions set out in Article 1291 of the French Civil Code governing the contract entered into by ArchiMEDES and the Commission, according to which, if a claim is disputed, that claim only becomes certain from the point in time at which a judgment is delivered ordering the debtor to pay the creditor the sum claimed. Therefore, the Court of First Instance misconstrued those provisions in finding that the appellant was no longer able to seek annulment of the decision of 5 October 2005 since the latter constituted an unlawful unilateral act.

By its second ground of appeal, the appellant alleges an infringement of Article 6 of the European Convention for the Protection of Human Rights, Article 64 of the Rules of Procedure of the Court of First Instance, the general principle of litis denuntiatio, the rights of the defence and the right to a fair hearing in that, without giving any reasons, the Court of First Instance refused to grant the appellant's claim seeking that a comparison be made with the other parties to the contract and that the judgment be the same for all of them. In effect, that refusal means that the multiple parties to a contract with the Commission are no longer placed on a level playing field since the Commission could, where appropriate, bring its action against all its co-contractors whereas that possibility does not exist in the case where the action is brought against only one of the contracting parties.

By its third ground of appeal, which is divided into two parts, the appellant claims that the Court of First Instance infringed Article 1134 and 1165 of the Civil Code, the principle that documents must be construed in accordance with their actual terms, Articles 1.1 and 10 of contract BU/209/95, Articles 2.1, 2.2, 21.1 and 21.4 of Annex II to the contract and the erroneous or lack of reasoning of the judgment under appeal. The appellant submits that the Court of First Instance infringed the above cited provisions, first, by dissociating the rights and duties of the various contractors even though they are jointly and severally responsible for performing contract BU/209/95 and, second, by assessing the applicant as a third party to the contract because of its status as a subcontractor, even though it is definitely a contracting party.

By its fourth ground of appeal, the appellant claims that the Court of First Instance infringed Articles 1134 and 1184 of the Civil Code, the principle that documents must be construed in accordance with their actual terms, and Article 5 of Annex II to contract BU/209/95. Also it claims that there was a lack of reasoning and a contradiction in the judgment under appeal in that the Court of First Instance granted the Commission the right to terminate the contract of 30 August 2005 unilaterally although it stated that the final report was tacitly approved by the Commission more than three years earlier.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/37 |
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Official Journal of the European Union

C 267/37

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Appeal brought on 11 August 2009 by A2A SpA, formerly ASM Brescia SpA, against the judgment of the Court of First Instance (Eighth Chamber, Extended Composition) delivered on 11 June 2009 in Case T-189/03 ASM Brescia SpA v Commission of the European Communities

(Case C-318/09 P)

2009/C 267/68

Language of the case: Italian

Parties

Appellant: A2A SpA, formerly ASM Brescia SpA (represented by: A. Santa Maria, A. Giardina, C. Croff and G. Pizzonia, avvocati)

Other party to the proceedings: Commission of the European Communities

Form of order sought

| — | Set aside the judgment in Case T-189/03 (‘the judgment’) on the ground that it infringes Community law, in particular Article 87 of the EC Treaty, and fails to state adequate reasons, in so far as it classifies the three-year income tax exemption as State aid; |
| --- | --- |

—

Set aside the judgment in Case T-189/03 (‘the judgment’) on the ground that it infringes Community law, in particular Article 87 of the EC Treaty, and fails to state adequate reasons, in so far as it classifies the three-year income tax exemption as State aid;

| — | set aside the judgment on the ground that it applies Community law in a manner that is incorrect and contradictory, in so far as it does not classify the three-year income tax exemption as existing aid; |
| --- | --- |

—

set aside the judgment on the ground that it applies Community law in a manner that is incorrect and contradictory, in so far as it does not classify the three-year income tax exemption as existing aid;

| — | set aside the judgment on the ground that it infringes Community law, in so far as it finds that the order for recovery in the decision is lawful; and, accordingly, |
| --- | --- |

—

set aside the judgment on the ground that it infringes Community law, in so far as it finds that the order for recovery in the decision is lawful; and, accordingly,

| — | annul the Decision (1) in so far as it finds that the transitional scheme ensuring fiscal continuity for public utilities with majority public shareholdings constitutes State aid incompatible with the common market (Article 2 of the Decision) and/or in so far as it orders Italy to recover that aid from the beneficiaries (Article 3 of the Decision); |
| --- | --- |

—

annul the Decision (1) in so far as it finds that the transitional scheme ensuring fiscal continuity for public utilities with majority public shareholdings constitutes State aid incompatible with the common market (Article 2 of the Decision) and/or in so far as it orders Italy to recover that aid from the beneficiaries (Article 3 of the Decision);

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

—

order the Commission to pay the costs.

Pleas in law and main argument

| 1. | By its first ground of appeal, A2A SpA alleges that the Court of First Instance infringed Article 87(1) EC and failed to state adequate reasons, in so far as the judgment classifies the three-year income tax exemption as State aid. In particular, according to the appellant, the Commission failed to demonstrate in the Decision that, in the circumstances of the case, two of the conditions laid down in Article 87(1) EC, namely the distortion of competition and the effect on trade between Member States, are satisfied. Moreover, the Court of First Instance failed properly to verify the assumptions on which the Commission based its conclusion that the measure in question was to be classified as ‘aid’, which it was, in fact, required to do in accordance with its duty to carry out a ‘comprehensive’ review imposed by Community case-law. |
| --- | --- |

1.

By its first ground of appeal, A2A SpA alleges that the Court of First Instance infringed Article 87(1) EC and failed to state adequate reasons, in so far as the judgment classifies the three-year income tax exemption as State aid. In particular, according to the appellant, the Commission failed to demonstrate in the Decision that, in the circumstances of the case, two of the conditions laid down in Article 87(1) EC, namely the distortion of competition and the effect on trade between Member States, are satisfied. Moreover, the Court of First Instance failed properly to verify the assumptions on which the Commission based its conclusion that the measure in question was to be classified as ‘aid’, which it was, in fact, required to do in accordance with its duty to carry out a ‘comprehensive’ review imposed by Community case-law.

| 2. | By its second ground of appeal, in the alternative, the appellant alleges infringement by the Court of First Instance of Article 88 EC and of its duty to state reason and, at the same time, seeks the annulment of the judgment in so far as it classifies the three-year income tax exemption as ‘new aid’. In particular, the Court of First Instance, blindly repeating the Commission’s findings, did not accept that the three-year exemption measures in favour of municipal undertakings converted into public limited companies may be regarded as ‘existing aid’. Instead, it reached the opposite conclusion, considering that the tax exemption scheme in question, which was introduced before the entry into force of the EC Treaty, also applied to municipal undertakings, which, as the Commission itself accepted, constitute the same economic entities as the companies set up under Law No 142/90. |
| --- | --- |

2.

By its second ground of appeal, in the alternative, the appellant alleges infringement by the Court of First Instance of Article 88 EC and of its duty to state reason and, at the same time, seeks the annulment of the judgment in so far as it classifies the three-year income tax exemption as ‘new aid’. In particular, the Court of First Instance, blindly repeating the Commission’s findings, did not accept that the three-year exemption measures in favour of municipal undertakings converted into public limited companies may be regarded as ‘existing aid’. Instead, it reached the opposite conclusion, considering that the tax exemption scheme in question, which was introduced before the entry into force of the EC Treaty, also applied to municipal undertakings, which, as the Commission itself accepted, constitute the same economic entities as the companies set up under Law No 142/90.

| 3. | Finally, by its third ground of appeal, A2A submits, in the further alternative, that the judgment should be set aside on the ground that it infringes Community law and Community law principles, in so far as it finds that the order for recovery in the Decision is lawful. According to the appellant, the judgment should be set aside in that, in contrast with previous decisions of the Community judicature, it upholds the lawfulness of the general order for recovery in the Decision and, essentially, finds that the national authorities do not have any discretion whatsoever in the matter. |
| --- | --- |

3.

Finally, by its third ground of appeal, A2A submits, in the further alternative, that the judgment should be set aside on the ground that it infringes Community law and Community law principles, in so far as it finds that the order for recovery in the Decision is lawful. According to the appellant, the judgment should be set aside in that, in contrast with previous decisions of the Community judicature, it upholds the lawfulness of the general order for recovery in the Decision and, essentially, finds that the national authorities do not have any discretion whatsoever in the matter.

---

(1)  Commission Decision 2003/193/EC of 5 June 2002 on State aid granted by Italy in the form of tax exemptions and subsidised loans to public utilities with a majority public capital holding (OJ 2003 L 77, p. 21).

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/38 |
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7.11.2009

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Official Journal of the European Union

C 267/38

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Appeal brought on 11 August 2009 by ACEA SpA against the judgment of the Court of First Instance (Eighth Chamber, Extended Composition) delivered on 11 June 2009 in Case T-297/02 ACEA S.p.A. v Commission of the European Communities

(Case C-319/09 P)

2009/C 267/69

Language of the case: Italian

Parties

Appellant: ACEA SpA (represented by: L. Radicati di Brozolo, A. Giardina and T. Ubaldi, avvocati)

Other parties to the proceedings: Commission of the Euroean Communities, ACSM Como SpA, AEM — Azienda Energetica Metropolitana Torino SpA

Form of order sought

| — | Set aside the judgment in Case T-297/02 (‘the judgment’) in so far as it omits to criticise the failure to carry out a differentiated examination of the various situations in which the three-year income tax exemption was applicable and upholds the general and abstract classification of the three-year exemption as State aid; |
| --- | --- |

—

Set aside the judgment in Case T-297/02 (‘the judgment’) in so far as it omits to criticise the failure to carry out a differentiated examination of the various situations in which the three-year income tax exemption was applicable and upholds the general and abstract classification of the three-year exemption as State aid;

| — | set aside the judgment in so far as it fails to recognise that the three-year income tax exemption should be classified as existing aid within the meaning of Article 1(b)(v) of Regulation (EC) No 659/1999; (1) |
| --- | --- |

—

set aside the judgment in so far as it fails to recognise that the three-year income tax exemption should be classified as existing aid within the meaning of Article 1(b)(v) of Regulation (EC) No 659/1999; (1)

| — | set aside the judgment in so far as it finds that the order for recovery in Article 3 of the decision is lawful; (2) |
| --- | --- |

—

set aside the judgment in so far as it finds that the order for recovery in Article 3 of the decision is lawful; (2)

| — | order the Commission to pay the costs of the proceedings at first instance and the appeal proceedings. |
| --- | --- |

—

order the Commission to pay the costs of the proceedings at first instance and the appeal proceedings.

Pleas in law and main arguments

The appellant relies on four grounds of appeal in support of its claims:

The first ground concerns an error of law in the application of Article 88 EC and Regulation (EC) No 659/1999 and a failure to state adequate reasons in the judgment under appeal, with reference to the failure to carry out a differentiated examination of the various situations in which the three-year income tax exemption provided for in Article 3(70) of Law No 549/1995 and Article 66(14) of Decree Law No 331/1993 was applicable. The Court of First Instance erred in law and failed to state adequate reasons in that, in the light of the particular circumstances of the case and the information available to the Commission, it failed to criticise the abstract and incomplete nature of the investigation and the conclusions reached by the Commission in the contested decision by reference to the various situations in which the tax exemption was applicable.

The second ground concerns the misapplication by the Court of First Instance of Article 87(1) EC and its failure to state adequate reasons in so far as it upheld the general and abstract classification of the three-year exemption as State aid. In particular, the Court of First Instance failed properly to verify the circumstances of the case and the assumptions on which the Commission based its decision to classify the measure in question as aid, which it was, in fact, required to do in accordance with its duty to carry out a comprehensive review. The Court of First Instance therefore confirmed the Commission’s decision without it having been demonstrated, at least by reference to certain sectors affected by the exemption, that two of the conditions laid down in Article 87(1) EC had been satisfied: that the measure in question was capable of distorting competition and adversely affecting trade between Member States.

The third ground relates to insufficient and contradictory reasoning and an error of law in the interpretation and application of Article 88(1) EC and Article 1(b)(v) of Regulation (EC) No 659/1999 on account of the fact that the three-year income tax exemption was classified as new aid. The Court of First Instance did not criticise the failure in the present case to classify the measure in question as existing aid within the meaning of Article 1(b)(v) of Regulation (EC) No 659/1999, even though it is apparent from the context and the circumstances of the case, at least as regards some of the sectors affected by the three-year exemption, that the classification of the measure as new aid was not justified.

The fourth ground concerns an error of law and defective reasoning with regard to the lawfulness of the order for recovery in Article 3 of the contested decision. In view of the circumstances of the case, the Court of First Instance erred in finding that the order for recovery in the enacting terms of the decision could be applied in the broadest possible terms and unconditionally, even though the decision contained merely an abstract, general and incomplete assessment of the tax exemption.

---

(1)  Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).

(2)  Commission Decision 2003/193/EC of 5 June 2002 on State aid granted by Italy in the form of tax exemptions and subsidised loans to public utilities with a majority public capital holding (OJ 2003 L 77, p. 21).

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/39 |
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7.11.2009

EN

Official Journal of the European Union

C 267/39

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Appeal brought on 11 August 2009 by A2A SpA, formerly ASM Brescia SpA, against the judgment of the Court of First Instance (Eighth Chamber, Extended Composition) delivered on 11 June 2009 in Case T-301/02 AEM v Commission

(Case C-320/09 P)

2009/C 267/70

Language of the case: Italian

Parties

Appellant: A2A SpA, formrely ASM Brescia SpA (represented by: A. Giardina, A. Santa Maria, C. Croff and G. Pizzonia, avvocati)

Other party to the proceedings: Commission of the European Communities

Form of order sought

| — | Set aside the judgment in Case T 301/02 (‘the judgment’) on the ground that it infringes Community law, in particular Article 87 of the EC Treaty, and fails to state adequate reasons, in so far as it classifies the three-year income tax exemption as State aid; |
| --- | --- |

—

Set aside the judgment in Case T 301/02 (‘the judgment’) on the ground that it infringes Community law, in particular Article 87 of the EC Treaty, and fails to state adequate reasons, in so far as it classifies the three-year income tax exemption as State aid;

| — | set aside the judgment on the ground that it applies Community law in a manner that is incorrect and contradictory, in so far as it does not classify the three-year income tax exemption as existing aid; |
| --- | --- |

—

set aside the judgment on the ground that it applies Community law in a manner that is incorrect and contradictory, in so far as it does not classify the three-year income tax exemption as existing aid;

| — | set aside the judgment on the ground that it infringes Community law, in so far as it finds that the order for recovery in the Decision (1) is lawful; and, accordingly, |
| --- | --- |

—

set aside the judgment on the ground that it infringes Community law, in so far as it finds that the order for recovery in the Decision (1) is lawful; and, accordingly,

| — | annul the Decision in so far as it finds that the transitional scheme ensuring fiscal continuity for public utilities with majority public shareholdings constitutes unlawful State aid incompatible with the common market (Article 2 of the Decision) and/or in so far as it orders Italy to recover that aid from the beneficiaries (Article 3 of the Decision); |
| --- | --- |

—

annul the Decision in so far as it finds that the transitional scheme ensuring fiscal continuity for public utilities with majority public shareholdings constitutes unlawful State aid incompatible with the common market (Article 2 of the Decision) and/or in so far as it orders Italy to recover that aid from the beneficiaries (Article 3 of the Decision);

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

—

order the Commission to pay the cots.

Pleas in law and main arguments

By its first ground of appeal, A2A SpA alleges that the Court of First Instance infringed Article 87(1) EC and failed to state adequate reasons, in so far as the judgment classifies the three-year income tax exemption as State aid. In particular, according to the appellant, the Commission failed to demonstrate in the Decision that, in the circumstances of the case, two of the conditions laid down in Article 87(1) EC, namely the distortion of competition and the effect on trade between Member States, are satisfied. The Court of First Instance failed properly to verify the assumptions on which the Commission based its conclusion that the measure in question was to be classified as ‘aid’, which it was, in fact, required to do in accordance with its duty to carry out a ‘comprehensive’ review imposed by Community case-law.

By its second ground of appeal, in the alternative, the appellant alleges infringement by the Court of First Instance of Article 88 EC and of its duty to state reason and, at the same time, seeks the annulment of the judgment in so far as it classifies the three-year income tax exemption as ‘new aid’. In particular, the Court of First Instance, blindly repeating the Commission’s findings, did not accept that the three-year exemption measures in favour of municipal undertakings converted into public limited companies may be regarded as ‘existing aid’. Instead, it reached the opposite conclusion, considering that the tax exemption scheme in question, which was introduced before the entry into force of the EC Treaty, also applied to municipal undertakings, which, as the Commission itself accepted, constitute the same economic entities as the companies set up under Law No 142/90.

Finally, by its third ground of appeal, A2A submits, in the further alternative, that the judgment should be set aside on the ground that it infringes Community law and Community law principles, in so far as it finds that the order for recovery in the Decision is lawful. According to the appellant, the judgment should be set aside in that, in contrast with previous decisions of the Community judicature, it upholds the lawfulness of the general order for recovery in the Decision and, essentially, finds that the national authorities do not have any discretion whatsoever in the matter.

---

(1)  Commission Decision 2003/193/EC of 5 June 2002 on State aid granted by Italy in the form of tax incentives and subsidised loans to public utilities with a majority public capital holding (OJ 2003 L 77, p. 21).

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/40 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/40

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Reference for a preliminary ruling from High Court of Justice (England and Wales), Chancery Division, made on 12 August 2009 — L'Oréal SA, Lancôme parfums et beauté & Cie SNC, Laboratoire Garnier & Cie, L'Oréal (UK) Limited v eBay International AG, eBay Europe SARL, eBay (UK) Limited, Stephan Potts, Tracy Ratchford, Marie Ormsby, James Clarke, Joanna Clarke, Glen Fox, Rukhsana Bi

(Case C-324/09)

2009/C 267/71

Language of the case: English

Referring court

High Court of Justice (England and Wales), Chancery Division

Parties to the main proceedings

Applicants: L'Oréal SA, Lancôme parfums et beauté & Cie SNC, Laboratoire Garnier & Cie, L'Oréal (UK) Limited

Defendants: eBay International AG, eBay Europe SARL, eBay (UK) Limited, Stephan Potts, Tracy Ratchford, Marie Ormsby, James Clarke, Joanna Clarke, Glen Fox, Rukhsana Bi

Questions referred

| 1. | Where perfume and cosmetic testers (i.e. samples for use in demonstrating products to consumers in retail outlets) and dramming bottles (i.e. containers from which small aliquots can be taken for supply to consumers as free samples) which are not intended for sale to consumers (and are often marked ‘not for sale’ or ‘not for individual sale’) are supplied without charge to the trade mark proprietor's authorised distributors, are such goods ‘put on the market’ within the meaning of Article 7(1) of First Council Directive 89/104/EEC (1) of 21 December 1988 (‘the Trade Marks Directive’) and Article 13(1) of Council Regulation 40/94 (2) of 20 December 1993 on the Community trade mark (‘the CTM Regulation’)? |
| --- | --- |

1.

Where perfume and cosmetic testers (i.e. samples for use in demonstrating products to consumers in retail outlets) and dramming bottles (i.e. containers from which small aliquots can be taken for supply to consumers as free samples) which are not intended for sale to consumers (and are often marked ‘not for sale’ or ‘not for individual sale’) are supplied without charge to the trade mark proprietor's authorised distributors, are such goods ‘put on the market’ within the meaning of Article 7(1) of First Council Directive 89/104/EEC (1) of 21 December 1988 (‘the Trade Marks Directive’) and Article 13(1) of Council Regulation 40/94 (2) of 20 December 1993 on the Community trade mark (‘the CTM Regulation’)?

| 2. | Where the boxes (or other outer packaging) have been removed from perfumes and cosmetics without the consent of the trade mark proprietor, does this constitute a ‘legitimate reason’ for the trade mark proprietor to oppose further commercialization of the unboxed products within the meaning of Article 7(2) of the Trade Mark Directive and Article 13(2) of the CTM Regulation? |
| --- | --- |

2.

Where the boxes (or other outer packaging) have been removed from perfumes and cosmetics without the consent of the trade mark proprietor, does this constitute a ‘legitimate reason’ for the trade mark proprietor to oppose further commercialization of the unboxed products within the meaning of Article 7(2) of the Trade Mark Directive and Article 13(2) of the CTM Regulation?

| 3. | Does it make a difference to the answer to question to 2 above if:






  (a) | as a result of the removal of the boxes (or other outer packaging), the unboxed products do not bear the information required by Article 6(1) of Council Directive 76/768/EEC (3) of 27 July 1976 (‘the Cosmetics Products Directive’), and in particular do not bear a list of ingredients or a ‘best before date’? |
| --- | --- | --- |

3.

Does it make a difference to the answer to question to 2 above if:

(a)

as a result of the removal of the boxes (or other outer packaging), the unboxed products do not bear the information required by Article 6(1) of Council Directive 76/768/EEC (3) of 27 July 1976 (‘the Cosmetics Products Directive’), and in particular do not bear a list of ingredients or a ‘best before date’?

| (b) | as a result of the absence of such information, the offer for sale or sale of the unboxed products constitutes a criminal offence according to the law of the member state of the Community in which they are offered for sale or sold by third parties? |
| --- | --- |

(b)

as a result of the absence of such information, the offer for sale or sale of the unboxed products constitutes a criminal offence according to the law of the member state of the Community in which they are offered for sale or sold by third parties?

| 4. | Does it make a difference to the answer to question 2 above if the further commercialization damages, or is likely to damage, the image of the goods and hence the reputation of the trademark? If so, is that effect to be presumed, or is it required to be proved by the trade mark proprietor? |
| --- | --- |

4.

Does it make a difference to the answer to question 2 above if the further commercialization damages, or is likely to damage, the image of the goods and hence the reputation of the trademark? If so, is that effect to be presumed, or is it required to be proved by the trade mark proprietor?

| 5. | Where a trader which operates an online marketplace purchases the use of a sign which is identical to a registered trade mark as a keyword from a search engine operator so that the sign is displayed to a user by the search engine in a sponsored link to the website of the operator of the online marketplace, does the display of the sign in the sponsored link constitute ‘use’ of the sign within the meaning of Article 5(l)(a) of the Trade Marks Directive and Article 9(l)(a) of the CTM Regulation? |
| --- | --- |

5.

Where a trader which operates an online marketplace purchases the use of a sign which is identical to a registered trade mark as a keyword from a search engine operator so that the sign is displayed to a user by the search engine in a sponsored link to the website of the operator of the online marketplace, does the display of the sign in the sponsored link constitute ‘use’ of the sign within the meaning of Article 5(l)(a) of the Trade Marks Directive and Article 9(l)(a) of the CTM Regulation?

| 6. | Where clicking on the sponsored link referred to in question 5 above leads the user directly to advertisements or offers for sale of goods identical to those for which the trade mark is registered under the sign placed on the website by other parties, some of which infringe the trade mark and some which do not infringe the trade mark by virtue of the differing statuses of the respective goods, does that constitute use of the sign by the operator of the online marketplace ‘in relation to’ the infringing goods within the meaning of 5(l)(a) of the Trade Marks Directive and Article 9(l)(a) of the CTM Regulation? |
| --- | --- |

6.

Where clicking on the sponsored link referred to in question 5 above leads the user directly to advertisements or offers for sale of goods identical to those for which the trade mark is registered under the sign placed on the website by other parties, some of which infringe the trade mark and some which do not infringe the trade mark by virtue of the differing statuses of the respective goods, does that constitute use of the sign by the operator of the online marketplace ‘in relation to’ the infringing goods within the meaning of 5(l)(a) of the Trade Marks Directive and Article 9(l)(a) of the CTM Regulation?

| 7. | Where the goods advertised and offered for sale on the website referred to in question 6 above include goods which have not been put on the market within the EEA by or with the consent of the trade mark proprietor, is it sufficient for such use to fall within the scope of Article 5(l)(a) of the Trade Marks Directive and Article 9(l)(a) of the CTM Regulation and outside Article 7(1) of the Trade Mark Directive and Article 13(1) of the CTM Regulation that the advertisement or offer for sale is targeted at consumers in the territory covered by the trade mark or must the trade mark proprietor show that the advertisement or offer for sale necessarily entails putting the goods in question on the market within the territory covered by the trade mark? |
| --- | --- |

7.

Where the goods advertised and offered for sale on the website referred to in question 6 above include goods which have not been put on the market within the EEA by or with the consent of the trade mark proprietor, is it sufficient for such use to fall within the scope of Article 5(l)(a) of the Trade Marks Directive and Article 9(l)(a) of the CTM Regulation and outside Article 7(1) of the Trade Mark Directive and Article 13(1) of the CTM Regulation that the advertisement or offer for sale is targeted at consumers in the territory covered by the trade mark or must the trade mark proprietor show that the advertisement or offer for sale necessarily entails putting the goods in question on the market within the territory covered by the trade mark?

| 8. | Does it make any difference to the answers to questions 5-7 above if the use complained of by the trade mark proprietor consists of the display of the sign on the website of the operator of the online marketplace itself rather than in a sponsored link? |
| --- | --- |

8.

