# Official Journal C 102/2009

| | ISSN 1725-2423
  doi:10.3000/17252423.C_2009.102.eng |
| --- | --- |
| Official Journal
  of the European Union | C 102 |
| | |
| English edition | Information and Notices | Volume 521 May 2009 |

ISSN 1725-2423

doi:10.3000/17252423.C_2009.102.eng

Official Journal

of the European Union

C 102

English edition

Information and Notices

Volume 521 May 2009

---

| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES |
| | Court of Justice |
| 2009/C 102/01 | Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 90, 18.4.2009 | 1 |

Notice No

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Court of Justice

2009/C 102/01

Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 90, 18.4.2009

Official Journal of the European Union

1

| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2009/C 102/02 | Case C-205/06: Judgment of the Court (Grand Chamber) of 3 March 2009 — Commission of the European Communities v Republic of Austria (Failure of a Member State to fulfil obligations — Infringement of the second paragraph of Article 307 EC — Failure to adopt appropriate measures to eliminate the incompatibilities with the EC Treaty of the bilateral agreements entered into with third countries prior to accession of the Member State to the European Union — Investment agreements entered into by the Republic of Austria with the Republic of Korea, the Republic of Cape Verde, the People’s Republic of China, Malaysia, the Russian Federation and the Republic of Turkey) | 2 |
| 2009/C 102/03 | Case C-249/06: Judgment of the Court (Grand Chamber) of 3 March 2009 — Commission of the European Communities v Kingdom of Sweden (Failure of a Member State to fulfil obligations — Infringement of the second paragraph of Article 307 EC — Failure to adopt appropriate measures to eliminate the incompatibilities with the EC Treaty of the bilateral agreements entered into with third countries prior to accession of the Member State to the European Union — Investment agreements entered into by the Kingdom of Sweden with the Argentine Republic, the Republic of Bolivia, the Republic of Côte d’Ivoire, the Arab Republic of Egypt, Hong Kong, the Republic of Indonesia, the People’s Republic of China, the Republic of Madagascar, Malaysia, the Islamic Republic of Pakistan, the Republic of Peru, the Republic of Senegal, the Democratic Socialist Republic of Sri Lanka, the Republic of Tunisia, the Socialist Republic of Vietnam, the Republic of Yemen and the former Socialist Federal Republic of Yugoslavia) | 2 |
| 2009/C 102/04 | Case C-88/07: Judgment of the Court (First Chamber) of 5 March 2009 — Commission of the European Communities v Kingdom of Spain (Articles 28 EC and 30 EC — Free movement of goods — Directive 2001/83/EC — Products based on medicinal herbs — Products classified as medicinal products — Products lawfully produced or marketed as food supplements or dietary products in other Member States — Meaning of medicinal product — Marketing authorisation — Restriction — Justification — Public health — Consumer protection — Proportionality — Decision No 3052/95/EC — Procedure for the exchange of information on national measures derogating from the principle of the free movement of goods within the Community) | 3 |
| 2009/C 102/05 | Case C-222/07: Judgment of the Court (Second Chamber) of 5 March 2009 (reference for a preliminary ruling from the Tribunal Supremo (Spain)) — Unión de Televisiones Comerciales Asociadas (UTECA) v Administración General del Estado (Reference for a preliminary ruling — Article 12 EC — Prohibition of discrimination on grounds of nationality — Articles 39 EC, 43 EC, 49 EC and 56 EC — Fundamental freedoms guaranteed by the EC Treaty — Article 87 EC — State aid — Directive 89/552/EEC — Pursuit of television broadcasting activities — Obligation for television operators to earmark a percentage of their operating revenue for the pre-funding of European cinematographic films and films made for television, 60% of that funding being reserved to the production of works of which the original language is one of the official languages of the Kingdom of Spain and of which the majority is produced by the Spanish film industry) | 4 |
| 2009/C 102/06 | Case C-302/07: Judgment of the Court (Fourth Chamber) of 5 March 2009 (reference for a preliminary ruling from the VAT and Duties Tribunal, London (United Kingdom)) — J D Wetherspoon plc v The Commissioners for Her Majesty’s Revenue and Customs (First and Sixth VAT Directives — Principles of fiscal neutrality and proportionality — Rules on rounding of amounts of VAT — Methods and levels of rounding) | 5 |
| 2009/C 102/07 | Case C-350/07: Judgment of the Court (Third Chamber) of 5 March 2009 (reference for a preliminary ruling from the Sächsisches Landessozialgericht (Germany)) — Kattner Stahlbau GmbH v Maschinenbau- und Metall- Berufsgenossenschaft (Competition — Articles 81 EC, 82 EC and 86 EC — Compulsory affiliation to a body providing insurance against accidents at work and occupational diseases — Concept of an undertaking — Abuse of dominant position — Freedom to provide services — Articles 49 EC and 50 EC — Restriction — Justification — Risk of serious harm to the financial equilibrium of the social security scheme) | 5 |
| 2009/C 102/08 | Case C-388/07: Judgment of the Court (Third Chamber) of 5 March 2009 (reference for a preliminary ruling from the High Court of Justice of England and Wales, Queen’s Bench Division (Administrative Court) (United Kingdom)) — The Queen, The Incorporated Trustees of the National Council on Ageing (Age Concern England) v Secretary of State for Business, Enterprise and Regulatory Reform (Directive 2000/78 — Equal treatment in employment and occupation — Age discrimination — Dismissal by reason of retirement — Justification) | 6 |
| 2009/C 102/09 | Case C-479/07: Judgment of the Court (Third Chamber) of 5 March 2009 — French Republic v Council of the European Union (Action for annulment — Regulation (EC) No 809/2007 — Definition of the concept of drift nets — Thonaille — Duty to state reasons — Infringement of the principles of proportionality and non-discrimination) | 7 |
| 2009/C 102/10 | Case C-545/07: Judgment of the Court (Fourth Chamber) of 5 March 2009 (reference for a preliminary ruling from the Sofiyski gradski sad (Bulgaria)) — Apis-Hristovich EOOD v Lakorda AD (Directive 96/9/EC — Legal protection of databases — Sui generis right — Obtaining, verification or presentation of the contents of a database — Extraction — Substantial part of the contents of a database — Database containing official legal data) | 7 |
| 2009/C 102/11 | Case C-556/07: Judgment of the Court (Third Chamber) of 5 March 2009 — Commission of the European Communities v French Republic (Failure of a Member State to fulfil its obligations — Common Fisheries Policy — Regulation (EC) No 894/97 — Drift net — Definition — Thonaille fishing net — Prohibition for the fishing of certain species — Regulations (EEC) No 2847/93 and (EC) No 2371/2002 — Lack of an effective system of monitoring to ensure respect of that prohibition) | 8 |
| 2009/C 102/12 | Case C-507/08: Action brought on 21 November 2008 — Commission of the European Communities v Slovak Republic | 9 |
| 2009/C 102/13 | Case C-14/09: Reference for a preliminary ruling from the Verwaltungsgericht Berlin (Germany) lodged on 12 January 2009 — Hava Genc v Land Berlin | 10 |
| 2009/C 102/14 | Case C-45/09: Reference for a preliminary ruling from the Arbeitsgericht Hamburg (Germany) lodged on 2 February 2009 — Gisela Rosenbladt v Oellerking Gebäudereinigungsgesellschaft mbH | 10 |
| 2009/C 102/15 | Case C-49/09: Action brought on 2 February 2009 — Commission of the European Communities v Republic of Poland | 11 |
| 2009/C 102/16 | Case C-63/09: Reference for a preliminary ruling from the Juzgado de lo Mercantil 4, Barcelona (Spain) lodged on 13 February 2009 — Axel Walz v Clickair SA | 11 |
| 2009/C 102/17 | Case C-70/09: Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 17 February 2009 — Alexander Hengartner and Rudolf Gasser | 12 |
| 2009/C 102/18 | Case C-72/09: Reference for a preliminary ruling from the Cour de Cassation (France) lodged on 18 February 2009 — Ėtablissements Rimbaud SA v Directeur général des impôts, Directeur des services fiscaux d’Aix-en-Provence | 12 |
| 2009/C 102/19 | Case C-74/09: Reference for a preliminary ruling from the Cour de cassation (Belgium) lodged on 18 February 2009 — Bâtiments et Ponts Construction SA, Thyssenkrupp Industrieservice v Berlaymont 2000 SA | 12 |
| 2009/C 102/20 | Case C-75/09: Reference for a preliminary ruling from the Commissione Tributaria Provinciale di Alessandria (Italy) lodged on 20 February 2009 — Agra Srl v Agenzia Dogane Ufficio delle Dogane di Alessandria | 13 |
| 2009/C 102/21 | Case C-77/09: Reference for a preliminary ruling from the Tribunale Amministrativo Regionale del Lazio (Italy) lodged on 20 February 2009 — Gowan Comercio Internacional e Servicos Limitada v Ministero della Salute | 13 |
| 2009/C 102/22 | Case C-78/09 P: Appeal brought on 24 February 2009 by Compagnie des bateaux mouches SA against the judgment delivered on 10 December 2008 in Case T-365/06 Bateaux mouches v OHIM | 13 |
| 2009/C 102/23 | Case C-81/09: Reference for a preliminary ruling from the Simvoulio tis Epikratias (Greece), lodged on 25 February 2009 — Idrima Tipou A.E. v Ipourgos Tipou Kai Meson Mazikis Enimerosis | 14 |
| 2009/C 102/24 | Case C-82/09: Reference for a preliminary ruling from the Simvoulio tis Epikratias (Greece) lodged on 25 February 2009 — Municipality of Agios Nikolaos (Crete) v Minister for Rural Development and Food | 14 |
| 2009/C 102/25 | Case C-83/09 P: Appeal brought on 25 February 2009 by the Commission of the European Communities against the judgment delivered by the Court of First Instance (Seventh Chamber) on 10 December 2008 in Case T-388/02 Kronoply GmbH & Co. KG and Kronotex GmbH & Co. KG v Commission of the European Communities, supported by Zellstoff Stendal GmbH, Federal Republic of Germany and Land Sachsen-Anhalt | 15 |
| 2009/C 102/26 | Case C-85/09 P: Appeal brought on 27 February 2009 by Portela — Comércio de artigos ortopédicos e hospitalares, Lda against the order made by the Court of First Instance on 17 December 2008 in Case T-137/07 Portela — Comércio de artigos ortopédicos e hospitalares, Lda v Commission of the European Communities | 16 |
| 2009/C 102/27 | Case C-86/09: Reference for a preliminary ruling from VAT and Duties Tribunal, Manchester (United Kingdom) made on 27 February 2009 — Future Health Technologies Ltd v Her Majesty's Commissioners of Revenue and Customs | 16 |
| | Court of First Instance |
| 2009/C 102/28 | Case T-156/08 P: Judgment of the Court of First Instance of 16 March 2009 — R v Commission (Appeal — Staff case — Probationary officials — Probation report — No act adversely affecting the applicant — Time-limit for initiating proceedings — Lateness) | 18 |
| 2009/C 102/29 | Case T-47/09: Action brought on 9 February 2009 — Deutsche Behindertenhilfe — Aktion Mensch v OHIM | 18 |
| 2009/C 102/30 | Case T-55/09: Action brought on 13 February 2009 — Swarovski v OHIM — Swarovski (Daniel Swarovski Privat) | 18 |
| 2009/C 102/31 | Case T-57/09: Action brought on 9 February 2009 — Alfastar Benelux v Conseil | 19 |
| 2009/C 102/32 | Case T-60/09: Action brought on 16 February 2009 — Herhof v OHIM — Stabilator (stabilator) | 20 |
| 2009/C 102/33 | Case T-61/09: Action brought on 16 February 2009 — Meica v OHIM — Bösinger Fleischwaren (Schinken King) | 21 |
| 2009/C 102/34 | Case T-62/09: Action brought on 13 February 2009 — Rintisch v OHIM — Bariatrix Europe (PROTI SNACK) | 21 |
| 2009/C 102/35 | Case T-63/09: Action brought on 17 February 2009 — Volkswagen AG v OHIM | 22 |
| 2009/C 102/36 | Case T-64/09: Action brought on 16 February 2009 — Micro Shaping Ltd v OHIM (>packaging) | 23 |
| 2009/C 102/37 | Case T-65/09 P: Appeal brought on 14 February 2009 by Enzo Reali against the Judgment of the European Union Civil Service Tribunal made on 11 December 2008 in case F-136/06, Reali/Commission | 23 |
| 2009/C 102/38 | Case T-72/09: Action brought on 18 February 2009 — Pilkington Group e.a. v Commission | 24 |
| 2009/C 102/39 | Case T-73/09: Action brought on 18 February 2009 — Compagnie de Saint-Gobain v Commission | 25 |
| 2009/C 102/40 | Case T-74/09: Action brought on 18 February 2009 — France v Commission | 26 |
| 2009/C 102/41 | Case T-76/09: Action brought on 16 February 2009 — Mundipharma v OHIM — Asociación Farmaceuticos Mundi (FARMA MUNDI FARMACEUTICOS MUNDI) | 27 |
| 2009/C 102/42 | Case T-78/09 P: Appeal brought on 25 February 2009 by the European Parliament against the judgment of the Civil Service Tribunal delivered on 11 December 2008 in Case F-148/06, Collée v Parliament | 28 |
| 2009/C 102/43 | Case T-80/09 P: Appeal brought on 23 February 2009 by the Commission of the European Communities against the judgment of the Civil Service Tribunal delivered on 9 December 2008 in Case F-52/05, Q v Commission | 28 |
| 2009/C 102/44 | Case T-82/09: Action brought on 20 February 2009 — Dennekamp v Parlement | 29 |
| 2009/C 102/45 | Case T-88/09: Action brought on 27 February 2009 — Idromacchine and Others v Commission | 30 |
| 2009/C 102/46 | Case T-90/09: Action brought on 27 February 2009 — Mojo Concerts and Amsterdam Music Dome Explotatie v Commission of the European Communities | 31 |
| 2009/C 102/47 | Case T-91/09 P: Appeal brought on 2 March 2009 by Carina Skareby against the judgment of the Civil Service Tribunal delivered on 15 December 2008 in Case F-34/07, Skareby v Commission | 32 |
| 2009/C 102/48 | Case T-95/09: Action brought on 26 February 2009 — United Phosphorus v Commission | 32 |
| 2009/C 102/49 | Case T-98/09: Action brought on 11 March 2009 — Tubesca v OHIM — Tubos del Mediterráneo (T TUMESA TUBOS DEL MEDITERRANEO S.A.) | 33 |
| 2009/C 102/50 | Case T-99/09: Action brought on 4 March 2009 — Italy v Commission | 34 |
| | European Union Civil Service Tribunal |
| 2009/C 102/51 | Case F-104/06: Judgment of the Civil Service Tribunal (Second Chamber) of 12 March 2009 — Arpaillange and Others v Commission (Staff cases — Contract staff — Recruitment — Classification — Former individual experts — Diplomas — Professional experience — Plea of illegality) | 36 |
| 2009/C 102/52 | Case F-24/07: Judgment of the Civil Service Tribunal (Second Chamber) of 12 March 2009 — Lafleur Tighe v Commission (Staff cases — Contract staff — Recruitment — Classification in grade — Former individual experts — Professional experience — Degrees — Certificate of equivalence — Admissibility — New and substantial fact) | 36 |
| 2009/C 102/53 | Case F-63/07: Judgment of the Civil Service Tribunal (Second Chamber) of 3 March 2009 — Patsarika v Cedefop (Staff cases — Contract staff — Reassignment — Rights of the defence — Dismissal at the end of the probationary period — Default procedure) | 37 |
| 2009/C 102/54 | Case F-98/07: Judgment of the Civil Service Tribunal (Second Chamber) of 29 January 2009 — Petrilli v Commission (Staff cases — Auxiliary contract staff — Admissibility — Act causing adverse effect — Article 3c and Article 88 of the Conditions of employment of other servants — Duration of the contract — Article 3(1) of the Commission Decision of 28 April 2004 on the maximum duration for the recourse to non-permanent staff in the Commission services — Legality) | 37 |
| 2009/C 102/55 | Case F-100/07: Judgment of the Civil Service Tribunal (First Chamber) of 10 March 2009 — Tsirimiagos v Committee of the Regions (Staff case — Officials — Remuneration — Transfer of part of the emoluments outside the country of employment — Article 17(2)(b) of Annex VII to the old Staff Regulations — Building savings account — Recovery of amounts wrongly paid — Conditions — Irregularity of the transfers — Obvious nature of the irregularity) | 38 |
| 2009/C 102/56 | Case F-106/07: Judgment of the Civil Service Tribunal (First Chamber) of 10 March 2009 — Giaprakis v Committee of the Regions (Staff case — Officials — Remuneration — Transfer of part of the emoluments outside the country of employment — Article 17(2)(b) of Annex VII to the old Staff Regulations — Building savings account — Recovery of amounts wrongly paid — Conditions — Irregularity of the transfers — Obvious nature of the irregularity) | 38 |
| 2009/C 102/57 | Case F-4/08: Judgment of the Civil Service Tribunal (Second Chamber) of 12 March 2009 — Hambura v Parliament (Staff case — Temporary staff — Recruitment — Selection procedure — Non-admission — Recruitment notice PE/95/S — Failure to use the application form in the OJ — Admissibility — Prior administrative procedure) | 39 |
| 2009/C 102/58 | Case F-7/08: Judgment of the Civil Service Tribunal (Third Chamber) of 11 February 2009 — Schönberger v Parliament (Staff case — Officials — Promotion — Consideration of comparative merits — Award of merit points — Principle of equal treatment) | 39 |
| 2009/C 102/59 | Case F-88/07: Order of the Civil Service Tribunal (Third Chamber) of 12 November 2008 — Domínguez González v Commission (Staff case — Technical assistant — Plea of lack of jurisdiction — Plea of inadmissibility — Lack of jurisdiction of the Tribunal) | 40 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2009/C 102/02

Case C-205/06: Judgment of the Court (Grand Chamber) of 3 March 2009 — Commission of the European Communities v Republic of Austria (Failure of a Member State to fulfil obligations — Infringement of the second paragraph of Article 307 EC — Failure to adopt appropriate measures to eliminate the incompatibilities with the EC Treaty of the bilateral agreements entered into with third countries prior to accession of the Member State to the European Union — Investment agreements entered into by the Republic of Austria with the Republic of Korea, the Republic of Cape Verde, the People’s Republic of China, Malaysia, the Russian Federation and the Republic of Turkey)

2

2009/C 102/03

Case C-249/06: Judgment of the Court (Grand Chamber) of 3 March 2009 — Commission of the European Communities v Kingdom of Sweden (Failure of a Member State to fulfil obligations — Infringement of the second paragraph of Article 307 EC — Failure to adopt appropriate measures to eliminate the incompatibilities with the EC Treaty of the bilateral agreements entered into with third countries prior to accession of the Member State to the European Union — Investment agreements entered into by the Kingdom of Sweden with the Argentine Republic, the Republic of Bolivia, the Republic of Côte d’Ivoire, the Arab Republic of Egypt, Hong Kong, the Republic of Indonesia, the People’s Republic of China, the Republic of Madagascar, Malaysia, the Islamic Republic of Pakistan, the Republic of Peru, the Republic of Senegal, the Democratic Socialist Republic of Sri Lanka, the Republic of Tunisia, the Socialist Republic of Vietnam, the Republic of Yemen and the former Socialist Federal Republic of Yugoslavia)

2

2009/C 102/04

Case C-88/07: Judgment of the Court (First Chamber) of 5 March 2009 — Commission of the European Communities v Kingdom of Spain (Articles 28 EC and 30 EC — Free movement of goods — Directive 2001/83/EC — Products based on medicinal herbs — Products classified as medicinal products — Products lawfully produced or marketed as food supplements or dietary products in other Member States — Meaning of medicinal product — Marketing authorisation — Restriction — Justification — Public health — Consumer protection — Proportionality — Decision No 3052/95/EC — Procedure for the exchange of information on national measures derogating from the principle of the free movement of goods within the Community)

3

2009/C 102/05

Case C-222/07: Judgment of the Court (Second Chamber) of 5 March 2009 (reference for a preliminary ruling from the Tribunal Supremo (Spain)) — Unión de Televisiones Comerciales Asociadas (UTECA) v Administración General del Estado (Reference for a preliminary ruling — Article 12 EC — Prohibition of discrimination on grounds of nationality — Articles 39 EC, 43 EC, 49 EC and 56 EC — Fundamental freedoms guaranteed by the EC Treaty — Article 87 EC — State aid — Directive 89/552/EEC — Pursuit of television broadcasting activities — Obligation for television operators to earmark a percentage of their operating revenue for the pre-funding of European cinematographic films and films made for television, 60% of that funding being reserved to the production of works of which the original language is one of the official languages of the Kingdom of Spain and of which the majority is produced by the Spanish film industry)

4

2009/C 102/06

Case C-302/07: Judgment of the Court (Fourth Chamber) of 5 March 2009 (reference for a preliminary ruling from the VAT and Duties Tribunal, London (United Kingdom)) — J D Wetherspoon plc v The Commissioners for Her Majesty’s Revenue and Customs (First and Sixth VAT Directives — Principles of fiscal neutrality and proportionality — Rules on rounding of amounts of VAT — Methods and levels of rounding)

5

2009/C 102/07

Case C-350/07: Judgment of the Court (Third Chamber) of 5 March 2009 (reference for a preliminary ruling from the Sächsisches Landessozialgericht (Germany)) — Kattner Stahlbau GmbH v Maschinenbau- und Metall- Berufsgenossenschaft (Competition — Articles 81 EC, 82 EC and 86 EC — Compulsory affiliation to a body providing insurance against accidents at work and occupational diseases — Concept of an undertaking — Abuse of dominant position — Freedom to provide services — Articles 49 EC and 50 EC — Restriction — Justification — Risk of serious harm to the financial equilibrium of the social security scheme)

5

2009/C 102/08

Case C-388/07: Judgment of the Court (Third Chamber) of 5 March 2009 (reference for a preliminary ruling from the High Court of Justice of England and Wales, Queen’s Bench Division (Administrative Court) (United Kingdom)) — The Queen, The Incorporated Trustees of the National Council on Ageing (Age Concern England) v Secretary of State for Business, Enterprise and Regulatory Reform (Directive 2000/78 — Equal treatment in employment and occupation — Age discrimination — Dismissal by reason of retirement — Justification)

6

2009/C 102/09

Case C-479/07: Judgment of the Court (Third Chamber) of 5 March 2009 — French Republic v Council of the European Union (Action for annulment — Regulation (EC) No 809/2007 — Definition of the concept of drift nets — Thonaille — Duty to state reasons — Infringement of the principles of proportionality and non-discrimination)

7

2009/C 102/10

Case C-545/07: Judgment of the Court (Fourth Chamber) of 5 March 2009 (reference for a preliminary ruling from the Sofiyski gradski sad (Bulgaria)) — Apis-Hristovich EOOD v Lakorda AD (Directive 96/9/EC — Legal protection of databases — Sui generis right — Obtaining, verification or presentation of the contents of a database — Extraction — Substantial part of the contents of a database — Database containing official legal data)

7

2009/C 102/11

Case C-556/07: Judgment of the Court (Third Chamber) of 5 March 2009 — Commission of the European Communities v French Republic (Failure of a Member State to fulfil its obligations — Common Fisheries Policy — Regulation (EC) No 894/97 — Drift net — Definition — Thonaille fishing net — Prohibition for the fishing of certain species — Regulations (EEC) No 2847/93 and (EC) No 2371/2002 — Lack of an effective system of monitoring to ensure respect of that prohibition)

