# Official Journal C 37/2008

| | ISSN 1725-2423 |
| --- | --- |
| Official Journal
  of the European Union | C 37 |
| | |
| English edition | Information and Notices | Volume 519 February 2008 |

ISSN 1725-2423

Official Journal

of the European Union

C 37

English edition

Information and Notices

Volume 519 February 2008

---

| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES |
| | Court of Justice |
| 2008/C 037/01 | Last publication of the Court of Justice in the Official Journal of the European Union
  OJ C 22, 26.1.2008 | 1 |

Notice No

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Court of Justice

2008/C 037/01

Last publication of the Court of Justice in the Official Journal of the European Union
  OJ C 22, 26.1.2008

Official Journal of the European Union

1

| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2008/C 037/02 | Case C-481/07 P: Appeal brought on 2 November 2007 by SELEX Sistemi Integrati SpA, formerly Alenia Marconi Systems SpA, against the order of 29 August 2007 of the Court of First Instance (Second Chamber) in Case T-186/05 SELEX Sistemi Integrati SpA v Commision of the European Communities | 2 |
| 2008/C 037/03 | Case C-496/07: Action brought on 14 November 2007 — Commission of the European Communities v Czech Republic | 3 |
| 2008/C 037/04 | Case C-500/07 P: Appeal brought on 19 November 2007 by Territorio Energia Ambiente SpA (TEA) against the order made by the Court of First Instance (Fourth Chamber) on 17 September 2007 in Case T-175/07 Territorio Energia Ambiente SpA v Commission of the European Communities | 3 |
| 2008/C 037/05 | Case C-501/07 P: Appeal brought on 19 November 2007 by S.A.BA.R. SpA against the order made by the Court of First Instance (Fourth Chamber) on 17 September 2007 in Case T-176/07 S.A.BA.R. SpA v Commission of the European Communities | 4 |
| 2008/C 037/06 | Case C-505/07: Reference for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 19 November 2007 — Compañía Española de Comercialización de Aceite, SA v Asociación Española de la Industria y Comercio Exportador de Aceite de Oliva (ASOLIVA), Asociación Nacional de Industriales Envasadores y Refinadores de Aceites Comestibles (ANIERAC) and Administración del Estado | 5 |
| 2008/C 037/07 | Case C-506/07: Reference for a preliminary ruling from the Audiencia Provincial de la Coruña (Spain) lodged on 20 November 2007 — Lubricantes y Carburantes Galaicos, S.L. (Lubricarga) v Petrogal Española, S.A., now GALP Energía España SAU) | 6 |
| 2008/C 037/08 | Case C-509/07: Reference for a preliminary ruling from the Tribunale di Bergamo (Italy) lodged on 21 November 2007 — Luigi Scarpelli v NEOS Banca SpA | 7 |
| 2008/C 037/09 | Case C-516/07: Action brought on 22 November 2007 — Commission of the European Communities v Kingdom of Spain | 8 |
| 2008/C 037/10 | Case C-518/07: Action brought on 22 November 2007 — Commission of the European Communities v Federal Republic of Germany | 8 |
| 2008/C 037/11 | Case C-519/07 P: Appeal brought on 22 November 2007 by Commission of the European Communities against the judgment delivered on 12 September 2007 by the Court of First Instance (Second Chamber) in Case T-348/03 Koninklijke Friesland Foods NV (formerly Friesland Coberco Dairy Foods Holding NV) v Commission of the European Communities | 9 |
| 2008/C 037/12 | Case C-521/07: Action brought on 23 November 2007 — Commission of the European Communities v Kingdom of the Netherlands | 10 |
| 2008/C 037/13 | Case C-522/07: Reference for a preliminary ruling from the Finanzgericht Düsseldorf (Germany) lodged on 22 November 2007 — Dinter GmbH v Hauptzollamt Düsseldorf | 10 |
| 2008/C 037/14 | Case C-524/07: Action brought on 26 November 2007 — Commission of the European Communities v Republic of Austria | 11 |
| 2008/C 037/15 | Case C-525/07 P: Appeal brought on 27 November 2007 by Philippe Combescot against the judgment delivered by the Court of First Instance (Second Chamber) in Case T-249/04 Philippe Combescot v Commission | 12 |
| 2008/C 037/16 | Case C-526/07 P: Appeal brought on 27 November 2007 by Philippe Combescot against the judgment of the Court of First Instance (Second Chamber) delivered on 12 September 2007 in Case T-250/04 Combescot v Commission | 12 |
| 2008/C 037/17 | Case C-529/07: Reference for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 28 November 2007 — Chocoladefabriken Lindt & Sprüngli AG v Franz Hauswirth GmbH | 13 |
| 2008/C 037/18 | Case C-530/07: Action brought on 29 November 2007 — Commission of the European Communities v Portuguese Republic | 14 |
| 2008/C 037/19 | Case C-531/07: Reference for a preliminary ruling from the Obersten Gerichtshof (Austria) lodged on 29 November 2007 — Fachverband der Buch- und Medienwirtschaft v LIBRO Handelsgesellschaft mbH | 14 |
| 2008/C 037/20 | Case C-533/07: Reference for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 29 November 2007 — Falco Privatstiftung and Thomas Rabitsch v Gisela Weller-Lindhorst | 15 |
| 2008/C 037/21 | Case C-534/07 P: Appeal brought on 30 November 2007 by William Prym GmbH & Co. KG and Prym Consumer GmbH against the judgment of the Court of First Instance (Second Chamber) delivered on 12 September 2007 in Case T-30/05 William Prym GmbH & Co. KG and Prym Consumer GmbH & Co. KG v Commission of the European Communities | 16 |
| 2008/C 037/22 | Case C-538/07: Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia (Italy) lodged on 3 December 2007 — Assitur Srl v Camera di Commercio, Industria, Artigianato e Agricoltura di Milano | 16 |
| 2008/C 037/23 | Case C-539/07: Action brought on 30 November 2007 — Commission of the European Communities v Italian Republic | 17 |
| 2008/C 037/24 | Case C-540/07: Action brought on 30 November 2007 — Commission of the European Communities v Italian Republic | 17 |
| 2008/C 037/25 | Case C-542/07 P: Appeal brought on 30 November 2007 by Imagination Technologies Ltd against the judgment of the Court of First Instance (Third Chamber) delivered on 20 September 2007 in Case T-461/04: Imagination Technologies Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) | 18 |
| 2008/C 037/26 | Case C-543/07: Action brought on 3 December 2007 — Commission of the European Communities v Kingdom of Belgium | 18 |
| 2008/C 037/27 | Case C-544/07: Reference for a preliminary ruling from the Wojewódzki Sąd Administracyjny we Wrocławiu (Republic of Poland) lodged on 4 December 2007 — Uwe Rüffler v Dyrektor Izby Skarbowej we Wrocławiu — Ośrodek Zamiejscowy w Wałbrzychu | 19 |
| 2008/C 037/28 | Case C-550/07 P: Appeal brought on 8 December 2007 by Akzo Nobel Chemicals Ltd, Akcros Chemicals Ltd against the judgment of the Court of First Instance (First Chamber) delivered on 17 September 2007 in Case T-253/03: Akzo Nobel Chemicals Ld and Akcros Chemicals Ltd v the Commission of the European Communities | 19 |
| 2008/C 037/29 | Case C-552/07: Reference for a preliminary ruling from the Conseil d'Etat (France) lodged on 11 December 2007 — Commune de Sausheim v Pierre Azelvandre | 20 |
| 2008/C 037/30 | Case C-556/07: Action brought on 13 December 2007 — Commission of the European Communities v French Republic | 20 |
| 2008/C 037/31 | Case C-559/07: Action brought on 17 December 2007 — Commission of the European Communities v Hellenic Republic | 21 |
| | Court of First Instance |
| 2008/C 037/32 | Case T-133/03: Order of the Court of First Instance of 5 December 2007 — Schering-Plough Ltd v Commission and EMEA (Action for annulment — Partial inadmissibility — Interest in bringing proceedings — Application devoid of purpose — No need to adjudicate) | 22 |
| 2008/C 037/33 | Case T-345/05 R III: Order of the President of the Court of First Instance of 22 November 2007 — V v Parliament (Application for interim measures — Waiver of immunity of a Member of the European Parliament — Application for suspension of operation — No prima facie case) | 22 |
| 2008/C 037/34 | Case T-120/07 R: Order of the President of the Court of First Instance of 11 October 2007 — MB Immobilien v Commission (Interim measures — State Aid to the new Länder — Obligation to recover aid — Application for suspension of operation of a measure — Urgency — Weighing up of interests) | 23 |
| 2008/C 037/35 | Case T-349/07 R: Order of the President of the Court of First Instance of 11 December 2007 — FMC Chemical and Others v Commission (Application for interim relief — Directive 91/414/EEC — Application for suspension of operation of a measure — Admissibility — No urgency) | 23 |
| 2008/C 037/36 | Case T-350/07 R: Order of the President of the Court of First Instance of 11 December 2007 — FMC Chemical and Others v Commission (Application for interim relief — Directive 91/414/EEC — Application for suspension of operation of a measure — Admissibility — No urgency) | 23 |
| 2008/C 037/37 | Case T-429/07: Action brought on 27 November 2007 — BP Aromatics v Commission | 24 |
| 2008/C 037/38 | Case T-431/07: Action brought on 26 November 2007 — Gebr. Heller Maschinenfabrik v OHIM — Fernández Martinez (HELLER) | 24 |
| 2008/C 037/39 | Case T-434/07: Action brought on 28 November 2007 — Volvo Trademark Holding v OHIM — Grebenshikova (SOLVO) | 25 |
| 2008/C 037/40 | Case T-435/07: Action brought on 29 November 2007 — New Look v OHIM (NEW LOOK) | 25 |
| 2008/C 037/41 | Case T-438/07: Action brought on 30 November 2007 — Spa Monopole v OHIM — De Francesco Import (SpagO) | 26 |
| 2008/C 037/42 | Case T-439/07: Action brought on 4 December 2007 — Coats Holdings v Commission | 26 |
| 2008/C 037/43 | Case T-441/07: Action brought on 29 November 2007 — Ryanair v Commission | 27 |
| 2008/C 037/44 | Case T-442/07: Action brought on 30 November 2007 — Ryanair v Commission | 28 |
| 2008/C 037/45 | Case T-444/07: Action brought on 5 December 2007 — Centre de Promotion de l'Emploi par la Micro-Entreprise v Commission | 29 |
| 2008/C 037/46 | Case T-445/07: Action brought on 7 December 2007 — Behring & Söhne v Commission | 30 |
| 2008/C 037/47 | Case T-446/07: Action brought on 7 December 2007 — Royal Appliance International v OHIM — BSH Bosch und Siemens Hausgeräte (Centrixx) | 30 |
| 2008/C 037/48 | Case T-447/07: Action brought on 5 December 2007 — Scovill Fasteners v Commission | 31 |
| 2008/C 037/49 | Case T-449/07: Action brought on 3 December 2007 — Rotter v OHIM (EU-BRUZZEL) | 31 |
| 2008/C 037/50 | Case T-450/07: Action brought on 3 December 2007 — Harwin International v OHIM — Cuadrado (Pickwick) | 32 |
| 2008/C 037/51 | Case T-451/07: Action brought on 10 December 2007 — WellBiz v OHIM — Wild (WELLBIZ) | 32 |
| 2008/C 037/52 | Case T-453/07: Action brought on 11 December 2007 — Dylog Italia/OHIM — GSI Office Management (IP Manager) | 33 |
| 2008/C 037/53 | Case T-105/04: Order of the Court of First Instance of 12 December 2007 — Sandoz v Commission | 33 |
| 2008/C 037/54 | Case T-329/07: Order of the Court of First Instance of 11 December 2007 — UPS Europe and UPS Deutschland v Commission | 33 |
| | European Union Civil Service Tribunal |
| 2008/C 037/55 | Case F-57/06: Judgment of the Civil Service Tribunal of 7 November 2007 — Jacques Hinderyckx v Council (Officials — Promotion — 2005 Promotion Exercise — Non-inclusion in list of promoted officials — Infringement of Article 45 of the Staff Regulations — Consideration of comparative merits — Staff reports from different institutions) | 34 |
| 2008/C 037/56 | Case F-88/07: Action brought on 29 August 2007 — Dominguez Gonzalez v Commission | 34 |
| 2008/C 037/57 | Case F-135/07: Action brought on 30 October 2007 — Daniela Smadja v Commission | 35 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2008/C 037/02

Case C-481/07 P: Appeal brought on 2 November 2007 by SELEX Sistemi Integrati SpA, formerly Alenia Marconi Systems SpA, against the order of 29 August 2007 of the Court of First Instance (Second Chamber) in Case T-186/05 SELEX Sistemi Integrati SpA v Commision of the European Communities

SELEX Sistemi Integrati SpA v Commision of the European Communities

2

2008/C 037/03

Case C-496/07: Action brought on 14 November 2007 — Commission of the European Communities v Czech Republic

3

2008/C 037/04

Case C-500/07 P: Appeal brought on 19 November 2007 by Territorio Energia Ambiente SpA (TEA) against the order made by the Court of First Instance (Fourth Chamber) on 17 September 2007 in Case T-175/07 Territorio Energia Ambiente SpA v Commission of the European Communities

Territorio Energia Ambiente SpA

Commission of the European Communities

3

2008/C 037/05

Case C-501/07 P: Appeal brought on 19 November 2007 by S.A.BA.R. SpA against the order made by the Court of First Instance (Fourth Chamber) on 17 September 2007 in Case T-176/07 S.A.BA.R. SpA v Commission of the European Communities

S.A.BA.R. SpA

Commission of the European Communities

4

2008/C 037/06

Case C-505/07: Reference for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 19 November 2007 — Compañía Española de Comercialización de Aceite, SA v Asociación Española de la Industria y Comercio Exportador de Aceite de Oliva (ASOLIVA), Asociación Nacional de Industriales Envasadores y Refinadores de Aceites Comestibles (ANIERAC) and Administración del Estado

5

2008/C 037/07

Case C-506/07: Reference for a preliminary ruling from the Audiencia Provincial de la Coruña (Spain) lodged on 20 November 2007 — Lubricantes y Carburantes Galaicos, S.L. (Lubricarga) v Petrogal Española, S.A., now GALP Energía España SAU)

6

2008/C 037/08

Case C-509/07: Reference for a preliminary ruling from the Tribunale di Bergamo (Italy) lodged on 21 November 2007 — Luigi Scarpelli v NEOS Banca SpA

7

2008/C 037/09

Case C-516/07: Action brought on 22 November 2007 — Commission of the European Communities v Kingdom of Spain

8

2008/C 037/10

Case C-518/07: Action brought on 22 November 2007 — Commission of the European Communities v Federal Republic of Germany

8

2008/C 037/11

Case C-519/07 P: Appeal brought on 22 November 2007 by Commission of the European Communities against the judgment delivered on 12 September 2007 by the Court of First Instance (Second Chamber) in Case T-348/03 Koninklijke Friesland Foods NV (formerly Friesland Coberco Dairy Foods Holding NV) v Commission of the European Communities

9

2008/C 037/12

Case C-521/07: Action brought on 23 November 2007 — Commission of the European Communities v Kingdom of the Netherlands

10

2008/C 037/13

Case C-522/07: Reference for a preliminary ruling from the Finanzgericht Düsseldorf (Germany) lodged on 22 November 2007 — Dinter GmbH v Hauptzollamt Düsseldorf

10

2008/C 037/14

Case C-524/07: Action brought on 26 November 2007 — Commission of the European Communities v Republic of Austria

11

2008/C 037/15

Case C-525/07 P: Appeal brought on 27 November 2007 by Philippe Combescot against the judgment delivered by the Court of First Instance (Second Chamber) in Case T-249/04 Philippe Combescot v Commission

12

2008/C 037/16

Case C-526/07 P: Appeal brought on 27 November 2007 by Philippe Combescot against the judgment of the Court of First Instance (Second Chamber) delivered on 12 September 2007 in Case T-250/04 Combescot v Commission

12

2008/C 037/17

Case C-529/07: Reference for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 28 November 2007 — Chocoladefabriken Lindt & Sprüngli AG v Franz Hauswirth GmbH

13

2008/C 037/18

Case C-530/07: Action brought on 29 November 2007 — Commission of the European Communities v Portuguese Republic

14

2008/C 037/19

Case C-531/07: Reference for a preliminary ruling from the Obersten Gerichtshof (Austria) lodged on 29 November 2007 — Fachverband der Buch- und Medienwirtschaft v LIBRO Handelsgesellschaft mbH

14

2008/C 037/20

Case C-533/07: Reference for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 29 November 2007 — Falco Privatstiftung and Thomas Rabitsch v Gisela Weller-Lindhorst

15

2008/C 037/21

Case C-534/07 P: Appeal brought on 30 November 2007 by William Prym GmbH & Co. KG and Prym Consumer GmbH against the judgment of the Court of First Instance (Second Chamber) delivered on 12 September 2007 in Case T-30/05 William Prym GmbH & Co. KG and Prym Consumer GmbH & Co. KG v Commission of the European Communities

16

2008/C 037/22

Case C-538/07: Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia (Italy) lodged on 3 December 2007 — Assitur Srl v Camera di Commercio, Industria, Artigianato e Agricoltura di Milano

16

2008/C 037/23

Case C-539/07: Action brought on 30 November 2007 — Commission of the European Communities v Italian Republic

17

2008/C 037/24

Case C-540/07: Action brought on 30 November 2007 — Commission of the European Communities v Italian Republic

17

2008/C 037/25

Case C-542/07 P: Appeal brought on 30 November 2007 by Imagination Technologies Ltd against the judgment of the Court of First Instance (Third Chamber) delivered on 20 September 2007 in Case T-461/04: Imagination Technologies Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

18

2008/C 037/26

Case C-543/07: Action brought on 3 December 2007 — Commission of the European Communities v Kingdom of Belgium

18

2008/C 037/27

Case C-544/07: Reference for a preliminary ruling from the Wojewódzki Sąd Administracyjny we Wrocławiu (Republic of Poland) lodged on 4 December 2007 — Uwe Rüffler v Dyrektor Izby Skarbowej we Wrocławiu — Ośrodek Zamiejscowy w Wałbrzychu

19

2008/C 037/28

Case C-550/07 P: Appeal brought on 8 December 2007 by Akzo Nobel Chemicals Ltd, Akcros Chemicals Ltd against the judgment of the Court of First Instance (First Chamber) delivered on 17 September 2007 in Case T-253/03: Akzo Nobel Chemicals Ld and Akcros Chemicals Ltd v the Commission of the European Communities

19

2008/C 037/29

Case C-552/07: Reference for a preliminary ruling from the Conseil d'Etat (France) lodged on 11 December 2007 — Commune de Sausheim v Pierre Azelvandre

20

2008/C 037/30

Case C-556/07: Action brought on 13 December 2007 — Commission of the European Communities v French Republic

20

2008/C 037/31

Case C-559/07: Action brought on 17 December 2007 — Commission of the European Communities v Hellenic Republic

21

Court of First Instance

2008/C 037/32

Case T-133/03: Order of the Court of First Instance of 5 December 2007 — Schering-Plough Ltd v Commission and EMEA (Action for annulment — Partial inadmissibility — Interest in bringing proceedings — Application devoid of purpose — No need to adjudicate)

22

2008/C 037/33

Case T-345/05 R III: Order of the President of the Court of First Instance of 22 November 2007 — V v Parliament (Application for interim measures — Waiver of immunity of a Member of the European Parliament — Application for suspension of operation — No prima facie case)

prima facie

22

2008/C 037/34

Case T-120/07 R: Order of the President of the Court of First Instance of 11 October 2007 — MB Immobilien v Commission (Interim measures — State Aid to the new Länder — Obligation to recover aid — Application for suspension of operation of a measure — Urgency — Weighing up of interests)

23

2008/C 037/35

Case T-349/07 R: Order of the President of the Court of First Instance of 11 December 2007 — FMC Chemical and Others v Commission (Application for interim relief — Directive 91/414/EEC — Application for suspension of operation of a measure — Admissibility — No urgency)

23

2008/C 037/36

Case T-350/07 R: Order of the President of the Court of First Instance of 11 December 2007 — FMC Chemical and Others v Commission (Application for interim relief — Directive 91/414/EEC — Application for suspension of operation of a measure — Admissibility — No urgency)

23

2008/C 037/37

Case T-429/07: Action brought on 27 November 2007 — BP Aromatics v Commission

24

2008/C 037/38

Case T-431/07: Action brought on 26 November 2007 — Gebr. Heller Maschinenfabrik v OHIM — Fernández Martinez (HELLER)

24

2008/C 037/39

Case T-434/07: Action brought on 28 November 2007 — Volvo Trademark Holding v OHIM — Grebenshikova (SOLVO)

25

2008/C 037/40

Case T-435/07: Action brought on 29 November 2007 — New Look v OHIM (NEW LOOK)

25

2008/C 037/41

Case T-438/07: Action brought on 30 November 2007 — Spa Monopole v OHIM — De Francesco Import (SpagO)

26

2008/C 037/42

Case T-439/07: Action brought on 4 December 2007 — Coats Holdings v Commission

26

2008/C 037/43

Case T-441/07: Action brought on 29 November 2007 — Ryanair v Commission

27

2008/C 037/44

Case T-442/07: Action brought on 30 November 2007 — Ryanair v Commission

28

2008/C 037/45

Case T-444/07: Action brought on 5 December 2007 — Centre de Promotion de l'Emploi par la Micro-Entreprise v Commission

29

2008/C 037/46

Case T-445/07: Action brought on 7 December 2007 — Behring & Söhne v Commission

30

2008/C 037/47

Case T-446/07: Action brought on 7 December 2007 — Royal Appliance International v OHIM — BSH Bosch und Siemens Hausgeräte (Centrixx)

30

2008/C 037/48

Case T-447/07: Action brought on 5 December 2007 — Scovill Fasteners v Commission

