# Official Journal C 389/2012

| | ISSN 1977-091X
  doi:10.3000/1977091X.C_2012.389.eng |
| --- | --- |
| Official Journal
  of the European Union | C 389 |
| | |
| English edition | Information and Notices | Volume 5515 December 2012 |

ISSN 1977-091X

doi:10.3000/1977091X.C_2012.389.eng

Official Journal

of the European Union

C 389

English edition

Information and Notices

Volume 5515 December 2012

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| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | Court of Justice of the European Union |
| 2012/C 389/01 | Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 379, 8.12.2012 | 1 |
| 2012/C 389/02 | Decision of the Court of Justice of 20 November 2012 on official holidays and judicial vacations | 2 |

Notice No

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

2012/C 389/01

Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 379, 8.12.2012

Official Journal of the European Union

1

2012/C 389/02

Decision of the Court of Justice of 20 November 2012 on official holidays and judicial vacations

2

| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2012/C 389/03 | Case C-69/12 P: Appeal brought on 10 February 2012 by Noscira, SA against the order of the General Court (Seventh Chamber) delivered on 28 November 2011 in Case T-307/11: Noscira, SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) | 3 |
| 2012/C 389/04 | Case C-425/12: Reference for a preliminary ruling from the Tribunal Administrativo e Fiscal do Porto (Portugal) lodged on 18 September 2012 — Portgás — Sociedade de Produção e Distribuição de Gás, SA v Ministério do Ambiente, do Ordenamento do Território e do Desenvolvimento Regional | 3 |
| 2012/C 389/05 | Case C-439/12: Reference for a preliminary ruling from the Landgericht Hamburg (Germany) lodged on 2 October 2012 — Karin Gawelczyk v Generali Lebensversicherung AG | 3 |
| 2012/C 389/06 | Case C-440/12: Reference for a preliminary ruling from the Finanzgericht Hamburg (Germany), lodged on 3 October 2012 — Metropol Spielstätten Unternehmergesellschaft (with limited liability) v Finanzamt Hamburg-Bergedorf | 4 |
| 2012/C 389/07 | Case C-443/12: Reference for a preliminary ruling from High Court of Justice (Chancery Division) (United Kingdom) made on 3 October 2012 — Actavis Group PTC EHF, Actavis UK Ltd v Sanofi | 5 |
| 2012/C 389/08 | Case C-450/12: Reference for a preliminary ruling from the Finanzgericht Düsseldorf (Germany), lodged on 8 October 2012 — HARK GmbH & Co. KG Kamin- und Kachelofenbau v Hauptzollamt Duisburg | 5 |
| 2012/C 389/09 | Case C-458/12: Reference for a preliminary ruling from the Tribunale di Trento (Italy) lodged on 11 October 2012 — Lorenzo Amatori and Others v Telecom Italia SpA, Shared Service Center Srl | 6 |
| 2012/C 389/10 | Case C-408/11: Order of the President of the Court of 28 June 2012 — (reference for a preliminary ruling from the Amtsgericht Münster — Germany) — Criminal proceedings against Thomas Karl-Heinz Kerkhoff, intervener: Amtsgericht Münster | 6 |
| | General Court |
| 2012/C 389/11 | Case T-458/12: Action brought on 15 October 2012 — Générations futures v Commission | 7 |
| 2012/C 389/12 | Case T-466/12: Action brought on 23 October 2012 — RFA International v Commission | 7 |
| 2012/C 389/13 | Case T-472/12: Action brought on 30 October 2012 — Novartis Europharm v Commission | 8 |
| | European Union Civil Service Tribunal |
| 2012/C 389/14 | Case F-123/12: Action brought on 23 October 2012 — ZZ v Commission | 9 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2012/C 389/03

Case C-69/12 P: Appeal brought on 10 February 2012 by Noscira, SA against the order of the General Court (Seventh Chamber) delivered on 28 November 2011 in Case T-307/11: Noscira, SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

3

2012/C 389/04

Case C-425/12: Reference for a preliminary ruling from the Tribunal Administrativo e Fiscal do Porto (Portugal) lodged on 18 September 2012 — Portgás — Sociedade de Produção e Distribuição de Gás, SA v Ministério do Ambiente, do Ordenamento do Território e do Desenvolvimento Regional

3

2012/C 389/05

Case C-439/12: Reference for a preliminary ruling from the Landgericht Hamburg (Germany) lodged on 2 October 2012 — Karin Gawelczyk v Generali Lebensversicherung AG