8

2009/C 102/12

Case C-507/08: Action brought on 21 November 2008 — Commission of the European Communities v Slovak Republic

9

2009/C 102/13

Case C-14/09: Reference for a preliminary ruling from the Verwaltungsgericht Berlin (Germany) lodged on 12 January 2009 — Hava Genc v Land Berlin

10

2009/C 102/14

Case C-45/09: Reference for a preliminary ruling from the Arbeitsgericht Hamburg (Germany) lodged on 2 February 2009 — Gisela Rosenbladt v Oellerking Gebäudereinigungsgesellschaft mbH

10

2009/C 102/15

Case C-49/09: Action brought on 2 February 2009 — Commission of the European Communities v Republic of Poland

11

2009/C 102/16

Case C-63/09: Reference for a preliminary ruling from the Juzgado de lo Mercantil 4, Barcelona (Spain) lodged on 13 February 2009 — Axel Walz v Clickair SA

11

2009/C 102/17

Case C-70/09: Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 17 February 2009 — Alexander Hengartner and Rudolf Gasser

12

2009/C 102/18

Case C-72/09: Reference for a preliminary ruling from the Cour de Cassation (France) lodged on 18 February 2009 — Ėtablissements Rimbaud SA v Directeur général des impôts, Directeur des services fiscaux d’Aix-en-Provence

12

2009/C 102/19

Case C-74/09: Reference for a preliminary ruling from the Cour de cassation (Belgium) lodged on 18 February 2009 — Bâtiments et Ponts Construction SA, Thyssenkrupp Industrieservice v Berlaymont 2000 SA

12

2009/C 102/20

Case C-75/09: Reference for a preliminary ruling from the Commissione Tributaria Provinciale di Alessandria (Italy) lodged on 20 February 2009 — Agra Srl v Agenzia Dogane Ufficio delle Dogane di Alessandria

13

2009/C 102/21

Case C-77/09: Reference for a preliminary ruling from the Tribunale Amministrativo Regionale del Lazio (Italy) lodged on 20 February 2009 — Gowan Comercio Internacional e Servicos Limitada v Ministero della Salute

13

2009/C 102/22

Case C-78/09 P: Appeal brought on 24 February 2009 by Compagnie des bateaux mouches SA against the judgment delivered on 10 December 2008 in Case T-365/06 Bateaux mouches v OHIM

13

2009/C 102/23

Case C-81/09: Reference for a preliminary ruling from the Simvoulio tis Epikratias (Greece), lodged on 25 February 2009 — Idrima Tipou A.E. v Ipourgos Tipou Kai Meson Mazikis Enimerosis

14

2009/C 102/24

Case C-82/09: Reference for a preliminary ruling from the Simvoulio tis Epikratias (Greece) lodged on 25 February 2009 — Municipality of Agios Nikolaos (Crete) v Minister for Rural Development and Food

14

2009/C 102/25

Case C-83/09 P: Appeal brought on 25 February 2009 by the Commission of the European Communities against the judgment delivered by the Court of First Instance (Seventh Chamber) on 10 December 2008 in Case T-388/02 Kronoply GmbH & Co. KG and Kronotex GmbH & Co. KG v Commission of the European Communities, supported by Zellstoff Stendal GmbH, Federal Republic of Germany and Land Sachsen-Anhalt

15

2009/C 102/26

Case C-85/09 P: Appeal brought on 27 February 2009 by Portela — Comércio de artigos ortopédicos e hospitalares, Lda against the order made by the Court of First Instance on 17 December 2008 in Case T-137/07 Portela — Comércio de artigos ortopédicos e hospitalares, Lda v Commission of the European Communities

da

da

16

2009/C 102/27

Case C-86/09: Reference for a preliminary ruling from VAT and Duties Tribunal, Manchester (United Kingdom) made on 27 February 2009 — Future Health Technologies Ltd v Her Majesty's Commissioners of Revenue and Customs

16

Court of First Instance

2009/C 102/28

Case T-156/08 P: Judgment of the Court of First Instance of 16 March 2009 — R v Commission (Appeal — Staff case — Probationary officials — Probation report — No act adversely affecting the applicant — Time-limit for initiating proceedings — Lateness)

18

2009/C 102/29

Case T-47/09: Action brought on 9 February 2009 — Deutsche Behindertenhilfe — Aktion Mensch v OHIM

18

2009/C 102/30

Case T-55/09: Action brought on 13 February 2009 — Swarovski v OHIM — Swarovski (Daniel Swarovski Privat)

18

2009/C 102/31

Case T-57/09: Action brought on 9 February 2009 — Alfastar Benelux v Conseil

19

2009/C 102/32

Case T-60/09: Action brought on 16 February 2009 — Herhof v OHIM — Stabilator (stabilator)

20

2009/C 102/33

Case T-61/09: Action brought on 16 February 2009 — Meica v OHIM — Bösinger Fleischwaren (Schinken King)

21

2009/C 102/34

Case T-62/09: Action brought on 13 February 2009 — Rintisch v OHIM — Bariatrix Europe (PROTI SNACK)

21

2009/C 102/35

Case T-63/09: Action brought on 17 February 2009 — Volkswagen AG v OHIM

22

2009/C 102/36

Case T-64/09: Action brought on 16 February 2009 — Micro Shaping Ltd v OHIM (>packaging)

23

2009/C 102/37

Case T-65/09 P: Appeal brought on 14 February 2009 by Enzo Reali against the Judgment of the European Union Civil Service Tribunal made on 11 December 2008 in case F-136/06, Reali/Commission

23

2009/C 102/38

Case T-72/09: Action brought on 18 February 2009 — Pilkington Group e.a. v Commission

24

2009/C 102/39

Case T-73/09: Action brought on 18 February 2009 — Compagnie de Saint-Gobain v Commission

25

2009/C 102/40

Case T-74/09: Action brought on 18 February 2009 — France v Commission

26

2009/C 102/41

Case T-76/09: Action brought on 16 February 2009 — Mundipharma v OHIM — Asociación Farmaceuticos Mundi (FARMA MUNDI FARMACEUTICOS MUNDI)

27

2009/C 102/42

Case T-78/09 P: Appeal brought on 25 February 2009 by the European Parliament against the judgment of the Civil Service Tribunal delivered on 11 December 2008 in Case F-148/06, Collée v Parliament

28

2009/C 102/43

Case T-80/09 P: Appeal brought on 23 February 2009 by the Commission of the European Communities against the judgment of the Civil Service Tribunal delivered on 9 December 2008 in Case F-52/05, Q v Commission

28

2009/C 102/44

Case T-82/09: Action brought on 20 February 2009 — Dennekamp v Parlement

29

2009/C 102/45

Case T-88/09: Action brought on 27 February 2009 — Idromacchine and Others v Commission

30

2009/C 102/46

Case T-90/09: Action brought on 27 February 2009 — Mojo Concerts and Amsterdam Music Dome Explotatie v Commission of the European Communities

31

2009/C 102/47

Case T-91/09 P: Appeal brought on 2 March 2009 by Carina Skareby against the judgment of the Civil Service Tribunal delivered on 15 December 2008 in Case F-34/07, Skareby v Commission

32

2009/C 102/48

Case T-95/09: Action brought on 26 February 2009 — United Phosphorus v Commission

32

2009/C 102/49

Case T-98/09: Action brought on 11 March 2009 — Tubesca v OHIM — Tubos del Mediterráneo (T TUMESA TUBOS DEL MEDITERRANEO S.A.)

33

2009/C 102/50

Case T-99/09: Action brought on 4 March 2009 — Italy v Commission

34

European Union Civil Service Tribunal

2009/C 102/51

Case F-104/06: Judgment of the Civil Service Tribunal (Second Chamber) of 12 March 2009 — Arpaillange and Others v Commission (Staff cases — Contract staff — Recruitment — Classification — Former individual experts — Diplomas — Professional experience — Plea of illegality)

36

2009/C 102/52

Case F-24/07: Judgment of the Civil Service Tribunal (Second Chamber) of 12 March 2009 — Lafleur Tighe v Commission (Staff cases — Contract staff — Recruitment — Classification in grade — Former individual experts — Professional experience — Degrees — Certificate of equivalence — Admissibility — New and substantial fact)

36

2009/C 102/53

Case F-63/07: Judgment of the Civil Service Tribunal (Second Chamber) of 3 March 2009 — Patsarika v Cedefop (Staff cases — Contract staff — Reassignment — Rights of the defence — Dismissal at the end of the probationary period — Default procedure)

37

2009/C 102/54

Case F-98/07: Judgment of the Civil Service Tribunal (Second Chamber) of 29 January 2009 — Petrilli v Commission (Staff cases — Auxiliary contract staff — Admissibility — Act causing adverse effect — Article 3c and Article 88 of the Conditions of employment of other servants — Duration of the contract — Article 3(1) of the Commission Decision of 28 April 2004 on the maximum duration for the recourse to non-permanent staff in the Commission services — Legality)

37

2009/C 102/55

Case F-100/07: Judgment of the Civil Service Tribunal (First Chamber) of 10 March 2009 — Tsirimiagos v Committee of the Regions (Staff case — Officials — Remuneration — Transfer of part of the emoluments outside the country of employment — Article 17(2)(b) of Annex VII to the old Staff Regulations — Building savings account — Recovery of amounts wrongly paid — Conditions — Irregularity of the transfers — Obvious nature of the irregularity)

38

2009/C 102/56

Case F-106/07: Judgment of the Civil Service Tribunal (First Chamber) of 10 March 2009 — Giaprakis v Committee of the Regions (Staff case — Officials — Remuneration — Transfer of part of the emoluments outside the country of employment — Article 17(2)(b) of Annex VII to the old Staff Regulations — Building savings account — Recovery of amounts wrongly paid — Conditions — Irregularity of the transfers — Obvious nature of the irregularity)

38

2009/C 102/57

Case F-4/08: Judgment of the Civil Service Tribunal (Second Chamber) of 12 March 2009 — Hambura v Parliament (Staff case — Temporary staff — Recruitment — Selection procedure — Non-admission — Recruitment notice PE/95/S — Failure to use the application form in the OJ — Admissibility — Prior administrative procedure)

39

2009/C 102/58

Case F-7/08: Judgment of the Civil Service Tribunal (Third Chamber) of 11 February 2009 — Schönberger v Parliament (Staff case — Officials — Promotion — Consideration of comparative merits — Award of merit points — Principle of equal treatment)

39

2009/C 102/59

Case F-88/07: Order of the Civil Service Tribunal (Third Chamber) of 12 November 2008 — Domínguez González v Commission (Staff case — Technical assistant — Plea of lack of jurisdiction — Plea of inadmissibility — Lack of jurisdiction of the Tribunal)

40

| EN | |
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EN

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Court of Justice

| 1.5.2009 | EN | Official Journal of the European Union | C 102/1 |
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1.5.2009

EN

Official Journal of the European Union

C 102/1

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(Text with EEA relevance)

2009/C 102/01

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

OJ C 90, 18.4.2009

Past publications

OJ C 82, 4.4.2009

OJ C 69, 21.3.2009

OJ C 55, 7.3.2009

OJ C 44, 21.2.2009

OJ C 32, 7.2.2009

OJ C 19, 24.1.2009

These texts are available on:

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

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V Announcements

COURT PROCEEDINGS

Court of Justice

| 1.5.2009 | EN | Official Journal of the European Union | C 102/2 |
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1.5.2009

EN

Official Journal of the European Union

C 102/2

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Judgment of the Court (Grand Chamber) of 3 March 2009 — Commission of the European Communities v Republic of Austria

(Case C-205/06) (1)

(Failure of a Member State to fulfil obligations - Infringement of the second paragraph of Article 307 EC - Failure to adopt appropriate measures to eliminate the incompatibilities with the EC Treaty of the bilateral agreements entered into with third countries prior to accession of the Member State to the European Union - Investment agreements entered into by the Republic of Austria with the Republic of Korea, the Republic of Cape Verde, the People’s Republic of China, Malaysia, the Russian Federation and the Republic of Turkey)

2009/C 102/02

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: H. Støvlbæk, B. Martenczuk and C. Tufvesson, acting as Agents)

Defendant: Republic of Austria (represented by: C. Pesendorfer and G. Thallinger, acting as Agents)

Interveners in support of the defendant: Federal Republic of Germany (represented by: M. Lumma and C. Blaschke, acting as Agents), Republic of Lithuania (represented by: D. Kriaučiūnas, acting as Agent), Republic of Hungary (represented by: J. Fazekas, K. Szíjjártó and M. Fehér, acting as Agents), Republic of Finland (represented by: A. Guimaraes-Purokoski and J. Heliskoski, acting as Agents)

Re:

Failure of a Member State to fulfil its obligations — Infringement of the second paragraph of Article 307 EC — Failure to adopt the measures necessary to eliminate the incompatibilities with the EC Treaty of bilateral agreements concluded with third countries before accession of the Member State to the Communities — Bilateral investment agreements concluded by the Republic of Austria with the Republic of Korea, Cape Verde, China, Malaysia, the Russian Federation and Turkey

Operative part of the judgment

The Court:

| 1. | Declares that, by not having taken appropriate steps to eliminate incompatibilities concerning the provisions on transfer of capital contained in the investment agreements entered into with the Republic of Korea, the Republic of Cape Verde, the People’s Republic of China, Malaysia, the Russian Federation and the Republic of Turkey, the Republic of Austria has failed to fulfil its obligations under the second paragraph of Article 307 EC; |
| --- | --- |

1.

Declares that, by not having taken appropriate steps to eliminate incompatibilities concerning the provisions on transfer of capital contained in the investment agreements entered into with the Republic of Korea, the Republic of Cape Verde, the People’s Republic of China, Malaysia, the Russian Federation and the Republic of Turkey, the Republic of Austria has failed to fulfil its obligations under the second paragraph of Article 307 EC;

| 2. | Orders the Republic of Austria to pay the costs; |
| --- | --- |

2.

Orders the Republic of Austria to pay the costs;

| 3. | Orders the Federal Republic of Germany, the Republic of Lithuania, the Republic of Hungary and the Republic of Finland to bear their own respective costs. |
| --- | --- |

3.

Orders the Federal Republic of Germany, the Republic of Lithuania, the Republic of Hungary and the Republic of Finland to bear their own respective costs.

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(1)  OJ C 165, 15.7.2006.

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| 1.5.2009 | EN | Official Journal of the European Union | C 102/2 |
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1.5.2009

EN

Official Journal of the European Union

C 102/2

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Judgment of the Court (Grand Chamber) of 3 March 2009 — Commission of the European Communities v Kingdom of Sweden

(Case C-249/06) (1)

(Failure of a Member State to fulfil obligations - Infringement of the second paragraph of Article 307 EC - Failure to adopt appropriate measures to eliminate the incompatibilities with the EC Treaty of the bilateral agreements entered into with third countries prior to accession of the Member State to the European Union - Investment agreements entered into by the Kingdom of Sweden with the Argentine Republic, the Republic of Bolivia, the Republic of Côte d’Ivoire, the Arab Republic of Egypt, Hong Kong, the Republic of Indonesia, the People’s Republic of China, the Republic of Madagascar, Malaysia, the Islamic Republic of Pakistan, the Republic of Peru, the Republic of Senegal, the Democratic Socialist Republic of Sri Lanka, the Republic of Tunisia, the Socialist Republic of Vietnam, the Republic of Yemen and the former Socialist Federal Republic of Yugoslavia)

2009/C 102/03

Language of the case: Swedish

Parties

Applicant: Commission of the European Communities (represented by: C. Tufvesson, B. Martenczuk and H. Støvlbæk, acting as Agents)

Defendant: Kingdom of Sweden (represented by: A. Falk and K. Wistrand, acting as Agents)

Interveners in support of the defendant: Republic of Lithuania (represented by: D. Kriaučiūnas, acting as Agents), Republic of Hungary (represented by: J. Fazekas, K. Szíjjártó and M. Fehér, acting as Agents), Republic of Finland (represented by: A. Guimaraes-Purokoski and J. Heliskoski, acting as Agents)

Re:

Failure of a Member State to fulfil its obligations — Infringement of the second paragraph of Article 307 EC — Failure to take the steps necessary to eliminate the incompatibilities with the EC Treaty of bilateral agreements entered into with third countries before the accession of the Member State to the European Communities — Bilateral investment agreements concluded by the Kingdom of Sweden with the Socialist Republic of Vietnam and sixteen other countries

Operative part of the judgment

The Court:

| 1. | Declares that, by not having taken appropriate steps to eliminate incompatibilities concerning the provisions on transfer of capital contained in the investment agreements concluded with the Argentine Republic, the Republic of Bolivia, the Republic of Côte d’Ivoire, the Arab Republic of Egypt, Hong Kong, the Republic of Indonesia, the People’s Republic of China, the Republic of Madagascar, Malaysia, the Islamic Republic of Pakistan, the Republic of Peru, the Republic of Senegal, the Democratic Socialist Republic of Sri Lanka, the Republic of Tunisia, the Socialist Republic of Vietnam, the Republic of Yemen and the former Socialist Federal Republic of Yugoslavia, the Kingdom of Sweden has failed to fulfil its obligations under the second paragraph of Article 307 EC; |
| --- | --- |

1.

Declares that, by not having taken appropriate steps to eliminate incompatibilities concerning the provisions on transfer of capital contained in the investment agreements concluded with the Argentine Republic, the Republic of Bolivia, the Republic of Côte d’Ivoire, the Arab Republic of Egypt, Hong Kong, the Republic of Indonesia, the People’s Republic of China, the Republic of Madagascar, Malaysia, the Islamic Republic of Pakistan, the Republic of Peru, the Republic of Senegal, the Democratic Socialist Republic of Sri Lanka, the Republic of Tunisia, the Socialist Republic of Vietnam, the Republic of Yemen and the former Socialist Federal Republic of Yugoslavia, the Kingdom of Sweden has failed to fulfil its obligations under the second paragraph of Article 307 EC;

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

2.

Orders the Kingdom of Sweden to pay the costs.

| 3. | Orders the Republic of Lithuania, the Republic of Hungary and the Republic of Finland to bear their own respective costs. |
| --- | --- |

3.

Orders the Republic of Lithuania, the Republic of Hungary and the Republic of Finland to bear their own respective costs.

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(1)  OJ C 178, 29.7.2006.

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| 1.5.2009 | EN | Official Journal of the European Union | C 102/3 |
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1.5.2009

EN

Official Journal of the European Union

C 102/3

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Judgment of the Court (First Chamber) of 5 March 2009 — Commission of the European Communities v Kingdom of Spain

(Case C-88/07) (1)

(Articles 28 EC and 30 EC - Free movement of goods - Directive 2001/83/EC - Products based on medicinal herbs - Products classified as medicinal products - Products lawfully produced or marketed as food supplements or dietary products in other Member States - Meaning of ‘medicinal product’ - Marketing authorisation - Restriction - Justification - Public health - Consumer protection - Proportionality - Decision No 3052/95/EC - Procedure for the exchange of information on national measures derogating from the principle of the free movement of goods within the Community)

2009/C 102/04

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (represented by: S. Pardo Quintillán and A. Alcover San Pedro, acting as Agents)

Defendant: Kingdom of Spain (represented by: J. Rodríguez Cárcamo, acting as Agent)

Re:

Failure to fulfil obligations — Infringement of Arts 28 EC and 30 EC — Infringement of Arts 1 and 4 of Decision No 3052/95/EC of the European Parliament and of the Council of 13 December 1995 establishing a procedure for the exchange of information on national measures derogating from the principle of the free movement of goods within the Community (OJ 1995 L 321, p. 1)

Operative part of the judgment

The Court:

| 1. | — | declares that, by withdrawing from the market products based on medicinal herbs lawfully produced and/or marketed in another Member State, under an administrative practice consisting in withdrawing from the market any product based on medicinal herbs not included either in the annex to the Ministerial Order on the creation of a special register of medicinal herb-based preparations (Orden Ministerial por la que se establece el registro especial para preparados a base de especies vegetales) of 3 October 1973, as amended, or in the annex to the Order SCO/190/2004 of the Ministry of Health and Consumer Affairs, establishing the list of plants sale of which to the public is prohibited or restricted because of their toxicity (Orden SCO/190/2004 por la que se establece la lista de plantas cuya venta al público queda prohibida o restringida por razón de su toxicidad) of 28 January 2004, other than a preparation the constituents of which are exclusively one or more medicinal herbs or whole parts of such herbs, or crushed or powdered parts of such herbs, on the ground that that product is deemed to be a medicinal product marketed without the requisite marketing authorisation, and |
| --- | --- | --- |

1.

—

declares that, by withdrawing from the market products based on medicinal herbs lawfully produced and/or marketed in another Member State, under an administrative practice consisting in withdrawing from the market any product based on medicinal herbs not included either in the annex to the Ministerial Order on the creation of a special register of medicinal herb-based preparations (Orden Ministerial por la que se establece el registro especial para preparados a base de especies vegetales) of 3 October 1973, as amended, or in the annex to the Order SCO/190/2004 of the Ministry of Health and Consumer Affairs, establishing the list of plants sale of which to the public is prohibited or restricted because of their toxicity (Orden SCO/190/2004 por la que se establece la lista de plantas cuya venta al público queda prohibida o restringida por razón de su toxicidad) of 28 January 2004, other than a preparation the constituents of which are exclusively one or more medicinal herbs or whole parts of such herbs, or crushed or powdered parts of such herbs, on the ground that that product is deemed to be a medicinal product marketed without the requisite marketing authorisation, and

| — | by not communicating that measure to the Commission of the European Communities, |
| --- | --- |

—

by not communicating that measure to the Commission of the European Communities,

the Kingdom of Spain has failed to fulfil its obligations under Articles 28 EC and 30 EC and Articles 1 and 4 of Decision No 3052/95/EC of the European Parliament and of the Council of 13 December 1995 establishing a procedure for the exchange of information on national measures derogating from the principle of the free movement of goods within the Community.

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

2.

Orders the Kingdom of Spain to pay the costs.

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(1)  OJ C 95, 28.4.2007.

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| 1.5.2009 | EN | Official Journal of the European Union | C 102/4 |
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1.5.2009

EN

Official Journal of the European Union

C 102/4

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Judgment of the Court (Second Chamber) of 5 March 2009 (reference for a preliminary ruling from the Tribunal Supremo (Spain)) — Unión de Televisiones Comerciales Asociadas (UTECA) v Administración General del Estado

(Case C-222/07) (1)

(Reference for a preliminary ruling - Article 12 EC - Prohibition of discrimination on grounds of nationality - Articles 39 EC, 43 EC, 49 EC and 56 EC - Fundamental freedoms guaranteed by the EC Treaty - Article 87 EC - State aid - Directive 89/552/EEC - Pursuit of television broadcasting activities - Obligation for television operators to earmark a percentage of their operating revenue for the pre-funding of European cinematographic films and films made for television, 60% of that funding being reserved to the production of works of which the original language is one of the official languages of the Kingdom of Spain and of which the majority is produced by the Spanish film industry)

2009/C 102/05

Language of the case: Spanish

Referring court

Tribunal Supremo

Parties to the main proceedings

Applicant: Unión de Televisiones Comerciales Asociadas (UTECA)

Defendant: Administración General del Estado

Intervening parties: Federación de Asociaciones de Productores Audiovisuales, Radiotelevisión Española (RTVE), Entidad de Gestión de Derechos de los Productores Audiovisuales (Egeda)

Re:

Reference for a preliminary ruling — Tribunal Supremo — Interpretation of Articles 12 EC, 87(3) EC and Article 3(1) of Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (OJ 1989 L 298, p. 23) — Obligation for television operators to earmark a percentage of their operating revenue for the pre-funding of European cinematographic films and films made for television, 60 % of that funding being reserved to the production of original Spanish-language works the majority of which are produced by the Spanish film industry

Operative part of the judgment

| 1. | Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities, as amended by Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997, and, more particularly, Article 3 thereof and Article 12 EC must be interpreted as meaning that they do not preclude a measure adopted by a Member State such as the measure at issue in the main proceedings which requires television operators to earmark 5% of their operating revenue for the pre-funding of European cinematographic films and films made for television and, more specifically, to reserve 60% of that 5% for the production of works of which the original language is one of the official languages of that Member State. |
| --- | --- |

1.

Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities, as amended by Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997, and, more particularly, Article 3 thereof and Article 12 EC must be interpreted as meaning that they do not preclude a measure adopted by a Member State such as the measure at issue in the main proceedings which requires television operators to earmark 5% of their operating revenue for the pre-funding of European cinematographic films and films made for television and, more specifically, to reserve 60% of that 5% for the production of works of which the original language is one of the official languages of that Member State.

| 2. | Article 87 EC must be interpreted as meaning that a measure adopted by a Member State, such as the measure at issue in the main proceedings, requiring television operators to earmark 5% of their operating revenue for the pre-funding of European cinematographic films and films made for television and, more specifically, to reserve 60% of that 5% for the production of works of which the original language is one of the official languages of that Member State does not constitute State aid in favour of the cinematographic industry of that Member State. |
| --- | --- |

2.

Article 87 EC must be interpreted as meaning that a measure adopted by a Member State, such as the measure at issue in the main proceedings, requiring television operators to earmark 5% of their operating revenue for the pre-funding of European cinematographic films and films made for television and, more specifically, to reserve 60% of that 5% for the production of works of which the original language is one of the official languages of that Member State does not constitute State aid in favour of the cinematographic industry of that Member State.

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(1)  OJ C 155, 7.7.2007.

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| 1.5.2009 | EN | Official Journal of the European Union | C 102/5 |
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1.5.2009

EN

Official Journal of the European Union

C 102/5

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Judgment of the Court (Fourth Chamber) of 5 March 2009 (reference for a preliminary ruling from the VAT and Duties Tribunal, London (United Kingdom)) — J D Wetherspoon plc v The Commissioners for Her Majesty’s Revenue and Customs

(Case C-302/07) (1)

(First and Sixth VAT Directives - Principles of fiscal neutrality and proportionality - Rules on rounding of amounts of VAT - Methods and levels of rounding)

2009/C 102/06

Language of the case: English

Referring court

VAT and Duties Tribunal, London

Parties to the main proceedings

Applicant: J D Wetherspoon plc

Defendant: The Commissioners for Her Majesty’s Revenue and Customs

Re:

Reference for a preliminary ruling — VAT and Duties Tribunal, London –Interpretation of Articles 11A(1)(a), 12(3)(a) and 22(3)(b) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) and the first and second paragraphs of Article 2 of First Council Directive 67/227/EEC of 11 April 1967 on the harmonisation of legislation of Member States concerning turnover taxes (OJ, English Special Edition 1967, p. 14) — Rules on the rounding of VAT amounts.

Operative part of the judgment

| 1. | Community law, as it currently stands, contains no specific requirement concerning the method of rounding amounts of value added tax. In the absence of specific Community legislation, it is for Member States to decide on the rules and methods for rounding amounts of value added tax, although those States must, when so deciding, observe the principles underpinning the common system of that tax, particularly the principles of fiscal neutrality and proportionality. In particular, Community law, first, does not preclude the application of a national rule which requires an amount of value added tax to be rounded up whenever the fraction of the smallest unit of currency concerned is at or above 0.50, and, second, does not require that taxable persons be allowed to round down any amount of value added tax which includes a fraction of the smallest unit of national currency. |
| --- | --- |

1.

Community law, as it currently stands, contains no specific requirement concerning the method of rounding amounts of value added tax. In the absence of specific Community legislation, it is for Member States to decide on the rules and methods for rounding amounts of value added tax, although those States must, when so deciding, observe the principles underpinning the common system of that tax, particularly the principles of fiscal neutrality and proportionality. In particular, Community law, first, does not preclude the application of a national rule which requires an amount of value added tax to be rounded up whenever the fraction of the smallest unit of currency concerned is at or above 0.50, and, second, does not require that taxable persons be allowed to round down any amount of value added tax which includes a fraction of the smallest unit of national currency.

| 2. | In a sale at a price inclusive of value added tax, in the absence of specific Community legislation, each Member State is obliged to determine, within the limits of Community law, in particular in compliance with the principles of fiscal neutrality and proportionality, the level at which the rounding of an amount of value added tax which includes a fraction of the smallest unit of national currency may or must occur. |
| --- | --- |

2.

In a sale at a price inclusive of value added tax, in the absence of specific Community legislation, each Member State is obliged to determine, within the limits of Community law, in particular in compliance with the principles of fiscal neutrality and proportionality, the level at which the rounding of an amount of value added tax which includes a fraction of the smallest unit of national currency may or must occur.

| 3. | In view of the fact that traders who calculate the price of their sales of goods and services inclusive of value added tax are in a different situation to those effecting that same type of transactions at prices exclusive of value added tax, the former cannot invoke the principle of fiscal neutrality in order to claim the right also to round down, at line level and basket level, the amounts of value added tax due. |
| --- | --- |

3.

In view of the fact that traders who calculate the price of their sales of goods and services inclusive of value added tax are in a different situation to those effecting that same type of transactions at prices exclusive of value added tax, the former cannot invoke the principle of fiscal neutrality in order to claim the right also to round down, at line level and basket level, the amounts of value added tax due.

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(1)  OJ C 211, 8.9.2007.

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| 1.5.2009 | EN | Official Journal of the European Union | C 102/5 |
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1.5.2009

EN

Official Journal of the European Union

C 102/5

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Judgment of the Court (Third Chamber) of 5 March 2009 (reference for a preliminary ruling from the Sächsisches Landessozialgericht (Germany)) — Kattner Stahlbau GmbH v Maschinenbau- und Metall- Berufsgenossenschaft

(Case C-350/07) (1)

(Competition - Articles 81 EC, 82 EC and 86 EC - Compulsory affiliation to a body providing insurance against accidents at work and occupational diseases - Concept of an ‘undertaking’ - Abuse of dominant position - Freedom to provide services - Articles 49 EC and 50 EC - Restriction - Justification - Risk of serious harm to the financial equilibrium of the social security scheme)

2009/C 102/07

Language of the case: German

Referring court

Sächsisches Landessozialgericht

Parties to the main proceedings

Applicant: Kattner Stahlbau GmbH

Defendant: Maschinenbau- und Metall- Berufsgenossenschaft

Re:

Reference for a preliminary ruling — Sächsisches Landessozialgericht — Interpretation of Articles 81 EC and 82 EC and of other provisions of Community law — National legislation establishing a compulsory insurance scheme against the risk of accidents at work and occupational diseases, consisting of a number of associations for the prevention of accidents at work (‘Berufsgenossenschaft’) and which provides for undertakings to be compulsorily affiliated to the association having the requisite territorial and occupational competence — Whether such associations for the prevention of accidents at work, which are able to fix the level of their subscriptions independently, without any upper limit being prescribed by national legislation, constitute an ‘undertaking’ within the meaning of Articles 81 EC and 82 EC

Operative part of the judgment

| 1. | Articles 81 EC and 82 EC are to be interpreted to the effect that a body such as the employers' liability insurance association at issue in the main proceedings, to which undertakings in a particular branch of industry and a particular territory must be affiliated in respect of insurance against accidents at work and occupational diseases, is not an undertaking within the meaning of those provisions, but fulfils an exclusively social function, where such a body operates within the framework of a scheme which applies the principle of solidarity and is subject to State supervision, which it is for the referring court to verify. |
| --- | --- |

1.

Articles 81 EC and 82 EC are to be interpreted to the effect that a body such as the employers' liability insurance association at issue in the main proceedings, to which undertakings in a particular branch of industry and a particular territory must be affiliated in respect of insurance against accidents at work and occupational diseases, is not an undertaking within the meaning of those provisions, but fulfils an exclusively social function, where such a body operates within the framework of a scheme which applies the principle of solidarity and is subject to State supervision, which it is for the referring court to verify.

| 2. | Articles 49 EC and 50 EC are to be interpreted to the effect that they do not preclude national legislation such as that at issue in the main proceedings, pursuant to which undertakings in a particular branch of industry and a particular territory must be affiliated to a body such as the employers' liability insurance association at issue in the main proceedings, to the extent that that scheme does not go beyond what is necessary to achieve the objective of ensuring the financial equilibrium of a branch of social security, which it is for the referring court to verify. |
| --- | --- |

2.

Articles 49 EC and 50 EC are to be interpreted to the effect that they do not preclude national legislation such as that at issue in the main proceedings, pursuant to which undertakings in a particular branch of industry and a particular territory must be affiliated to a body such as the employers' liability insurance association at issue in the main proceedings, to the extent that that scheme does not go beyond what is necessary to achieve the objective of ensuring the financial equilibrium of a branch of social security, which it is for the referring court to verify.

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(1)  OJ C 269, 10.11.2007.

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| 1.5.2009 | EN | Official Journal of the European Union | C 102/6 |
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1.5.2009

EN

Official Journal of the European Union

C 102/6

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Judgment of the Court (Third Chamber) of 5 March 2009 (reference for a preliminary ruling from the High Court of Justice of England and Wales, Queen’s Bench Division (Administrative Court) (United Kingdom)) — The Queen, The Incorporated Trustees of the National Council on Ageing (Age Concern England) v Secretary of State for Business, Enterprise and Regulatory Reform

(Case C-388/07) (1)

(Directive 2000/78 - Equal treatment in employment and occupation - Age discrimination - Dismissal by reason of retirement - Justification)

2009/C 102/08

Language of the case: English

Referring court

High Court of Justice of England and Wales, Queen’s Bench Division (Administrative Court)

Parties to the main proceedings

Applicants: The Queen, The Incorporated Trustees of the National Council on Ageing (Age Concern England)

Defendant: Secretary of State for Business, Enterprise and Regulatory Reform

Re:

Reference for a preliminary ruling — High Court of Justice of England and Wales, Queen’s Bench Division (Administrative Court) — Interpretation of Articles 2(2) and 6(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16) — Scope — National rules allowing employers to dismiss employees aged 65 or over by reason of their retirement

Operative part of the judgment

| 1. | National rules such as those set out in Regulations 3, 7(4) and (5) and 30 of the Employment Equality (Age) Regulations 2006 fall within the scope of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. |
| --- | --- |

1.

National rules such as those set out in Regulations 3, 7(4) and (5) and 30 of the Employment Equality (Age) Regulations 2006 fall within the scope of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation.

| 2. | Article 6(1) of Directive 2000/78 must be interpreted as meaning that it does not preclude a national measure which, like Regulation 3 of the Regulations at issue in the main proceedings, does not contain a precise list of the aims justifying derogation from the principle prohibiting discrimination on grounds of age. However, Article 6(1) offers the option to derogate from that principle only in respect of measures justified by legitimate social policy objectives, such as those related to employment policy, the labour market or vocational training. It is for the national court to ascertain whether the legislation at issue in the main proceedings is consonant with such a legitimate aim and whether the national legislative or regulatory authority could legitimately consider, taking account of the Member States' discretion in matters of social policy, that the means chosen were appropriate and necessary to achieve that aim. |
| --- | --- |

2.

Article 6(1) of Directive 2000/78 must be interpreted as meaning that it does not preclude a national measure which, like Regulation 3 of the Regulations at issue in the main proceedings, does not contain a precise list of the aims justifying derogation from the principle prohibiting discrimination on grounds of age. However, Article 6(1) offers the option to derogate from that principle only in respect of measures justified by legitimate social policy objectives, such as those related to employment policy, the labour market or vocational training. It is for the national court to ascertain whether the legislation at issue in the main proceedings is consonant with such a legitimate aim and whether the national legislative or regulatory authority could legitimately consider, taking account of the Member States' discretion in matters of social policy, that the means chosen were appropriate and necessary to achieve that aim.

| 3. | Article 6(1) of Directive 2000/78 gives Member States the option to provide, within the context of national law, for certain kinds of differences in treatment on grounds of age if they are ‘objectively and reasonably’ justified by a legitimate aim, such as employment policy, or labour market or vocational training objectives, and if the means of achieving that aim are appropriate and necessary. It imposes on Member States the burden of establishing to a high standard of proof the legitimacy of the aim relied on as a justification. No particular significance should be attached to the fact that the word ‘reasonably’ used in Article 6(1) of the directive does not appear in Article 2(2)(b) thereof. |
| --- | --- |

3.

Article 6(1) of Directive 2000/78 gives Member States the option to provide, within the context of national law, for certain kinds of differences in treatment on grounds of age if they are ‘objectively and reasonably’ justified by a legitimate aim, such as employment policy, or labour market or vocational training objectives, and if the means of achieving that aim are appropriate and necessary. It imposes on Member States the burden of establishing to a high standard of proof the legitimacy of the aim relied on as a justification. No particular significance should be attached to the fact that the word ‘reasonably’ used in Article 6(1) of the directive does not appear in Article 2(2)(b) thereof.

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(1)  OJ C 283, 24.11.2007.

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| 1.5.2009 | EN | Official Journal of the European Union | C 102/7 |
| --- | --- | --- | --- |

1.5.2009

EN

Official Journal of the European Union

C 102/7

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Judgment of the Court (Third Chamber) of 5 March 2009 — French Republic v Council of the European Union

(Case C-479/07) (1)

(Action for annulment - Regulation (EC) No 809/2007 - Definition of the concept of drift nets - ‘Thonaille’ - Duty to state reasons - Infringement of the principles of proportionality and non-discrimination)

2009/C 102/09

Language of the case: French

Parties

Applicant: French Republic (represented by: E. Belliard, G. de Bergues and A.-L. During, Agents)

Defendant: Council of the European Union (represented by: A. De Gregorio Merino, M.-M. Joséphidès and E. Chaboureau, Agents)

Intervener in support of the defendant: Commission of the European Communities (represented by: M. Nolin, M. van Heezik and M.T. van Rijn, Agents)

Re:

Action for annulment — Annulment of Council Regulation (EC) No 809/2007 of 28 June 2007 amending Regulations (EC) No 894/97, (EC) No 812/2004 and (EC) No 2187/2005 as concerns drift nets (OJ 2007 L 182, p. 1) — Concept of ‘drift nets’ — Inclusion in that concept of stabilised nets such as the ‘thonaille’ — Infringement of the duty to provide reasons and of the principles of proportionality and non-discrimination

Operative part of the judgment

The Court:

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

1.

dismisses the action;

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

2.

orders the French Republic to pay the costs;

| 3. | orders the Commission of the European Communities to bear its own costs. |
| --- | --- |

3.

orders the Commission of the European Communities to bear its own costs.

---

(1)  OJ C 297,8.12.2007.

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| 1.5.2009 | EN | Official Journal of the European Union | C 102/7 |
| --- | --- | --- | --- |

1.5.2009

EN

Official Journal of the European Union

C 102/7

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Judgment of the Court (Fourth Chamber) of 5 March 2009 (reference for a preliminary ruling from the Sofiyski gradski sad (Bulgaria)) — Apis-Hristovich EOOD v Lakorda AD

(Case C-545/07) (1)

(Directive 96/9/EC - Legal protection of databases - Sui generis right - Obtaining, verification or presentation of the contents of a database - Extraction - Substantial part of the contents of a database - Database containing official legal data)

2009/C 102/10

Language of the case: Bulgarian

Referring court

Sofiyski gradski sad

Parties to the main proceedings

Applicant: Apis-Hristovich EOOD

Defendant: Lakorda AD

Re:

Reference for a preliminary ruling — Sofia City Court — Directive 96/9/EC of the European Parliament and the Council of 11 March 1996 on the legal protection of databases (OJ 1996 L 77, p. 20) — Concepts of extraction and utilisation — Legal databases relating to legislation and case-law in a Member State

Operative part of the judgment

| 1. | The delimitation of the concepts of ‘permanent transfer’ and ‘temporary transfer’ in Article 7 of Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases is based on the criterion of the length of time during which materials extracted from a protected database are stored in a medium other than that database. The time at which there is an extraction, within the meaning of Article 7, from a protected database, accessible electronically, is when the materials which are the subject of the act of transfer are stored in a medium other than that database. The concept of extraction is independent of the objective pursued by the perpetrator of the act at issue, of any modifications he may make to the contents of the materials thus transferred, and of any differences in the structural organisation of the databases concerned.
  The fact that the physical and technical characteristics present in the contents of a protected database made by a particular person also appear in the contents of a database made by another person may be interpreted as evidence of extraction within the meaning of Article 7 of Directive 96/9, unless that coincidence can be explained by factors other than a transfer between the two databases concerned. The fact that materials obtained by the maker of a database from sources not accessible to the public also appear in a database made by another person is not sufficient, in itself, to prove the existence of such extraction but can constitute circumstantial evidence thereof.
  The nature of the computer program used to manage two electronic databases is not a factor in assessing the existence of extraction within the meaning of Article 7 of Directive 96/9. |
| --- | --- |

1.

The delimitation of the concepts of ‘permanent transfer’ and ‘temporary transfer’ in Article 7 of Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases is based on the criterion of the length of time during which materials extracted from a protected database are stored in a medium other than that database. The time at which there is an extraction, within the meaning of Article 7, from a protected database, accessible electronically, is when the materials which are the subject of the act of transfer are stored in a medium other than that database. The concept of extraction is independent of the objective pursued by the perpetrator of the act at issue, of any modifications he may make to the contents of the materials thus transferred, and of any differences in the structural organisation of the databases concerned.

The fact that the physical and technical characteristics present in the contents of a protected database made by a particular person also appear in the contents of a database made by another person may be interpreted as evidence of extraction within the meaning of Article 7 of Directive 96/9, unless that coincidence can be explained by factors other than a transfer between the two databases concerned. The fact that materials obtained by the maker of a database from sources not accessible to the public also appear in a database made by another person is not sufficient, in itself, to prove the existence of such extraction but can constitute circumstantial evidence thereof.

The nature of the computer program used to manage two electronic databases is not a factor in assessing the existence of extraction within the meaning of Article 7 of Directive 96/9.

| 2. | Article 7 of Directive 96/9 must be interpreted as meaning that, where there is a body of materials composed of separate modules, the volume of the materials allegedly extracted and/or re-utilised from one of those modules must, in order to assess whether there has been extraction and/or re-utilisation of a substantial part, evaluated quantitatively, of the contents of a database within the meaning of that article, be compared with the total contents of that module, if the latter constitutes, in itself, a database which fulfils the conditions for protection by the sui generis right. Otherwise, and in so far as the body of materials constitutes a database protected by that right, the comparison must be made between the volume of the materials allegedly extracted and/or re-utilised from the various modules of that database and its total contents.
  The fact that the materials allegedly extracted and/or re-utilised from a database protected by the sui generis right were obtained by the maker of that database from sources not accessible to the public may, according to the amount of human, technical and/or financial resources deployed by the maker to collect the materials at issue from those sources, affect the classification of those materials as a substantial part, evaluated qualitatively, of the contents of the database concerned, within the meaning of Article 7 of Directive 96/9.
  The fact that part of the materials contained in a database are official and accessible to the public does not relieve the national court of an obligation, in assessing whether there has been extraction and/or re-utilisation of a substantial part of the contents of that database, to verify whether the materials allegedly extracted and/or re-utilised from that database constitute a substantial part, evaluated quantitatively, of its contents or, as the case may be, whether they constitute a substantial part, evaluated qualitatively, of the database inasmuch as they represent, in terms of the obtaining, verification and presentation thereof, a substantial human, technical or financial investment. |
| --- | --- |

2.

Article 7 of Directive 96/9 must be interpreted as meaning that, where there is a body of materials composed of separate modules, the volume of the materials allegedly extracted and/or re-utilised from one of those modules must, in order to assess whether there has been extraction and/or re-utilisation of a substantial part, evaluated quantitatively, of the contents of a database within the meaning of that article, be compared with the total contents of that module, if the latter constitutes, in itself, a database which fulfils the conditions for protection by the sui generis right. Otherwise, and in so far as the body of materials constitutes a database protected by that right, the comparison must be made between the volume of the materials allegedly extracted and/or re-utilised from the various modules of that database and its total contents.

The fact that the materials allegedly extracted and/or re-utilised from a database protected by the sui generis right were obtained by the maker of that database from sources not accessible to the public may, according to the amount of human, technical and/or financial resources deployed by the maker to collect the materials at issue from those sources, affect the classification of those materials as a substantial part, evaluated qualitatively, of the contents of the database concerned, within the meaning of Article 7 of Directive 96/9.

The fact that part of the materials contained in a database are official and accessible to the public does not relieve the national court of an obligation, in assessing whether there has been extraction and/or re-utilisation of a substantial part of the contents of that database, to verify whether the materials allegedly extracted and/or re-utilised from that database constitute a substantial part, evaluated quantitatively, of its contents or, as the case may be, whether they constitute a substantial part, evaluated qualitatively, of the database inasmuch as they represent, in terms of the obtaining, verification and presentation thereof, a substantial human, technical or financial investment.

---

(1)  OJ C 51, 23.2.2008.

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| 1.5.2009 | EN | Official Journal of the European Union | C 102/8 |
| --- | --- | --- | --- |

1.5.2009

EN

Official Journal of the European Union

C 102/8

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Judgment of the Court (Third Chamber) of 5 March 2009 — Commission of the European Communities v French Republic

(Case C-556/07) (1)

(Failure of a Member State to fulfil its obligations - Common Fisheries Policy - Regulation (EC) No 894/97 - Drift net - Definition - ‘Thonaille’ fishing net - Prohibition for the fishing of certain species - Regulations (EEC) No 2847/93 and (EC) No 2371/2002 - Lack of an effective system of monitoring to ensure respect of that prohibition)

2009/C 102/11

Language of the case: French

Parties

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

Defendant: French Republic (represented by: G. de Bergues and A.-L. During, Agents)

Re:

Failure of a Member State to fulfil obligations — Common Fisheries Policy — 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) and Council Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy — Acceptance by national authorities of the thonaille (a tuna gillnet) despite the Community prohibition of drift nets of a length greater than or equal to 2.5 km — Lack of an effective system of monitoring to ensure respect of that prohibition.

Operative part of the judgment

The Court:

| (1) | declares that, by failing sufficiently to monitor, inspect and supervise fishing activities 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 Council Regulation (EEC) No 2847/93 of 12 October 1993 establishing a control system applicable to the common fisheries policy, as amended by Council Regulation (EC) No 2846/98 of 17 December 1998 and Articles 23(1) and (2), 24 and 25(1) and (2) of Council Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy; |
| --- | --- |

(1)

declares that, by failing sufficiently to monitor, inspect and supervise fishing activities 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 Council Regulation (EEC) No 2847/93 of 12 October 1993 establishing a control system applicable to the common fisheries policy, as amended by Council Regulation (EC) No 2846/98 of 17 December 1998 and Articles 23(1) and (2), 24 and 25(1) and (2) of Council Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy;

| (2) | orders the French Republic to pay the costs. |
| --- | --- |

(2)

orders the French Republic to pay the costs.

---

(1)  OJ C 37 of 9.2.2008.