31

2008/C 037/49

Case T-449/07: Action brought on 3 December 2007 — Rotter v OHIM (EU-BRUZZEL)

31

2008/C 037/50

Case T-450/07: Action brought on 3 December 2007 — Harwin International v OHIM — Cuadrado (Pickwick)

32

2008/C 037/51

Case T-451/07: Action brought on 10 December 2007 — WellBiz v OHIM — Wild (WELLBIZ)

32

2008/C 037/52

Case T-453/07: Action brought on 11 December 2007 — Dylog Italia/OHIM — GSI Office Management (IP Manager)

33

2008/C 037/53

Case T-105/04: Order of the Court of First Instance of 12 December 2007 — Sandoz v Commission

33

2008/C 037/54

Case T-329/07: Order of the Court of First Instance of 11 December 2007 — UPS Europe and UPS Deutschland v Commission

33

European Union Civil Service Tribunal

2008/C 037/55

Case F-57/06: Judgment of the Civil Service Tribunal of 7 November 2007 — Jacques Hinderyckx v Council (Officials — Promotion — 2005 Promotion Exercise — Non-inclusion in list of promoted officials — Infringement of Article 45 of the Staff Regulations — Consideration of comparative merits — Staff reports from different institutions)

34

2008/C 037/56

Case F-88/07: Action brought on 29 August 2007 — Dominguez Gonzalez v Commission

34

2008/C 037/57

Case F-135/07: Action brought on 30 October 2007 — Daniela Smadja v Commission

35

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

EN

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Court of Justice

| 9.2.2008 | EN | Official Journal of the European Union | C 37/1 |
| --- | --- | --- | --- |

9.2.2008

EN

Official Journal of the European Union

C 37/1

---

(2008/C 37/01)

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

OJ C 22, 26.1.2008

Past publications

OJ C 8, 12.1.2008

OJ C 315, 22.12.2007

OJ C 297, 8.12.2007

OJ C 283, 24.11.2007

OJ C 269, 10.11.2007

OJ C 247, 20.10.2007

These texts are available on:

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

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

---

V Announcements

COURT PROCEEDINGS

Court of Justice

| 9.2.2008 | EN | Official Journal of the European Union | C 37/2 |
| --- | --- | --- | --- |

9.2.2008

EN

Official Journal of the European Union

C 37/2

---

Appeal brought on 2 November 2007 by SELEX Sistemi Integrati SpA, formerly Alenia Marconi Systems SpA, against the order of 29 August 2007 of the Court of First Instance (Second Chamber) in Case T-186/05 SELEX Sistemi Integrati SpA v Commision of the European Communities

(Case C-481/07 P)

(2008/C 37/02)

Language of the case: Italian

Parties

Appellant: SELEX Sistemi Integrati SpA, formerly Alenia Marconi Systems SpA (represented by: F. Sciaudone, R. Sciaudone and A. Neri, avvocati)

Other party to the proceedings: Commission of the European Communities

Forms of order sought

The appellant claims that the Court should:

| — | set aside the order of the Court of First Instance of 29 August 2007 in Case T-186/05, and refer the case back to the Court of First Instance for adjudication on the substance in the light of any guidance which it may please the Court of Justice to provide; |
| --- | --- |

—

set aside the order of the Court of First Instance of 29 August 2007 in Case T-186/05, and refer the case back to the Court of First Instance for adjudication on the substance in the light of any guidance which it may please the Court of Justice to provide;

| — | order the Commission to pay the costs incurred in the present proceedings, together with those incurred in Case T-186/05. |
| --- | --- |

—

order the Commission to pay the costs incurred in the present proceedings, together with those incurred in Case T-186/05.

Pleas in law and main arguments

In support of its claims, the appellant alleges that:

| (a) | the legal expenses incurred in Case T-155/04 were wrongly excluded from the ambit of recoverable loss. In the appellant's submission, the Court of First Instance erred as follows:






  — | it wrongly characterised the action for damages as an attempt ‘to overturn the order for costs in the judgment’ in Case T-155/04; |
| --- | --- | --- |

(a)

the legal expenses incurred in Case T-155/04 were wrongly excluded from the ambit of recoverable loss. In the appellant's submission, the Court of First Instance erred as follows:

—

it wrongly characterised the action for damages as an attempt ‘to overturn the order for costs in the judgment’ in Case T-155/04;

| — | it misconstrued Article 87 et seq of the Rules of Procedure of the Court of First Instance in relation to the principles relating to compensation for loss; |
| --- | --- |

—

it misconstrued Article 87 et seq of the Rules of Procedure of the Court of First Instance in relation to the principles relating to compensation for loss;

| — | it held, wrongly, that Montorio was applicable to the case before it; |
| --- | --- |

—

it held, wrongly, that Montorio was applicable to the case before it;

| (b) | the Court of First Instance erred in excluding from the ambit of recoverable loss the legal costs incurred in the administrative pre-litigation procedure. In the appellant's submission, that error consists in interpreting and applying Article 87 et seq of the Rules of Procedure to an individual action for damages, which is completely outside the scope of those provisions; |
| --- | --- |

(b)

the Court of First Instance erred in excluding from the ambit of recoverable loss the legal costs incurred in the administrative pre-litigation procedure. In the appellant's submission, that error consists in interpreting and applying Article 87 et seq of the Rules of Procedure to an individual action for damages, which is completely outside the scope of those provisions;

| (c) | the clear sense of the evidence adduced by the appellant was distorted. The Court of First Instance did not correctly analyse the documentation produced by the applicant in Case T-186/05 or the annexes thereto; |
| --- | --- |

(c)

the clear sense of the evidence adduced by the appellant was distorted. The Court of First Instance did not correctly analyse the documentation produced by the applicant in Case T-186/05 or the annexes thereto;

| (d) | the grounds stated are illogical and contradictory, and the Community case-law on damages was flouted. The Court of First Instance did not correctly apply the principles set out in Joined Cases C-104/89 and C-37/90 Mulder
   (1) and Case C-243/05 P Agraz
   (2); |
| --- | --- |

(d)

the grounds stated are illogical and contradictory, and the Community case-law on damages was flouted. The Court of First Instance did not correctly apply the principles set out in Joined Cases C-104/89 and C-37/90 Mulder
   (1) and Case C-243/05 P Agraz
   (2);

| (e) | Article 44 of the Rules of Procedure of the Court of First Instance was infringed. In the appellant's submission, the correct interpretation of that provision does not require that the application must ‘necessarily’ contain the evidence; on the contrary, that provision is based on the concept of ‘possibility’, that is to say, it requires the party to provide evidence only when that is possible; |
| --- | --- |

(e)

Article 44 of the Rules of Procedure of the Court of First Instance was infringed. In the appellant's submission, the correct interpretation of that provision does not require that the application must ‘necessarily’ contain the evidence; on the contrary, that provision is based on the concept of ‘possibility’, that is to say, it requires the party to provide evidence only when that is possible;

| (f) | the reasons stated are inadequate as regards the issue of compensation for the damage suffered by the appellant as a result of the infringement of the principle that the administrative procedure must be of reasonable duration. The Court of First Instance did not, in fact, state the grounds for its rejection of the claim for compensation in relation to the specific infringement alleged by the appellant; |
| --- | --- |

(f)

the reasons stated are inadequate as regards the issue of compensation for the damage suffered by the appellant as a result of the infringement of the principle that the administrative procedure must be of reasonable duration. The Court of First Instance did not, in fact, state the grounds for its rejection of the claim for compensation in relation to the specific infringement alleged by the appellant;

| (g) | the clear sense of the arguments and the evidence was distorted, and the reasoning is illogical and inconsistent with the Community case-law on compensation for non-material damage. For the purposes of rejecting the claim for damages in relation to breach of the principle that the administrative procedure must be of reasonable duration or of the Commission's duty of vigilance, the Court of First Instance was not entitled to use the arguments exclusively concerning exclusion from the public procurement procedures or failure to award a public supply contract. |
| --- | --- |

(g)

the clear sense of the arguments and the evidence was distorted, and the reasoning is illogical and inconsistent with the Community case-law on compensation for non-material damage. For the purposes of rejecting the claim for damages in relation to breach of the principle that the administrative procedure must be of reasonable duration or of the Commission's duty of vigilance, the Court of First Instance was not entitled to use the arguments exclusively concerning exclusion from the public procurement procedures or failure to award a public supply contract.

---

(1)  [2000] ECR I-203.

(2)  [2006] ECR I-10833.

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| 9.2.2008 | EN | Official Journal of the European Union | C 37/3 |
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Action brought on 14 November 2007 — Commission of the European Communities v Czech Republic

(Case C-496/07)

(2008/C 37/03)

Language of the case: Czech

Parties

Applicant: Commission of the European Communities (represented by: G. Rozet and M. Šimerdová, acting as Agents)

Defendant: Czech Republic

Form of order sought

| — | Declare that, in so far as Czech domestic legislation reserves the exercise of the post of captain of a ship flying the Czech flag to persons with Czech nationality, the Czech Republic has failed to fulfil its obligations under Article 39 of the EC Treaty; |
| --- | --- |

—

Declare that, in so far as Czech domestic legislation reserves the exercise of the post of captain of a ship flying the Czech flag to persons with Czech nationality, the Czech Republic has failed to fulfil its obligations under Article 39 of the EC Treaty;

| — | Order the Czech Republic to pay the costs. |
| --- | --- |

—

Order the Czech Republic to pay the costs.

Pleas in law and main arguments

In the above action the Commission relies on the following pleas:

Czech domestic legislation (Law No 61/2000) places the operator of a ship under an obligation to ensure that the master of a ship flying the Czech flag is a citizen of the Czech Republic.

That clear and completely unconditional requirement to have Czech nationality, in the opinion of the Commission of the European Communities, conflicts with the findings reached by the Court of Justice of the European Communities in Case C-405/01 (1) and C-47/02 (2). The Commission draws attention in particular to the findings in paragraph 44 of the judgment in Case C-405/01 and paragraph 63 of the judgment in Case C-47/02. The requirement laid down in Czech law that the master of a ship must be of Czech nationality is absolute. The relevant provisions of Czech law do not take into account the way in which and extent to which the master of a ship in reality exercises the powers conferred by public law, as required by the abovementioned case-law of the Court of Justice of the European Communities. The mere fact that Czech law entrusts masters of ships flying the Czech flag with powers which fall within the ambit of powers conferred by public law is not enough to warrant use of the derogation from the freedom of movement for workers laid down in Article 39(4) of the EC Treaty.

The Commission of the European Communities is of the opinion that the Czech Republic is under an obligation to bring its domestic legislation into conformity with the case-law of the Court of Justice of the European Communities, notwithstanding the fact that (according to the statements of the Czech Republic) there are currently no ships flying the Czech flag.

---

(1)  Case C-405/01 Colegio de Oficiales de la Marina Mercante Espagñola v Administración del Estado [2003] ECR I-10391, concerning Spanish legislation reserving the post of master and chief mate on ships flying the Spanish flag to persons with Spanish nationality.

(2)  Case C-47/02 Albert Anker, Klaas Ras a Albertus Snoek v Federal Republic of Germany [2003] ECR I-10447, concerning German legislation reserving the post of captain on ships flying the German flag and engaged in small-scale maritime shipping (‘Kleine Seeschiffahrt’) to persons with German nationality.

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| 9.2.2008 | EN | Official Journal of the European Union | C 37/3 |
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Appeal brought on 19 November 2007 by Territorio Energia Ambiente SpA (TEA) against the order made by the Court of First Instance (Fourth Chamber) on 17 September 2007 in Case T-175/07 Territorio Energia Ambiente SpA v Commission of the European Communities

(Case C-500/07 P)

(2008/C 37/04)

Language of the case: Italian

Parties

Appellant: Territorio Energia Ambiente (TEA) (represented by: E. Coffrini and F. Tesauro, avvocati)

Other party to the proceedings: Commission of the European Communities

Form of order sought

| — | annul and/or amend in its entirety the order of the Court of First Instance at present under appeal, and rule as appropriate; |
| --- | --- |

—

annul and/or amend in its entirety the order of the Court of First Instance at present under appeal, and rule as appropriate;

| — | grant the forms of order already sought at first instance. |
| --- | --- |

—

grant the forms of order already sought at first instance.

Pleas in law and main arguments

By the Commission decision of 5 June 2002 (1)‘on State aid ... in the form of tax exemptions and subsidised loans to public utilities with a majority public capital holding’, the income tax exemption scheme provided for by Article 3(70) of Law No 549/1995 and by Article 66(14) of Decree-Law No 331/1993, as converted and amended, in favour of joint-stock companies with majority public shareholdings and providing local public utilities was declared to constitute State aid incompatible with the common market. The Commission decision did not relate to specific companies but covered companies established within the terms of Article 22 of Law No 241/1990 with majority public shareholdings. The decision was for that reason not notified to any company (and was not notified to the appellant) as no individual addressees were specifically identified. The Italian State, by way of Legislative Decree No 10 of 15 February 2007, gave effect to the abovementioned decision, allocating the task of recovery to the revenue authorities. Accordingly, on 29 March 2007, the Mantova revenue office sent to the appellant company a payment demand for the capital sum of EUR 1 748 289,75 plus interest of EUR 912 180,64.

The appellant company, however, is not a company with a majority public shareholding, but is, rather, entirely public, with the result that ‘the Commission's findings and its decision’ cannot apply to it.

The appellant has in-house responsibility for local public utilities, the management of which had previously been entrusted by the commune of Mantova to the municipally-owned undertaking (ASM), which was transformed into the appellant company pursuant to Law No 127/97.

The appellant manages the public utilities under a private structure, within an essentially local context, without being able to influence free competition, which cannot exist as there is no market.

A company with a wholly public shareholding is nothing other than an indirect body of the associated communes, which are the actual recipients of the fiscal aid with which the Commission takes issue.

On objective and subjective grounds, therefore, the tax exemption granted to the appellant cannot be classified as unwarranted State aid at variance with the requirements of Article 87 EC.

For the reasons outlined, an action was brought before the Court of First Instance against the abovementioned Commission decision. It was registered as Case T-175/07 and assigned to the Fourth Chamber. A decision in the case was given by way of an order of the Court of First Instance of 17 September 2007 declaring the action to be inadmissible on the ground of failure to comply with the time-limit laid down in the fifth paragraph of Article 230 EC, according to which the action for annulment ought to have been brought within two months of the publication of the contested measure, or of its notification to the appellant or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be, in accordance with Article 102(1) of the Rules of Procedure of the Court of First Instance.

It is submitted that that finding is without basis, also in the light of the judgments in Case 730/79 Philip Morris Holland
   (2), Case 323/82 Intermills
   (3), Case T-358/94 Air France
   (4), and, in particular, the judgment of the Third Chamber of the Court of Justice in Joined Cases C-346/03 and C-529/03 Atzeni and Others
   (5), for which reason it is requested in the present appeal that the order of the Court of First Instance be amended.

The action before the Court of First Instance was brought immediately after the appellant company had become aware that it was one of the addressees of the Commission's decision, that is to say, when it was notified of the payment demand issued by the revenue office.

The order of the Court of First Instance is also challenged on the ground that it gave effect to a misapplication of Article 225 EC.

The application for annulment of the Commission decision is to be treated as inherently linked to the request that the appellant not be made subject to that decision. It is accordingly requested that the order made at first instance be amended, also in regard to the declared lack of competence ratione materiae on the part of the Court of First Instance.

---

(1)  OJ 2003 L 77, p. 21.

(2)  [1980] ECR 2671.

(3)  [1984] ECR 3809.

(4)  [1996] ECR II-2109.

(5)  [2006] ECR I-1875.

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| 9.2.2008 | EN | Official Journal of the European Union | C 37/4 |
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Appeal brought on 19 November 2007 by S.A.BA.R. SpA against the order made by the Court of First Instance (Fourth Chamber) on 17 September 2007 in Case T-176/07 S.A.BA.R. SpA v Commission of the European Communities

(Case C-501/07 P)

(2008/C 37/05)

Language of the case: Italian

Parties

Appellant: S.A.BA.R. SpA (represented by: E. Coffrini and F. Tesauro, avvocati)

Other party to the proceedings: Commission of the European Communities

Form of order sought

| — | annul and/or amend in its entirety the order of the Court of First Instance at present under appeal, and rule as appropriate; |
| --- | --- |

—

annul and/or amend in its entirety the order of the Court of First Instance at present under appeal, and rule as appropriate;

| — | grant the forms of order already sought at first instance. |
| --- | --- |

—

grant the forms of order already sought at first instance.

Pleas in law and main arguments

By the Commission decision of 5 June 2002 (1)‘on State aid ... in the form of tax exemptions and subsidised loans to public utilities with a majority public capital holding’, the income tax exemption scheme provided for by Article 3(70) of Law No 549/1995 and by Article 66(14) of Decree-Law No 331/1993, as converted and amended, in favour of joint-stock companies with majority public shareholdings and providing local public utilities was declared to constitute State aid incompatible with the common market. The Commission decision did not relate to specific companies but covered companies established within the terms of Article 22 of Law No 241/1990 with majority public shareholdings. The decision was for that reason not notified to any company (and was not notified to the appellant) as no individual addressees were specifically identified. The Italian State, by way of Legislative Decree No 10 of 15 February 2007, gave effect to the abovementioned decision, allocating the task of recovery to the revenue authorities. Accordingly, on 20 March 2007, the Guastalla revenue office sent to the appellant company the following payment demands: payment demand No 3796 of 15 March 2007 for the capital sum of EUR 1 912 128,47 plus interest of EUR 2 192 225; payment demand No 3799 of 15 March 2007 for the capital sum of EUR 815 406,94 plus interest of EUR 783 529; and payment demand No 3800 of 15 March 2007 for the capital sum of EUR 439 549,29 plus interest of EUR 712 588.

The appellant company, however, is not a company with a majority public shareholding, but is, rather, entirely public. For that reason, ‘the Commission's findings and its decision’ cannot apply to it.

The appellant has in-house responsibility for local public utilities in relation to the eight associated communes, and was established specifically for that purpose in accordance with the arrangements set out in the legislation.

The appellant manages the public utilities under a private structure, within an essentially local context, without being able to influence free competition, which cannot exist as there is no market.

A company with a wholly public shareholding is nothing other than an indirect body of the associated communes, which are the actual recipients of the fiscal aid with which the Commission takes issue.

On objective and subjective grounds, therefore, the tax exemption granted to the appellant cannot be classified as unwarranted State aid at variance with the requirements of Article 87 EC.

For the reasons outlined, an action was brought before the Court of First Instance against the abovementioned Commission decision. It was registered as Case T-176/07 and assigned to the Fourth Chamber. A decision in the case was given by way of an order of inadmissibility of the Court of First Instance of 17 September 2007 based on the ground of failure to comply with the time-limit laid down in the fifth paragraph of Article 230 EC, according to which the action for annulment ought to have been brought within two months of the publication of the contested measure, or of its notification to the appellant or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be, in accordance with Article 102(1) of the Rules of Procedure of the Court of First Instance.

It is submitted that that finding is without basis, also in the light of the judgments in Case 730/79 Philip Morris Holland
   (2), Case 323/82 Intermills
   (3), Case T-358/94 Air France
   (4), and, in particular, the judgment of the Third Chamber of the Court of Justice in Joined Cases C-346/03 and C-529/03 Atzeni and Others
   (5), for which reason it is requested in the present appeal that the order of the Court of First Instance be amended.

The action before the Court of First Instance was brought immediately after the appellant company had become aware that it was one of the addressees of the Commission's decision, that is to say, when it was notified of the payment demands issued by the revenue office.

The order of the Court of First Instance is also challenged on the ground that it gave effect to a misapplication of Article 225 EC.

The application for annulment of the Commission decision is to be treated as inherently linked to the request that the appellant not be made subject to that decision. It is accordingly requested that the order made at first instance be amended, also in regard to the declared lack of competence ratione materiae on the part of the Court of First Instance.

---

(1)  OJ 2003 L 77, p. 21.

(2)  [1980] ECR 2671.

(3)  [1984] ECR 3809.

(4)  [1996] ECR II-2109.

(5)  [2006] ECR I-1875.

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| 9.2.2008 | EN | Official Journal of the European Union | C 37/5 |
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Reference for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 19 November 2007 — Compañía Española de Comercialización de Aceite, SA v Asociación Española de la Industria y Comercio Exportador de Aceite de Oliva (ASOLIVA), Asociación Nacional de Industriales Envasadores y Refinadores de Aceites Comestibles (ANIERAC) and Administración del Estado

(Case C-505/07)

(2008/C 37/06)

Language of the case: Spanish

Referring court

Tribunal Supremo

Parties to the main proceedings

Applicant: Compañía Española de Comercialización de Aceite, SA

Defendants: Asociación Española de la Industria y Comercio Exportador de Aceite de Oliva (ASOLIVA), Asociación Nacional de Industriales Envasadores y Refinadores de Aceites Comestibles (ANIERAC) and Administración del Estado

Questions referred

| 1. | Does the reference to ‘bodies’ authorised to conclude contracts for the storage of olive oil in Article 12a of Council Regulation (EEC) No 136/66 (1) of 22 September 1966 on the establishment of a common organisation of the market in oils and fats, in the version introduced by Regulation 1638/98 (2), cover a company whose shareholders predominantly comprise producers, oil pressers and olive growers' cooperatives, as well as financial institutions? Can a company with these characteristics be considered equivalent to producer groups and associations thereof recognised under Regulation (EC) 952/97 (3)? |
| --- | --- |

1.

Does the reference to ‘bodies’ authorised to conclude contracts for the storage of olive oil in Article 12a of Council Regulation (EEC) No 136/66 (1) of 22 September 1966 on the establishment of a common organisation of the market in oils and fats, in the version introduced by Regulation 1638/98 (2), cover a company whose shareholders predominantly comprise producers, oil pressers and olive growers' cooperatives, as well as financial institutions? Can a company with these characteristics be considered equivalent to producer groups and associations thereof recognised under Regulation (EC) 952/97 (3)?

| 2. | In the event that the company falls within the description of ‘bodies’ capable of carrying out storage activities, can the ‘approval by the Member State’ which such bodies require by virtue of Article 12a of Regulation 136/66, be obtained as part of an application for a specific exemption (‘authorisation’) made to the national competition authorities? |
| --- | --- |

2.

