# Official Journal C 152/2011

| | ISSN 1725-2423
  doi:10.3000/17252423.C_2011.152.eng |
| --- | --- |
| Official Journal
  of the European Union | C 152 |
| | |
| English edition | Information and Notices | Volume 5421 May 2011 |

ISSN 1725-2423

doi:10.3000/17252423.C_2011.152.eng

Official Journal

of the European Union

C 152

English edition

Information and Notices

Volume 5421 May 2011

---

| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | Court of Justice of the European Union |
| 2011/C 152/01 | Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 145, 14.5.2011 | 1 |

Notice No

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

2011/C 152/01

Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 145, 14.5.2011

Official Journal of the European Union

1

| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2011/C 152/02 | Case C-400/08: Judgment of the Court (Second Chamber) of 24 March 2011 — European Commission v Kingdom of Spain (Failure of a Member State to fulfil obligations — Freedom of establishment — Article 43 EC — National legislation concerning the establishment of shopping centres in Catalonia — Restrictions — Justifications — Proportionality) | 2 |
| 2011/C 152/03 | Case C-565/08: Judgment of the Court (Grand Chamber) of 29 March 2011 — European Commission v Italian Republic (Failure of a Member State to fulfil obligations — Articles 43 EC and 49 EC — Lawyers — Obligation to comply with maximum fee tariffs — Obstacle to market access — No obstacle) | 3 |
| 2011/C 152/04 | Case C-96/09 P: Judgment of the Court (Grand Chamber) of 29 March 2011 — Anheuser-Busch Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 8(4) — Application for registration of the word and figurative mark BUD — Opposition — Indication of geographical origin bud — Protection under the Lisbon Agreement and bilateral treaties between two Member States — Use in the course of trade — Sign of more than mere local significance) | 3 |
| 2011/C 152/05 | Case C-119/09: Judgment of the Court (Grand Chamber) of 5 April 2011 (reference for a preliminary ruling from the Conseil d’État — France) — Société fiduciaire nationale d’expertise comptable v Ministre du Budget, des Comptes publics et de la Fonction publique (Freedom to provide services — Directive 2006/123/EC — Article 24 — Prohibition of total prohibitions on commercial communications by the regulated professions — Profession of qualified accountant — Prohibition on canvassing) | 4 |
| 2011/C 152/06 | Case C-352/09 P: Judgment of the Court (Grand Chamber) of 29 March 2011 — ThyssenKrupp Nirosta GmbH, formerly ThyssenKrupp Stainless AG v European Commission (Appeals — Competition — Agreements, decisions and concerted practices — Community market in stainless steel flat products — Decision finding an infringement of Article 65 CS after the expiry of the ECSC Treaty on the basis of Regulation (EC) No 1/2003 — Powers of the Commission — Principles of nulla poena sine lege and res judicata — Rights of the defence — Attributability of the unlawful conduct — Transfer of liability by means of a statement — Limitation period — Cooperation during the administrative procedure) | 4 |
| 2011/C 152/07 | Case C-369/09 P: Judgment of the Court (First Chamber) of 24 March 2011 — ISD Polska sp. z o.o., Industrial Union of Donbass Corp., ISD Polska sp. z o.o. (formerly Majątek Hutniczy sp. z o.o.) v European Commission (Appeals — State aid — Commission decision — Finding that aid is incompatible with the common market — Order for recovery of aid — Principles of legal certainty and non-retroactivity — Principle of the protection of legitimate expectations — Determination of the appropriateness of the interest rate applicable to the recovery of aid) | 5 |
| 2011/C 152/08 | Case C-407/09: Judgment of the Court (First Chamber) of 31 March 2011 — European Commission v Hellenic Republic (Failure of a Member State to fulfil obligations — Breach of the obligation to comply with a judgment of the Court — Financial penalties — Imposition of a lump sum payment) | 5 |
| 2011/C 152/09 | Case C-424/09: Judgment of the Court (Grand Chamber) of 5 April 2011 (reference for a preliminary ruling from the Symvoulio tis Epikratias (Greece)) — Christina Ioanni Toki v Ipourgos Ethnikis Pedias Thriskevmaton (Directive 89/48/EEC — Points (a) and (b) of the first subparagraph of Article 3 — Recognition of higher education diplomas — Environmental engineer — Activity deemed to be a regulated professional activity — Applicable mechanism of recognition — Meaning of professional experience) | 6 |
| 2011/C 152/10 | Case C-435/09: Judgment of the Court (Third Chamber) of 24 March 2011 — European Commission v Kingdom of Belgium (Failure of a Member State to fulfil obligations — Directive 85/337/EEC — Assessment of the effects of certain public and private projects on the environment — Selection criteria — Determination of thresholds — Size of the project) | 6 |
| 2011/C 152/11 | Case C-450/09: Judgment of the Court (Second Chamber) of 31 March 2011 (reference for a preliminary ruling from the Niedersächsisches Finanzgericht (Germany)) — Ulrich Schröder v Finanzamt Hameln (Free movement of capital — Direct taxation — Taxation of income from the letting of immovable property — Deductibility of annuities paid to a relative in the context of an anticipated succession inter vivos — Condition of being subject to unlimited tax liability in the Member State at issue) | 7 |
| 2011/C 152/12 | Case C-546/09: Judgment of the Court (Fifth Chamber) of 31 March 2011 (reference for a preliminary ruling from the Varhoven administrativen sad — Bulgaria) — Aurubis Balgaria AD v Nachalnik na Mitnitsa Stolichna, formerly Nachalnik na Mitnitsa Sofia (Customs Code — Customs duties — Customs debt on importation — Interest on arrears — Period for the collection of interest on arrears — Compensatory interest) | 7 |
| 2011/C 152/13 | Case C-552/09 P: Judgment of the Court (Fifth Chamber) of 24 March 2011 — Ferrero SpA v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Tirol Milch reg.Gen.mbH Innsbruck (Appeal — Community trade mark — Regulation (EC) No 40/94 — Community figurative mark TiMi KiNDERJOGHURT — Earlier word mark KINDER — Invalidity proceedings — Article 52(1)(a) — Article 8(1)(b) and (5) — Assessment of the similarity of the signs — Family of marks) | 8 |
| 2011/C 152/14 | Case C-50/10: Judgment of the Court (Seventh Chamber) of 31 March 2011 — European Commission v Italian Republic (Failure of a Member State to fulfil obligations — Environment — Directive 2008/1/EC — Integrated pollution prevention and control — Requirements for the granting of permits for existing installations) | 8 |
| 2011/C 152/15 | Case C-365/10: Judgment of the Court (Third Chamber) of 24 March 2011 — European Commission v Republic of Slovenia (Failure of a Member State to fulfil obligations — Pollution control — Limit values for concentrations of PM10 in ambient air) | 9 |
| 2011/C 152/16 | Case C-375/10: Judgment of the Court (Fifth Chamber) of 24 March 2011 — European Commission v Kingdom of Spain (Failure of a Member State to fulfil obligations — Directive 2007/36/EC — Exercise of certain rights of shareholders in listed companies — Failure to transpose within the period prescribed) | 9 |
| 2011/C 152/17 | Case C-53/11 P: Appeal brought on 7 February 2011 by the Office for Harmonisation in the Internal Market against the judgment of the General Court (Fourth Chamber) delivered on 24 November 2010 in Case T-137/09 Nike International v OHIM — Muñoz Molina (R 10) | 10 |
| 2011/C 152/18 | Case C-78/11: Reference for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 22 February 2011 — Asociación Nacional de Grandes Empresas de Distribución (ANGED) v Federación de Asociaciones Sindicales (FASGA) and Others | 10 |
| 2011/C 152/19 | Case C-87/11 P: Appeal brought on 25 February 2011 by Fidelio KG against the judgment of the General Court (Third Chamber) delivered on 16 December 2010 in Case T-286/08 Fidelio KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) | 10 |
| 2011/C 152/20 | Case C-89/11 P: Appeal brought on 25 February 2011 by E.ON Energie AG against the judgment delivered on 15 December 2010 in Case T-141/08 E.ON Energie AG v Commission | 11 |
| 2011/C 152/21 | Case C-96/11 P: Appeal brought on 1 March 2011 by August Storck KG against the judgment of the General Court (First Chamber) delivered on 17 December 2010 in Case T-13/09 August Storck KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) | 12 |
| 2011/C 152/22 | Case C-114/11: Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands), lodged on 7 March 2011 — Staatssecretaris van Financiën v U. Notermans-Boddenberg | 13 |
| 2011/C 152/23 | Case C-115/11: Reference for a preliminary ruling from the Sąd Apelacyjny w Warszawie (Republic of Poland) lodged on 2 March 2011 — Format Urządzenia i Montaże Przemysłowe v Zakład Ubezpieczeń Społecznych I Oddział w Warszawie | 13 |
| 2011/C 152/24 | Case C-116/11: Reference for a preliminary ruling from the Sąd Rejonowy Poznań (Republic of Poland) lodged on 7 March 2011 — Bank Handlowy, Ryszard Adamiak, Christianapol sp. z o. o. | 14 |
| 2011/C 152/25 | Case C-121/11: Reference for a preliminary ruling from the Council of State (Belgium) lodged on 8 March 2011 — The non-profit-making association PRO-BRAINE and Others v The Commune of Braine-le-Château | 14 |
| 2011/C 152/26 | Case C-126/11: Reference for a preliminary ruling from the Hof van Cassatie van België lodged on 10 March 2011 — Inno NV v Unie van Zelfstandige Ondernemers VZW (UNIZO), Organisatie voor de Zelfstandige Modedetailhandel VZW (Mode Unie), Couture Albert BVBA | 15 |
| 2011/C 152/27 | Case C-127/11: Reference for a preliminary ruling from the Arbeidshof te Antwerpen (Belgium) lodged on 11 March 2011 — Aldegonda van den Booren v Rijksdienst voor Pensioenen | 15 |
| 2011/C 152/28 | Case C-140/11: Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 21 March 2011 — Criminal proceedings against Demba Ngagne | 16 |
| 2011/C 152/29 | Case C-141/11: Reference for a preliminary ruling from the Södertörns Tingsrätt (Sweden) lodged on 21 March 2011 — Torsten Hörnfeldt v Posten Meddelande AB | 16 |
| 2011/C 152/30 | Case C-144/11: Reference for a preliminary ruling from the Giudice di pace di Mestre (Italy) lodged on 24 March 2011 — Criminal proceedings against Asad Abdallah | 17 |
| 2011/C 152/31 | Case C-147/11: Reference for a preliminary ruling from Upper Tribunal (United Kingdom) made on 25 March 2011 — Secretary of State for Work and Pensions v Lucja Czop | 17 |
| 2011/C 152/32 | Case C-148/11: Reference for a preliminary ruling from Upper Tribunal (United Kingdom) made on 25 March 2011 — Secretary of State for Work and Pensions v Margita Punakova | 18 |
| | General Court |
| 2011/C 152/33 | Case T-84/08: Judgment of the General Court of 7 April 2011 — Intesa Sanpaolo v OHIM — MIP Metro (COMIT) (Community trade mark — Opposition proceedings — Application for Community word mark COMIT — Earlier national figurative mark Comet — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009) — Article 8(3) of Regulation (EC) No 216/96) | 19 |
| 2011/C 152/34 | Case T-12/09: Judgment of the General Court of 7 April 2011 — Gruber v OHIM (Run the globe) (Community trade mark — Application for Community word mark Run the globe — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 40/94 (now Article 7(1)(b) of Regulation (EC) No 207/2009)) | 19 |
| 2011/C 152/35 | Case T-239/09 P: Order of the General Court of 4 April 2011 — Marcuccio v Commission (Appeal — Civil service — Officials — Refusal by an institution to open an inquiry — Pre-litigation procedure — Action for damages — Appeal in part manifestly inadmissible and in part manifestly unfounded) | 19 |
| 2011/C 152/36 | Case T-392/09 R: Order of the President of the General Court of 2 March 2011 — 1. garantovaná v Commission (Application for interim measures — Competition — Commission Decision imposing a fine — Bank guarantee — Application for suspension of operation of a measure — Prima facie case — Financial loss — Exceptional circumstances — Urgency — Balance of interests — Partial and conditional suspension) | 20 |
| 2011/C 152/37 | Case T-15/10: Order of the General Court of 25 March 2011 — Noko Ngele v Commission and Others (Non-contractual liability — Action brought in part before a court which has no jurisdiction — Action inadmissible in part — Absence of causal link — Action in part manifestly devoid of any basis in law — Articles 111 and 114 of the Rules of Procedure of the General Court) | 20 |
| 2011/C 152/38 | Case T-36/10: Order of the General Court of 24 March 2011 — Internationaler Hilfsfonds v Commission (Action for annulment — Access to documents — Regulation (EC) No 1049/2001 — Documents relating to the LIEN 97-2011 contract — Response to an initial request — Period allowed for bringing proceedings — Manifestly inadmissible — Implied refusal of access — Interest in bringing proceedings — Explicit decision adopted after the action was brought — No need to adjudicate) | 21 |
| 2011/C 152/39 | Case T-71/10 R: Order of the President of the General Court of 8 April 2011 — Xeda International v Commission (Application for interim measures — Directive 91/414/EEC — Decision concerning the non-inclusion of diphenylamine in Annex I to Directive 91/414 — Application for suspension of operation of a measure — Lack of urgency) | 21 |
| 2011/C 152/40 | Case T-484/10 R: Order of the President of the General Court of 17 February 2011 — Gas Natural Fenosa SDG v Commission (Interim measures — State aid — Compensation for the additional production costs of certain power plants arising from the public service obligation to produce certain volumes of electricity out of indigenous coal and implementation of a preferential dispatch mechanism in their favour — Decision not to raise objections — Application for suspension of operation — Prima facie case — Lack of urgency — Weighing of the interests) | 22 |
| 2011/C 152/41 | Case T-486/10 R: Order of the President of the General Court of 17 February 2011 — Iberdrola v Commission (Interim measures — State aid — Compensation for the additional production costs of certain power plants arising from the public service obligation to produce certain volumes of electricity out of indigenous coal and implementation of a preferential dispatch mechanism in their favour — Decision not to raise objections — Application for suspension of operation — Prima facie case — Lack of urgency — Weighing of the interests) | 22 |
| 2011/C 152/42 | Case T-490/10 R: Order of the President of the General Court of 17 February 2011 — Endesa and Endesa Generación v Commission (Interim measures — State aid — Compensation for the additional production costs of certain power plants arising from the public service obligation to produce certain volumes of electricity out of indigenous coal and implementation of a preferential dispatch mechanism in their favour — Decision not to raise objections — Application for suspension of operation — Prima facie case — Lack of urgency — Weighing of the interests) | 23 |
| 2011/C 152/43 | Case T-135/11: Action brought on 4 March 2011 — Clorox v OHIM — Industrias Alen (CLORALEX) | 23 |
| 2011/C 152/44 | Case T-143/11: Action brought on 9 March 2011 — Consorzio vino Chianti Classico v OHIM — Fédération française de rugby (Emblem with a drawing of a rooster) | 24 |
| 2011/C 152/45 | Case T-164/11: Action brought on 16 March 2011 — Reddig v OHMI — Morleys (Shape of knife handles) | 25 |
| 2011/C 152/46 | Case T-165/11: Action brought on 11 March 2011 — Stichting Regionaal Opleidingencentrum van Amsterdam v OHIM — Investimust (COLLEGE) | 25 |
| 2011/C 152/47 | Case T-176/11: Action brought on 14 March 2011 — Carbunión v Council | 26 |
| 2011/C 152/48 | Case T-179/11: Action brought on 18 March 2011 — Sport Eybl & Sports Experts v OHIM — Seven (SEVEN SUMMITS) | 27 |
| 2011/C 152/49 | Case T-180/11: Action brought on 23 March 2011 — Chivas v OHIM — Glencairn Scotch Whisky (CHIVAS LIVE WITH CHIVALRY) | 27 |
| 2011/C 152/50 | Case T-181/11: Action brought on 23 March 2011 — Chivas v OHIM — Glencairn Scotch Whisky (LIVE WITH CHIVALRY) | 28 |
| 2011/C 152/51 | Case T-182/11: Action brought on 28 March 2011 — Dacoury-Tabley v Council | 29 |
| 2011/C 152/52 | Case T-187/11: Action brought on 30 March 2011 — Trabelsi and Others v Council | 29 |
| 2011/C 152/53 | Case T-189/11: Action brought on 24 March 2011 — Yordanov v OHIM — Distribuidora comercial del frio (DISCO DESIGNER) | 30 |
| 2011/C 152/54 | Case T-192/11: Action brought on 31 March 2011 — Seka Yapo and Others v Council | 30 |
| 2011/C 152/55 | Case T-193/11: Action brought on 31 March 2011 — Ahoua-N’Guetta and Others v Council | 31 |
| 2011/C 152/56 | Case T-194/11: Action brought on 31 March 2011 — Bro Grébé v Council | 31 |
| 2011/C 152/57 | Case T-213/11 P(I): Appeal brought on 12 April 2011 by the College of staff representatives of the European Investment Bank and Others against the order of the President of the Second Chamber of the Civil Service Tribunal of 17 March 2011 in Case F-95/10 Bömcke v EIB | 31 |
| | European Union Civil Service Tribunal |
| 2011/C 152/58 | Case F-7/11: Action brought on 2 February 2011 — AX v ECB | 33 |
| 2011/C 152/59 | Case F-9/11: Action brought on 7 February 2011 — Sabbag Afota v Council | 33 |
| 2011/C 152/60 | Case F-24/11: Action brought on 7 March 2011 — Nicolas Katrakasas v Commission | 33 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2011/C 152/02