3

2012/C 389/06

Case C-440/12: Reference for a preliminary ruling from the Finanzgericht Hamburg (Germany), lodged on 3 October 2012 — Metropol Spielstätten Unternehmergesellschaft (with limited liability) v Finanzamt Hamburg-Bergedorf

4

2012/C 389/07

Case C-443/12: Reference for a preliminary ruling from High Court of Justice (Chancery Division) (United Kingdom) made on 3 October 2012 — Actavis Group PTC EHF, Actavis UK Ltd v Sanofi

5

2012/C 389/08

Case C-450/12: Reference for a preliminary ruling from the Finanzgericht Düsseldorf (Germany), lodged on 8 October 2012 — HARK GmbH & Co. KG Kamin- und Kachelofenbau v Hauptzollamt Duisburg

5

2012/C 389/09

Case C-458/12: Reference for a preliminary ruling from the Tribunale di Trento (Italy) lodged on 11 October 2012 — Lorenzo Amatori and Others v Telecom Italia SpA, Shared Service Center Srl

6

2012/C 389/10

Case C-408/11: Order of the President of the Court of 28 June 2012 — (reference for a preliminary ruling from the Amtsgericht Münster — Germany) — Criminal proceedings against Thomas Karl-Heinz Kerkhoff, intervener: Amtsgericht Münster

6

General Court

2012/C 389/11

Case T-458/12: Action brought on 15 October 2012 — Générations futures v Commission

7

2012/C 389/12

Case T-466/12: Action brought on 23 October 2012 — RFA International v Commission

7

2012/C 389/13

Case T-472/12: Action brought on 30 October 2012 — Novartis Europharm v Commission

8

European Union Civil Service Tribunal

2012/C 389/14

Case F-123/12: Action brought on 23 October 2012 — ZZ v Commission

9

| EN | |
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EN

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

| 15.12.2012 | EN | Official Journal of the European Union | C 389/1 |
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15.12.2012

EN

Official Journal of the European Union

C 389/1

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2012/C 389/01

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

OJ C 379, 8.12.2012

Past publications

OJ C 373, 1.12.2012

OJ C 366, 24.11.2012

OJ C 355, 17.11.2012

OJ C 343, 10.11.2012

OJ C 331, 27.10.2012

OJ C 319, 20.10.2012

These texts are available on:

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

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| 15.12.2012 | EN | Official Journal of the European Union | C 389/2 |
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15.12.2012

EN

Official Journal of the European Union

C 389/2

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DECISION OF THE COURT OF JUSTICE

of 20 November 2012

on official holidays and judicial vacations

2012/C 389/02

THE COURT

having regard to Article 24(2), (4) and (6) of the Rules of Procedure,

whereas, following the entry into force of the Rules of Procedure of the Court of Justice on 1 November 2012, it is necessary to establish the list of official holidays and to set the dates of the judicial vacations,

HAS ADOPTED THIS DECISION:

Article 1

The list of official holidays within the meaning of Article 24(4) and (6) of the Rules of Procedure is established as follows:

| — | New Year’s Day, |
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—

New Year’s Day,

| — | Easter Monday, |
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—

Easter Monday,

| — | 1 May, |
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—

1 May,

| — | Ascension, |
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—

Ascension,

| — | Whit Monday, |
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—

Whit Monday,

| — | 23 June, |
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—

23 June,

| — | 15 August, |
| --- | --- |

—

15 August,

| — | 1 November, |
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—

1 November,

| — | 25 December, |
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—

25 December,

| — | 26 December. |
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—

26 December.

Article 2

For the period from 1 November 2012 to 31 October 2013, the dates of the judicial vacations within the meaning of Article 24(2) and (6) of the Rules of Procedure are as follows:

| — | Christmas 2012: from Monday 17 December 2012 to Sunday 6 January 2013 inclusive, |
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—

Christmas 2012: from Monday 17 December 2012 to Sunday 6 January 2013 inclusive,

| — | Easter 2013: from Monday 25 March 2013 to Sunday 7 April 2013 inclusive, |
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—

Easter 2013: from Monday 25 March 2013 to Sunday 7 April 2013 inclusive,

| — | Summer 2013: from Monday 15 July 2013 to Sunday 1 September 2013 inclusive. |
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—

Summer 2013: from Monday 15 July 2013 to Sunday 1 September 2013 inclusive.

Article 3

This Decision shall enter into force on the day of its publication in the Official Journal of the European Communities.