Does it make any difference to the answers to questions 5-7 above if the use complained of by the trade mark proprietor consists of the display of the sign on the website of the operator of the online marketplace itself rather than in a sponsored link?

| 9. | If it is sufficient for such use to fall within the scope of Article 5(l)(a) of the Trade Marks Directive and Article 9(l)(a) of the CTM Regulation and outside Article 7(1) of the Trade Mark Directive and Article 13(1) of the CTM Regulation that the advertisement or offer for sale is targeted at consumers in the territory covered by the trade mark:






  (a) | does such use consist of or include ‘the storage of information provided by a recipient of the service’ within the meaning of Article 14(1) of the E-Commerce Directive? |
| --- | --- | --- |

9.

If it is sufficient for such use to fall within the scope of Article 5(l)(a) of the Trade Marks Directive and Article 9(l)(a) of the CTM Regulation and outside Article 7(1) of the Trade Mark Directive and Article 13(1) of the CTM Regulation that the advertisement or offer for sale is targeted at consumers in the territory covered by the trade mark:

(a)

does such use consist of or include ‘the storage of information provided by a recipient of the service’ within the meaning of Article 14(1) of the E-Commerce Directive?

| (b) | if the use does not consist exclusively of activities falling within the scope of Article 14(1) of the E-Commerce Directive, but includes such activities, is the operator of the online marketplace exempted from liability to the extent that the use consists of such activities and if so may damages or other financial remedies be granted in respect of such use to the extent that it is not exempted from liability? |
| --- | --- |

(b)

if the use does not consist exclusively of activities falling within the scope of Article 14(1) of the E-Commerce Directive, but includes such activities, is the operator of the online marketplace exempted from liability to the extent that the use consists of such activities and if so may damages or other financial remedies be granted in respect of such use to the extent that it is not exempted from liability?

| (c) | in circumstances where the operator of the online marketplace has knowledge that goods have been advertised, offered for sale and sold on its website in infringement of registered trade marks, and that infringements of such registered trade marks are likely to continue to occur through the advertisement, offer for sale and sale of the same or similar goods by the same or different users of the website, does this constitute ‘actual knowledge’ or ‘awareness’ within the meaning of Article 14(1) of the E-Commerce Directive? |
| --- | --- |

(c)

in circumstances where the operator of the online marketplace has knowledge that goods have been advertised, offered for sale and sold on its website in infringement of registered trade marks, and that infringements of such registered trade marks are likely to continue to occur through the advertisement, offer for sale and sale of the same or similar goods by the same or different users of the website, does this constitute ‘actual knowledge’ or ‘awareness’ within the meaning of Article 14(1) of the E-Commerce Directive?

| 10. | Where the services of an intermediary such as an operator of a website have been used by a third party to infringe a registered trade mark, does Article 11 of European Parliament and Council Directive 2004/48 (4) of 29 April 2004 on the enforcement of intellectual property rights (‘the Enforcement Directive’) require Member States to ensure that the trade mark proprietor can obtain an injunction against the intermediary to prevent further infringements of the said trade mark, as opposed to continuation of that specific act of infringement, and if so what is the scope of the injunction that shall be made available? |
| --- | --- |

10.

Where the services of an intermediary such as an operator of a website have been used by a third party to infringe a registered trade mark, does Article 11 of European Parliament and Council Directive 2004/48 (4) of 29 April 2004 on the enforcement of intellectual property rights (‘the Enforcement Directive’) require Member States to ensure that the trade mark proprietor can obtain an injunction against the intermediary to prevent further infringements of the said trade mark, as opposed to continuation of that specific act of infringement, and if so what is the scope of the injunction that shall be made available?

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(1)  First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks

OJ L 40, p. 1

(2)  OJ L 11, p. 1

(3)  Council Directive 76/768/EEC of 27 July 1976 on the approximation of the laws of the Member States relating to cosmetic products

OJ L 262, p. 169

(4)  OJ L 157, p. 45

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/41 |
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7.11.2009

EN

Official Journal of the European Union

C 267/41

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Appeal brought on 17 August 2009 by Iride SpA, formerly AMGA SpA, against the judgment of the Court of First Instance (Eighth Chamber, extended Composition) delivered on 11 June 2009 in Case T-300/02 AMGA v Commission

(Case C-329/09 P)

2009/C 267/72

Language of the case: Italian

Parties

Appellant: Iride SpA, formerly AMGA SpA (represented by L. Radicati di Brozolo and T. Ubaldi, avvocati)

Other party to the proceedings: Commission of the European Communities

Form of order sought

| — | setting aside of the judgment in Case T-300/02 for distortion of the evidence in the file and error in the legal conclusions drawn by the Court of First Instance from that evidence in so far as it declares that the contested decision (1) is not of individual concern to Azienda Mediterranea Gas e Acqua S.p.A. (AMGA) and that the action brought by the latter in Case T300/02 is inadmissible; |
| --- | --- |

—

setting aside of the judgment in Case T-300/02 for distortion of the evidence in the file and error in the legal conclusions drawn by the Court of First Instance from that evidence in so far as it declares that the contested decision (1) is not of individual concern to Azienda Mediterranea Gas e Acqua S.p.A. (AMGA) and that the action brought by the latter in Case T300/02 is inadmissible;

| — | a declaration that action brought in Case T300/02 is admissible and an order referring the case back to the Court of First Instance to be dealt with on its merits, as provided for by Article 61 of the Statute of the Court of Justice; |
| --- | --- |

—

a declaration that action brought in Case T300/02 is admissible and an order referring the case back to the Court of First Instance to be dealt with on its merits, as provided for by Article 61 of the Statute of the Court of Justice;

| — | an order that the Commission should pay the costs at first instance and on appeal. |
| --- | --- |

—

an order that the Commission should pay the costs at first instance and on appeal.

Pleas in law and main arguments

In support of its appeal, Iride puts forwards a single ground of appeal, concerning distortion of the evidence in the file and an error in legal conclusions drawn by the Court of First Instance from incorrect findings made in the judgment, as provided for in Article 230(4) EC and the relevant Community case-law. In Iride’s opinion, in particular, the Court of First Instance distorted the clear sense of the evidence that the Company produced for it to evaluate in order to confirm the treatment of AGMA as an actual recipient of individual aid granted under the scheme at issue, recovery of which had been ordered by the Commission. Because of that distortion of the evidence in the file, therefore, the Court of First Instance drew the incorrect inference that the contested decision was not of individual concern to the Company and that its action was, consequently, inadmissible.

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(1)  Commission Decision 2003/193/EC of 5 June 2002 on State aid granted by Italy in the form of tax exemptions and subsidised loans to public utilities with a majority public capital holding (OJ 2003 L 77, p. 21).

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/42 |
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7.11.2009

EN

Official Journal of the European Union

C 267/42

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Reference for a preliminary ruling from the Verwaltungsgericht Meiningen (Germany) lodged on 24 August 2009 — Frank Scheffler v Landkreis Wartburgkreis

(Case C-334/09)

2009/C 267/73

Language of the case: German

Referring court

Verwaltungsgericht Meiningen

Parties to the main proceedings

Applicant: Frank Scheffler

Defendant: Landkreis Wartburgkreis

Question referred

May a Member State, in accordance with Article 1(2) and Article 8(2) and (4) of Directive 91/439/EEC, (1) exercise its authority under Article 8(2) of Directive 91/439/EEC — to apply its national provisions on the restriction, suspension, withdrawal or cancellation of the right to drive to the holder of a driving licence issued by another Member State — in relation to a certificate of aptitude to drive submitted by the holder of a driving licence issued by another Member State if the certificate was issued after the date of issue of the driving licence and is also based on an examination of the party concerned carried out after the issue of the driving licence, but relates to circumstances that took place prior to the issue of the driving licence.

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(1)  Council Directive 91/439/EEC of 29 July 1991 on driving licences (OJ L 237, 24.8.1991, p. 1).

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/42 |
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7.11.2009

EN

Official Journal of the European Union

C 267/42

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Appeal brought on 21 August 2009 by Acegas-APS SpA, formerly Acqua, Elettricità, Gas e servizi SpA (Acegas) against the judgment of the Court of First Instance (Eighth Chamber, Extended Composition) delivered on 11 June 2009 in Case T-307/02 Acegas v Commission

(Case C-341/09 P)

2009/C 267/74

Language of the case: Italian

Parties

Appellant: Acegas-APS SpA, formerly Acqua, Elettricità, Gas e servizi SpA (Acegas) (represented by F. Ferletic and F. Spitaleri, avvocati, and L. Daniele, academic lawyer)

Other party to the proceedings: Commission of the European Communities

Form of order sought

| — | setting aside of the judgment of the Court of First Instance of 11 June 2009 in Case T-307/02 ACEGAS-APS v Commission and referral of the case back to the Court of First Instance for a decision on the merits of the action; |
| --- | --- |

—

setting aside of the judgment of the Court of First Instance of 11 June 2009 in Case T-307/02 ACEGAS-APS v Commission and referral of the case back to the Court of First Instance for a decision on the merits of the action;

| — | an order that the Commission should pay the costs of the appeal and that the costs incurred in relation to the action at first instance should be reserved;
  If the Court should decide that the state of the proceedings permits it to give final judgment in the matter: |
| --- | --- |

—

an order that the Commission should pay the costs of the appeal and that the costs incurred in relation to the action at first instance should be reserved;

If the Court should decide that the state of the proceedings permits it to give final judgment in the matter:

| — | setting aside in its entirety of Commission Decision 2003/193/EC (1) of 5 June 2002 on State aid granted by Italy in the form of tax exemptions and subsidised loans to public utilities with a majority public capital holding; |
| --- | --- |

—

setting aside in its entirety of Commission Decision 2003/193/EC (1) of 5 June 2002 on State aid granted by Italy in the form of tax exemptions and subsidised loans to public utilities with a majority public capital holding;

| — | or, alternatively, annulment of Article 3 of the contested decision in so far as it requires the Italian State to recover the aid granted from the beneficiaries; |
| --- | --- |

—

or, alternatively, annulment of Article 3 of the contested decision in so far as it requires the Italian State to recover the aid granted from the beneficiaries;

| — | an order that the Commission of the European Communities should pay the costs incurred on appeal and at first instance. |
| --- | --- |

—

an order that the Commission of the European Communities should pay the costs incurred on appeal and at first instance.

Pleas in law and main arguments

First plea in law: infringement of the fourth paragraph of Article 230 EC — ACEGAS-APS found not to be individually concerned on the basis of incorrect and irrelevant factual matters

ACEGAS-APS stresses that the Court’s settled case-law makes capacity to bring an action against Commission decisions relating to aid schemes subject to two conditions: the applicant must be the actual beneficiary of aid granted under the scheme that is the subject of the decision and the decision must contain an order for recovery of the aid. ACEGAS-APS observes that in the instant case those two conditions were not satisfied. The Court of First Instance erred, therefore, in declaring inadmissible the originating application, making reference to further factual matters that were incorrect, irrelevant or foreign to the jurisdiction of that court.

Second plea in law: infringement of the fourth paragraph of Article 230 EC — the Court of First Instance wrongfully took into consideration, in determining whether the applicant was individually concerned, facts and matters of later date than the adoption of the decision

ACEGAS-APS maintains that the conditions for capacity to bring proceedings must be met when the contested decision is adopted. The Court of First Instance incorrectly, therefore, ruled that ACEGAS-ASP was not individually concerned, basing its finding on subsequent factual matters relating to the procedure undertaken by the competent Italian authorities for the recovery of the aid allegedly granted.

Third plea in law: infringement of the appellant’s rights of defence — flaws in the procedure before the Court of First Instance damaging to the appellant’s interests — distortion of the evidence — defect in that the statement of reasons is deficient and contradictory

During the proceedings at first instance, the Court of First Instance put two written questions, to ACEGAS-APS and the Italian Republic respectively, asking them to inform it of the amount of the aid allegedly received by the appellant. By asking those questions the Court of First Instance acted in breach of ACEGAS-APS’s rights of defence. Furthermore, it distorted the meaning of the replies given, which confirmed that the appellant was the ‘actual beneficiary’ of the income tax exemption scheme challenged by the Commission.

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(1)  OJ 2003 L 77, p. 21.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/43 |
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7.11.2009

EN

Official Journal of the European Union

C 267/43

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Appeal brought on 26 August 2009 by Victor Guedes — Indústria e Comércio, SA against the judgment of the Court of First Instance (Eighth Chamber) delivered on 11 June 2009 in Case T-151/08: Guedes — Indústria e Comércio v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Consorci de l'Espai Rural de Gallecs

(Case C-342/09 P)

2009/C 267/75

Language of the case: English

Parties

Appellant: Victor Guedes — Indústria e Comércio, SA (represented by: B. Braga da Cruz, advogado)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Consorci de l'Espai Rural de Gallecs

Form of order sought

The appellant claims that the Court should:

| — | Annul the decision of 11th of June 2009 of the Court of First Instance in case T-151/08 (Related matters: decision of 16th January 2008 given in case R 986/2007-2 by the Second Board of Appeal of the Office for Harmonization in the Internal Market; decision of 27th April 2007 of the Trade Mars Department of the Office for Harmonization in the Internal Market relating to Opposition Proceedings No. B 828634), also in accordance with the applicable provisions of Community law; |
| --- | --- |

—

Annul the decision of 11th of June 2009 of the Court of First Instance in case T-151/08 (Related matters: decision of 16th January 2008 given in case R 986/2007-2 by the Second Board of Appeal of the Office for Harmonization in the Internal Market; decision of 27th April 2007 of the Trade Mars Department of the Office for Harmonization in the Internal Market relating to Opposition Proceedings No. B 828634), also in accordance with the applicable provisions of Community law;

| — | Refuse the grant of the registration of Community trademark no. 3 710 597 in respect of the goods in classes 29 and 31; |
| --- | --- |

—

Refuse the grant of the registration of Community trademark no. 3 710 597 in respect of the goods in classes 29 and 31;

| — | Order the respondent to bear the costs of the proceedings |
| --- | --- |

—

Order the respondent to bear the costs of the proceedings

Pleas in law and main arguments

The decision given by the Trade Marks Department of the OHIM considered that some of the products in question are identical or display clear affinity among them, but deemed the conflicting trademarks to be distinct, without ascertaining the reputation of the earlier trademark ‘GALLO’.

The Second Board of Appeal followed this finding, mentioning that, even though the reputation of the earlier trademark ‘GALLO’ was duly proved, the trademarks in question are distinct.

The Court of First Instance of the European Communities agreed with the finding of the Board of Appeal as regards the fact that the trademarks in question display differences from a phonetic, graphic and conceptual point of view.

The Appellant does not agree with this finding, for he considers that the trademarks GALLO and GALLECS designate products which are identical or display clear affinity and are similar.

In fact, there are several decisions from Community instances which consider that trademarks which share the same initial elements are confusingly similar and thus cannot coexist in the market.

Moreover, it was considered and recognised that the trademark GALLO has a reputation, which confers enhanced distinctiveness on the earlier mark in Portugal.

Thus, there is a real possibility that the respondent would take unfair advantage of the reputation of the earlier Portuguese trademark ‘GALLO’ of the Appellant.

The appellant submits, therefore, that the contested judgment violates the provisions of Article 8 (l)(b) and (5) of the Community Trademark Regulation (CTMR).

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/44 |
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7.11.2009

EN

Official Journal of the European Union

C 267/44

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Reference for a preliminary ruling from High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court) made on 26 August 2009 — Afton Chemical Limited v Secretary of State for Transport

(Case C-343/09)

2009/C 267/76

Language of the case: English

Referring court

High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court)

Parties to the main proceedings

Applicant: Afton Chemical Limited

Defendant: Secretary of State for Transport

Questions referred

In relation to the provisions relating to metallic additives in Directive 2009/30/EC of the European Parliament and of the Council amending Directive 98/70/EC as regards the specification of petrol, diesel and gas-oil and introducing a mechanism to monitor and reduce greenhouse gas emissions from the use of road transport fuels and amending Council Directive 1999/32/EC as regards the specification of fuel used by inland waterway vessels and repealing Directive 93/12/EEC (‘the Directive’) (1):

| 1. | With reference to that part of Article 1(8) which inserts a new Article 8(a)(2) into Directive 98/70 (2) limiting the use of methylcyclopentadienyl manganese tricarbonyl in fuel to 6 mg Mn per litre from 1 January 2011 and to 2 mg from 1 January 2014, is the imposition of such limits:






  (1) | Unlawful as being based on a manifest error of assessment? |
| --- | --- | --- |

1.

With reference to that part of Article 1(8) which inserts a new Article 8(a)(2) into Directive 98/70 (2) limiting the use of methylcyclopentadienyl manganese tricarbonyl in fuel to 6 mg Mn per litre from 1 January 2011 and to 2 mg from 1 January 2014, is the imposition of such limits:

(1)

Unlawful as being based on a manifest error of assessment?

| (2) | Unlawful as being in violation of the requirements of the precautionary principle? |
| --- | --- |

(2)

Unlawful as being in violation of the requirements of the precautionary principle?

| (3) | Unlawful as lacking in proportionality? |
| --- | --- |

(3)

Unlawful as lacking in proportionality?

| (4) | Unlawful as being contrary to the principle of equal treatment? |
| --- | --- |

(4)

Unlawful as being contrary to the principle of equal treatment?

| (5) | Unlawful as being contrary to the principle of legal certainty? |
| --- | --- |

(5)

Unlawful as being contrary to the principle of legal certainty?

| 2. | With reference to that part of Article 1(8) which inserts a new Article 8(a)(4), Article 8(a)(5) and 8(a)(6) into Directive 98/70 requiring the labelling of all fuels which contain metallic additives with the phrase ‘contains metallic additives’, is the imposition of such a labelling requirement:






  (1) | Unlawful as being based on a manifest error of assessment? |
| --- | --- | --- |

2.

With reference to that part of Article 1(8) which inserts a new Article 8(a)(4), Article 8(a)(5) and 8(a)(6) into Directive 98/70 requiring the labelling of all fuels which contain metallic additives with the phrase ‘contains metallic additives’, is the imposition of such a labelling requirement:

(1)

Unlawful as being based on a manifest error of assessment?

| (2) | Unlawful as lacking in proportionality? |
| --- | --- |

(2)

Unlawful as lacking in proportionality?

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(1)  OJ L 140, p. 88

(2)  Directive 98/70/EC of the European Parliament and of the Council of 13 October 1998 relating to the quality of petrol and diesel fuels and amending Council Directive 93/12/EC, OJ L 350, p. 58

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/45 |
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7.11.2009

EN

Official Journal of the European Union

C 267/45

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Action brought on 28 August 2009 — Commission of the European Communities v Republic of Malta

(Case C-351/09)

2009/C 267/77

Language of the case: English

Parties

Applicant: Commission of the European Communities (represented by: S. Pardo Quintillán, K. Xuereb, Agents)

Defendant: Republic of Malta

The applicant claims that the Court should:

| — | Declare that, the Republic of Malta,






  (a) | having failed to establish monitoring programmes for inland surface waters and make them operational in accordance with the first two paragraphs of Article 8 of Directive 2000/60/EC (1) |
| --- | --- | --- |

—

Declare that, the Republic of Malta,

(a)

having failed to establish monitoring programmes for inland surface waters and make them operational in accordance with the first two paragraphs of Article 8 of Directive 2000/60/EC (1)

| (b) | having also failed to fulfil the obligation to submit summary reports of the monitoring programmes for inland surface waters in accordance with the second paragraph of Article 15 of that Directive, |
| --- | --- |

(b)

having also failed to fulfil the obligation to submit summary reports of the monitoring programmes for inland surface waters in accordance with the second paragraph of Article 15 of that Directive,

is in breach of Articles 8 and 15 of the said Directive;

| — | Order the Republic of Malta to pay the costs. |
| --- | --- |

—

Order the Republic of Malta to pay the costs.

Pleas in law and main arguments

According to Article 15(2) of the Directive, the latest date for submission of summary reports on monitoring programmes was 22 March 2007. Further, the obligation to submit the summary report regarding monitoring programmes for inland waters is independent from any obligation to submit the 1st Water Catchment Management Plan. To date, the summary report regarding monitoring programmes for inland surface waters has not been forthcoming. As a result, the Commission is of the opinion that the Republic of Malta has failed to fulfil obligations that it has under the second paragraph of Article 15 of the Directive.

In addition, on the basis of the above information provided by the Republic Malta, and by the lack of information concerning the summary report due by the Republic of Malta regarding monitoring programmes for inland surface waters, the Commission consequently takes the view that the Republic of Malta has failed, to date, to establish monitoring programmes for inland surface waters and make them operational in accordance with the first two paragraphs of Article 8 of the Directive. These programmes are essential in order to establish a coherent and comprehensive overview of water status within each river basin district (2).

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(1)  Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy

OJ L 327, p. 1

(2)  Article 8(1) of Directive 2000/60/EC

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/45 |
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7.11.2009

EN

Official Journal of the European Union

C 267/45

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Appeal brought on 2 September 2009 by Perfetti Van Melle SpA against the judgment of the Court of First Instance (Eighth Chamber) delivered on 1 July 2009 in Case T-16/08: Perfetti Van Melle SpA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Cloetta Fazer AB

(Case C-353/09 P)

2009/C 267/78

Language of the case: English

Parties

Appellant: Perfetti Van Melle SpA (represented by: P. Perani and P. Pozzi, avvocati)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Cloetta Fazer AB

Form of order sought

The appellant claims that the Court should:

| — | Uphold the appeal and, accordingly, set aside the judgment of the Court of First Instance, in Case T-16/08, in its entirety, in accordance with Article 61 of the Statute of the Court of Justice and Article 113 of the Rules of Procedure; |
| --- | --- |

—

Uphold the appeal and, accordingly, set aside the judgment of the Court of First Instance, in Case T-16/08, in its entirety, in accordance with Article 61 of the Statute of the Court of Justice and Article 113 of the Rules of Procedure;

| — | Give final judgment — if the state of the proceedings so permits — by annulling the Decision of the OHIM Cancellation Division, rendered on 24 November 2005, ruling on Cancellation Action No. 941 C 973065 and order the defendants to bear the costs of the proceedings before the Court of First Instance and the Court of Justice, as well as those of the OHIM invalidity proceedings. |
| --- | --- |

—

Give final judgment — if the state of the proceedings so permits — by annulling the Decision of the OHIM Cancellation Division, rendered on 24 November 2005, ruling on Cancellation Action No. 941 C 973065 and order the defendants to bear the costs of the proceedings before the Court of First Instance and the Court of Justice, as well as those of the OHIM invalidity proceedings.

Pleas in law and main arguments

1.   Legal Grounds

By the present appeal, Perfetti Van Melle S.p.A. challenges the judgment of the Court of First Instance in case T-16108 delivered on 1 July 2009 and notified on 2 July 2009.

In support of the appeal, the applicant considers that the judgment of the Court of First Instance under appeal in this case is vitiated by misinterpretation and misapplication of Article 8(1)(b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (CTMR) (1), in conjunction with article 53(1)(a) of that regulation.

1.1   First complaint: the applicant complains that the Court of First Instance did not examine the marks at issue on the basis of the criteria of ‘global assessment’ or ‘overall impression’.

It is settled principle that the global assessment of the likelihood of confusion, in relation to the visual, aural or conceptual similarity of the marks in question, must be based on the overall impression given by the marks, bearing in mind, in particular, their distinctive and dominant components. The applicant claims that the Court of First Instance failed to give effect to the principle cited above and, in particular, it found a likelihood of confusion, basing its assessment exclusively on the fact that they share the common element ‘CENTER’.

The judgment appealed failed to examine the marks using a ‘global assessment’ and the ‘overall impression’ made by them. Instead, the judgment appealed used an analytical approach and made an examination between the mark ‘CENTER’ from one hand and the first verbal component ‘CENTER’ of the contested mark, on the other, denying any importance to the second verbal portion ‘SHOCK’. It is true that the judgment appealed did mention the criterion of the global assessment and overall impression, but it is also true that it is not sufficient to mention and repeat a judicial criterion: in order to act correctly it is important to follow it and apply it correctly to the case. That was not done in the judgment appealed. The judgment appealed limited itself to hold that the two marks under comparison are similar sharing the verbal component ‘CENTER’, without explaining why the verbal components ‘SHOCK’ is not sufficient to exclude a risk of confusion.

For the above reasons, the applicant also submits that the judgment under appeal is vitiated by a distortion of the fact and by a violation of the duty to provide reasons.

1.2.   Second complaint: the applicant complains that, in the judgment under appeal, the Court of First Instance failed to consider some extremely important and pertinent factors.

The judgment appealed also infringed Article 8(1)(b), because it did not assess factors which were extremely relevant in order to determine the likelihood of confusion between the marks. In particular, the Court of First Instance did not take into consideration the long coexistence of the marks under comparison and the absence of actual confusion, as widely explained in the application before the Court of First Instance.