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| 1.5.2009 | EN | Official Journal of the European Union | C 102/9 |
| --- | --- | --- | --- |

1.5.2009

EN

Official Journal of the European Union

C 102/9

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Action brought on 21 November 2008 — Commission of the European Communities v Slovak Republic

(Case C-507/08)

2009/C 102/12

Language of the case: Slovak

Parties

Applicant: Commission of the European Communities (represented by: C. Giolito, J. Javorský, K. Walkerová, acting as Agents)

Defendant: Slovak Republic

Form of order sought

| — | declare that the Slovak Republic, by failing to execute the Commission Decision of 7 June 2006 on State Aid No C 25/2005 (ex NN 21/2005) implemented by the Slovak Republic for Frucona Košice, a.s. (notified under C(2006) 2082) (1) has failed to fulfil its obligations under the fourth paragraph of Article 249 of the EC Treaty and Article 2 of that decision; |
| --- | --- |

—

declare that the Slovak Republic, by failing to execute the Commission Decision of 7 June 2006 on State Aid No C 25/2005 (ex NN 21/2005) implemented by the Slovak Republic for Frucona Košice, a.s. (notified under C(2006) 2082) (1) has failed to fulfil its obligations under the fourth paragraph of Article 249 of the EC Treaty and Article 2 of that decision;

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

—

order Slovak Republic to pay the costs.

Pleas in law and main arguments

In its decision of 7 June 2006 on State Aid No C 25/2005 (ex NN 21/2005) implemented by the Slovak Republic for Frucona Košice, a.s., the Commission found that the measures which the Slovak Republic implemented for Frucona Košice, a.s. constituted State aid within the meaning of Article 87(1) EC and that that aid was incompatible with the common market. It also directed the Slovak Republic to take all necessary measures to recover from the beneficiary the unlawfully granted aid.

To date, the aid awarded to Frucona has not been recovered.

State aid was granted to Frucona in the form of a waiver of a tax debt confirmed by the court in the context of an arrangement procedure. The Slovak Republic applied to recover the unlawfully granted aid in legal proceedings. The first instance court dismissed the action inter alia because Frucona’s obligation to pay its debt to the tax authorities arose ex lege. The appeal court upheld the judgment of the first instance court inter alia because it was not possible to review the order concerning the arrangement, because, as res judicata, it must be respected by all bodies, including the appeal court and, also, because the Commission in the decision failed to respect the provisions of national law governing conflicts between bankruptcy and enforcement proceedings.

The judgments of both courts prevent the immediate and effective execution of the Commission decision.

It is not sufficient that the Slovak Republic made use of all means at its disposal. The application of those means must result in the immediate and effective enforcement of the decision, failing which the Slovak Republic must be considered as having failed to fulfil its obligations. A Member State fails to fulfil its obligation to recover if the steps taken by that Member State have no impact on the actual recovery of those amounts.

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(1)  OJ L 112, 30.4.2007, p. 14.

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| 1.5.2009 | EN | Official Journal of the European Union | C 102/10 |
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1.5.2009

EN

Official Journal of the European Union

C 102/10

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Reference for a preliminary ruling from the Verwaltungsgericht Berlin (Germany) lodged on 12 January 2009 — Hava Genc v Land Berlin

(Case C-14/09)

2009/C 102/13

Language of the case: German

Referring court

Verwaltungsgericht Berlin

Parties to the main proceedings

Applicant: Hava Genc

Defendant: Land Berlin

Questions referred

| 1. | Is a Turkish national who is duly registered as belonging to the labour force of a Member State and who has, for an extended period for and under the instruction of another, performed services of a certain economic value in return for which he receives remuneration a ‘worker’ for the purposes of Article 6(1) of Decision No 1/80 of the EEC/Turkey Association Council, even if the time spent in that activity amounts to only approximately 14% of the collectively agreed working time of a full-time worker (in the present case, 5.5 hours as against a 39-hour working week) and the income earned from that activity by itself covers only approximately 25% of the amount determined under the national law of the Member State to be necessary for subsistence (in the present case, approximately EUR 175 as against approximately EUR 715)?
  If the answer to the first question is affirmative: |
| --- | --- |

1.

Is a Turkish national who is duly registered as belonging to the labour force of a Member State and who has, for an extended period for and under the instruction of another, performed services of a certain economic value in return for which he receives remuneration a ‘worker’ for the purposes of Article 6(1) of Decision No 1/80 of the EEC/Turkey Association Council, even if the time spent in that activity amounts to only approximately 14% of the collectively agreed working time of a full-time worker (in the present case, 5.5 hours as against a 39-hour working week) and the income earned from that activity by itself covers only approximately 25% of the amount determined under the national law of the Member State to be necessary for subsistence (in the present case, approximately EUR 175 as against approximately EUR 715)?

If the answer to the first question is affirmative:

| 2. | Can a Turkish national then also rely on the freedom of movement under the EEC/Turkey Association as a worker within the terms of Article 6(1) of Decision No 1/80 if the purpose of the stay for which he entered the country is no longer applicable (in the present case, joining a spouse for the purpose of family reunification), if there are no other interests for remaining in the contracting State which merit protection, and if the possibility of continuing to engage in a minimal activity in the contracting State cannot be regarded as constituting a ground for remaining there, in particular because no serious efforts have been made by that Turkish national to achieve stable economic integration without reliance on social benefits to ensure the means of subsistence? |
| --- | --- |

2.

Can a Turkish national then also rely on the freedom of movement under the EEC/Turkey Association as a worker within the terms of Article 6(1) of Decision No 1/80 if the purpose of the stay for which he entered the country is no longer applicable (in the present case, joining a spouse for the purpose of family reunification), if there are no other interests for remaining in the contracting State which merit protection, and if the possibility of continuing to engage in a minimal activity in the contracting State cannot be regarded as constituting a ground for remaining there, in particular because no serious efforts have been made by that Turkish national to achieve stable economic integration without reliance on social benefits to ensure the means of subsistence?

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| 1.5.2009 | EN | Official Journal of the European Union | C 102/10 |
| --- | --- | --- | --- |

1.5.2009

EN

Official Journal of the European Union

C 102/10

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Reference for a preliminary ruling from the Arbeitsgericht Hamburg (Germany) lodged on 2 February 2009 — Gisela Rosenbladt v Oellerking Gebäudereinigungsgesellschaft mbH

(Case C-45/09)

2009/C 102/14

Language of the case: German

Referring court

Arbeitsgericht Hamburg

Parties to the main proceedings

Applicant: Gisela Rosenbladt

Defendant: Oellerking Gebäudereinigungsgesellschaft mbH

Questions referred

| 1. | Following the entry into force of the German General law on equal treatment (Allgemeines Gleichbehandlungsgesetz; ‘the AGG’) are the rules under collective law, which discriminate based on age, compatible with the prohibition of age discrimination in Article 1 and Article 2(1) of Council Directive 2000/78/EC of 27 November 2000 (1) establishing a general framework for equal treatment in employment and occupation, without the AGG expressly permitting this (as was previously the case in Paragraph 10 Sentence 3 Point 7 of the AGG)? |
| --- | --- |

1.

Following the entry into force of the German General law on equal treatment (Allgemeines Gleichbehandlungsgesetz; ‘the AGG’) are the rules under collective law, which discriminate based on age, compatible with the prohibition of age discrimination in Article 1 and Article 2(1) of Council Directive 2000/78/EC of 27 November 2000 (1) establishing a general framework for equal treatment in employment and occupation, without the AGG expressly permitting this (as was previously the case in Paragraph 10 Sentence 3 Point 7 of the AGG)?

| 2. | Does a national rule that permits the state, the parties to a collective agreement and the parties to an individual employment contract to specify the automatic termination of an employment relationship upon reaching a specific fixed age (in this case: reaching the age of 65), contravene the prohibition of age discrimination laid down in Article 1 and Article 2(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation if, according to established practice in place for several decades in the Member State, clauses of this type have consistently applied to the employment relationships of nearly all workers, irrespective of the prevailing economic, social and demographic state of affairs and the actual labour market situation? |
| --- | --- |

2.

Does a national rule that permits the state, the parties to a collective agreement and the parties to an individual employment contract to specify the automatic termination of an employment relationship upon reaching a specific fixed age (in this case: reaching the age of 65), contravene the prohibition of age discrimination laid down in Article 1 and Article 2(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation if, according to established practice in place for several decades in the Member State, clauses of this type have consistently applied to the employment relationships of nearly all workers, irrespective of the prevailing economic, social and demographic state of affairs and the actual labour market situation?

| 3. | Does a collective agreement that permits an employer to end an employment relationship at a specific fixed age (in this case: reaching the age of 65), contravene the prohibition of age discrimination laid down in Article 1 and Article 2(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation if, according to established practice in place for several decades in the Member State, clauses of this type have consistently applied to the employment relationships of nearly all workers, irrespective of the prevailing economic, social and demographic state of affairs and the actual labour market situation? |
| --- | --- |

3.

Does a collective agreement that permits an employer to end an employment relationship at a specific fixed age (in this case: reaching the age of 65), contravene the prohibition of age discrimination laid down in Article 1 and Article 2(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation if, according to established practice in place for several decades in the Member State, clauses of this type have consistently applied to the employment relationships of nearly all workers, irrespective of the prevailing economic, social and demographic state of affairs and the actual labour market situation?

| 4. | Does a state that declares a collective agreement permitting employers to end employment relationships at a specific fixed age (in this case: reaching the age of 65) to be generally applicable and upholds this extension contravene the prohibition of age discrimination laid down in Article 1 and Article 2(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, if this is effected irrespective of the prevailing economic, social and demographic state of affairs and irrespective of the actual labour market situation? |
| --- | --- |

4.

Does a state that declares a collective agreement permitting employers to end employment relationships at a specific fixed age (in this case: reaching the age of 65) to be generally applicable and upholds this extension contravene the prohibition of age discrimination laid down in Article 1 and Article 2(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, if this is effected irrespective of the prevailing economic, social and demographic state of affairs and irrespective of the actual labour market situation?

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

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| 1.5.2009 | EN | Official Journal of the European Union | C 102/11 |
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1.5.2009

EN

Official Journal of the European Union

C 102/11

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Action brought on 2 February 2009 — Commission of the European Communities v Republic of Poland

(Case C-49/09)

2009/C 102/15

Language of the case: Polish

Parties

Applicant: Commission of the European Communities (represented by: D. Triantafyllou and K. Herrmann, acting as Agents)

Defendant: Republic of Poland

Form of order sought

| — | declare that, by applying a reduced VAT rate of 7 % to supplies, the import and the intra-Community acquisition of clothing and clothing accessories for babies and of children’s footwear on the basis of Article 41(2) of the Law on Goods and Services Tax (ustawa o podatku od towarów i usług) of 11 March 2004, in conjunction with items 45 and 47 of Annex III to that Law, the Republic of Poland has failed to fulfil its obligations under Article 98 of Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, (1) in conjunction with Annex III thereto; |
| --- | --- |

—

declare that, by applying a reduced VAT rate of 7 % to supplies, the import and the intra-Community acquisition of clothing and clothing accessories for babies and of children’s footwear on the basis of Article 41(2) of the Law on Goods and Services Tax (ustawa o podatku od towarów i usług) of 11 March 2004, in conjunction with items 45 and 47 of Annex III to that Law, the Republic of Poland has failed to fulfil its obligations under Article 98 of Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, (1) in conjunction with Annex III thereto;

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

—

order the Republic of Poland to pay the costs.

Pleas in law and main arguments

In the applicant’s view, the Republic of Poland’s application of a reduced VAT rate of 7% to supplies, the import and the intra-Community acquisition of clothing and clothing accessories for babies and of children’s footwear on the basis of Article 41(2) of the Law on Goods and Services Tax of 11 March 2004, in conjunction with items 45 and 47 of Annex III to that Law, is contrary to the explicit provisions of Article 98 of Directive 2006/112/EC. Application of that reduced rate to the abovementioned goods is not covered by any derogation accorded to the Republic of Poland in point 1(a) and (b) of Chapter 9 (‘Taxation’) of Annex XII to the Act concerning the conditions of accession of the Republic of Poland to the European Union or in Article 128 of Directive 2006/112/EC.

---

(1)  OJ No L 347, 11.12.2006, p. 1.

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| 1.5.2009 | EN | Official Journal of the European Union | C 102/11 |
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1.5.2009

EN

Official Journal of the European Union

C 102/11

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Reference for a preliminary ruling from the Juzgado de lo Mercantil 4, Barcelona (Spain) lodged on 13 February 2009 — Axel Walz v Clickair SA

(Case C-63/09)

2009/C 102/16

Language of the case: Spanish

Referring court

Juzgado de lo Mercantil 4, Barcelona

Parties to the main proceedings

Applicant: Axel Walz

Defendant: Clickair SA

Question referred

Does the limit of liability referred to in Article 22.2 of the Convention for the Unification of Certain Rules for International Carriage, signed in Montreal on 28 May 1999, include both non-material damage and material damage resulting from the loss of baggage?

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| 1.5.2009 | EN | Official Journal of the European Union | C 102/12 |
| --- | --- | --- | --- |

1.5.2009

EN

Official Journal of the European Union

C 102/12

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Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 17 February 2009 — Alexander Hengartner and Rudolf Gasser

(Case C-70/09)

2009/C 102/17

Language of the case: German

Referring court

Verwaltungsgerichtshof

Parties to the main proceedings

Applicants: Alexander Hengartner, Rudolf Gasser

Defendant: Vorarlberger Landesregierung

Question referred

Is the carrying on of hunting, if the person licensed to hunt sells the shot wildlife within the country concerned, a self-employed activity within the meaning of Art. 43 EC, even if that activity is not intended to make an overall profit?

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| 1.5.2009 | EN | Official Journal of the European Union | C 102/12 |
| --- | --- | --- | --- |

1.5.2009

EN

Official Journal of the European Union

C 102/12

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Reference for a preliminary ruling from the Cour de Cassation (France) lodged on 18 February 2009 — Ėtablissements Rimbaud SA v Directeur général des impôts, Directeur des services fiscaux d’Aix-en-Provence

(Case C-72/09)

2009/C 102/18

Language of the case: French

Referring court

Cour de Cassation

Parties to the main proceedings

Applicant: Ėtablissements Rimbaud SA

Defendants: Directeur général des impôts, Directeur des services fiscaux d’Aix-en-Provence

Question referred

Does Article 40 of the Agreement on the European Economic Area preclude legislation such as that imposed by Article 990D et seq. of the Code général des impôts, in the version applicable at the relevant time, which exempts from the 3% tax on the market value of immovable property situated in France companies which have their registered office in France and which, in respect of a company which has its registered office in a country in the European Economic Area and which is not a member of the European Union, makes that exemption subject either to the existence of a convention on administrative assistance between France and that State for the purposes of combating tax avoidance and tax evasion or to the existence of a requirement in a treaty containing a clause prohibiting discrimination on grounds of nationality to the effect that those legal persons cannot be more heavily taxed than companies established in France?

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| 1.5.2009 | EN | Official Journal of the European Union | C 102/12 |
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1.5.2009

EN

Official Journal of the European Union

C 102/12

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Reference for a preliminary ruling from the Cour de cassation (Belgium) lodged on 18 February 2009 — Bâtiments et Ponts Construction SA, Thyssenkrupp Industrieservice v Berlaymont 2000 SA

(Case C-74/09)

2009/C 102/19

Language of the case: French

Referring court

Cour de cassation

Parties to the main proceedings

Applicants: Bâtiments et Ponts Construction, Thyssenkrupp Industrieservice

Defendant: Berlaymont 2000

Questions referred

| 1. | Is the obligation to hold a registration in order to be awarded a public contract in Belgium, such as that imposed by Article 1.G of the special conditions applicable in the present case, contrary to the principle of freedom of movement within the European Union and to the second paragraph of Article 24 of 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts, (1) if it had to be interpreted as permitting the Belgian contracting authority to exclude from the tender procedure a foreign contractor who does not hold a registration but has produced equivalent certificates from his national authorities? |
| --- | --- |

1.

Is the obligation to hold a registration in order to be awarded a public contract in Belgium, such as that imposed by Article 1.G of the special conditions applicable in the present case, contrary to the principle of freedom of movement within the European Union and to the second paragraph of Article 24 of 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts, (1) if it had to be interpreted as permitting the Belgian contracting authority to exclude from the tender procedure a foreign contractor who does not hold a registration but has produced equivalent certificates from his national authorities?

| 2. | Is it contrary to the principle of freedom of movement within the European Union and to the second paragraph of Article 24 of 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts to grant a Belgian contracting authority the power to require foreign tenderers to submit to a Belgian authority — the committee for the registration of contractors — for assessment of the validity of the certificates which have been issued to them by the tax and social security authorities of their State, attesting that they have fulfilled the obligations imposed on them relating to tax and social security? |
| --- | --- |

2.

Is it contrary to the principle of freedom of movement within the European Union and to the second paragraph of Article 24 of 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts to grant a Belgian contracting authority the power to require foreign tenderers to submit to a Belgian authority — the committee for the registration of contractors — for assessment of the validity of the certificates which have been issued to them by the tax and social security authorities of their State, attesting that they have fulfilled the obligations imposed on them relating to tax and social security?

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(1)  OJ 1993 L 199, p. 54.

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| 1.5.2009 | EN | Official Journal of the European Union | C 102/13 |
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1.5.2009

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Official Journal of the European Union

C 102/13

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Reference for a preliminary ruling from the Commissione Tributaria Provinciale di Alessandria (Italy) lodged on 20 February 2009 — Agra Srl v Agenzia Dogane Ufficio delle Dogane di Alessandria

(Case C-75/09)

2009/C 102/20

Language of the case: Italian

Referring court

Commissione Tributaria Provinciale di Alessandria

Parties to the main proceedings

Applicant: Agra Srl

Defendant: Agenzia Dogane Ufficio delle Dogane di Alessandria

Question referred

In the light of Article 11 of Legislative Decree No 374/[1990], read in conjunction with Article 221(3) of Regulation (EC) No 2913/1992 and Article 221(4) thereof, regard being had to Article 84(3) of the Consolidated laws on customs matters (Presidential Decree No 43/1973), is the right of the Customs Authority to revise the assessment [of the customs debt] time-barred, and/or has it lapsed, on the expiry of the three-year period from the date of the customs declaration, or can those time-limits be interrupted and/or suspended pending the outcome of criminal proceedings for infringement of the customs rules in relation to the assessment?

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| 1.5.2009 | EN | Official Journal of the European Union | C 102/13 |
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1.5.2009

EN

Official Journal of the European Union

C 102/13

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Reference for a preliminary ruling from the Tribunale Amministrativo Regionale del Lazio (Italy) lodged on 20 February 2009 — Gowan Comercio Internacional e Servicos Limitada v Ministero della Salute

(Case C-77/09)

2009/C 102/21

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale del Lazio

Parties to the main proceedings

Applicant: Gowan Comercio Internacional e Servicos Limitada

Defendant: Ministero della Salute

Question referred

In view of the fact that the conclusion of the technical and scientific assessment carried out by the Rapporteur State appears to be that the risk arising from the use of fenarimol is acceptable, is Directive 2006/134/EC, which significantly limited such use, valid?

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| 1.5.2009 | EN | Official Journal of the European Union | C 102/13 |
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1.5.2009

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Official Journal of the European Union

C 102/13

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Appeal brought on 24 February 2009 by Compagnie des bateaux mouches SA against the judgment delivered on 10 December 2008 in Case T-365/06 Bateaux mouches v OHIM

(Case C-78/09 P)

2009/C 102/22

Language of the case: French

Parties

Appellant: Compagnie des bateaux mouches SA (represented by: G. Barbaut, lawyer)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Jean-Noël Castanet

Form of order sought

| — | Declare the appeal of Compagnie des bateaux mouches admissible; |
| --- | --- |

—

Declare the appeal of Compagnie des bateaux mouches admissible;

| — | set aside the judgment of the Court of First Instance of the European Communities of 10 December 2008 (Case T-365/06); |
| --- | --- |

—

set aside the judgment of the Court of First Instance of the European Communities of 10 December 2008 (Case T-365/06);

| — | Order the Court of First Instance of the European Communities to pay all the costs. |
| --- | --- |

—

Order the Court of First Instance of the European Communities to pay all the costs.

Pleas in law and main arguments

The appellant raises two pleas in support of its appeal.

By its first plea, the appellant alleges breach by the Court of First Instance of Article 7(1)(b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark. (1) In that regard, it complains first that the Court of First Instance disregarded the intrinsic distinctive character which the mark had from the outset. Secondly, that distinctive character was even maintained and reinforced over time by the use made thereof by the appellant. The mark ‘BATEAUX MOUCHES’ is displayed on the boats used by the appellant — and by it alone — for tourist trips on the River Seine, the use of the terms ‘bateaux mouches’ on Internet search engines leads directly to the appellant’s website and the appellant has implemented an active policy of defending its mark against all abusive use.

By its second plea, the appellant complains that the Court of First Instance wrongly interpreted the criteria laid down by case-law enabling establishment of the acquisition by use of the distinctive character of the mark ‘BATEAUX MOUCHES’. The factors capable of demonstrating the mark’s distinctive character, such as the market share held by the mark, the intensity, geographical spread and duration of the use of that mark, the size of the investment made by the company to promote it, the proportion in the relevant fields of those who identify the product or service as coming from a particular undertaking because of the mark, should have been examined, as a whole and not merely in part, by the Court of First Instance.

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

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| 1.5.2009 | EN | Official Journal of the European Union | C 102/14 |
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1.5.2009

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Official Journal of the European Union

C 102/14

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Reference for a preliminary ruling from the Simvoulio tis Epikratias (Greece), lodged on 25 February 2009 — Idrima Tipou A.E. v Ipourgos Tipou Kai Meson Mazikis Enimerosis

(Case C-81/09)

2009/C 102/23

Language of the case: Greek

Referring court

Simvoulio tis Epikratias

Parties to the main proceedings

Claimant: Idrima Tipou A.E.

Defendants: Ipourgos Tipou kai Meson Mazikis Enimerosis

Question referred

Does Directive 68/151/EEC, which provides in Article 1 that ‘the coordination measures prescribed by this Directive shall apply to the laws, regulations and administrative provisions of the Member States relating to the following types of company: ... — in Greece: ανώνυμη εταιρία.’, contain a rule prohibiting the adoption of a national provision, such as Article 4(3) of Law 2328/1995, in so far as it specifies that the fines provided for in the preceding paragraphs of that article for infringement of legislation and rules of good conduct governing the operation of television stations are imposed jointly and severally on both the company which holds the licence to found and operate the television station and on all shareholders with a holding of over 2.5%?

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| 1.5.2009 | EN | Official Journal of the European Union | C 102/14 |
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1.5.2009

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Official Journal of the European Union

C 102/14

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Reference for a preliminary ruling from the Simvoulio tis Epikratias (Greece) lodged on 25 February 2009 — Municipality of Agios Nikolaos (Crete) v Minister for Rural Development and Food

(Case C-82/09)

2009/C 102/24

Language of the case: Greek

Referring court

Simvoulio tis Epikratias

Parties to the main proceedings

Applicant: Municipality of Agios Nikolaos, Crete

Defendant: Minister for Rural Development and Food

Question referred

| 1. | Do the definitions of forest and wooded land in Article 3(a) and (b) of Regulation (EC) No 2152/2003 apply to matters of protection and management, in general, of forest and wooded land as defined above, which are not expressly governed by the Regulation, but for which provision is made in the national legal order? |
| --- | --- |

1.

Do the definitions of forest and wooded land in Article 3(a) and (b) of Regulation (EC) No 2152/2003 apply to matters of protection and management, in general, of forest and wooded land as defined above, which are not expressly governed by the Regulation, but for which provision is made in the national legal order?

| 2. | If the answer to question 1 is in the affirmative, may the national legal order also define as forest or wooded land land that is not forests or wooded land under the definitions given in Article 3(a) and (b) of Regulation (EC) No 2152/2003? |
| --- | --- |

2.