Luxembourg, 20 November 2012.

Registrar

A. CALOT ESCOBAR

President

V. SKOURIS

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V Announcements

COURT PROCEEDINGS

Court of Justice

| 15.12.2012 | EN | Official Journal of the European Union | C 389/3 |
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15.12.2012

EN

Official Journal of the European Union

C 389/3

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Appeal brought on 10 February 2012 by Noscira, SA against the order of the General Court (Seventh Chamber) delivered on 28 November 2011 in Case T-307/11: Noscira, SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-69/12 P)

2012/C 389/03

Language of the case: English

Parties

Appellant: Noscira, SA (represented by: A. Sirimarco, advocate)

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

By order of 21 September 2012 the Court of Justice (Sixth Chamber) held that the appeal was inadmissible.

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| 15.12.2012 | EN | Official Journal of the European Union | C 389/3 |
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15.12.2012

EN

Official Journal of the European Union

C 389/3

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Reference for a preliminary ruling from the Tribunal Administrativo e Fiscal do Porto (Portugal) lodged on 18 September 2012 — Portgás — Sociedade de Produção e Distribuição de Gás, SA v Ministério do Ambiente, do Ordenamento do Território e do Desenvolvimento Regional

(Case C-425/12)

2012/C 389/04

Language of the case: Portuguese

Referring court

Tribunal Administrativo e Fiscal do Porto

Parties to the main proceedings

Applicant: Portgás — Sociedade de Produção e Distribuição de Gás, SA

Defendant: Ministério do Ambiente, do Ordenamento do Território e do Desenvolvimento Regional

Question referred

May Articles 4(1) and 14(1)(c)(i) of Council Directive 93/38/EEC (1) of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors, as amended by Directive 98/04/EC (2) of the European Parliament and of the Council of 16 February 1998, and the other provisions of those Directives and the general principles of Community law applicable, be interpreted as meaning that they create obligations for private individuals who are public service concession-holders (in particular an entity covered by Article 2(1)(b) of Directive 93/38/EEC), where that Directive has not been transposed into national law by the Portuguese State, so that failure to fulfil those obligations may be invoked against that private concession-holding entity by the Portuguese State by means of an act attributable to one of its Ministries?

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(1)  Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1993 L 199, p. 84).

(2)  OJ 1998 L 101, p.1.

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| 15.12.2012 | EN | Official Journal of the European Union | C 389/3 |
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15.12.2012

EN

Official Journal of the European Union

C 389/3

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Reference for a preliminary ruling from the Landgericht Hamburg (Germany) lodged on 2 October 2012 — Karin Gawelczyk v Generali Lebensversicherung AG

(Case C-439/12)

2012/C 389/05

Language of the case: German

Referring court

Landgericht Hamburg

Parties to the main proceedings

Applicant: Karin Gawelczyk

Defendant: Generali Lebensversicherung AG

Question referred

Must the first indent of Article 15(1) of Council Directive 90/619/EEC of 8 November 1990 on the coordination of laws, regulations and administrative provisions relating to direct life assurance, laying down provisions to facilitate the effective exercise of freedom to provide services and amending Directive 79/267/EEC (Second Life Assurance Directive), (1) having regard to Article 31(1) of Council Directive 92/96/EEC of 10 November 1992 on the coordination of laws, regulations and administrative provisions relating to direct life assurance and amending Directives 79/267/EEC and 90/619/EEC (Third Life Assurance Directive), (2) be interpreted as precluding a provision — such as the fourth sentence of Paragraph 5a(2) of the Versicherungsvertragsgesetz (Law on insurance contracts) in the version of the Drittes Gesetz zur Durchführung versicherungsrechtlicher Richtlinien des Rates der Europäischen Gemeinschaften (Third Law implementing directives of the Council of the European Communities on insurance law) of 21 July 1994 — under which a right of cancellation lapses one year at the latest after payment of the first premium even if the policy-holder has not been informed about the right of cancellation?

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(1)  OJ 1990 L 330, p. 50.

(2)  OJ 1992 L 360, p. 1.