Case C-400/08: Judgment of the Court (Second Chamber) of 24 March 2011 — European Commission v Kingdom of Spain (Failure of a Member State to fulfil obligations — Freedom of establishment — Article 43 EC — National legislation concerning the establishment of shopping centres in Catalonia — Restrictions — Justifications — Proportionality)

2

2011/C 152/03

Case C-565/08: Judgment of the Court (Grand Chamber) of 29 March 2011 — European Commission v Italian Republic (Failure of a Member State to fulfil obligations — Articles 43 EC and 49 EC — Lawyers — Obligation to comply with maximum fee tariffs — Obstacle to market access — No obstacle)

3

2011/C 152/04

Case C-96/09 P: Judgment of the Court (Grand Chamber) of 29 March 2011 — Anheuser-Busch Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 8(4) — Application for registration of the word and figurative mark BUD — Opposition — Indication of geographical origin bud — Protection under the Lisbon Agreement and bilateral treaties between two Member States — Use in the course of trade — Sign of more than mere local significance)

3

2011/C 152/05

Case C-119/09: Judgment of the Court (Grand Chamber) of 5 April 2011 (reference for a preliminary ruling from the Conseil d’État — France) — Société fiduciaire nationale d’expertise comptable v Ministre du Budget, des Comptes publics et de la Fonction publique (Freedom to provide services — Directive 2006/123/EC — Article 24 — Prohibition of total prohibitions on commercial communications by the regulated professions — Profession of qualified accountant — Prohibition on canvassing)

4

2011/C 152/06

Case C-352/09 P: Judgment of the Court (Grand Chamber) of 29 March 2011 — ThyssenKrupp Nirosta GmbH, formerly ThyssenKrupp Stainless AG v European Commission (Appeals — Competition — Agreements, decisions and concerted practices — Community market in stainless steel flat products — Decision finding an infringement of Article 65 CS after the expiry of the ECSC Treaty on the basis of Regulation (EC) No 1/2003 — Powers of the Commission — Principles of nulla poena sine lege and res judicata — Rights of the defence — Attributability of the unlawful conduct — Transfer of liability by means of a statement — Limitation period — Cooperation during the administrative procedure)

4

2011/C 152/07

Case C-369/09 P: Judgment of the Court (First Chamber) of 24 March 2011 — ISD Polska sp. z o.o., Industrial Union of Donbass Corp., ISD Polska sp. z o.o. (formerly Majątek Hutniczy sp. z o.o.) v European Commission (Appeals — State aid — Commission decision — Finding that aid is incompatible with the common market — Order for recovery of aid — Principles of legal certainty and non-retroactivity — Principle of the protection of legitimate expectations — Determination of the appropriateness of the interest rate applicable to the recovery of aid)

5

2011/C 152/08

Case C-407/09: Judgment of the Court (First Chamber) of 31 March 2011 — European Commission v Hellenic Republic (Failure of a Member State to fulfil obligations — Breach of the obligation to comply with a judgment of the Court — Financial penalties — Imposition of a lump sum payment)

5

2011/C 152/09

Case C-424/09: Judgment of the Court (Grand Chamber) of 5 April 2011 (reference for a preliminary ruling from the Symvoulio tis Epikratias (Greece)) — Christina Ioanni Toki v Ipourgos Ethnikis Pedias Thriskevmaton (Directive 89/48/EEC — Points (a) and (b) of the first subparagraph of Article 3 — Recognition of higher education diplomas — Environmental engineer — Activity deemed to be a regulated professional activity — Applicable mechanism of recognition — Meaning of professional experience)

6

2011/C 152/10

Case C-435/09: Judgment of the Court (Third Chamber) of 24 March 2011 — European Commission v Kingdom of Belgium (Failure of a Member State to fulfil obligations — Directive 85/337/EEC — Assessment of the effects of certain public and private projects on the environment — Selection criteria — Determination of thresholds — Size of the project)

6

2011/C 152/11

Case C-450/09: Judgment of the Court (Second Chamber) of 31 March 2011 (reference for a preliminary ruling from the Niedersächsisches Finanzgericht (Germany)) — Ulrich Schröder v Finanzamt Hameln (Free movement of capital — Direct taxation — Taxation of income from the letting of immovable property — Deductibility of annuities paid to a relative in the context of an anticipated succession inter vivos — Condition of being subject to unlimited tax liability in the Member State at issue)

7

2011/C 152/12

Case C-546/09: Judgment of the Court (Fifth Chamber) of 31 March 2011 (reference for a preliminary ruling from the Varhoven administrativen sad — Bulgaria) — Aurubis Balgaria AD v Nachalnik na Mitnitsa Stolichna, formerly Nachalnik na Mitnitsa Sofia (Customs Code — Customs duties — Customs debt on importation — Interest on arrears — Period for the collection of interest on arrears — Compensatory interest)

7

2011/C 152/13

Case C-552/09 P: Judgment of the Court (Fifth Chamber) of 24 March 2011 — Ferrero SpA v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Tirol Milch reg.Gen.mbH Innsbruck (Appeal — Community trade mark — Regulation (EC) No 40/94 — Community figurative mark TiMi KiNDERJOGHURT — Earlier word mark KINDER — Invalidity proceedings — Article 52(1)(a) — Article 8(1)(b) and (5) — Assessment of the similarity of the signs — Family of marks)

8

2011/C 152/14

Case C-50/10: Judgment of the Court (Seventh Chamber) of 31 March 2011 — European Commission v Italian Republic (Failure of a Member State to fulfil obligations — Environment — Directive 2008/1/EC — Integrated pollution prevention and control — Requirements for the granting of permits for existing installations)