If the answer to question 1 is in the affirmative, may the national legal order also define as forest or wooded land land that is not forests or wooded land under the definitions given in Article 3(a) and (b) of Regulation (EC) No 2152/2003?

| 3. | If the answer to question 2 is in the affirmative, can the definition that may be given by the national legal order of forests and wooded land to include land that does not constitute forest or wooded land under the definitions in Article 3(a) and (b) of Regulation (EC) No 2152/2003 differ from the definition in the above Regulation both as to the constituent elements included in the definition of forest or wooded land by the Regulation and as to the numerical determination of the dimensions of those elements that may be in common with the Regulation?
  Alternatively can that definition under the national legal order include constituent elements of the definition of forest or wooded land that are different from those included in the Regulation’s definition, but as to elements that it has in common with the Regulation its being permissible not to determine them numerically; if it does determine them numerically though, is it precluded from deviating from that (numerical determination) under the Regulation? |
| --- | --- |

3.

If the answer to question 2 is in the affirmative, can the definition that may be given by the national legal order of forests and wooded land to include land that does not constitute forest or wooded land under the definitions in Article 3(a) and (b) of Regulation (EC) No 2152/2003 differ from the definition in the above Regulation both as to the constituent elements included in the definition of forest or wooded land by the Regulation and as to the numerical determination of the dimensions of those elements that may be in common with the Regulation?

Alternatively can that definition under the national legal order include constituent elements of the definition of forest or wooded land that are different from those included in the Regulation’s definition, but as to elements that it has in common with the Regulation its being permissible not to determine them numerically; if it does determine them numerically though, is it precluded from deviating from that (numerical determination) under the Regulation?

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| 1.5.2009 | EN | Official Journal of the European Union | C 102/15 |
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1.5.2009

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Official Journal of the European Union

C 102/15

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Appeal brought on 25 February 2009 by the Commission of the European Communities against the judgment delivered by the Court of First Instance (Seventh Chamber) on 10 December 2008 in Case T-388/02 Kronoply GmbH & Co. KG and Kronotex GmbH & Co. KG v Commission of the European Communities, supported by Zellstoff Stendal GmbH, Federal Republic of Germany and Land Sachsen-Anhalt

(Case C-83/09 P)

2009/C 102/25

Language of the case: German

Parties

Appellant: Commission of the European Communities (represented by: K. Gross and V. Kreuschitz, Agents)

Other parties to the proceedings: Kronoply GmbH & Co. KG, Kronotex GmbH & Co. KG, Zellstoff Stendal GmbH, Federal Republic of Germany and Land Sachsen-Anhalt

Form of order sought

| — | Set aside the judgment under appeal in so far as it declares admissible the action for annulment brought by Kronoply GmbH & Co. KG and Kronotex GmbH & Co. KG against the Commission’s decision of 19 June 2002 to raise no objections to aid granted by Germany in favour of Zellstoff Stendal GmbH for the construction of a production plant for pulp; |
| --- | --- |

—

Set aside the judgment under appeal in so far as it declares admissible the action for annulment brought by Kronoply GmbH & Co. KG and Kronotex GmbH & Co. KG against the Commission’s decision of 19 June 2002 to raise no objections to aid granted by Germany in favour of Zellstoff Stendal GmbH for the construction of a production plant for pulp;

| — | dismiss as inadmissible the action for annulment brought by Kronoply GmbH & Co. KG and Kronotex GmbH & Co. KG against the contested act; |
| --- | --- |

—

dismiss as inadmissible the action for annulment brought by Kronoply GmbH & Co. KG and Kronotex GmbH & Co. KG against the contested act;

| — | order Kronoply GmbH & Co. KG and Kronotex GmbH & Co. KG to pay the costs. |
| --- | --- |

—

order Kronoply GmbH & Co. KG and Kronotex GmbH & Co. KG to pay the costs.

Pleas in law and main arguments

In the Commission’s view, the establishment of a right of action against decisions on aid in favour of parties concerned within the meaning of Article 88(2) EC infringes the requirements laid down in the fourth paragraph of Article 230 EC as to the admissibility of actions. Parties concerned who are not parties to the aid procedure do not have their own party rights, enforceable by bringing proceedings. Instead, individual concern is to be determined on the basis of the Court’s Plaumann formula. Individual concern can, therefore, arise only by virtue of the economic impact of the aid on the applicant.

In addition, the judgment under appeal includes an inadmissible reinterpretation of the forms of order sought. In the Commission’s opinion, the Court examined arguments put forward by the applicant which were not put forward in regard to the protection of the applicant’s alleged procedural rights, even though the action was admissible only for the purposes of protecting the alleged procedural rights.

The judgment under appeal would ultimately lead to the introduction of a popular action against State aid law decisions which is extraneous to Community law.

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| 1.5.2009 | EN | Official Journal of the European Union | C 102/16 |
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1.5.2009

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Official Journal of the European Union

C 102/16

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Appeal brought on 27 February 2009 by Portela — Comércio de artigos ortopédicos e hospitalares, Lda against the order made by the Court of First Instance on 17 December 2008 in Case T-137/07 Portela — Comércio de artigos ortopédicos e hospitalares, Lda v Commission of the European Communities

(Case C-85/09 P)

2009/C 102/26

Language of the case: Portuguese

Parties

Appellant: Portela — Comércio de artigos ortopédicos e hospitalares, Lda (represented by C. Mourato, advogado)

Other party to the proceedings: Commission of the European Communities

Form of order sought

The appellant claims that the Court should:

| — | set aside, in part, the order under appeal in so far as it considered that no causal connection had been established between the Commission’s failure to act and the damage allegedly sustained (paragraphs 96, 97, 99, 100 and 101 of the order under appeal) by the appellant; |
| --- | --- |

—

set aside, in part, the order under appeal in so far as it considered that no causal connection had been established between the Commission’s failure to act and the damage allegedly sustained (paragraphs 96, 97, 99, 100 and 101 of the order under appeal) by the appellant;

and, ruling on the merits,

| — | declare, primarily, that in this case the conditions necessary for the Commission to incur non-contractual liability have been satisfied; order the Commission to pay compensation for the damage alleged, and order the Commission to pay all the costs at both instances, including the appellant’s; |
| --- | --- |

—

declare, primarily, that in this case the conditions necessary for the Commission to incur non-contractual liability have been satisfied; order the Commission to pay compensation for the damage alleged, and order the Commission to pay all the costs at both instances, including the appellant’s;

| — | or, refer the case back to the Court of First Instance for it to ascertain whether the conditions necessary for the Commission to incur non-contractual liability have been satisfied; order the Commission to pay compensation for the damage alleged, and order the Commission to pay the costs — including the appellant’s — of these proceedings and of those before the Court of First Instance. |
| --- | --- |

—

or, refer the case back to the Court of First Instance for it to ascertain whether the conditions necessary for the Commission to incur non-contractual liability have been satisfied; order the Commission to pay compensation for the damage alleged, and order the Commission to pay the costs — including the appellant’s — of these proceedings and of those before the Court of First Instance.

Pleas in law and main arguments

| — | The order under appeal is insufficiently reasoned, for the Court of First Instance has not answered the arguments raised by the appellant, in paragraphs 92 and 93 of the original application, to the effect that the fact that the manufacturer had no authorised representative for Community territory, as required by the directive, rendered impossible the conformity assessment procedure carried out by the notified body and, lastly, concerning the Commission’s assertion that it had not been called upon to take part in the safeguard procedure because the Portuguese authority Infarmed had failed to act in accordance with Article 14b of Council Directive 93/42/EC (1) of 14 June 1993 concerning medical devices, as amended by Directive 98/79/EC (2) of the European Parliament and of the Council of 27 October 1998 on in vitro diagnostic medical devices; |
| --- | --- |

—

The order under appeal is insufficiently reasoned, for the Court of First Instance has not answered the arguments raised by the appellant, in paragraphs 92 and 93 of the original application, to the effect that the fact that the manufacturer had no authorised representative for Community territory, as required by the directive, rendered impossible the conformity assessment procedure carried out by the notified body and, lastly, concerning the Commission’s assertion that it had not been called upon to take part in the safeguard procedure because the Portuguese authority Infarmed had failed to act in accordance with Article 14b of Council Directive 93/42/EC (1) of 14 June 1993 concerning medical devices, as amended by Directive 98/79/EC (2) of the European Parliament and of the Council of 27 October 1998 on in vitro diagnostic medical devices;

| — | error in the assessment of the causal connection between the Commission’s conduct and the damage suffered by the appellant and misinterpretation of Articles 8 and 14b of the Directive by the Court of First Instance; |
| --- | --- |

—

error in the assessment of the causal connection between the Commission’s conduct and the damage suffered by the appellant and misinterpretation of Articles 8 and 14b of the Directive by the Court of First Instance;

| — | infringement of the right to a fair hearing by refusing the measures of inquiry sought by the appellant. |
| --- | --- |

—

infringement of the right to a fair hearing by refusing the measures of inquiry sought by the appellant.

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(1)  OJ 1993 L 169, p. 1.

(2)  OJ 1998 L 331, p. 1.

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| 1.5.2009 | EN | Official Journal of the European Union | C 102/16 |
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C 102/16

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Reference for a preliminary ruling from VAT and Duties Tribunal, Manchester (United Kingdom) made on 27 February 2009 — Future Health Technologies Ltd v Her Majesty's Commissioners of Revenue and Customs

(Case C-86/09)

2009/C 102/27

Language of the case: English

Referring court

VAT and Duties Tribunal, Manchester

Parties to the main proceedings

Applicant: Future Health Technologies Ltd

Defendant: Her Majesty's Commissioners of Revenue and Customs

Questions referred

| 1. | In circumstances where a Member State accepts that services are carried out by an establishment falling to be treated as a duly recognised establishment of a similar nature to a hospital or a centre for medical treatment or diagnosis within Article 132.1(b) of the Principal VAT Directive (1), is the expression ‘hospital and medical care’ in Article 132.1(b) to be interpreted as including the aggregate of or, alternatively, one or more of (and if so which) services of the following descriptions (as more fully described in the Agreed Statement of Facts):






  a) | The provision to the parents of an unborn child of a kit of the necessary medical equipment to enable an independent medical professional attending the birth to collect blood from the umbilical cord of the child shortly after birth; |
| --- | --- | --- |

1.

In circumstances where a Member State accepts that services are carried out by an establishment falling to be treated as a duly recognised establishment of a similar nature to a hospital or a centre for medical treatment or diagnosis within Article 132.1(b) of the Principal VAT Directive (1), is the expression ‘hospital and medical care’ in Article 132.1(b) to be interpreted as including the aggregate of or, alternatively, one or more of (and if so which) services of the following descriptions (as more fully described in the Agreed Statement of Facts):

a)

The provision to the parents of an unborn child of a kit of the necessary medical equipment to enable an independent medical professional attending the birth to collect blood from the umbilical cord of the child shortly after birth;

| b) | The testing of the blood thereby collected at a purpose-built facility for the purpose of ensuring that it is not contaminated with any medical condition that could be transmitted via the blood or via an extract of stem cells from the blood in the event of the therapeutic use of the stem cells (with similar testing occurring again after 6 months) |
| --- | --- |

b)

The testing of the blood thereby collected at a purpose-built facility for the purpose of ensuring that it is not contaminated with any medical condition that could be transmitted via the blood or via an extract of stem cells from the blood in the event of the therapeutic use of the stem cells (with similar testing occurring again after 6 months)

| c) | The processing of the said blood by and under the supervision of suitably-qualified medical professionals to extract a sample of stem cells suitable for therapeutic medical use; |
| --- | --- |

c)

The processing of the said blood by and under the supervision of suitably-qualified medical professionals to extract a sample of stem cells suitable for therapeutic medical use;

| d) | The storing of the blood and stem cells in scientifically controlled conditions designed to maintain and preserve the blood and stem cells in perfect condition; and/or |
| --- | --- |

d)

The storing of the blood and stem cells in scientifically controlled conditions designed to maintain and preserve the blood and stem cells in perfect condition; and/or

| e) | The releasing of the blood on request of the parents (until the child is 18 years old) for use in medical treatment? |
| --- | --- |

e)

The releasing of the blood on request of the parents (until the child is 18 years old) for use in medical treatment?

| 2. | Alternatively, should the concept of activities that are ‘closely related’ to hospital and medical care in Article 132.1(b) of the Principal VAT Directive be interpreted so as to include all or any (and if so which) of the above services? |
| --- | --- |

2.

Alternatively, should the concept of activities that are ‘closely related’ to hospital and medical care in Article 132.1(b) of the Principal VAT Directive be interpreted so as to include all or any (and if so which) of the above services?

| 3. | In circumstances where a Member State accepts that the said services are carried out by or under the supervision of one or more suitably-qualified medical professionals, is the expression ‘the provision of medical care’ in Article 132.1(c) of the Principal VAT Directive to be interpreted as including the aggregate of or, alternatively, one or more of (and if so which) services of the following descriptions (as more fully described in the Agreed Statement of Facts):






  f) | The provision to the parents of an unborn child of a kit of the necessary medical equipment to enable an independent medical professional attending the birth to collect blood from the umbilical cord of the child shortly after birth; |
| --- | --- | --- |

3.

In circumstances where a Member State accepts that the said services are carried out by or under the supervision of one or more suitably-qualified medical professionals, is the expression ‘the provision of medical care’ in Article 132.1(c) of the Principal VAT Directive to be interpreted as including the aggregate of or, alternatively, one or more of (and if so which) services of the following descriptions (as more fully described in the Agreed Statement of Facts):

f)

The provision to the parents of an unborn child of a kit of the necessary medical equipment to enable an independent medical professional attending the birth to collect blood from the umbilical cord of the child shortly after birth;

| g) | The testing of the blood thereby collected at a purpose-built facility for the purpose of ensuring that it is not contaminated with any medical condition that could be transmitted via the blood or via an extract of stem cells from the blood in the event of the therapeutic use of the stem cells (with similar testing occurring again after 6 months) |
| --- | --- |

g)

The testing of the blood thereby collected at a purpose-built facility for the purpose of ensuring that it is not contaminated with any medical condition that could be transmitted via the blood or via an extract of stem cells from the blood in the event of the therapeutic use of the stem cells (with similar testing occurring again after 6 months)

| h) | The processing of the said blood by and under the supervision of suitably-qualified medical professionals to extract a sample of stem cells suitable for therapeutic medical use; |
| --- | --- |

h)

The processing of the said blood by and under the supervision of suitably-qualified medical professionals to extract a sample of stem cells suitable for therapeutic medical use;

| i) | The storing of the blood and stem cells in scientifically controlled conditions designed to maintain and preserve the blood and stem cells in perfect condition; and/or |
| --- | --- |

i)

The storing of the blood and stem cells in scientifically controlled conditions designed to maintain and preserve the blood and stem cells in perfect condition; and/or

| j) | The releasing of the blood on request of the parents (until the child is 18 years old) for use in medical treatment? |
| --- | --- |

j)

The releasing of the blood on request of the parents (until the child is 18 years old) for use in medical treatment?

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

OJ L 347, p. 1

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Court of First Instance

| 1.5.2009 | EN | Official Journal of the European Union | C 102/18 |
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Judgment of the Court of First Instance of 16 March 2009 — R v Commission

(Case T-156/08 P) (1)

(Appeal - Staff case - Probationary officials - Probation report - No act adversely affecting the applicant - Time-limit for initiating proceedings - Lateness)

2009/C 102/28

Language of the case: French

Parties

Appellant: R (Brussels, Belgium) (represented by: Y. Minatchy, avocat)

Other party to the proceedings: Commission of the European Communities (represented by: D. Martin and K. Herrmann, Agents)

Re:

Appeal brought against the order of the European Union Civil Service Tribunal (First Chamber) of 19 February 2008 in Case F-49/07 R v Commission, not yet published in the ECR, requesting that that order be set aside.

Operative part of the judgment

The Court:

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

1.

Dismisses the appeal;

| 2. | Orders R to pay his own costs as well as those incurred by the Commission in the context of the present appeal. |
| --- | --- |

2.

Orders R to pay his own costs as well as those incurred by the Commission in the context of the present appeal.

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(1)  OJ C 171, 5.7.2008.

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| 1.5.2009 | EN | Official Journal of the European Union | C 102/18 |
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Action brought on 9 February 2009 — Deutsche Behindertenhilfe — Aktion Mensch v OHIM

(Case T-47/09)

2009/C 102/29

Language in which the application was lodged: German

Parties

Applicant: Deutsche Behindertenhilfe — Aktion Mensch (Mainz, Germany) (represented by V. Töbelmann and A. Piltz, lawyers)

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

Form of order sought

| — | Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 27 November 2008 in Case R 1094/2008-1; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 27 November 2008 in Case R 1094/2008-1;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘diegesellschafter.de’ for services in Classes 35 and 41 (application No 4 606 372)

Decision of the Examiner: Rejection of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Breach of Article 7(1)(b) and (c) of Regulation (EC) NO 40/94, (1) since the marks cited have the required distinctive character and there is no requirement to keep the mark free.

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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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| 1.5.2009 | EN | Official Journal of the European Union | C 102/18 |
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1.5.2009

EN

Official Journal of the European Union

C 102/18

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Action brought on 13 February 2009 — Swarovski v OHIM — Swarovski (Daniel Swarovski Privat)

(Case T-55/09)

2009/C 102/30

Language in which the application was lodged: German

Parties

Applicant: Daniel Swarovski (Volders, Austria) (represented by: R. Küppers, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Swarovski AG (Triesen, Liechtenstein)

Form of order sought

| — | Annul the decision of the First Board of Appeal of 9 November 2008 in Case R 0348/2008-1; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of 9 November 2008 in Case R 0348/2008-1;

| — | dismiss the appeal; |
| --- | --- |

—

dismiss the appeal;

| — | order the intervener to pay the costs of the proceedings, including the costs of the appeal proceedings. |
| --- | --- |

—

order the intervener to pay the costs of the proceedings, including the costs of the appeal proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: Daniel Swarovski

Community trade mark concerned: Word mark ‘Daniel Swarovski Privat’ for goods and services in classes 3, 4, 8, 9, 15, 16, 18, 20, 21, 26, 28, 29, 30, 31, 32, 33, 39 and 44 (application No 3 981 099)

Proprietor of the mark or sign cited in the opposition proceedings: Swarovski AG

Mark or sign cited in opposition: Word mark ‘DANIEL SWAROVSKI’ for goods and services in classes 16, 18, 21, 25 and 41 (Community trade mark No 3 895 133); word mark ‘Swarovski’ for goods and services in classes 2, 3, 6, 8, 9, 11, 16, 18, 19, 20, 21, 24, 25, 28, 34, 35 and 41 (Community trade mark No 3 895 091); word mark ‘Swarovski’ for services in class 36 (Austrian word mark No 218 795); word mark ‘Swarovski’ for goods in classes 11, 16, 21 and 34 (Austrian word mark No 96 389); and word mark ‘Swarovski’ for goods in classes 8, 9, 11, 14, 18, 21, 25 and 26 (international registration in respect of Italy No 528 189)

Decision of the Opposition Division: Opposition allowed in part

Decision of the Board of Appeal: Appeal dismissed in part

Pleas in law: Infringement of Article 8(1)(b) and (5) of Regulation (EC) No 40/94 (1) since there is no likelihood of confusion between the marks at issue or the requisite detriment to the earlier marks and, moreover, since the scope of protection of the earlier marks has been determined incorrectly.

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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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| 1.5.2009 | EN | Official Journal of the European Union | C 102/19 |
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1.5.2009

EN

Official Journal of the European Union

C 102/19

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Action brought on 9 February 2009 — Alfastar Benelux v Conseil

(Case T-57/09)

2009/C 102/31

Language of the case: English

Parties

Applicant: Alfastar Benelux (Ixelles, Belgium) (represented by: N. Keramidas, lawyer)

Defendant: Council of the European Union

Form of order sought

| — | annul the Council’s decision to reject the bid of the applicant, filed in response to the open call for Tender UCA-218-07 for the provision of “Technical maintenance — help desk and on site intervention services for the PC’s, printers and peripherals of the general secretariat of the Council” (1) communicated to the applicant by letter dated 1 December 2008 and all further related decisions of the Council including the one to award the contract to the successful contractor; |
| --- | --- |

—

annul the Council’s decision to reject the bid of the applicant, filed in response to the open call for Tender UCA-218-07 for the provision of “Technical maintenance — help desk and on site intervention services for the PC’s, printers and peripherals of the general secretariat of the Council” (1) communicated to the applicant by letter dated 1 December 2008 and all further related decisions of the Council including the one to award the contract to the successful contractor;

| — | order the Council to pay the applicant’s damages suffered on account of the tendering procedure in question for an amount of EUR 2 937 902 or the proportion of the above amount according to the date of annulment of the above decision of the Council; |
| --- | --- |

—

order the Council to pay the applicant’s damages suffered on account of the tendering procedure in question for an amount of EUR 2 937 902 or the proportion of the above amount according to the date of annulment of the above decision of the Council;

| — | order the Council to pay the applicant’s legal costs and expenses incurred in connection with this application, even if current application is rejected. |
| --- | --- |

—

order the Council to pay the applicant’s legal costs and expenses incurred in connection with this application, even if current application is rejected.

Pleas in law and main arguments

In the present case the applicant seeks the annulment of the defendant’s decision to reject its bid submitted in response to a call for an open tender UCA-218-07 for the provision of “Technical maintenance — help desk and on site intervention services for the PC’s, printers and peripherals of the general secretariat of the Council” and to award the contract to the successful contractor. The applicant further requests compensation for the alleged damages in account of the tender procedure.

In support of its claims the applicant puts forward four pleas in law.

First, it argues that the defendant committed several manifest errors of assessment concerning: the absence of certification of the winning tenderer, the absence of NATO security clearance of the personnel of the winning tenderer, the fact that the winning tenderer did not dispose of the personnel offered, the qualifications of the personnel of the winning tenderer as opposed to those of the applicant, the knowledge transfer marks and the evaluation of the number of staff proposed by the tenderers.

Second, the applicant claims that the defendant failed to observe its obligations for equal treatment of the candidates and transparency.

Third, it submits that the call for tender included numerous inconsistencies and inaccurate information.

Last, the applicant contends that the defendant infringed its obligation to motivate its acts.

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(1)  OJ 2008/S 91-122796

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| 1.5.2009 | EN | Official Journal of the European Union | C 102/20 |
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1.5.2009

EN

Official Journal of the European Union

C 102/20

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Action brought on 16 February 2009 — Herhof v OHIM — Stabilator (stabilator)

(Case T-60/09)

2009/C 102/32

Language in which the application was lodged: German

Parties

Applicant: Herhof-Verwaltungsgesellschaft mbH (Solms, Germany) (represented by: A. Zinnecker and T. Bösling, 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: Stabilator sp. z o.o. (Gydnia, Poland)

Form of order sought

| — | Anuul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 16 December 2008 in Joined Cases R 483/2008-4 and R 705/2008-4; |
| --- | --- |

—

Anuul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 16 December 2008 in Joined Cases R 483/2008-4 and R 705/2008-4;

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

—

Order the applicant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Stabilator sp. z o.o.

Community trade mark concerned: the figurative mark ‘stabilator’ for goods and services in Classes 19, 37 and 42, Application No 4 068 961

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

Mark or sign cited in opposition: the word mark ‘STABILAT’ for goods in Classes 1, 7, 11, 20, 37, 40 and 42

Decision of the Opposition Division: opposition allowed in part and application rejected in part

Decision of the Board of Appeal: annulment in part of the contested decision and rejection of the opposition

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 40/94, (1) because there is a likelihood of confusion between the marks at issue or at least a likelihood of association.