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| 15.12.2012 | EN | Official Journal of the European Union | C 389/4 |
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15.12.2012

EN

Official Journal of the European Union

C 389/4

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Reference for a preliminary ruling from the Finanzgericht Hamburg (Germany), lodged on 3 October 2012 — Metropol Spielstätten Unternehmergesellschaft (with limited liability) v Finanzamt Hamburg-Bergedorf

(Case C-440/12)

2012/C 389/06

Language of the case: German

Referring court

Finanzgericht Hamburg

Parties to the main proceedings

Applicant: Metropol Spielstätten Unternehmergesellschaft (with limited liability)

Defendant: Finanzamt Hamburg-Bergedorf

Questions referred

| 1. | Is Article 401 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, (1) read in combination with Article 135(1)(i) of that directive, to be interpreted as meaning that value added tax and a national special tax on games of chance may be levied only as alternatives, and not cumulatively? |
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1.

Is Article 401 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, (1) read in combination with Article 135(1)(i) of that directive, to be interpreted as meaning that value added tax and a national special tax on games of chance may be levied only as alternatives, and not cumulatively?

| 2. | Only if the answer to Question 1 is in the affirmative:
  If, under national provisions, both value added tax and a special tax are levied on games of chance, does this mean that value added tax is not levied or that the special tax is not levied, or does the decision as to which of the two taxes may not be levied depend on national law? |
| --- | --- |

2.

Only if the answer to Question 1 is in the affirmative:

If, under national provisions, both value added tax and a special tax are levied on games of chance, does this mean that value added tax is not levied or that the special tax is not levied, or does the decision as to which of the two taxes may not be levied depend on national law?

| 3. | Are the first sentence of Article 1(2) and Article 73 of Directive 2006/112 to be interpreted as precluding a national provision or practice whereby, in the operation of gaming machines offering the possibility of winning, the content of the machine’s cash box (‘electronically counted cash box’) serves as a basis of assessment after a certain period of time? |
| --- | --- |

3.

Are the first sentence of Article 1(2) and Article 73 of Directive 2006/112 to be interpreted as precluding a national provision or practice whereby, in the operation of gaming machines offering the possibility of winning, the content of the machine’s cash box (‘electronically counted cash box’) serves as a basis of assessment after a certain period of time?

| 4. | Only if the answer to Question 3 is in the affirmative:
  How is the basis of assessment otherwise to be determined? |
| --- | --- |

4.

Only if the answer to Question 3 is in the affirmative:

How is the basis of assessment otherwise to be determined?

| 5. | Are the first sentence of Article 1(2) and Article 73 of Directive 2006/112 to be interpreted as meaning that the levying of VAT is subject to the condition that the trader can pass the value added tax on to the recipient of the supply? If so, what is to be understood by the ability to pass on the tax? In particular, is the legal permissibility of a correspondingly higher price for the product or service an attribute of the ability to pass that tax on? |
| --- | --- |

5.

Are the first sentence of Article 1(2) and Article 73 of Directive 2006/112 to be interpreted as meaning that the levying of VAT is subject to the condition that the trader can pass the value added tax on to the recipient of the supply? If so, what is to be understood by the ability to pass on the tax? In particular, is the legal permissibility of a correspondingly higher price for the product or service an attribute of the ability to pass that tax on?

| 6. | Only if in answer to Question 5 the legal permissibility of a higher price is a precondition:
  Are the first sentence of Article 1(2) and Article 73 of Directive 2006/112 to be interpreted as meaning that provisions which limit the consideration for goods or services subject to value added tax are to be applied in accordance with European Union law in such a way that value added tax is understood not to be included in the consideration set but to be in addition to it, even where, according to their wording, the national provisions governing consideration do not expressly so provide? |
| --- | --- |

6.

Only if in answer to Question 5 the legal permissibility of a higher price is a precondition:

Are the first sentence of Article 1(2) and Article 73 of Directive 2006/112 to be interpreted as meaning that provisions which limit the consideration for goods or services subject to value added tax are to be applied in accordance with European Union law in such a way that value added tax is understood not to be included in the consideration set but to be in addition to it, even where, according to their wording, the national provisions governing consideration do not expressly so provide?

| 7. | Only if the answer to Question 5 is in the affirmative and the answers to Questions 6 and 3 are in the negative:
  In the present case, is no value added tax to be levied on the total turnover of the gaming machines, or is it to be levied only on the part that cannot be passed on, and how is that part to be determined: for example, on the turnover at which the stake per game could not be increased, or on the turnover at which the contents of the cash box per hour could not be increased? |
| --- | --- |

7.

Only if the answer to Question 5 is in the affirmative and the answers to Questions 6 and 3 are in the negative:

In the present case, is no value added tax to be levied on the total turnover of the gaming machines, or is it to be levied only on the part that cannot be passed on, and how is that part to be determined: for example, on the turnover at which the stake per game could not be increased, or on the turnover at which the contents of the cash box per hour could not be increased?

| 8. | Is Article 1(2) of Directive 2006/112 to he interpreted as precluding a national regulation on an unharmonised tax under which the value added tax owed is set in full against that tax? |
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8.