8

2011/C 152/15

Case C-365/10: Judgment of the Court (Third Chamber) of 24 March 2011 — European Commission v Republic of Slovenia (Failure of a Member State to fulfil obligations — Pollution control — Limit values for concentrations of PM10 in ambient air)

9

2011/C 152/16

Case C-375/10: Judgment of the Court (Fifth Chamber) of 24 March 2011 — European Commission v Kingdom of Spain (Failure of a Member State to fulfil obligations — Directive 2007/36/EC — Exercise of certain rights of shareholders in listed companies — Failure to transpose within the period prescribed)

9

2011/C 152/17

Case C-53/11 P: Appeal brought on 7 February 2011 by the Office for Harmonisation in the Internal Market against the judgment of the General Court (Fourth Chamber) delivered on 24 November 2010 in Case T-137/09 Nike International v OHIM — Muñoz Molina (R 10)

Nike International v OHIM

Muñoz Molina (R 10)

10

2011/C 152/18

Case C-78/11: Reference for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 22 February 2011 — Asociación Nacional de Grandes Empresas de Distribución (ANGED) v Federación de Asociaciones Sindicales (FASGA) and Others

10

2011/C 152/19

Case C-87/11 P: Appeal brought on 25 February 2011 by Fidelio KG against the judgment of the General Court (Third Chamber) delivered on 16 December 2010 in Case T-286/08 Fidelio KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

10

2011/C 152/20

Case C-89/11 P: Appeal brought on 25 February 2011 by E.ON Energie AG against the judgment delivered on 15 December 2010 in Case T-141/08 E.ON Energie AG v Commission

11

2011/C 152/21

Case C-96/11 P: Appeal brought on 1 March 2011 by August Storck KG against the judgment of the General Court (First Chamber) delivered on 17 December 2010 in Case T-13/09 August Storck KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

ugust Storck KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

12

2011/C 152/22

Case C-114/11: Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands), lodged on 7 March 2011 — Staatssecretaris van Financiën v U. Notermans-Boddenberg

13

2011/C 152/23

Case C-115/11: Reference for a preliminary ruling from the Sąd Apelacyjny w Warszawie (Republic of Poland) lodged on 2 March 2011 — Format Urządzenia i Montaże Przemysłowe v Zakład Ubezpieczeń Społecznych I Oddział w Warszawie

13

2011/C 152/24

Case C-116/11: Reference for a preliminary ruling from the Sąd Rejonowy Poznań (Republic of Poland) lodged on 7 March 2011 — Bank Handlowy, Ryszard Adamiak, Christianapol sp. z o. o.

14

2011/C 152/25

Case C-121/11: Reference for a preliminary ruling from the Council of State (Belgium) lodged on 8 March 2011 — The non-profit-making association PRO-BRAINE and Others v The Commune of Braine-le-Château

14

2011/C 152/26

Case C-126/11: Reference for a preliminary ruling from the Hof van Cassatie van België lodged on 10 March 2011 — Inno NV v Unie van Zelfstandige Ondernemers VZW (UNIZO), Organisatie voor de Zelfstandige Modedetailhandel VZW (Mode Unie), Couture Albert BVBA

15

2011/C 152/27

Case C-127/11: Reference for a preliminary ruling from the Arbeidshof te Antwerpen (Belgium) lodged on 11 March 2011 — Aldegonda van den Booren v Rijksdienst voor Pensioenen

15

2011/C 152/28

Case C-140/11: Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 21 March 2011 — Criminal proceedings against Demba Ngagne

16

2011/C 152/29

Case C-141/11: Reference for a preliminary ruling from the Södertörns Tingsrätt (Sweden) lodged on 21 March 2011 — Torsten Hörnfeldt v Posten Meddelande AB

16

2011/C 152/30

Case C-144/11: Reference for a preliminary ruling from the Giudice di pace di Mestre (Italy) lodged on 24 March 2011 — Criminal proceedings against Asad Abdallah

17

2011/C 152/31

Case C-147/11: Reference for a preliminary ruling from Upper Tribunal (United Kingdom) made on 25 March 2011 — Secretary of State for Work and Pensions v Lucja Czop

17

2011/C 152/32

Case C-148/11: Reference for a preliminary ruling from Upper Tribunal (United Kingdom) made on 25 March 2011 — Secretary of State for Work and Pensions v Margita Punakova

18

General Court

2011/C 152/33

Case T-84/08: Judgment of the General Court of 7 April 2011 — Intesa Sanpaolo v OHIM — MIP Metro (COMIT) (Community trade mark — Opposition proceedings — Application for Community word mark COMIT — Earlier national figurative mark Comet — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009) — Article 8(3) of Regulation (EC) No 216/96)

19

2011/C 152/34

Case T-12/09: Judgment of the General Court of 7 April 2011 — Gruber v OHIM (Run the globe) (Community trade mark — Application for Community word mark Run the globe — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 40/94 (now Article 7(1)(b) of Regulation (EC) No 207/2009))

19

2011/C 152/35

Case T-239/09 P: Order of the General Court of 4 April 2011 — Marcuccio v Commission (Appeal — Civil service — Officials — Refusal by an institution to open an inquiry — Pre-litigation procedure — Action for damages — Appeal in part manifestly inadmissible and in part manifestly unfounded)

19

2011/C 152/36

Case T-392/09 R: Order of the President of the General Court of 2 March 2011 — 1. garantovaná v Commission (Application for interim measures — Competition — Commission Decision imposing a fine — Bank guarantee — Application for suspension of operation of a measure — Prima facie case — Financial loss — Exceptional circumstances — Urgency — Balance of interests — Partial and conditional suspension)

20

2011/C 152/37

Case T-15/10: Order of the General Court of 25 March 2011 — Noko Ngele v Commission and Others (Non-contractual liability — Action brought in part before a court which has no jurisdiction — Action inadmissible in part — Absence of causal link — Action in part manifestly devoid of any basis in law — Articles 111 and 114 of the Rules of Procedure of the General Court)

20

2011/C 152/38

Case T-36/10: Order of the General Court of 24 March 2011 — Internationaler Hilfsfonds v Commission (Action for annulment — Access to documents — Regulation (EC) No 1049/2001 — Documents relating to the LIEN 97-2011 contract — Response to an initial request — Period allowed for bringing proceedings — Manifestly inadmissible — Implied refusal of access — Interest in bringing proceedings — Explicit decision adopted after the action was brought — No need to adjudicate)

21

2011/C 152/39

Case T-71/10 R: Order of the President of the General Court of 8 April 2011 — Xeda International v Commission (Application for interim measures — Directive 91/414/EEC — Decision concerning the non-inclusion of diphenylamine in Annex I to Directive 91/414 — Application for suspension of operation of a measure — Lack of urgency)

21

2011/C 152/40

Case T-484/10 R: Order of the President of the General Court of 17 February 2011 — Gas Natural Fenosa SDG v Commission (Interim measures — State aid — Compensation for the additional production costs of certain power plants arising from the public service obligation to produce certain volumes of electricity out of indigenous coal and implementation of a preferential dispatch mechanism in their favour — Decision not to raise objections — Application for suspension of operation — Prima facie case — Lack of urgency — Weighing of the interests)

22

2011/C 152/41

Case T-486/10 R: Order of the President of the General Court of 17 February 2011 — Iberdrola v Commission (Interim measures — State aid — Compensation for the additional production costs of certain power plants arising from the public service obligation to produce certain volumes of electricity out of indigenous coal and implementation of a preferential dispatch mechanism in their favour — Decision not to raise objections — Application for suspension of operation — Prima facie case — Lack of urgency — Weighing of the interests)

22

2011/C 152/42

Case T-490/10 R: Order of the President of the General Court of 17 February 2011 — Endesa and Endesa Generación v Commission (Interim measures — State aid — Compensation for the additional production costs of certain power plants arising from the public service obligation to produce certain volumes of electricity out of indigenous coal and implementation of a preferential dispatch mechanism in their favour — Decision not to raise objections — Application for suspension of operation — Prima facie case — Lack of urgency — Weighing of the interests)

23

2011/C 152/43

Case T-135/11: Action brought on 4 March 2011 — Clorox v OHIM — Industrias Alen (CLORALEX)

23

2011/C 152/44

Case T-143/11: Action brought on 9 March 2011 — Consorzio vino Chianti Classico v OHIM — Fédération française de rugby (Emblem with a drawing of a rooster)

24

2011/C 152/45

Case T-164/11: Action brought on 16 March 2011 — Reddig v OHMI — Morleys (Shape of knife handles)

25

2011/C 152/46

Case T-165/11: Action brought on 11 March 2011 — Stichting Regionaal Opleidingencentrum van Amsterdam v OHIM — Investimust (COLLEGE)

25

2011/C 152/47

Case T-176/11: Action brought on 14 March 2011 — Carbunión v Council

26

2011/C 152/48

Case T-179/11: Action brought on 18 March 2011 — Sport Eybl & Sports Experts v OHIM — Seven (SEVEN SUMMITS)

27

2011/C 152/49

Case T-180/11: Action brought on 23 March 2011 — Chivas v OHIM — Glencairn Scotch Whisky (CHIVAS LIVE WITH CHIVALRY)

27

2011/C 152/50

Case T-181/11: Action brought on 23 March 2011 — Chivas v OHIM — Glencairn Scotch Whisky (LIVE WITH CHIVALRY)

28

2011/C 152/51

Case T-182/11: Action brought on 28 March 2011 — Dacoury-Tabley v Council

29

2011/C 152/52

Case T-187/11: Action brought on 30 March 2011 — Trabelsi and Others v Council

29

2011/C 152/53

Case T-189/11: Action brought on 24 March 2011 — Yordanov v OHIM — Distribuidora comercial del frio (DISCO DESIGNER)

30

2011/C 152/54

Case T-192/11: Action brought on 31 March 2011 — Seka Yapo and Others v Council

30

2011/C 152/55

Case T-193/11: Action brought on 31 March 2011 — Ahoua-N’Guetta and Others v Council

31

2011/C 152/56

Case T-194/11: Action brought on 31 March 2011 — Bro Grébé v Council

31

2011/C 152/57

Case T-213/11 P(I): Appeal brought on 12 April 2011 by the College of staff representatives of the European Investment Bank and Others against the order of the President of the Second Chamber of the Civil Service Tribunal of 17 March 2011 in Case F-95/10 Bömcke v EIB

31

European Union Civil Service Tribunal

2011/C 152/58

Case F-7/11: Action brought on 2 February 2011 — AX v ECB

33

2011/C 152/59

Case F-9/11: Action brought on 7 February 2011 — Sabbag Afota v Council

33

2011/C 152/60

Case F-24/11: Action brought on 7 March 2011 — Nicolas Katrakasas v Commission

33

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

EN

---

IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

| 21.5.2011 | EN | Official Journal of the European Union | C 152/1 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/1

---

2011/C 152/01

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

OJ C 145, 14.5.2011

Past publications

OJ C 139, 7.5.2011

OJ C 130, 30.4.2011

OJ C 120, 16.4.2011

OJ C 113, 9.4.2011

OJ C 103, 2.4.2011

OJ C 95, 26.3.2011

These texts are available on:

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

---

V Announcements

COURT PROCEEDINGS

Court of Justice

| 21.5.2011 | EN | Official Journal of the European Union | C 152/2 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/2

---

Judgment of the Court (Second Chamber) of 24 March 2011 — European Commission v Kingdom of Spain

(Case C-400/08) (1)

(Failure of a Member State to fulfil obligations - Freedom of establishment - Article 43 EC - National legislation concerning the establishment of shopping centres in Catalonia - Restrictions - Justifications - Proportionality)

2011/C 152/02

Language of the case: Spanish

Parties

Applicant: European Commission (represented by: E. Traversa and R. Vidal Puig, acting as Agents, C. Fernández Vicién and A. Pereda Miquel, abogados)

Defendant: Kingdom of Spain (represented by: N. Díaz Abad, acting as Agent)

Intervener in support of the defendant: Kingdom of Denmark (represented by: J. Bering Liisberg and R. Holdgaard, acting as Agents)

Re:

Failure of a Member State to fulfil its obligations — Infringement of Article 43 EC — Restrictions on the establishment of shopping centres — Licences

Operative part of the judgment

The Court:

| 1. | Declares that the Kingdom of Spain has failed to fulfil its obligations under Article 43 EC by adopting and/or by maintaining in force the following provisions:






  — | Article 4(1) of Law 18/2005 on trading establishments (Ley 18/2005 de equipamientos comerciales) of 27 December 2005, in so far as it prohibits the opening of large retail establishments outside consolidated urban areas of a limited number of municipalities; |
| --- | --- | --- |

1.