In addition, the Court of First Instance did not correctly assess another important factor, which is the degree of attention of the relevant public. In fact, it was illogical for the Court of First Instance to hold that a reasonably well-informed and reasonably observant and circumspect consumer would fail to observe the presence of the word ‘SHOCK’ and to recognize that the marks under exam, not only have a visual and phonetic differences, but also a different meaning, being the mark ‘CENTER’, a word evoking ‘the middle point of something’ and the mark ‘CENTER SHOCK’, due to the presence of the most distinctive portion ‘SHOCK’, an expression evoking the idea of a strong sensation (shock) that the consumer will feel when chewing the centre of the gum.

2.   Form of order sought:

| — | uphold the appeal and, accordingly, set aside the judgment of the Court of First Instance, in its entirety, in accordance with Article 61 of the Statute of the Court of Justice and Article 113 of the Rules of Procedure; |
| --- | --- |

—

uphold the appeal and, accordingly, set aside the judgment of the Court of First Instance, in its entirety, in accordance with Article 61 of the Statute of the Court of Justice and Article 113 of the Rules of Procedure;

| — | give final judgment if the state of the proceedings so permits by annulling the Decision of the OHIM Cancellation Division, rendered on November 24, 2005, ruling on Cancellation Action No. 941 C 973065 and order the defendants to bear the costs of the proceedings before the Court of First Instance and the Court of Justice, as well as those of the OHIM invalidity, according to article 122 of the Rules of Procedure; |
| --- | --- |

—

give final judgment if the state of the proceedings so permits by annulling the Decision of the OHIM Cancellation Division, rendered on November 24, 2005, ruling on Cancellation Action No. 941 C 973065 and order the defendants to bear the costs of the proceedings before the Court of First Instance and the Court of Justice, as well as those of the OHIM invalidity, according to article 122 of the Rules of Procedure;

| — | alternatively, if the state of the proceedings does not so permit, refer the case back to the Court of First Instance for judgment in accordance with the binding criteria established by the Court of Justice. |
| --- | --- |

—

alternatively, if the state of the proceedings does not so permit, refer the case back to the Court of First Instance for judgment in accordance with the binding criteria established by the Court of Justice.

---

(1)  OJ L 11, p. 1

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/46 |
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7.11.2009

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Official Journal of the European Union

C 267/46

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Reference for a preliminary ruling from the Administrativen Sad Sofia-grad, Bulgaria lodged on 7 September 2009 — Saïd Shamilovich Kadzoev v Direktsia ‘Migratsia’ pri Ministerstvo na vatreshnite raboti

(Case C-357/09)

2009/C 267/79

Language of the case: Bulgarian

Referring court

Administrativen Sad Sofia-grad

Parties to the main proceedings

Applicant: Shamilovich Kadzoev

Defendant: Direktsia ‘Migratsia’ pri Ministerstvo na vatreshnite raboti Saïd

Questions referred

| 1. | Must Article 15(5) and (6) of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals be interpreted as meaning that






  (a) | where the national law of the Member State did not provide for a maximum period of detention or grounds for extending such detention before the transposition of the requirements of that Directive and, on transposition of the Directive, no provision was made for conferring retroactive effect on the new provisions, the requirements of the Directive only apply and cause the period to start to run from their transposition into the national law of the Member State? |
| --- | --- | --- |

1.

Must Article 15(5) and (6) of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals be interpreted as meaning that

(a)

where the national law of the Member State did not provide for a maximum period of detention or grounds for extending such detention before the transposition of the requirements of that Directive and, on transposition of the Directive, no provision was made for conferring retroactive effect on the new provisions, the requirements of the Directive only apply and cause the period to start to run from their transposition into the national law of the Member State?

| (b) | within the periods laid down for detention in a specialised facility with a view to removal within the meaning of the Directive, no account is to be taken of the period during which the implementation of a removal decision from the Member State under an express provision was suspended owing to a pending request for asylum by a third-country national, where during that procedure he continued to remain in that specialised detention facility if the national law of the Member State so permits? |
| --- | --- |

(b)

within the periods laid down for detention in a specialised facility with a view to removal within the meaning of the Directive, no account is to be taken of the period during which the implementation of a removal decision from the Member State under an express provision was suspended owing to a pending request for asylum by a third-country national, where during that procedure he continued to remain in that specialised detention facility if the national law of the Member State so permits?

| 2. | Must Article 15 (5) and (6) of Directive 2008/115/EC [...] be interpreted as meaning that within the periods laid down for detention in a specialised facility with a view to removal within the meaning of that Directive no account is to be taken of the period during which implementation of a removal decision from the Member State was suspended under an express provision on the ground that an appeal against that decision is pending, even though during the period of that procedure the third-country national has continued to stay in that specialised detention facility, where he did not have valid identity documents and there is therefore some doubt as to his identity or where he does not have any means of supporting himself or where he has demonstrated aggressive conduct? |
| --- | --- |

2.

Must Article 15 (5) and (6) of Directive 2008/115/EC [...] be interpreted as meaning that within the periods laid down for detention in a specialised facility with a view to removal within the meaning of that Directive no account is to be taken of the period during which implementation of a removal decision from the Member State was suspended under an express provision on the ground that an appeal against that decision is pending, even though during the period of that procedure the third-country national has continued to stay in that specialised detention facility, where he did not have valid identity documents and there is therefore some doubt as to his identity or where he does not have any means of supporting himself or where he has demonstrated aggressive conduct?

| 3. | Must Article 15 (4) of Directive 2008/115/EC [...] be interpreted as meaning that removal is not reasonably possible where:






  (a) | at the time when a judicial review of the detention is conducted, the State of which the person is a national has refused to issue him with a travel document for his return and until then there was no agreement with a third country in order to secure the person’s entry there even though the administrative bodies of the Member State are continuing to make endeavours to that end? |
| --- | --- | --- |

3.

Must Article 15 (4) of Directive 2008/115/EC [...] be interpreted as meaning that removal is not reasonably possible where:

(a)

at the time when a judicial review of the detention is conducted, the State of which the person is a national has refused to issue him with a travel document for his return and until then there was no agreement with a third country in order to secure the person’s entry there even though the administrative bodies of the Member State are continuing to make endeavours to that end?

| (b) | at the time when a judicial review of the detention is conducted there was an agreement for readmission between the European Union and the State of which the person is a national, but, owing to the existence of new evidence, namely the person’s birth certificate, the Member State did not refer to the provisions of that agreement, if the person concerned does not wish to return? |
| --- | --- |

(b)

at the time when a judicial review of the detention is conducted there was an agreement for readmission between the European Union and the State of which the person is a national, but, owing to the existence of new evidence, namely the person’s birth certificate, the Member State did not refer to the provisions of that agreement, if the person concerned does not wish to return?

| (c) | the possibilities of extending the detention periods provided for in Article 15(6) of the Directive have been exhausted in the situation where no agreement for readmission has been reached with the third country at the time when a judicial review of his detention is conducted, regard being had to Article 15(6)(b) of the Directive? |
| --- | --- |

(c)

the possibilities of extending the detention periods provided for in Article 15(6) of the Directive have been exhausted in the situation where no agreement for readmission has been reached with the third country at the time when a judicial review of his detention is conducted, regard being had to Article 15(6)(b) of the Directive?

| 4. | Must Article 15(4) and (6) of Directive 2008/115/EC be interpreted as meaning that if at the time when the detention with a view to removal of the person concerned to a third country is reviewed there is found to be no reasonable ground for removing him and the grounds for extending his detention have been exhausted, in such a case:






  (a) | it is none the less not appropriate to order his immediate release if the following conditions are all met: the person concerned does not have valid identity documents, whatever the duration of their validity, with the result that there is a doubt as to his identity, he is aggressive in his conduct, he has no means of supporting himself and there is no third person who has undertaken to provide for his subsistence? |
| --- | --- | --- |

4.

Must Article 15(4) and (6) of Directive 2008/115/EC be interpreted as meaning that if at the time when the detention with a view to removal of the person concerned to a third country is reviewed there is found to be no reasonable ground for removing him and the grounds for extending his detention have been exhausted, in such a case:

(a)

it is none the less not appropriate to order his immediate release if the following conditions are all met: the person concerned does not have valid identity documents, whatever the duration of their validity, with the result that there is a doubt as to his identity, he is aggressive in his conduct, he has no means of supporting himself and there is no third person who has undertaken to provide for his subsistence?

| (b) | with a view to the decision on release it must be assessed whether, under the provisions of the national law of the Member State, the third-country national has the resources necessary to stay in the Member State as well as an address at which he may reside? |
| --- | --- |

(b)

with a view to the decision on release it must be assessed whether, under the provisions of the national law of the Member State, the third-country national has the resources necessary to stay in the Member State as well as an address at which he may reside?

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/48 |
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7.11.2009

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C 267/48

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Action brought on 11 September 2009 — Commission of the European Communities v Kingdom of Spain

(Case C-363/09)

2009/C 267/80

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (represented by: L. Parpala and F. Jimeno Fernández, acting as Agents)

Defendant: Kingdom of Spain

Form of order sought

| — | Declare that by maintaining in force Article 38 of Law 43/2002 of 20 November 2002 on plant health, the Kingdom of Spain has failed to fulfil its obligations under Article 13 of Directive 91/414/EEC (1) |
| --- | --- |

—

Declare that by maintaining in force Article 38 of Law 43/2002 of 20 November 2002 on plant health, the Kingdom of Spain has failed to fulfil its obligations under Article 13 of Directive 91/414/EEC (1)

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

—

order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

Directive 91/414/EEC responds to the need to harmonise the provisions of national law relating to the marketing of plant protection products. For that purpose it lays down uniform rules on the conditions and procedures for the authorization of such products.

Article 13 of that Directive sets out the rules relating to (i) the data which must be submitted by applicants for the authorisation of a particular plant protection product and (ii) the use and protection of that data, safeguarding, apart from specified exceptions, the confidentiality of that data.

The Directive is a complete harmonisation and, consequently, a Member State cannot adopt legislation at national level which requires economic operators to share data submitted by the first applicant for authorisation, except on the conditions laid down in Article 13(7).

Nevertheless, Article 38 of Law 43/2002 permits access to data obtained from studies and experiments in circumstances other than those expressly provided in the Directive.

The Commission considers that since the Kingdom of Spain has no discretion in relation to the transposition into national law of Article 13 of Directive 91/414/EEC and since it has not brought an action for the annulment of that provision, the introduction of an exception to the rules relating to access to data accompanying an application for authorisation of plant protection products, when that exception is not provided for in the Directive concerned, is an infringement of Community law.

---

(1)  Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (OJ L 230, p. 1)

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/48 |
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7.11.2009

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Official Journal of the European Union

C 267/48

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Appeal brought on 14 September 2009 by Mineralbrunnen Rhön-Sprudel Egon Schindel GmbH against the judgment of the Court of First Instance (Eighth Chamber) delivered on 8 July 2009 in Case T-226/08 Mineralbrunnen Rhön-Sprudel Egon Schindel GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs); the other party to the proceedings being: Schwarzbräu GmbH

(Case C-364/09 P)

2009/C 267/81

Language of the case: German

Parties

Appellant: Mineralbrunnen Rhön-Sprudel Egon Schindel GmbH (represented by: P. Wadenbach, Rechtsanwalt)

Other parties to the proceedings:

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

—

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

| — | Schwarzbräu GmbH |
| --- | --- |

—

Schwarzbräu GmbH

Form of order sought

| 1. | Set aside the judgment of the Court of First Instance of the European Communities of 8 July 2009 in Case T-226/08; |
| --- | --- |

1.

Set aside the judgment of the Court of First Instance of the European Communities of 8 July 2009 in Case T-226/08;

| 2. | Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 8 April 2008 (Case R 1124/2004-4); |
| --- | --- |

2.

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 8 April 2008 (Case R 1124/2004-4);

| 3. | Completely delete the Community trade mark No 505503 ‘ALASKA’ owing to the existence of absolute grounds for refusal; |
| --- | --- |

3.

Completely delete the Community trade mark No 505503 ‘ALASKA’ owing to the existence of absolute grounds for refusal;

| 4. | Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs of the proceedings. |
| --- | --- |

4.

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

In the alternative to the form of order sought in point 3 above, the appellant requests the Court to:

| — | Annul Community trade mark No 505503 ‘ALASKA’ at least in respect of the following goods: ‘mineral and aerated waters and other non-alcoholic drinks in Class 32’. |
| --- | --- |

—

Annul Community trade mark No 505503 ‘ALASKA’ at least in respect of the following goods: ‘mineral and aerated waters and other non-alcoholic drinks in Class 32’.

Pleas in law and main arguments

The present appeal is brought against the judgment of the Court of First Instance which dismissed the appellant’s action brought against the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 8 April 2008. By that decision the Board of Appeal rejected the appellant’s application for a declaration of invalidity of the Community word mark ‘ALASKA’ in respect of all the goods covered by the registration (mineral and aerated waters and other non-alcoholic drinks; fruit drinks and fruit juices; syrups and other preparations for making beverages).

The dispute between the parties centres on the question whether an absolute ground for refusal in the form of the requirement to maintain the availability of an indication of geographic origin exists.

By its appeal the appellant complains that the Court of First Instance misinterpreted Article 7(1)(c) of Regulation (EC) No 40/94, in particular with regard to the principles developed by the case-law.

According to the wording of the abovementioned provision of Regulation No 40/94, for registration of a Community trade mark to be excluded it suffices if the mark consists exclusively of signs or indications which may serve, in trade, to designate the geographical origin of the goods covered by the application. It follows from that provision that geographic designations which may be used by undertakings, must also be kept available for those undertakings as indications of geographic origin with regard to the group of goods concerned. The application of the abovementioned provision of Regulation No 40/94 does not require that there be a real, current or serious requirement to keep the sign available.

Had the Court of First Instance interpreted Article 7(1)(c) of Regulation No 40/94 and the principles developed by the case-law correctly for the purposes of the present case, it would have had to find that Alaska was the largest source of drinking water in the United States, that the relevant public associated Alaska with a natural surplus of pure water in its most diverse forms, that an economically significant amount of mineral water was produced in Alaska and that it was already distributed in the Community, meaning that further marketing was a serious possibility. It was accordingly clear that the designation ‘ALASKA’ could in future be used by competitors as an indication of geographic origin.

The Court of First Instance instead interpreted Article 7(1)(c) of Regulation No 40/94 and the principles of the case-law incorrectly by imposing, while carrying out a test of viability, that is to say whether the distribution of mineral water from Alaska in the Community was economically feasible or not (having regard to competition on the market, transport costs), additional requirements which went beyond those principles. Those broader requirements were excessive in the light of the objectives of Article 7(1)(c), its wording and in particular in the light of the principles developed in the case-law, and led to an excessively broad interpretation which was not in conformity with the purpose of the Community law provision.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/49 |
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7.11.2009

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Official Journal of the European Union

C 267/49

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Appeal brought on 14 September 2009 by Mineralbrunnen Rhön-Sprudel Egon Schindel GmbH against the judgment of the Court of First Instance (Eighth Chamber) delivered on 8 July 2009 in Case T-225/08 Mineralbrunnen Rhön-Sprudel Egon Schindel GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs); the other party to the proceedings being: Schwarzbräu GmbH

(Case C-365/09 P)

2009/C 267/82

Language of the case: German

Parties

Appellant: Mineralbrunnen Rhön-Sprudel Egon Schindel GmbH (represented by: P. Wadenbach, Rechtsanwalt)

Other parties to the proceedings:

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

—

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

| — | Schwarzbräu GmbH |
| --- | --- |

—

Schwarzbräu GmbH

Form of order sought

| 1. | Set aside the judgment of the Court of First Instance of the European Communities of 8 July 2009 in Case T-225/08; |
| --- | --- |

1.

Set aside the judgment of the Court of First Instance of the European Communities of 8 July 2009 in Case T-225/08;

| 2. | Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 8 April 2008 (Case R 877/2004-4); |
| --- | --- |

2.

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 8 April 2008 (Case R 877/2004-4);

| 3. | Completely delete the Community trade mark No 505552 ‘ALASKA’ owing to the existence of absolute grounds for refusal; |
| --- | --- |

3.

Completely delete the Community trade mark No 505552 ‘ALASKA’ owing to the existence of absolute grounds for refusal;

| 4. | Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs of the proceedings. |
| --- | --- |

4.

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

Pleas in law and main arguments

The present appeal is brought against the judgment of the Court of First Instance which dismissed the appellant’s action brought against the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 8 April 2008. By that decision the Board of Appeal confirmed the rejection by the Cancellation Division of the appellant’s application for a declaration of invalidity of the Community figurative mark ‘ALASKA’. The appellant’s application was directed against all the goods covered by the registration in Class 32 (mineral and aerated waters and other non-alcoholic drinks; fruit drinks and fruit juices; syrups and other preparations for making beverages).

The dispute between the parties centres on the question whether an absolute ground for refusal in the form of the requirement to maintain the availability of an indication of geographic origin exists.

By its appeal the appellant complains that the Court of First Instance misinterpreted Article 7(1)(c) of Regulation (EC) No 40/94, in particular with regard to the principles developed by the case-law.

According to the wording of the abovementioned provision of Regulation No 40/94, for registration of a Community trade mark to be excluded it suffices if the mark consists exclusively of signs or indications which may serve, in trade, to designate the geographical origin of the goods covered by the application. It follows from that provision that geographic designations which may be used by undertakings, must also be kept available for those undertakings as indications of geographic origin with regard to the group of goods concerned. The application of the abovementioned provision of Regulation No 40/94 does not require that there be a real, current or serious requirement to keep the sign available.

Had the Court of First Instance interpreted Article 7(1)(c) of Regulation No 40/94 and the principles developed by the case-law correctly for the purposes of the present case, it would have had to find that Alaska was the largest source of drinking water in the United States, that the relevant public associated Alaska with a natural surplus of pure water in its most diverse forms, that an economically significant amount of mineral water was produced in Alaska and that it was already distributed in the Community, meaning that further marketing was a serious possibility. It was accordingly clear that the designation ‘ALASKA’ could in future be used by competitors as an indication of geographic origin.

The Court of First Instance instead interpreted Article 7(1)(c) of Regulation No 40/94 and the principles of the case-law incorrectly by imposing, while carrying out a test of viability, that is to say whether the distribution of mineral water from Alaska in the Community was economically feasible or not (having regard to competition on the market, transport costs), additional requirements which went beyond those principles. Those broader requirements were excessive in the light of the objectives of Article 7(1)(c), its wording and in particular in the light of the principles developed in the case-law, and led to an excessively broad interpretation which was not in conformity with the purpose of the Community law provision.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/50 |
| --- | --- | --- | --- |

7.11.2009

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Action brought on 15 September 2009 — Commission of the European Communities v Hellenic Republic

(Case C-370/09)

2009/C 267/83

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (represented by: A. Margeli and M. Karanasou Apostolopoulou, acting as Agents)

Defendant: Hellenic Republic

Form of order sought

| — | declare that, by not adopting the laws, regulations and administrative provisions necessary to comply with Directive 2006/21/EC (1) of the European Parliament and of the Council of 15 March 2006 on the management of waste from extractive industries and amending Directive 2004/35/EC, or in any event by not notifying those provisions to the Commission, the Hellenic Republic has failed to fulfil its obligations under that directive; |
| --- | --- |

—

declare that, by not adopting the laws, regulations and administrative provisions necessary to comply with Directive 2006/21/EC (1) of the European Parliament and of the Council of 15 March 2006 on the management of waste from extractive industries and amending Directive 2004/35/EC, or in any event by not notifying those provisions to the Commission, the Hellenic Republic has failed to fulfil its obligations under that directive;

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

—

order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

The time-limit for transposition of Directive 2006/21/EC into domestic law expired on 1 May 2008.

---

(1)  OJ No L 102 of 11.4.2006, p. 15.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/50 |
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7.11.2009

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Reference for a preliminary ruling from the High Court of Justice (England and Wales), Chancery Division, made on 14 September 2009 — Commissioners for Her Majesty's Revenue and Customs v Isaac International Limited

(Case C-371/09)

2009/C 267/84

Language of the case: English

Referring court

High Court of Justice (England and Wales), Chancery Division

Parties to the main proceedings

Applicant: Commissioners for Her Majesty's Revenue and Customs

Defendant: Isaac International Limited

Questions referred

| (1) | In circumstances such as those of the present case, where an importer is established and operates in two Member States and imports goods in one Member State and immediately transports them to a second Member State, does the end-use authorisation required for the purpose of obtaining exemption from anti-dumping duty pursuant to Article 14(c) of Commission Regulation 88/97 (1) involve more than one customs authority for the purpose of Article 292(3) of Commission Regulation 2454/93 (2)? |
| --- | --- |

(1)

In circumstances such as those of the present case, where an importer is established and operates in two Member States and imports goods in one Member State and immediately transports them to a second Member State, does the end-use authorisation required for the purpose of obtaining exemption from anti-dumping duty pursuant to Article 14(c) of Commission Regulation 88/97 (1) involve more than one customs authority for the purpose of Article 292(3) of Commission Regulation 2454/93 (2)?

| (2) | In circumstances such as those of the present case, where an importer failed to obtain the necessary authorisation for use of the end-use procedure envisaged by Article 14(c) of Commission Regulation 88/97, can exemption from anti-dumping duty nevertheless apply pursuant to Article 212a of Council Regulation 2913/92 (3)? |
| --- | --- |

(2)

In circumstances such as those of the present case, where an importer failed to obtain the necessary authorisation for use of the end-use procedure envisaged by Article 14(c) of Commission Regulation 88/97, can exemption from anti-dumping duty nevertheless apply pursuant to Article 212a of Council Regulation 2913/92 (3)?

| (3) | If the answer to the second question is in the affirmative, in assessing whether a trader in a situation such as that of Isaac has been obviously negligent,






  (a) | are the provisions of Article 14(c) of Commission Regulation 88/97 and Article 292(3) of Commission Regulation 2454/93 sufficiently clear that a trader who failed to ascertain, by consulting the Official Journal, that the simplified authorisation was not available to it due to the involvement of more than one customs authority, must be regarded as obviously negligent? |
| --- | --- | --- |

(3)

If the answer to the second question is in the affirmative, in assessing whether a trader in a situation such as that of Isaac has been obviously negligent,

(a)

are the provisions of Article 14(c) of Commission Regulation 88/97 and Article 292(3) of Commission Regulation 2454/93 sufficiently clear that a trader who failed to ascertain, by consulting the Official Journal, that the simplified authorisation was not available to it due to the involvement of more than one customs authority, must be regarded as obviously negligent?

| (b) | Alternatively, if the relevant provisions are to be regarded as complex, would it be incumbent on a trader to seek clarification from the taxing authorities prior to undertaking the importations? Does the answer to this question depend on whether the trader subjectively, but erroneously, concluded that the relevant provisions were clear in their application? |
| --- | --- |

(b)

Alternatively, if the relevant provisions are to be regarded as complex, would it be incumbent on a trader to seek clarification from the taxing authorities prior to undertaking the importations? Does the answer to this question depend on whether the trader subjectively, but erroneously, concluded that the relevant provisions were clear in their application?

| (c) | How is the experience of a trader, in a situation such as that of Isaac, whose main business is the import of bicycle parts from China, who employs five members of staff to deal with importation and has undertaken 33 similar importations in a period of 16 month to be classified? In particular, must such a trader be regarded as experienced? |
| --- | --- |

(c)

How is the experience of a trader, in a situation such as that of Isaac, whose main business is the import of bicycle parts from China, who employs five members of staff to deal with importation and has undertaken 33 similar importations in a period of 16 month to be classified? In particular, must such a trader be regarded as experienced?

| (d) | Are the taxing authorities of a Member State, in assessing whether a trader, in a situation such as that of Isaac, has been obviously negligent, entitled to rely on published legislation such as the UK Tariff which, though available for consultation without charge at certain officers of the taxing authorities and other public libraries, is only available over the internet on payment of a yearly subscription? |
| --- | --- |

(d)

Are the taxing authorities of a Member State, in assessing whether a trader, in a situation such as that of Isaac, has been obviously negligent, entitled to rely on published legislation such as the UK Tariff which, though available for consultation without charge at certain officers of the taxing authorities and other public libraries, is only available over the internet on payment of a yearly subscription?

---

(1)  Commission Regulation (EC) No 88/97 of 20 January 1997 on the authorisation of the exemption of imports of certain bicycle parts originating in the People's Republic of China from the extension by Council Regulation (EC) No 71/97 of the anti-dumping duty imposed by Council Regulation (EEC) No 2474/93, OJ L 17, p. 17

(2)  Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code, OJ L 253, p. 1

(3)  Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code

OJ L 302, p. 1

---

| 7.11.2009 | EN | Official Journal of the European Union | C 267/51 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/51

---

Action brought on 22 September 2009 — Commission of the European Communities v Republic of Malta

(Case C-376/09)

2009/C 267/85

Language of the case: English

Parties

Applicant: Commission of the European Communities (represented by: A. Alcover San Pedro, E. Depasquale, Agents)

Defendant: Republic of Malta

The applicant claims that the Court should:

| — | declare that, by not decommissioning non-critical uses of halons in fire protection systems and fire extinguishers on ships and by not recovering these halons, the Republic of Malta has failed to fulfil its obligations under Articles 4(4)(v) and 16 of Regulation (EC) No 2037/2000 (1) of the European Parliament and of the Council of 29 June 2000 on substances that deplete the ozone layer; |
| --- | --- |

—

declare that, by not decommissioning non-critical uses of halons in fire protection systems and fire extinguishers on ships and by not recovering these halons, the Republic of Malta has failed to fulfil its obligations under Articles 4(4)(v) and 16 of Regulation (EC) No 2037/2000 (1) of the European Parliament and of the Council of 29 June 2000 on substances that deplete the ozone layer;

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

—

order Republic of Malta to pay the costs.