In the event that the company falls within the description of ‘bodies’ capable of carrying out storage activities, can the ‘approval by the Member State’ which such bodies require by virtue of Article 12a of Regulation 136/66, be obtained as part of an application for a specific exemption (‘authorisation’) made to the national competition authorities?

| 3. | Does Article 12a of Regulation 136/66 constitute an absolute requirement that the Commission authorise the private storage of olive oil in each case or, on the contrary, is it compatible with the existence of a mechanism agreed between producers for the privately financed acquisition and storage of such olive oil, which would be activated exclusively on the same terms and conditions which activate Community-financed private storage, with the aim of supplementing and speeding up such Community-financed storage without going beyond it? |
| --- | --- |

3.

Does Article 12a of Regulation 136/66 constitute an absolute requirement that the Commission authorise the private storage of olive oil in each case or, on the contrary, is it compatible with the existence of a mechanism agreed between producers for the privately financed acquisition and storage of such olive oil, which would be activated exclusively on the same terms and conditions which activate Community-financed private storage, with the aim of supplementing and speeding up such Community-financed storage without going beyond it?

| 4. | Can the reasoning given by the Court of Justice in Case C-137/00 Milk Marque [2003] ECR I-7975 relating to the application by domestic authorities of national competition rules to producers' agreements which are capable, in principle, of being covered by Article 2 of Council Regulation No 26 (4) (applying certain rules of competition to production of and trade in agricultural products) be extended to agreements which, by their nature and by nature of the sector in question, could affect the Community market in olive oil as a whole? |
| --- | --- |

4.

Can the reasoning given by the Court of Justice in Case C-137/00 Milk Marque [2003] ECR I-7975 relating to the application by domestic authorities of national competition rules to producers' agreements which are capable, in principle, of being covered by Article 2 of Council Regulation No 26 (4) (applying certain rules of competition to production of and trade in agricultural products) be extended to agreements which, by their nature and by nature of the sector in question, could affect the Community market in olive oil as a whole?

| 5. | In the event that the national competition authorities are competent to apply national laws to the aforementioned agreements which are capable of affecting the common organisation of the market in fats, can those authorities refuse absolutely to allow a company such as the appellant to make use of the storage mechanisms for olive oil even in situations of ‘serious disturbance’ as contemplated by Article 12a of Regulation 136/66? |
| --- | --- |

5.

In the event that the national competition authorities are competent to apply national laws to the aforementioned agreements which are capable of affecting the common organisation of the market in fats, can those authorities refuse absolutely to allow a company such as the appellant to make use of the storage mechanisms for olive oil even in situations of ‘serious disturbance’ as contemplated by Article 12a of Regulation 136/66?

---

(1)  OJ English Special Edition 1965-1966, p. 221.

(2)  Council Regulation (EC) No 1638/98 of 20 July 1998 amending Regulation No 136/66/EEC on the establishment of a common organisation of the markets in oils and fats (OJ 1998 L 210, p. 32).

(3)  Council Regulation (EC) No 952/97 of 20 May 1997 on producer groups and associations thereof (OJ 1997 L 142, p. 30).

(4)  OJ English Special Edition 1959-1962, p. 129.

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Reference for a preliminary ruling from the Audiencia Provincial de la Coruña (Spain) lodged on 20 November 2007 — Lubricantes y Carburantes Galaicos, S.L. (Lubricarga) v Petrogal Española, S.A., now ‘GALP Energía España SAU’)

(Case C-506/07)

(2008/C 37/07)

Language of the case: Spanish

Referring court

Audiencia Provincial de la Coruña

Parties to the main proceedings

Applicant: Lubricantes y Carburantes Galaicos, S.L. (Lubricarga)

Defendant: Petrogal Española, S.A., now ‘GALP Energía España SAU’

Questions referred

| 1. | If the contract concluded between Lubricarga S.L. and Petrogal S.A. is de minimis, is it excluded in all cases from Article [81] of the Treaty or, notwithstanding that classification, will that article apply to the contract in the event that the proprietor of the service station is obliged to observe the final public selling price set by the supplier and/or that exclusive purchasing obligations and prohibitions of competition are imposed on the reseller but are not made subject to the time limitations laid down in Commission Regulation (EEC) No 1984/83 (1) and Commission Regulation (EC) No 2790/1999 (2)? |
| --- | --- |

1.

If the contract concluded between Lubricarga S.L. and Petrogal S.A. is de minimis, is it excluded in all cases from Article [81] of the Treaty or, notwithstanding that classification, will that article apply to the contract in the event that the proprietor of the service station is obliged to observe the final public selling price set by the supplier and/or that exclusive purchasing obligations and prohibitions of competition are imposed on the reseller but are not made subject to the time limitations laid down in Commission Regulation (EEC) No 1984/83 (1) and Commission Regulation (EC) No 2790/1999 (2)?

| 2. | In the event that Regulation No 1984/83 is applicable, where it prohibits exclusive vertical agreements relating to service stations for an indefinite duration or for a period of more than 10 years, subject to the derogation laid down in Article 12(2) which provides that ‘where the agreement relates to a service station which the supplier lets to the reseller, or allows the reseller to occupy on some other basis, in law or in facts, exclusive purchasing obligations or prohibitions of competition indicated in this title may ... be imposed on the reseller for the whole period for which the reseller in fact operates the premises’, does that derogation cover a case such as the one in issue where, pursuant to the private contract of 27 July 1990 and the public deed dated 10 October 1995, Lubricarga, the owner of a plot of land, granted Galp surface rights for a period of 25 years and the latter undertook to build the service station, on the condition that, once the construction had been completed, the facilities would be assigned to Lubricarga which would operate them for the same period of time, subject to the obligation to purchase all motor-vehicle and other fuel exclusively from the oil company? |
| --- | --- |

2.

In the event that Regulation No 1984/83 is applicable, where it prohibits exclusive vertical agreements relating to service stations for an indefinite duration or for a period of more than 10 years, subject to the derogation laid down in Article 12(2) which provides that ‘where the agreement relates to a service station which the supplier lets to the reseller, or allows the reseller to occupy on some other basis, in law or in facts, exclusive purchasing obligations or prohibitions of competition indicated in this title may ... be imposed on the reseller for the whole period for which the reseller in fact operates the premises’, does that derogation cover a case such as the one in issue where, pursuant to the private contract of 27 July 1990 and the public deed dated 10 October 1995, Lubricarga, the owner of a plot of land, granted Galp surface rights for a period of 25 years and the latter undertook to build the service station, on the condition that, once the construction had been completed, the facilities would be assigned to Lubricarga which would operate them for the same period of time, subject to the obligation to purchase all motor-vehicle and other fuel exclusively from the oil company?

| 3. | In the event that Regulation No 2790/1999 is applicable, where it provides in Article 5 that ‘the time limitation of five years shall not apply where the contract goods or services are sold by the buyer from premises and land owned by the supplier or leased by the supplier from third parties not connected with the buyer, provided that the duration of the non-compete clause does not exceed the period of occupancy of the premises and land by the buyer’, does that exemption include a case such as the one in issue where, pursuant to the private contract of 27 July 1990 and the public deed dated 10 October 1995, Lubricarga, the owner of a plot of land, granted Galp surface rights for a period of 25 years and the latter undertook to build the service station, on the condition that, once the construction had been completed, the facilities would be assigned to Lubricarga which would operate them for the same period of time, subject to the obligation to purchase all motor-vehicle and other fuel exclusively from the oil company? |
| --- | --- |

3.

In the event that Regulation No 2790/1999 is applicable, where it provides in Article 5 that ‘the time limitation of five years shall not apply where the contract goods or services are sold by the buyer from premises and land owned by the supplier or leased by the supplier from third parties not connected with the buyer, provided that the duration of the non-compete clause does not exceed the period of occupancy of the premises and land by the buyer’, does that exemption include a case such as the one in issue where, pursuant to the private contract of 27 July 1990 and the public deed dated 10 October 1995, Lubricarga, the owner of a plot of land, granted Galp surface rights for a period of 25 years and the latter undertook to build the service station, on the condition that, once the construction had been completed, the facilities would be assigned to Lubricarga which would operate them for the same period of time, subject to the obligation to purchase all motor-vehicle and other fuel exclusively from the oil company?

| 4. | Having regard to the fact that Article [81](1)(a) of the EEC Treaty refers to the prohibition of the indirect fixing of purchase or selling prices, and recital 8 in the preamble to Regulation No 1984/83 states that ‘further restrictive obligations and in particular those which limit the reseller's choice of customers or his freedom to determine his prices and conditions of sale cannot be exempted under this regulation’, does that prohibition apply to a contract such as the one in issue, clause 10 and annex I of which refer to the obtaining of competitive prices and state that ‘the discounts awarded to the proprietor shall not be lower than the average commissions received by the operators of the three [leading] undertakings (in terms of turnover) operating in the geographical area in which the Service Station is situated’, on the grounds that the contract may restrict, in any event, the right of the purchaser to determine the selling price? |
| --- | --- |

4.

Having regard to the fact that Article [81](1)(a) of the EEC Treaty refers to the prohibition of the indirect fixing of purchase or selling prices, and recital 8 in the preamble to Regulation No 1984/83 states that ‘further restrictive obligations and in particular those which limit the reseller's choice of customers or his freedom to determine his prices and conditions of sale cannot be exempted under this regulation’, does that prohibition apply to a contract such as the one in issue, clause 10 and annex I of which refer to the obtaining of competitive prices and state that ‘the discounts awarded to the proprietor shall not be lower than the average commissions received by the operators of the three [leading] undertakings (in terms of turnover) operating in the geographical area in which the Service Station is situated’, on the grounds that the contract may restrict, in any event, the right of the purchaser to determine the selling price?

| 5. | Having regard to the fact that Article [81](1)(a) of the EEC Treaty refers to the prohibition of the indirect fixing of purchase or selling prices, and Regulation No 2790/99 provides that retention of the resale price is a particularly serious restriction of competition, does that prohibition apply to a contract such as the one in issue, clause 10 and annex I of which refer to the obtaining of competitive prices and state that ‘the discounts awarded to the proprietor shall not be lower than the average commissions received by the operators of the three [leading] undertakings (in terms of turnover) operating in the geographical area in which the Service Station is situated’, on the grounds that the contract may restrict, in any event, the right of the purchaser to determine the selling price? |
| --- | --- |

5.

Having regard to the fact that Article [81](1)(a) of the EEC Treaty refers to the prohibition of the indirect fixing of purchase or selling prices, and Regulation No 2790/99 provides that retention of the resale price is a particularly serious restriction of competition, does that prohibition apply to a contract such as the one in issue, clause 10 and annex I of which refer to the obtaining of competitive prices and state that ‘the discounts awarded to the proprietor shall not be lower than the average commissions received by the operators of the three [leading] undertakings (in terms of turnover) operating in the geographical area in which the Service Station is situated’, on the grounds that the contract may restrict, in any event, the right of the purchaser to determine the selling price?

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(1)  Commission Regulation (EEC) No 1984/83 of 22 June 1983 on the application of Article 85 (3) of the Treaty to categories of exclusive purchasing agreements (OJ 1983 L 173, p. 5).

(2)  Commission Regulation (EC) No 2790/1999 of 22 December 1999 on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices (OJ 1999 L 336, p. 21).

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| 9.2.2008 | EN | Official Journal of the European Union | C 37/7 |
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9.2.2008

EN

Official Journal of the European Union

C 37/7

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Reference for a preliminary ruling from the Tribunale di Bergamo (Italy) lodged on 21 November 2007 — Luigi Scarpelli v NEOS Banca SpA

(Case C-509/07)

(2008/C 37/08)

Language of the case: Italian

Referring court

Tribunale di Bergamo

Parties to the main proceedings

Applicant: Luigi Scarpelli

Defendant: NEOS Banca SpA

Question referred

‘Is Article 11(2) of Council Directive 102/87/EEC (1) to be interpreted as meaning that an agreement between a supplier and a grantor of credit whereunder credit is made available exclusively by that grantor of credit to customers of that supplier is a necessary condition for the consumer's right to pursue remedies against the grantor of credit — where the supplier is in breach of contract — even where that right is (a) only to termination of the credit agreement; or (b) to termination of the agreement and consequently to reimbursement of the sums paid to the grantor of credit?’

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(1)  OJ L 42, p. 48.

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| 9.2.2008 | EN | Official Journal of the European Union | C 37/8 |
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9.2.2008

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Official Journal of the European Union

C 37/8

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Action brought on 22 November 2007 — Commission of the European Communities v Kingdom of Spain

(Case C-516/07)

(2008/C 37/09)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (represented by: S.Pardo Quintillán, Agent)

Defendant: Kingdom of Spain

Form of order sought

| — | declare that, by failing to identify all the competent authorities for the application of the rules of Directive 2000/60/EC (1) of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, the Kingdom of Spain has failed to fulfil its obligations under Article 3(2) and (7) of the directive; and |
| --- | --- |

—

declare that, by failing to identify all the competent authorities for the application of the rules of Directive 2000/60/EC (1) of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, the Kingdom of Spain has failed to fulfil its obligations under Article 3(2) and (7) of the directive; and

| — | by failing to communicate to the Commission the list of all the competent authorities, the Kingdom of Spain has failed to fulfil its obligations under Article 3(8) of Directive 2000/60/EC; |
| --- | --- |

—

by failing to communicate to the Commission the list of all the competent authorities, the Kingdom of Spain has failed to fulfil its obligations under Article 3(8) of Directive 2000/60/EC;

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

—

order Kingdom of Spain to pay the costs.

Pleas in law and main arguments

The Commission's application is based on Article 3 of Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy.

According to Article 3(2) and (7) and (8), the Member States are required to identify the competent authorities for the application of the rules of Directive 2000/60/EC and to communicate the list of competent authorities to the Commission within a prescribed period.

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(1)  OJ 2000 L 327, p. 1.

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| 9.2.2008 | EN | Official Journal of the European Union | C 37/8 |
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9.2.2008

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Official Journal of the European Union

C 37/8

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Action brought on 22 November 2007 — Commission of the European Communities v Federal Republic of Germany

(Case C-518/07)

(2008/C 37/10)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: C. Docksey and C. Ladenburger, acting as Agents)

Defendant: Federal Republic of Germany

Form of order sought

| — | declare that the Federal Republic of Germany has failed to fulfil its obligations under the second sentence of Article 28(1) of Directive 95/46/EC (1), by making the supervisory authorities responsible for the monitoring of data processing within the private sector in the Länder Baden-Württemberg, Bayern, Berlin, Brandenburg, Bremen, Hamburg, Hessen, Mecklenburg-Vorpommern, Niedersachsen, Nordrhein-Westfalen, Rheinland-Pfalz, Saarland, Sachsen, Sachsen-Anhalt, Schleswig-Holstein and Thüringen subject to State supervision and thereby incorrectly transposing the requirement of ‘complete independence’ of the data protection supervisory authorities; |
| --- | --- |

—

declare that the Federal Republic of Germany has failed to fulfil its obligations under the second sentence of Article 28(1) of Directive 95/46/EC (1), by making the supervisory authorities responsible for the monitoring of data processing within the private sector in the Länder Baden-Württemberg, Bayern, Berlin, Brandenburg, Bremen, Hamburg, Hessen, Mecklenburg-Vorpommern, Niedersachsen, Nordrhein-Westfalen, Rheinland-Pfalz, Saarland, Sachsen, Sachsen-Anhalt, Schleswig-Holstein and Thüringen subject to State supervision and thereby incorrectly transposing the requirement of ‘complete independence’ of the data protection supervisory authorities;

| — | order Federal Republic of Germany to pay the costs. |
| --- | --- |

—

order Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

The second sentence of Article 28(1) of Directive 95/46/EC of the European Parliament and of the Council puts Member States under an obligation to make ‘one or more public authorities’ responsible for monitoring ‘the application ... of the provisions adopted by the Member States pursuant to this Directive’, that is to say, of provisions on data protection. The second sentence of Article 28(1) of the directive requires the ‘complete independence’ of the supervisory authorities responsible. By virtue of its wording, the provision provides that the supervisory authorities are not to be subject to influence from other authorities or from outside of the State administration; the rules of the Member States must therefore preclude external influence from being exercised on the decisions of the supervisory authorities and on the implementation thereof. The wording ‘complete’ independence implies not only that there should be no dependence on any party, but also that there should be no dependence in any respect whatsoever.

It is thus incompatible with the second sentence of Article 28(1) of the directive to make the supervisory authorities which are responsible for the monitoring of data processing in the private sector subject to technical, legal or administrative supervision by the State, as has occurred in all 16 Länder of the Federal Republic of Germany. As the legislation of every Land makes the supervisory authority subject to those three types of supervision in varying combinations, the legislation of every Land constitutes a failure by the Federal Republic of Germany to fulfil the obligation in the second sentence of Article 28(1) of the directive to ensure the ‘complete independence’ of the supervisory authorities. Irrespective of the differences between legal, technical and administrative supervision, all these types of supervision constitute an infringement of the independence required by the directive.

From a teleological point of view, the Community legislature regarded complete independence as necessary so that the functions which the supervisory authority was intended to have under Article 28 of the Directive could be carried out effectively. Furthermore, light is also shed on the concept of ‘complete independence’ by the legislative background to the provision. The requirement of ‘complete independence’ of the supervisory authorities of the Member States also fits in systematically with the Community acquis existing in the area of data protection law. In addition, Article 8 of the Charter of Fundamental Rights of the European Union requires that compliance with the rules on the protection of personal data must be ‘subject to control by an independent authority’.

The concept of relative independence advocated by the Federal Republic of Germany, that is to say, the independence of the supervisory authority only from that which is being supervised, cannot in any event be brought into conformity with the unambiguous, comprehensive wording of the directive, which requires ‘complete’ independence. In addition, on that interpretation, the second sentence of Article 28(1) would be completely meaningless. Furthermore, the argument that Article 95 EC, as the relevant legal basis for the directive, and the principles of subsidiarity and proportionality suggest a restrictive interpretation of the requirement of ‘complete independence’ must be rejected. The Court has already held that the directive was adopted in accordance with the areas of competence of the European Parliament and of the Council and that a restrictive interpretation of its provisions in non-economic situations is out of the question. Furthermore, the provision which is at issue does not exceed the limits of that which is necessary to achieve the objectives which the directive, in accordance with Article 95 EC and the principle of subsidiarity, pursues.

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(1)  OJ 1995 L 281, p. 31.

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| 9.2.2008 | EN | Official Journal of the European Union | C 37/9 |
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9.2.2008

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Official Journal of the European Union

C 37/9

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Appeal brought on 22 November 2007 by Commission of the European Communities against the judgment delivered on 12 September 2007 by the Court of First Instance (Second Chamber) in Case T-348/03 Koninklijke Friesland Foods NV (formerly Friesland Coberco Dairy Foods Holding NV) v Commission of the European Communities

(Case C-519/07 P)

(2008/C 37/11)

Language of the case: Dutch

Parties

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

Other party to the proceedings: Koninklijke Friesland Foods NV (formerly Friesland Coberco Dairy Foods Holding NV)

Form of order sought

| — | Set aside the judgment under appeal, dismiss the action for annulment of the decision (1) and order Koninklijke Friesland Foods NV (KFF) to pay the costs of the proceedings before the Court of First Instance and of the present appeal; |
| --- | --- |

—

Set aside the judgment under appeal, dismiss the action for annulment of the decision (1) and order Koninklijke Friesland Foods NV (KFF) to pay the costs of the proceedings before the Court of First Instance and of the present appeal;

| — | in the alternative, set aside the judgment under appeal in so far as it grants rights to operators in the market — other than Koninklijke Friesland Foods NV — who, as at 11 July 2001, had lodged a request with the Netherlands tax authority for application of the aid scheme in question, and dismiss the action for annulment of the decision in so far as it relates to the grant of rights to operators in the market — other than KFF — who, as at 11 July 2001, had lodged a request for application of the aid scheme in question. |
| --- | --- |

—

in the alternative, set aside the judgment under appeal in so far as it grants rights to operators in the market — other than Koninklijke Friesland Foods NV — who, as at 11 July 2001, had lodged a request with the Netherlands tax authority for application of the aid scheme in question, and dismiss the action for annulment of the decision in so far as it relates to the grant of rights to operators in the market — other than KFF — who, as at 11 July 2001, had lodged a request for application of the aid scheme in question.