Declares that the Kingdom of Spain has failed to fulfil its obligations under Article 43 EC by adopting and/or by maintaining in force the following provisions:

—

Article 4(1) of Law 18/2005 on trading establishments (Ley 18/2005 de equipamientos comerciales) of 27 December 2005, in so far as it prohibits the opening of large retail establishments outside consolidated urban areas of a limited number of municipalities;

| — | Articles 7 and 10(2) of the Annex to Decree 379/2006 approving the new sectoral territorial plan for trading establishments (Decreto 379/2006 por el que se aprueba el Plan territorial sectorial de equipamientos comerciales) of 10 October 2006, and Annex 1 thereto, in so far as those provisions restrict the opening of new hypermarkets to a limited number of districts and provide that such new hypermarkets are not to account for more than 9 % of estimated expenses for staple supplies and 7 % of estimated expenses for non-staple supplies; |
| --- | --- |

—

Articles 7 and 10(2) of the Annex to Decree 379/2006 approving the new sectoral territorial plan for trading establishments (Decreto 379/2006 por el que se aprueba el Plan territorial sectorial de equipamientos comerciales) of 10 October 2006, and Annex 1 thereto, in so far as those provisions restrict the opening of new hypermarkets to a limited number of districts and provide that such new hypermarkets are not to account for more than 9 % of estimated expenses for staple supplies and 7 % of estimated expenses for non-staple supplies;

| — | the first subparagraph of Article 6(2) of Law 7/1996 on retail commerce (Ley 7/1996, de ordenación del comercio minorista) of 15 January 1996, Article 8 of Law 18/2005 on trading establishments of 27 December 2005 and Articles 31(4) and 33(2) of Decree 378/2006, implementing Law 18/2005 (Decreto 378/2006 por el que se desarolla la Ley 18/2005), of 10 October 2006, in so far as those provisions require the application of ceilings as regards market share and the impact on existing retail trade, above which it is impossible to open new large retail establishments and/or new medium-sized retail establishments; and |
| --- | --- |

—

the first subparagraph of Article 6(2) of Law 7/1996 on retail commerce (Ley 7/1996, de ordenación del comercio minorista) of 15 January 1996, Article 8 of Law 18/2005 on trading establishments of 27 December 2005 and Articles 31(4) and 33(2) of Decree 378/2006, implementing Law 18/2005 (Decreto 378/2006 por el que se desarolla la Ley 18/2005), of 10 October 2006, in so far as those provisions require the application of ceilings as regards market share and the impact on existing retail trade, above which it is impossible to open new large retail establishments and/or new medium-sized retail establishments; and

| — | Article 26 of Decree 378/2006 implementing Law 18/2005 of 10 October 2006, in so far as in specifying the composition of the Comisión de Equipamientos Comerciales (Retail Facilities Committee) it ensures that existing retail trade is represented and fails to ensure that associations active in the field of environmental protection, or interest groups working towards consumer protection, are represented; |
| --- | --- |

—

Article 26 of Decree 378/2006 implementing Law 18/2005 of 10 October 2006, in so far as in specifying the composition of the Comisión de Equipamientos Comerciales (Retail Facilities Committee) it ensures that existing retail trade is represented and fails to ensure that associations active in the field of environmental protection, or interest groups working towards consumer protection, are represented;

| 2. | Declares that there is no need to adjudicate on the action in so far as it concerns the compatibility with Article 43 EC of Article 33(5) and (7) of Decree 378/2006, implementing Law 18/2005, of 10 October 2006; |
| --- | --- |

2.

Declares that there is no need to adjudicate on the action in so far as it concerns the compatibility with Article 43 EC of Article 33(5) and (7) of Decree 378/2006, implementing Law 18/2005, of 10 October 2006;

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

3.

Dismisses the action as to the remainder;

| 4. | Orders the European Commission, the Kingdom of Spain and the Kingdom of Denmark to bear their own costs. |
| --- | --- |

4.

Orders the European Commission, the Kingdom of Spain and the Kingdom of Denmark to bear their own costs.

---

(1)  OJ C 285, 8.11.2008.

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/3 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/3

---

Judgment of the Court (Grand Chamber) of 29 March 2011 — European Commission v Italian Republic

(Case C-565/08) (1)

(Failure of a Member State to fulfil obligations - Articles 43 EC and 49 EC - Lawyers - Obligation to comply with maximum fee tariffs - Obstacle to market access - No obstacle)

2011/C 152/03

Language of the case: Italian

Parties

Applicant: European Commission (represented by: E. Traversa and L. Prete, Agents)

Defendant: Italian Republic (represented: I. Bruni, G. Calmieri and W. Ferrante, Agents)

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 43 EC and 49 EC — Lawyers — Obligation to comply with compulsory fee ceilings

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders the European Commission and the Italian Republic to bear their own costs. |
| --- | --- |

2.

Orders the European Commission and the Italian Republic to bear their own costs.

---

(1)  OJ C 55, 7.3.2009.

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/3 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/3

---

Judgment of the Court (Grand Chamber) of 29 March 2011 — Anheuser-Busch Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-96/09 P) (1)

(Appeal - Community trade mark - Regulation (EC) No 40/94 - Article 8(4) - Application for registration of the word and figurative mark BUD - Opposition - Indication of geographical origin ‘bud‘ - Protection under the Lisbon Agreement and bilateral treaties between two Member States - Use in the course of trade - Sign of more than mere local significance)

2011/C 152/04

Language of the case: English

Parties

Appellant: Anheuser-Busch Inc. (represented by: V. von Bomhard and B. Goebel, Rechtsanwälte)

Other parties to the proceedings: Budějovický Budvar, národní podnik (represented by F. Fajgenbaum, T. Lachacinski, C. Petsch and S. Sculy-Logotheti, lawyers), Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Folliard-Monguiral, Agent)

Re:

Appeal against the judgment of the Court of First Instance (First Chamber) of 16 December 2008 in Joined Cases T-225/06, T-255/06, T-257/06 and T-309/06 Budějovický Budvar v OHIM and Anheuser-Busch, by which the Court of First Instance annulled decisions R 234/2005-2, R 241/ 2005-2, R 802/2004-2 and R 305/2005-2 of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) dismissing the appeals brought against the decisions of the Opposition Division rejecting the opposition brought by Budějovický Budvar, národní podnik against the application for registration of the word mark ‘BUD’ for goods in Classes 32 and 33 — Infringement of Article 8(4)(b) of Regulation (EC) No 40/94

Operative part of the judgment

The Court:

| 1. | Sets aside the judgment of the Court of First Instance of the European Communities of 16 December 2008 in Joined Cases T-225/06, T-255/06, T-257/06 and T-309/06 Budějovický Budvar v OHIM — Anheuser-Busch (BUD) in so far as the Court, with regard to the interpretation of Article 8(4) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark, as amended by Council Regulation (EC) No 422/2004 of 19 February 2004, erred in holding, first, that the significance of the sign concerned, which cannot be merely local, must be evaluated exclusively by reference to the extent of the territory in which the sign is protected, without taking account of its use in that territory, second, that the relevant territory for the purpose of evaluating the use of that sign is not necessarily the territory in which the sign is protected and, finally, that the use of the sign does not necessarily have to occur before the date of the application for registration of the Community trade mark; |
| --- | --- |

1.

Sets aside the judgment of the Court of First Instance of the European Communities of 16 December 2008 in Joined Cases T-225/06, T-255/06, T-257/06 and T-309/06 Budějovický Budvar v OHIM — Anheuser-Busch (BUD) in so far as the Court, with regard to the interpretation of Article 8(4) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark, as amended by Council Regulation (EC) No 422/2004 of 19 February 2004, erred in holding, first, that the significance of the sign concerned, which cannot be merely local, must be evaluated exclusively by reference to the extent of the territory in which the sign is protected, without taking account of its use in that territory, second, that the relevant territory for the purpose of evaluating the use of that sign is not necessarily the territory in which the sign is protected and, finally, that the use of the sign does not necessarily have to occur before the date of the application for registration of the Community trade mark;

| 2. | Dismisses the remainder of the appeal; |
| --- | --- |

2.

Dismisses the remainder of the appeal;

| 3. | Refers Joined Cases T-225/06, T-255/06, T-257/06 and T-309/06 back to the General Court of the European Union; |
| --- | --- |

3.

Refers Joined Cases T-225/06, T-255/06, T-257/06 and T-309/06 back to the General Court of the European Union;

| 4. | Reserves the costs. |
| --- | --- |

4.

Reserves the costs.

---

(1)  OJ C 113, 16.5.2009.

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/4 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/4

---

Judgment of the Court (Grand Chamber) of 5 April 2011 (reference for a preliminary ruling from the Conseil d’État — France) — Société fiduciaire nationale d’expertise comptable v Ministre du Budget, des Comptes publics et de la Fonction publique

(Case C-119/09) (1)

(Freedom to provide services - Directive 2006/123/EC - Article 24 - Prohibition of total prohibitions on commercial communications by the regulated professions - Profession of qualified accountant - Prohibition on canvassing)

2011/C 152/05

Language of the case: French

Referring court

Conseil d’État

Parties to the main proceedings

Applicant: Société fiduciaire nationale d’expertise comptable

Defendant: Ministre du Budget, des Comptes publics et de la Fonction publique

Re:

Reference for a preliminary ruling — Conseil d'État (France) — Interpretation of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36) and, specifically, Article 24 thereof relating to commercial communications by the regulated professions — Commercial practice of canvassing — Proscription, in respect of the regulated professions covered by the directive, of any general prohibition, whatever the form of commercial practice concerned, or the option for the Member States to maintain general prohibitions in respect of certain commercial practices, such as canvassing

Operative part of the judgment

Article 24(1) of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market must be interpreted as precluding national legislation which totally prohibits the members of a regulated profession, such as the profession of qualified accountant, from engaging in canvassing.

---

(1)  OJ C 141, 20.6.2009.

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/4 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/4

---

Judgment of the Court (Grand Chamber) of 29 March 2011 — ThyssenKrupp Nirosta GmbH, formerly ThyssenKrupp Stainless AG v European Commission

(Case C-352/09 P) (1)

(Appeals - Competition - Agreements, decisions and concerted practices - Community market in stainless steel flat products - Decision finding an infringement of Article 65 CS after the expiry of the ECSC Treaty on the basis of Regulation (EC) No 1/2003 - Powers of the Commission - Principles of nulla poena sine lege and res judicata - Rights of the defence - Attributability of the unlawful conduct - Transfer of liability by means of a statement - Limitation period - Cooperation during the administrative procedure)

2011/C 152/06

Language of the case: German

Parties

Appellant: ThyssenKrupp Nirosta GmbH, formerly ThyssenKrupp Stainless AG (represented by: M. Klusmann, Rechtsanwalt, and S. Thomas, Universitätsprofessor)

Other party to the proceedings: European Commission (represented by: F. Castillo de la Torre and R. Sauer, Agents)

Re:

Appeal against the judgment of the Court of First Instance (Fifth Chamber) of 1 July 2009 in Case T-24/07 ThyssenKrupp Stainless v Commission, by which the Court of First Instance dismissed the action for annulment of the Commission Decision of 20 December 2006 relating to a proceeding under Article 65 CS and, in the alternative, the application for reduction of the fine imposed on the applicant by that decision — Cartel on the market for stainless steel flat products — Decision finding an infringement of Article 65 CS after expiry of the ECSC Treaty, pursuant to 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) — Infringement of nulla poene sine lege and res judicata principles and of Articles 5, 7(1) and 83 EC — Infringement of applicable rules concerning time-bar for proceedings

Operative part of the judgment

The Court:

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

1.