Is Article 1(2) of Directive 2006/112 to he interpreted as precluding a national regulation on an unharmonised tax under which the value added tax owed is set in full against that tax?

| 9. | Only if the answer to Question 8 is in the affirmative:
  Does the setting of value added tax against a national, unharmonised tax in the case of traders liable to pay the latter tax have the effect that value added tax may not be levied on their competitors who, though not subject to this unharmonised tax, are subject to another special tax and for whom there is no provision for such offsetting? |
| --- | --- |

9.

Only if the answer to Question 8 is in the affirmative:

Does the setting of value added tax against a national, unharmonised tax in the case of traders liable to pay the latter tax have the effect that value added tax may not be levied on their competitors who, though not subject to this unharmonised tax, are subject to another special tax and for whom there is no provision for such offsetting?

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

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| 15.12.2012 | EN | Official Journal of the European Union | C 389/5 |
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15.12.2012

EN

Official Journal of the European Union

C 389/5

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Reference for a preliminary ruling from High Court of Justice (Chancery Division) (United Kingdom) made on 3 October 2012 — Actavis Group PTC EHF, Actavis UK Ltd v Sanofi

(Case C-443/12)

2012/C 389/07

Language of the case: English

Referring court

High Court of Justice (Chancery Division)

Parties to the main proceedings

Applicants: Actavis Group PTC EHF, Actavis UK Ltd

Defendant: Sanofi

Third party: Sanofi Pharma Bristol-Myers Squibb SNC

Questions referred

| 1. | What are the criteria for deciding whether ‘the product is protected by a basic patent in force’ in Article 3(a) of Regulation 469/2009/EC (1) (‘the Regulation’)? |
| --- | --- |

1.

What are the criteria for deciding whether ‘the product is protected by a basic patent in force’ in Article 3(a) of Regulation 469/2009/EC (1) (‘the Regulation’)?

| 2. | In a situation in which multiple products are protected by a basic patent in force, does the Regulation, and in particular Article 3(c), preclude the proprietor of the patent being issued a certificate for each of the products protected? |
| --- | --- |

2.

In a situation in which multiple products are protected by a basic patent in force, does the Regulation, and in particular Article 3(c), preclude the proprietor of the patent being issued a certificate for each of the products protected?

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(1)  Regulation (EC) No 469/2009 of the European Parliament and of the Council of 6 May 2009 concerning the supplementary protection certificate for medicinal products

OJ L 152, p. 1

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| 15.12.2012 | EN | Official Journal of the European Union | C 389/5 |
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15.12.2012

EN

Official Journal of the European Union

C 389/5

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Reference for a preliminary ruling from the Finanzgericht Düsseldorf (Germany), lodged on 8 October 2012 — HARK GmbH & Co. KG Kamin- und Kachelofenbau v Hauptzollamt Duisburg

(Case C-450/12)

2012/C 389/08

Language of the case: German

Referring court

Finanzgericht Düsseldorf

Parties to the main proceedings

Applicant: HARK GmbH & Co. KG Kamin- und Kachelofenbau

Defendant: Hauptzollamt Duisburg

Questions referred

| 1. | Is heading 7321 of the Combined Nomenclature set out in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, (1) as amended by Commission Regulation (EC) No 1031/2008 of 19 September 2008, (2) to be interpreted as meaning that the stove pipe sets described in greater detail in the grounds can be regarded as parts of stoves, ranges, grates, and cookers? |
| --- | --- |

1.

Is heading 7321 of the Combined Nomenclature set out in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, (1) as amended by Commission Regulation (EC) No 1031/2008 of 19 September 2008, (2) to be interpreted as meaning that the stove pipe sets described in greater detail in the grounds can be regarded as parts of stoves, ranges, grates, and cookers?

| 2. | If the answer to Question 1 is in the negative, can the stove pipe sets then be classified under heading 7307? |
| --- | --- |

2.

If the answer to Question 1 is in the negative, can the stove pipe sets then be classified under heading 7307?

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(1)  OJ 1987 L 256, p. 1.

(2)  OJ 2008 L 291, p. 1.