Pleas in law and main arguments

It follows from the provisions of Articles 4(4)(v) and 16 of the Regulation, read in conjunction with the provisions of Article 2 of the Act of Accession, that the Republic of Malta was required to decommission fire protection systems and fire extinguishers containing halons before 1 May 2004, with the exception of the critical uses listed in Annex VII to the regulation, and to recover these halons by appropriate technologies.

In the absence of any information to the effect that that the Republic of Malta has decommissioned non-critical uses of halons in fire protection systems and file extinguishers on all the ships listed in the form attached to its reply to the letter of formal notice and has recovered these halons, the Commission concludes that the Republic of Malta has failed to fulfil its obligations under Articles 4(4)(v) and 16 of the regulation.

---

(1)  OJ L 244, p. 1

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/52 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/52

---

Order of the President of the Court of 29 June 2009 — Commission of the European Communities v Republic of Poland

(Case C-547/07) (1)

2009/C 267/86

Language of the case: Polish

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

---

(1)  OJ C 51, 23.2.2008.

---

| 7.11.2009 | EN | Official Journal of the European Union | C 267/52 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/52

---

Order of the President of the Eighth Chamber of the Court of 1 July 2009 — Commission of the European Communities v Republic of Poland

(Case C-72/08) (1)

2009/C 267/87

Language of the case: Polish

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

---

(1)  OJ C 92, 12.4.2008.

---

| 7.11.2009 | EN | Official Journal of the European Union | C 267/52 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/52

---

Order of the President of the Seventh Chamber of the Court of 4 June 2009 (reference for a preliminary ruling from the Rechtbank van eerste aanleg te Brugge (Belgium)) — Carlos Cloet, Jacqueline Cloet v Westvlaamse Intercommunale voor Economische Expansie, Huisvestingsbeleid en Technische Bijstand CVBA (WVI)

(Case C-129/08) (1)

2009/C 267/88

Language of the case: Dutch

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

---

(1)  OJ C 142, 7.6.2008.

---

Court of First Instance

| 7.11.2009 | EN | Official Journal of the European Union | C 267/53 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/53

---

Judgment of the Court of First Instance of 23 September 2009 — Spain v Commission

(Case T-341/05 (1))

(Agriculture - Common organisation of the market in milk and milk products - Abolition of export refunds for all milk products to Ceuta and Melilla - Conditions - Principle of non-discrimination - Proportionality)

2009/C 267/89

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by: J Cárcamo and M. Muñoz Pérez, abogados del Estado)

Defendant: Commission of the European Communities (represented by C. Cattabriga and F. Jimeno Fernández, acting as Agents)

Re:

Annulment of Commission Regulation (EC) No 909/2005 of 16 June 2005 fixing the export refunds on milk and milk products (OJ 2005 L 154, p. 10), in so far as its Annex includes Ceuta and Mellila among the destinations grouped together under the destination L 01.

Operative part of the judgment

The Court:

| 1) | Annuls Commission Regulation (EC) No 909/2005 of 16 June 2005 fixing the export refunds on milk and milk products, in so far as it mentions Ceuta et Melilla among the destinations grouped together under the destination L 01. |
| --- | --- |

1)

Annuls Commission Regulation (EC) No 909/2005 of 16 June 2005 fixing the export refunds on milk and milk products, in so far as it mentions Ceuta et Melilla among the destinations grouped together under the destination L 01.

| 2) | Orders the Commission of the European Communities to pay the costs. |
| --- | --- |

2)

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

---

(1)  OJ C 217 of 29.10.2005.

---

| 7.11.2009 | EN | Official Journal of the European Union | C 267/53 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/53

---

Judgment of the Court of First Instance of 23 September 2009 — Transnáutica v Commission

(Case T-385/05) (1)

(Customs union - External Community transit operations - Consignments of tobacco and ethyl alcohol for third countries - Fraud - Claim for remission of import duties - Article 239 of Regulation (EEC) No 2913/92 - Article 905 of Regulation (EEC) No 2454/93 - Fairness clause - Existence of a special situation - Comprehensive guarantee)

2009/C 267/90

Language of the case: English

Parties

Applicant: Transnáutica — Transportes e Navegação SA (Matosinhos, Portugal) (represented by: C. Fernández Vicién, I. Moreno-Tapia Rivas, D. Ortigão Ramos and B. Aniceto Silva, lawyers)

Defendant: Commission of the European Communities (represented by: X. Lewis and J. Hottiaux, acting as Agents)

Re:

Application for annulment of Commission Decision REM 05/2004 of 6 July 2005 refusing the reimbursement and remission of certain customs duties.

Operative part of the judgment

The Court:

| 1. | Annuls Commission Decision REM 05/2004 of 6 July 2005. |
| --- | --- |

1.

Annuls Commission Decision REM 05/2004 of 6 July 2005.

| 2. | Orders the Commission of the European Communities to pay the costs. |
| --- | --- |

2.

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

---

(1)  OJ C 330, of 24.12.2005.

---

| 7.11.2009 | EN | Official Journal of the European Union | C 267/54 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/54

---

Judgment of the Court of First Instance of 23 September 2009 — Phildar v OHIM — Comercial Jacinto Parera (FILDOR)

(Case T-99/06) (1)

(Community trade mark - Opposition proceedings - Application for the Community word mark FILDOR - Earlier national semi-figurative mark PHILDAR - Earlier national word mark FILDOR - Earlier international word and semi-figurative marks PHILDAR - Relative ground for refusal - Likelihood of confusion - Articles 8(1)(b), 62 and 73 of Regulation (EC) No 40/94 (now Articles 8(1)(b), 64 and 75 of Regulation (EC) No 207/2009)

2009/C 267/91

Language of the case: English

Parties

Applicant: Phildar SA (Roubaix, France) (represented by: E. Baud, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Comercial Jacinto Parera SA (Barcelona, Spain)

Re:

Action against the decision of the Second Board of Appeal of OHIM of 16 January 2006 (Case R 245/2004-2), relating to opposition proceedings between Phildar SA and Comercial Jacinto Parera, SA.

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 16 January 2006 (Case R 245/2004-2); |
| --- | --- |

1.

Annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 16 January 2006 (Case R 245/2004-2);

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

2.

Orders OHIM to pay the costs.

---

(1)  OJ C 121, 20.5.2006.

---

| 7.11.2009 | EN | Official Journal of the European Union | C 267/54 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/54

---

Judgment of the Court of First Instance of 16 September 2009 — Hipp & Co v OHIM — Laboratoris Ordesa (Bebimil)

(Case T-221/06) (1)

(Community trade mark - Opposition procedure - Application for Community word mark Bebimil - Earlier Community and national word marks BLEMIL - Earlier national word mark BLEMIL 1 - Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009) - Likelihood of confusion)

2009/C 267/92

Language of the case: English

Parties

Applicant: Hipp & Co KG (Sachseln, Switzerland) (represented by: M. Kinkeldey and A. Bognár, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervening before the Court of First Instance: Laboratoris Ordesa, SL (Sant Boi de Llobregat, Spain) (represented by: R. Thierie and E. Sugrañes Coca, lawyers)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 2 June 2006 (Case R 571/2005-1), relating to opposition proceedings between Laboratorios Ordesa, SL and Hipp & Co. KG.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | orders Hipp & Co. KG to pay the costs. |
| --- | --- |

2.

orders Hipp & Co. KG to pay the costs.

---

(1)  OJ C 237, 30.9.2006.

---

| 7.11.2009 | EN | Official Journal of the European Union | C 267/55 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/55

---

Judgment of the Court of First Instance of 23 September 2009 — Dongguan Nanzha Leco Stationery v Council of the European Union

(Case T-296/06) (1)

(Dumping - Imports of lever arch mechanisms originating in China - Determination of the dumping margin - Market economy treatment - Comparison between the normal value and the export price - Application of a different method to that used during the initial investigation - Article 2(7)(a) and (10) of Regulation (EC) No 384/96)

2009/C 267/93

Language of the case: English

Parties

Applicant: Dongguan Nanzha Leco Stationery Mfg. Co., Ltd (Dongguan, China) (represented by: A. Bentley, QC)

Defendant: Council of the European Union (represented by: J.-P. Hix, Agent, assisted by G. Berrisch, Lawyer)

Interveners in support of the defendants: Commission of the European Communities (represented by H. van Vliet and T. Scharf, Agents); IML Industria Meccanica Lombarda Srl (Offanengo, Italy); Interkov spol. s.r.o. (Bráník, Czech Republic); MI.ME.CA. Srl (Ricengo, Italy); and NIKO — kovinarsko podjetje, d.d. Železniki (Železniki, Slovenia) (represented by R. Bierwagen, Lawyer)

Re:

Application for partial annulment of Council Regulation (EC) No 1136/2006 of 24 July 2006 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of lever arch mechanisms originating in the People’s Republic of China (OJ 2006 L 205, p. 1), in so far as it applies to the applicant.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Dongguan Nanzha Leco Stationery Mfg. Co., Ltd, to bear its own costs and to pay those incurred by the Council of the European Union, IML Industria Meccanica Lombarda Srl, Interkov spol. s r.o., MI.ME.CA. Srl and NIKO — kovinarsko podjetje, d.d. Železniki; |
| --- | --- |

2.

Orders Dongguan Nanzha Leco Stationery Mfg. Co., Ltd, to bear its own costs and to pay those incurred by the Council of the European Union, IML Industria Meccanica Lombarda Srl, Interkov spol. s r.o., MI.ME.CA. Srl and NIKO — kovinarsko podjetje, d.d. Železniki;

| 3. | Orders the Commission of the European Communities to bear its own costs. |
| --- | --- |

3.

Orders the Commission of the European Communities to bear its own costs.

---

(1)  OJ C 310, 16.12.2006.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/55 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/55

---

Judgment of the Court of First Instance of 23 September 2009 — Arcandor v OHIM — dm drogerie market (S-HE)

(Case T-391/06) (1)

(Community trade mark - Opposition proceedings - Application for the Community word mark S-HE - Earlier national word mark SHE, earlier national and international figurative trade mark She - Relative ground for refusal - No likelihood of confusion - Lack of similarity between the signs - Article 8(1)(b) of Regulation (EC) No 40/94 [now Article 8(1)(b) of Regulation (EC) No 207/2009)

2009/C 267/94

Language of the case: German

Parties

Applicant: Arcandor AG, previously Karstadt Quelle AG (Essen, Germany) (represented by: V. von Bomhard, A. Renck and T. Dolde, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: dm drogerie market GmbH (Wals, Austria) (represented by: N. Dick and M. Dyck, lawyers)

Re:

Action brought against the decision of the First Board of Appeal of OHIM No R 301/2006-1 of 26 September 2006 concerning opposition proceedings between Karstadt Quelle AG and dm drogerie market GmbH.

Operative part of the judgment

The Court:

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

1.

Dismisses the action.

| 2. | Orders Arcandor AG, previouslyt Karstadt Quelle AG to pay the costs. |
| --- | --- |

2.

Orders Arcandor AG, previouslyt Karstadt Quelle AG to pay the costs.

---

(1)  OJ C 42 of 24.2.2007.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/56 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/56

---

Judgment of the Court of First Instance of 16 September 2009 — Zero Industry v OHIM — zero Germany (zerorh+)

(Case T-400/06) (1)

(Community trade mark - Opposition proceedings - Application for figurative Community mark zerorh+ - Earlier national figurative and word marks zero - Likelihood of confusion - Similarity of the signs - Similarity between products - Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009)

2009/C 267/95

Language of the case: English

Parties

Applicant: Zero Industry Srl (Mariano Comense, Italy) (represented by: M. Rapisardi and N. Colombo, 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, intervening before the Court of First Instance: zero Germany GmbH & Co. KG, formerly zero International Holding GmbH & Co. KG (Bremen, Germany) (represented by: W.-D. Kuntze, lawyer)

Re:

Action for annulment of the decision of the First Board of Appeal of OHIM of 5 October 2006 (Case R 958/2005-1) concerning opposition proceedings between zero Germany GmbH & Co. KG and Zero Industry Srl.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Zero Industry Srl to pay the costs. |
| --- | --- |

2.

Orders Zero Industry Srl to pay the costs.

---

(1)  OJ C 56, 10.3.2007.

---

| 7.11.2009 | EN | Official Journal of the European Union | C 267/56 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/56

---

Judgment of the Court of First Instance of 16 September 2009 — JanSport Apparel v OHIM (BUILT TO RESIST)

(Case T-80/07) (1)

(Community trade mark - Application for the Community word mark BUILT TO RESIST - Absolute ground for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 40/94 (now Article 7(1)(c) of Regulation (EC) No 207/2009)

2009/C 267/96

Language of the case: English

Parties

Applicant: JanSport Apparel Corp. (Wilmington, Delaware, United States) (represented by: C. Bercial Arias, C. Casalonga and K. Dimidjian-Lecompte, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: S. Laitinen initially, and subsequently by O. Mondéjar Ortuño, acting as Agents)

Re:

Action brought against the decision of 12 January 2007 of the Second Board of Appeal of OHIM (Case R 1090/2006-2) concerning an application for registration of the word mark BUILT TO RESIST as a Community trade mark.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders JanSport Apparel Corp. to pay the costs. |
| --- | --- |

2.

Orders JanSport Apparel Corp. to pay the costs.

---

(1)  OJ C 95, 28.4.2007.

---

| 7.11.2009 | EN | Official Journal of the European Union | C 267/56 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/56

---

Judgment of the Court of First Instance of 23 September 2009 — Fratex Industria e Comércio v OHIM– USA Track & Field (TRACK & FIELD USA)

(Case T-103/07) (1)

(Community trade mark - Opposition proceedings - Application for figurative Community mark TRACK & FIELD USA - Earlier national figurative mark TRACK & FIELD - Relative ground for refusal - No likelihood of confusion - Lack of similarity between the signs - Article 8(1)(b) of Regulation (EC) No 40/94 [now Article 8(1)(b) of Regulation (EC) No 207/2009)

2009/C 267/97

Language of the case: Spanish

Parties

Applicant: Fratex Indústria e Comércio, Ltda (São Paolo, Brasil) (represented by: B. Braga da Cruz, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: USA Track & Field, Inc (Indiana, United States of America)

Re:

Action brought against the decision of 18 January 2007 of the Fourth Board of Appeal of OHIM (Case No R. 1061/2005-4)) concerning opposition proceedings between Fratex Indústria e Comércio, Ltda and USA Track & Field, Inc

Operative part of the judgment

The Court:

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

1.

Dismisses the application.

| 2. | Orders Fratex Indústria e Comércio, Ltda to pay the costs |
| --- | --- |

2.

Orders Fratex Indústria e Comércio, Ltda to pay the costs

---

(1)  OJ C 140, 23.6.2007.

---

| 7.11.2009 | EN | Official Journal of the European Union | C 267/57 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/57

---

Judgment of the Court of First Instance of 16 September 2009 — Pigasos Alieftiki Naftiki Etairia v Council and Commission

(Case T-162/07) (1)

(Non-contractual liability - Customs union - Proof of the Community nature of products of sea-fishing - Submission of certain documents as proof not possible - Sufficiently serious breach of a rule of law conferring rights on individuals - Liability of the Community in the absence of unlawful conduct by its bodies)

2009/C 267/98

Language of the case: Greek

Parties

Applicant: Pigasos Alieftiki Naftiki Etairia (Moschato, Greece) (represented by: N. Skandamis and E. Perakis, lawyers)

Defendants: Council of the European Union (represented initially by F. Florindo Gijón and M.-M. Joséphidès, and subsequently by F. Florido Gijón and M. Balta, Agents); and Commission of the European Communities (represented initially by E. Cujo, S. Schønberg and M. Konstantinidis, and subsequently by S. Schønberg and M. Patakia, Agents)

Re:

Action for damages to compensate for the damage alleged to have been suffered by the applicant as a result of the fact that the Council and the Commission did not adopt provisions enabling the customs authorities of a Member State to accept as proof of the Community nature of products of sea-fishing documents other than the T2M form provided for in Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1993 L 253, p. 1).

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Pigasos Alieftiki Naftiki Etairia to pay the costs. |
| --- | --- |

2.

Orders Pigasos Alieftiki Naftiki Etairia to pay the costs.

---

(1)  OJ C 155, 7.7.2007.

---

| 7.11.2009 | EN | Official Journal of the European Union | C 267/57 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/57

---

Judgment of the Court of First Instance of 16 September 2009 — Promomadrid v OHIM (MADRIDEXPORTA)

(Case T-180/07) (1)

(Community trade mark - Application for Community figurative mark MADRIDEXPORTA - Absolute grounds for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 40/94 (now Article 7(1)(c) of Regulation (EC) No 207/2009)

2009/C 267/99

Language of the case: Spanish

Parties

Applicant: Promomadrid Desarrollo Internacional de Madrid, SA (Madrid, Spain) (represented by: M. Aznar Alonso, lawyer)

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

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 7 March 2007 (Case R 1130/2006-1) concerning an application for registration of the figurative mark MADRIDEXPORTA as a Community trade mark.

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 7 March 2007 (Case R 1130/2006-1); |
| --- | --- |

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 7 March 2007 (Case R 1130/2006-1);

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

2.

Orders OHIM to pay the costs.

---

(1)  OJ C 155, 7.7.2007.

---

| 7.11.2009 | EN | Official Journal of the European Union | C 267/58 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/58

---

Judgment of the Court of First Instance of 23 September 2009 — Poland v Commission

(Case T-183/07) (1)

(Environment - Directive 2003/87/EC - Emissions trading system for greenhouse gas allowances - National allocation plan for emission allowances for Poland for the period from 2008 to 2012 - Three month time-limit - Respective powers of the Member States and the Commission - Equal treatment - Duty to state reasons - Article 9(1) and (3) and Article 11(2) of Directive 2003/87)

2009/C 267/100

Language of the case: Polish

Parties

Applicant: Republic of Poland (represented initially by: E. Ośniecka-Tamecka, then by T. Nowakowski, then by T. Kozek, then by M. Dowgielewicz, and finally by M. Dowgielewicz, M. Jarosz and M. Nowacki, acting as Agents)

Defendant: Commission of the European Communities (represented by: U. Wölker and K. Herrmann, acting as Agents)

Interveners in support of the applicant: Republic of Hungary (represented by: J. Fazekas, R. Somssich and M. Fehér, acting as Agents); Republic of Lithuania (represented by: D. Kriaučiūnas, acting as Agent); and the Slovak Republic (represented by: J. Čorba and B. Ricziová, acting as Agents)

Intervener in support of the defendant: United Kingdom of Great Britain and Northern Ireland (represented by: Z. Bryanston-Cross and C. Gibbs, acting as Agents, assisted by H. Mercer, Barrister, then by I. Rao and S. Ossowski, acting as Agents, assisted by J. Maurici, Barrister)

Re:

Application for the annulment, in whole or in part of Commission Decision C(2007) 1295 final of 26 March 2007 concerning the national allocation plan for the allocation of greenhouse gas emission allowances notified by Poland for the period from 2008 to 2012 in accordance with European Parliament and Council Directive 2003/87/EC of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ 2003 L 275, p. 32).

Operative part of the judgment

The Court:

| 1. | Annuls Commission Decision C(2007) 1295 final of 26 March 2007 concerning the national allocation plan for the allocation of greenhouse gas emission allowances notified by Poland for the period from 2008 to 2012 in accordance with European Parliament and Council Directive 2003/87/EC of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC; |
| --- | --- |

1.

Annuls Commission Decision C(2007) 1295 final of 26 March 2007 concerning the national allocation plan for the allocation of greenhouse gas emission allowances notified by Poland for the period from 2008 to 2012 in accordance with European Parliament and Council Directive 2003/87/EC of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC;

| 2. | Orders the Commission to pay, in addition to its own costs, those incurred by the Republic of Poland; |
| --- | --- |

2.

Orders the Commission to pay, in addition to its own costs, those incurred by the Republic of Poland;

| 3. | Orders the Republic of Hungary, the Republic of Lithuania, the Slovak Republic and the United Kingdom of Great Britain and Northern Ireland to bear their own costs. |
| --- | --- |

3.

Orders the Republic of Hungary, the Republic of Lithuania, the Slovak Republic and the United Kingdom of Great Britain and Northern Ireland to bear their own costs.

---

(1)  OJ C 155, 7.7.2007.

---

| 7.11.2009 | EN | Official Journal of the European Union | C 267/58 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/58

---

Judgment of the Court of First Instance of 29 September 2009 — Thomson Sales Europe v Commission

(Joined Cases T-225/07 and T-364/07) (1)

(Customs union - Imports of colour television receivers manufactured in Thailand - Refund of import duties - Manifest negligence - Post-clearance recovery of import duties - Action for annulment - Act having adverse effects - Inadmissibility)

2009/C 267/101

Language of the case: French

Parties

Applicant: Thomson Sales Europe (Boulogne-Billancourt, France) (represented by: F. Goguel and F. Foucault, lawyers)

Defendant: Commission of the European Communities (represented in Case T-225/07by: X. Lewis, H. van Vliet and S. Schønberg and, in Case T-364/07, by: X. Lewis and M. Patakia, acting as Agents)

Re:

In Case T-225/07, annulment of Commission Decision REM 03/05 of 7 May 2007 stating to the French authorities that the refund of import duties is not justified on the importation of colour television receivers manufactured in Thailand covered by their application of 14 September 2005 and, in Case T-364/07, annulment of the letter of the Commission of 20 July 2007 not confirming acquisition of the entitlement to post-clearance recovery of import duties on those items.

Operative part of the judgment

The Court:

| 1. | Dismisses the actions; |
| --- | --- |

1.

Dismisses the actions;

| 2. | Orders Thomson Sales Europe to bear its own costs and to pay those incurred by the Commission of the European Communities. |
| --- | --- |

2.

Orders Thomson Sales Europe to bear its own costs and to pay those incurred by the Commission of the European Communities.

---

(1)  OJ C 211, 8.9.2007.

---

| 7.11.2009 | EN | Official Journal of the European Union | C 267/59 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/59

---

Judgment of the Court of First Instance of 23 September 2009 — Estonia v Commission

(Case T-263/07) (1)

(Environment - Directive 2003/87/EC - Emissions trading system for greenhouse gases - National plan allocating emissions allowances for Estonia for the period from 2008 to 2012 - Respective powers of the Member States and the Commission - Equal treatment - Article 9(1) and (3) and Article 11(2) of Directive 2003/87)

2009/C 267/102

Language of the case: Estonian

Parties

Applicant: Republic of Estonia (represented by: L. Uibo, acting as Agent)

Defendant: Commission of the European Communities (represented by: U. Wölker and T. Tamme, lawyers)

Interveners in support of the applicant: Republic of Lithuania (represented by: D. Kriaučiūnas, acting as Agent); and the Slovak Republic (represented initially by J. Čorba, and subsequently by B. Ricziová, acting as Agents)

Intervener in support of the defendant: United Kingdom of Great Britain and Northern Ireland (represented initially by: Z. Bryanston-Cross, subsequently by L. Seeboruth, and finally by S. Ossowski, acting as Agents, assisted by J. Maurici, barrister)

Re:

Application for the annulment of the Commission Decision of 4 May 2007 concerning the national allocation plan for the allocation of greenhouse gas emission allowances notified by the Republic of Estonia for the period from 2008 to 2012, in accordance with European Parliament and Council Directive 2003/87/EC of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ 2003 L 275, p. 32).

Operative part of the judgment

The Court:

| 1. | Annuls the Commission Decision of 4 May 2007 concerning the national allocation plan for the allocation of greenhouse gas emission allowances notified by the Republic of Estonia for the period from 2008 to 2012, pursuant to European Parliament and Council Directive 2003/87/EC of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC. |
| --- | --- |

1.

Annuls the Commission Decision of 4 May 2007 concerning the national allocation plan for the allocation of greenhouse gas emission allowances notified by the Republic of Estonia for the period from 2008 to 2012, pursuant to European Parliament and Council Directive 2003/87/EC of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC.

| 2. | Orders the Commission to bear its own costs and to pay those incurred by the Republic of Estonia. |
| --- | --- |

2.

Orders the Commission to bear its own costs and to pay those incurred by the Republic of Estonia.

| 3. | Orders the Republic of Lithuania, the Slovak Republic and the United Kingdom of Great Britain and Northern Ireland to bear their own costs. |
| --- | --- |

3.

Orders the Republic of Lithuania, the Slovak Republic and the United Kingdom of Great Britain and Northern Ireland to bear their own costs.

---

(1)  OJ C 223, 22.9.2007 (Correcting entry OJ C 247, 20.10.2007).