Dismisses the appeal;

| 2. | Orders ThyssenKrupp Nirosta GmbH to pay the costs. |
| --- | --- |

2.

Orders ThyssenKrupp Nirosta GmbH to pay the costs.

---

(1)  OJ C 282, 21.11.2009.

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/5 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/5

---

Judgment of the Court (First Chamber) of 24 March 2011 — ISD Polska sp. z o.o., Industrial Union of Donbass Corp., ISD Polska sp. z o.o. (formerly Majątek Hutniczy sp. z o.o.) v European Commission

(Case C-369/09 P) (1)

(Appeals - State aid - Commission decision - Finding that aid is incompatible with the common market - Order for recovery of aid - Principles of legal certainty and non-retroactivity - Principle of the protection of legitimate expectations - Determination of the ‘appropriateness’ of the interest rate applicable to the recovery of aid)

2011/C 152/07

Language of the case: French

Parties

Appellants: ISD Polska sp. z o.o., Industrial Union of Donbass Corp., ISD Polska sp. z o.o. (formerly Majątek Hutniczy sp. z o.o.) (represented by: C. Rapin and E. Van den Haute, lawyers)

Other party to the proceedings: European Commission (represented by: E. Gippini Fournier and A. Stobiecka-Kuik, Agents)

Re:

Appeal against the judgment of the Court of First Instance (Eighth Chamber) of 1 July 2009 in Joined Cases T-273/06 and T-297/06 ISD Polska and Others v Commission dismissing the appellants’ actions seeking the partial annulment of Commission Decision 2006/937/EC of 5 July 2005 on State aid C-20/04 in favour of Huta Częstochowa SA (OJ 2006 L 366, p. 1) in so far as it declared certain aid incompatible with the common market and ordered the Republic of Poland to recover the aid — Principles of legal certainty and the non-retroactivity of Community acts — Principle of the protection of legitimate expectations — Determination of the ‘appropriate’ nature of the interest rate applicable to the recovery of aid found to be incompatible with the common market

Operative part of the judgment

The Court:

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

1.

Dismisses the appeal.

| 2. | Orders ISD Polska sp. z o.o. and Industrial Union of Donbass Corp. to pay the costs. |
| --- | --- |

2.

Orders ISD Polska sp. z o.o. and Industrial Union of Donbass Corp. to pay the costs.

---

(1)  OJ C 312, 19.12.2009.

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/5 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/5

---

Judgment of the Court (First Chamber) of 31 March 2011 — European Commission v Hellenic Republic

(Case C-407/09) (1)

(Failure of a Member State to fulfil obligations - Breach of the obligation to comply with a judgment of the Court - Financial penalties - Imposition of a lump sum payment)

2011/C 152/08

Language of the case: Greek

Parties

Applicant: European Commission (represented by: M. Condou-Durande and A.-M. Rouchaud-Joët, Agents)

Defendant: Hellenic Republic (represented by: A. Samoni-Rantou and N. Dafniou, Agents)

Re:

Failure of a Member State to fulfil obligations — Article 228 EC — Non-compliance with the judgment of the Court of 18 July 2007 in Case C-26/07 — Failure to adopt all the measures necessary to comply with Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims (OJ 2004 L 261, p. 15) — Request that a penalty payment be set

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to take the measures necessary to comply with the judgment of 18 July 2007 in Case C-26/07 Commission v Greece by the date of expiry of the period prescribed in the reasoned opinion that was issued by the Commission of the European Communities on 23 September 2008 pursuant to Article 228 EC, the Hellenic Republic failed to fulfil its obligations under Article 228(1) EC; |
| --- | --- |

1.

Declares that, by failing to take the measures necessary to comply with the judgment of 18 July 2007 in Case C-26/07 Commission v Greece by the date of expiry of the period prescribed in the reasoned opinion that was issued by the Commission of the European Communities on 23 September 2008 pursuant to Article 228 EC, the Hellenic Republic failed to fulfil its obligations under Article 228(1) EC;

| 2. | Orders the Hellenic Republic to pay to the European Commission, into the account ‘European Union own resources’, a lump sum of EUR 3 million; |
| --- | --- |

2.

Orders the Hellenic Republic to pay to the European Commission, into the account ‘European Union own resources’, a lump sum of EUR 3 million;

| 3. | Orders the Hellenic Republic to pay the costs. |
| --- | --- |

3.

Orders the Hellenic Republic to pay the costs.

---

(1)  OJ C 11, 16.1.2010.

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/6 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/6

---

Judgment of the Court (Grand Chamber) of 5 April 2011 (reference for a preliminary ruling from the Symvoulio tis Epikratias (Greece)) — Christina Ioanni Toki v Ipourgos Ethnikis Pedias Thriskevmaton

(Case C-424/09) (1)

(Directive 89/48/EEC - Points (a) and (b) of the first subparagraph of Article 3 - Recognition of higher education diplomas - Environmental engineer - Activity deemed to be a regulated professional activity - Applicable mechanism of recognition - Meaning of ‘professional experience’)

2011/C 152/09

Language of the case: Greek

Referring court

Symvoulio tis Epikratias

Parties to the main proceedings

Applicant: Christina Ioanni Toki

Defendant: Ipourgos Ethnikis Pedias Thriskevmaton

Re:

Reference for a preliminary ruling — Simvoulio tis Epikratias — Interpretation of Article 4(1)(b) of Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years’ duration (OJ 1989 L 19, p. 16) — Interpretation of Article 1(3) of Directive 2001/19/EC of the European Parliament and of the Council of 14 May 2001 amending Council Directives 89/48/EEC and 92/51/EEC on the general system for the recognition of professional qualifications and Council Directives 77/452/EEC, 77/453/EEC, 78/686/EEC, 78/687/EEC, 78/1026/EEC, 78/1027/EEC, 80/154/EEC, 80/155/EEC, 85/384/EEC, 85/432/EEC, 85/433/EEC and 93/16/EEC concerning the professions of nurse responsible for general care, dental practitioner, veterinary surgeon, midwife, architect, pharmacist and doctor (OJ 2001 L 206, p. 1) — Access to or pursuit of a regulated profession under the same conditions as nationals — Profession of environmental engineer — Meaning of ‘professional experience’

Operative part of the judgment

| 1. | Point (b) of the first subparagraph of Article 3 of Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher education diplomas awarded on completion of professional education and training of at least three years’ duration (OJ 1989 L 19, p. 16), as amended by Directive 2001/19/EC of the European Parliament and of the Council of 14 May 2001, must be interpreted as meaning that the mechanism of recognition which it provides for is applicable where, in the Member State of origin, the profession at issue falls under the second subparagraph of Article 1(d) of that directive, irrespective of whether the person concerned is or is not a full member of the association or organisation concerned. |
| --- | --- |

1.

Point (b) of the first subparagraph of Article 3 of Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher education diplomas awarded on completion of professional education and training of at least three years’ duration (OJ 1989 L 19, p. 16), as amended by Directive 2001/19/EC of the European Parliament and of the Council of 14 May 2001, must be interpreted as meaning that the mechanism of recognition which it provides for is applicable where, in the Member State of origin, the profession at issue falls under the second subparagraph of Article 1(d) of that directive, irrespective of whether the person concerned is or is not a full member of the association or organisation concerned.

| 2. | Before account can be taken, for the purposes of point (b) of the first subparagraph of Article 3 of Directive 89/48, as amended by Directive 2001/19, of professional experience relied on by a person seeking to obtain authorisation to pursue a regulated profession in the host Member State, the following three conditions must be satisfied:






  — | the experience relied on must consist of full-time work for at least two years during the previous ten years; |
| --- | --- | --- |

2.

Before account can be taken, for the purposes of point (b) of the first subparagraph of Article 3 of Directive 89/48, as amended by Directive 2001/19, of professional experience relied on by a person seeking to obtain authorisation to pursue a regulated profession in the host Member State, the following three conditions must be satisfied:

—

the experience relied on must consist of full-time work for at least two years during the previous ten years;

| — | that work must have consisted of the continuous and regular pursuit of a range of professional activities which characterise the profession concerned in the Member State of origin, but that work need not have encompassed all those activities, and |
| --- | --- |

—

that work must have consisted of the continuous and regular pursuit of a range of professional activities which characterise the profession concerned in the Member State of origin, but that work need not have encompassed all those activities, and

| — | the profession, as it is normally pursued in the Member State of origin, must be equivalent, in respect of the activities which it covers, to the profession which the person has sought authorisation to pursue in the host Member State. |
| --- | --- |

—

the profession, as it is normally pursued in the Member State of origin, must be equivalent, in respect of the activities which it covers, to the profession which the person has sought authorisation to pursue in the host Member State.

---

(1)  OJ C 24, 30.1.2010.

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/6 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/6

---

Judgment of the Court (Third Chamber) of 24 March 2011 — European Commission v Kingdom of Belgium

(Case C-435/09) (1)

(Failure of a Member State to fulfil obligations - Directive 85/337/EEC - Assessment of the effects of certain public and private projects on the environment - Selection criteria - Determination of thresholds - Size of the project)

2011/C 152/10

Language of the case: Dutch

Parties

Applicant: European Commission (represented by: M. van Beek, J.-B. Laignelot and C. ten Dam, Agents)

Defendant: Kingdom of Belgium (represented by: T. Materne, Agent)

Re:

Failure of a Member State to fulfil obligations — Incorrect and incomplete transposition of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40), as amended by Council Directive 97/11/EC of 3 March 1997 (OJ 1997 L 73, p. 5) — Article 4(2) and (3), in conjunction with Annexes II and II (Flemish Community), Article 4(1), in conjunction with Annex I(8)(a) and (18)(a), and Article 7(1)(b) (Walloon Region) and Article 4(2) and (3) in conjunction with Annexes II and II (Brussels Capital Region) — Thresholds and criteria

Operative part of the judgment

The Court:

| 1. | Declares that, by reason of the fact that the measures necessary for the correct and complete implementation have not been adopted






  — | as regards the Flemish Region, Article 4(2) and (3) of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 2003/35/EC of 26 May 2003, in conjunction with Annexes II and II thereof; |
| --- | --- | --- |

1.

Declares that, by reason of the fact that the measures necessary for the correct and complete implementation have not been adopted

—

as regards the Flemish Region, Article 4(2) and (3) of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 2003/35/EC of 26 May 2003, in conjunction with Annexes II and II thereof;

| — | as regards the Walloon Region, Article 4(1), in conjunction with Annex I(8)(a) and (18)(a) of Directive 85/337, as amended by Directive 2003/35, and Article 7(1)(b) thereof; and |
| --- | --- |

—

as regards the Walloon Region, Article 4(1), in conjunction with Annex I(8)(a) and (18)(a) of Directive 85/337, as amended by Directive 2003/35, and Article 7(1)(b) thereof; and

| — | as regards the Brussels-Capital Region, Article 4(2) and (3), in conjunction with Annexes II and III of Directive 85/337, as amended by Directive 2003/35, and Annex III as such, the Kingdom of Belgium has failed to fulfil its obligations under that directive; |
| --- | --- |

—

as regards the Brussels-Capital Region, Article 4(2) and (3), in conjunction with Annexes II and III of Directive 85/337, as amended by Directive 2003/35, and Annex III as such, the Kingdom of Belgium has failed to fulfil its obligations under that directive;

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

2.