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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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| 1.5.2009 | EN | Official Journal of the European Union | C 102/21 |
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1.5.2009

EN

Official Journal of the European Union

C 102/21

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Action brought on 16 February 2009 — Meica v OHIM — Bösinger Fleischwaren (Schinken King)

(Case T-61/09)

2009/C 102/33

Language in which the application was lodged: German

Parties

Applicant: Meica Ammerländische Fleischwarenfabrik Fritz Meinen GmbH & Co KG (Edewecht, Germany) (represented by: S. Russlies, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Bösinger Fleischwaren GmbH (Bösingen, Germany)

Form of order sought

| — | Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 11 December 2008 (Case R 1049/2007-1); |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 11 December 2008 (Case R 1049/2007-1);

| — | Order OHIM to pay the applicant’s costs. |
| --- | --- |

—

Order OHIM to pay the applicant’s costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Bösinger Fleischwaren GmbH

Community trade mark concerned: the word mark ‘Schinken King’ for goods in Classes 29 and 30 (Application No. 3 720 968)

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

Mark or sign cited in opposition: the Community word mark ‘Curry King’ (Community trade mark No 2 885 077) for goods in Class 30 and the German word marks ‘Curry King’ (No 399 02 969,9) and ‘King’ (No 304 04 434,2) for goods in Classes 29 and 30

Decision of the Opposition Division: Rejection of the opposition

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 40/94, (1) because there is a likelihood or confusion or at least a likelihood of association between the marks at issue and of Article 74(1) on the ground of inadequate reasoning of the decision.

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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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| 1.5.2009 | EN | Official Journal of the European Union | C 102/21 |
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1.5.2009

EN

Official Journal of the European Union

C 102/21

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Action brought on 13 February 2009 — Rintisch v OHIM — Bariatrix Europe (PROTI SNACK)

(Case T-62/09)

2009/C 102/34

Language in which the application was lodged: English

Parties

Applicant: Bernhard Rintisch (Bottrop, Germany) (represented by: A. Dreyer, lawyer)

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

Other party to the proceedings before the Board of Appeal: Bariatrix Europe Inc. SAS (Guilherand Granges, France)

Form of order sought

| — | Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 December 2008 in case R 740/2008-4; and |
| --- | --- |

—

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 December 2008 in case R 740/2008-4; and

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

—

Order OHIM to pay the costs.

Pleas in law and main arguments

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

Community trade mark concerned: The word mark “PROTI SNACK”, for goods in classes 5, 29, 30 and 32 — application No 4 992 145

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

Mark or sign cited: German trade mark registration No 39 702 429 of the word mark “PROTI” for goods in classes 29 and 32; German trade mark registration No 39 608 644 of the figurative mark “PROTIPOWER” for goods in classes 29 and 32; German trade mark registration No 39 549 559 of the word mark “PROTIPLUS” for goods in classes 29 and 32; German trade mark registration No 39 629 195 of the trade word “PROTITOP” for goods in classes 29, 30 and 32

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation 40/94 as the Board of Appeal failed to provide an assessment on the merits of the opposition; Infringement of Article 74(2) of Council Regulation 40/94 as the Board of Appeal refused to exercise its discretion or at least failed to state how it exercised such discretion; Misuse of power as the Board of Appeal failed to take into account documents and evidence submitted by the applicant.

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| 1.5.2009 | EN | Official Journal of the European Union | C 102/22 |
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1.5.2009

EN

Official Journal of the European Union

C 102/22

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Action brought on 17 February 2009 — Volkswagen AG v OHIM

(Case T-63/09)

2009/C 102/35

Language in which the application was lodged: German

Parties

Applicant: Volkswagen AG (Wolfsburg, Germany) (represented by: H.-P. Schrammek, C. Drzymalla and S. Risthaus, 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: Suzuki Motor Corporation

Form of order sought

| — | Annul the decision of the Second Board of Appeal of OHIM of 9 December 2008 in Case R-749/2007-2; |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of OHIM of 9 December 2008 in Case R-749/2007-2;

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Suzuki Motor Corporation

Community trade mark concerned: Word mark ‘SWIFT GTi’ for goods in Class 12 (application No 3 456 084)

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

Mark or sign cited in opposition: German word mark ‘GTI’ (No 39 406 386) and international word mark ‘GTI’ (No 717 592) for goods in Class 12

Decision of the Opposition Division: Rejection of the opposition

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Breach of Article 8(1)(b) of Regulation (EC) 40/94, (1) since there is a likelihood of confusion between the two 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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| 1.5.2009 | EN | Official Journal of the European Union | C 102/23 |
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1.5.2009

EN

Official Journal of the European Union

C 102/23

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Action brought on 16 February 2009 — Micro Shaping Ltd v OHIM (>packaging)

(Case T-64/09)

2009/C 102/36

Language in which the application was lodged: German

Parties

Applicant: Micro Shaping Ltd (Worthing, United Kingdom) (represented by: A. Franke, lawyer)

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

Form of order sought

| — | Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 11 December 2008 — Appeal R 1063/2008-1 — in relation to Community trade mark application No 006354311 ‘>packaging’; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 11 December 2008 — Appeal R 1063/2008-1 — in relation to Community trade mark application No 006354311 ‘>packaging’;

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

—

Order the applicant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: the figurative mark ‘>packaging’ for goods and services in Classes 16, 17 and 42 (Application No 6 354 311)

Decision of the Examiner: rejection of the application in part

Decision of the Board of Appeal: dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation (EC) No 40/94, (1) because the mark applied for has the necessary distinctive character and there is no need to retain availability, and of the right to be heard under Article 73 of Regulation No 40/94.

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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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| 1.5.2009 | EN | Official Journal of the European Union | C 102/23 |
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1.5.2009

EN

Official Journal of the European Union

C 102/23

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Appeal brought on 14 February 2009 by Enzo Reali against the Judgment of the European Union Civil Service Tribunal made on 11 December 2008 in case F-136/06, Reali/Commission

(Case T-65/09 P)

2009/C 102/37

Language of the case: English

Parties

Appellant: Enzo Reali (Florence, Italy) (represented by: S. Pappas, lawyer)

Other party to the appeal proceedings: Commission of the European Communities

Form of order sought by the appellant

| — | set aside the appealed decision and, subsequently, cancel the contested decision of the appointing authority; |
| --- | --- |

—

set aside the appealed decision and, subsequently, cancel the contested decision of the appointing authority;

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

—

order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

By means of the present appeal, the appellant seeks to set aside the Civil Service Tribunal’s judgment in Case F-136/06 (1) rejecting the appellant’s action seeking the annulment of the decision of the authority empowered to conclude contracts classifying him at a grade and step at the moment of entering the service at the Commission as contractual agent.

In support of his appeal, the appellant puts forward four pleas in law.

First, he contends that the Civil Service Tribunal erred in law by deciding that the plea of illegality raised in the application at first instance against certain of the General Implementing Provisions (“the GIP”) was inadmissible in the absence of the raising of the same plea in the complaint of the pre-litigation procedure. The appellant submits that the issue of lack of Commission competence to which referred his pleas of illegality should be raised by the Tribunal ex officio. In a subsidiary manner, the appellant claims that, even if the Tribunal was not obliged to raise this issue ex officio, the said plea should have been considered admissible in so far as the legality of the specific criterion for his classification was questioned already in the original complaint.

Second, the appellant submits that the Civil Service Tribunal erred in law in its assessment of the appellant’s diplomas. He contends that determination of the value of a degree must be effected in regards of the national legislation where this degree was obtained since this determination is an exclusive competence of Member States and that the Tribunal reduced arbitrarily the scope of and distorted relevant Italian legislation.

Third, the appellant claims that the Civil Service Tribunal infringed the principle of non-discrimination when assessing the value of the appellant’s diplomas and comparing them to the ones of a person who has completed an undergraduate degree.

Fourth, the appellant states that the appealed judgment contains the contradictory argument as, in his opinion, the Civil Service Tribunal seems both, to take into consideration the Italian legislation and to not apply it for the solution of the case.

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(1)  Not yet reported in ERC

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| 1.5.2009 | EN | Official Journal of the European Union | C 102/24 |
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1.5.2009

EN

Official Journal of the European Union

C 102/24

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Action brought on 18 February 2009 — Pilkington Group e.a. v Commission

(Case T-72/09)

2009/C 102/38

Language of the case: English

Parties

Applicants: Pilkington Group Ltd (St Helens, United Kingdom), Pilkington Automotive Ltd (Lathom, United Kingdom), Pilkington Automotive Deutschland GmbH (Witten, Germany), Pilkington Holding GmbH (Gelsenkirchen, Germany), Pilkington Italia SpA (San Salvo, Italy) (represented by: J. Scott, S. Wisking and K. Fountoukakos-Kyriakakos, Solicitors)

Defendants: Commission of the European Communities

Form of order sought

| — | order the annulment of Article 1(c) of the decision, or in the alternative, order the annulment of Article 1(c) in so far as it states that Pilkington infringed Article 81 EC and Article 53 EEA before January 1999; |
| --- | --- |

—

order the annulment of Article 1(c) of the decision, or in the alternative, order the annulment of Article 1(c) in so far as it states that Pilkington infringed Article 81 EC and Article 53 EEA before January 1999;

| — | order the annulment of Article 2(c) of the decision and/or order a substantial reduction of the fine; |
| --- | --- |

—

order the annulment of Article 2(c) of the decision and/or order a substantial reduction of the fine;

| — | order that the Commission pay the applicants' costs in these proceedings. |
| --- | --- |

—

order that the Commission pay the applicants' costs in these proceedings.

Pleas in law and main arguments

By means of their application, the applicants seek, pursuant to Article 230 EC, the partial annulment of the Commission decision C (2008) 6815, of 12 November 2008, (Case COMP/39.125 — Carglass) and, in particular, its Article 1(c), which states that the applicants infringed Article 81 EC and Article 53 EEA by participating, from 10 March 1998 to 3 September 2002, in a complex of agreements and/or concerted practices in the automotive glass sector in the EEA, or in the alternative; the annulment of Article 1(c) of the contested decision insofar as it states that the applicants have infringed Article 81 EC and Article 53 EEA before 15 January 1999. In addition and accordingly, the applicants seek the annulment of Article 2(c) of the contested decision which imposes a fine on the applicants jointly and severally of EUR 370 million and/or order a substantial reduction of that fine.

The applicants put forward eleven pleas in law in support of their application, three of which concern serious errors in the decision’s factual characterisation of the infringing conduct, seven of which concern errors in setting the fine, while the final one relates to the fact that the circumstances of the case as a whole would allegedly justify the exercise by the Court of its unlimited jurisdiction in order to reduce substantially the fine.

First, the applicants claim that the Commission infringed Article 81 EC and Article 53 EEA and/or Regulation (EC) No 1/2003 (1) by incorrectly assessing the nature, and therefore substantially overstating the gravity, of any infringing conduct. It is submitted in particular that the Commission has substantially mischaracterised the infringing conduct as the latter did not amount to a fully-fledged cartel with predetermined rules, nor was it underpinned by any market-wide objective.

Second, the applicants submit that the Commission infringed Article 81 EC and Article 53 EEA and/or Regulation (EC) No 1/2003 by incorrectly assessing the duration of any infringing conduct by the applicants; specifically by concluding that they participated in a single and continuous infringement from 10 March 1998 onwards.

Third, the applicants claim that the Commission infringed Article 81 EC and Article 53 EEA and/or Regulation (EC) No 1/2003 by incorrectly assessing and substantially overstating the extent of the applicants' individual roles in any infringing conduct.

Fourth, it is submitted that the Commission infringed Article 81 EC and Article 53 EEA and/or Article 23(2) of Regulation (EC) No 1/2003 and/or the Fining Guidelines (2) by imposing a fine which is manifestly excessive having regard to the overall nature of the conduct described in the decision; in particular by assessing the gravity percentage of relevant sales to be used in calculating the fine, pursuant to paragraphs 19 to 23 of the Fining Guidelines, at 16%.

Fifth, the applicants claim that, as a result of the error described in the second plea summarised above, the Commission also infringed Article 81 EC and Article 53 EEA and/or Article 23(2) of Regulation (EC) No 1/2003 and/or the Fining Guidelines by calculating the basic amount of the fine imposed on the applicants using a multiplier for duration of 4.5 years.

Sixth, the applicants claim that the Commission also infringed Article 81 EC and Article 53 EEA and/or Article 23(2) of Regulation (EC) No 1/2003 and/or the Fining Guidelines by failing to take into account relevant attenuating circumstances in relation to the applicants in setting the fine imposed on them.

Seventh, the applicants claim that the Commission infringed Article 81 EC and Article 53 EEA and/or Article 253 EC and/or Regulation (EC) No 1/2003 and/or the Fining Guidelines by using an inappropriate relevant sales figure to calculate the fine imposed on the applicants.

Eighth, the applicants claim that the Commission infringed Article 81 EC and Article 53 EEA and/or Regulation (EC) No 1/2003 and/or the Fining Guidelines by imposing a fine on the applicants which is, irrespective of any of the claims raised in any of the other pleas summarised above, manifestly disproportionate having regard to the overall circumstances of the case.

Ninth, the applicants submit that the Commission infringed Article 81 EC and Article 53 EEA and/or Regulation (EC) No 1/2003 and/or the Fining Guidelines in that the fine imposed on the applicants is substantially excessive having regard to the requirement imposed on the Commission under Community law to afford equal treatment to parties when imposing fines under Article 23 of Regulation (EC) No 1/2003.

Tenth, the applicants claim that the Commission infringed Article 81 EC and Article 53 EEA and/or Article 23(2) of Regulation (EC) No 1/2003 and paragraph 32 of the Fining Guidelines by imposing a fine on the applicants which exceeds the limit prescribed by the abovementioned provisions.

Eleventh, the applicants contend that the fine imposed on them is, in all circumstances, manifestly disproportionate; excessive; and inappropriate, and therefore claim that the Court should exercise its unlimited jurisdiction pursuant to Article 229 EC and Article 31 of Regulation (EC) No 1/2003 to review the level of the fine an in doing so substantially reduce it.

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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 (OJ 2003 L 1, p. 1)

(2)  Guidelines on the method setting fines imposed pursuant to article 23(2)(a) of Regulation (EC) No 1/2003 (OJ 2006 C 210, p.2)

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| 1.5.2009 | EN | Official Journal of the European Union | C 102/25 |
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1.5.2009

EN

Official Journal of the European Union

C 102/25

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Action brought on 18 February 2009 — Compagnie de Saint-Gobain v Commission

(Case T-73/09)

2009/C 102/39

Language of the case: French

Parties

Applicant: Compagnie de Saint-Gobain (Courbevoie, France) (represented by: P. Hubert and E. Durand, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | annul the decision of the European Commission C(2008) 6815 final relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/39.125 — Car glass), together with the grounds on which the operative part of the decision was reached, in so far as the Compagnie de Saint-Gobain was made an addressee of that decision, and draw from that all the necessary consequences as regards the amount of the fine; |
| --- | --- |

—

annul the decision of the European Commission C(2008) 6815 final relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/39.125 — Car glass), together with the grounds on which the operative part of the decision was reached, in so far as the Compagnie de Saint-Gobain was made an addressee of that decision, and draw from that all the necessary consequences as regards the amount of the fine;

| — | in the alternative, whether or not the Compagnie de Saint-Gobain may be an addressee of the decision, reduce the amount of the fine imposed on the companies belonging to the Saint-Gobain group; |
| --- | --- |

—

in the alternative, whether or not the Compagnie de Saint-Gobain may be an addressee of the decision, reduce the amount of the fine imposed on the companies belonging to the Saint-Gobain group;

| — | order the Commission to pay the costs in their entirety. |
| --- | --- |

—

order the Commission to pay the costs in their entirety.

Pleas in law and main arguments

By the present action, the applicant seeks the partial annulment of Commission Decision C(2008) 6815 final of 12 November 2008 in Case COMP/39.125 — Car glass by which the Commission found that certain undertakings had infringed Article 81(1) EC and Article 53(1) of the Agreement on the European Economic Area by sharing contracts for the supply of car glass and by coordinating their pricing policies and supply strategies on the European market for car glass.

In support of its action, the applicant relies on four pleas in law alleging:

| — | infringement of Article 23(2) of Regulation No 1/2003 (1) and of the principle that penalties are personal inasmuch as the Compagnie de Saint-Gobain was made an addressee of the contested decision in its capacity as the parent company of the company Saint-Gobain Glass France SA without having personally and directly participated in the infringement; |
| --- | --- |

—

infringement of Article 23(2) of Regulation No 1/2003 (1) and of the principle that penalties are personal inasmuch as the Compagnie de Saint-Gobain was made an addressee of the contested decision in its capacity as the parent company of the company Saint-Gobain Glass France SA without having personally and directly participated in the infringement;

| — | failure to state reasons, infringement of Article 23(2) of Regulation No 1/2003 and of the principle that penalties are personal as the Commission did not establish that the whole of the consolidated turnover of the Saint-Gobain group could be used as a basis for the penalty; |
| --- | --- |

—

failure to state reasons, infringement of Article 23(2) of Regulation No 1/2003 and of the principle that penalties are personal as the Commission did not establish that the whole of the consolidated turnover of the Saint-Gobain group could be used as a basis for the penalty;

| — | infringement of the principles of the protection of legitimate expectations and of non-retroactivity in so far as the Commission applied new guidelines dating from 2006 relating to the method of setting fines (2) retroactively to events which took place prior to their entry into force and were fully over before that date; |
| --- | --- |

—

infringement of the principles of the protection of legitimate expectations and of non-retroactivity in so far as the Commission applied new guidelines dating from 2006 relating to the method of setting fines (2) retroactively to events which took place prior to their entry into force and were fully over before that date;

| — | infringement of Article 23(2) of Regulation No 1/2003 and of the principle of proportionality as no previous infringements may legitimately be taken into account. |
| --- | --- |

—

infringement of Article 23(2) of Regulation No 1/2003 and of the principle of proportionality as no previous infringements may legitimately be taken into account.

---

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

(2)  Commission Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (OJ 2006 C 210, p. 2).

---

| 1.5.2009 | EN | Official Journal of the European Union | C 102/26 |
| --- | --- | --- | --- |

1.5.2009

EN

Official Journal of the European Union

C 102/26

---

Action brought on 18 February 2009 — France v Commission

(Case T-74/09)

2009/C 102/40

Language of the case: French

Parties

Applicant: French Republic (represented by: G. de Bergues and B. Cabouat, acting as Agents)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul Commission Decision 2008/960/EC of 8 December 2008 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) and under the European Agricultural Guarantee Fund (EAGF) inasmuch as it excludes certain expenditure incurred by the French Republic in favour of fruit and vegetables producer organisations for the financial years 2005 and 2006; |
| --- | --- |

—

Annul Commission Decision 2008/960/EC of 8 December 2008 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) and under the European Agricultural Guarantee Fund (EAGF) inasmuch as it excludes certain expenditure incurred by the French Republic in favour of fruit and vegetables producer organisations for the financial years 2005 and 2006;

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

—

Order the Commission to pay the costs.

Pleas in law and main arguments

By the present action, the applicant seeks the annulment of Commission Decision 2008/960/EC of 8 December 2008 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) and under the European Agricultural Guarantee Fund (EAGF) inasmuch as it excludes, for the financial years 2005 and 2006, certain expenditure incurred by the French Republic.

In support of its action the applicant relies on two pleas in law alleging:

| — | misinterpretation and misapplication of Article 11(2)(d) of Regulation No 2200/96 (1) in so far as, contrary to what the Commission found, the French Government satisfies the conditions laid down by that provision since every producer has the necessary material and, in accordance with the objective of economic effectiveness pursued by that regulation, it may, in certain circumstances, be more appropriate for each producer to hold the necessary material than to use a single sorting, storage and packaging centre provided by the producer organisation; |
| --- | --- |

—

misinterpretation and misapplication of Article 11(2)(d) of Regulation No 2200/96 (1) in so far as, contrary to what the Commission found, the French Government satisfies the conditions laid down by that provision since every producer has the necessary material and, in accordance with the objective of economic effectiveness pursued by that regulation, it may, in certain circumstances, be more appropriate for each producer to hold the necessary material than to use a single sorting, storage and packaging centre provided by the producer organisation;

| — | misinterpretation and misapplication of Article 11(1)(c), point 3, of Regulation No 2200/96 in so far as the Commission was wrong to take the view that the French Government had not complied with the conditions of that provision, which provides that the rules of association of producer organisations require producer members to market their entire production through the producer organisation although the French legislation provides for producer organisations to play an active role in the marketing of products and the fixing of selling prices. |
| --- | --- |

—

misinterpretation and misapplication of Article 11(1)(c), point 3, of Regulation No 2200/96 in so far as the Commission was wrong to take the view that the French Government had not complied with the conditions of that provision, which provides that the rules of association of producer organisations require producer members to market their entire production through the producer organisation although the French legislation provides for producer organisations to play an active role in the marketing of products and the fixing of selling prices.

---

(1)  Council Regulation (EC) No 2200/96 of 28 October 1996 on the common organisation of the market in fruit and vegetables (OJ 1996 L 297, p. 1).

---

| 1.5.2009 | EN | Official Journal of the European Union | C 102/27 |
| --- | --- | --- | --- |

1.5.2009

EN

Official Journal of the European Union

C 102/27

---

Action brought on 16 February 2009 — Mundipharma v OHIM — Asociación Farmaceuticos Mundi (FARMA MUNDI FARMACEUTICOS MUNDI)

(Case T-76/09)

2009/C 102/41

Language in which the application was lodged: English

Parties

Applicant: Mundipharma GmbH (Limburg (Lahn), Germany) (represented by: F. Nielsen, lawyer)

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

Other party to the proceedings before the Board of Appeal: Asociación Farmaceuticos Mundi (Alfafar (Valencia), Spain)

Form of order sought

| — | Revoke the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 1 December 2008 in case R 852/2008-2; and |
| --- | --- |

—

Revoke the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 1 December 2008 in case R 852/2008-2; and

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

—

Order OHIM to pay the costs.

Pleas in law and main arguments

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

Community trade mark concerned: The figurative mark “FARMA MUNDI FARMACEUTICOS MUNDI”, for goods and services in classes 5, 35 and 39 — application No 4 841 136

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

Mark or sign cited: Community trade mark registration No 4 304 622 of the trade mark “mundi pharma” for goods and services in classes 5 and 44

Decision of the Opposition Division: Partially rejected the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation 40/94 as the Board of Appeal wrongly concluded that there was no similarity of the goods and/or services covered by the trade marks in question

---

| 1.5.2009 | EN | Official Journal of the European Union | C 102/28 |
| --- | --- | --- | --- |

1.5.2009

EN

Official Journal of the European Union

C 102/28

---

Appeal brought on 25 February 2009 by the European Parliament against the judgment of the Civil Service Tribunal delivered on 11 December 2008 in Case F-148/06, Collée v Parliament

(Case T-78/09 P)

2009/C 102/42

Language of the case: French

Parties

Appellant: European Parliament (represented by C. Burgos and A. Lukošiūtė, acting as Agents)

Other party to the proceedings: Laurent Collée (Luxembourg, Luxembourg)

Form of order sought by the appellant

| — | annul in its entirety the judgment of the Civil Service Tribunal under appeal; |
| --- | --- |

—

annul in its entirety the judgment of the Civil Service Tribunal under appeal;

| — | give final judgment in the matter by dismissing the action brought by Mr Collée as unfounded; |
| --- | --- |

—

give final judgment in the matter by dismissing the action brought by Mr Collée as unfounded;

| — | make an appropriate order as to costs. |
| --- | --- |

—

make an appropriate order as to costs.