Pleas in law and main arguments

The Commission takes the view that the Court of First Instance has infringed Community law:

| (i) | by concluding that KFF has a legal interest in bringing proceedings because, if its action were to succeed, it would have certain claims against the Netherlands authorities in respect of the GFA scheme (judgment under appeal, paragraphs 58 to 73); |
| --- | --- |

(i)

by concluding that KFF has a legal interest in bringing proceedings because, if its action were to succeed, it would have certain claims against the Netherlands authorities in respect of the GFA scheme (judgment under appeal, paragraphs 58 to 73);

| (ii) | by concluding that KFF is directly and individually concerned by the decision (judgment under appeal, paragraphs 93 to 101); |
| --- | --- |

(ii)

by concluding that KFF is directly and individually concerned by the decision (judgment under appeal, paragraphs 93 to 101);

| (iii) | by annulling the decision on the basis of facts which were not, and could not have been, known to the Commission when it took its decision, namely KFF's actual circumstances (judgment under appeal, in particular, paragraphs 141 to 143); |
| --- | --- |

(iii)

by annulling the decision on the basis of facts which were not, and could not have been, known to the Commission when it took its decision, namely KFF's actual circumstances (judgment under appeal, in particular, paragraphs 141 to 143);

| (iv) | Part 1: by manifestly incorrectly regarding as undisputed — and thus proven — a matter of crucial importance for the Court's reasoning (erroneously proceeding on the basis that the Commission did not dispute that the applicant had taken accounting measures and financial and economic decisions which could not have been amended within a period of fifteen months) (judgment under appeal, paragraph 137);
  Part 2: by concluding that an undertaking which has merely lodged a request to be able to benefit from the aid scheme can have legitimate expectations (judgment under appeal, in particular, paragraphs 125 to 140); |
| --- | --- |

(iv)

Part 1: by manifestly incorrectly regarding as undisputed — and thus proven — a matter of crucial importance for the Court's reasoning (erroneously proceeding on the basis that the Commission did not dispute that the applicant had taken accounting measures and financial and economic decisions which could not have been amended within a period of fifteen months) (judgment under appeal, paragraph 137);

Part 2: by concluding that an undertaking which has merely lodged a request to be able to benefit from the aid scheme can have legitimate expectations (judgment under appeal, in particular, paragraphs 125 to 140);

| (v) | by concluding that KFF is entitled to rely on the principle of equal treatment (judgment under appeal, paragraphs 149 and 150); |
| --- | --- |

(v)

by concluding that KFF is entitled to rely on the principle of equal treatment (judgment under appeal, paragraphs 149 and 150);

| (vi) | in the alternative: the Court should set aside the judgment under appeal in so far as it grants rights to operators in the market other than KFF (judgment under appeal, operative part, point 1). |
| --- | --- |

(vi)

in the alternative: the Court should set aside the judgment under appeal in so far as it grants rights to operators in the market other than KFF (judgment under appeal, operative part, point 1).

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(1)  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).

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| 9.2.2008 | EN | Official Journal of the European Union | C 37/10 |
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9.2.2008

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Official Journal of the European Union

C 37/10

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Action brought on 23 November 2007 — Commission of the European Communities v Kingdom of the Netherlands

(Case C-521/07)

(2008/C 37/12)

Language of the case: Dutch

Parties

Applicant: Commission of the European Communities (represented by: P. van Nuffel and R. Lyal, Agents)

Defendant: Kingdom of the Netherlands

Form of order sought

| — | Declare that, by not exempting dividends paid to companies established in Norway or Iceland from withholding tax on dividends under the same conditions as dividends paid to Netherlands companies, the Kingdom of the Netherlands has failed to fulfil its obligations under Article 40 of the EEA Agreement. |
| --- | --- |

—

Declare that, by not exempting dividends paid to companies established in Norway or Iceland from withholding tax on dividends under the same conditions as dividends paid to Netherlands companies, the Kingdom of the Netherlands has failed to fulfil its obligations under Article 40 of the EEA Agreement.

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

—

order the Kingdom of the Netherlands to pay the costs.

Pleas in law and main arguments

According to Netherlands tax law, tax on dividends is not withheld when a Netherlands company pays a dividend to another company established in the Netherlands which holds at least 5 % of the shares of the company which pays the dividend; by contrast the tax on dividends is withheld when the company which receives the dividend is established in Norway or Iceland, unless the receiving company owns at least 25 % (Norway) or 10 % (Iceland) of the shares in the Netherlands company which pays the dividend.

The Commission takes the view that Netherlands tax law thus gives rise to discrimination between companies established in Norway or Iceland and those established in the Netherlands. That constitutes a restriction on the free movement of capital between the Netherlands and Norway and Iceland, contrary to Article 40 of the Agreement on the European Economic Area (1) (‘the EEA Agreement’) concerning the free movement of capital, a provision which, in essence, corresponds to Article 56 EC. The situation of Norwegian and Icelandic companies which have stakes in the capital of a Netherlands company is in fact objectively comparable to that of a Netherlands company holding such a stake. The Netherlands rules cannot be justified. Whilst it true that Member States may take measures to prevent abuse, those measures must none the less be proportionate to the objective pursued, which is not the case here.

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(1)  OJ L 1, 3.1.1994.

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| 9.2.2008 | EN | Official Journal of the European Union | C 37/10 |
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9.2.2008

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Official Journal of the European Union

C 37/10

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Reference for a preliminary ruling from the Finanzgericht Düsseldorf (Germany) lodged on 22 November 2007 — Dinter GmbH v Hauptzollamt Düsseldorf

(Case C-522/07)

(2008/C 37/13)

Language of the case: German

Referring court

Finanzgericht Düsseldorf

Parties to the main proceedings

Applicant: Dinter GmbH

Defendant: Hauptzollamt Düsseldorf

Questions referred

| 1. | Is additional note 5(b) to Chapter 20 of the Combined Nomenclature (1) to be interpreted as meaning that the term ‘fruit juices with added sugar’ also refers to fruit juices to which no sugar has actually been added, but whose added sugar content is calculated mathematically in accordance with additional note 5(a) to Chapter 20 of the Combined Nomenclature? |
| --- | --- |

1.

Is additional note 5(b) to Chapter 20 of the Combined Nomenclature (1) to be interpreted as meaning that the term ‘fruit juices with added sugar’ also refers to fruit juices to which no sugar has actually been added, but whose added sugar content is calculated mathematically in accordance with additional note 5(a) to Chapter 20 of the Combined Nomenclature?

| 2. | Is additional note 5(b) to Chapter 20 of the Combined Nomenclature to be interpreted as meaning that the term ‘fruit juices in their natural state’ is merely clarified by the words ‘obtained from fruits or by dilution of concentrated juice’, but in fact applies to all types of fruit juices (not cooked and without added alcohol) in the state in which they are presented? |
| --- | --- |

2.

Is additional note 5(b) to Chapter 20 of the Combined Nomenclature to be interpreted as meaning that the term ‘fruit juices in their natural state’ is merely clarified by the words ‘obtained from fruits or by dilution of concentrated juice’, but in fact applies to all types of fruit juices (not cooked and without added alcohol) in the state in which they are presented?

| 3. | If both the preceding questions are answered in the affirmative, is additional note 5(b) to Chapter 20 of the Combined Nomenclature valid? |
| --- | --- |

3.

If both the preceding questions are answered in the affirmative, is additional note 5(b) to Chapter 20 of the Combined Nomenclature valid?

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(1)  Commission Regulation (EC) No 1810/2004 of 7 September 2004 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 2004 L 327, p. 1).

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| 9.2.2008 | EN | Official Journal of the European Union | C 37/11 |
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C 37/11

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Action brought on 26 November 2007 — Commission of the European Communities v Republic of Austria

(Case C-524/07)

(2008/C 37/14)

Language of the case: German

Parties

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

Defendant: Republic of Austria

Form of order sought

| — | Declare that, by not registering as a matter of principle older imported used vehicles which were registered in another Member State, but do not comply with certain Austrian provisions on exhaust emissions and noise protection, whereas vehicles of the same construction which have already been registered in Austria are exempt from those requirements in cases of re-registration, the Republic of Austria has failed to fulfil its obligations under Articles 28 EC and 30 EC; |
| --- | --- |

—

Declare that, by not registering as a matter of principle older imported used vehicles which were registered in another Member State, but do not comply with certain Austrian provisions on exhaust emissions and noise protection, whereas vehicles of the same construction which have already been registered in Austria are exempt from those requirements in cases of re-registration, the Republic of Austria has failed to fulfil its obligations under Articles 28 EC and 30 EC;

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

—

order the Republic of Austria to pay the costs.

Pleas in law and main arguments

Under Article 28 EC, quantitative restrictions on imports and all measures having equivalent effect are prohibited between Member States. All rules or measures enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an equivalent effect to quantitative restrictions.

Under the provisions of the Austrian Law on Motor Vehicles, older imported used cars which were registered in another Member State, but do not comply with certain Austrian provisions on exhaust emissions and noise protection, are not, as a matter of principle, granted registration in Austria, although vehicles of the same construction which have already been registered in Austria are exempt from those requirements in cases of re-registration. The Republic of Austria has therefore failed to fulfil its obligations under Articles 28 EC and 30 EC.

National rules which make the first registration in that Member State of motor vehicles which have previously been registered in another Member State contingent upon compliance with certain limits in respect of noise and exhaust emissions, which are stricter than the applicable provisions of secondary Community law, are capable of restricting intra-Community trade. In addition, that restriction on trade constitutes discrimination against foreign products as the stricter limits do not have to be complied with by domestic used vehicles, which are re-registered after a change of owner. Furthermore, the Austrian provisions do not make provision for registered vehicles to be taken off the road if they do not comply with the limits in respect of exhaust emissions and noise protection, which are applied in respect of single vehicle approvals of imported vehicles.

The applicability of the Treaty provisions on the free movement of goods is not precluded in the present case by other specific rules. First, the provisions of Directive 93/59/EEC and Directive 92/97/EEC, which establish certain standards for emissions and noise and to which Austrian law refers with regard to the limits to be complied with, do not apply to vehicles which were brought into circulation in a Member State before the respective dates specified in those directives. Secondly, point 1 of Annex II to the EEA Agreement cannot be used to assess situations which, like the import of a motor vehicle from another Member State into Austria at a time when both Austria and the other Member State belonged to the Community, are covered exclusively by Community law.

Restrictions on intra-Community trade may be justified on the grounds specifically mentioned in Article 30 EC or on other overriding grounds of public interest. The rules in question must be suitable, necessary and proportionate and the restrictions must not constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.

There is, however, no such justification for the restriction on trade in the present case. It is not possible to rely on grounds of health or environmental protection in order to refuse to register imported vehicles if the re-registration of used vehicles of the same construction which have already been registered in Austria is not refused on those grounds. In addition, according to the Commission, there are less restrictive measures which may be used to ensure the transition to vehicles which are more favourable in terms of emission and noise. The achievement of health and environmental protection objectives exclusively to the detriment of imported vehicles is not, however, compatible with the principles of the free movement of goods.

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| 9.2.2008 | EN | Official Journal of the European Union | C 37/12 |
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9.2.2008

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C 37/12

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Appeal brought on 27 November 2007 by Philippe Combescot against the judgment delivered by the Court of First Instance (Second Chamber) in Case T-249/04 Philippe Combescot v Commission

(Case C-525/07 P)

(2008/C 37/15)

Language of the case: Italian

Parties

Appellant: Philippe Combescot (represented by: A. Maritati and V. Messa, avvocati)

Other party to the proceedings: Commission of the European Communities

Form of order sought

| — | declare, by varying the decision of the Court of First Instance delivered on 12 September 2007 in Case T-249/04, that the career development report (‘the CDR’) drawn up by Mr M, despite his being completely unsuitable to perform, as in fact he did, the role of hierarchical superior responsible for appraising Mr Combescot's professionalism, is unlawful; recognise that unsuitability arising from the serious and irremediable enmity between the applicant and his hierarchical superior, latterly implicitly recognised by Mr M himself; accordingly, recognise Mr Combescot's entitlement to compensation in respect of non-material damage, damage to physical and mental health and damage to his professional life and career, to be assessed in a sum not less than EUR 100 000; |
| --- | --- |

—

declare, by varying the decision of the Court of First Instance delivered on 12 September 2007 in Case T-249/04, that the career development report (‘the CDR’) drawn up by Mr M, despite his being completely unsuitable to perform, as in fact he did, the role of hierarchical superior responsible for appraising Mr Combescot's professionalism, is unlawful; recognise that unsuitability arising from the serious and irremediable enmity between the applicant and his hierarchical superior, latterly implicitly recognised by Mr M himself; accordingly, recognise Mr Combescot's entitlement to compensation in respect of non-material damage, damage to physical and mental health and damage to his professional life and career, to be assessed in a sum not less than EUR 100 000;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

The dispute relates to the preparation of the CDR for the period from 1 July 2001 to 31 December 2002, which was held to be lawful. The applicant challenges the conclusions reached by the Court of First Instance inasmuch as it regards the CDR as unlawful because it was prepared by an individual, Mr M, who was moved by a deep loathing of Mr Combescot, since the latter had reported very serious management irregularities committed at the Delegation in Guatemala by the same Mr M. Following those complaints, the institution sent an inspection to Guatemala and, subsequently, as a result of the complaint brought by Mr Combescot, OLAF decided on 20 September 2004 to open an enquiry, concluded by the final report of 30 May 2006 (‘the OLAF Report’), admitted as evidence in the present proceedings, together with the report drawn up by the inspection committee sent out in 2002. By the present appeal, counsel for Mr Combescot ask the Court to vary the decision of the Court of First Instance of the European Communities in so far as it excludes the unlawfulness of the CDR and, accordingly, rules out the applicant's entitlement to compensation in damages. By that appeal the applicant asks the Court, therefore, to find and declare that, as a result of the incomplete and thus erroneous and in any event unlawful preparation of the CDR for 2001-2002, Philippe Combescot has suffered very serious harm to his career and to his professional image and that, in any event, the assessment in the CDR, placed in a broader context of abuses of power and disparaging conduct of hierarchical superiors, has caused suffering and mental anguish which has in turn caused a severe state of depression, as substantiated in the case-file and, above all, verified by the institution's own experts. The applicant therefore asks the Court to make an overall assessment of the factual circumstances surrounding the matter, considering them all to be relevant in order to declare the unlawfulness of the CDR and therefore, declare that the applicant is entitled to compensation in damages for the harm suffered.

The applicant complains that the decision of the Court is contradictory, in that it states how the objectives of independence and integrity are to be regarded as binding in all situations in which an employee must express an opinion on a given matter and such an employee should not therefore find himself in a situation which, irrespective of the objectivity and fairness of the opinion, may appear to lack independence and objectivity in the eyes of third parties, yet none the less reaches conclusions, in the case of M, which are completely incomprehensible. The applicant also complains that the decision is contradictory, in so far as it recognises that the initiatives taken by Mr Combescot, once he had taken office as Advisor resident in Guatemala, had caused at the very least an unpleasant situation for Mr M, but that notwithstanding, takes the view that that situation was not such as to place Mr M in a situation in which it was completely incompatible for him to perform the task of assessor in accordance with the principles of impartiality and neutrality. It points out that the preparation of the CDR involves the making of a discretionary evaluation, so that any consideration as to the substance of the evaluation itself is of no conclusive value and is not suitable for confirming and/or disproving the basic fact which is that Mr M made the assessment in the CDR despite the obvious and serious enmity in his relationship with Mr Combescot. In that regard, it points out that the presence of a person as a co-appraisor who is completely unconnected with the relationship between Mr Combescot cannot be advanced as a solution. Accordingly, it criticises the content of the CDR point by point. Finally, the applicant applies for measures of enquiry.

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| 9.2.2008 | EN | Official Journal of the European Union | C 37/12 |
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C 37/12

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Appeal brought on 27 November 2007 by Philippe Combescot against the judgment of the Court of First Instance (Second Chamber) delivered on 12 September 2007 in Case T-250/04 Combescot v Commission

(Case C-526/07 P)

(2008/C 37/16)

Language of the case: Italian

Parties

Appellant: Philippe Combescot (represented by: A. Maritati and V. Messa, avvocati)

Other party to the proceedings: Commission of the European Communities

Form of order sought

| — | declare, by varying the decision of the Court of First Instance delivered on 12 September 2007 in Case T-250/04, that there is damage to the profession and health of the applicant as a result of the unlawful rejection of his application to take part in the competition for appointment to the post of Head of Delegation in Colombia; determine the non-material damage in a different manner, and consequently assess the compensation payable in accordance therewith; accordingly, uphold the form of order already sought in the proceedings at first instance, which read: ‘recognise that Mr Combescot has suffered damage to his image and professional reputation, and that the illegal decision excluding him from the competition has had serious adverse effects on the balance of his mind; and award him the sum of EUR 100 000,00 as compensation for damage’; |
| --- | --- |

—

declare, by varying the decision of the Court of First Instance delivered on 12 September 2007 in Case T-250/04, that there is damage to the profession and health of the applicant as a result of the unlawful rejection of his application to take part in the competition for appointment to the post of Head of Delegation in Colombia; determine the non-material damage in a different manner, and consequently assess the compensation payable in accordance therewith; accordingly, uphold the form of order already sought in the proceedings at first instance, which read: ‘recognise that Mr Combescot has suffered damage to his image and professional reputation, and that the illegal decision excluding him from the competition has had serious adverse effects on the balance of his mind; and award him the sum of EUR 100 000,00 as compensation for damage’;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

Philippe Combescot, an official, has brought an appeal against the decision of the Court of First Instance of the European Communities (Second Chamber) delivered on 12 January 2007 in Case T-250/04, the other party to the proceedings being the Commission of the European Communities.

The appeal concerns the exclusion of Philippe Combescot, then the Advisor resident in Guatemala, from competition COM/091/03 for appointment to the post of Head of Delegation in Colombia (‘the exclusion decision’).

The Court held that that decision was unlawful and, therefore, that the application for damages brought by the applicant was justified, but it excluded the heads of damage relating to professional life and health, and merely recognised unspecified non-material damage in respect of which the sum of EUR 3 000 000 was paid to the applicant.

By the present appeal, counsel for the applicant ask the Court to reverse the decision of the Court of First Instance of the European Communities in so far as it excludes damage to professional life and health and therefore quantifies damages on the basis only of the non-material damage complained of; accordingly, it asks the Court to state that the official, following his unlawful exclusion from the competition, has suffered obvious damage to his career as well as his professional image, that, however, the exclusion decision has caused suffering and mental anguish which in turn has caused a severe state of depression, as substantiated in the case-file and, above all, verified by the institution's own experts. The applicant therefore asks the Court to make an overall assessment of the factual circumstances surrounding the matter, considering them all to be relevant for the purposes of appraising, even only on the grounds of fairness, the non-material damage in a much higher sum, directly proportional also to the career prospects lost by the official as a result of the exclusion decision and the foreseeable serious consequences caused by the same.

The applicant therefore maintains the application for damages as specified in the form of order sought in the application in the present proceedings.

It contests the conclusions reached by the Court in relation to the absence of actual damage to professional life, pointing out, moreover, that information relating to the selection criteria applied by the Commission to appoint the Head of Delegation in Colombia was never communicated to the applicant, despite his having requested it.

As regards compensation for physical damage, the evidence of the effect of the unlawful conduct on the state of Mr Combescot's health derives from the temporal link between the same. The exclusion from the competition is, furthermore, the most recent in a series of harassment on the part of the Commission towards the official. Finally, in determining the non-material damage, the applicant requests a proportionate assessment of the same on the basis of the principles of fairness in the determination of damage, which takes account of the harmful consequences in terms not only of anxiety and stress, but also of hardship suffered by the official following his exclusion from the competition.

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| 9.2.2008 | EN | Official Journal of the European Union | C 37/13 |
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Reference for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 28 November 2007 — Chocoladefabriken Lindt & Sprüngli AG v Franz Hauswirth GmbH

(Case C-529/07)

(2008/C 37/17)

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Applicant: Chocoladefabriken Lindt & Sprüngli AG

Defendant: Franz Hauswirth GmbH

Questions referred

| 1. | Is Article 51(1)(b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (1) to be interpreted as meaning that an applicant for a Community trade mark is to be regarded as acting in bad faith where he knows, at the time of his application, that a competitor in (at least) one Member State is using the same sign, or one so similar as to be capable of being confused with it, for the same or similar goods or services, and he applies for the trade mark in order to be able to prevent that competitor from continuing to use the sign? |
| --- | --- |

1.

Is Article 51(1)(b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (1) to be interpreted as meaning that an applicant for a Community trade mark is to be regarded as acting in bad faith where he knows, at the time of his application, that a competitor in (at least) one Member State is using the same sign, or one so similar as to be capable of being confused with it, for the same or similar goods or services, and he applies for the trade mark in order to be able to prevent that competitor from continuing to use the sign?

| 2. | If the first question is answered in the negative:
  Is the applicant to be regarded as acting in bad faith if he applies for the trade mark in order to be able to prevent a competitor from continuing to use the sign, where, at the time he files his application, he knows or ought to know that by using an identical or similar sign for the same goods or services, or goods or services which are so similar as to be capable of being confused, the competitor has already acquired ‘valuable property rights’? |
| --- | --- |

2.

If the first question is answered in the negative:

Is the applicant to be regarded as acting in bad faith if he applies for the trade mark in order to be able to prevent a competitor from continuing to use the sign, where, at the time he files his application, he knows or ought to know that by using an identical or similar sign for the same goods or services, or goods or services which are so similar as to be capable of being confused, the competitor has already acquired ‘valuable property rights’?

| 3. | If either the first or the second question is answered in the affirmative:
  Is bad faith excluded if the applicant's sign has already obtained a reputation with the public and is therefore protected under competition law? |
| --- | --- |

3.

If either the first or the second question is answered in the affirmative:

Is bad faith excluded if the applicant's sign has already obtained a reputation with the public and is therefore protected under competition law?