Orders the Kingdom of Belgium to pay the costs.

---

(1)  OJ C 24, 30.1.2010.

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/7 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/7

---

Judgment of the Court (Second Chamber) of 31 March 2011 (reference for a preliminary ruling from the Niedersächsisches Finanzgericht (Germany)) — Ulrich Schröder v Finanzamt Hameln

(Case C-450/09) (1)

(Free movement of capital - Direct taxation - Taxation of income from the letting of immovable property - Deductibility of annuities paid to a relative in the context of an anticipated succession inter vivos - Condition of being subject to unlimited tax liability in the Member State at issue)

2011/C 152/11

Language of the case: German

Referring court

Niedersächsisches Finanzgericht

Parties to the main proceedings

Applicant: Ulrich Schröder

Defendant: Finanzamt Hameln

Re:

Reference for a preliminary ruling — Niedersächsisches Finanzgericht — Interpretation of Articles 12 and 56 EC — Taxation on income deriving from the leasing or letting of immovable property — Legislation of a Member State making the possibility of deducting the allowances paid to the former owner of those properties in the context of anticipatory succession subject to the condition of being wholly liable to tax in that state

Operative part of the judgment

Article 63 TFEU must be interpreted as precluding legislation of a Member State which, while allowing a resident taxpayer to deduct the annuities paid to a relative who transferred to him immovable property situated in the territory of that State from the rental income derived from that property, does not grant such a deduction to a non-resident taxpayer, in so far as the undertaking to pay those annuities results from the transfer of that property.

---

(1)  OJ C 37, 13.2.2010.

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/7 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/7

---

Judgment of the Court (Fifth Chamber) of 31 March 2011 (reference for a preliminary ruling from the Varhoven administrativen sad — Bulgaria) — Aurubis Balgaria AD v Nachalnik na Mitnitsa Stolichna, formerly Nachalnik na Mitnitsa Sofia

(Case C-546/09) (1)

(Customs Code - Customs duties - Customs debt on importation - Interest on arrears - Period for the collection of interest on arrears - Compensatory interest)

2011/C 152/12

Language of the case: Bulgarian

Referring court

Varhoven administrativen sad

Parties to the main proceedings

Applicant: Aurubis Balgaria AD

Defendant: Nachalnik na Mitnitsa Stolichna, formerly Nachalnik na Mitnitsa Sofia

Re:

Reference for a preliminary ruling — Varhoven Administrativen Sad — Interpretation of Articles 214(3), 222(1)(a) and 232(1)(b) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1) and of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation (EEC) No 2913/92 (OJ 1993 L 253, p. 1) — Charging by the national authorities of interest on arrears in respect of the amount of additional customs duties, for the period which follows the initial entry of customs duties in the accounts — Charging of compensatory interest in respect of the period from the date of the customs declaration until the subsequent entry in the accounts of the amount payable — Possibility of an increase, when customs debts are subsequently entered in the accounts, equal to the amount of interest on arrears calculated from the date on which the debt is incurred until the date of subsequent entry in the accounts

Operative part of the judgment

| 1. | Article 232(1)(b) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Council Regulation (EC) No 1791/2006 of 20 November 2006, must be interpreted as meaning that interest on arrears in relation to customs duties still to be recovered may be charged under that provision only in respect of the period falling after the deadline by which those duties were to be paid. |
| --- | --- |

1.

Article 232(1)(b) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Council Regulation (EC) No 1791/2006 of 20 November 2006, must be interpreted as meaning that interest on arrears in relation to customs duties still to be recovered may be charged under that provision only in respect of the period falling after the deadline by which those duties were to be paid.

| 2. | In the absence of corresponding provisions in Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation No 2913/92, as amended by Commission Regulation (EC) No 214/2007 of 28 February 2007, Article 214(3) of Regulation No 2913/92, as amended by Regulation No 1791/2006, must be interpreted as meaning that national authorities may not, on the basis of that provision, charge the person owing the customs debt compensatory interest in respect of the period between the date of the original customs declaration and the date of the subsequent entry in the accounts. |
| --- | --- |

2.

In the absence of corresponding provisions in Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation No 2913/92, as amended by Commission Regulation (EC) No 214/2007 of 28 February 2007, Article 214(3) of Regulation No 2913/92, as amended by Regulation No 1791/2006, must be interpreted as meaning that national authorities may not, on the basis of that provision, charge the person owing the customs debt compensatory interest in respect of the period between the date of the original customs declaration and the date of the subsequent entry in the accounts.

| 3. | The general principles of EU law and, in particular, the principle of the legality of criminal offences and penalties preclude national authorities from applying, to a customs offence, a penalty for which no express provision is made under the national legislation. |
| --- | --- |

3.

The general principles of EU law and, in particular, the principle of the legality of criminal offences and penalties preclude national authorities from applying, to a customs offence, a penalty for which no express provision is made under the national legislation.

---

(1)  OJ C 80, 27.3.2010.

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/8 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/8

---

Judgment of the Court (Fifth Chamber) of 24 March 2011 — Ferrero SpA v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Tirol Milch reg.Gen.mbH Innsbruck

(Case C-552/09 P) (1)

(Appeal - Community trade mark - Regulation (EC) No 40/94 - Community figurative mark TiMi KiNDERJOGHURT - Earlier word mark KINDER - Invalidity proceedings - Article 52(1)(a) - Article 8(1)(b) and (5) - Assessment of the similarity of the signs - Family of marks)

2011/C 152/13

Language of the case: English

Parties

Appellant: Ferrero SpA (represented by: C. Gielen, advocaat)

Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: D. Botis, acting as Agent), Tirol Milch reg.Gen.mbH Innsbruck

Re:

Appeal against the judgment of the Court of First Instance (Second Chamber) of 14 October 2009 in Case T-140/08 Ferrero SpA v OHIM — Tirol Milch, by which that court dismissed the action for annulment of the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 30 January 2008 in Case R 682/2007-2 annulling the decision of the Cancellation Division declaring the word mark ‘TiMi KiNDERJOGHURT’ invalid for goods in Class 29 in invalidity proceedings brought by the appellant

Operative part of the judgment

The Court:

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

1.

Dismisses the appeal;

| 2. | Orders Ferrero SpA to pay the costs. |
| --- | --- |

2.

Orders Ferrero SpA to pay the costs.

---

(1)  OJ C 80, 27.3.2010.

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/8 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/8

---

Judgment of the Court (Seventh Chamber) of 31 March 2011 — European Commission v Italian Republic

(Case C-50/10) (1)

(Failure of a Member State to fulfil obligations - Environment - Directive 2008/1/EC - Integrated pollution prevention and control - Requirements for the granting of permits for existing installations)

2011/C 152/14

Language of the case: Italian

Parties

Applicant: European Commission (represented by: A. Alcover San Pedro and C. Zadra, acting as Agents)

Defendant: Italian Republic (represented by: M. Russo, acting as Agent)

Re:

Failure of a Member State to fulfil obligations — Infringement of Article 5(1) of Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control (OJ 2008 L 24, p. 8) — Installations which could have an effect on emissions into the air, water or soil and on pollution — Authorisation conditions for existing installations

Operative part of the judgment

The Court:

| 1. | Declares that the Italian Republic has failed to fulfil its obligations under Article 5(1) of Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control (codifed version), by failing to take the necessary measures to ensure that the competent authorities see to it, by means of permits in accordance with Articles 6 and 8 of that directive or, as appropriate, by reconsidering and, where necessary, by updating the conditions, that all existing installations within the meaning of Article 2(4) of that directive operate in accordance with the requirements of Articles 3, 7, 9, 10, 13, 14(a) and (b) and 15(2) of that directive; |
| --- | --- |

1.

Declares that the Italian Republic has failed to fulfil its obligations under Article 5(1) of Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control (codifed version), by failing to take the necessary measures to ensure that the competent authorities see to it, by means of permits in accordance with Articles 6 and 8 of that directive or, as appropriate, by reconsidering and, where necessary, by updating the conditions, that all existing installations within the meaning of Article 2(4) of that directive operate in accordance with the requirements of Articles 3, 7, 9, 10, 13, 14(a) and (b) and 15(2) of that directive;

| 2. | Orders the Italian Republic to pay the costs. |
| --- | --- |

2.

Orders the Italian Republic to pay the costs.

---

(1)  OJ C 100, 17.4.2010.

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/9 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/9

---

Judgment of the Court (Third Chamber) of 24 March 2011 — European Commission v Republic of Slovenia

(Case C-365/10) (1)

(Failure of a Member State to fulfil obligations - Pollution control - Limit values for concentrations of PM10 in ambient air)

2011/C 152/15

Language of the case: Slovenian

Parties

Applicant: European Commission (represented by: D. Kukovec, acting as Agent)

Defendant: Italian Republic (represented by: N. Pintar Gosenca, acting as Agent)

Re:

Failure to fulfil obligations — Infringement of Article 5(1) of Council Directive 1999/30/EC of 22 April 1999 relating to limit values for sulphur dioxide, nitrogen dioxide and oxides of nitrogen, particulate matter and lead in ambient air (OJ 1999 L 163, p. 41) and of Article 13(1) of Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe (OJ 2008 L 152, p. 1) — Failure to take the measures necessary in order that concentrations of PM10 in ambient air should not exceed the limit values fixed

Operative part of the judgment

The Court:

| 1. | Declares that, for the years 2005 to 2007, by exceeding the limit values for annual and daily concentrations of PM10 in ambient air, the Republic of Slovenia has failed to fulfil its obligations under Article 5(1) of Council Directive 1999/30/EC of 22 April 1999 relating to limit values for sulphur dioxide, nitrogen dioxide and oxides of nitrogen, particulate matter and lead in ambient air; |
| --- | --- |

1.

Declares that, for the years 2005 to 2007, by exceeding the limit values for annual and daily concentrations of PM10 in ambient air, the Republic of Slovenia has failed to fulfil its obligations under Article 5(1) of Council Directive 1999/30/EC of 22 April 1999 relating to limit values for sulphur dioxide, nitrogen dioxide and oxides of nitrogen, particulate matter and lead in ambient air;

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

2.

Orders the Republic of Slovenia to pay the costs.

---

(1)  OJ C 288, 23.10.2010.

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/9 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/9

---

Judgment of the Court (Fifth Chamber) of 24 March 2011 — European Commission v Kingdom of Spain

(Case C-375/10) (1)

(Failure of a Member State to fulfil obligations - Directive 2007/36/EC - Exercise of certain rights of shareholders in listed companies - Failure to transpose within the period prescribed)

2011/C 152/16

Language of the case: Spanish

Parties

Applicant: European Commission (represented by: G. Braun and E. Adsera Ribera, Agents)

Defendant: Kingdom of Spain (represented by: F. Díez Moreno, Agent)

Re:

Failure of a Member State to fulfil obligations — Failure to adopt, within the period prescribed, the measures necessary to comply with Directive 2007/36/EC of the European Parliament and of the Council of 11 July 2007 on the exercise of certain rights of shareholders in listed companies (OJ 2007 L 184, p. 17)

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to adopt, within the period prescribed, the laws, regulations and administrative provisions necessary to comply with Directive 2007/36/EC of the European Parliament and of the Council of 11 July 2007 on the exercise of certain rights of shareholders in listed companies, the Kingdom of Spain has failed to fulfil its obligations under Article 15 thereof; |
| --- | --- |

1.