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| 15.12.2012 | EN | Official Journal of the European Union | C 389/6 |
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15.12.2012

EN

Official Journal of the European Union

C 389/6

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Reference for a preliminary ruling from the Tribunale di Trento (Italy) lodged on 11 October 2012 — Lorenzo Amatori and Others v Telecom Italia SpA, Shared Service Center Srl

(Case C-458/12)

2012/C 389/09

Language of the case: Italian

Referring court

Tribunale di Trento

Parties to the main proceedings

Applicants: Lorenzo Amatori and Others

Defendants: Telecom Italia SpA, Shared Service Center Srl

Questions referred

| 1. | As regards the ‘transfer of a part of a business’, does European Union legislation (in particular, Article 1(1)(a) and (b) of Council Directive 2001/23/EC (1) of 12 March 2001, read in conjunction with Article 3(1) thereof) preclude a rule of national law, such as that laid down in the fifth paragraph of Article 2112 of the [Italian] Civil Code, which permits the transferee to take over the employment relationships of the transferor, without the consent of the employees transferred being necessary, even where the part of the business transferred is not a functionally independent economic entity already existing before the transfer and identifiable as such by the transferor and the transferee at the time when it is transferred? |
| --- | --- |

1.

As regards the ‘transfer of a part of a business’, does European Union legislation (in particular, Article 1(1)(a) and (b) of Council Directive 2001/23/EC (1) of 12 March 2001, read in conjunction with Article 3(1) thereof) preclude a rule of national law, such as that laid down in the fifth paragraph of Article 2112 of the [Italian] Civil Code, which permits the transferee to take over the employment relationships of the transferor, without the consent of the employees transferred being necessary, even where the part of the business transferred is not a functionally independent economic entity already existing before the transfer and identifiable as such by the transferor and the transferee at the time when it is transferred?

| 2. | As regards the ‘transfer of a part of a business’, does European Union legislation (in particular, Article 1(1)(a) and (b) of Council Directive 2001/23/EC of 12 March 2001, read in conjunction with Article 3(1) thereof) preclude a rule of national law, such as that laid down in the fifth paragraph of Article 2112 of the [Italian] Civil Code, which permits the transferee to take over the employment relationships of the transferor, without the consent of the employees transferred being necessary, even where, after the transfer, the transferor undertaking wields in-depth and supreme control over the transferee, a relationship which manifests itself through a tight commercial bond and the commingling of business risk? |
| --- | --- |

2.

As regards the ‘transfer of a part of a business’, does European Union legislation (in particular, Article 1(1)(a) and (b) of Council Directive 2001/23/EC of 12 March 2001, read in conjunction with Article 3(1) thereof) preclude a rule of national law, such as that laid down in the fifth paragraph of Article 2112 of the [Italian] Civil Code, which permits the transferee to take over the employment relationships of the transferor, without the consent of the employees transferred being necessary, even where, after the transfer, the transferor undertaking wields in-depth and supreme control over the transferee, a relationship which manifests itself through a tight commercial bond and the commingling of business risk?

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(1)  Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses (OJ 2003 L 82, p. 16).

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| 15.12.2012 | EN | Official Journal of the European Union | C 389/6 |
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15.12.2012

EN

Official Journal of the European Union

C 389/6

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Order of the President of the Court of 28 June 2012 — (reference for a preliminary ruling from the Amtsgericht Münster — Germany) — Criminal proceedings against Thomas Karl-Heinz Kerkhoff, intervener: Amtsgericht Münster

(Case C-408/11) (1)

2012/C 389/10

Language of the case: German

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

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(1)  OJ C 211, 22.10.2011.

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General Court

| 15.12.2012 | EN | Official Journal of the European Union | C 389/7 |
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15.12.2012

EN

Official Journal of the European Union

C 389/7

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Action brought on 15 October 2012 — Générations futures v Commission

(Case T-458/12)

2012/C 389/11

Language of the case: French

Parties

Applicant: Mouvement pour les droits et le respect des générations futures (Ons-en-Bray, France) (represented by: A. Faro, lawyer)

Defendant: European Commission

Form of order sought

| — | Annulment of the decision of the Director-General for Health and Consumers of 16 August 2012 (ARES 977 175) refusing the application for review of Commission Implementing Regulation (EU) No 359/2012 of 25 April 2012 approving the active substance metam, in accordance with Regulation (EC) No 1107/2009 of the European Parliament and of the Council concerning the placing of plant protection products on the market, and amending the Annex to Commission Implementing Regulation (EU) No 540/2011, made on the basis of Article 10 of Regulation No 1367/2006. |
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Annulment of the decision of the Director-General for Health and Consumers of 16 August 2012 (ARES 977 175) refusing the application for review of Commission Implementing Regulation (EU) No 359/2012 of 25 April 2012 approving the active substance metam, in accordance with Regulation (EC) No 1107/2009 of the European Parliament and of the Council concerning the placing of plant protection products on the market, and amending the Annex to Commission Implementing Regulation (EU) No 540/2011, made on the basis of Article 10 of Regulation No 1367/2006.