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

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| 9.2.2008 | EN | Official Journal of the European Union | C 37/14 |
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Action brought on 29 November 2007 — Commission of the European Communities v Portuguese Republic

(Case C-530/07)

(2008/C 37/18)

Language of the case: Portuguese

Parties

Applicant: Commission of the European Communities (represented by S. Pardo Quintillán and G. Braga da Cruz, acting as Agents)

Defendant: Portuguese Republic

Form of order sought

| — | Declare that, by failing






  (a) | to provide the agglomerations of Angra do Heroismo, Bacia do Rio Uima (Fiães de S. Jorge), Costa de Aveiro, Covilhã, Espinho/Feira, Fátima, Ponta delgada, Ponte de Lima, Póvoa de Varzim/Vila do Conde, Santa Cita, Vila Real de Santo António, Viana do Castelo-Cidade and Vila Real with collecting systems, as provided for by Article 3 of Council Directive 91/271/EEC (1) of 21 May 1991 concerning urban waste-water treatment, and |
| --- | --- | --- |

—

Declare that, by failing

(a)

to provide the agglomerations of Angra do Heroismo, Bacia do Rio Uima (Fiães de S. Jorge), Costa de Aveiro, Covilhã, Espinho/Feira, Fátima, Ponta delgada, Ponte de Lima, Póvoa de Varzim/Vila do Conde, Santa Cita, Vila Real de Santo António, Viana do Castelo-Cidade and Vila Real with collecting systems, as provided for by Article 3 of Council Directive 91/271/EEC (1) of 21 May 1991 concerning urban waste-water treatment, and

| (b) | to subject to secondary treatment or an equivalent treatment urban waste water from the agglomerations of Alta Nabão, Alverca, Bacia do Rio Uima (Fiães de S. Jorge), Carvoeiro, Costa da Caparica/Trafaria, Costa de Aveiro, Costa Oeste, Covilhã, Espinho/Feira, Fátima, Fundão/Alçaria, Lisbon, Matosinhos, Milfontes, Moledo/Âncora/Afife, Nazaré/Famalicâo, Pedrógão Grande, Ponta delgada, Ponte de Lima, Póvoa de Varzim/Vila do Conde, Santa Cita, Vila Nova de Gaia/Douro Nordeste, Vila Real de Santo António, Viana do Castelo-Cidade, Vila Franca de Xira and Vila Real, as provided for by Article 4 of that directive, |
| --- | --- |

(b)

to subject to secondary treatment or an equivalent treatment urban waste water from the agglomerations of Alta Nabão, Alverca, Bacia do Rio Uima (Fiães de S. Jorge), Carvoeiro, Costa da Caparica/Trafaria, Costa de Aveiro, Costa Oeste, Covilhã, Espinho/Feira, Fátima, Fundão/Alçaria, Lisbon, Matosinhos, Milfontes, Moledo/Âncora/Afife, Nazaré/Famalicâo, Pedrógão Grande, Ponta delgada, Ponte de Lima, Póvoa de Varzim/Vila do Conde, Santa Cita, Vila Nova de Gaia/Douro Nordeste, Vila Real de Santo António, Viana do Castelo-Cidade, Vila Franca de Xira and Vila Real, as provided for by Article 4 of that directive,

the Portuguese Republic has failed to fulfil its obligations under Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment;

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

—

order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

The Member States were to ensure, at the latest by 31 December 2000, that all agglomerations with a population equivalent (p.e.) of more than 15 000 and, at the latest by 31 December 2005, that all agglomerations with a p.e. of between 2 000 and 15 000 were provided with collecting systems for urban waste water.

Article 4 of the Directive provides as follows:

‘1.   Member States shall ensure that urban waste water entering collecting systems shall before discharge be subject to secondary treatment or an equivalent treatment as follows:

| — | at the latest by 31 December 2000 for all discharges from agglomerations of more than 15 000 p.e., |
| --- | --- |

—

at the latest by 31 December 2000 for all discharges from agglomerations of more than 15 000 p.e.,

| — | at the latest by 31 December 2005 for all discharges from agglomerations of between 10 000 and 15 000 p.e., |
| --- | --- |

—

at the latest by 31 December 2005 for all discharges from agglomerations of between 10 000 and 15 000 p.e.,

| — | at the latest by 31 December 2005 for discharges to fresh water and estuaries from agglomerations of between 2 000 and 10 000 p.e. |
| --- | --- |

—

at the latest by 31 December 2005 for discharges to fresh water and estuaries from agglomerations of between 2 000 and 10 000 p.e.

...’

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(1)  OJ L 135, p. 40.

1

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| 9.2.2008 | EN | Official Journal of the European Union | C 37/14 |
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Reference for a preliminary ruling from the Obersten Gerichtshof (Austria) lodged on 29 November 2007 — Fachverband der Buch- und Medienwirtschaft v LIBRO Handelsgesellschaft mbH

(Case C-531/07)

(2008/C 37/19)

Language of the case: German

Referring court

Obersten Gerichtshof

Parties to the main proceedings

Applicant: Fachverband der Buch- und Medienwirtschaft

Defendant: LIBRO Handelsgesellschaft mbH

Questions referred

| 1. | Is Article 28 EC to be interpreted as meaning that it precludes the application per se of national provisions which oblige only importers of German language books to fix and to publish a retail price for books imported into Austria which is binding on the retailer, where the importer cannot fix a retail price which is lower than the retail price fixed or recommended by the publisher for the State in which the book is published, or lower than the retail price recommended for his national territory by a publisher whose seat is not in the territory of a Contracting Party to the Agreement on the European Economic Area (EEA), less any value added tax such price includes, but, by way of exception, permit an importer who purchases in the territory of a Contracting Party to the EEA at a price lower than the usual purchase prices to sell at less than the price fixed or recommended by the publisher for the State of publication — or in the case of re-imports the price fixed by the Austrian publisher — by an amount proportionate to the commercial advantage he has obtained? |
| --- | --- |

1.

Is Article 28 EC to be interpreted as meaning that it precludes the application per se of national provisions which oblige only importers of German language books to fix and to publish a retail price for books imported into Austria which is binding on the retailer, where the importer cannot fix a retail price which is lower than the retail price fixed or recommended by the publisher for the State in which the book is published, or lower than the retail price recommended for his national territory by a publisher whose seat is not in the territory of a Contracting Party to the Agreement on the European Economic Area (EEA), less any value added tax such price includes, but, by way of exception, permit an importer who purchases in the territory of a Contracting Party to the EEA at a price lower than the usual purchase prices to sell at less than the price fixed or recommended by the publisher for the State of publication — or in the case of re-imports the price fixed by the Austrian publisher — by an amount proportionate to the commercial advantage he has obtained?

| 2. | If the first question is answered in the affirmative:
  Is the national statutory obligation to sell books at the fixed price which, according to the first question, is per se incompatible with Article 28 EC — in any event on the basis that it constitutes selling arrangements which infringe free movement of goods — justified by reference to Article 30 or Article 151 EC, on the basis that its purpose is, very generally, described as the need to have regard to ‘the status of books as cultural assets, consumers' interest in reasonable prices for books, and the commercial characteristics of the book trade’, for example having regard to a general interest in encouraging the production of books, a diversity of titles at regulated prices, and a diversity of bookshops, notwithstanding the lack of empirical data which could prove that a statutory obligation to sell books at the fixed price is a suitable means for achieving the intended purposes? |
| --- | --- |

2.

If the first question is answered in the affirmative:

Is the national statutory obligation to sell books at the fixed price which, according to the first question, is per se incompatible with Article 28 EC — in any event on the basis that it constitutes selling arrangements which infringe free movement of goods — justified by reference to Article 30 or Article 151 EC, on the basis that its purpose is, very generally, described as the need to have regard to ‘the status of books as cultural assets, consumers' interest in reasonable prices for books, and the commercial characteristics of the book trade’, for example having regard to a general interest in encouraging the production of books, a diversity of titles at regulated prices, and a diversity of bookshops, notwithstanding the lack of empirical data which could prove that a statutory obligation to sell books at the fixed price is a suitable means for achieving the intended purposes?

| 3. | If the first question is answered in the negative:
  Is the national statutory obligation to sell books at the fixed price, as described in the first question, compatible with Articles 3(1)(g) EC, 10 EC and 81 EC, notwithstanding that in terms of time and substance there was a seamless transition from them to the previous contractual obligation on booksellers to sell at prices fixed by publishers for published works (the 1993 reverse collection scheme), and they replaced this contractual scheme? |
| --- | --- |

3.

If the first question is answered in the negative:

Is the national statutory obligation to sell books at the fixed price, as described in the first question, compatible with Articles 3(1)(g) EC, 10 EC and 81 EC, notwithstanding that in terms of time and substance there was a seamless transition from them to the previous contractual obligation on booksellers to sell at prices fixed by publishers for published works (the 1993 reverse collection scheme), and they replaced this contractual scheme?

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| 9.2.2008 | EN | Official Journal of the European Union | C 37/15 |
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Reference for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 29 November 2007 — Falco Privatstiftung and Thomas Rabitsch v Gisela Weller-Lindhorst

(Case C-533/07)

(2008/C 37/20)

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Applicant: Falco Privatstiftung, Thomas Rabitsch

Defendant: Gisela Weller-Lindhorst

Questions referred

| 1. | Is a contract under which the owner of an incorporeal right grants the other contracting party the right to use that right (a licence agreement) a contract regarding ‘the provision of services’ within the meaning of Article 5(1)(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 (the Brussels I Regulation) (1)? |
| --- | --- |

1.

Is a contract under which the owner of an incorporeal right grants the other contracting party the right to use that right (a licence agreement) a contract regarding ‘the provision of services’ within the meaning of Article 5(1)(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 (the Brussels I Regulation) (1)?

| 2. | If Question 1 is answered in the affirmative:






  2.1. | Is the service provided at each place in a Member State where use of the right is allowed under the contract and also actually occurs? |
| --- | --- | --- |

2.

If Question 1 is answered in the affirmative:

2.1.

Is the service provided at each place in a Member State where use of the right is allowed under the contract and also actually occurs?

| 2.2. | Or is the service provided where the licensor is domiciled or, as the case may be, at the place of the licensor's central administration? |
| --- | --- |

2.2.

Or is the service provided where the licensor is domiciled or, as the case may be, at the place of the licensor's central administration?

| 2.3. | If Question 2.1 or Question 2.2 is answered in the affirmative, does the court which thereby has jurisdiction also have the power to rule on royalties which result from use of the right in another Member State or in a third country? |
| --- | --- |

2.3.

If Question 2.1 or Question 2.2 is answered in the affirmative, does the court which thereby has jurisdiction also have the power to rule on royalties which result from use of the right in another Member State or in a third country?

| 3. | If Question 1 or Questions 2.1 and 2.2 are answered in the negative: Is jurisdiction as regards payment of royalties under Article 5(1)(a) and (c) of the Brussels I Regulation still to be determined in accordance with the principles which result from the case-law of the Court of Justice on Article 5(1) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (the Brussels Convention)? |
| --- | --- |

3.

If Question 1 or Questions 2.1 and 2.2 are answered in the negative: Is jurisdiction as regards payment of royalties under Article 5(1)(a) and (c) of the Brussels I Regulation still to be determined in accordance with the principles which result from the case-law of the Court of Justice on Article 5(1) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (the Brussels Convention)?

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(1)  OJ 2001 L 12, p. 1.

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| 9.2.2008 | EN | Official Journal of the European Union | C 37/16 |
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Appeal brought on 30 November 2007 by William Prym GmbH & Co. KG and Prym Consumer GmbH against the judgment of the Court of First Instance (Second Chamber) delivered on 12 September 2007 in Case T-30/05 William Prym GmbH & Co. KG and Prym Consumer GmbH & Co. KG v Commission of the European Communities

(Case C-534/07 P)

(2008/C 37/21)

Language of the case: German

Parties

Appellants: William Prym GmbH & Co. KG and Prym Consumer GmbH (represented by: H.-J. Niemeyer and Ch. Hermann, lawyers)

Other party to the proceedings: Commission of the European Communities

Form of order sought

| 1. | To set aside the judgement of the Court of First Instance of the European Communities of 12 September 2007 in Case T-30/05, in so far as it affects the appellants, |
| --- | --- |

1.

To set aside the judgement of the Court of First Instance of the European Communities of 12 September 2007 in Case T-30/05, in so far as it affects the appellants,

| 2. | To annul Commission Decision C(2004) 4221 final of 26 October 2004 (Case COMP/F-1/38.338 — PO/Needles), in so far as it affects the appellants,
  In the alternative, to annul or reduce the fine imposed on the appellants by Article 2 of that decision, |
| --- | --- |

2.

To annul Commission Decision C(2004) 4221 final of 26 October 2004 (Case COMP/F-1/38.338 — PO/Needles), in so far as it affects the appellants,

In the alternative, to annul or reduce the fine imposed on the appellants by Article 2 of that decision,

| 3. | In the alternative to the second form of order sought, to refer the case back to the Court of First Instance for judgment, |
| --- | --- |

3.

In the alternative to the second form of order sought, to refer the case back to the Court of First Instance for judgment,

| 4. | To order the respondents in the appeal proceedings to pay the costs of the whole proceedings. |
| --- | --- |

4.

To order the respondents in the appeal proceedings to pay the costs of the whole proceedings.

Pleas in law and main arguments

| — | The Court of First Instance was wrong to conclude that the separation of the originally unified ‘hard haberdashery’ procedure into the ‘hard haberdashery: needles’ and ‘hard haberdashery: fasteners’ procedures without providing reasons for that separation did not infringe the appellants' rights of defence, in particular their right to a fair hearing. |
| --- | --- |

—

The Court of First Instance was wrong to conclude that the separation of the originally unified ‘hard haberdashery’ procedure into the ‘hard haberdashery: needles’ and ‘hard haberdashery: fasteners’ procedures without providing reasons for that separation did not infringe the appellants' rights of defence, in particular their right to a fair hearing.

| — | In refusing to determine whether the separation of the ‘haberdashery’ procedure was unlawful because the infringement at issue was a single and continuing one, the Court of First Instance contravened the principle that access to justice must not be denied and the fundamental right to judicial protection. |
| --- | --- |

—

In refusing to determine whether the separation of the ‘haberdashery’ procedure was unlawful because the infringement at issue was a single and continuing one, the Court of First Instance contravened the principle that access to justice must not be denied and the fundamental right to judicial protection.

| — | The Court of First Instance was wrong to hold that there was no infringement of the duty to state reasons under Article 253 EC. It wrongly considered the inadequate analysis by the Commission of the size of the markets considered to be relevant in the case and in relation to the concrete effects of the infringement on the market to be of no legal significance. |
| --- | --- |

—

The Court of First Instance was wrong to hold that there was no infringement of the duty to state reasons under Article 253 EC. It wrongly considered the inadequate analysis by the Commission of the size of the markets considered to be relevant in the case and in relation to the concrete effects of the infringement on the market to be of no legal significance.

| — | The Court of First Instance infringed the Guidelines on the Method of Setting Fines. It determined the gravity of the infringement by reference merely to the abstract form of the infringement and treated the lowest amount of an aggravating category as representing a minimum amount which could not be reduced. It also refused to treat the voluntary termination of the infringement as an attenuating circumstance, and in so doing infringed the principles of the rule of law and equal treatment. |
| --- | --- |

—

The Court of First Instance infringed the Guidelines on the Method of Setting Fines. It determined the gravity of the infringement by reference merely to the abstract form of the infringement and treated the lowest amount of an aggravating category as representing a minimum amount which could not be reduced. It also refused to treat the voluntary termination of the infringement as an attenuating circumstance, and in so doing infringed the principles of the rule of law and equal treatment.

| — | Lastly, the Court of First Instance infringed the principle of proportionality. It applied the Guidelines on the Method of Setting Fines in determining the gravity of the infringement in a manner that was equally as formalistic and one-sided to the detriment of the appellants as the respondents in these proceedings had done. In addition, it failed to undertake the simultaneous weighting of all the relevant circumstances of the case that the principle of proportionality requires, and instead merely examined the proportionality of the fine in relation to discrete criteria that were considered on their own in every case. |
| --- | --- |

—

Lastly, the Court of First Instance infringed the principle of proportionality. It applied the Guidelines on the Method of Setting Fines in determining the gravity of the infringement in a manner that was equally as formalistic and one-sided to the detriment of the appellants as the respondents in these proceedings had done. In addition, it failed to undertake the simultaneous weighting of all the relevant circumstances of the case that the principle of proportionality requires, and instead merely examined the proportionality of the fine in relation to discrete criteria that were considered on their own in every case.

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| 9.2.2008 | EN | Official Journal of the European Union | C 37/16 |
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Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia (Italy) lodged on 3 December 2007 — Assitur Srl v Camera di Commercio, Industria, Artigianato e Agricoltura di Milano

(Case C-538/07)

(2008/C 37/22)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per la Lombardia

Parties to the main proceedings

Applicant: Assitur Srl

Defendant: Camera di Commercio, Industria, Artigianato e Agricoltura di Milano

Question referred

Does Article 29 of Directive 92/50/EEC (1), in laying down seven grounds for exclusion from participation in service contracts, give an exhaustive list of cases of exclusion and therefore preclude Article 10(1 bis) of Law No 109/94 (now replaced by Article 34, last paragraph, of Legislative Decree No 136/86) from imposing a prohibition on simultaneous participation in a tendering procedure of undertakings which are linked by a relationship of control?

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(1)  OJ L 1992 209, p. 1.

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| 9.2.2008 | EN | Official Journal of the European Union | C 37/17 |
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Action brought on 30 November 2007 — Commission of the European Communities v Italian Republic

(Case C-539/07)

(2008/C 37/23)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: E. Montaguti and A. Nijenhuis, acting as Agents)

Defendant: Italian Republic

Form of order sought

The applicant claims that the Court should:

| — | declare that, by failing, for all calls to the single European emergency call number ‘112’, to make call-tracing information available, within the limits of technical feasibility, to the authorities called upon to act in cases of emergency, the Italian Republic has failed to fulfil its obligations under Article 26(3) of Directive 2002/22/EC (1); |
| --- | --- |

—

declare that, by failing, for all calls to the single European emergency call number ‘112’, to make call-tracing information available, within the limits of technical feasibility, to the authorities called upon to act in cases of emergency, the Italian Republic has failed to fulfil its obligations under Article 26(3) of Directive 2002/22/EC (1);

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

—

order the Italian Republic to pay the costs.

Pleas in law and main arguments

The period for transposing Directive 2002/22/EC expired on 24 July 2003.

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(1)  Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services (Universal Service Directive) (OJ 2002 L 108, p. 51).

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| 9.2.2008 | EN | Official Journal of the European Union | C 37/17 |
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Action brought on 30 November 2007 — Commission of the European Communities v Italian Republic

(Case C-540/07)

(2008/C 37/24)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: R. Lyal and A. Aresu, acting as Agents)

Defendant: Italian Republic

Form of order sought

The applicant claims that the Court should:

| — | declare that, by keeping in force a tax system which is more onerous for dividends distributed to companies established in the other Member States and in the States Party to the Agreement on the European Economic Area compared to that applied to domestic dividends, the Italian Republic has failed to fulfil its obligations under Articles 56 EC and 40 of the Agreement on the European Economic Area concerning the free movement of capital between the Member States and that between the States Party to the agreement in question, as well as its obligations under Article 33 of that agreement in relation to the freedom of establishment between the States Party to that agreement; |
| --- | --- |

—

declare that, by keeping in force a tax system which is more onerous for dividends distributed to companies established in the other Member States and in the States Party to the Agreement on the European Economic Area compared to that applied to domestic dividends, the Italian Republic has failed to fulfil its obligations under Articles 56 EC and 40 of the Agreement on the European Economic Area concerning the free movement of capital between the Member States and that between the States Party to the agreement in question, as well as its obligations under Article 33 of that agreement in relation to the freedom of establishment between the States Party to that agreement;

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

—

order the Italian Republic to pay the costs.

Pleas in law and main arguments

The European Commission refers to the Italian legislation in force in the matter, also that under the Treaty, which subjects the distribution of dividends to non-Italian companies (outgoing dividends) to tax treatment which is significantly less favourable than that applied to the distribution of dividends to Italian companies (domestic dividends).

The European Commission submits that such legislation, which, however, the Italian Government is about to amend, is contrary to the principle of the free movement of capital, since it has a negative effect on the profits and investment decisions of non-resident shareholders in Italian companies, making it, at the same time, more difficult for the same Italian companies to raise capital abroad. It should therefore be declared to be a clear infringement of Article 56 EC, which prohibits any restriction on the free movement of capital between the Member States, and of Article 40 of the Agreement on the European Economic Area (EEA Agreement), which governs in a similar manner the same free movement between the States Party to that agreement.

Moreover, in the European Commission's submission, such legislation may also conflict with the right of establishment as laid down by Article 31 of the EEA Agreement, since it is applicable also to controlling shareholdings in Italian companies owned by companies established in the States Party to that agreement, shareholdings for which their tax system harmonised to Community Directive 90/435/EEC (1) does not apply.

In the course of the procedure for infringement, the European Commission has had the opportunity of examining the Italian Republic's arguments in defence justifying the legislation in question, but considers that they do not do so. Recently however the Italian Government announced its own intention to amend the said legislation by making it compliant with the Community directive. This action may accelerate such process of reform.

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(1)  OJ 1990 L 225, p. 6.

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| 9.2.2008 | EN | Official Journal of the European Union | C 37/18 |
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C 37/18

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Appeal brought on 30 November 2007 by Imagination Technologies Ltd against the judgment of the Court of First Instance (Third Chamber) delivered on 20 September 2007 in Case T-461/04: Imagination Technologies Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case C-542/07 P)

(2008/C 37/25)

Language of the case: English

Parties

Appellant: Imagination Technologies Ltd (represented by: M. Edenborough, Barrister)

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

Form of order sought

The appellant claims that the Court should:

| — | set aside the judgment of the Court of First Instance. |
| --- | --- |

—

set aside the judgment of the Court of First Instance.

| — | make an order for costs of and associated with this appeal before the Court of Justice and its appeal before the Court of First Instance. |
| --- | --- |

—

make an order for costs of and associated with this appeal before the Court of Justice and its appeal before the Court of First Instance.

Pleas in law and main arguments

The Appellant submits that the Community trade mark application No 2396075 for the word mark PURE DIGITAL (the ‘Application’) does not offend against either Article 7(1)(b) or 7(1)(c) of Council Regulation No 40/94 as it has acquired a distinctive character since the Application was filed. It is submitted that the Court of First Instance erred in its analysis of the relevant law; in particular, it erred when it failed to hold that use after the filing date was relevant when considering the issue of acquired distinctiveness.

Accordingly, the Court of First Instance was wrong to dismiss the appeal before it. Hence, it is submitted that this appeal against the judgment of the Court of First Instance ought to be allowed and its Judgment set aside. The Appellant also seeks its costs in these appeal proceedings and in the proceedings before the Court of First Instance.