Declares that, by failing to adopt, within the period prescribed, the laws, regulations and administrative provisions necessary to comply with Directive 2007/36/EC of the European Parliament and of the Council of 11 July 2007 on the exercise of certain rights of shareholders in listed companies, the Kingdom of Spain has failed to fulfil its obligations under Article 15 thereof;

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

2.

Orders the Kingdom of Spain to pay the costs.

---

(1)  OJ C 274, 9.10.2010.

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/10 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/10

---

Appeal brought on 7 February 2011 by the Office for Harmonisation in the Internal Market against the judgment of the General Court (Fourth Chamber) delivered on 24 November 2010 in Case T-137/09 Nike International v OHIM — Muñoz Molina (R 10)

(Case C-53/11 P)

2011/C 152/17

Language of the case: Spanish

Parties

Appellant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (represented by: J. Crespo Carrillo, Agent)

Other parties to the proceedings: Nike International Ltd., Aurelio Muñoz Molina

Form of order sought

| — | That the Court set aside the judgment under appeal. |
| --- | --- |

—

That the Court set aside the judgment under appeal.

| — | That the Court deliver a fresh judgment on the substance, rejecting the appeal against the contested decision, or refer the case back to the General Court. |
| --- | --- |

—

That the Court deliver a fresh judgment on the substance, rejecting the appeal against the contested decision, or refer the case back to the General Court.

| — | That the Court order the applicant [before the General Court] to pay the costs. |
| --- | --- |

—

That the Court order the applicant [before the General Court] to pay the costs.

Pleas in law and main arguments

1.   Infringement of Rule 49 of the CTMIR
   (1)
  and Article 59 of the CTMR
   (2)

The legal basis of the contested decision is Rule 49(1) of the CTMIR, in relation to the current Article 59 of the CTMR. However, the judgment under appeal makes no reference at any point either to Rule 49(1) of the CTMIR or to Article 59 of the CTMR, and makes no ruling on their applicability to the particular case. OHIM considers that that constitutes an error of law and a failure to state sufficient reasons.

2.   Infringement of the OHIM Guidelines and Rule 49(1) of the CTMIR

OHIM considers that its Guidelines are not applicable to the particular case. Nevertheless, the judgment under appeal states on two occasions that the Boards of Appeal are obliged to apply the OHIM Guidelines. That constitutes, in OHIM’s opinion, an error of law.

---

(1)  Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark

OJ 1995 L 303, p. 1

(2)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark

OJ 1994 L 11, p. 1

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/10 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/10

---

Reference for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 22 February 2011 — Asociación Nacional de Grandes Empresas de Distribución (ANGED) v Federación de Asociaciones Sindicales (FASGA) and Others

(Case C-78/11)

2011/C 152/18

Language of the case: Spanish

Referring court

Tribunal Supremo

Parties to the main proceedings

Applicant: Asociación Nacional de Grandes Empresas de Distribución (ANGED)

Defendants: Federación de Asociaciones Sindicales (FASGA), Federación de Trabajadores Independientes de Comercio (FETICO), Federación Estatal de Trabajadores de Comercio, Hostelería, Turismo y Juego de UGT, Federación del Comercio, Hostelería y Turismo de CC.OO

Question referred

Does Article 7(1) of Directive 2003/88/EC (1) of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time preclude an interpretation of national legislation which does not permit interruption of a period of leave so that the full period — or the remaining period — can be taken at a later time if a worker is temporarily incapacitated when he is on leave?

---

(1)  OJ 2003 L 299, p. 9.

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/10 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/10

---

Appeal brought on 25 February 2011 by Fidelio KG against the judgment of the General Court (Third Chamber) delivered on 16 December 2010 in Case T-286/08 Fidelio KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-87/11 P)

2011/C 152/19

Language of the case: German

Parties

Appellant: Fidelio KG (represented by: M. Gail, Rechtsanwalt)

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

Form of order sought

| — | Set aside the judgment of the General Court of the European Union of 16 December 2010 in Case T-286/08; |
| --- | --- |

—

Set aside the judgment of the General Court of the European Union of 16 December 2010 in Case T-286/08;

| — | Uphold the claims presented at first instance; |
| --- | --- |

—

Uphold the claims presented at first instance;

| — | Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs. |
| --- | --- |

—

Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs.

Pleas in law and main arguments

The General Court incorrectly accepted that the registration of the sign ‘Hallux’ for ‘orthopaedic article’ and ‘footwear’ falls within the scope of the absolute ground for refusal under Article 7(1)(c) of Regulation No 40/94. It is impossible to ascertain why the General Court, contrary to the submissions of the applicant, followed the arguments of OHIM and took the view that ‘hallux’, the Latin word for the big toe, is the usual abbreviation of ‘hallux valgus’, a disease of the big toe. That method of proceeding by the General Court fails to take account of the significance of the principle of ex proprio motu investigation and, further, infringes the duty to state reasons.

Further, the General Court incorrectly defined the goods and categories of goods. Since the expression ‘orthopaedic article’ is very broad and it is sufficient for the absolute ground for refusal to apply to part of the goods, it was possible for OHIM, had it so wished, to consider many types of goods in order to refuse a specific type of goods. That was not taken into account by the General Court.

So far as footwear is concerned, the General Court incorrectly assumed that a category of goods of ‘comfortable shoes’ exists. In reality, there is no difference between general footwear and so-called comfortable shoes.

In addition, in its definition of the relevant public in respect of ‘orthopaedic article’ and ‘footwear’, the General Court allowed itself to be guided by inappropriate considerations. In the submission of the applicant, the characteristics of the average consumer must be determined. However, an average consumer neither has knowledge of the Latin language nor is familiar with the foot disease hallux valgus. The mark ‘Hallux’ cannot therefore be understood as descriptive.

Finally, the General Court has also infringed Article 7(1)(b) of Regulation No 40/94, since it failed to examine the mark ‘Hallux’ in the light of that provision.

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/11 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/11

---

Appeal brought on 25 February 2011 by E.ON Energie AG against the judgment delivered on 15 December 2010 in Case T-141/08 E.ON Energie AG v Commission

(Case C-89/11 P)

2011/C 152/20

Language of the case: German

Parties

Appellant: E.ON Energie AG (represented by: A. Röhling, F. Dietrich and R. Pfromm, lawyers)

Other party to the proceedings: European Commission

Form of order sought

| — | Set aside the contested judgment of the General Court and annul Commission Decision C(2008) 377 final, notified to the appellant on 6 February 2008, in Case COMP/B-1/39.326; |
| --- | --- |

—

Set aside the contested judgment of the General Court and annul Commission Decision C(2008) 377 final, notified to the appellant on 6 February 2008, in Case COMP/B-1/39.326;

| — | In the alternative, set aside the contested judgment and annul the decision referred to above in so far as (a) the appellant is ordered to pay a fine, and (b) the appellant is ordered to pay the costs, and uphold the appellant’s claims made at first instance; |
| --- | --- |

—

In the alternative, set aside the contested judgment and annul the decision referred to above in so far as (a) the appellant is ordered to pay a fine, and (b) the appellant is ordered to pay the costs, and uphold the appellant’s claims made at first instance;

| — | In the further alternative, set aside the contested judgment of the General Court and refer the matter back to the General Court; |
| --- | --- |

—

In the further alternative, set aside the contested judgment of the General Court and refer the matter back to the General Court;

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

—

Order the European Commission to pay the costs.

Pleas in law and main arguments

The appellant challenges the contested judgment of the General Court, claiming that it should be set aside and that Commission Decision C(2008) 377 final of 30 January 2008 in Case COMP/B-1/39.326 should be annulled. The judgment confirmed a decision by the respondent imposing a fine, in which it was alleged that the appellant had broken a seal apposed by representatives of the respondent in accordance with Article 20(2)(d) of Regulation (EC) No 1/2003 and thus ‘negligently at least’ infringed Article 23(1)(e) of Regulation No 1/2003. In support of its appeal, the appellant relies on six grounds of appeal:

| 1. | Firstly, the appellant submits that the judgment of the General Court as regards the burden of proof is vitiated by errors in law and thus constitutes an infringement of the principle of the assumption of innocence and the Community law decision-making maxim of in dubio pro reo. In particular, the General Court failed to have regard to the fact that the evidence in the (undisputed) form of the seal apposed to its Shelf Life did not constitute ‘sufficiently meaningful’ proof to show the existence of an infringement. |
| --- | --- |

1.

Firstly, the appellant submits that the judgment of the General Court as regards the burden of proof is vitiated by errors in law and thus constitutes an infringement of the principle of the assumption of innocence and the Community law decision-making maxim of in dubio pro reo. In particular, the General Court failed to have regard to the fact that the evidence in the (undisputed) form of the seal apposed to its Shelf Life did not constitute ‘sufficiently meaningful’ proof to show the existence of an infringement.

| 2. | By its second ground of appeal, the appellant submits that the General Court failed to fulfil its duty to state reasons by making an error of characterisation. The General Court failed to have regard, in the context of the reversal of the burden of proof, to the criterion, established originally by itself, of ‘questioning’ the evidentiary weight of the seal by means of the later requirement, taken into consideration in the context of the error of characterisation, of a direct ‘causal connection’ between the aging of the seal and the creation of a false positive result. |
| --- | --- |

2.

By its second ground of appeal, the appellant submits that the General Court failed to fulfil its duty to state reasons by making an error of characterisation. The General Court failed to have regard, in the context of the reversal of the burden of proof, to the criterion, established originally by itself, of ‘questioning’ the evidentiary weight of the seal by means of the later requirement, taken into consideration in the context of the error of characterisation, of a direct ‘causal connection’ between the aging of the seal and the creation of a false positive result.

| 3. | By its third ground of appeal, the appellant submits that there has been a distortion of evidence by the General Court and thus an infringement of the principles of logic, the general principle of the rule of law and a further infringement of the duty on the General Court to state reasons. In that regard, the appellant submits in particular that the General Court is weighing the evidence of the ‘act documenting apposition of the seal’ on the assumption that it will provide sufficient evidence of the correct apposition of the seal, an explanation which cannot be deduced therefrom. |
| --- | --- |

3.

By its third ground of appeal, the appellant submits that there has been a distortion of evidence by the General Court and thus an infringement of the principles of logic, the general principle of the rule of law and a further infringement of the duty on the General Court to state reasons. In that regard, the appellant submits in particular that the General Court is weighing the evidence of the ‘act documenting apposition of the seal’ on the assumption that it will provide sufficient evidence of the correct apposition of the seal, an explanation which cannot be deduced therefrom.

| 4. | By its fourth ground of appeal, the appellant alleges that there is a further lack of reasons for the judgment connected with an infringement of the principles of logic. With reference to the further sealing within the appellant’s premises, the General Court also derives, from the functioning of the seal used for that purpose, an illogical deduction as to the functioning of the disputed seal. |
| --- | --- |

4.

By its fourth ground of appeal, the appellant alleges that there is a further lack of reasons for the judgment connected with an infringement of the principles of logic. With reference to the further sealing within the appellant’s premises, the General Court also derives, from the functioning of the seal used for that purpose, an illogical deduction as to the functioning of the disputed seal.

| 5. | By its fifth ground of appeal, the appellant submits that the General Court infringes the rules of correct evidentiary procedure, the principles of logic and the principle in dubio pro reo. In particular, the General Court erred in law by holding that the submission of the appellant with regard to the condition of the ‘VOID’ lettering on the doorframe was irrelevant and failed to make an inquiry, in breach of the rules of correct evidentiary procedure. |
| --- | --- |

5.