Pleas in law and main arguments

By this appeal, the Parliament seeks the annulment of the judgment of the Civil Service Tribunal (the Tribunal) of 11 December 2008 in Case F-148/06 Collée v Parliament, by which the Tribunal annulled the Parliament’s decision to award two merit points to Mr Collée under the 2004 promotion procedure.

In support of its appeal, the Parliament relies on four grounds of appeal alleging:

| — | a distortion of the facts and of the evidence, as the Tribunal stated that Mr Collée had not received a third merit point on the sole ground that his merits were not superior to those of officials who had obtained three points, although the comparative examination carried out with a view to responding to Mr Collée’s administrative complaint stated that his staff report was not of a level equivalent to that of officials who had obtained three points; |
| --- | --- |

—

a distortion of the facts and of the evidence, as the Tribunal stated that Mr Collée had not received a third merit point on the sole ground that his merits were not superior to those of officials who had obtained three points, although the comparative examination carried out with a view to responding to Mr Collée’s administrative complaint stated that his staff report was not of a level equivalent to that of officials who had obtained three points;

| — | failure to state reasons, on the ground that the Tribunal did not explain why it departed from earlier case-law, and contradictory reasoning, first, in paragraphs 42 and 46 as against paragraph 18 of the judgment under appeal and, secondly, in paragraphs 43 and 46 as against paragraphs 44 and 45 of that judgment; |
| --- | --- |

—

failure to state reasons, on the ground that the Tribunal did not explain why it departed from earlier case-law, and contradictory reasoning, first, in paragraphs 42 and 46 as against paragraph 18 of the judgment under appeal and, secondly, in paragraphs 43 and 46 as against paragraphs 44 and 45 of that judgment;

| — | infringement of Article 45 of the Staff Regulations of Officials of the European Communities and of the case-law relating thereto, in so far as the requirement of superiority of merits applied by the Parliament for the award of a third point is not inconsistent with Article 45 of the Staff Regulations; thus an official must be superior in the decreasing order of merit, to the last official who received three points; |
| --- | --- |

—

infringement of Article 45 of the Staff Regulations of Officials of the European Communities and of the case-law relating thereto, in so far as the requirement of superiority of merits applied by the Parliament for the award of a third point is not inconsistent with Article 45 of the Staff Regulations; thus an official must be superior in the decreasing order of merit, to the last official who received three points;

| — | infringement of the principle of equal treatment as the Tribunal stated that the Parliament had infringed that principle although Mr Collée was not in a situation comparable to that of officials who had received three merit points. |
| --- | --- |

—

infringement of the principle of equal treatment as the Tribunal stated that the Parliament had infringed that principle although Mr Collée was not in a situation comparable to that of officials who had received three merit points.

---

| 1.5.2009 | EN | Official Journal of the European Union | C 102/28 |
| --- | --- | --- | --- |

1.5.2009

EN

Official Journal of the European Union

C 102/28

---

Appeal brought on 23 February 2009 by the Commission of the European Communities against the judgment of the Civil Service Tribunal delivered on 9 December 2008 in Case F-52/05, Q v Commission

(Case T-80/09 P)

2009/C 102/43

Language of the case: French

Parties

Appellant: Commission of the European Communities (represented by V. Joris and B. Eggers, acting as Agents)

Other party to the proceedings: Q (Brussels, Belgium)

Form of order sought by the appellant

| — | annul the judgment of the Civil Service Tribunal of 9 December 2008 in Case F-52/05 in so far as it upholds the second plea alleging the unlawfulness of the implicit rejection of a distancing measure and the claims for compensation in connection with the distancing measure and disregard for the duty to have regard for the welfare of officials; |
| --- | --- |

—

annul the judgment of the Civil Service Tribunal of 9 December 2008 in Case F-52/05 in so far as it upholds the second plea alleging the unlawfulness of the implicit rejection of a distancing measure and the claims for compensation in connection with the distancing measure and disregard for the duty to have regard for the welfare of officials;

| — | dismiss the action brought by Q before the Civil Service Tribunal in Case F-52/05 in so far as it was upheld by that tribunal; |
| --- | --- |

—

dismiss the action brought by Q before the Civil Service Tribunal in Case F-52/05 in so far as it was upheld by that tribunal;

| — | make the appropriate order as to the costs of the proceedings before the Civil Service Tribunal and of the appeal; |
| --- | --- |

—

make the appropriate order as to the costs of the proceedings before the Civil Service Tribunal and of the appeal;

| — | in the alternative,






  — | annul the judgment of the Civil Service Tribunal of 9 December 2008 in Case F-52/05; |
| --- | --- | --- |

—

in the alternative,

—

annul the judgment of the Civil Service Tribunal of 9 December 2008 in Case F-52/05;

| — | refer the case back to the Civil Service Tribunal; |
| --- | --- |

—

refer the case back to the Civil Service Tribunal;

| — | reserve the costs. |
| --- | --- |

—

reserve the costs.

Pleas in law and main arguments

By the present appeal, the Commission seeks the annulment of the judgment of the Civil Service Tribunal (the Tribunal) of 9 December 2008 given in Case F-52/05 Q v Commission by which the Tribunal annulled the Commission’s decision rejecting the request for assistance made by Q concerning alleged psychological harassment, in so far as provisional distancing measures had not been taken, and ordered the Commission to pay to Q the sum of EUR 18 000 in damages.

In support of its appeal, the Commission relies on two grounds of appeal alleging:

| — | that the Tribunal erred in law in holding that ‘a degree of failing in the duty to have regard for the welfare of officials’ constituted unlawful conduct giving rise to non-contractual liability on the part of the Community in so far as (i) the infringement of the duty to have regard for the welfare of the official in this case is not sufficiently serious to give rise to non-contractual liability on the part of the Community and (ii) the Tribunal held that there had been infringement of that duty to have regard for the welfare of the official in this case even though there had been no psychological harassment within the meaning of Article 12a of the Staff Regulations of Officials of the European Communities; |
| --- | --- |

—

that the Tribunal erred in law in holding that ‘a degree of failing in the duty to have regard for the welfare of officials’ constituted unlawful conduct giving rise to non-contractual liability on the part of the Community in so far as (i) the infringement of the duty to have regard for the welfare of the official in this case is not sufficiently serious to give rise to non-contractual liability on the part of the Community and (ii) the Tribunal held that there had been infringement of that duty to have regard for the welfare of the official in this case even though there had been no psychological harassment within the meaning of Article 12a of the Staff Regulations of Officials of the European Communities;

| — | that the Tribunal erred in law in holding that the implicit refusal of a distancing measure gives rise to tortious liability on the part of the Commission in so far as the Tribunal failed to establish that there had been a sufficiently serious infringement of a rule of law intended to confer rights on individuals. |
| --- | --- |

—

that the Tribunal erred in law in holding that the implicit refusal of a distancing measure gives rise to tortious liability on the part of the Commission in so far as the Tribunal failed to establish that there had been a sufficiently serious infringement of a rule of law intended to confer rights on individuals.

---

| 1.5.2009 | EN | Official Journal of the European Union | C 102/29 |
| --- | --- | --- | --- |

1.5.2009

EN

Official Journal of the European Union

C 102/29

---

Action brought on 20 February 2009 — Dennekamp v Parlement

(Case T-82/09)

2009/C 102/44

Language of the case: English

Parties

Applicant: G. -J. Dennekamp (Giethoorn, Netherlands) (represented by: O. Brouwer and A. Stoffer, lawyers)

Defendant: European Parliament

Form of order sought

| — | annul the contested decision; |
| --- | --- |

—

annul the contested decision;

| — | order the Parliament to pay the applicant's costs pursuant to Article 87 of the Rules of Procedure of the Court of First Instance, including the costs of any intervening parties and costs relating to the request for an expedited procedure. |
| --- | --- |

—

order the Parliament to pay the applicant's costs pursuant to Article 87 of the Rules of Procedure of the Court of First Instance, including the costs of any intervening parties and costs relating to the request for an expedited procedure.

Pleas in law and main arguments

On 20 October 2008, the applicant requested the European Parliament, on the basis of Regulation (EC) No 1049/2001 (1), to grant access to it to (i) all documents showing which Members of Parliament (MEPs) are also members of the Additional Pension Scheme, (ii) a list of names of the MEPs that were members of the Additional Pension Scheme on 1 September 2005 and (iii) a list of names of the present members of the Additional Pension Scheme for whom the Parliament pays a monthly contribution. The Parliament rejected the applicant's request and confirmed its refusal in its decision of 17 December 2008.

By means of the present application, the applicant seeks the annulment of Decision A(2008)22050, of 17 December 2008, of the European Parliament concerning the refusal of access to documents which the applicant requested on the basis of Regulation (EC) no 1049/2001.

The applicant claims that the refusal is based on an error of assessment and constitutes a manifest breach of the rules and principles regarding access to documents contained in Regulation (EC) No 1049/2001 and of the rules laid down in Regulation (EC) No 45/2001 (2). As a result, the Parliament has infringed the applicant's right of access to documents of Community institutions as laid down in Article 255 EC, Article 42 of the Charter of Fundamental Rights of the European Union and Regulation (EC) No 1049/2001.

In support of its application, the applicant submits that the decision is vitiated by the following errors of law and of assessment.

| (a) | According to the applicant, the Parliament infringed Article 2(1) of Regulation (EC) No 1049/2001 and erroneously based its refusal on Article 4(1)(b) of the aforementioned Regulation, as disclosure of the requested documents is not capable of undermining the private lives of the MEPs concerned. |
| --- | --- |

(a)

According to the applicant, the Parliament infringed Article 2(1) of Regulation (EC) No 1049/2001 and erroneously based its refusal on Article 4(1)(b) of the aforementioned Regulation, as disclosure of the requested documents is not capable of undermining the private lives of the MEPs concerned.

| (b) | In addition, the Parliament allegedly misapplied Regulation (EC) No 45/2001, as it erroneously found that the applicant's request should be assessed under Regulation (EC) No 45/2001. |
| --- | --- |

(b)

In addition, the Parliament allegedly misapplied Regulation (EC) No 45/2001, as it erroneously found that the applicant's request should be assessed under Regulation (EC) No 45/2001.

| (c) | Moreover, the applicant submits that the Parliament failed to establish a fair balance between the public interests served by disclosure and the private interests allegedly affected. It also failed to assess to what extent the alleged private interests would be actually and specifically undermined. |
| --- | --- |

(c)

Moreover, the applicant submits that the Parliament failed to establish a fair balance between the public interests served by disclosure and the private interests allegedly affected. It also failed to assess to what extent the alleged private interests would be actually and specifically undermined.

| (d) | The Parliament infringed, according to the applicant, Article 235 EC as it has not provided adequate reasons for its refusal. Finally, it is submitted that the decision does not show that the Parliament has carried out a concrete assessment per individual documents referred to the applicant's request for access. |
| --- | --- |

(d)

The Parliament infringed, according to the applicant, Article 235 EC as it has not provided adequate reasons for its refusal. Finally, it is submitted that the decision does not show that the Parliament has carried out a concrete assessment per individual documents referred to the applicant's request for access.

---

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

(2)  Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ 2001 L 8, p. 1)

---

| 1.5.2009 | EN | Official Journal of the European Union | C 102/30 |
| --- | --- | --- | --- |

1.5.2009

EN

Official Journal of the European Union

C 102/30

---

Action brought on 27 February 2009 — Idromacchine and Others v Commission

(Case T-88/09)

2009/C 102/45

Language of the case: Italian

Parties

Applicants: Idromacchine Srl (Porto Marghera, Italy), Alessandro Capuzzo (Mirano, Italy), Roberto Capuzzo (Mogliano Veneto, Italy) (represented by: W. Viscardini and G. Donà, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| (A) | Order the Commission of the European Communities:






  (1) | as regards material damage, to pay to Idromacchine Srl the sum of EUR 5 459 641,28 (or other such sum as the Court may determine); |
| --- | --- | --- |

(A)

Order the Commission of the European Communities:

(1)

as regards material damage, to pay to Idromacchine Srl the sum of EUR 5 459 641,28 (or other such sum as the Court may determine);

| (2) | as regards non-material damage:






  — | to pay to Idromacchine Srl such sum as the Court shall deem fair and equitable – equivalent, it is suggested, to a significant percentage (for example, between 30 % and 50 %) of the sum paid in respect of material damage; |
| --- | --- | --- |

(2)

as regards non-material damage:

—

to pay to Idromacchine Srl such sum as the Court shall deem fair and equitable – equivalent, it is suggested, to a significant percentage (for example, between 30 % and 50 %) of the sum paid in respect of material damage;

| — | to pay to Mr Alessandro Capuzzo and to Mr Roberto Capuzzo, individually, such sum as the Court shall deem fair and equitable, equivalent, it is suggested, also to a significant percentage (for example, between 30 % and 50 %) of the sum paid in respect of material damage; |
| --- | --- |

—

to pay to Mr Alessandro Capuzzo and to Mr Roberto Capuzzo, individually, such sum as the Court shall deem fair and equitable, equivalent, it is suggested, also to a significant percentage (for example, between 30 % and 50 %) of the sum paid in respect of material damage;

| (3) | to restore the reputation of Idromacchine Srl, Mr Alessandro Capuzzo and Mr Roberto Capuzzo — by such means as the Court shall consider most appropriate (for example, by way of an ad hoc publication in the Official Journal and/or a letter addressed to the principal customers in the reference sector — by correcting the information concerning the applicants which appeared in the Official Journal of the European Union of 18 February 2005, series C 42, page 15 et seq; |
| --- | --- |

(3)

to restore the reputation of Idromacchine Srl, Mr Alessandro Capuzzo and Mr Roberto Capuzzo — by such means as the Court shall consider most appropriate (for example, by way of an ad hoc publication in the Official Journal and/or a letter addressed to the principal customers in the reference sector — by correcting the information concerning the applicants which appeared in the Official Journal of the European Union of 18 February 2005, series C 42, page 15 et seq;

| (B) | Order the Commission of the European Communities to pay the costs. |
| --- | --- |

(B)

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

Pleas in law and main arguments

The applicants submit that the publication by the Commission of the name of Idromacchine Srl — a third party vis-à-vis the formal addressee of Commission Decision C(2004) 5426 final of 30 December 2004, published in the Official Journal of the European Union of 18 February 2005, series C 42, page 15 et seq — and of detrimental information relating to that company constitutes a serious breach of numerous principles of Community law and they therefore seek compensation for the very significant material and non-material damage suffered as a result.

In particular, by publishing the information in question without ensuring the necessary safeguards, the most important of which would have been to afford the applicants a prior opportunity to be heard, the Commission failed in its duties of diligence and infringed the principles of the safeguarding of the rights of defence and of professional confidentiality.

In any event, given that the published decision is not addressed to Idromacchine Srl, the publication of information concerning that company must be regarded as disproportionate in terms of the objective pursued by the Commission, which was limited to publishing information relating to the application of Community competition rules.

As regards the damage incurred, the publication of information in the manner set out above has had the effect of reducing Idromacchine Srl’s turnover to zero in the sector in which it operates and has seriously damaged the reputation of the company and the persons who represent it.

---

| 1.5.2009 | EN | Official Journal of the European Union | C 102/31 |
| --- | --- | --- | --- |

1.5.2009

EN

Official Journal of the European Union

C 102/31

---

Action brought on 27 February 2009 — Mojo Concerts and Amsterdam Music Dome Explotatie v Commission of the European Communities

(Case T-90/09)

2009/C 102/46

Language of the case: Dutch

Parties

Applicants: Mojo Concerts BV (Delft, Netherlands) and Amsterdam Music Dome Explotatie BV (Delft, Netherlands) (represented by S. Beeston, Lawyer)

Defendant: Commission of the European Communities

Form of order sought

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

—

Annul the contested decision;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

The applicants seek the annulment of the Commission Decision of 21 October 2008 on the investment of the municipality of Rotterdam in the Ahoy complex (State aid C 4/2008 (ex N 97/2007, ex CP 91/2007).

They submit that the Commission’s reasoning in the contested decision discloses a manifestly incorrect assessment and that the steps in the reasoning are incorrect and/or inadequately substantiated.

First, the applicants argue that the value of the rent and of the shares in Ahoy which have been established are not in accordance with market value. Furthermore, an investment which only leads to value retention can indeed produce an advantage. Moreover, when determining the value of the rent and of the shares, no account was taken of the investment. According to the applicants, the contractual restrictions between the municipality and the operator would not prevent the investment from producing added value. Finally, the benefit-sharing arrangement does not provide an additional guarantee of the market conformity of the transactions.

The applicants also allege breach of procedure and defective reasoning: the arguments submitted by them were not, or only inadequately, taken into consideration by the Commission in the contested decision; parts of the file were wrongly classified as confidential; and the applicants were not informed of all the elements in the file, which constitutes an infringement of the right to be heard.

---

| 1.5.2009 | EN | Official Journal of the European Union | C 102/32 |
| --- | --- | --- | --- |

1.5.2009

EN

Official Journal of the European Union

C 102/32

---

Appeal brought on 2 March 2009 by Carina Skareby against the judgment of the Civil Service Tribunal delivered on 15 December 2008 in Case F-34/07, Skareby v Commission

(Case T-91/09 P)

2009/C 102/47

Language of the case: French

Parties

Appellant: Carina Skareby (Leuven, Belgium) (represented by S. Rodrigues and C. Bernard-Glanz, lawyers)

Other party to the proceedings: Commission of the European Communities

Form of order sought by the appellant

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

—

Declare the appeal admissible;

| — | set aside the judgment delivered on 15 December 2008 by the European Civil Service Tribunal in Case F-34/07; |
| --- | --- |

—

set aside the judgment delivered on 15 December 2008 by the European Civil Service Tribunal in Case F-34/07;

| — | allow the pleadings seeking the setting aside of that judgment and compensation submitted by the applicant before the Civil Service Tribunal; |
| --- | --- |

—

allow the pleadings seeking the setting aside of that judgment and compensation submitted by the applicant before the Civil Service Tribunal;

| — | order the Commission to pay the costs of both instances. |
| --- | --- |

—

order the Commission to pay the costs of both instances.

Pleas in law and main arguments

By the present appeal, the appellant seeks the setting aside of the judgment of the Civil Service Tribunal (CST) of 15 December 2008 delivered in Case F-34/07 Skareby v Commission dismissing the action by which the appellant sought, firstly, annulment of her career development report for 2005 and, secondly, damages.

In support of her appeal, the appellant raises three pleas alleging an error of legal characterisation of the facts, a failure correctly to apply Article 5 of the general implementing provisions and Article 43 of the Staff Regulations of officials of the European Communities and a failure to state reasons, since the CST ruled that it could not be said that the Commission had not carried out an assessment of the appellant for the period from January to September 2005, despite the fact that the appellant’s career development report for 2005 was, almost word for word, merely a virtually identical copy of the appellant’s career development report for 2004.

---

| 1.5.2009 | EN | Official Journal of the European Union | C 102/32 |
| --- | --- | --- | --- |

1.5.2009

EN

Official Journal of the European Union

C 102/32

---

Action brought on 26 February 2009 — United Phosphorus v Commission

(Case T-95/09)

2009/C 102/48

Language of the case: English

Parties

Applicant: United Phosphorus (Warringthon, United Kingdom) (represented by: C. Mereu and K. Van Maldegem, lawyers)

Defendant: Commission of the European communities

Form of order sought

| — | declare the application admissible; |
| --- | --- |

—

declare the application admissible;

| — | annul the contested decision; |
| --- | --- |

—

annul the contested decision;

| — | order the Commission to pay the costs of these proceedings; |
| --- | --- |

—

order the Commission to pay the costs of these proceedings;

| — | take such other or further measures as justice may require. |
| --- | --- |

—

take such other or further measures as justice may require.

Pleas in law and main arguments

By means of this application, the applicant seeks the annulment, pursuant to Article 230 EC of Commission Decision 2008/902/EC of 7 November 2008 concerning the non-inclusion of napropamide in Annex I to Council Directive 91/414/EEC and the withdrawal of authorisations for plant protection products containing that substance (notified under document number C(2008) 6281) (1). The contested measures will be effective as of 7 May 2009.

The applicant puts forward three pleas in law in support of its claims.

First, the applicant claims that the contested decision contains manifest errors of appraisal. In the applicant’s opinion there is no sufficient scientific justification for the conclusions contained in the contested decision and that the Commission failed to take account of all available scientific evidence in violation of Article 5 of Directive 91/414 (2) and of Article 11(2) of Regulation 1490/2002 (3).

Second, the applicant contends that the Commission has infringed essential procedural requirements, i.e. Article 11 of Regulation No 1490/2002, as its alleged conflicting and contradictory behaviour denied to the applicant the right to withdraw the support of a substance in return for an extended phase-out period pending the resubmission of a dossier. Moreover, the applicant submits that the Commission failed to adopt the contested decision within applicable procedural deadlines and therefore infringed Article 11(4) of Regulation No 1490/2002.

Third, the applicant claims that the Commission has infringed fundamental principles of the community law such as principle of legitimate expectations, principle to fair hearing and the applicant’s right to defence as well as principle of proportionality as stated in Article 5 EC as, in the applicant’s opinion, the Commission could have extended the applicable deadlines in order to give EFSA more time to review the information and data submitted by the applicant. It further submits that the Commission failed to provide an adequate statement of reasons to justify its disagreement with the assessment of RMS and EFSA and therefore infringed its obligations under Article 253 EC.

---

(1)  OJ 2008 L 326, p. 35

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

(3)  Commission Regulation (EC) No 1490/2002 of 14 August 2002 laying down further detailed rules for the implementation of the third stage of the programme of work referred to in Article 8(2) of Council Directive 91/414/EEC and amending Regulation (EC) No 451/2000 (OJ 2002 L 224, p. 23)

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| 1.5.2009 | EN | Official Journal of the European Union | C 102/33 |
| --- | --- | --- | --- |

1.5.2009

EN

Official Journal of the European Union

C 102/33

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Action brought on 11 March 2009 — Tubesca v OHIM — Tubos del Mediterráneo (T TUMESA TUBOS DEL MEDITERRANEO S.A.)

(Case T-98/09)

2009/C 102/49

Language in which the application was lodged: French

Parties

Applicant: Tubesca (Ailly-sur-Noye, France) (represented by: F. Greffe, avocat)

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

Other party to the proceedings before the Board of Appeal of OHIM: Tubos del Mediterráneo, SA (Sagunto, Spain)

Form of order sought

| — | Annulment of the decision delivered by the Fourth Board of Appeal of OHIM of 17 December 2008 in Case No R 518/2008-4. |
| --- | --- |

—

Annulment of the decision delivered by the Fourth Board of Appeal of OHIM of 17 December 2008 in Case No R 518/2008-4.

Pleas in law and main arguments

Applicant for a Community trade mark: Tubos del Mediterráneo, SA

Community trade mark concerned: Figurative mark ‘T TUMESA TUBOS DEL MEDITERRANEO S.A.’ for goods and services in Classes 6, 35 and 42 — application No 4 085 098

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

Mark or sign cited in opposition: National and international word and figurative marks ‘TUBESCA’ for goods in Classes 6, 19 and 20

Decision of the Opposition Division: Opposition partially upheld; partial refusal to register the mark applied for

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

Pleas in law: There is a likelihood of confusion between the opposing marks for consumers displaying average attention or end users, especially since the marks ‘TUBESCA’ are well known and highly distinctive.