---

| 7.11.2009 | EN | Official Journal of the European Union | C 267/59 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/59

---

Judgment of the Court of First Instance of 23 September 2009 — Viñedos y Bodegas Príncipe Alfonso de Hohenlohe v OHIM — Byass (ALFONSO)

(Case T-291/07) (1)

(Community trade mark - Opposition proceedings - Application for the Community word mark ALFONSO - Earlier Community and national word marks PRINCIPE ALFONSO - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009) - Scope of the examination to be carried out by the Board of Appeal - Obligation to rule on the entirety of the action - Article 62(1) of Regulation No 40/94 (now Article 64(1) of Regulation No 207/2009)

2009/C 267/103

Language of the case: Spanish

Parties

Applicant: Viñedos y Bodegas Príncipe Alfonso de Hohenlohe, SA (Cenicero, Spain) (represented by: M. Lobato García-Miján and B. Díaz de Escauriaza, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: S. Palmero Cabezas and J. Laporta Insa, acting as Agents)

Other party to the proceedings before the Board of Appeal of OHIM: González Byass, SA (Cádiz, Spain)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 29 May 2007 (Case R 1110/2006-2) relating to opposition proceedings between Viñedos y Bodegas Príncipe Alfonso de Hohenlohe, SA and González Byass, SA

Operative part of the judgment

The Court:

| 1. | annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 29 May 2007 (Case R 1110/2006-2); |
| --- | --- |

1.

annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 29 May 2007 (Case R 1110/2006-2);

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

2.

orders OHIM to pay the costs.

---

(1)  OJ C 235, 6.10.2007.

---

| 7.11.2009 | EN | Official Journal of the European Union | C 267/60 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/60

---

Judgment of the Court of First Instance of 16 September 2009 — Offshore Legends v OHIM — Acteon (OFFSHORE LEGENDS in black and white and OFFSHORE LEGENDS in blue, black and green)

(Joined Cases T-305/07 and T-306/07) (1)

(Community trade mark - Opposition proceedings - Application for two Community figurative marks OFFSHORE LEGENDS, one in black and white, the other in blue, black and green - Earlier national figurative mark OFFSHORE 1 - Relative grounds for refusal - Likelihood of confusion - Similarity of goods and signs - Absence of request for proof of genuine use of the earlier mark - Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009) - Article 43(2) and (3) of Regulation No 40/94 in conjunction with Article 15(2)(a) of Regulation No 40/94 (now Article 42(2) and (3) and point (a) of the second subparagraph of Article 15(1) of Regulation No 207/2009)

2009/C 267/104

Language of the case: French

Parties

Applicant: Offshore Legends (Nevele, Belgium) (represented by: P. Maeyaert and N. Clarembeaux, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Acteon (Saint-Tropez, France) (represented by: M. Milon, lawyer)

Re:

Two actions brought against two decisions of the Second Board of Appeal of OHIM of 29 May 2007 (Case R 1031/2006-2 and Case R 1038/2006-2) relating to opposition proceedings between Acteon and Offshore Legends

Operative part of the judgment

The Court:

| 1. | dismisses the actions; |
| --- | --- |

1.

dismisses the actions;

| 2. | orders Offshore Legends to pay the costs. |
| --- | --- |

2.

orders Offshore Legends to pay the costs.

---

(1)  OJ C 269, 10.11.2007.

---

| 7.11.2009 | EN | Official Journal of the European Union | C 267/60 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/60

---

Judgment of the Court of First Instance of 16 September 2009 — Alber v OHIM (hand grip)

(Case T-391/07) (1)

(Community trade mark - Application for a three-dimensional Community trade mark - Hand grip - Absolute ground for refusal - Lack of distinctive character - Article 7(1)(b) of Regulation (EC) No 40/94 (now Article 7(1)(b) of Regulation (EC) No 207/2009) - Duty to give reasons - Article 73 of Regulation No 40/94 (now Article 75 of Regulation No 207/2009) - Principle of examination of the facts of its own motion - Article 74(1) of Regulation No 40/94 (now Article 76(1) of Regulation No 207/2009)

2009/C 267/105

Language of the case: German

Parties

Applicant: Alfons Alber (Verona, Italy) (represented by: S.Schneller, lawyer)

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

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 16 August 2007 (Case R 361/2007-4) and against the decision of the examiner of OHIM of 16 January 2007 in that case, in so far it rejects Community trade mark application No 4396727 for certain goods covered by that mark.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Alfons Alber to pay the costs. |
| --- | --- |

2.

Orders Alfons Alber to pay the costs.

---

(1)  OJ C 315, 22.12.2007.

---

| 7.11.2009 | EN | Official Journal of the European Union | C 267/60 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/60

---

Judgment of the Court of First Instance of 23 September 2009 — France Télécom v OHIM (UNIQUE)

(Case T-396/07) (1)

(Community trade mark - Application for the Community word mark UNIQUE - Absolute ground for refusal - Lack of distinctive character - Article 7(1)(b) of Regulation (EC) No 40/94 (now Article 7(1)(b) of Regulation (EC) No 207/2009)

2009/C 267/106

Language of the case: French

Parties

Applicant: France Télécom (Paris, France) (represented by: B. Potot and C. Bertheux Scotte, lawyers)

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

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 3 September 2007 (Case R 585/2007-2) concerning an application for registration of the word sign UNIQUE as a Community trade mark

Operative part of the judgment

The Court:

| 1. | dismisses the action; |
| --- | --- |

1.

dismisses the action;

| 2. | orders France Télécom to pay the costs. |
| --- | --- |

2.

orders France Télécom to pay the costs.

---

(1)  OJ C 315, 22.12.2007.

---

| 7.11.2009 | EN | Official Journal of the European Union | C 267/61 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/61

---

Judgment of the Court of First Instance of 23 September 2009 — Cohausz v OHIM — Izquierdo Faces (acopat)

(Case T-409/07) (1)

(Community trade mark - Invalidity proceedings - Community figurative mark acopat - Earlier national word marks COPAT - Relative ground for refusal - No genuine use of the earlier marks - Article 56(2) and (3) of Regulation (EC) No 40/94 (now Article 57(2) and (3) of Regulation (EC) No 207/2009)

2009/C 267/107

Language of the case: English

Parties

Applicant: Helge B. Cohausz (Düsseldorf, Germany) (represented initially by: I. Friedhoff, lawyer, and subsequently by S. von Petersdorff-Campen and H. Timmann, 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, intervening before the Court of First Instance: José Izquierdo Faces (Bilbao, Spain) (represented by: H. Bock, lawyer)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 6 September 2007 (Case R 289/2006-1) relating to invalidity proceedings between Helge B. Cohausz and José Izquierdo Faces.

Operative part of the judgment

The Court:

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

1.

Dismisses the action.

| 2. | Orders Mr Helge B. Cohausz to pay the costs. |
| --- | --- |

2.

Orders Mr Helge B. Cohausz to pay the costs.

---

(1)  OJ C 8, 12.1.2008.

---

| 7.11.2009 | EN | Official Journal of the European Union | C 267/61 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/61

---

Judgment of the Court of First Instance of 16 September 2009 — Dominio de la Vega v OHIM — Ambrosio Velasco (DOMINIO DE LA VEGA)

(Case T-458/07) (1)

(Community trade mark - Opposition proceedings - Application for Community figurative mark DOMINIO DE LA VEGA - Earlier Community figurative mark PALACIO DE LA VEGA - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009)

2009/C 267/108

Language of the case: Spanish

Parties

Applicant: Dominio de la Vega, SL (Requena, Spain) (represented by: E. Caballero Oliver and A. Sanz-Bernell y Martinéz, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Ambrosio Velasco, SA (Dicastillo, Spain) (represented by: E. Armijo Chávarri and A. Castán Pérez-Gómez, lawyers)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 3 October 2007 (Case R 1431/2006-2) relating to opposition proceedings between Ambrosio Velasco, SA and Dominio de la Vega, SL.

Operative part of the judgment

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

1.

The action is dismissed.

| 2. | Dominio de la Vega, SL is ordered to pay the costs. |
| --- | --- |

2.

Dominio de la Vega, SL is ordered to pay the costs.

---

(1)  OJ C 51, 23.2.2008.

---

| 7.11.2009 | EN | Official Journal of the European Union | C 267/62 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/62

---

Judgment of the Court of First Instance of 23 September 2009 — GlaxoSmithKline and others v OHIM — Serono Genetics Institute (FAMOXIN)

(Joined Cases T-493/07, T- 26/08 and T-27/08) (1)

(Community trade mark - Invalidity proceedings - Community word mark FAMOXIN - Earlier national word marks LANOXIN - Relative ground for refusal - No likelihood of confusion - Article 8(1)(b) and Article 52(1)(a) of Regulation (EC) No 40/94 (now Article 8(1)(b) and Article 53(1)(a) of Regulation (EC) No 207/2009) - Proof of use - Article 56(2) and (3) of Regulation No 40/94 (now Article 57(2) and (3) of Regulation No 207/2009)

2009/C 267/109

Language of the case: English

Parties

Applicants: GlaxoSmithKline SpA (Verona, Italy); Laboratórios Wellcome de Portugal Lda (Algés, Portugal); and The Wellcome Foundation Ltd (Greenford, Middlesex, United Kingdom) (represented by: R. Gilbey, Lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Serono Genetics Institute SA, (Évry, France)

Re:

Three actions brought against the decisions of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 14 September 2007 (Case R 8/2007-1), 20 November 2007 (Case R 10/2007-1) and 19 November 2007 (Case R 9/2007-1), relating to cancellation proceedings between, on the one hand, GlaxoSmithkline SpA, Laboratórios Wellcome De Portugal Lda and The Wellcome Foundation Ltd, and, on the other, Serono Genetics Institute SA.

Operative part of the judgment

The Court:

| 1. | Joins Cases T-493/07, T-26/08 and T-27/08 for the purposes of the present judgment; |
| --- | --- |

1.

Joins Cases T-493/07, T-26/08 and T-27/08 for the purposes of the present judgment;

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

2.

Dismisses the actions;

| 3. | Orders GlaxoSmithKline SpA, Laboratórios Wellcome de Portugal, Lda and The Wellcome Foundation Ltd to pay the costs. |
| --- | --- |

3.

Orders GlaxoSmithKline SpA, Laboratórios Wellcome de Portugal, Lda and The Wellcome Foundation Ltd to pay the costs.

---

(1)  OJ C 51, 23.2.2008.

---

| 7.11.2009 | EN | Official Journal of the European Union | C 267/62 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/62

---

Judgment of the Court of First Instance of 23 September 2009 — Evets v OHIM (DANELECTRO and QWIK TUNE)

(Joined Cases T-20/08 and T-21/08) (1)

(Community trade mark - Community word mark DANELECTRO and Community figurative mark QWIK TUNE - Failure to observe the time-limit for submitting a request for renewal of the trade marks - Application for restitutio in integrum - Reformatio in pejus - Rights of the defence - Right to be heard - Article 61(2), second sentence of Article 73, and Article 78 of Regulation (EC) No 40/94 (now Article 63(2), second sentence of Article 75, and Article 81 of Regulation (EC) No 207/2009)

2009/C 267/110

Language of the case: English

Parties

Applicant: Evets Corp. (Irvine, California, United States) (represented by: S. Ryan, Solicitor)

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

Re:

Action brought against two decisions of the Fourth Board of Appeal of OHIM of 5 November 2007 (Cases R 603/2007-4 and R 604/2007-4), relating to an application for restitutio in integrum made by the applicant.

Operative part of the judgment

The Court:

| 1. | Dismisses the actions; |
| --- | --- |

1.

Dismisses the actions;

| 2. | Orders Evets Corp. to pay the costs. |
| --- | --- |

2.

Orders Evets Corp. to pay the costs.

---

(1)  OJ C 64, 8.3.2008.

---

| 7.11.2009 | EN | Official Journal of the European Union | C 267/62 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/62

---

Judgment of the Court of First Instance of 16 September 2009 — Gres La Sagra v OHIM — Ceramicalcora (VENATTO MARBLE STONE)

(Case T-130/08) (1)

(Community trade mark - Opposition proceedings - Application for Community figurative mark VENATTO MARBLE STONE - Earlier national figurative marks VENETO CERÁMICAS - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009)

2009/C 267/111

Language of the case: Spanish

Parties

Applicant: Gres La Sagra, SL (Alameda de la Sagra, Spain) (represented by: T. Villate Consonni and J. Calderón Chavero, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Ceramicalcora, SA (Alcora, Spain)

Re:

Action brought against the decision of the Fourth Chamber of the Board of Appeal of OHIM of 30 January 2008 (Case R 1609/2006-4) relating to opposition proceedings between Ceramicalcora, SA and Gres La Sagra, SL.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Gres La Sagra, SL to pay the costs. |
| --- | --- |

2.

Orders Gres La Sagra, SL to pay the costs.

---

(1)  OJ C 116, 9.5.2008.

---

| 7.11.2009 | EN | Official Journal of the European Union | C 267/63 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/63

---

Judgment of the Court of First Instance of 29 September 2009 — The Smiley Company v OHIM (Representation of half a smiley smile)

(Case T-139/08) (1)

(Community trade mark - International registration designating the European Community - Figurative mark representing half a smiley smile - Absolute ground for refusal - Lack of distinctive character - Article 146(1) and Article 7(1)(b) of Regulation (EC) No 40/94 (now Article 151(1) and Article 7(1)(b) of Regulation (EC) No 207/2009)

2009/C 267/112

Language of the case: English

Parties

Applicant: The Smiley Company SPRL (Brussels, Belgium) (represented by: A. Deutsch, lawyer)

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

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 7 February 2008 (R 958/2007-4) concerning the international registration, designating the European Community, of the figurative mark representing half a smiley smile

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders The Smiley Company SPRL to pay the costs, including those connected with its substitution for Mr Franklin Loufrani. |
| --- | --- |

2.

Orders The Smiley Company SPRL to pay the costs, including those connected with its substitution for Mr Franklin Loufrani.

---

(1)  OJ C 142, 7.6.2008.

---

| 7.11.2009 | EN | Official Journal of the European Union | C 267/63 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/63

---

Judgment of the Court of First Instance of 16 September 2009 — Boudova and Others v Commission

(Case T-271/08) (1)

(Appeal - Public service - Officials - Former members of the auxiliary staff - Appointment - Classification in grade - Competition published before the entry in force of the new Staff Regulations - Reclassification by another institution of its officials - Refusal to reclassify - Principle of equal treatment - Action for annulment - Non-actionable measure - Confirmatory act - Absence of new and substantive facts - Absence of excusable error - Inadmissibility)

2009/C 267/113

Language of the case: French

Parties

Appellants: Stanislava Boudova (Howald, Luxembourg); Iveta Adovica (Luxembourg, Luxembourg); Juraj Kuba (Konz, Germany); Heinrihs Puciriuss (Luxembourg); Agnieszka Strzelecka (Arlon, Belgium); Izabela Szyprowska (Berbourg, Luxembourg); Timea Tibai (Luxembourg); and Birute Vaituleviciene (Luxembourg) (represented by: M.-A. Lucas, lawyer)

Other party to the proceedings: Commission of the European Communities (represented by: J. Currall and G. Berscheid, acting as Agents)

Re:

Appeal against the Order of the Civil Service Tribunal (Second Chamber) of 21 April 2008 in Case F-78/07 Boudova and Others v Commission, not yet published in the ECR, and seeking the annulment of that order.

Operative part of the judgment

The Court:

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

1.

Dismisses the appeal;

| 2. | Orders Stanislava Boudova, Iveta Adovica, Juraj Kuba, Heinrihs Puciriuss, Agnieszka Strzelecka, Izabela Szyprowska, Timea Tibai and Birute Vaituleviciene to bear their own costs and to pay those incurred by the Commission in the present proceedings. |
| --- | --- |

2.

Orders Stanislava Boudova, Iveta Adovica, Juraj Kuba, Heinrihs Puciriuss, Agnieszka Strzelecka, Izabela Szyprowska, Timea Tibai and Birute Vaituleviciene to bear their own costs and to pay those incurred by the Commission in the present proceedings.

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(1)  OJ C 260, 11.10.2008.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/64 |
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Order of the Court of First Instance of 2 September 2009 — E.ON Ruhrgas and E.ON Földgáz Trade v Commission

(Case T-57/07) (1)

(Action for annulment - Competition - Concentrations - Decision declaring the concentration compatible with the common market - Commitments - Commission letters regarding the commitments - Non-actionable measures - Inadmissibility)

2009/C 267/114

Language of the case: English

Parties

Applicants: E.ON Ruhrgas International AG (Essen, Germany); and E.ON Földgáz Trade Zrt (Budapest, Hungary) (represented by: G. Wiedemann and T. Lübbig, lawyers)

Defendant: Commission of the European Communities (represented by: A. Bouquet and V. Di Bucci, Agents)

Re:

APPLICATION for annulment of the decisions allegedly contained in the Commission’s letters of 19 December 2006 and 16 January 2007 concerning the commitments entered into by E.ON Ruhrgas International AG referred to in Article 3 of the Commission Decision of 21 December 2005 declaring a concentration to be compatible with the common market and the EEA Agreement (Case No COMP/M.3696 — E.ON/MOL).

Operative part of the order

The Court:

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

1.

Dismisses the action as inadmissible;

| 2. | Orders E.ON Ruhrgas International AG and E.ON Földgáz Trade Zrt to bear their own costs and to pay those incurred by the Commission of the European Communities. |
| --- | --- |

2.

Orders E.ON Ruhrgas International AG and E.ON Földgáz Trade Zrt to bear their own costs and to pay those incurred by the Commission of the European Communities.

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(1)  OJ C 95, 28.4.2007.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/64 |
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Order of the Court of First Instance of 4 September 2009 — Pioneer Hi-Bred International v Commission

(Case T-139/07) (1)

(Approximation of laws - Deliberate release into the environment of genetically modified organisms - Authorisation procedure for placing on the market - Failure by the Commission to submit draft measures to the regulatory committee - Action for failure to act - Action which becomes devoid of purpose in the course of proceedings - No need to adjudicate)

2009/C 267/115

Language of the case: English

Parties

Applicant: Pioneer Hi-Bred International, Inc. (Iowa, United States) (represented by: J. Temple Lang, Solicitor)

Defendant: Commission of the European Communities (represented initially by: D. Lawunmi and C. Zadra, and subsequently by P. Oliver and C. Zadra, acting as Agents)

Re:

Application for a declaration under Article 232 EC that, by failing to submit to the regulatory committee, in accordance with Article 5(2) of Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (OJ 1999 L 184, p. 23), a draft of the measures to be taken with regard to the notification by the applicant relating to the placing on the market of genetically modified maize 1507, the Commission has failed to fulfil its obligations under Article 18(1) of Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC (OJ 2001 L 106, p. 1).

Operative part of the order

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

1.

There is no need to adjudicate in the present action.

| 2. | The Commission of the European Communities shall bear its own costs and pay those incurred by Pioneer Hi-Bred International Inc. |
| --- | --- |

2.

The Commission of the European Communities shall bear its own costs and pay those incurred by Pioneer Hi-Bred International Inc.

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(1)  OJ C 155, 7.7.2007.

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Order of the Court of First Instance of 7 September 2009 — LPN v Commission

(Case T-186/08) (1)

(Action for annulment and damages - Environment - Directive 92/43/EEC - Decision to take no further action on a complaint - Failure to bring an action for failure to fulfil obligations - Access to documents - Regulation (EC) No 1049/2001 - Manifest inadmissibility - No need to adjudicate)

2009/C 267/116

Language of the case: Portuguese

Parties

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

Defendant: Commission of the European Communities (represented by: P. Costa de Oliveira and D. Recchia, Agents)

Intervener in support of the defendant: Portuguese Republic (represented by: L. Inez Fernandes, T. Moreira and A. de Oliveira Mendonça, Agents, and by D. Abecasis and A. Marques, lawyers)

Re:

Application for annulment of (i) the decision of the Commission of 28 February 2008, as referred to in the Commission’s letter of 3 April 2008, addressed to the applicant under reference ENV.A.2/MAS/mm/D (2008) 5542, by which the Commission declared its intention to take no further action on the applicant’s complaint regarding the alleged incompatibility of construction of a dam on the River Sabor (Portugal) with Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7) (complaint No 2003/4523 — ‘Baixa Sabor’ dam project) and (ii) an alleged implied decision of the Commission refusing to grant the applicant access to certain documents, and an application for compensation.

Operative part of the order

| 1. | There is no longer any need to adjudicate on the action in so far as it seeks the annulment of an alleged implied decision refusing access to documents under Article 8(3) of 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; |
| --- | --- |

1.

There is no longer any need to adjudicate on the action in so far as it seeks the annulment of an alleged implied decision refusing access to documents under Article 8(3) of 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;

| 2. | The remainder of the action is dismissed as manifestly inadmissibly; |
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2.

The remainder of the action is dismissed as manifestly inadmissibly;

| 3. | The Liga para a Protecção da Natureza (LPN) is ordered to bear its own costs and to pay those incurred by the Commission of the European Communities; |
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3.

The Liga para a Protecção da Natureza (LPN) is ordered to bear its own costs and to pay those incurred by the Commission of the European Communities;

| 4. | The Portuguese Republic is ordered to bear its own costs. |
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4.

The Portuguese Republic is ordered to bear its own costs.

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(1)  OJ C 183, 19.7.2008.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/65 |
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Order of the Court of First Instance of 9 September 2009 — Nijs v Court of Auditors

(Case T-375/08 P) (1)

(Appeal - Public service - Officials - Decision of the Court of Auditors to renew the mandate of its Secretary General - Decision not to promote the appellant in the 2004 promotion year - Appeal partly inadmissible and partly manifestly unfounded)

2009/C 267/117

Language of the case: French

Parties

Appellant: Bart Nijs (Bereldange, Luxembourg) (represented by: F. Rollinger and A. Hertzog, lawyers)

Other party to the proceedings: Court of Auditors (represented by: T. Kennedy, J.-M Stenier and G. Corstens, Agents)

Re:

Appeal against the order of the Civil Service Tribunal of the European Union (Second Chamber) in Case F-108/07 Nijs v Court of Auditors [2008] ECR I-0000 seeking the anuulment of that order.

Operative part of the order

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

1.

The appeal is dismissed.

| 2. | Mr Bart Nijs is to bear his own costs and to pay those incurred by the Court of Auditors of the European Communities in the present proceedings. |
| --- | --- |

2.

Mr Bart Nijs is to bear his own costs and to pay those incurred by the Court of Auditors of the European Communities in the present proceedings.

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(1)  OJ C 301, of 22.11.2008.

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Action brought on 4 August 2009 — Sanyō Denki v OHIM — Telefónica O2 Germany (eneloop)

(Case T -309/09)

2009/C 267/118

Language in which the application was lodged: German

Parties

Applicant: Sanyō Denki Kabushiki Kaisha (Osaka, Japan) (represented by: M. De Zorti, M. Koch and T. Grimm, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Telefónica O2 Germany GmbH & Co. OHG (Munich, Germany)

Form of order sought

| — | Annul the contested decision of the Second Board of Appeal of OHIM of 6 May 2009 (Case R 794/2008-2); |
| --- | --- |

—

Annul the contested decision of the Second Board of Appeal of OHIM of 6 May 2009 (Case R 794/2008-2);

| — | Order OHIM to pay the costs of the proceedings; |
| --- | --- |

—

Order OHIM to pay the costs of the proceedings;

| — | Order the intervener to pay the costs of the proceedings, including the costs incurred in the appeal procedure. |
| --- | --- |

—

Order the intervener to pay the costs of the proceedings, including the costs incurred in the appeal procedure.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘eneloop’ for goods in Class 9 (application No 4620225)

Proprietor of the mark or sign cited in the opposition proceedings: Telefónica O2 Germany GmbH & Co. OHG

Mark or sign cited in opposition: Inter alia, the German word mark ‘LOOP’ for goods and services in Classes 9, 38 and 42 (No 30 416 654,5)

Decision of the Opposition Division: Opposition allowed

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009, (1) since there is no likelihood of confusion between the marks at issue.

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(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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| 7.11.2009 | EN | Official Journal of the European Union | C 267/66 |
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Action brought on 10 August 2009 — Hoelzer v OHIM (SAFELOAD)

(Case T-315/09)

2009/C 267/119

Language in which the application was lodged: German

Parties

Applicant: Oliver Hoelzer (Remscheid, Germany) (represented by G. Rother and J. Vogtmeier, lawyers)

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

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 3 June 2009 (R 1157/2008-4); |
| --- | --- |

—

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 3 June 2009 (R 1157/2008-4);

| — | order the defendant to pay the costs of the proceedings, including those incurred in connection with the appeal. |
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—

order the defendant to pay the costs of the proceedings, including those incurred in connection with the appeal.

Pleas in law and main arguments

Community trade mark concerned: Figurative mark ‘SAFELOAD’ for goods in Classes 6 and 12 (application No 6330831)

Decision of the Examiner: Registration refused.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Article 7(1)(c) of Regulation (EC) No 207/2009, (1) since the word element of the mark applied for does not describe the characteristics of the goods covered by the application.