Pleas in law and main arguments

The applicant, a French association approved for environmental protection activities, seeks, on the basis of Article 10 of Regulation No 1367/2006, the review of Commission Implementing Regulation (EU) No 359/2012 of 25 April 2012 approving the active substance metam. (1) By decision of 16 August 2012, the Commission refused to carry out that review on the ground that the implementing regulation of which review is sought does not constitute an administrative act within the meaning of Article 2(1)(g) of Regulation No 1367/2006. (2)

In support of the action, the applicant relies on a certain number of pleas in law.

The applicant submits, firstly, that the implementing regulation is the response to an individual application made by a third party undertaking and, secondly, that the restriction to administrative acts laid down in Article 10(1) of Regulation No 1367/2006, read in conjunction with Article 2(1)(g) of that regulation, is not compatible with Article 9(3) of the Aarhus Convention. (3)

The applicant also submits that its application for review is well founded, since (i) the applicable procedure was not followed, (ii) the file submitted for evaluation is insufficient and (iii) the approval criteria were not applied.

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(1)  Commission Implementing Regulation (EU) No 359/2012 of 25 April 2012 approving the active substance metam, in accordance with Regulation (EC) No 1107/2009 of the European Parliament and of the Council concerning the placing of plant protection products on the market, and amending the Annex to Commission Implementing Regulation (EU) No 540/2011 (OJ 2012 L 114, p. 1).

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

(3)  Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters.

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| 15.12.2012 | EN | Official Journal of the European Union | C 389/7 |
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15.12.2012

EN

Official Journal of the European Union

C 389/7

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Action brought on 23 October 2012 — RFA International v Commission

(Case T-466/12)

2012/C 389/12

Language of the case: English

Parties

Applicant: RFA International, LP (Calgary, Canada) (represented by: B. Evtimov, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | Annul partially Commission Decisions C(2012) 5577 final, C(2012) 5585 final, C(2012) 5588 final, C(2012) 5595 final, C(2012) 5596 final, C(2012) 5598 final and C(2012) 5611 final of 10 August 2012, insofar as they refuse to reimburse the amounts of anti-dumping duties applied for, save for those amounts, the applications for which had been found inadmissible as lodged after the expiry of a statutory time limit; |
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Annul partially Commission Decisions C(2012) 5577 final, C(2012) 5585 final, C(2012) 5588 final, C(2012) 5595 final, C(2012) 5596 final, C(2012) 5598 final and C(2012) 5611 final of 10 August 2012, insofar as they refuse to reimburse the amounts of anti-dumping duties applied for, save for those amounts, the applications for which had been found inadmissible as lodged after the expiry of a statutory time limit;

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

Pleas in law and main arguments

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

| 1. | First plea in law, alleging






  — | an error in law and manifest error of assessment in the Commission’s finding that a full deduction for SG&A and profit from the export price of the CHEMK Group was warranted, and in the Commission’s related finding that a single economic entity is irrelevant for the calculation of export price (including adjustments to export price) pursuant to Article 2(9) of the Basic Regulation (1). To the extent the Commission may have relied on the rejection of the applicant’s claim of existence of a single economic entity, the applicant contends that such rejection is also vitiated by an error in law and/or a manifest error of assessment. |
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1.

First plea in law, alleging

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an error in law and manifest error of assessment in the Commission’s finding that a full deduction for SG&A and profit from the export price of the CHEMK Group was warranted, and in the Commission’s related finding that a single economic entity is irrelevant for the calculation of export price (including adjustments to export price) pursuant to Article 2(9) of the Basic Regulation (1). To the extent the Commission may have relied on the rejection of the applicant’s claim of existence of a single economic entity, the applicant contends that such rejection is also vitiated by an error in law and/or a manifest error of assessment.

| 2. | Second plea in law, alleging






  — | a manifest error of assessment in the Commission’s finding that there was a changed circumstance in the sense of Article 11(9) of the Basic Regulation, which warranted the application of a different methodology for the calculation of the final dumping margin. The applicant also invokes a consequential breach of Article 11(9) of the Basic Regulation in the Commission’s application of the new methodology, which is different from the respective methodology used in the original investigation. |
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2.