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| 1.5.2009 | EN | Official Journal of the European Union | C 102/34 |
| --- | --- | --- | --- |

1.5.2009

EN

Official Journal of the European Union

C 102/34

---

Action brought on 4 March 2009 — Italy v Commission

(Case T-99/09)

2009/C 102/50

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: P. Gentili, avvocato dello Stato)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul letter No 000841 of 2 February 2009 (document No 1) of the European Commission — Directorate General for Regional Policy — concerning ‘Payments made by the Commission which differ from the amount requested’ which contained the following decision: ‘Therefore, the date from which the European Commission will regard as non-eligible the expenditure incurred in relation to measure 1.7 of Regional Operational Programme 2000-2006 is 29 June 2007 and not 17 May 2006, as stated in the memorandum of 22 December 2008 referred to above’; |
| --- | --- |

—

Annul letter No 000841 of 2 February 2009 (document No 1) of the European Commission — Directorate General for Regional Policy — concerning ‘Payments made by the Commission which differ from the amount requested’ which contained the following decision: ‘Therefore, the date from which the European Commission will regard as non-eligible the expenditure incurred in relation to measure 1.7 of Regional Operational Programme 2000-2006 is 29 June 2007 and not 17 May 2006, as stated in the memorandum of 22 December 2008 referred to above’;

| — | Annul letter No 001059 of 6 February 2009 (document No 2) of the European Commission — Directorate General for Regional Policy — concerning ‘Suspension of the request for payment and for information concerning financial corrections under Article 39 of Regulation No 1260/99 for the Campania Regional Operation’ which contained the following decision: ‘Therefore, the date from which the European Commission will regard as non-eligible the expenditure incurred in relation to measure 1.7 of Regional Operational Programme 2000-2006 is 29 June 2007 and not 17 May 2006, as previously indicated’; |
| --- | --- |

—

Annul letter No 001059 of 6 February 2009 (document No 2) of the European Commission — Directorate General for Regional Policy — concerning ‘Suspension of the request for payment and for information concerning financial corrections under Article 39 of Regulation No 1260/99 for the Campania Regional Operation’ which contained the following decision: ‘Therefore, the date from which the European Commission will regard as non-eligible the expenditure incurred in relation to measure 1.7 of Regional Operational Programme 2000-2006 is 29 June 2007 and not 17 May 2006, as previously indicated’;

| — | Annul letter No 012480 of 22 December 2008 (document No 3) of the European Commission — Directorate General for Regional Policy — concerning ROP Campania 2000-2006 (CCI No 1999 IT 16 1 PO 007) — Outcome of infringement procedure 2007/2195 on waste management in Campania, by which ‘the Commission requests that, with effect from the next request for payment, all expenditure relating to measure 1.7 incurred after 29 June 2007 be deducted’. |
| --- | --- |

—

Annul letter No 012480 of 22 December 2008 (document No 3) of the European Commission — Directorate General for Regional Policy — concerning ROP Campania 2000-2006 (CCI No 1999 IT 16 1 PO 007) — Outcome of infringement procedure 2007/2195 on waste management in Campania, by which ‘the Commission requests that, with effect from the next request for payment, all expenditure relating to measure 1.7 incurred after 29 June 2007 be deducted’.

Pleas in law and main arguments

In support of its claims, the applicant alleges infringement of Article 32(3)(f) and 32(2) and Article 39(2) and (3) of Regulation No 1260/99. (1) It submits in particular that:

| (a) | If a request for payment of assistance from a Structural Fund is to be regarded as not permissible on the basis that an infringement procedure is pending, the specific subject-matter of the infringement procedure must be identical to that of the request for payment. |
| --- | --- |

(a)

If a request for payment of assistance from a Structural Fund is to be regarded as not permissible on the basis that an infringement procedure is pending, the specific subject-matter of the infringement procedure must be identical to that of the request for payment.

| (b) | In the infringement procedure, the Commission criticises the situation concerning final waste disposal on the ground that the necessary structures are lacking (waste to energy plants, landfills) to carry out this stage of the waste ‘cycle’ in a manner that complies with the directive. However, other stages of the ‘cycle’ and other means of waste management besides final disposal have no connection with the specific subject-matter of the infringement procedure. In particular, these include the different methods of waste recovery, which vary on the basis that waste is collected separately. Moreover, measure 1.7 of ROP Campania 2000 and the operations (projects) forming part of that programme refer specifically to the waste recovery stage and the separate collection of waste to which the recovery is subject. |
| --- | --- |

(b)

In the infringement procedure, the Commission criticises the situation concerning final waste disposal on the ground that the necessary structures are lacking (waste to energy plants, landfills) to carry out this stage of the waste ‘cycle’ in a manner that complies with the directive. However, other stages of the ‘cycle’ and other means of waste management besides final disposal have no connection with the specific subject-matter of the infringement procedure. In particular, these include the different methods of waste recovery, which vary on the basis that waste is collected separately. Moreover, measure 1.7 of ROP Campania 2000 and the operations (projects) forming part of that programme refer specifically to the waste recovery stage and the separate collection of waste to which the recovery is subject.

| (c) | By memorandum of 20 October 2008 referred to in the memoranda challenged, the Commission expressed doubts as to the waste management plan of 28 December 2007. However, none of those points of criticism concerning the management plan of 28 December 2007 was ever the subject of infringement procedure 2007/2195, if only because that procedure was based on the situation as it existed when the reasoned opinion expired, that is to say, on the situation obtaining on 1 March 2008. |
| --- | --- |

(c)

By memorandum of 20 October 2008 referred to in the memoranda challenged, the Commission expressed doubts as to the waste management plan of 28 December 2007. However, none of those points of criticism concerning the management plan of 28 December 2007 was ever the subject of infringement procedure 2007/2195, if only because that procedure was based on the situation as it existed when the reasoned opinion expired, that is to say, on the situation obtaining on 1 March 2008.

| (d) | The Commission’s decision to treat as impermissible the requests for payment under measure 1.7 on the ground that ‘adequate guarantees do not exist that the operations jointly financed by the European Regional Development Fund within the scope of measure 1.7 were properly carried out’ could never have been adopted pursuant to the second possibility in Article 32(3)(f) (infringement procedure pending). That decision could at most have been adopted pursuant to the first possibility indicated in that provision (suspension of payments under Article 39(2) of Regulation No 1260/99). That, however, would have necessitated the institution of inter partes proceedings, something which the Commission intended to avoid.
  Finally, the applicant also claims that there has been a breach of essential formal requirements inasmuch as there was inadequate reasoning. |
| --- | --- |

(d)

The Commission’s decision to treat as impermissible the requests for payment under measure 1.7 on the ground that ‘adequate guarantees do not exist that the operations jointly financed by the European Regional Development Fund within the scope of measure 1.7 were properly carried out’ could never have been adopted pursuant to the second possibility in Article 32(3)(f) (infringement procedure pending). That decision could at most have been adopted pursuant to the first possibility indicated in that provision (suspension of payments under Article 39(2) of Regulation No 1260/99). That, however, would have necessitated the institution of inter partes proceedings, something which the Commission intended to avoid.

Finally, the applicant also claims that there has been a breach of essential formal requirements inasmuch as there was inadequate reasoning.

---

(1)  Council Regulation (EC) No 1260/99 of 21 June 1999 laying down general provisions on the Structural Funds (OJ 1999 L 161, p. 1).

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European Union Civil Service Tribunal

| 1.5.2009 | EN | Official Journal of the European Union | C 102/36 |
| --- | --- | --- | --- |

1.5.2009

EN

Official Journal of the European Union

C 102/36

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Judgment of the Civil Service Tribunal (Second Chamber) of 12 March 2009 — Arpaillange and Others v Commission

(Case F-104/06) (1)

(Staff cases - Contract staff - Recruitment - Classification - Former individual experts - Diplomas - Professional experience - Plea of illegality)

2009/C 102/51

Language of the case: French

Parties

Applicants: Joséphine Arpaillange and Others (Santiago, Chile) (represented by: S. Rodrigues and C. Bernard-Glanz, lawyers)

Defendant: Commission of the European Communities (represented by: J. Currall and G. Berscheid, Agents)

Intervener in support of the defendant: Council of the European Union (represented by I. Sulce and B. Driessen, Agents)

Re:

First, annulment of the decisions of the authority authorised to conclude contracts stipulating the applicants' conditions of employment, as set out in their contracts as contract staff, on the ground that the number of years of professional experience recognised in their cases by the authority authorised to conclude contracts is less than the number of years' professional experience actually acquired by the applicants and, second, an action for damages.

Operative part of the judgment

The Tribunal:

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

1.

dismisses the action;

| 2. | orders each party to bear its own costs. |
| --- | --- |

2.

orders each party to bear its own costs.

---

(1)  OJ C 261 of 20.10.2006, p. 35.

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| 1.5.2009 | EN | Official Journal of the European Union | C 102/36 |
| --- | --- | --- | --- |

1.5.2009

EN

Official Journal of the European Union

C 102/36

---

Judgment of the Civil Service Tribunal (Second Chamber) of 12 March 2009 — Lafleur Tighe v Commission

(Case F-24/07) (1)

(Staff cases - Contract staff - Recruitment - Classification in grade - Former individual experts - Professional experience - Degrees - Certificate of equivalence - Admissibility - New and substantial fact)

2009/C 102/52

Language of the case: French

Parties

Applicant: Virginie Lafleur Tighe (Makati, Phillipines) (represented by: S. Rodrigues and C. Bernard-Glanz, lawyers)

Defendant: Commission of the European Communities (represented by: J. Currall and G. Berscheid, Agents)

Re:

First, annulment of the decision of the appointing authority to classify the applicant in function group IV, grade 13, step 1 at the date of her recruitment as a member of contract staff inasmuch as the calculation of her professional experience did not take account of the period between the date on which she obtained her bachelor's degree and the date on which she obtained her master's degree and, second, retroactive reclassification of the applicant in grade 14

Operative part of the judgment

The Tribunal:

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

1.

dismisses the action;

| 2. | orders each party to bear its own costs. |
| --- | --- |

2.

orders each party to bear its own costs.

---

(1)  OJ C 117 of 26.5.2007, p. 36.

---

| 1.5.2009 | EN | Official Journal of the European Union | C 102/37 |
| --- | --- | --- | --- |

1.5.2009

EN

Official Journal of the European Union

C 102/37

---

Judgment of the Civil Service Tribunal (Second Chamber) of 3 March 2009 — Patsarika v Cedefop

(Case F-63/07) (1)

(Staff cases - Contract staff - Reassignment - Rights of the defence - Dismissal at the end of the probationary period - Default procedure)

2009/C 102/53

Language of the case: Greek

Parties

Applicant: Maria Patsarika (Thessaloniki, Greece) (represented by: N. Korogiannakis and N. Keramidas, lawyers)

Defendant: European Centre for the Development of Vocational Training (Cedefop) (represented by: M. Fuchs, Agent, assisted by P. Anestis, lawyer)

Re:

First, annulment of the decision of annul the decision of Cedefop of 20 September 2006 terminating the applicant's fixed-term contract at the end of her probationary period and, second, an action for damages.

Operative part of the judgment

The Tribunal:

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

1.

dismisses the action;

| 2. | orders Ms Patsarika to bear three-quarters of her own costs; |
| --- | --- |

2.

orders Ms Patsarika to bear three-quarters of her own costs;

| 3. | orders the European Centre for the Development of Vocational Training to bear its own costs and to pay one quarter of Ms Patsarika's costs. |
| --- | --- |

3.

orders the European Centre for the Development of Vocational Training to bear its own costs and to pay one quarter of Ms Patsarika's costs.

---

(1)  OJ C 283 of 24.11.2007, p. 43.

---

| 1.5.2009 | EN | Official Journal of the European Union | C 102/37 |
| --- | --- | --- | --- |

1.5.2009

EN

Official Journal of the European Union

C 102/37

---

Judgment of the Civil Service Tribunal (Second Chamber) of 29 January 2009 — Petrilli v Commission

(Case F-98/07) (1)

(Staff cases - Auxiliary contract staff - Admissibility - Act causing adverse effect - Article 3c and Article 88 of the Conditions of employment of other servants - Duration of the contract - Article 3(1) of the Commission Decision of 28 April 2004 on the maximum duration for the recourse to non-permanent staff in the Commission services - Legality)

2009/C 102/54

Language of the case: French

Parties

Applicant: Nicole Petrilli (Woluwé-Saint-Étienne,Belgium) (represented by: J.-L. Lodomez, lawyer)

Defendant: Commission of the European Communities (represented by: D. Martin and B. Eggers, Agents)

Re:

First, annulment of the decision of the appointing authority rejecting, pursuant to the Commission Decision of 28 April 2004 on the maximum duration for the recourse to non-permanent staff in the Commission services, the applicant's request for renewal of her contract as a member of contract staff and, second, an action for damages

Operative part of the judgment

The Tribunal:

| 1. | annuls the decision of the Commission of the European Communities of 20 July 2007 rejecting Ms Petrilli's request for an extension of her contract as an auxiliary member of contract staff; |
| --- | --- |

1.

annuls the decision of the Commission of the European Communities of 20 July 2007 rejecting Ms Petrilli's request for an extension of her contract as an auxiliary member of contract staff;

| 2. | orders the parties to transmit to the Tribunal, within three months of delivery of the present interim judgment, either the amount of the monetary compensation agreed between the parties in respect of the illegality of the decision of 20 July 2007 or their conclusions, with supporting figures, as to that amount; |
| --- | --- |

2.

orders the parties to transmit to the Tribunal, within three months of delivery of the present interim judgment, either the amount of the monetary compensation agreed between the parties in respect of the illegality of the decision of 20 July 2007 or their conclusions, with supporting figures, as to that amount;

| 3. | reserves the costs. |
| --- | --- |

3.

reserves the costs.

---

(1)  OJ C 297 of 8.12.2008, p. 48.

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| 1.5.2009 | EN | Official Journal of the European Union | C 102/38 |
| --- | --- | --- | --- |

1.5.2009

EN

Official Journal of the European Union

C 102/38

---

Judgment of the Civil Service Tribunal (First Chamber) of 10 March 2009 — Tsirimiagos v Committee of the Regions

(Case F-100/07) (1)

(Staff case - Officials - Remuneration - Transfer of part of the emoluments outside the country of employment - Article 17(2)(b) of Annex VII to the old Staff Regulations - Building savings account - Recovery of amounts wrongly paid - Conditions - Irregularity of the transfers - Obvious nature of the irregularity)

2009/C 102/55

Language of the case: French

Parties

Applicant: Kyriakos Tsirimiagos (Kraainem, Belgium) (represented by: M.-A. Lucas, lawyer)

Defendant: Committee of the Regions of the European Union (represented by: P. Cervilla, Agent, and B. Wägenbaur, lawyer)

Re:

Annulment of the decision of 21 November 2006 to recover the amounts paid to the applicant in respect of the correction coefficient on part of his emoluments transferred to France from April 2004 to May 2005 because of the alleged failure to comply with the conditions required for that transfer — Application for damages

Operative part of the judgment

The Tribunal:

| 1. | Annuls the decision of the Committee of the Regions of the European Union of 21 November 2006, as amended by the Decision of 21 June 2007, in so far as it orders the recovery of sums resulting from the application of the correction coefficient to the transfers made by Mr Tsirimiagos to his building savings account from April 2004 to May 2005, amounting to 15 300 euros; |
| --- | --- |

1.

Annuls the decision of the Committee of the Regions of the European Union of 21 November 2006, as amended by the Decision of 21 June 2007, in so far as it orders the recovery of sums resulting from the application of the correction coefficient to the transfers made by Mr Tsirimiagos to his building savings account from April 2004 to May 2005, amounting to 15 300 euros;

| 2. | Orders the Committee of the Regions of the European Union to reimburse Mr Tsirimiagos the sums, together with default interest, withheld from his remuneration, corresponding to the application of the correction coefficient to the transfers made to his building savings account from April 2004 to May 2005, amounting to EU 15 300; that interest is to run from the date of the recovery until the date of the actual payment, at the rate fixed by the European Central Bank for its main refinancing operations and applicable during the period concerned, increased by 2 points; |
| --- | --- |

2.

Orders the Committee of the Regions of the European Union to reimburse Mr Tsirimiagos the sums, together with default interest, withheld from his remuneration, corresponding to the application of the correction coefficient to the transfers made to his building savings account from April 2004 to May 2005, amounting to EU 15 300; that interest is to run from the date of the recovery until the date of the actual payment, at the rate fixed by the European Central Bank for its main refinancing operations and applicable during the period concerned, increased by 2 points;

| 3. | Dismisses the action as to the remainder; |
| --- | --- |

3.

Dismisses the action as to the remainder;

| 4. | Orders the Committee of the Regions of the European Union to pay, in addition to its own costs, half of the applicant’s costs; |
| --- | --- |

4.

Orders the Committee of the Regions of the European Union to pay, in addition to its own costs, half of the applicant’s costs;

| 5. | Orders the applicant to bear half of his own costs. |
| --- | --- |

5.

Orders the applicant to bear half of his own costs.

---

(1)  OJ C 269, 10.11.2007, p. 73.

---

| 1.5.2009 | EN | Official Journal of the European Union | C 102/38 |
| --- | --- | --- | --- |

1.5.2009

EN

Official Journal of the European Union

C 102/38

---

Judgment of the Civil Service Tribunal (First Chamber) of 10 March 2009 — Giaprakis v Committee of the Regions

(Case F-106/07) (1)

(Staff case - Officials - Remuneration - Transfer of part of the emoluments outside the country of employment - Article 17(2)(b) of Annex VII to the old Staff Regulations - Building savings account - Recovery of amounts wrongly paid - Conditions - Irregularity of the transfers - Obvious nature of the irregularity)

2009/C 102/56

Language of the case: French

Parties

Applicant: Stavros Giaprakis (Brussels, Belgium) (represented by: M.-A. Lucas, lawyer)

Defendant: Committee of the Regions of the European Union (represented by: P. Cervilla, agent, and B. Wägenbaur, lawyer)

Re:

Annulment of the decision of 21 November 2006 to recover the amounts paid to the applicant in respect of the correction coefficient on part of his emoluments transferred to France from April 2004 to June 2005 because of the alleged failure to comply with the conditions required for that transfer — Application for damages

Operative part of the judgment

The Tribunal:

| 1. | Annuls the decision of the Committee of the Regions of the European Union of 21 November 2006 ordering the recovery of sums resulting from the application of the correction coefficient to part of the emoluments of Mr Giaprakis transferred to France from April 2004 to June 2005, amounting to EUR 1 246,06; |
| --- | --- |

1.

Annuls the decision of the Committee of the Regions of the European Union of 21 November 2006 ordering the recovery of sums resulting from the application of the correction coefficient to part of the emoluments of Mr Giaprakis transferred to France from April 2004 to June 2005, amounting to EUR 1 246,06;

| 2. | Orders the Committee of the Regions of the European Union to reimburse Mr Giaprakis EUR 1 246,06, together with default interest from the date of the recovery until the date of the actual payment, at the rate fixed by the European Central Bank for its main refinancing operations and applicable during the period concerned, increased by 2 points; |
| --- | --- |

2.

Orders the Committee of the Regions of the European Union to reimburse Mr Giaprakis EUR 1 246,06, together with default interest from the date of the recovery until the date of the actual payment, at the rate fixed by the European Central Bank for its main refinancing operations and applicable during the period concerned, increased by 2 points;

| 3. | Dismisses the action as to the remainder; |
| --- | --- |

3.

Dismisses the action as to the remainder;

| 4. | Orders the Committee of the Regions of the European Union to pay all the costs. |
| --- | --- |

4.

Orders the Committee of the Regions of the European Union to pay all the costs.

---

(1)  OJ C 297, 8.12.2007, p. 49.

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| 1.5.2009 | EN | Official Journal of the European Union | C 102/39 |
| --- | --- | --- | --- |

1.5.2009

EN

Official Journal of the European Union

C 102/39

---

Judgment of the Civil Service Tribunal (Second Chamber) of 12 March 2009 — Hambura v Parliament

(Case F-4/08) (1)

(Staff case - Temporary staff - Recruitment - Selection procedure - Non-admission - Recruitment notice PE/95/S - Failure to use the application form in the Official Journal of the European Union - Admissibility - Prior administrative procedure)

2009/C 102/57

Language of the case: German

Parties

Applicant: Johannes Hambura (Soultzbach, France) (represented by: S. Hambura, lawyer)

Defendant: European Parliament (represented by: S. Seyr and K. Zejdová, Agents)

Re:

Application for annulment of the decision of the Personnel Directorate of 5 December 2007 not to accept the applicant’s application, annulment of competition PE/95/S, sector: doctor, and to recommence the competition process allowing the use of a downloaded application form.

Operative part of the judgment

The Tribunal:

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

1.

Dismisses the action;

| 2. | Orders Mr Hambura to pay all the costs. |
| --- | --- |

2.

Orders Mr Hambura to pay all the costs.

---

(1)  OJ C 92, 12.4.2008, p. 50.

---

| 1.5.2009 | EN | Official Journal of the European Union | C 102/39 |
| --- | --- | --- | --- |

1.5.2009

EN

Official Journal of the European Union

C 102/39

---

Judgment of the Civil Service Tribunal (Third Chamber) of 11 February 2009 — Schönberger v Parliament

(Case F-7/08) (1)

(Staff case - Officials - Promotion - Consideration of comparative merits - Award of merit points - Principle of equal treatment)

2009/C 102/58

Language of the case: German

Parties

Applicant: Peter Schönberger (Luxembourg, Luxembourg) (represented by: O. Mader, lawyer)

Defendant: European Parliament (represented by: S. Seyr and A. Zejdová, Agents)

Re:

Annulment of the Parliament’s decision of 15 January 2007 to award the applicant a lower number of priority points than he wished.

Operative part of the judgment

The Tribunal:

| 1. | Annuls the decisions by which the European Parliament refused to award a third merit point to Mr Schönberger under the 2003 appraisal procedure; |
| --- | --- |

1.

Annuls the decisions by which the European Parliament refused to award a third merit point to Mr Schönberger under the 2003 appraisal procedure;

| 2. | Orders the European Parliament to pay the costs. |
| --- | --- |

2.

Orders the European Parliament to pay the costs.

---

(1)  OJ C 64, 8.3.2008, p. 69.

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| 1.5.2009 | EN | Official Journal of the European Union | C 102/40 |
| --- | --- | --- | --- |

1.5.2009

EN

Official Journal of the European Union

C 102/40

---

Order of the Civil Service Tribunal (Third Chamber) of 12 November 2008 — Domínguez González v Commission

(Case F-88/07) (1)

(Staff case - Technical assistant - Plea of lack of jurisdiction - Plea of inadmissibility - Lack of jurisdiction of the Tribunal)

2009/C 102/59

Language of the case: Spanish

Parties

Applicant: Juan Luís Domínguez González (Gerona, Spain) (represented by: R. Nicolazzi Angelats initially, then by R. Nicolazzi Angelats and M.-C. Oller Gil, lawyers)

Defendant: Commission of the European Communities (represented by: J. Currall and L. Lozano Palacios, Agents)

Re:

Application for compensation for the loss allegedly suffered by the applicant because of the termination of his employment contract with ECHO following the result of the medical check up.

Operative part of the order

| 1. | The Tribunal does not have jurisdiction as regards the action. |
| --- | --- |

1.

The Tribunal does not have jurisdiction as regards the action.

| 2. | The parties are to bear their own costs. |
| --- | --- |

2.

The parties are to bear their own costs.

---

(1)  OJ C 37, 9.2.2008, p. 34

---