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(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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| 7.11.2009 | EN | Official Journal of the European Union | C 267/66 |
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Action brought on 14 August 2009 — Concord Power Nordal v Commission

(Case T-317/09)

2009/C 267/120

Language of the case: German

Parties

Applicant: Concord Power Nordal GmbH (Hamburg, Germany) (represented by: C. von Hammerstein, C.-S. Schweer and C. Wünschmann, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul the Commission’s decision of 12 June 2009 (ref: CAB D(2009)) in so far as it concerns the gas pipeline project Ostseepipeline-Anbindungsleitung (‘OPAL’); |
| --- | --- |

—

Annul the Commission’s decision of 12 June 2009 (ref: CAB D(2009)) in so far as it concerns the gas pipeline project Ostseepipeline-Anbindungsleitung (‘OPAL’);

| — | 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

The applicant, which is responsible for the NORDAL gas pipeline project, objects to a letter from the Commission to the German energy regulatory authority, the Bundesnetzagentur, of 12 June 2009 in which the Commission requests the Bundesnetzagentur to make certain amendments to the exemption granted in respect of OPAL pursuant to Article 22 of Directive 2003/55/EC. (1) The applicant complains that the Commission failed to object fundamentally to the exemption from regulation granted in respect of some of OPAL’s transportation capacity to the Czech Republic.

In support of its claim, the applicant puts forward five pleas in law.

First, the applicant complains that OPAL does not satisfy the requirements of Article 22(1) of Directive 2003/55/EC, as it is not an interconnector, does not enhance competition or security of supply, does not amount to an extraordinary investment risk and infringes the unbundling requirement. In that respect, it is also submitted that the exemption will be detrimental to competition and to the effective functioning of the internal market and of the regulated system.

Second, the applicant submits that the conditions attached to the grant of the exemption are not capable of preventing harm to competition, or enforceable.

Further, the applicant alleges infringement of Article 82 EC, of its fundamental rights (namely the freedom of enterprise and of ownership) and of the principle of Community loyalty.

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(1)  Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC (OJ 2003 L 176, p. 57).

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/67 |
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Action brought on 14 August 2009 — Audi and Volkswagen v OHIM (TDI)

(Case T-318/09)

2009/C 267/121

Language in which the application was lodged: German

Parties

Applicants: Audi AG (Ingolstadt, Germany) and Volkswagen AG (Wolfsburg, Germany) (represented by P. Kather, lawyer)

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

Form of order sought

| — | Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 14 May 2009 (Case R 226/2007-1); |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 14 May 2009 (Case R 226/2007-1);

| — | Order the Office for Harmonisation in the Internal Market to pay the costs. |
| --- | --- |

—

Order the Office for Harmonisation in the Internal Market to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘TDI’ for goods in Class 12 (application No 3179058)

Decision of the Examiner: Registration refused

Decision of the Board of Appeal: Appeal dismissed

Pleas in law:

| — | Infringement of Article 7(3) of Regulation (EC) No 207/2009 (1) as the mark applied for has the requisite acquired distinctiveness; |
| --- | --- |

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Infringement of Article 7(3) of Regulation (EC) No 207/2009 (1) as the mark applied for has the requisite acquired distinctiveness;

| — | Infringement of Article 7(1)(b) and (c) of Regulation No 207/2009 as the mark applied for has the requisite distinctive character; |
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Infringement of Article 7(1)(b) and (c) of Regulation No 207/2009 as the mark applied for has the requisite distinctive character;

| — | Infringement of the first clause of Article 76(1) of Regulation No 207/2009 as the defendant failed to take up the applicants’ offers of evidence; |
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Infringement of the first clause of Article 76(1) of Regulation No 207/2009 as the defendant failed to take up the applicants’ offers of evidence;

| — | Infringement of Article 75 of Regulation No 207/2009. |
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Infringement of Article 75 of Regulation No 207/2009.

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(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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Action brought on 14 August 2009 — Planet v Commission

(Case T-320/09)

2009/C 267/122

Language of the case: Greek

Parties

Applicant: Planet AE, a public limited consultancy company (represented by: V. Christianos, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | annul the two Commission (OLAF) decisions requesting the applicant’s registration initially in category W1a and subsequently in category W1b of the early warning system (EWS); |
| --- | --- |

—

annul the two Commission (OLAF) decisions requesting the applicant’s registration initially in category W1a and subsequently in category W1b of the early warning system (EWS);

| — | order the Commission to pay the applicant’s costs. |
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—

order the Commission to pay the applicant’s costs.

Pleas in law and main arguments

The present action seeks the annulment, first, of the Commission decision requesting the applicant’s registration in category W1a of the early warning system (‘the EWS’) and, second, of the Commission decision requesting the amendment of that first decision in order to register the applicant from 25 May 2009 in the more unfavourable category W1b of the EWS.

The applicant submits that the contested measures are vitiated by infringement of essential procedural requirements, on account of a failure to comply with the conditions laid down by Decision 2008/969/EC (1) that relate to the procedural rules which must be followed in order for registrations entered in the EWS to be consistent with Community law. In particular, the applicant observes that, under Article 8(1) of that decision, the competent Commission organ responsible for signing a contract is obliged to inform in advance the natural or legal person in respect of whom registration of a warning in the EWS has been requested that data concerning him may be registered. Moreover, under Article 3(1)(c) of the decision, the registration must be accompanied by due reasoning.

The applicant further contends that the failure to comply with the obligations laid down by Article 8 of Decision 2008/969/EC also infringes basic principles and fundamental rights recognised by Community law. In the applicant’s submission, the Commission’s conduct is contrary to the principle of sound administration, laid down in Article 41 of the Charter of Fundamental Rights of the European Union, since the Commission did not duly inform the applicant in advance in accordance with the requirements of Article 8(1) of Decision 2008/969/EC, denying it the possibility of making its views known. At the same time, the Commission breached its duty of care. Furthermore, the Commission’s conduct infringes Article 1 of the Code of Good Administrative Behaviour applicable to Commission staff in their relations with the public.

Finally, the applicant contends that the Commission infringed the right to a prior hearing, rights of defence and the presumption of innocence since the applicant was not given the opportunity to make known its views and its objections regarding the decisions as to registration in the EWS which were to be adopted by the competent Commission organ.

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(1)  Commission Decision 2008/969/EC, Euratom of 16 December 2008 on the Early Warning System for the use of authorising officers of the Commission and the executive agencies (OJ 2008 L 344, p. 125).

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/68 |
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Action brought on 14 August 2009 — skytron energy v OHIM (arraybox)

(Case T-321/09)

2009/C 267/123

Language in which the application was lodged: German

Parties

Applicant: skytron energy GmbH & Co. KG (Berlin, Germany) (represented by H.-J. Omsels, lawyer)

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

Form of order sought

| — | Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 4 June 2009 in Case R 1680/2008-1; |
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Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 4 June 2009 in Case R 1680/2008-1;

| — | In the alternative, refer the case back to the Office for Harmonisation in the Internal Market; |
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In the alternative, refer the case back to the Office for Harmonisation in the Internal Market;

| — | Order the Office for Harmonisation in the Internal Market to pay the costs. |
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—

Order the Office for Harmonisation in the Internal Market to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘arraybox’ for goods and services in Classes 9, 37, 38 and 42 (application No 6 710 479)

Decision of the Examiner: Registration refused

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation No 207/2009 (1) as the sign applied for is not descriptive and has the requisite distinctive character.

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(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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| 7.11.2009 | EN | Official Journal of the European Union | C 267/68 |
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Action brought on 18 August 2009 — Connefroy and Others v Commission

(Case T-327/09)

2009/C 267/124

Language of the case: French

Parties

Applicants: Philippe Connefroy (Le Rozel, France), Jean-Guy Gueguen (Carantec, France) and EARL de Cavagnan (Bouglon, France) (represented by: C. Galvez, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul the contested decision on the basis of the fourth paragraph of Article 230 EC; |
| --- | --- |

—

Annul the contested decision on the basis of the fourth paragraph of Article 230 EC;

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

—

Order the Commission to pay all the costs.

Pleas in law and main arguments

The applicants seek the annulment of Commission Decision C(2009) 203 final of 28 January 2009 (1), by which the Commission had declared incompatible with the common market the State aid granted by the French Republic to fruit and vegetable producers in the context of ‘contingency plans’ aimed at facilitating the marketing of agricultural products harvested in France and had instructed the French Republic to recover the aid in question.

The pleas in law and main arguments relied on by the applicants are identical or similar to those relied on in the context of Case T-243/09 Fedecom v Commission
   (2).

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(1)  OJ 2009 L 127, p. 11 — published under No 2009/402/EC.

(2)  OJ 2009 C 205, p. 43.

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Action brought on 19 August 2009 — Producteurs de Légumes de France v Commission

(Case T-328/09)

2009/C 267/125

Language of the case: French

Parties

Applicant: Les Producteurs de Légumes de France (Paris, France) (represented by: O. Fachin, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | annul the contested decision on the basis of the fourth paragraph of Article 230 of the EC Treaty; |
| --- | --- |

—

annul the contested decision on the basis of the fourth paragraph of Article 230 of the EC Treaty;

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

—

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

Pleas in law and main arguments

The applicant seeks annulment of Commission Decision C(2009) 203 final of 28 January 2009, (1) by which the Commission declared incompatible with the common market the State aid granted by the French Republic to fruit and vegetable producers under the ‘contingency plans’ intended to facilitate marketing of agricultural products harvested in France and instructed the French Republic to recover the aid in question.

In support of its action, the applicant raises two pleas in law, alleging:

| — | breach of the principle of legitimate expectations, since the fact that the Commission was, in the period 1992 to 2002, aware of the existence of the contingency plans but did not, even so, institute a procedure gave rise to expectations on the part of the producers as to the validity of those plans; |
| --- | --- |

—

breach of the principle of legitimate expectations, since the fact that the Commission was, in the period 1992 to 2002, aware of the existence of the contingency plans but did not, even so, institute a procedure gave rise to expectations on the part of the producers as to the validity of those plans;

| — | an error in the amount of reimbursement sought in respect of 2001, which affects the overall amount of the reimbursement and the interest claimed. |
| --- | --- |

—

an error in the amount of reimbursement sought in respect of 2001, which affects the overall amount of the reimbursement and the interest claimed.

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(1)  OJ L 127, p.11 — published as Decision 2009/402/EC.

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Action brought on 24 August 2009 — Fédération Internationale des Logis v OHIM (Brown convex square)

(Case T-329/09)

2009/C 267/126

Language in which the application was lodged: French

Parties

Applicant: Fédération Internationale des Logis (Paris, France) (represented by C. Champagner Katz, lawyer)

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

Form of order sought

| — | Annul the decision of the First Board of Appeal of OHIM of 11 June 2009 in Case R 0202/2009-1 and allow registration of the trade mark applied for; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of OHIM of 11 June 2009 in Case R 0202/2009-1 and allow registration of the trade mark applied for;

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

—

Order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Mark representing a brown convex square for the goods and services in Classes 3, 18, 24, 43 and 44 — Application No 6468722

Decision of the Examiner: Rejection of the application for registration

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) of Regulation No 207/2009 as the representation of a special and specific square with convex edges in a particular and specific brown colour is distinctive with respect to the goods and services for which registration was sought, in so far as those elements give the mark a particular appearance for those goods and services.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/69 |
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7.11.2009

EN

Official Journal of the European Union

C 267/69

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Action brought on 19 August 2009 — RapidEye v Commission

(Case T-330/09)

2009/C 267/127

Language of the case: German

Parties

Applicant: RapidEye AG (Brandenburg an der Havel, Germany) (represented by: T. Jestaedt, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | Annulment of the Commission’s decision by letter of 9 June 2009 in Case ‘State Aid CP 183/2009 — Germany, RapidEye AG (ex-post monitoring MSR 1998 — N 416/2002)’ in so far as the Commission thereby holds that a State aid intensity of 35 % of the gross grant equivalent and a State aid amount of EUR 44 199 321,36are inadmissible, and that State aid which exceeds either an aid intensity of 30,22 % or a maximum aid amount of EUR 37 316 000 requires a new notification; |
| --- | --- |

—

Annulment of the Commission’s decision by letter of 9 June 2009 in Case ‘State Aid CP 183/2009 — Germany, RapidEye AG (ex-post monitoring MSR 1998 — N 416/2002)’ in so far as the Commission thereby holds that a State aid intensity of 35 % of the gross grant equivalent and a State aid amount of EUR 44 199 321,36are inadmissible, and that State aid which exceeds either an aid intensity of 30,22 % or a maximum aid amount of EUR 37 316 000 requires a new notification;

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

—

Order the Commission to pay the costs.

Pleas in law and main arguments

By its Decision C (2002) 3570 final of 2 October 2002, the Commission authorised State aid in favour of RapidEye AG (State Aid No N 416/2002 — Germany (Brandenburg), aid for RapidEye AG) in accordance with the multisectoral framework on regional aid for large investment projects (1), in which a maximum aid intensity and maximum aid amount are determined (‘Commission decision of 2 October 2002’).

In the present case, the applicant disputes the Commission letter D (2009) 569 of 9 June 2009 concerning State aid CP 183/2009 — Germany, RapidEye AG (ex-post monitoring MSR 1998 — N 416/2002). In that letter, the German authorities were in particular required to comply with the aid intensity and aid amount authorised by the Commission decision of 2 October 2002 and to confirm that any amounts paid to the beneficiary which exceed those maximum amounts would be recovered.

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

First, the applicant alleges an infringement of Articles 87 and 88 EC and of Article 2(1) of Regulation (EC) No 659/1999 (2), as, in its opinion, State aid up to an aid intensity of 35 % is covered by the Commission decision of 2 October 2002.

Next, the applicant claims that the defendant misused its powers in so far as, contrary to its decision of 2 October 2002, it refused to authorise aid up to an aid intensity of 35 % without a new notification.

Third, the applicant asserts an infringement of the principle of the protection of legitimate expectations as the applicant, as a result of the aid, made investments on the understanding that aid up to an intensity of 35 % would be authorised.

Furthermore, in the alternative, an infringement of Article 88(3) EC is claimed. The applicant asserts in this regard that even if the Commission decision of 2 October 2002 is to be interpreted as meaning that it authorises a maximum aid intensity of only 30,22 %, the increase to an intensity of 35 % amounts to an insignificant amendment to the aid, which does not require a new notification.

Finally, in the alternative, the applicant alleges an infringement of Article 3 of Regulation (EC) No 800/2008 (3). It thereby asserts that, concerning an increase in the amount of aid to 35 % of the maximum aid intensity, the Commission requires a new notification without verifying whether the aid is exempted pursuant to Article 3 of Regulation No 800/2008.

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(1)  OJ 1998 C 107, p. 7.

(2)  Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88 EC] (OJ 1999 L 83, p. 1).

(3)  Commission Regulation (EC) No 800/2008 of 6 August 2008 declaring certain categories of aid compatible with the common market in application of Articles 87 and 88 of the Treaty (General block exemption Regulation) (OJ 2008 L 214, p. 3).

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/70 |
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7.11.2009

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Official Journal of the European Union

C 267/70

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Action brought on 25 August 2009 — Novartis v OHIM — Sanochemia Pharmazeutika AG

(Case T -331/09)

2009/C 267/128

Language in which the application was lodged: German

Parties

Applicant: Novartis AG (Basel, Switzerland) (represented by: N. Hebeis, lawyer)

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

Other part to the proceedings before the Board of Appeal of OHIM: Sanochemia Pharmazeutika AG

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 18 June 2009 in Case R 1601/2007-1; and |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 18 June 2009 in Case R 1601/2007-1; and

| — | Order the Office for Harmonisation in the Internal Market to pay the costs. |
| --- | --- |

—

Order the Office for Harmonisation in the Internal Market to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Sanochemia Pharmazeutika AG

Community trade mark concerned: the word mark, ‘TOLPOSAN’ for goods in Class 5 (Registration No 4 134 383)

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

Mark or sign cited in opposition: the international registration of the word mark ‘TONOPAN’ for goods in Class 5 (No 227 508)

Decision of the Opposition Division: Opposition dismissed

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009 (1), since there is no likelihood of confusion between the trade marks at issue.

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(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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| 7.11.2009 | EN | Official Journal of the European Union | C 267/71 |
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7.11.2009

EN

Official Journal of the European Union

C 267/71

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Action brought on 20 August 2009 — Electrabel v Commission

(Case T-332/09)

2009/C 267/129

Language of the case: French

Parties

Applicant: Electrabel (represented by: M. Pittie and P. Honoré, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | declare the application admissible and well founded; |
| --- | --- |

—

declare the application admissible and well founded;

| — | as the main plea, annul Articles 2 and 3 of the contested decision or at least reduce the amount of the fine imposed on the applicant under Article 2 of the contested decision; |
| --- | --- |

—

as the main plea, annul Articles 2 and 3 of the contested decision or at least reduce the amount of the fine imposed on the applicant under Article 2 of the contested decision;

| — | in any event, order the Commission to pay all the costs incurred by the applicant in connection with these proceedings. |
| --- | --- |

—

in any event, order the Commission to pay all the costs incurred by the applicant in connection with these proceedings.

Pleas in law and main arguments

By the present proceedings, the applicant seeks primarily the annulment of Commission Decision C(2009) 4416 final of 10 June 2009, by which the Commission found that the applicant had infringed Article 7(1) of Regulation No 4064/89 (1) by implementing a concentration having Community dimension before notifying it, and before it was declared compatible with the common market. The applicant seeks, in the alternative, the annulment or at least the reduction of the amount of the fine imposed on it by Article 2 of the contested decision.

In support of its action the applicant puts forward four pleas:

| — | incorrect classification of the infringement on account, in particular, of a confusion between the infringement consisting in the failure to notify the Commission and the infringement consisting in the advance implementation of the concentration and, therefore, a contradiction in the reasoning between the classification of the infringement and the substantive assessment of its duration; |
| --- | --- |

—

incorrect classification of the infringement on account, in particular, of a confusion between the infringement consisting in the failure to notify the Commission and the infringement consisting in the advance implementation of the concentration and, therefore, a contradiction in the reasoning between the classification of the infringement and the substantive assessment of its duration;

| — | infringement of Articles 3(3) and 14(2) of Regulation No 4064/89 and the guidelines on the definition of concentration, by holding that there was an acquisition of de facto sole control of the Compagnie Nationale du Rhône by Electrabel on 23 December 2003. The applicant claims that the Commission has ignored relevant aspects of the case, in particular, the fact that the Compagnie Nationale du Rhône is a public company; that it has applied the definition of de facto sole control that it has established in its guidelines on the definition of concentration incompletely and erroneously and (iii) has committed several manifest errors of assessment relating, in particular, to the governance bodies of the Compagnie Nationale du Rhône; |
| --- | --- |

—

infringement of Articles 3(3) and 14(2) of Regulation No 4064/89 and the guidelines on the definition of concentration, by holding that there was an acquisition of de facto sole control of the Compagnie Nationale du Rhône by Electrabel on 23 December 2003. The applicant claims that the Commission has ignored relevant aspects of the case, in particular, the fact that the Compagnie Nationale du Rhône is a public company; that it has applied the definition of de facto sole control that it has established in its guidelines on the definition of concentration incompletely and erroneously and (iii) has committed several manifest errors of assessment relating, in particular, to the governance bodies of the Compagnie Nationale du Rhône;

| — | that the Commission's power to impose a fine in this case is time-barred and |
| --- | --- |

—

that the Commission's power to impose a fine in this case is time-barred and

| — | a breach of the principles of proportionality, sound administration and the principle of the protection of legitimate expectations by imposing a fine on the applicant of such a large amount for an infringement which had no effect on competition. |
| --- | --- |

—

a breach of the principles of proportionality, sound administration and the principle of the protection of legitimate expectations by imposing a fine on the applicant of such a large amount for an infringement which had no effect on competition.

---

(1)  Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (OJ 1989 L 395, p. 1; republished in its entirety in OJ 1990 L 257, p. 13, as rectifed).

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/71 |
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7.11.2009

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Official Journal of the European Union

C 267/71

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Action brought on 20 August 2009 — Poland v Commission

(Case T-333/09)

2009/C 267/130

Language of the case: Polish

Parties

Claimant: Republic of Poland (represented by: M. Dowgielewicz, Agent)

Defendant: Commission of the European Communities

Form of order sought

| — | declare invalid Annex I to Commission Decision 2009/444/EC of 10 June 2009 (notified under document number C(2009) 4375) allocating the amounts resulting from the modulation provided for in Articles 7 and 10 of Council Regulation (EC) No 73/2009 to the Member States for the years 2009 to 2012, (1) in so far as it determines, for 2012, the allocation to the Member States of the amounts resulting from the modulation provided for in accordance with Article 9(2) and (3) of Regulation (EC) No 73/2009; |
| --- | --- |

—

declare invalid Annex I to Commission Decision 2009/444/EC of 10 June 2009 (notified under document number C(2009) 4375) allocating the amounts resulting from the modulation provided for in Articles 7 and 10 of Council Regulation (EC) No 73/2009 to the Member States for the years 2009 to 2012, (1) in so far as it determines, for 2012, the allocation to the Member States of the amounts resulting from the modulation provided for in accordance with Article 9(2) and (3) of Regulation (EC) No 73/2009;

| — | 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 its claim that Commission Decision 2009/444/EC should be declared partially invalid, the claimant makes the following submissions.

First, the claimant alleges an infringement of the principle of the hierarchy of legal norms by reason of the adoption of measures which are contrary to Article 9(2) of Regulation No 73/2009. (2) The claimant submits in this regard that the contested decision divides the amounts provided for the whole of the period 2009-2012 exclusively among the States of the Community of Fifteen, whereas Article 9(2) of Regulation No 73/2009 provides that, from 2012, those States will not be the only Member States to be affected by that modulation. In connection with the foregoing, in the claimant’s view, the new Member States will also have to be subject to that mechanism with regard to 2012.

Second, the claimant alleges that there has been an infringement of, first, the principle that funds should be allocated from the modulation in accordance with objective criteria, which principle follows from recital 14 in the preamble to Regulation No 73/2009 and from Article 9(2) thereof and, second, the principle of solidarity.

Third, the claimant alleges that the principle of non-discrimination has been infringed, in so far as, in its view, the criteria applied by the Commission for the allocation of funds from the modulation for 2012 (such as the date of accession of a particular Member State to the European Union and the level of contributions of a given Member State to the allocation of funds from the modulation), which led to the exclusion of the Republic of Poland and other new Member States from allocations under those funds, are not objective and do not ensure a proportional distribution of burdens and benefits resulting from the modulation mechanism.

Fourth, the claimant submits that the contested decision breaches Article 253 EC in that the grounds for excluding the new Member States from the distribution for 2012 with regard to the funds allocated from the modulation, which have to be allocated in accordance with objective criteria among all of the Member States which apply the modulation mechanism, were not indicated by the Commission in the content of the contested decision, in particular in its preamble, or in the course of the preparatory work on the contested decision.

Fifth, the claimant alleges that the defendant failed to comply with an essential procedural requirement by reason of the fact that it adopted the contested decision in a manner at variance with the procedural rules governing the Management Committee for Direct Payment Matters and with Article 3 of Council Regulation No 1 determining the languages to be used by the European Economic Community. (3) The claimant contends that the Commission failed to provide the representative of the Republic of Poland with a draft version of the contested decision in Polish, despite being requested to do so, a failure which made it difficult for the claimant to assess that draft version and to carry out the necessary consultations.

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(1)  OJ 2009 L 148 of 11.06.2009, p. 29.

(2)  Council Regulation (EC) No 73/2009 of 19 January 2009 establishing common rules for direct support schemes for farmers under the common agricultural policy and establishing certain support schemes for farmers, amending Regulations (EC) No 1290/2005, (EC) No 247/2006, (EC) No 378/2007 and repealing Regulation (EC) No 1782/2003 (OJ 2009 L 30 of 31.01.2009, p. 16).

(3)  OJ, English Special Edition 1952-1958, p. 59.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/72 |
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7.11.2009

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Official Journal of the European Union

C 267/72

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Action brought on 24 August 2009 — Groupement Adriano, Jaime Ribeiro, Conduril-Construção v Commission

(Case T-335/09)

2009/C 267/131

Language of the case: Portuguese

Parties

Applicants: Groupement Adriano, Jaime Ribeiro, Conduril-Construção (Póvoa de Varzim, Portugal) (represented by A. Pinto Cardoso and L. Fuzeta da Ponte, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | annulment of the Commission’s decision contained in debit note No 3230905272 of 12 June 2009 and of the decision contained in the notification of 3 August 2009 ordering the applicant to pay that note within a period of 15 days, together with default interest, in performance of Contract AH 04/2004, concluded for the construction of a section of highway between Tangiers and Saida (‘Mediterranean Bypass Project’), financed by the Community under Programme MEDA I; |
| --- | --- |

—

annulment of the Commission’s decision contained in debit note No 3230905272 of 12 June 2009 and of the decision contained in the notification of 3 August 2009 ordering the applicant to pay that note within a period of 15 days, together with default interest, in performance of Contract AH 04/2004, concluded for the construction of a section of highway between Tangiers and Saida (‘Mediterranean Bypass Project’), financed by the Community under Programme MEDA I;

| — | an order that the Commission should pay the costs. |
| --- | --- |

—

an order that the Commission should pay the costs.