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| 9.2.2008 | EN | Official Journal of the European Union | C 37/18 |
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9.2.2008

EN

Official Journal of the European Union

C 37/18

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Action brought on 3 December 2007 — Commission of the European Communities v Kingdom of Belgium

(Case C-543/07)

(2008/C 37/26)

Language of the case: Dutch

Parties

Applicant: Commission of the European Communities (represented by: M. van Beek, Agent)

Defendant: Kingdom of Belgium

Form of order sought

| — | Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2002/73/EC (1) of the European Parliament and of the Council of 23 September 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, or in any event by not communicating such measures to the Commission, the Kingdom of Belgium has failed to fulfil its obligations under that directive; |
| --- | --- |

—

Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2002/73/EC (1) of the European Parliament and of the Council of 23 September 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, or in any event by not communicating such measures to the Commission, the Kingdom of Belgium has failed to fulfil its obligations under that directive;

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

—

order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

The period prescribed for transposing the Directive into national law expired on 5 October 2005.

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(1)  OJ 2002 L 269, p. 15.

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| 9.2.2008 | EN | Official Journal of the European Union | C 37/19 |
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9.2.2008

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Official Journal of the European Union

C 37/19

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Reference for a preliminary ruling from the Wojewódzki Sąd Administracyjny we Wrocławiu (Republic of Poland) lodged on 4 December 2007 — Uwe Rüffler v Dyrektor Izby Skarbowej we Wrocławiu — Ośrodek Zamiejscowy w Wałbrzychu

(Case C-544/07)

(2008/C 37/27)

Language of the case: Polish

Referring court

Wojewódzki Sąd Administracyjny we Wrocławiu (Regional Administrative Court, Wrocław) (Poland)

Parties to the main proceedings

Applicant: Uwe Rüffler

Defendant: Dyrektor Izby Skarbowej we Wrocławiu — Ośrodek Zamiejscowy w Wałbrzychu (Director of the Wrocław Tax Division, Wałbrzych office)

Question referred

Must the provisions of the first paragraph of Article 12 EC and Article 39(1) and (2) EC be construed as precluding the national provision contained in Article 27b of the Law of 26 July 1991 on income tax payable by natural persons, which restricts the right to a reduction of income tax by the amount of compulsory health insurance contributions paid to contributions paid exclusively on the basis of provisions of national law, in the case where a resident pays in another Member State compulsory health insurance contributions deducted from income taxed in Poland?

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| 9.2.2008 | EN | Official Journal of the European Union | C 37/19 |
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9.2.2008

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Official Journal of the European Union

C 37/19

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Appeal brought on 8 December 2007 by Akzo Nobel Chemicals Ltd, Akcros Chemicals Ltd against the judgment of the Court of First Instance (First Chamber) delivered on 17 September 2007 in Case T-253/03: Akzo Nobel Chemicals Ld and Akcros Chemicals Ltd v the Commission of the European Communities

(Case C-550/07 P)

(2008/C 37/28)

Language of the case: English

Parties

Appellants: Akzo Nobel Chemicals Ltd, Akcros Chemicals Ltd (represented by: C. Swaak, advocaat, M. Mollica and M. van der Woude, avocats)

Other parties to the proceedings: Commission of the European Communities, Council of the Bars and Law Societies of the European Union, Algemene Raad van de Nederlandse Orde van Advocaten, Association européenne des juristes d'entreprise (AEJE), American Corporate Counsel Association (ACCA) — European Chapter, International Bar Association

Form of order sought

The appellants claim that the Court should:

| — | set aside the judgment of the Court of First Instance (CFI) of 17 September 2007 in Case T-253/03, insofar as it rejected the claim of LPP for communications with Akzo Nobel's in-house lawyer; |
| --- | --- |

—

set aside the judgment of the Court of First Instance (CFI) of 17 September 2007 in Case T-253/03, insofar as it rejected the claim of LPP for communications with Akzo Nobel's in-house lawyer;

| — | annul the Rejection Decision of 8 May 2003 of the Commission, in as far as it refused to return the e-mail correspondence with Akzo Nobel's in-house lawyer (part of Set B documents); |
| --- | --- |

—

annul the Rejection Decision of 8 May 2003 of the Commission, in as far as it refused to return the e-mail correspondence with Akzo Nobel's in-house lawyer (part of Set B documents);

| — | order the Commission to pay costs of this appeal and of the proceedings before the CFI in as far as they concern the plea raised in the present appeal. |
| --- | --- |

—

order the Commission to pay costs of this appeal and of the proceedings before the CFI in as far as they concern the plea raised in the present appeal.

Pleas in law and main arguments

The Appellants submit that by rejecting this claim, the CFI violated Community Law. In particular, the Appellants contend that by strictly following a partial and literal interpretation of a few paragraphs of AM&S Europe v Commission
   (1), the CFI:

| 1. | gave incorrect interpretation of the principle of LPP as it is explained in AM&S, thereby violating the principle of equality (section B) |
| --- | --- |

1.

gave incorrect interpretation of the principle of LPP as it is explained in AM&S, thereby violating the principle of equality (section B)

| 2. | in the alternative, by refusing to reinterpret the principle of LPP in view of the significant developments in the legal landscape, violated the general principles of protection of the rights of defence and of legal certainty (section C); and |
| --- | --- |

2.

in the alternative, by refusing to reinterpret the principle of LPP in view of the significant developments in the legal landscape, violated the general principles of protection of the rights of defence and of legal certainty (section C); and

| 3. | in the further alternative, violated Article 5 EC (principle of attribution of competence) and the principle of national procedural autonomy (section D). |
| --- | --- |

3.

in the further alternative, violated Article 5 EC (principle of attribution of competence) and the principle of national procedural autonomy (section D).

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(1)  Case 155/79, (1982) p. 1575.

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| 9.2.2008 | EN | Official Journal of the European Union | C 37/20 |
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Official Journal of the European Union

C 37/20

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Reference for a preliminary ruling from the Conseil d'Etat (France) lodged on 11 December 2007 — Commune de Sausheim v Pierre Azelvandre

(Case C-552/07)

(2008/C 37/29)

Language of the case: French

Referring court

Conseil d'Etat

Parties to the main proceedings

Appellant: Commune de Sausheim

Respondent: Pierre Azelvandre

Questions referred

| 1. | Must ‘the location where the release’ of genetically modified organisms ‘will be carried out’ which, under Article 19 of Council Directive 90/220/EEC of 23 April 1990 on the deliberate release into the environment of genetically modified organisms (1), may not be kept confidential, mean the registered parcel of land or a larger geographical area corresponding either to the commune in which the release occurs or to an even greater area such as a Canton or Department? |
| --- | --- |

1.

Must ‘the location where the release’ of genetically modified organisms ‘will be carried out’ which, under Article 19 of Council Directive 90/220/EEC of 23 April 1990 on the deliberate release into the environment of genetically modified organisms (1), may not be kept confidential, mean the registered parcel of land or a larger geographical area corresponding either to the commune in which the release occurs or to an even greater area such as a Canton or Department?

| 2. | If the location is to be understood as requiring designation of the registered parcel of land, can an exception relating to the protection of public order or other confidential matters protected by law preclude, on the basis of Article 95 of the Treaty establishing the European Economic Community, now the European [Union], or of Directive 2003/4/EC (2) of 28 January 2003 on public access to environmental information or of a general principle of Community law, the disclosure of the registered reference number or numbers of the location of the release? |
| --- | --- |

2.

If the location is to be understood as requiring designation of the registered parcel of land, can an exception relating to the protection of public order or other confidential matters protected by law preclude, on the basis of Article 95 of the Treaty establishing the European Economic Community, now the European [Union], or of Directive 2003/4/EC (2) of 28 January 2003 on public access to environmental information or of a general principle of Community law, the disclosure of the registered reference number or numbers of the location of the release?

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(1)  OJ 1990 L 117, p. 15.

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

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| 9.2.2008 | EN | Official Journal of the European Union | C 37/20 |
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Official Journal of the European Union

C 37/20

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Action brought on 13 December 2007 — Commission of the European Communities v French Republic

(Case C-556/07)

(2008/C 37/30)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: M. Nolin, M. van Heezik, Agents)

Defendant: French Republic

Form of order sought

| — | declare that, by failing sufficiently to monitor, inspect and supervise fishing activities, in particular in the light of the prohibition of drift nets for the capture of certain species, and by not ensuring that appropriate measures against those responsible for infringements of the Community legislation on the use of drift nets were taken, the French Republic failed in its obligations under Articles 2 and 31(1) and (2) of Regulation No 2847/1993 (1) and Articles 23(1) and (2), 24 and 25(1) and (2) of Regulation No 2371/2002 (2); |
| --- | --- |

—

declare that, by failing sufficiently to monitor, inspect and supervise fishing activities, in particular in the light of the prohibition of drift nets for the capture of certain species, and by not ensuring that appropriate measures against those responsible for infringements of the Community legislation on the use of drift nets were taken, the French Republic failed in its obligations under Articles 2 and 31(1) and (2) of Regulation No 2847/1993 (1) and Articles 23(1) and (2), 24 and 25(1) and (2) of Regulation No 2371/2002 (2);

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

—

order the French Republic to pay the costs.

Pleas in law and main arguments

By its action, the Commission alleges that the defendant applied the Community legislation on fisheries incorrectly. That incorrect application consists, first, in the fact that the French authorities did not consider a ‘thonaille’ (a tuna gillnet) to be a drag net although, by reason of its technical characteristics, the thonaille is one and, as such, is prohibited by Community legislation. The fact that the thonaille can be stabilised with the aid of a floating anchor is, in that regard, irrelevant inasmuch as that stabilisation does not imply that the thonaille cannot drift with sea currents or the wind, but only that it is held by floats and weights in order to optimise its efficiency and to prevent it lying horizontally just below the surface.

The failure to fulfil obligations consists, second, in the lack of an effective monitoring system in order to enforce the ban on drift nets for the capture of certain species and the lack of follow-up in the pursuit of breaches established. The monitoring solely concerns whether national legislation, which is more flexible than the Community legislation, is complied with and the penalties imposed for breach of the legislation are light and of little dissuasive effect.

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(1)  Council Regulation (EEC) No 2847/93 of 12 October 1993 establishing a control system applicable to the common fisheries policy (OJ 1993 L 261, p. 1).

(2)  Council Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy (OJ 2002 L 358, p. 59).

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| 9.2.2008 | EN | Official Journal of the European Union | C 37/21 |
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Official Journal of the European Union

C 37/21

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Action brought on 17 December 2007 — Commission of the European Communities v Hellenic Republic

(Case C-559/07)

(2008/C 37/31)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (represented by: M. Patakia and M.van Beek)

Defendant: Hellenic Republic

Form of order sought

| — | declare that, by maintaining in force the provisions concerning different retirement ages and different minimum-service requirements for men and women under the Greek Civil and Military Pensions Code, the Hellenic Republic has failed to fulfil its obligations under Article 141 of the EC Treaty; |
| --- | --- |

—

declare that, by maintaining in force the provisions concerning different retirement ages and different minimum-service requirements for men and women under the Greek Civil and Military Pensions Code, the Hellenic Republic has failed to fulfil its obligations under Article 141 of the EC Treaty;

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

—

order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

| 1. | The Commission, after examining the provisions in force of the Greek Civil and Military Pensions Code, found that they provide that women are entitled to a retirement pension at a different age from men and under different conditions regarding the minimum period of service required. |
| --- | --- |

1.

The Commission, after examining the provisions in force of the Greek Civil and Military Pensions Code, found that they provide that women are entitled to a retirement pension at a different age from men and under different conditions regarding the minimum period of service required.

| 2. | In the light of the Court of Justice's case-law, the Commission submits that the pensions in question, which are paid by an employer to a former worker as a consequence of the employment relationship between them, constitute pay within the meaning of Article 141 EC. Furthermore, because of the particular nature of the pension systems in question, under which pensions depend on the period of service completed and on the worker's salary prior to grant of a pension, the persons drawing a pension constitute, in the Commission's view, ‘a particular category of workers’, while the method of financing and managing the pension system does not constitute a decisive factor for the application of Article 141 EC. |
| --- | --- |

2.

In the light of the Court of Justice's case-law, the Commission submits that the pensions in question, which are paid by an employer to a former worker as a consequence of the employment relationship between them, constitute pay within the meaning of Article 141 EC. Furthermore, because of the particular nature of the pension systems in question, under which pensions depend on the period of service completed and on the worker's salary prior to grant of a pension, the persons drawing a pension constitute, in the Commission's view, ‘a particular category of workers’, while the method of financing and managing the pension system does not constitute a decisive factor for the application of Article 141 EC.

| 3. | Also, in the Commission's submission, the conditions for application of Article 141(4) EC, which concerns providing for specific advantages to make it easier for the underrepresented sex to pursue a vocational activity, are not met.
  In this instance, the provisions in question do not help to correct the problems which women may face in their professional careers but, on the contrary, facilitate their withdrawal from the labour market. |
| --- | --- |

3.

Also, in the Commission's submission, the conditions for application of Article 141(4) EC, which concerns providing for specific advantages to make it easier for the underrepresented sex to pursue a vocational activity, are not met.

In this instance, the provisions in question do not help to correct the problems which women may face in their professional careers but, on the contrary, facilitate their withdrawal from the labour market.

| 4. | Furthermore, the justification pleaded, regarding the State mechanism being caused to malfunction and the consequent laying down of transitional provisions, is not persuasive in the Commission's view because, first, economic consequences which could result for a Member State do not justify in themselves the temporal restriction of the application of rules of Community law and, second, the Hellenic Republic has not in practice demonstrated the existence and precise nature of the malfunctioning pleaded. |
| --- | --- |

4.

Furthermore, the justification pleaded, regarding the State mechanism being caused to malfunction and the consequent laying down of transitional provisions, is not persuasive in the Commission's view because, first, economic consequences which could result for a Member State do not justify in themselves the temporal restriction of the application of rules of Community law and, second, the Hellenic Republic has not in practice demonstrated the existence and precise nature of the malfunctioning pleaded.

| 5. | Consequently, the Commission considers that, by maintaining in force provisions concerning different retirement ages and different minimum-service requirements for men and women under the Greek Civil and Military Pensions Code, the Hellenic Republic has failed to fulfil its obligations under Article 141 EC. |
| --- | --- |

5.

Consequently, the Commission considers that, by maintaining in force provisions concerning different retirement ages and different minimum-service requirements for men and women under the Greek Civil and Military Pensions Code, the Hellenic Republic has failed to fulfil its obligations under Article 141 EC.

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Court of First Instance

| 9.2.2008 | EN | Official Journal of the European Union | C 37/22 |
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Order of the Court of First Instance of 5 December 2007 — Schering-Plough Ltd v Commission and EMEA

(Case T-133/03) (1)

(Action for annulment - Partial inadmissibility - Interest in bringing proceedings - Application devoid of purpose - No need to adjudicate)

(2008/C 37/32)

Language of the case: English

Parties

Applicant: Schering-Plough Ltd (Brussels, Belgium) (represented by: G. Berrisch and P. Bogaert, lawyers)

Defendants: Commission of the European Communities (represented by: H. Støvlbæk and M. Shotter, acting as Agents) European Agency for the Evaluation of Medicinal Products (EMEA), (Geneva, Switzerland) (represented by: initially by N. Khan, acting as Agent, and C. Sherliker, solicitor, and subsequently by C. Sherliker, solicitor, and T. Eicke, Barrister)

Intervener in support of the applicant: European Federation of Pharmaceutical Industries and Associations (EFPIA), established in Geneva (Switzerland), (represented by: N. Rampal, U. Zinsmeister and D. Waelbroeck, lawyers)

Re:

Action for the annulment of the EMEA measure of 14 February 2003 refusing a ‘Type 1’ variation of the name of the pharmaceutical form ‘oral lyophilisat’ from ‘Allex 5 mg oral lyophilisate’ to ‘Allex Reditabs 5 mg oral lyophilisate’.

Operative part of the order

| 1. | The action is dismissed as inadmissible in so far as it is directed against the European Agency for the Evaluation of Medicinal Products (EMEA). |
| --- | --- |

1.

The action is dismissed as inadmissible in so far as it is directed against the European Agency for the Evaluation of Medicinal Products (EMEA).

| 2. | There is no longer any need to adjudicate on the action in so far as it is directed against the Commission. |
| --- | --- |

2.

There is no longer any need to adjudicate on the action in so far as it is directed against the Commission.

| 3. | The EMEA shall bear its own costs. |
| --- | --- |

3.

The EMEA shall bear its own costs.

| 4. | Schering-Plough Ltd shall pay, in addition to its own costs, the costs incurred by the Commission. |
| --- | --- |

4.

Schering-Plough Ltd shall pay, in addition to its own costs, the costs incurred by the Commission.

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(1)  OJ C 171, 19.7.2003.

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| 9.2.2008 | EN | Official Journal of the European Union | C 37/22 |
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Order of the President of the Court of First Instance of 22 November 2007 — V v Parliament

(Case T-345/05 R III)

(Application for interim measures - Waiver of immunity of a Member of the European Parliament - Application for suspension of operation - No prima facie case)

(2008/C 37/33)

Language of the case: English

Parties

Applicant: V (represented by: J Lofthouse, C Hayes and M Monan, lawyers)

Defendant: European Parliament (represented by: H Krück, D Moore and M Windisch, agents)

Re:

Application for re-examination of the applicant's first and second applications for interim measures, dismissed by orders of the President of the Court of First Instance on 16 March 2007 and 27 June 2007 in Case T-345/05 R and T-345/05 R II, V v Parliament, not published in the ECR

Operative part of the order

| 1. | The application for interim measures is dismissed. |
| --- | --- |

1.

The application for interim measures is dismissed.

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

2.

The costs are reserved.

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| 9.2.2008 | EN | Official Journal of the European Union | C 37/23 |
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9.2.2008

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Official Journal of the European Union

C 37/23

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Order of the President of the Court of First Instance of 11 October 2007 — MB Immobilien v Commission

(Case T-120/07 R)

(Interim measures - State Aid to the new Länder - Obligation to recover aid - Application for suspension of operation of a measure - Urgency - Weighing up of interests)

(2008/C 37/34)

Language of the case: German

Parties

Applicant: MB Immobilien Verwaltungs GmbH (Neukirch, Germany) (represented by: G. Brüggen, lawyer)

Defendant: Commission of the European Communities (represented by: K. Gross and T. Scharf, Agents)

Re:

Application for suspension of operation of Commission Decision 2007/492/EC of 24 January 2007 on State Aid No C 38/2005 (ex NN 52/2004) implemented by Germany for the Biria-Gruppe (OJ 2007 L 183, p. 27)

Operative part of the order

| 1. | The application for interim measures is dismissed. |
| --- | --- |

1.

The application for interim measures is dismissed.

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

2.

The costs are reserved.

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| 9.2.2008 | EN | Official Journal of the European Union | C 37/23 |
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C 37/23

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Order of the President of the Court of First Instance of 11 December 2007 — FMC Chemical and Others v Commission

(Case T-349/07 R)

(Application for interim relief - Directive 91/414/EEC - Application for suspension of operation of a measure - Admissibility - No urgency)

(2008/C 37/35)

Language of the case: English

Parties

Applicants: FMC Chemical SPRL (Brussels, Belgium), Satec Handelsgesellschaft mbH (Elmshorn, Germany), Belchim Crop Protection NV (Londerzeel, Belgium), FMC Foret, SA (Sant Cugat de Valles, Spain), F&N Agro Slovensko spol. s.r.o. (Bratislava, Slovakia), F&N Agro Ceská republika spol. s.r.o. (Prague, Czech Republic), F&N Agro Polska sp. z o.o. (Warsaw, Poland) and FMC Corp. (Philadelphia, Pennsylvania, United States) (represented by: C. Mereu and K. Van Maldegem, lawyers)

Defendant: Commission of the European Communities (represented by: L. Parpala and B. Doherty, Agents)

Re:

Application for suspension of the operation of Commission Decision 2007/415/EC of 13 June 2007 concerning the non-inclusion of carbosulfan in Annex I to Council Directive 91/414/EEC and the withdrawal of authorisations for plant protection products containing that substance (OJ 2007 L 156, p. 28) pending the full resolution of the dispute in the main proceedings

Operative part of the order

| 1. | The application for interim measures is dismissed. |
| --- | --- |

1.

The application for interim measures is dismissed.

| 2. | Costs are reserved. |
| --- | --- |

2.

Costs are reserved.

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| 9.2.2008 | EN | Official Journal of the European Union | C 37/23 |
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Order of the President of the Court of First Instance of 11 December 2007 — FMC Chemical and Others v Commission

(Case T-350/07 R)

(Application for interim relief - Directive 91/414/EEC - Application for suspension of operation of a measure - Admissibility - No urgency)

(2008/C 37/36)

Language of the case: English

Parties

Applicants: FMC Chemical SPRL (Brussels, Belgium), Arysta Lifescience SAS (Noguères, France), Belchim Crop Protection NV (Londerzeel, Belgium), FMC Foret, SA (Sant Cugat de Valles, Spain), F&N Agro Slovensko spol. s.r.o. (Bratislava, Slovakia), F&N Agro Ceská republika spol. s.r.o. (Prague, Czech Republic), F&N Agro Polska sp. z o.o. (Warsaw, Poland) and FMC Corp. (Philadelphia, Pennsylvania, United States) (represented by: C. Mereu and K. Van Maldegem, lawyers)

Defendant: Commission of the European Communities (represented by: L. Parpala and B. Doherty, Agents)

Re:

Application for suspension of the operation of Commission Decision 2007/416/EC of 13 June 2007 concerning the non-inclusion of carbofuran in Annex I to Council Directive 91/414/EEC and the withdrawal of authorisations for plant protection products containing that substance (OJ 2007 L 156, p. 30) pending the full resolution of the dispute in the main proceedings

Operative part of the order

| 1. | The application for interim measures is dismissed. |
| --- | --- |

1.

The application for interim measures is dismissed.

| 2. | Costs are reserved. |
| --- | --- |

2.

Costs are reserved.