Second plea in law, alleging

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a manifest error of assessment in the Commission’s finding that there was a changed circumstance in the sense of Article 11(9) of the Basic Regulation, which warranted the application of a different methodology for the calculation of the final dumping margin. The applicant also invokes a consequential breach of Article 11(9) of the Basic Regulation in the Commission’s application of the new methodology, which is different from the respective methodology used in the original investigation.

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(1)  Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ L 343, p. 51)

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| 15.12.2012 | EN | Official Journal of the European Union | C 389/8 |
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15.12.2012

EN

Official Journal of the European Union

C 389/8

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Action brought on 30 October 2012 — Novartis Europharm v Commission

(Case T-472/12)

2012/C 389/13

Language of the case: English

Parties

Applicant: Novartis Europharm (Horsham, United Kingdom) (represented by: C. Schoonderbeek, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | Annul the decision of the European Commission C(2012) 5894 final of 16 August 2012 to grant a marketing authorisation to Teva Pharma BV, in accordance with Article 3 of Regulation (EC) No 726/2004 of the European Parliament and of the Council of 31 March 2004 laying down Community procedures for the authorisation and supervision of medicinal products for human and veterinary use and establishing a European Medicines Agency (OJ 2004 L 136, p. 1); and |
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Annul the decision of the European Commission C(2012) 5894 final of 16 August 2012 to grant a marketing authorisation to Teva Pharma BV, in accordance with Article 3 of Regulation (EC) No 726/2004 of the European Parliament and of the Council of 31 March 2004 laying down Community procedures for the authorisation and supervision of medicinal products for human and veterinary use and establishing a European Medicines Agency (OJ 2004 L 136, p. 1); and

| — | Order the defendant to pay its own costs and those of the applicant. |
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Order the defendant to pay its own costs and those of the applicant.

Pleas in law and main arguments

In support of the action, the applicant relies on one plea in law, alleging that the contested decision is unlawful in that it constitutes an infringement of the data protection rights of Novartis Europharm Ltd. for its product Aclasta pursuant to Articles 13(4) of Regulation (EC) No 2309/93 (1), read in conjunction with Article 89 of Regulation (EC) No 726/2004. As Aclasta was granted a separate independent marketing authorisation through the centralised procedure, the Aclasta authorisation does not fall under the same global marketing authorisation as Zometa (another product of Novartis Europharm Ltd), as specified in article 6(1) of Directive 2001/83/EC (2) for the purposes of data protection.

In addition, the contested decision is unlawful in that it constitutes an infringement of Article 10(1) of Directive 2001/83/EC as data protection for the reference medicinal product Aclasta has not expired and hence the conditions for granting a marketing authorisation under this article have not been complied with.

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(1)  Council Regulation (EEC) No 2309/93 of 22 July 1993 laying down Community procedures for the authorization and supervision of medicinal products for human and veterinary use and establishing a European Agency for the Evaluation of Medicinal Products (OJ 1993 L 214, p. 1)

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

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European Union Civil Service Tribunal

| 15.12.2012 | EN | Official Journal of the European Union | C 389/9 |
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15.12.2012

EN

Official Journal of the European Union

C 389/9

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Action brought on 23 October 2012 — ZZ v Commission

(Case F-123/12)

2012/C 389/14

Language of the case: French

Parties

Applicant: ZZ (represented by: D. Abreu Caldas, S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal, lawyers)

Defendant: European Commission

Subject-matter and description of the proceedings

Annulment of the Commission’s decision to reject the applicant’s request that her contract as a member of the contract staff for auxiliary tasks be reclassified as a temporary contract for an indefinite period.

Form of order sought

| — | Annul the decision of 4 January 2012 of the AECE to reject the applicant’s request that her contract as a member of the contract staff for auxiliary tasks be reclassified as a temporary contract for an indefinite period; |
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Annul the decision of 4 January 2012 of the AECE to reject the applicant’s request that her contract as a member of the contract staff for auxiliary tasks be reclassified as a temporary contract for an indefinite period;

| — | In so far as necessary, annul the decision rejecting her claim of 12 July 2012; |
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In so far as necessary, annul the decision rejecting her claim of 12 July 2012;

| — | Order the Commission to pay the costs. |
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Order the Commission to pay the costs.

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