Pleas in law and main arguments

The measures are actionable, for they are decisive and definitive in nature and have binding effect, and the parties have capacity to bring proceedings.

Both measures are marred by:

| | Absolute lack of powers: the defendant is not the ‘pouvoir adjudicateur’ (the contracting authority), because there is no contractual provision whatsoever to support the defendant’s conduct. The defendant thus not only lacks powers, but also any competence in these proceedings. |
| --- | --- |

Absolute lack of powers: the defendant is not the ‘pouvoir adjudicateur’ (the contracting authority), because there is no contractual provision whatsoever to support the defendant’s conduct. The defendant thus not only lacks powers, but also any competence in these proceedings.

| | Breach of essential procedural requirements, in particular, the duty to state reasons: as provided for in Article 253 of the Treaty, reasons must be given for Community measures. In accordance with the case-law, the reasoning must be express, clear, coherent and relevant. The measure may not be implied or based on tacit grounds, nor may it be clothed in obscurity. There must be no contradiction between the grounds or between the grounds and the enacting terms. The contested decisions lack any grounds whatsoever. There is also a breach of the essential procedural requirement of an indication of the legal remedies. |
| --- | --- |

Breach of essential procedural requirements, in particular, the duty to state reasons: as provided for in Article 253 of the Treaty, reasons must be given for Community measures. In accordance with the case-law, the reasoning must be express, clear, coherent and relevant. The measure may not be implied or based on tacit grounds, nor may it be clothed in obscurity. There must be no contradiction between the grounds or between the grounds and the enacting terms. The contested decisions lack any grounds whatsoever. There is also a breach of the essential procedural requirement of an indication of the legal remedies.

| | infringement of the rules of the Treaty, that is to say, of Articles 211 to 219, of the defendant’s own internal regulations and of the principle ‘pacta sunt servanda’. |
| --- | --- |

infringement of the rules of the Treaty, that is to say, of Articles 211 to 219, of the defendant’s own internal regulations and of the principle ‘pacta sunt servanda’.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/73 |
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7.11.2009

EN

Official Journal of the European Union

C 267/73

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Action brought on 27 August 2009 — Müller-Boré & Partner v OHIM — Popp and Other (MBP)

(Case T -338/09)

2009/C 267/132

Language in which the application was lodged: German

Parties

Applicant: Müller-Boré & Partner (Munich, Germany) (represented by: C. Osterrieth and T. Schmitz, lawyers)

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

Other parties to the proceedings before the Board of Appeal of OHIM: E. Popp (Munich, Germany), W. E. Sajda (Munich), J. Bohnenberger (Munich), V. Kruspig (Munich)

Form of order sought

| — | Annulment the decision of the Fourth Board of Appeal of OHIM of 23 June 2009 in Case R 1176/2007-4 and amendment of it so as to reject the appeal and objection in their entirety; |
| --- | --- |

—

Annulment the decision of the Fourth Board of Appeal of OHIM of 23 June 2009 in Case R 1176/2007-4 and amendment of it so as to reject the appeal and objection in their entirety;

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

—

Order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: the word mark ‘MBP’ for services in Classes 35 and 42 (Application No. 1 407 857)

Proprietor of the mark or sign cited in the opposition proceedings: E. Popp, W. E. Sajda, J. Bohnenberger and V. Kruspig

Mark or sign cited in opposition: the word mark ‘ip_law@mbp.’ for services in Class 42 (Community Trademark No. 667 105) and the special trade name ‘mbp.de.’ under German trade mark law

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Opposition upheld in part

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009 (1),] since there is no likelihood of confusion between the trade marks at issue.

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(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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| 7.11.2009 | EN | Official Journal of the European Union | C 267/73 |
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7.11.2009

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Official Journal of the European Union

C 267/73

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Action brought on 19 August 2009 — Evropaïki Dynamiki v Publications Office of the European Union

(Case T-340/09)

2009/C 267/133

Language of the case: English

Parties

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

Defendant: Publications Office of the European Union

Form of order sought

| — | Annul the OPOCE’s decision to reject the bids of the applicant, filed in response to the open call for tenders No 10017 “CORDIS” Lot B “Editorial and Publishing Services” and Lot C “Provision of New Digital Information Services” and to select the bid of the applicant filed in response to the open call for tenders No 10017 “CORDIS” Lot E “Development and Maintenance of Core Services”, for the award of the above procurement contract as third contractor in the cascade mechanism (OJ 2008/S 242-321376 as amended by OJ 2009/S 40-057377), communicated to the applicant by a letter dated 9 June 2009 and all further related decisions of the OPOCE including the one to award the respective contracts to the successful contractors; |
| --- | --- |

—

Annul the OPOCE’s decision to reject the bids of the applicant, filed in response to the open call for tenders No 10017 “CORDIS” Lot B “Editorial and Publishing Services” and Lot C “Provision of New Digital Information Services” and to select the bid of the applicant filed in response to the open call for tenders No 10017 “CORDIS” Lot E “Development and Maintenance of Core Services”, for the award of the above procurement contract as third contractor in the cascade mechanism (OJ 2008/S 242-321376 as amended by OJ 2009/S 40-057377), communicated to the applicant by a letter dated 9 June 2009 and all further related decisions of the OPOCE including the one to award the respective contracts to the successful contractors;

| — | order the OPOCE to pay the applicant’s damages suffered on account of the tendering procedure in question for an amount of EUR 7 215 405 (EUR 5 291 935 for Lot B, EUR 975 000 for Lot C and EUR 948 470 for Lot E); |
| --- | --- |

—

order the OPOCE to pay the applicant’s damages suffered on account of the tendering procedure in question for an amount of EUR 7 215 405 (EUR 5 291 935 for Lot B, EUR 975 000 for Lot C and EUR 948 470 for Lot E);

| — | order the OPOCE to pay the applicant’s legal and other costs and expenses incurred in connection with this application, even if the current application is rejected. |
| --- | --- |

—

order the OPOCE to pay the applicant’s legal and other costs and expenses incurred in connection with this application, even if the current application is rejected.

Pleas in law and main arguments

By means of this application the applicant seeks the annulment of the decision of OPOCE to: a) reject the bids of the applicant, filed in response to the open call for tenders No 10017 “CORDIS” Lot B “Editorial and Publishing Services” and Lot C “Provision of New Digital Information Services”, b) select the bid of the applicant filed in response to the open call for tenders No 10017 “CORDIS” Lot E “Development and Maintenance of Core Services”, for the award of the above procurement contract as third contractor in the cascade mechanism (OJ 2008/S 242-321376 as amended by OJ 2009/S 40-057377).

The applicant claims, first, concerning Lot B, that the treatment between tenderers was discriminatory, since one of the members of the winning consortium did not comply with the exclusion criteria and should, accordingly, have been found to be in serious breach of its contractual obligations towards the Commission. Moreover, the applicant claims that Articles 93(1)(f) and 94 of the Financial Regulation (1) and the principle of good administration have been infringed by the contracting authority and that the Commission should have imposed sanctions provided for by Article 96 of the Financial Regulation and Articles 133a and 134b of its Implementing Rules (2).

Second, the applicant claims that the contracting authority has failed to disclose the relative merits of the successful tenderer.

Third, the applicant submits that the Commission has made several manifest errors of assessment while evaluating its tender and submits that it has infringed the principle of equal treatment while introducing new award criteria not specified in the Tender Specifications (“TS”). Furthermore, the applicant contends that the contracting authority infringed Article 148(1) and (3) of the Implementing Rules, as well as the principle of good administration.

Concerning Lot C, the applicant submits that the treatment between tenderers was discriminatory since one of the members of the third in the cascade mechanism consortium did not comply with the exclusion criteria and should have been found to be in serious breach of previous contracts. Secondly, the applicant claims that the contracting authority has failed to disclose the relative merits of the successful tenderer and has infringed the Principle of good administration.

Concerning Lot E, the applicant argues that one of the members of the winning consortium did not comply with the exclusion criteria because it should have been declared in serious breach of a previous contract and that another one of the members of the same consortium should have been excluded from all tenders for two years because it was found guilty for illegal activities. Moreover, the applicant contends that one of the members of the winning consortium uses non WTO/GPA (3) contractors, infringing the TS of the call for tenders, the principles of transparency and of non discrimination, as well as Articles 106 and 107 of the Financial Regulation. The applicant contends that non WTO/GPA member companies should neither be allowed, nor participate to European Institutions’ Call for tenders directly or indirectly, nor undertake as a subcontractor any work falling under the Financial Regulation or Directive 2004/18/EC (4).

Finally, the applicant claims that the contracting authority failed to state reasons conducted several manifest errors of assessment, introduced new award criteria not specified in the TS and infringed while evaluating its tender and that of another tenderer the principle of equal treatment.

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

(2)  Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities, as amended by Commission Regulation (EC,Euratom) No 478/2007 of 23 April 2007 (OJ 2007 L 111, p. 13)

(3)  Multilateral Agreement on Government Procurement concluded within the World Trade Organisation

(4)  Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114)

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/75 |
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Action brought on 1 September 2009 — Amecke Fruchtsaft v OHIM — Beate Uhse (69 Sex up)

(Case T-343/09)

2009/C 267/134

Language in which the application was lodged: German

Parties

Applicant: Amecke Fruchtsaft GmbH & Co. KG (Menden, Germany) (represented by: R. Kaase and J.-C. Plate)

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

Other party to the proceedings before the Board of Appeal of OHIM: Beate Uhse Einzelhandels GmbH

Form of order sought

| — | Declare admissible the action brought against the decision of the First Board of Appeal of OHIM of 11 June 2009 in Case R 1728/2008-1; |
| --- | --- |

—

Declare admissible the action brought against the decision of the First Board of Appeal of OHIM of 11 June 2009 in Case R 1728/2008-1;

| — | Annul the contested decision on the ground of infringement of Article 8(1)(b) of Regulation (EC) No 207/2009; (1) |
| --- | --- |

—

Annul the contested decision on the ground of infringement of Article 8(1)(b) of Regulation (EC) No 207/2009; (1)

| — | Order the defendant to pay the costs, including the costs of the opposition and the appeal. |
| --- | --- |

—

Order the defendant to pay the costs, including the costs of the opposition and the appeal.

Pleas in law and main arguments

Applicant for a Community trade mark: Beate Uhse Einzelhandels GmbH.

Community trade mark concerned: the word mark “69 Sex up” for goods and services in Classes 32 and 41 (Application No 5 274 303).

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

Mark or sign cited in opposition: German word mark “sex:h:up” for goods in classes 5, 29, 30 and 32 (No 30 531 669), although the opposition was directed solely against the registration for goods in class 32.

Decision of the Opposition Division: allow the opposition

Decision of the Board of Appeal: annulment of the contested decision and dismissal of the opposition.

Pleas in law: infringement of Article 8(1)(b) of Regulation No 207/2009 in that there is a likelihood of confusion between the two marks.

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(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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| 7.11.2009 | EN | Official Journal of the European Union | C 267/75 |
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Official Journal of the European Union

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Action brought on 31 August 2009 — Germany v Commission

(Case T-347/09)

2009/C 267/135

Language of the case: German

Parties

Applicant: Federal Republic of Germany (represented by: M. Lumma and B. Klein)

Defendant: Commission of the European Communities

Form of order sought

| — | Declare Commission Decision SG-Greffe (2009) D/3985 on State aid No NN 8/2009 of 2 July 2009 null and void, to the extent that the measures notified are categorised as State aid within the meaning of Article 87(1) EC; |
| --- | --- |

—

Declare Commission Decision SG-Greffe (2009) D/3985 on State aid No NN 8/2009 of 2 July 2009 null and void, to the extent that the measures notified are categorised as State aid within the meaning of Article 87(1) EC;

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

The applicant challenges Commission Decision K(2009) 5080, definitive since 2 July 2009, concerning aid rules which consist of, first, the free transfer of federally-owned national nature reserves and, second, support for large conservation projects (State aid NN 8/21009 — Germany — Conservation areas). In that decision, the Commission takes the view that the aid rules notified are compatible with the common market under Article 86(2) EC. The applicant challenges the contested decision, to the extent that the measures notified are categorised as State aid within the meaning of Article 87(1) EC.

As the basis of its action, the applicant claims that the defendant incorrectly applied Article 87(1) EC in a number of respects. In that regard, it is submitted, inter alia, that the defendant wrongly categorises conservation organisations as undertakings and wrongly failed to carry out the necessary overall assessment of the measures referred to. Furthermore, the conservation organisations have obtained no material advantage for State aid purposes from the measures referred to. The applicant further complains of an incorrect application of the fourth criterion laid down by the Court of Justice in Case C-280/00 Altmark Trans und Regierungspräsidium Magdeburg [2003] ECR I-7747.

In the alternative, a breach of the duty to state reasons laid down in Article 253 EC is claimed.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/76 |
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C 267/76

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Action brought on 3 September 2009 — PAGO International v OHIM — Tirol Milch (Pago)

(Case T-349/09)

2009/C 267/136

Language in which the application was lodged: German

Parties

Applicant: PAGO International GmbH (Klagenfurt, Austria) (represented by: C. Hauer and C. Schumacher, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Tirol Milch reg.Gen.mbH Innsbruck (Innsbruck, Austria)

Form of order sought

| — | Amend the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 1 July 2009 concerning cancellation proceedings No 2025 C (Community trade mark No 915 488) so as to dismiss the appeal by Tirol Milch registrierte Genossenschaft mit beschränkter Haftung against the decision of the Cancellation Division of 4 August 2008, and order Tirol Milch registrierte Genossenschaft mit beschränkter Haftung to pay the costs of the appeal proceedings; |
| --- | --- |

—

Amend the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 1 July 2009 concerning cancellation proceedings No 2025 C (Community trade mark No 915 488) so as to dismiss the appeal by Tirol Milch registrierte Genossenschaft mit beschränkter Haftung against the decision of the Cancellation Division of 4 August 2008, and order Tirol Milch registrierte Genossenschaft mit beschränkter Haftung to pay the costs of the appeal proceedings;

| — | in the alternative, annul the decision of the Fourth Board of Appeal and refer the case back to the Office for Harmonisation in the Internal Market (Trade Marks and Designs) for a fresh decision. |
| --- | --- |

—

in the alternative, annul the decision of the Fourth Board of Appeal and refer the case back to the Office for Harmonisation in the Internal Market (Trade Marks and Designs) for a fresh decision.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The coloured figurative mark ‘Pago’ for goods in Class 32 (Community trade mark No 915 488)

Proprietor of the Community trade mark: The applicant

Applicant for the declaration of invalidity: Tirol Milch registrierte Genossenschaft mit beschränkter Haftung

Decision of the Cancellation Division: Revocation in part of the Community trade mark

Decision of the Board of Appeal: Annulment in part of the decision of the Cancellation Division and revocation of the Community trade mark

Pleas in law:

| — | Infringement of Article 51 in conjunction with Article 15(1)(a) of Regulation (EC) No 207/2009, (1) inasmuch as it was incorrectly deemed not to have been proved that the trade mark at issue in the proceedings had been used in such a way as to preserve the rights of the proprietor; |
| --- | --- |

—

Infringement of Article 51 in conjunction with Article 15(1)(a) of Regulation (EC) No 207/2009, (1) inasmuch as it was incorrectly deemed not to have been proved that the trade mark at issue in the proceedings had been used in such a way as to preserve the rights of the proprietor;

| — | Infringement of Article 75 of Regulation No 207/2009 and of fundamental Community rights, in particular the right to a fair hearing. |
| --- | --- |

—

Infringement of Article 75 of Regulation No 207/2009 and of fundamental Community rights, in particular the right to a fair hearing.

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(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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| 7.11.2009 | EN | Official Journal of the European Union | C 267/76 |
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Action brought on 4 September 2009 — ICO Satellite v Commission

(Case T-350/09)

2009/C 267/137

Language of the case: English

Parties

Applicant: ICO Satellite Ltd (Slough, United Kingdom) (represented by: S. Tupper, Solicitor)

Defendant: Commission of the European Communities

Form of order sought

| — | order that Decision No 2009/449/EC of 13 May 2009 on the selection of operators of pan-European Systems providing mobile satellite services (MSS) is void in accordance with the provisions of Articles 230 and 231 EC; |
| --- | --- |

—

order that Decision No 2009/449/EC of 13 May 2009 on the selection of operators of pan-European Systems providing mobile satellite services (MSS) is void in accordance with the provisions of Articles 230 and 231 EC;

| — | order that the costs of the present action be paid by the defendant and any other orders it may deem appropriate. |
| --- | --- |

—

order that the costs of the present action be paid by the defendant and any other orders it may deem appropriate.

Pleas in law and main arguments

By means of its application, the applicant seeks the annulment of Commission Decision No 2009/449/EC of 13 May 2009 on the selection of operators of pan-European Systems providing mobile satellite services (“MSS”) (1).

It is submitted that the contested decision has the effect of depriving the applicant of property rights legitimately accrued to it under international law. The applicant further claims that the contested decision is unlawful because the Commission has:

| (a) | discriminated against the applicant by involving a former chairman of the Inmarsat Ventures Limited Council (“Inmarsat”) in the decision-making process, thereby infringing essential procedural requirements and breaching the principle of equal treatment; and |
| --- | --- |

(a)

discriminated against the applicant by involving a former chairman of the Inmarsat Ventures Limited Council (“Inmarsat”) in the decision-making process, thereby infringing essential procedural requirements and breaching the principle of equal treatment; and

| (b) | acted unreasonably, by selecting Inmarsat and Solaris Mobile Limited over the applicant when the latter is allegedly in an objectively better position to provide MSS.
  According to the applicant, by adopting the contested decision, the defendant has acted disproportionately and in a way which is discriminatory and contrary to the applicant’s legitimate expectations. The applicant further submits that the contested decision also constitutes a violation of its rights to the peaceful enjoyment of its possessions as protected by Article 1 of Protocol 1 to the European Convention of Human Rights (“ECHR”), as well as the right to enjoy its civil rights, including property rights and the right to a fair and public hearing, enshrined in Article 6 of the ECHR. |
| --- | --- |

(b)

acted unreasonably, by selecting Inmarsat and Solaris Mobile Limited over the applicant when the latter is allegedly in an objectively better position to provide MSS.

According to the applicant, by adopting the contested decision, the defendant has acted disproportionately and in a way which is discriminatory and contrary to the applicant’s legitimate expectations. The applicant further submits that the contested decision also constitutes a violation of its rights to the peaceful enjoyment of its possessions as protected by Article 1 of Protocol 1 to the European Convention of Human Rights (“ECHR”), as well as the right to enjoy its civil rights, including property rights and the right to a fair and public hearing, enshrined in Article 6 of the ECHR.

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(1)  2009/449/EC: Commission Decision of 13 May 2009 on the selection of operators of pan-European systems providing mobile satellite services (MSS) (notified under document number C(2009) 3746) (OJ 2009 L 149, p. 65)

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/77 |
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Action brought on 14 September 2009 — Novácke chemické závody/Commission

(Case T-352/09)

2009/C 267/138

Language of the case: English

Parties

Applicant: Novácke chemické závody, a.s. (Nováky, Slovak Republic) (represented by: A. Černejová, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul the contested decision with respect to the applicant and consequently cancel the fine imposed on the applicant; or |
| --- | --- |

—

Annul the contested decision with respect to the applicant and consequently cancel the fine imposed on the applicant; or

| — | in the alternative, cancel the fine imposed on the applicant in the Article 2 of the decision or at least significantly decrease the fine imposed on the applicant; and |
| --- | --- |

—

in the alternative, cancel the fine imposed on the applicant in the Article 2 of the decision or at least significantly decrease the fine imposed on the applicant; and

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

By means of the present application, the applicant seeks the annulment of Commission decision of 22 July 2009 (Case No COMP/F/39.396 — Calcium and magnesium reagents for the steel and gas industries) where the Commission found the applicant together with other undertakings liable for the infringement of Article 81 EC and Article 53 EEA through market sharing, quotas, customer allocation, price fixing and exchanges of sensitive commercial information between suppliers of calcium carbide and magnesium granulates. Alternatively, the applicant seeks the cancellation or reduction of the fine imposed on it pursuant to Article 31 of Council Regulation (EC) No 1/2003.

The application is based on the following grounds:

| | First, the applicant submits that the Commission has breached the principle of proportionality and equal treatment which are general principles of Community law, by imposing an excessive and disproportionate fine on the applicant. |
| --- | --- |

First, the applicant submits that the Commission has breached the principle of proportionality and equal treatment which are general principles of Community law, by imposing an excessive and disproportionate fine on the applicant.

| | Second, that applicant claims that the Commission failed to investigate the applicant’s ability to pay the fine and the risk that the fine may lead to its bankruptcy. The applicant submits, in particular, that the Commission failed to adhere to the essential procedural requirements, that it did not properly examine the evidence supplied by the applicant showing the imminent risk of a bankruptcy proceeding should the Commission impose a fine on it. Hence, it is submitted that the Commission committed a manifest error of appraisal in failure to establish the aforementioned risk and to apply paragraph 35 of the Guidelines in respect of the applicant. |
| --- | --- |

Second, that applicant claims that the Commission failed to investigate the applicant’s ability to pay the fine and the risk that the fine may lead to its bankruptcy. The applicant submits, in particular, that the Commission failed to adhere to the essential procedural requirements, that it did not properly examine the evidence supplied by the applicant showing the imminent risk of a bankruptcy proceeding should the Commission impose a fine on it. Hence, it is submitted that the Commission committed a manifest error of appraisal in failure to establish the aforementioned risk and to apply paragraph 35 of the Guidelines in respect of the applicant.

| | Third, the applicant contends that the imposition of the fine on the applicant will directly cause its bankruptcy as well as its elimination as a competitor on the relevant market. Thus, according to the applicant, the Commission has violated Article 3(1)(g) EC by distorting or eliminating competition on the relevant market. |
| --- | --- |

Third, the applicant contends that the imposition of the fine on the applicant will directly cause its bankruptcy as well as its elimination as a competitor on the relevant market. Thus, according to the applicant, the Commission has violated Article 3(1)(g) EC by distorting or eliminating competition on the relevant market.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/78 |
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C 267/78

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Action brought on 16 September 2009 — Commission v Association Fédération Club B2A

(Case T-356/09)

2009/C 267/139

Language of the case: French

Parties

Applicant: Commission of the European Communities (Étupes, France) (represented by: A.-M. Rouchaud-Joët and N. Bambara, acting as Agents, and E. Bouttier, lawyer)

Defendant: Association Fédération Club B2A

Form of order sought

| — | order the Fédération, represented by its President, to pay to the applicant the amount of ... euros ... corresponding to the principal sum of EUR 62 500 and the sum of ... euros ... in late-payment interest falling due on ...; |
| --- | --- |

—

order the Fédération, represented by its President, to pay to the applicant the amount of ... euros ... corresponding to the principal sum of EUR 62 500 and the sum of ... euros ... in late-payment interest falling due on ...;

| — | order the Fédération to pay the sum of EUR 7 000 in order to cover the costs incurred by the Commission in recovering its debt; |
| --- | --- |

—

order the Fédération to pay the sum of EUR 7 000 in order to cover the costs incurred by the Commission in recovering its debt;

| — | order the Fédération to pay the costs of the present case. |
| --- | --- |

—

order the Fédération to pay the costs of the present case.

Pleas in law and main arguments

The European Community, represented by the Commission, concluded a grant contract in respect of a project for the ‘creation and operation of a federation of regional networks of Business Angels for Eastern France’. The project, during which the Commission paid, as an advance, the sum of EUR 62 500 to the defendant, was completed on 30 September 2002.

In that contract, the defendant undertook, inter alia, to provide a final report. Since an incomplete report was provided, the Commission put the defendant on formal notice to produce a report that met the objectives. Since that letter of formal notice and numerous other letters went unanswered by the defendant, the Commission sent a debit note and then an order for recovery of the amount of EUR 62 500 to the defendant.

Since that debt remains unpaid, the Commission is seeking an order that the defendant pay the sum due and the losses suffered in order to cover the entirety of the expenses which the Commission has had to incur in order to recover its debt, submitting that a) the defendant has failed to fulfil its obligations laid down in the contract by failing to submit a full final report and b) payment of the sum of EUR 62 500 by the Commission was made as an advance pending acceptance of the final report.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/78 |
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Action brought on 15 September 2009 — Pucci International v OHIM — El Corte Inglés (Emidio Tucci)

(Case T-357/09)

2009/C 267/140

Language in which the application was lodged: English

Parties

Applicants: Emilio Pucci International BV (Baarn, The Netherlands) (represented by: M. Boletto, E. Gavuzzi, G. Lazzeretti and P. Roncaglia, lawyers)

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

Other party to the proceedings before the Board of Appeal: El Corte Inglés, SA (Madrid, Spain)

Form of order sought

| — | Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 18 June 2009 in joined cases R 770/2008-2 and R 826/2008-2, in so far as it accepted registration of Community trade mark application No 3 679 594“Emidio Tucci” for all the goods and services it covers in classes 1, 2, 4-17, 19, 20, 21, 22, 23, 26-45; |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 18 June 2009 in joined cases R 770/2008-2 and R 826/2008-2, in so far as it accepted registration of Community trade mark application No 3 679 594“Emidio Tucci” for all the goods and services it covers in classes 1, 2, 4-17, 19, 20, 21, 22, 23, 26-45;

| — | Order the defendant to pay the costs incurred by the applicant during these proceedings; and |
| --- | --- |

—

Order the defendant to pay the costs incurred by the applicant during these proceedings; and

| — | Order the other party to the proceedings before the Board of Appeal to pay the costs incurred by the applicant during the proceedings before OHIM’s Opposition Division and Board of Appeal. |
| --- | --- |

—

Order the other party to the proceedings before the Board of Appeal to pay the costs incurred by the applicant during the proceedings before OHIM’s Opposition Division and Board of Appeal.