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| 9.2.2008 | EN | Official Journal of the European Union | C 37/24 |
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Action brought on 27 November 2007 — BP Aromatics v Commission

(Case T-429/07)

(2008/C 37/37)

Language of the case: English

Parties

Applicant: BP Aromatics Ltd (Sunbury on Thames, United Kingdom) (represented by: A. Renshaw and G. Bushell, Solicitors)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul the contested decision; |
| --- | --- |

—

Annul the contested decision;

| — | order the defendant and any interveners granted leave to intervene in the proceedings to pay the costs of the proceedings; and |
| --- | --- |

—

order the defendant and any interveners granted leave to intervene in the proceedings to pay the costs of the proceedings; and

| — | take any other actions that the Court considers to be appropriate. |
| --- | --- |

—

take any other actions that the Court considers to be appropriate.

Pleas in law and main arguments

The applicant seeks the annulment of Commission Decision C(2007) 3202 final of 10 July 2007 by which the Commission found State aid notified by the Portuguese authorities in favour of Artensa (Artenius) for the construction of a new plant for the production of chemical products to be compatible with the common market pursuant to Article 87(3)(a) EC.

In support of its application, the applicant submits that the Commission infringed Articles 87 EC and 88 EC, the rules relating to their application, certain essential procedural requirements and a number of principles of Community law, in that the Commission:

| — | misconstrued and misapplied the multisectoral framework on regional aid for large investment projects 2002 (1), which requires an analysis based on the EEA market and not on a worldwide market; |
| --- | --- |

—

misconstrued and misapplied the multisectoral framework on regional aid for large investment projects 2002 (1), which requires an analysis based on the EEA market and not on a worldwide market;

| — | committed a manifest error of assessment in concluding that the relevant market for purified terephthalic acid is worldwide when it is, according to the applicant, an EEA-wide market; and |
| --- | --- |

—

committed a manifest error of assessment in concluding that the relevant market for purified terephthalic acid is worldwide when it is, according to the applicant, an EEA-wide market; and

| — | committed a manifest error of assessment in concluding that the relevant share of sales of Artensa will be below 25 % when in fact it will exceed 25 % on an EEA-wide basis. |
| --- | --- |

—

committed a manifest error of assessment in concluding that the relevant share of sales of Artensa will be below 25 % when in fact it will exceed 25 % on an EEA-wide basis.

The applicant alleges that if the Commission had conducted a detailed and proper investigation of the EEA market for purified terephthalic acid, it would have had serious difficulties in determining whether the aid is compatible with the common market which would have made it necessary to open the formal investigation procedure pursuant to Article 88(2) EC.

According to the applicant, the fact that the Commission had serious difficulties in assessing the aid during its preliminary investigation and that it should, accordingly, have initiated the formal procedure pursuant to Article 88(2) EC is corroborated by the length of time elapsed between the notification from the Portuguese authorities and the adoption of the contested decision.

The applicant further contends that its procedural rights were infringed as the Commission did not, as it should have, open a formal investigation under Article 88(2) EC.

Finally, the applicant claims that the Commission infringed its obligation to state reasons in accordance with Article 253 EC.

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(1)  Communication from the Commission — Multisectoral framework on regional aid for large investment projects (notified under document No C(2002) 315) (OJ 2002 C 70, p. 8).

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| 9.2.2008 | EN | Official Journal of the European Union | C 37/24 |
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9.2.2008

EN

Official Journal of the European Union

C 37/24

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Action brought on 26 November 2007 — Gebr. Heller Maschinenfabrik v OHIM — Fernández Martinez (HELLER)

(Case T-431/07)

(2008/C 37/38)

Language in which the application was lodged: German

Parties

Applicant: Gebr. Heller Maschinenfabrik (Nürtingen, Germany) (represented by: W. Kessler and S. Baur, 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: Manuel Fernández Martinez (Alicante, Spain)

Form of order sought

| — | Annul the decision of the Second Board of Appeal of OHIM of 11 September 2007 in Case R 974/2006-2; |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of OHIM of 11 September 2007 in Case R 974/2006-2;

| — | Dismiss the opposition of the other party before the Second Board of Appeal, Manuel Fernández Martinez; |
| --- | --- |

—

Dismiss the opposition of the other party before the Second Board of Appeal, Manuel Fernández Martinez;

| — | Order the other party before the Board of Appeal, Manuel Fernández Martinez, to pay the costs and fees of the proceedings before the Opposition Division and the Board of Appeal of OHIM and of the present proceedings. |
| --- | --- |

—

Order the other party before the Board of Appeal, Manuel Fernández Martinez, to pay the costs and fees of the proceedings before the Opposition Division and the Board of Appeal of OHIM and of the present proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: The word mark ‘HELLER’ for goods and services in Classes 7, 37 and 40 (application No 3 306 602).

Proprietor of the mark or sign cited in the opposition proceedings: Manuel Fernández Martinez.

Mark or sign cited in opposition: Spanish figurative mark ‘HELLER’ for goods in Class 7 (No 2 520 584).

Decision of the Opposition Division: Upheld the opposition and rejected the application.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law: Breach of Article 8(1)(b) of Regulation (EC) No 40/94 (1), since there is no likelihood of confusion between the opposing marks.

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

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| 9.2.2008 | EN | Official Journal of the European Union | C 37/25 |
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9.2.2008

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Official Journal of the European Union

C 37/25

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Action brought on 28 November 2007 — Volvo Trademark Holding v OHIM — Grebenshikova (SOLVO)

(Case T-434/07)

(2008/C 37/39)

Language in which the application was lodged: English

Parties

Applicant: Volvo Trademark Holding AB (Gothenburg, Sweden) (represented by: T. Dolde, V. von Bomhard, A. Renck, lawyers)

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

Other party to the proceedings before the Board of Appeal: Elena Grebenshikova (St. Petersburg, Russia)

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 2 August 2007 in Case No R 1240/2006-2; and |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 2 August 2007 in Case No R 1240/2006-2; and

| — | order that the costs of the proceedings be borne by the defendant. |
| --- | --- |

—

order that the costs of the proceedings be borne by the defendant.

Pleas in law and main arguments

Applicant for the Community trade mark: Elena Grebenshikova

Community trade mark concerned: The figurative mark ‘SOLVO’ for goods and services in classes 9, 39 and 42 — application No 3 555 422

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

Mark or sign cited: The Community and national word and figurative mark ‘VOLVO’ for, inter alia, goods and services in classes 9 and 42

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

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Violation of Article 8(1)(b) and (5) of Council Regulation No 40/94, as the trade marks in question are visually and phonetically similar and as the Board of Appeal did not take all relevant factors, including the identity of the goods concerned and the reputation of VOLVO, into account.

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| 9.2.2008 | EN | Official Journal of the European Union | C 37/25 |
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9.2.2008

EN

Official Journal of the European Union

C 37/25

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Action brought on 29 November 2007 — New Look v OHIM (NEW LOOK)

(Case T-435/07)

(2008/C 37/40)

Language of the case: English

Parties

Applicant: New Look Ltd (Weymouth, United Kingdom) (represented by: S. Malynicz, Barrister, and M. Blair and K. Gilbert, Solicitors)

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

Form of order sought

| — | The decision of the Second Board of Appeal dated 3 September 2007 in Case R 670/2007-2 shall be annulled. |
| --- | --- |

—

The decision of the Second Board of Appeal dated 3 September 2007 in Case R 670/2007-2 shall be annulled.

| — | The Office shall bear its own costs and pay those of the applicant. |
| --- | --- |

—

The Office shall bear its own costs and pay those of the applicant.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘NEW LOOK’ for goods and services in classes 3, 9, 14, 16, 18, 25, 26 and 35 — application No 2 932 606

Decision of the examiner: Refusal of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(3) of Council Regulation No 40/94, as the Board of Appeal i) erred in requiring the applicant to demonstrate acquired distinctive character in a Member State other than the United Kingdom and Ireland; ii) erred in holding that the applicant's evidence of use of ‘NEW LOOK’ in stylised form or together with a distinctive device was incapable of imbuing the mark with distinctive character; and iii) failed to place sufficient overall weight on the applicant's evidence of use in the United Kingdom and Ireland.

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| 9.2.2008 | EN | Official Journal of the European Union | C 37/26 |
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9.2.2008

EN

Official Journal of the European Union

C 37/26

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Action brought on 30 November 2007 — Spa Monopole v OHIM — De Francesco Import (SpagO)

(Case T-438/07)

(2008/C 37/41)

Language in which the application was lodged: English

Parties

Applicant: Spa Monopole, compagnie fermière de Spa SA/NV (Spa, Belgium) (represented by: L. de Brouwer, E. Cornu, E. De Gryse and D. Moreau, lawyers)

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

Other party to the proceedings before the Board of Appeal: De Francesco Import GmbH (Nürnberg, Germany)

Form of order sought

| — | Annul the decision of the Second Board of Appeal of the Office of 13 September 2007 in Case R 1285/2006-2 and |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of the Office of 13 September 2007 in Case R 1285/2006-2 and

| — | order the Office to bear the costs. |
| --- | --- |

—

order the Office to bear the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: De Francesco Import GmbH

Community trade mark concerned: The word mark ‘SpagO’ for goods in class 33 — application No 2 320 844

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

Mark or sign cited: The Community, national and international word and figurative marks ‘SPA’, ‘SPA Citron’ and ‘SPA Orange’ for goods in class 32

Decision of the Opposition Division: Opposition upheld in its entirety

Decision of the Board of Appeal: Annulment of the Opposition Division's decision and rejection of the opposition

Pleas in law: Infringement of Article 8(5) of Council Regulation No 40/94, as the Board of Appeal underestimated the reputation of SPA in the Benelux and did not take the following factors sufficiently into account:

| — | the oral and visual similarities of the trade marks in question; |
| --- | --- |

—

the oral and visual similarities of the trade marks in question;

| — | the fact that the use of the trade mark ‘SpagO’ for alcoholic beverages would be detrimental to the reputation of the mineral water ‘SPA’, which built its reputation on its high quality, purity and beneficial effects upon health; |
| --- | --- |

—

the fact that the use of the trade mark ‘SpagO’ for alcoholic beverages would be detrimental to the reputation of the mineral water ‘SPA’, which built its reputation on its high quality, purity and beneficial effects upon health;

| — | the fact that the use of ‘SpagO’ for beverages would take unfair advantage of the reputation of the trade mark ‘SPA’ and its image of quality and purity. |
| --- | --- |

—

the fact that the use of ‘SpagO’ for beverages would take unfair advantage of the reputation of the trade mark ‘SPA’ and its image of quality and purity.

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| 9.2.2008 | EN | Official Journal of the European Union | C 37/26 |
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9.2.2008

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Official Journal of the European Union

C 37/26

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Action brought on 4 December 2007 — Coats Holdings v Commission

(Case T-439/07)

(2008/C 37/42)

Language of the case: English

Parties

Applicant: Coats Holdings Ltd (represented by: W. Sibree and C. Jeffs, Solicitors)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul Articles 1(4) and 2(4) of the decision insofar as they relate to Coats; |
| --- | --- |

—

Annul Articles 1(4) and 2(4) of the decision insofar as they relate to Coats;

| — | in the alternative, annul or reduce the fine imposed on Coats by Article 2(4) of the decision; and |
| --- | --- |

—

in the alternative, annul or reduce the fine imposed on Coats by Article 2(4) of the decision; and

| — | order the Commission to bear its own costs and those incurred by Coats. |
| --- | --- |

—

order the Commission to bear its own costs and those incurred by Coats.

Pleas in law and main arguments

The applicant seeks the annulment of Commission Decision C(2007) 4257 final of 19 September 2007 in Case COMP/E-1/39.168 — PO/Hard Haberdashery: Fasteners, by which the Commission found that the applicant, together with other undertakings, had infringed Article 81 EC by among others exchanging price information, fixing minimum prices and sharing markets.

In support of its application, the applicant submits that the Commission's assessment of the evidence as a whole is vitiated by manifest errors of assessment. According to the applicant the Commission failed to prove to the requisite standard that the applicant was a party to a bilateral market-sharing agreement with Prym between January 1977 and July 1998.

In the alternative, the applicant submits that the Commission failed to prove that any infringement continued beyond 19 September 1997 or failed to prove a single continuous infringement for the period to 15 July 1998 entitling the Commission to fine the applicant for an infringement lasting 21 Formula years.

The applicant further, alternatively, claims that the Commission infringed the applicant's fundamental procedural rights under Article 6(3)(d) of the European Convention for the Protection of Human Rights and Fundamental Freedoms to examine or have examined witnesses against it in proceedings of a criminal nature.

Finally, the applicant alleges, in the alternative, that the Commission erred in mechanically applying a multiplier of 215 % to the basic amount of the fine for a duration of 21 Formula years, rather than exercising its discretion under the applicable fining guidelines.

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| 9.2.2008 | EN | Official Journal of the European Union | C 37/27 |
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9.2.2008

EN

Official Journal of the European Union

C 37/27

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Action brought on 29 November 2007 — Ryanair v Commission

(Case T-441/07)

(2008/C 37/43)

Language of the case: English

Parties

Applicant: Ryanair Ltd (Dublin, Ireland) (represented by: E. Vahida, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | To declare in accordance with Article 232 EC that the Commission has failed to act pursuant to its obligations under the EC Treaty by not having defined a position with respect to the applicant's complaint lodged with the Commission on 3 November 2005 followed by a letter of formal notice of 2 August 2007; |
| --- | --- |

—

To declare in accordance with Article 232 EC that the Commission has failed to act pursuant to its obligations under the EC Treaty by not having defined a position with respect to the applicant's complaint lodged with the Commission on 3 November 2005 followed by a letter of formal notice of 2 August 2007;

| — | to order the Commission to pay the entire costs, including the costs incurred by the applicant in the proceedings even if, following the bringing of the action, the Commission takes action which in the opinion of the Court removes the need to give a decision or if the Court dismisses the application as inadmissible; and |
| --- | --- |

—

to order the Commission to pay the entire costs, including the costs incurred by the applicant in the proceedings even if, following the bringing of the action, the Commission takes action which in the opinion of the Court removes the need to give a decision or if the Court dismisses the application as inadmissible; and

| — | to take such further action as the Court may deem appropriate. |
| --- | --- |

—

to take such further action as the Court may deem appropriate.

Pleas in law and main arguments

It is submitted as the main plea, that the Commission has failed to conduct a diligent and impartial examination of the complaint lodged by the applicant, alleging the grant of unlawful aid in the form of advantages conferred by the Italian State to Volare, through the write-off of around EUR 20 million in debts owned by Volare to Italian airports and reductions in airport charges and fuel costs. Alternatively, as a subsidiary plea, the applicant submits that the Commission failed to define its position on the applicant's complaint alleging anticompetitive discrimination and, hence, an infringement of Article 82 EC.

The applicant claims that the measures that are subject to its complaint constitute State aid, fulfilling all conditions set out in Article 87(1) EC. Furthermore, the applicant contends that, in the event the Court found that some of the advantages conferred to Volare were not attributable to the State, because Italian airports might have determined their charges in an autonomous manner, the applicant submits that such advantages would amount to anticompetitive discrimination which cannot be justified by objective reasons and hence, infringes Article 82 EC.

The applicant further submits that the Commission was under an obligation, in accordance with the provisions of Council Regulation (EC) No 1/2003 (1) and Commission Regulation (EC) No 773/2004 (2), to carefully examine the evidence of fact and of law brought to its notice by the complainant in order to decide, within a reasonable time, whether it should initiate proceedings to establish the breach or reject the complaint. The Commission did not take any decision following receipt of the complaint, confirming the breach or dismissing the complaint after having informed the applicant pursuant to Article 7 of Regulation (EC) No 773/2004, or, finally, issue a fully reasoned decision not to pursue the complaint due to lack of Community interest.

As a result, the applicant claims that a prima facie infringement of competition law existed and the Commission should have taken less than 21 months to reach such a conclusion and, accordingly, to initiate proceedings. The duration of the Commission's failure to act therefore exceeded reasonable limits.

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(1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (Text with EEA relevance) (OJ L 1, p. 1).

(2)  Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty (Text with EEA relevance) (OJ L 123, p. 18).

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| 9.2.2008 | EN | Official Journal of the European Union | C 37/28 |
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9.2.2008

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Official Journal of the European Union

C 37/28

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Action brought on 30 November 2007 — Ryanair v Commission

(Case T-442/07)

(2008/C 37/44)

Language of the case: English

Parties

Applicant: Ryanair Ltd (Dublin, Ireland) (represented by: E. Vahida, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | To declare that the Commission has failed to define its position pursuant to its obligations under the EC Treaty, including, in particular, Article 232 EC, in response to the applicant's complaints of 3 November and 13 December 2005, 16 June and 10 November 2006, and its letter of formal notice of 2 August 2007; |
| --- | --- |

—

To declare that the Commission has failed to define its position pursuant to its obligations under the EC Treaty, including, in particular, Article 232 EC, in response to the applicant's complaints of 3 November and 13 December 2005, 16 June and 10 November 2006, and its letter of formal notice of 2 August 2007;

| — | to order the Commission to pay the entire costs, including the costs incurred by the applicant in the proceedings even if, following the bringing of the action, the Commission takes action which in the opinion of the Court removes the need to give a decision or if the Court dismisses the application as inadmissible; and |
| --- | --- |

—

to order the Commission to pay the entire costs, including the costs incurred by the applicant in the proceedings even if, following the bringing of the action, the Commission takes action which in the opinion of the Court removes the need to give a decision or if the Court dismisses the application as inadmissible; and

| — | to take such further action as the Court may deem appropriate. |
| --- | --- |

—

to take such further action as the Court may deem appropriate.

Pleas in law and main arguments

By means of its application, the applicant initiated an action under Article 232 EC, claiming that the Commission has failed to define its position in connection with the complaints filed on 3 November 2005, 13 December 2005, 16 June 2006 and 10 November 2006, followed by a letter of formal notice of 2 August 2007.

It is submitted as the main plea, that the Commission has failed to conduct and conclude a diligent and impartial examination of the complaints lodged by the applicant, alleging the grant of unlawful aid in the form of advantages conferred by the Italian State to airlines Alitalia, Air One and Meridiana. Alternatively, as a subsidiary plea, the applicant submits that the Commission failed to define its position on the applicant's complaints alleging anticompetitive discrimination and, hence, an infringement of Article 82 EC.

The applicant claims that the measures that are subject to its complaint, namely, (i) payment to Alitalia of ‘9/11 compensation’ aid, (ii) favourable conditions surrounding the transfer of Alitalia Servizi to Fintecna, (iii) the failure of the Italian State to claim payment of debts owed by Alitalia to Italian airports, (iv) public financing of Alitalia's redundancy payments, (v) rebates on fuel costs, (vi) reductions in airport charges at Italian hubs, (vii) the transfer of over 100 Alitalia employees to Meridiana and Air One and (viii) discriminatory restrictions on the operation of the applicant at regional airports including Ciampino airport, are attributable to the Italian State, constitute lost revenue to it and specifically benefit to Alitalia as well as Air one and Meridiana for some of the measures concerned. According to the applicant, these measures constitute State aid, fulfilling all conditions set out in Article 87(1) EC.

Alternatively, as a subsidiary plea, the applicant submits that the failure of Italian airports to obtain payment of debts owed by Alitalia, the reductions in airport charges at Italian hubs, the rebates on fuel costs and the discriminatory restrictions on the operation of the applicant at regional airports constitute an infringement of competition law. Accordingly, the applicant contends that, in the event that the Court found that some of the advantages conferred to Alitalia, Air One and Meridiana were not attributable to the State, because Italian airports and fuel providers that have granted the above advantages would have been acting in an autonomous manner, such advantages would amount to anticompetitive discrimination which cannot be justified by objective reasons and hence, infringe Article 82 EC.

Moreover, the applicant contends that it has a legitimate interest to bring such a complaint both as a customer of airport services and aviation fuel and as a competitor of Alitalia, Air One and Meridiana.

The applicant further submits that the Commission was under an obligation to act, in accordance with the provisions of Council Regulations (EC) 659/1999 (1) and (EC) No 1/2003 (2) and Commission Regulation (EC) No 773/2004 (3). The Commission did not however take any action upon receipt of the complaints, nor did it take position upon receipt of its letter of formal notice.

As a result, the applicant claims that a prima facie infringement of competition law existed and that the unreasonable long period of 9 to 21 months which elapsed, depending on the subject-matter of the complaint, between the Commission's receipt of the letter of formal notice and the Commission's inaction constitutes failure to act within the meaning of Article 232 EC.

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(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 L 83, p. 1).

(2)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (Text with EEA relevance) (OJ L 1, p. 1).

(3)  Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty (Text with EEA relevance) (OJ L 123, p. 18).

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| 9.2.2008 | EN | Official Journal of the European Union | C 37/29 |
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C 37/29

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Action brought on 5 December 2007 — Centre de Promotion de l'Emploi par la Micro-Entreprise v Commission

(Case T-444/07)

(2008/C 37/45)

Language of the case: French

Parties

Applicant: Centre de Promotion de l'Emploi par la Micro-Entreprise (CPEM) (Marseilles, France) (represented by: C. Bonnefoi, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | annulment of Commission Decision C(2007) 4645 of 4 October 2007, cancelling the assistance granted by the European Social Fund (ESF) to finance an ESF subsidy in France (CPEM) by Decision No C(1999) 2645 of 17 August 1999; |
| --- | --- |

—

annulment of Commission Decision C(2007) 4645 of 4 October 2007, cancelling the assistance granted by the European Social Fund (ESF) to finance an ESF subsidy in France (CPEM) by Decision No C(1999) 2645 of 17 August 1999;

| — | acknowledgement of a right to damages for public detriment to the reputation of a body acting in the context of a task of general interest (estimated at EUR 100 000); |
| --- | --- |

—

acknowledgement of a right to damages for public detriment to the reputation of a body acting in the context of a task of general interest (estimated at EUR 100 000);

| — | acknowledgement of the right of CPEM's staff to individual symbolic damages of one Euro for interference with their peace of mind at work (threat to the future of their employment structure and thus to their jobs, since to pay EUR 1 000 000 would mean the closure of the CPEM and the MSD); |
| --- | --- |

—

acknowledgement of the right of CPEM's staff to individual symbolic damages of one Euro for interference with their peace of mind at work (threat to the future of their employment structure and thus to their jobs, since to pay EUR 1 000 000 would mean the closure of the CPEM and the MSD);

| — | repayment of lawyers' fees and the costs of legal assistance made necessary, proof of which can be provided. |
| --- | --- |

—

repayment of lawyers' fees and the costs of legal assistance made necessary, proof of which can be provided.

Pleas in law and main arguments

By this action, the applicant seeks annulment of Commission Decision C(2007) 4645 of 4 October 2007, cancelling, following an OLAF report, the assistance granted by the European Social Fund (1) to finance, by way of a global subsidy, a pilot project carried out by the applicant.

In support of its action, the applicant relies on two groups of pleas in law, the first concerning the way in which OLAF carried out the investigation and enquiry procedure leading to the contested decision and alleging breach of the rights of the defence and the other pleas in law concerning the substance of the contested decision.

First, the applicant claims that the form of the enquiry which OLAF carried out was in breach of a number of principles of Community law and of a dispassionate investigation, such as the presumption of innocence and the right to know the actual and specific content of the accusations contained in the complaints on which the proceedings were based. It claims, moreover, that OLAF confused the procedures laid down by Regulation No 2185/96 (2) with those concerning enquiries under Regulation No 2988/95 (3). Second, the applicant alleges that OLAF based the conclusions for which it was responsible on the different and changing editions of the ‘Promoter's Guide’.

As to substance, the applicant alleges that the Commission based its decision on the conclusions of the OLAF report, which seriously infringed the French law concepts of ‘non-profit making organisations’ and ‘secondment’. Moreover, it claims that OLAF asserted against it the superiority of the ‘Promoter's Guide’ to the content of a Community regulation. It also claims that the Commission was aware of this and even authorised the facts which were alleged against the applicant by OLAF and in the contested decision. Lastly, the applicant relies on a plea in law alleging that Regulation No 1605/2002 (4), on which part of OLAF's reasoning and the contested decision are based, is inapplicable and not capable of being relied on against it.

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(1)  Commission Decision C (1999) 2645 of 17 August 1999 amended by Decision C (2001) 2144 of 18 September 2001.

(2)  Council Regulation (Euratom, EC) No 2185/96 of 11 November 1996 concerning on-the-spot checks and inspections carried out by the Commission in order to protect the European Communities' financial interests against fraud and other irregularities (OJ 1996 L 292, p. 2).

(3)  Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests (OJ 1995 L 312, p. 1).

(4)  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).

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| 9.2.2008 | EN | Official Journal of the European Union | C 37/30 |
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9.2.2008

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Action brought on 7 December 2007 — Behring & Söhne v Commission

(Case T-445/07)

(2008/C 37/46)

Language of the case: German

Parties

Applicant: Behring & Söhne GmbH & Co. KG (Wuppertal, Germany) (represented by: P. Niggemann and K. Gaßner, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | the annulment of Commission Decision C(2007) 4257 final of 19 September 2007 (COMP/E-1/39.168 — Haberdashery: fasteners); |
| --- | --- |

—

the annulment of Commission Decision C(2007) 4257 final of 19 September 2007 (COMP/E-1/39.168 — Haberdashery: fasteners);

| — | in the alternative, the reduction of the fine imposed on the applicant in the contested decision to a symbolic penalty or to an amount that is in any event appropriate; |
| --- | --- |

—

in the alternative, the reduction of the fine imposed on the applicant in the contested decision to a symbolic penalty or to an amount that is in any event appropriate;

| — | that the defendant be ordered to pay the costs. |
| --- | --- |

—

that the defendant be ordered to pay the costs.

Pleas in law and main arguments

The applicant challenges Commission Decision C(2007) 4257 final of 19 September 2007 in Case COMP/E-1/39.168 — Haberdashery: fasteners. In the contested decision, a fine was imposed on the applicant and other undertakings for infringement of Article 81 EC. In the Commission's view, the applicant participated in the coordination of price increases, together with the exchange of confidential information as to prices and the implementation of price increases on the markets for ‘other fasteners’ and application machines.

The applicant relies on four pleas in law in support of its claim.

It submits, first, that the contested decision infringes its right to a fair hearing, since it had no opportunity to comment on a series of meetings held in relation to the so-called ‘Basle group’ and the ‘Wuppertal group’, on which the Commission based its allegations relating to the coordination of price increases and the exchange of confidential information as to prices and the implementation of price increases.

Secondly, it claims that the alleged infringements of the law relating to cartels have ceased, since the applicant ended its participation in the ‘Basle group’ and the ‘Wuppertal group’ as early as the beginning of 1997.

The applicant also maintains that there was no infringement of Article 81 EC, since the Commission has failed to adduce the requisite proof of the applicant's participation in any arrangements.

Lastly, the applicant claims that the calculation of the fine is factually incorrect. In that regard, it alleges in particular that the findings of the defendant, both as to the length of the purported infringement by the applicant, and as to the seriousness of the infringement, are incorrect and that the amount of the fine is disproportionate.

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| 9.2.2008 | EN | Official Journal of the European Union | C 37/30 |
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9.2.2008

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C 37/30

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Action brought on 7 December 2007 — Royal Appliance International v OHIM — BSH Bosch und Siemens Hausgeräte (Centrixx)

(Case T-446/07)

(2008/C 37/47)

Language in which the application was lodged: German

Parties

Applicant: Royal Appliance International GmbH (Hilden, Germany) (represented by: K.-J. Michaeli and M. Schork, 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: BSH Bosch und Siemens Hausgeräte GmbH (Munich, Germany)

Form of order sought

| — | To annul the decision of the Fourth Board of Appeal of OHIM of 3 October 2007 in Case R 572/2006-4; |
| --- | --- |

—

To annul the decision of the Fourth Board of Appeal of OHIM of 3 October 2007 in Case R 572/2006-4;

| — | To order the defendant to pay the applicant's costs and those of the proceedings. |
| --- | --- |

—

To order the defendant to pay the applicant's costs and those of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant.

Community trade mark concerned: the word mark ‘Centrixx’ for goods in Class 7 (application No 3 016 227).

Proprietor of the mark or sign cited in the opposition proceedings: BSH Bosch und Siemens Hausgeräte GmbH.

Mark or sign cited in opposition: the German word mark ‘sensixx’ for goods in Class 7 (No 30 244 090).

Decision of the Opposition Division: rejection of the opposition.

Decision of the Board of Appeal: annulment of the decision of the Opposition Division and refusal of the application for registration of the mark.

Pleas in law: infringement of Article 8(1)(b) of Regulation (EC) No 40/94 (1), since the Board of Appeal incorrectly applied the principles of Community case-law concerning the likelihood of confusion.

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

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| 9.2.2008 | EN | Official Journal of the European Union | C 37/31 |
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Action brought on 5 December 2007 — Scovill Fasteners v Commission

(Case T-447/07)

(2008/C 37/48)

Language of the case: English

Parties

Applicant: Scovill Fasteners, Inc. (Clarkesville, United States) (represented by: O. Dugardyn, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul the Commission's decision of 19 September 2007 relating to a proceeding under Article 81 of the EC Treaty (Case COMP/E-1/39.168 — PO/Hard Haberdashery: Fasteners); |
| --- | --- |

—

Annul the Commission's decision of 19 September 2007 relating to a proceeding under Article 81 of the EC Treaty (Case COMP/E-1/39.168 — PO/Hard Haberdashery: Fasteners);

| — | in the alternative, annul or reduce the fine imposed on the applicant; |
| --- | --- |

—

in the alternative, annul or reduce the fine imposed on the applicant;

| — | order the Commission to bear its own costs and those incurred by the applicant. |
| --- | --- |

—

order the Commission to bear its own costs and those incurred by the applicant.

Pleas in law and main arguments

The applicant seeks the annulment of Commission Decision C(2007) 4257 final of 19 September 2007 in Case COMP/E-1/39.168 — PO/Hard Haberdashery: Fasteners, by which the Commission found that the applicant's subsidiary, together with other undertakings, had infringed Article 81 EC by agreeing on coordinated price increases and exchanging confidential information on prices and the implementation of price increases.

In support of its application, the applicant contends that the Commission erroneously considered that the applicant forms a single economic entity with its subsidiary and that the applicant should not be held jointly and severally liable for the payment of the fine imposed on its subsidiary for the subsidiary's alleged infringements.

Furthermore, the applicant submits that the Commission failed to prove to the requisite standard that the applicant's subsidiary participated in the cartel after 1997.

In the alternative, the applicant submits that the Commission:

| — | committed manifest errors when calculating the fine, |
| --- | --- |

—

committed manifest errors when calculating the fine,

| — | did not take all relevant circumstances into account when assessing the duration and the gravity of the infringements; and |
| --- | --- |

—

did not take all relevant circumstances into account when assessing the duration and the gravity of the infringements; and

| — | omitted to assess the attenuating circumstances, such as the minor role played by the applicant's subsidiary. |
| --- | --- |

—

omitted to assess the attenuating circumstances, such as the minor role played by the applicant's subsidiary.

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| 9.2.2008 | EN | Official Journal of the European Union | C 37/31 |
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Action brought on 3 December 2007 — Rotter v OHIM (EU-BRUZZEL)

(Case T-449/07)

(2008/C 37/49)

Language in which the application was lodged: German

Parties

Applicant: Thomas Rotter (Munich, Germany) (represented by M. Müller, lawyer)

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

Form of order sought

| — | To annul the decision of the Fourth Board of Appeal of OHIM of 27 September 2007 in Case R 1415/2006-4; |
| --- | --- |

—

To annul the decision of the Fourth Board of Appeal of OHIM of 27 September 2007 in Case R 1415/2006-4;

| — | To order OHIM to pay the costs of the proceedings including those incurred during the appeal proceedings. |
| --- | --- |

—

To order OHIM to pay the costs of the proceedings including those incurred during the appeal proceedings.

Pleas in law and main arguments

Community trade mark concerned: the three-dimensional mark ‘EU-BRUZZEL’ for goods and services in Classes 29, 30 and 43 (application No 4 346 185).

Decision of the Examiner: rejection in part of the application.

Decision of the Board of Appeal: dismissal of the appeal.

Pleas in law: infringement of Article 7(1)(b) of Regulation (EC) No 40/94 (1), since the mark applied for is distinctive in relation to the contested charcuterie goods.

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

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| 9.2.2008 | EN | Official Journal of the European Union | C 37/32 |
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Action brought on 3 December 2007 — Harwin International v OHIM — Cuadrado (Pickwick)

(Case T-450/07)

(2008/C 37/50)

Language in which the application was lodged: English

Parties

Applicant: Harwin International LLC (Albany, United States) (represented by: D. Przedborski, lawyer)

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

Other party to the proceedings before the Board of Appeal: Cuadrado SA (Paterna, Spain)

Form of order sought

| — | Annulment of the decision of the OHIM's Second Board of Appeal in Case R 1245/2006-2, rendered on 10 September 2007; |
| --- | --- |

—

Annulment of the decision of the OHIM's Second Board of Appeal in Case R 1245/2006-2, rendered on 10 September 2007;

| — | order the defendant and Cuadrado SA to bear their own costs and to reimburse the costs incurred by the applicant. |
| --- | --- |

—

order the defendant and Cuadrado SA to bear their own costs and to reimburse the costs incurred by the applicant.

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: The figurative trade mark containing the word components ‘PICKWICK COLOUR GROUP’ for goods and services in Class 25 — application No 826669

Proprietor of the Community trade mark: Harwin International LLC

Party requesting the declaration of invalidity of the Community trade mark: Cuadrado SA

Trade mark right of the party requesting the declaration of invalidity: The earlier national word mark ‘PICK OUIC, CUADRADO SA, VALENCIA’ and the figurative trade mark containing the word elements ‘Pick Ouic’ for goods in class 25

Decision of the Cancellation Division: Declared the mark applied for invalid in its entirety

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 8(1)(b) and 56(2) and (3) of Council Regulation (EC) No 40/94.

The applicant claims that the Board's finding as to the non-examination by the Cancellation Division of the evidence submitted by Cuadrado is inconsistent and contrary to law. Furthermore, the applicant submits that there is no likelihood of confusion between the trademarks concerned.

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Action brought on 10 December 2007 — WellBiz v OHIM — Wild (WELLBIZ)

(Case T-451/07)

(2008/C 37/51)

Language in which the application was lodged: German

Parties

Applicant: WellBiz Verein, WellBiz Association (Eschen, Liechtenstein) (represented by: M. Schnetzer)

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

Other party to the proceedings before the Board of Appeal: Rudolf Wild GmbH & Co. KG (Eppelhein, Germany)

Form of order sought

| — | To annul the decision of the First Board of Appeal of 2 October 2007 in Case R 1575/2006-1; |
| --- | --- |

—

To annul the decision of the First Board of Appeal of 2 October 2007 in Case R 1575/2006-1;

| — | To reject Opposition No B 809 394 of the opponent of 9 March 2005; |
| --- | --- |

—

To reject Opposition No B 809 394 of the opponent of 9 March 2005;

| — | To order OHIM and the opponent to pay the costs of the present case and also those incurred in the opposition and appeal proceedings before OHIM. |
| --- | --- |

—

To order OHIM and the opponent to pay the costs of the present case and also those incurred in the opposition and appeal proceedings before OHIM.

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant.

Community trade mark concerned: the word mark ‘WELLBIZ’ in respect of services in Classes 35 and 41 (application No 3 844 479).

Proprietor of the mark or sign cited in the opposition proceedings: Rudolf Wild GmbH & Co. KG.

Mark or sign cited in opposition: the word mark ‘WILD.BIZ’ for services in Classes 38, 41 and 42 (Community trade mark No 2 225 175), the opposition being based on some of the services in Class 41.

Decision of the Opposition Division: Opposition upheld in relation to all the contested services in Class 41.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law: Breach of Article 8(1)(b) of Regulation (EC) No 40/94 (1), since the marks in question differ phonetically, figuratively and conceptually, and the mark cited in opposition does not enjoy a particularly high degree of recognition and does not therefore possess a high level of distinctiveness.

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

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| 9.2.2008 | EN | Official Journal of the European Union | C 37/33 |
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Action brought on 11 December 2007 — Dylog Italia/OHIM — GSI Office Management (IP Manager)

(Case T-453/07)

(2008/C 37/52)

Language in which the application was lodged: English

Parties

Applicant: Dylog Italia SpA (Turin, Italy) (represented by: A. Ruo, lawyer)

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

Other party to the proceedings before the Board of Appeal: GSI Office Management GmbH (Planegg, Germany)

Form of order sought

| — | Annulment of the decision of 27 September 2007, of the First Board of Appeal R982/2005-4, in so far as the Board established that there was no likelihood of confusion in respect of all the services for which registration is sought in classes 35, 38 and the services in class 42 which were found similar to the goods covered by the earlier Italian mark; and subsidiarily |
| --- | --- |

—

Annulment of the decision of 27 September 2007, of the First Board of Appeal R982/2005-4, in so far as the Board established that there was no likelihood of confusion in respect of all the services for which registration is sought in classes 35, 38 and the services in class 42 which were found similar to the goods covered by the earlier Italian mark; and subsidiarily

| — | annulment of the contested decision in so far as the Board established that there was no likelihood of confusion in respect of all the services in class 38 and the services in class 42 which were found similar to the goods covered by the earlier Italian mark; |
| --- | --- |

—

annulment of the contested decision in so far as the Board established that there was no likelihood of confusion in respect of all the services in class 38 and the services in class 42 which were found similar to the goods covered by the earlier Italian mark;

| — | the Office for the Harmonisation in the Internal market (OHIM) be ordered to pay the applicant's costs in accordance with Article 87(2) of the rules of procedure of the Court of First Instance. |
| --- | --- |

—

the Office for the Harmonisation in the Internal market (OHIM) be ordered to pay the applicant's costs in accordance with Article 87(2) of the rules of procedure of the Court of First Instance.

Pleas in law and main arguments

Applicant for the Community trade mark: GSI Office Management GmbH

Community trade mark concerned: The Community word mark ‘IP MANAGER’ for services in classes 35, 36, 38, 41 and 42 — application No 2 177 277

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

Mark or sign cited: The earlier national and international word marks ‘MANAGER’ for goods in classes 9, 16, 35, 37, 39, 41 and 42 and the national word mark ‘HOTEL MANAGER’ for goods and services in classes 9 and 42

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

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8 of Council Regulation (EC) No 40/94.

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Order of the Court of First Instance of 12 December 2007 — Sandoz v Commission

(Case T-105/04) (1)

(2008/C 37/53)

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 106, 30.4.2004.

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Order of the Court of First Instance of 11 December 2007 — UPS Europe and UPS Deutschland v Commission

(Case T-329/07) (1)

(2008/C 37/54)

Language of the case: English

The President of the Court of First Instance (First Chamber) has ordered that the case be removed from the register.

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(1)  OJ C 247, 20.10.2007.

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European Union Civil Service Tribunal

| 9.2.2008 | EN | Official Journal of the European Union | C 37/34 |
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Judgment of the Civil Service Tribunal of 7 November 2007 — Jacques Hinderyckx v Council

(Case F-57/06) (1)

(Officials - Promotion - 2005 Promotion Exercise - Non-inclusion in list of promoted officials - Infringement of Article 45 of the Staff Regulations - Consideration of comparative merits - Staff reports from different institutions)

(2008/C 37/55)

Language of the case: French

Parties

Applicant: Jacques Hinderyckx (Brussels, Belgium) (represented by: J.Martin, lawyer)

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

Re:

Annulment of the decision not to promote the applicant to Grade B*8 in the 2005 promotion exercise, and application for compensation

Operative part of the judgment

The Tribunal:

| 1. | dismisses the action; |
| --- | --- |

1.

dismisses the action;

| 2. | orders the Council of the European Union, in addition to its own costs, to bear one third of the costs of Mr Hinderyckx |
| --- | --- |

2.

orders the Council of the European Union, in addition to its own costs, to bear one third of the costs of Mr Hinderyckx

| 3. | orders Mr Hinderyckx to bear two thirds of his costs. |
| --- | --- |

3.

orders Mr Hinderyckx to bear two thirds of his costs.

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(1)  OJ C 178 of 29.7.2006, p. 34.

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Action brought on 29 August 2007 — Dominguez Gonzalez v Commission

(Case F-88/07)

(2008/C 37/56)

Language of the case: Spanish

Parties

Applicant: Juan Luís Domínguez González (Girona, Spain) (represented by: R. Nicolazzi Angelats, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | order the defendant to pay the applicant EUR 20 310,68 for damages, not including material and personal damages, and the costs of the application; |
| --- | --- |

—

order the defendant to pay the applicant EUR 20 310,68 for damages, not including material and personal damages, and the costs of the application;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

This application seeks compensation for damages, which, according to the applicant, arise from the Commission's decision of 20 July 1999 to terminate his contract with the Humanitarian Aid Department of the European Community (ECHO) that he signed on 1 July 1999 after passing the medical examination provided for in the contract.

In support of his application the applicant claims principally that:

| — | the contract was terminated on the basis of an examination of his medical problems which was conducted without using up to date information and therefore without taking account of his current state of health; |
| --- | --- |

—

the contract was terminated on the basis of an examination of his medical problems which was conducted without using up to date information and therefore without taking account of his current state of health;

| — | he did not receive any answer to the series of letters sent to the responsible persons at ECHO in order to rectify the earlier error. |
| --- | --- |

—

he did not receive any answer to the series of letters sent to the responsible persons at ECHO in order to rectify the earlier error.

| — | the Commission breached the terms of the contract stipulating that it could enter into force only when the employee's state of health had been positively evaluated. |
| --- | --- |

—

the Commission breached the terms of the contract stipulating that it could enter into force only when the employee's state of health had been positively evaluated.

| — | the Commission infringed his rights of defence. |
| --- | --- |

—

the Commission infringed his rights of defence.

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| 9.2.2008 | EN | Official Journal of the European Union | C 37/35 |
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Action brought on 30 October 2007 — Daniela Smadja v Commission

(Case F-135/07)

(2008/C 37/57)

Language of the case: French

Parties

Applicant: Daniela Smadja (New Delhi, India) (represented by: E. Boigelot, lawyer)

Defendant: Commission of the European Communities

Re

Annulment of the decision of the Commission on the appointment of the applicant, an official initially graded A*15, step 4, in that it fixes her grade at Grade A*15, step 1, following her re-appointment to the post of Director of Directorate B of RELEX, after the annulment of her first appointment. Application for compensation for material and non-material damage

Form of order sought

| — | annul the appointment of the applicant of 21 December 2006, in that it grades her as Director at Grade A*15, step 1, and fixes her length of service in that step as from 1 November 2005, following her re-appointment on 15 November 2005 to the post of Director of Directorate B (Multilateral relations and human rights) of RELEX, a re-appointment which followed annulment of her first appointment to the same post in Case T-218/02 Napoli Buzzanca v Commission; |
| --- | --- |

—

annul the appointment of the applicant of 21 December 2006, in that it grades her as Director at Grade A*15, step 1, and fixes her length of service in that step as from 1 November 2005, following her re-appointment on 15 November 2005 to the post of Director of Directorate B (Multilateral relations and human rights) of RELEX, a re-appointment which followed annulment of her first appointment to the same post in Case T-218/02 Napoli Buzzanca v Commission;

| — | order the defendant to pay as compensation for material and non-material harm, and damage to the applicant's career, a sum of EUR 25 000; |
| --- | --- |

—

order the defendant to pay as compensation for material and non-material harm, and damage to the applicant's career, a sum of EUR 25 000;

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

—

order the defendant to pay the costs.

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