Pleas in law and main arguments

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

Community trade mark concerned: The figurative mark “Emidio Tucci”, for goods and services in classes 1-45

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

Mark or sign cited: Community trade mark registration of the figurative mark “Emilio Pucci” registered for goods in classes 18 and 24; Italian trade mark registration of the word mark “EMILIO PUCCI” registered for goods classes 3, 14, 18, 21, 24, 25 and 33; Italian trade mark registration of the word mark “EMILIO PUCCI” registered for goods classes 9, 12, 18, 20, 26, 27 and 34; Italian trade mark registration of the figurative mark “Emilio Pucci” registered for goods classes 14, 18, 24 and 25

Decision of the Opposition Division: Partially accepted the opposition

Decision of the Board of Appeal: Partially upheld the appeal in cases R 826/2008-2 and R 770/2008-2; dismissed the appeal for the remainder

Pleas in law: Infringement of Articles 8(1)(b) and 8(5) of Council Regulation 207/2009 as the Board of Appeal erred in its conclusion that these legal provisions could not apply with respect to the goods and services covered by the Community trade mark concerned in classes 1, 2, 4-17, 19, 20, 21 (part of), 22, 23 and 26-45.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/79 |
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7.11.2009

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C 267/79

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Action brought on 16 September 2009 — Sociedad Agricola Requingua v OHIM — Consejo Regulador de la Denominación de Origen Toro (TORO DE PIEDRA)

(Case T-358/09)

2009/C 267/141

Language in which the application was lodged: English

Parties

Applicants: Sociedad Agricola Requingua Ltda (Santiago, Chile) (represented by: E. Vorbuchner, lawyer)

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

Other party to the proceedings before the Board of Appeal: Consejo Regulador de la Denominación de Origen Toro (Toro, Spain)

Form of order sought

| — | Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 18 June 2009 in case R 1117/2008-2; |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 18 June 2009 in case R 1117/2008-2;

| — | Order the defendant to bear all the costs, i.e. the costs of the opposition proceedings, the proceedings before the Board of Appeal and the present proceedings; and |
| --- | --- |

—

Order the defendant to bear all the costs, i.e. the costs of the opposition proceedings, the proceedings before the Board of Appeal and the present proceedings; and

| — | Order the other party to the proceedings before the Board of Appeal to pay its own costs. |
| --- | --- |

—

Order the other party to the proceedings before the Board of Appeal to pay its own costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark “TORO DE PIEDRA”, for goods in class 33

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: Community trade mark registration of the figurative mark “D. ORIGEN TORO” for goods in class 33; Spanish trade mark registration of the figurative mark “Denominación de Origen TORO” for goods in class 33

Decision of the Opposition Division: Upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation 207/2009 as the Board of Appeal wrongly held that there was a likelihood of confusion between the trade marks concerned; infringement of Article 75(2) of Council Regulation 207/2009 and the right to be heard as the Board of Appeal failed to hear the latest submission of the applicant; infringement of the obligation to state reasons according to Article 75(1) of Council Regulation 207/2009, as the Board of Appeal failed to reason why it abstained from taking the latest submission of the applicant into account.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/80 |
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Action brought on 14 September 2009 — Jurašinović v Council

(Case T-359/09)

2009/C 267/142

Language of the case: French

Parties

Applicant: Ivan Jurašinović (Angers, France) (represented by: A. Beguin, lawyer)

Defendant: Council of the European Union

Form of order sought

| — | Annul the express decision of 17 June 2009 and the subsequent implied decision by which the applicant was refused access to the following documents:






  — | reports of observers of the European Union in Croatia on the Knin zone from 1 August to 31 August 1995; |
| --- | --- | --- |

—

Annul the express decision of 17 June 2009 and the subsequent implied decision by which the applicant was refused access to the following documents:

—

reports of observers of the European Union in Croatia on the Knin zone from 1 August to 31 August 1995;

| — | the documents entitled ‘ECMM RC Knin Log Reports’; |
| --- | --- |

—

the documents entitled ‘ECMM RC Knin Log Reports’;

| — | order the Council of the European Union — Secretariat-General to grant electronic access to the documents sought; |
| --- | --- |

—

order the Council of the European Union — Secretariat-General to grant electronic access to the documents sought;

| — | order the Council of the European Union to pay the applicant EUR 2 000 exclusive of tax or EUR 2 392 inclusive of tax in procedural indemnity with interest, at the rate determined by the ECB in respect of the day the application was lodged. |
| --- | --- |

—

order the Council of the European Union to pay the applicant EUR 2 000 exclusive of tax or EUR 2 392 inclusive of tax in procedural indemnity with interest, at the rate determined by the ECB in respect of the day the application was lodged.

Pleas in law and main arguments

By the present action, the applicant seeks annulment of the express decision of 17 June 2009 and the subsequent implied decision of the Council refusing him access to the reports of the European Union observers in Croatia on the Knin zone from 1 August to 31 August 1995 and to the documents entitled ‘ECMM RC Knin Log Reports’.

The applicant raises two pleas in law in support of his action:

| — | disclosure would not undermine the protection of the public interest as regards international relations in accordance with Article 4(1)(a) of Regulation No 1049/2001 (1) in so far as:






  — | no specific legal protection may apply to the documents sought; and |
| --- | --- | --- |

—

disclosure would not undermine the protection of the public interest as regards international relations in accordance with Article 4(1)(a) of Regulation No 1049/2001 (1) in so far as:

—

no specific legal protection may apply to the documents sought; and

| — | even supposing that specific protection may apply, half of the maximum period of protection laid down in Article 4(7) of Regulation No 1049/2001 has already passed, which justifies the grant of access to the documents sought; |
| --- | --- |

—

even supposing that specific protection may apply, half of the maximum period of protection laid down in Article 4(7) of Regulation No 1049/2001 has already passed, which justifies the grant of access to the documents sought;

| — | in addition, unless classed in a protective category, the documents in question do not fall within the category of sensitive documents within the meaning of Article 9 of Regulation No 1049/2001. |
| --- | --- |

—

in addition, unless classed in a protective category, the documents in question do not fall within the category of sensitive documents within the meaning of Article 9 of Regulation No 1049/2001.

| — | disclosure would not undermine the protection of court proceedings and legal advice in accordance with Article 4(2) of Regulation No 1049/2001 in so far as:






  — | that exception concerns the protection of court proceedings of the European Union and of the Member States, whereas, in the present case, the Council justifies its refusal to grant access on the basis of court proceedings before the International Criminal Tribunal for the former Yugoslavia; |
| --- | --- | --- |

—

disclosure would not undermine the protection of court proceedings and legal advice in accordance with Article 4(2) of Regulation No 1049/2001 in so far as:

—

that exception concerns the protection of court proceedings of the European Union and of the Member States, whereas, in the present case, the Council justifies its refusal to grant access on the basis of court proceedings before the International Criminal Tribunal for the former Yugoslavia;

| — | the documents sought have already been sent to the parties in the Gotovina case before the International Criminal Tribunal for the former Yugoslavia, which justifies also giving the applicant access to them; |
| --- | --- |

—

the documents sought have already been sent to the parties in the Gotovina case before the International Criminal Tribunal for the former Yugoslavia, which justifies also giving the applicant access to them;

| — | it is not the task of the Council to ensure that proceedings before the International Criminal Tribunal for the former Yugoslavia run smoothly; and |
| --- | --- |

—

it is not the task of the Council to ensure that proceedings before the International Criminal Tribunal for the former Yugoslavia run smoothly; and

| — | there is an overriding public interest in the disclosure of the documents sought. |
| --- | --- |

—

there is an overriding public interest in the disclosure of the documents sought.

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

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/80 |
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Action brought on 17 September 2009 — Longevity Health Products v OHIM — Gruppo Lepetit (RESVEROL)

(Case T-363/09)

2009/C 267/143

Language in which the application was lodged: English

Parties

Applicants: Longevity Health Products, Inc. (Nassau, The Bahamas) (represented by: J. Korab, lawyer)

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

Other party to the proceedings before the Board of Appeal: Gruppo Lepetit SpA (Lainate, Italy)

Form of order sought

| — | Admit the complaint filed by the applicant; |
| --- | --- |

—

Admit the complaint filed by the applicant;

| — | Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 9 July 2009 in case R 1204/2008-2 and dismiss the request for a declaration of invalidity filed by the other party to the proceedings before the Board of Appeal with regard to Community trade mark 5 244 512; and |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 9 July 2009 in case R 1204/2008-2 and dismiss the request for a declaration of invalidity filed by the other party to the proceedings before the Board of Appeal with regard to Community trade mark 5 244 512; and

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

—

Order the defendant to bear the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark “RESVEROL”, for goods and services in classes 3, 5 and 35

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: National trade mark registrations of the mark “LESTEROL” for goods in class 5

Decision of the Opposition Division: Upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation 207/2009 as the Board of Appeal wrongly held that there was a likelihood of confusion between the trade marks concerned.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/81 |
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Action brought on 17 September 2009 — Michalakopoulou Ktimatiki Touristiki v OHIM — Free (FREE)

(Case T-365/09)

2009/C 267/144

Language in which the application was lodged: English

Parties

Applicants: Michalakopoulou Ktimatiki Touristiki AE (Athens, Greece) (represented by: A. Koliothomas and K. Papadiamantis, lawyers)

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

Other party to the proceedings before the Board of Appeal: Free SAS (Paris, France)

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 11 June 2009 in case R 1346/2008-1; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 11 June 2009 in case R 1346/2008-1;

| — | Dismiss the opposition; |
| --- | --- |

—

Dismiss the opposition;

| — | Order the defendant to bear the costs before the Court of First Instance; and |
| --- | --- |

—

Order the defendant to bear the costs before the Court of First Instance; and

| — | Order the other party to the proceedings before the Board of Appeal to bear the costs incurred in such proceedings. |
| --- | --- |

—

Order the other party to the proceedings before the Board of Appeal to bear the costs incurred in such proceedings.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark “FREE”, for goods in class 16

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: French trade mark registration of the word mark “FREE” for services in class 38; French trade mark registration of the figurative mark “FREE — LA LIBERTÉ N’A PAS DE PRIX” for services in classes 35 and 38

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Annulled the decision of the Opposition Division and rejected the Community trade mark application in its entirety

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation 207/2009 as the Board of Appeal wrongly held that there was a likelihood of confusion between the trade marks concerned; infringement of Article 75 of Council Regulation 207/2009 as the Board of Appeal failed to state reasons for its finding that there was similarity between the goods in class 16 covered by the Community trade mark concerned and services in class 38 covered by the earlier trade mark.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/82 |
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7.11.2009

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Official Journal of the European Union

C 267/82

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Action brought on 18 September 2009 — Tecnoprocess v Commission and Delegation of the European Commission to the Republic of Nigeria

(Case T-367/09)

2009/C 267/145

Language of the case: Italian

Parties

Applicant: Tecnoprocess (Rome, Italy) (represented by A. Majoli, lawyer)

Defendant: Commission of the European Communities and Delegation of the European Commission to the Republic of Nigeria

Form of order sought

| — | a declaration pursuant to Article 232 EC that the EU Delegation to Abuya and the Commission of the European Communities have failed to act; |
| --- | --- |

—

a declaration pursuant to Article 232 EC that the EU Delegation to Abuya and the Commission of the European Communities have failed to act;

| — | a declaration, on the basis of Article 288 of the Treaty, that the Delegation and the Commission have incurred non-contractual liability vis-à-vis the applicant and an order that they should jointly and severally pay it compensation for damage in the sum of EUR 600 000 (six hundred thousand euro). |
| --- | --- |

—

a declaration, on the basis of Article 288 of the Treaty, that the Delegation and the Commission have incurred non-contractual liability vis-à-vis the applicant and an order that they should jointly and severally pay it compensation for damage in the sum of EUR 600 000 (six hundred thousand euro).

Pleas in law and main arguments

The company which is the applicant in these proceedings is the same as in Case T-264/09 Tecnoprocess v Commission of the European Communities and European Commission Delegation to Morocco. (1)

The subject-matter of the dispute is the conditions surrounding the performance of the contract ‘EuropeAid 123511/D/SUP/NG — Supply, Installation, Delivery, Commissioning and After-Sale Service of 114 27 Kva Generators to the EC Assisted Prime Project in Nigeria’, designed to ensure the supply and installation of 114 27 KVA generators, and the performance of after-sales service assistance, for the National Authorising Officer, National Planning Commission and, especially for the offices of that body situated in six of the main geographic areas of Nigeria.

The applicant claims that the Commission has not shown due care and attention in monitoring the conditions in which the contract at issue was carried out, failing to find a satisfactory solution for its interests faced with the serious breaches of obligations to be found in its performance.

In support of its heads of claim, the applicant puts forward pleas in law and main arguments similar to those pleaded in Case T-264/09, cited above.

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(1)  OJ 2009 C 220, p. 16.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/82 |
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Order of the Court of First Instance of 22 September 2009 — Fjord Seafood Norway and Others v Council

(Case T-113/06) (1)

2009/C 267/146

Language of the case: English

The President of the Fifth Chamber has ordered that the case be in part removed from the register.

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(1)  OJ C 131, 3.6.2006.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/82 |
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Order of the Court of First Instance of 21 September 2009 — Ryanair v Commission

(Case T-404/07) (1)

2009/C 267/147

Language of the case: English

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

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(1)  OJ C 8, 12.1.2008.

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European Union Civil Service Tribunal

| 7.11.2009 | EN | Official Journal of the European Union | C 267/83 |
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Judgment of the Civil Service Tribunal (Second Chamber) of 24 September 2009 — Brown v Commission

(Case F-37/05) (1)

(Staff case - Competition internal to the institution - Admission criteria - Members of the auxiliary staff - Rejection of candidature)

2009/C 267/148

Language of the case: French

Parties

Applicant: Michael Brown (Overijse, Belgium) (represented by: L. Vogel, lawyer)

Defendant: Commission of the European Communities (represented by: H. Tserepa-Lacombe and K. Herrmann, acting as Agents)

Re:

Annulment of the selection board’s decision in competition COM/PB/04, competition for change of category C to B, refusing to admit the applicant to the pre-selection tests for that competition on the ground that he did not fulfil the required statutory condition at the closing date for the lodging of applications

Operative part of the judgment

The Tribunal:

| 1. | dismisses the action; |
| --- | --- |

1.

dismisses the action;

| 2. | orders the parties to bear their own costs. |
| --- | --- |

2.

orders the parties to bear their own costs.

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(1)  OJ C 193, 6/8/2005, p. 36. (the case was initially brought before the Court of First Instance of the European Communities under Case T-208/05 and transferred to the Civil Service Tribunal of the European Union by order of 15.12.2005)

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/83 |
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Official Journal of the European Union

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Judgment of the Civil Service Tribunal (Second Chamber) of 10 September 2009 — Van Arum v Parliament

(Case F-139/07) (1)

(Staff case - Officials - Appraisal - Staff Report - Scope of the complaint referred to in Article 90 of the Staff Regulations)

2009/C 267/149

Language of the case: Dutch

Parties

Applicant: Rinse van Arum (Winksele, Belgium) (represented by: W. van den Muijsenbergh, lawyer)

Defendant: European Parliament (represented by: J.F. De Wachter, C. Burgos and K. Zejdová)

Re:

Staff case — Application to alter, or, alternatively, to annul the Staff Report, and to order the defendant to pay the token sum of EUR 1 as damages.

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.

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(1)  OJ C 92, 12.4.2009, p. 49.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/83 |
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Judgment of the Civil Service Tribunal (Second Chamber) of 10 September 2009 — Rosenbaum v Commission

(Case F-9/08) (1)

(Staff case - Officials - Appointment - Grading - Request for reclassification - Scope of Article 13 in Annex XIII to the Staff Regulations - Taking into account professional experience - Recruitment in the grade of the competition - Article 31 of the Staff Regulations - Principle of non-discrimination - Free movement of workers)

2009/C 267/150

Language of the case: German

Parties

Applicant: Eckehard Rosenbaum (Bonn, Germany) (represented by: H.-J. Rüber, lawyer)

Defendant: Commission of the European Communities (represented by: J. Currall and B. Eggers, Agents)

Intervener in support of the defendant: Council of the European Union (represented by: M. Simm and M. Bauer, Agents)

Re:

Staff case — First, annulment of the decision classifying the applicant, a successful candidate in a competition held for the purpose of drawing up a reserve list for the recruitment of administrators in Grade A7/A6, in Grade AD 6/2 and, second, an application for reclassification.

Operative part of the judgment

The Tribunal:

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

1.

Dismisses the action;

| 2. | Orders Mr Rosenbaum to bear his costs and to pay those of the Commission of the European Communities; |
| --- | --- |

2.

Orders Mr Rosenbaum to bear his costs and to pay those of the Commission of the European Communities;

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

3.

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

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(1)  OJ C 64, 8.3.2008, p. 70.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/84 |
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Official Journal of the European Union

C 267/84

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Judgment of the Civil Service Tribunal (Second Chamber) of 24 September 2009 — Schell v Commission

(Case F-36/08) (1)

(Staff case - Officials - Promotion - Allocation of promotion points by Directors-General - 2007 promotion procedure)

2009/C 267/151

Language of the case: French

Parties

Applicant: Arno Schell (Brussels, Belgium) (represented by: F.Frabetti, lawyer)

Defendant: Commission of the European Communities (represented by: C. Berardis-Kayser and G. Berscheid, acting as Agents)

Re:

Staff case — Annulment of the applicant’s career development report for the period from 1 January 2006 to 31 December 2006 and annulment of his 2007 promotion report

Operative part of the judgment

The Tribunal:

| 1. | dismisses the action; |
| --- | --- |

1.

dismisses the action;

| 2. | orders Mr Schell to pay all of the costs. |
| --- | --- |

2.

orders Mr Schell to pay all of the costs.

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(1)  OJ C 142, 7/6/2008, p. 40.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/84 |
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Order of the Civil Service Tribunal (Second Chamber) of 15 September 2009 — Hartwig v Commission

(Case F-141/06) (1)

(Appointment - Members of the temporary staff appointed as officials - Candidates names included on a reserve list of a competition published prior to the entry into force of the new Staff Regulations - Grading pursuant to the new less favourable rules - Transitional measures of Annex XIII to the Staff Regulations)

2009/C 267/152

Language of the case: French

Parties

Applicant: Marc Hartwig (Brussels, Belgium) (represented by: T. Bontinck, lawyer)

Defendant: Commission of the European Communities (represented by: J. Currall and H. Krämer, Agents)

Re:

Annulment of the decisions of the Commission and the Parliament with effect from 16 April 2006 by which the applicant, a member of temporary staff in grade B*7 and successful candidate in Open Competition PE/34/B, was appointed an official in grade B*3, step 2, pursuant to the provisions of Annex XIII to the Staff Regulations.

Operative part of the order

| 1. | There is no need to rule on the action in Case F-141/06 Hartwig v Commission. |
| --- | --- |

1.

There is no need to rule on the action in Case F-141/06 Hartwig v Commission.

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

2.

Each party is ordered to bear its own costs.

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(1)  OJ C 20, 27.1.2007, p. 40.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/84 |
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Action brought on 10 September 2009 — Sukup v Commission

(Case F-73/09)

2009/C 267/153

Language of the case: French

Parties

Applicant: Viktor Sukup (Brussels, Belgium) (represented by: Stéphane Rodriguez and Christophe Bernard-Glanz, lawyers)

Defendant: Commission of the European Communities

Subject-matter and description of the proceedings

Application for annulment of the decision of the ‘Office for administration and payment of individual rights’ of the European Commission refusing to grant the applicant dependant child allowance or education allowance.

Form of order sought

| — | declare the action inadmissible; |
| --- | --- |

—

declare the action inadmissible;

| — | annul the decision adopted on 22 January 2009 by the Appointing Authority rejecting the applicant's claim and, in so far as necessary, the decision adopted on 29 May 2009 by the Appointing Authority rejecting his complaint; |
| --- | --- |

—

annul the decision adopted on 22 January 2009 by the Appointing Authority rejecting the applicant's claim and, in so far as necessary, the decision adopted on 29 May 2009 by the Appointing Authority rejecting his complaint;

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

—

order the defendant to pay the costs.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/85 |
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7.11.2009

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Official Journal of the European Union

C 267/85

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Action brought on 10 September 2009 — Gowitzke v Europol

(Case F-74/09)

2009/C 267/154

Language of the case: Dutch

Parties

Applicant: Werner Siegfried Gowitzke (The Hague, The Netherlands) (represented by: D.C. Coppens, lawyer)

Defendant: Europol

Subject-matter and description of the proceedings

Application for annulment of the decision of Europol of 5 June 2009 rejecting the applicant's claim to have his classification changed to grade 5, step 1

Form of order sought

| — | annul the decision of Europol rejecting the applicant's claim to have his classification changed to grade 5, step 1; |
| --- | --- |

—

annul the decision of Europol rejecting the applicant's claim to have his classification changed to grade 5, step 1;

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

—

order the defendant to pay the costs.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/85 |
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7.11.2009

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Official Journal of the European Union

C 267/85

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Action brought on 11 September 2009 –Wenig v Commission

(Case F-75/09)

2009/C 267/155

Language of the case: French

Parties

Applicant: Fritz Harald Wenig (Brussels, Belgium) (represented by: Georges-Albert Dal and Dominique Voillemot, lawyers)

Defendant: Commission of the European Communities

Subject-matter and description of the proceedings

First, application for annulment of the implied decision rejecting the applicant's request of 23 September 2008 for assistance from the European Commission and, second, an application for annulment of the rejection decision of the European Commission of 14 November 2008.

Form of order sought

| — | annul the implied decision rejecting the applicant's request of 23 September 2008 that the European Commission assist him in relation to the infringement of his rights which he suffered by reason of the publication of an offensive and defamatory article published on 7 September 2008 on the website of the British daily newspaper The Sunday Times and the unlawful actions of its authors; |
| --- | --- |

—

annul the implied decision rejecting the applicant's request of 23 September 2008 that the European Commission assist him in relation to the infringement of his rights which he suffered by reason of the publication of an offensive and defamatory article published on 7 September 2008 on the website of the British daily newspaper The Sunday Times and the unlawful actions of its authors;

| — | should that decision be regarded as an express decision refusing the request for assistance made by the applicant, annul the Commission's decision of 14 November 2008 in so far as it rejects the applicant's request for assistance in the context of the organisation of the ‘Worst Conflicts of Interest Award’ calling him into question and infringing his integrity and the presumption of innocence; |
| --- | --- |

—

should that decision be regarded as an express decision refusing the request for assistance made by the applicant, annul the Commission's decision of 14 November 2008 in so far as it rejects the applicant's request for assistance in the context of the organisation of the ‘Worst Conflicts of Interest Award’ calling him into question and infringing his integrity and the presumption of innocence;

| — | order the defendant to pay compensation for the financial and non-material loss suffered; |
| --- | --- |

—

order the defendant to pay compensation for the financial and non-material loss suffered;

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

—

order the defendant to pay the costs.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/85 |
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7.11.2009

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Official Journal of the European Union

C 267/85

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Order of the Civil Service Tribunal of 15 September 2009 — Perez Santander v Council

(Case F -32/05) (1)

2009/C 267/156

Language of the case: French

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

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(1)  OJ C 193, 6.5.2008, p. 32 (Case initially registered before the Court of First Instance of the European Communities under number T-201/05 and transferred to the Civil Service Tribunal of the European Union by order of 15.12.2005).

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/86 |
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7.11.2009

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Official Journal of the European Union

C 267/86

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Order of the Civil Service Tribunal of 25 September 2009 — Caleprico v Commission

(Case F-38/07) (1)

2009/C 267/157

Language of the case: Italian

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

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(1)  OJ C 140, 23.6.2007, p. 45.

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| 7.11.2009 | EN | Official Journal of the European Union | C 267/86 |
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7.11.2009

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Order of the Civil Service Tribunal of 25 September 2009 — Avogadri and Others v Commission

(Case F-58/08) (1)

2009/C 267/158

Language of the case: French

The President of the Second Chamber has ordered that the name of Ms Monica Leva be removed from the list of applicants.

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(1)  OJ C 209, 15.8.2008, p. 74.

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