By its fifth ground of appeal, the appellant submits that the General Court infringes the rules of correct evidentiary procedure, the principles of logic and the principle in dubio pro reo. In particular, the General Court erred in law by holding that the submission of the appellant with regard to the condition of the ‘VOID’ lettering on the doorframe was irrelevant and failed to make an inquiry, in breach of the rules of correct evidentiary procedure.

| 6. | By its sixth ground of appeal, finally, the appellant claims that the General Court again infringed the rules of correct evidentiary procedure and the legal principle of proportionality as regards the calculation of the fine. The General Court failed to have regard to the mitigating fact that the respondent itself was the cause of the situation, subsequently no longer able to be clarified, on the day of the search. In addition, with regard to the scope of the effect of the protected goods, the General Court erred in law by failing to take evidence on the essential question of the opening of the door, which is relevant to the gravity of the act and thus to the amount of the fine. |
| --- | --- |

6.

By its sixth ground of appeal, finally, the appellant claims that the General Court again infringed the rules of correct evidentiary procedure and the legal principle of proportionality as regards the calculation of the fine. The General Court failed to have regard to the mitigating fact that the respondent itself was the cause of the situation, subsequently no longer able to be clarified, on the day of the search. In addition, with regard to the scope of the effect of the protected goods, the General Court erred in law by failing to take evidence on the essential question of the opening of the door, which is relevant to the gravity of the act and thus to the amount of the fine.

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/12 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/12

---

Appeal brought on 1 March 2011 by August Storck KG against the judgment of the General Court (First Chamber) delivered on 17 December 2010 in Case T-13/09 August Storck KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-96/11 P)

2011/C 152/21

Language of the case: German

Parties

Appellant: August Storck KG (represented by: T. Reher, P. Goldenbaum, I. Rohr and T. Melchert, Rechtsanwälte)

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

Form of order sought

| — | Set aside the contested judgment which is appealed on points of law; |
| --- | --- |

—

Set aside the contested judgment which is appealed on points of law;

| — | Uphold the claims submitted at first instance and give a final ruling on the dispute; in the alternative, refer the matter back to the General Court; |
| --- | --- |

—

Uphold the claims submitted at first instance and give a final ruling on the dispute; in the alternative, refer the matter back to the General Court;

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

—

Order OHIM to pay the costs.

Pleas in law and main arguments

The present appeal is against the judgment of the General Court, by which it dismissed the appellant’s claim for annulment of the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 12 November 2008 concerning the rejection of its application for registration of a three-dimensional mark consisting of the shape of a chocolate mouse.

The appellant relies on the following three grounds of appeal:

I.   Infringement of Article 7(1)(b) of [Regulation No 40/94]
   (1)

| 1. | The General Court has failed to take account of the concept of distinctive character and thus has incorrectly applied Article 7(1)(b) of [Regulation No 40/94] and wrongly denied the mark applied for original distinctive character. |
| --- | --- |

1.

The General Court has failed to take account of the concept of distinctive character and thus has incorrectly applied Article 7(1)(b) of [Regulation No 40/94] and wrongly denied the mark applied for original distinctive character.

| 2. | The General Court has erred in law by assessing the mark applied for in the light of the case-law on three-dimensional marks without graphical elements or word elements, despite the fact that the mark applied for has a graphical element in the form of bas-relief. The mark should have been correctly assessed on the basis of the principles applicable to figurative marks. |
| --- | --- |

2.

The General Court has erred in law by assessing the mark applied for in the light of the case-law on three-dimensional marks without graphical elements or word elements, despite the fact that the mark applied for has a graphical element in the form of bas-relief. The mark should have been correctly assessed on the basis of the principles applicable to figurative marks.

| 3. | The General Court has incorrectly assessed the fact that the shape of a product can also pursue objectives other than that of identification, such as, for example, aesthetics, without that detracting from the original distinctive character of the three-dimensional mark. |
| --- | --- |

3.

The General Court has incorrectly assessed the fact that the shape of a product can also pursue objectives other than that of identification, such as, for example, aesthetics, without that detracting from the original distinctive character of the three-dimensional mark.

| 4. | The General Court has interpreted ‘usually not’ as meaning ‘not habitual’ and thus removed the possibility of the consumer of confectionery already being used to three-dimensional marks similar to that of the one at issue here and thus being able to regard it as distinctive. In so doing, the General Court has not correctly understood the significance of the shape of a product to the identity of goods in the relevant confectionery market and has therefore failed to have regard to the criterion in law for evidence of the distinctive character of three-dimensional marks in the confectionery sector, inasmuch as such three-dimensional marks are based on animals and/or other living beings or a combination of elements from different living beings respectively. |
| --- | --- |

4.

The General Court has interpreted ‘usually not’ as meaning ‘not habitual’ and thus removed the possibility of the consumer of confectionery already being used to three-dimensional marks similar to that of the one at issue here and thus being able to regard it as distinctive. In so doing, the General Court has not correctly understood the significance of the shape of a product to the identity of goods in the relevant confectionery market and has therefore failed to have regard to the criterion in law for evidence of the distinctive character of three-dimensional marks in the confectionery sector, inasmuch as such three-dimensional marks are based on animals and/or other living beings or a combination of elements from different living beings respectively.

| 5. | The General Court has erred in law in making a distinction between ‘decorative structure’, on the one hand, and ‘analytical view’ on the other and thus also failed to take account of the fact that marks should be assessed on their overall impression. |
| --- | --- |

5.

The General Court has erred in law in making a distinction between ‘decorative structure’, on the one hand, and ‘analytical view’ on the other and thus also failed to take account of the fact that marks should be assessed on their overall impression.

| 6. | The combination of these errors in law have led to the result that the General Court has denied the mark applied for its distinctive character, despite the fact that it should have been found, on a correct application of Article 7(1)(b) of [Regulation No 40/94], that it had distinctive character. |
| --- | --- |

6.

The combination of these errors in law have led to the result that the General Court has denied the mark applied for its distinctive character, despite the fact that it should have been found, on a correct application of Article 7(1)(b) of [Regulation No 40/94], that it had distinctive character.

II.   Failure to grant the right to be heard

| 7. | By failing to take account of large parts of the appellant’s submissions in its decision, the General Court has infringed the appellant’s right to be heard. |
| --- | --- |

7.

By failing to take account of large parts of the appellant’s submissions in its decision, the General Court has infringed the appellant’s right to be heard.

III.   Infringement of the first sentence of Article 73 of [Regulation No 40/94] (duty to state reasons)

| 8. | The General Court has based its judgment on the assumption that the pronounced individuality of the subject-matter of the shape comprising the mark was not proven, despite the fact that, under the principle of ex proprio motu investigation, it was for OHIM, by presentation of comparable shapes known on the market, to rebut the assumption of individuality of the shape. Clearly, the General Court did not wish to engage with the appellant’s argument and thus infringed its duty to state reasons. |
| --- | --- |

8.

The General Court has based its judgment on the assumption that the pronounced individuality of the subject-matter of the shape comprising the mark was not proven, despite the fact that, under the principle of ex proprio motu investigation, it was for OHIM, by presentation of comparable shapes known on the market, to rebut the assumption of individuality of the shape. Clearly, the General Court did not wish to engage with the appellant’s argument and thus infringed its duty to state reasons.

| 9. | In so far as the General Court failed to take account, in its decision, of parts of the appellant’s submissions, but did not justify or, to a great extent, refer to this in its decision, it has failed to fulfil its duty to state full reasons for its decision. |
| --- | --- |

9.

In so far as the General Court failed to take account, in its decision, of parts of the appellant’s submissions, but did not justify or, to a great extent, refer to this in its decision, it has failed to fulfil its duty to state full reasons for its decision.

---

(1)  Council Regulation (EC) No 40/94 of 21 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1)

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/13 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/13

---

Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands), lodged on 7 March 2011 — Staatssecretaris van Financiën v U. Notermans-Boddenberg

(Case C-114/11)

2011/C 152/22

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Appellant: Staatssecretaris van Financiën

Respondent: U. Notermans-Boddenberg

Question referred

In the light of Article 39 EC (now Article 45 TFEU) or of Article 18 EC (now Article 21 TFEU), does Community law govern a situation in which a Member State subjects a resident of that Member State, on the basis of commencement of use by that person’s car of the road network in the territory of that Member State, to a tax in a case where:

| — | that car is registered in another Member State, |
| --- | --- |

—

that car is registered in another Member State,

| — | that car formed part of the movable property imported on transfer of residence by that resident who, while retaining his nationality, has transferred his residence from that other Member State, and |
| --- | --- |

—

that car formed part of the movable property imported on transfer of residence by that resident who, while retaining his nationality, has transferred his residence from that other Member State, and

| — | that car has been used by that resident in the same way since the transfer of residence as before the transfer of residence, that is to say, for private purposes and also for travelling to his place of work in the Member State in which he previously resided? |
| --- | --- |

—

that car has been used by that resident in the same way since the transfer of residence as before the transfer of residence, that is to say, for private purposes and also for travelling to his place of work in the Member State in which he previously resided?

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/13 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/13

---

Reference for a preliminary ruling from the Sąd Apelacyjny w Warszawie (Republic of Poland) lodged on 2 March 2011 — Format Urządzenia i Montaże Przemysłowe v Zakład Ubezpieczeń Społecznych I Oddział w Warszawie

(Case C-115/11)

2011/C 152/23

Language of the case: Polish

Referring court

Sąd Apelacyjny w Warszawie

Parties to the main proceedings

Applicant: Format Urządzenia i Montaże Przemysłowe

Defendant: Zakład Ubezpieczeń Społecznych I Oddział w Warszawie

Questions referred

| 1. | Does the fact that the personal scope of the first sentence of Article 14(2) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (1) covers ‘a person normally employed in the territory of two or more Member States’ — in respect of whom it is specified in Article 14(2)(b) that this is a person other than that referred to in Article 14(2)(a) — mean, in the case of an employed person who is employed in an employment relationship by a single employer,






  (a) | that he is to be considered such a person if, on account of the nature of the employment, he performs work in different Member States at the same time (simultaneously), which also includes relatively short periods of time, and therefore frequently crosses State borders, |
| --- | --- | --- |

1.

Does the fact that the personal scope of the first sentence of Article 14(2) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (1) covers ‘a person normally employed in the territory of two or more Member States’ — in respect of whom it is specified in Article 14(2)(b) that this is a person other than that referred to in Article 14(2)(a) — mean, in the case of an employed person who is employed in an employment relationship by a single employer,

(a)

that he is to be considered such a person if, on account of the nature of the employment, he performs work in different Member States at the same time (simultaneously), which also includes relatively short periods of time, and therefore frequently crosses State borders,

and also

| (b) | that he is to be considered such a person too if in the context of a single employment relationship he is obliged to perform work permanently (normally) in several Member States, including the State in which he resides, or in several Member States other than that of his State of residence — either irrespective of the length of the consecutive periods in which he performs his obligations in the individual Member States and the length of the intermissions between them, or with a temporal limit? |
| --- | --- |

(b)

that he is to be considered such a person too if in the context of a single employment relationship he is obliged to perform work permanently (normally) in several Member States, including the State in which he resides, or in several Member States other than that of his State of residence — either irrespective of the length of the consecutive periods in which he performs his obligations in the individual Member States and the length of the intermissions between them, or with a temporal limit?

| 2. | If the interpretation set out in (b) above is accepted, can Article 14(2)(b)(ii) of Regulation No 1408/71 be applied in a situation in which the obligation existing in the context of the employment relationship between the employee and a single employer to permanently perform work in several Member States covers performance of obligations in the Member State in which the employee resides even though such a situation — the performance of work in that very State — appears to be precluded at the time that the employment relationship is entered into and, in the event of the answer being in the negative, can Article 14(2)(b)(i) of Regulation No 1408/71 be applied? |
| --- | --- |

2.

If the interpretation set out in (b) above is accepted, can Article 14(2)(b)(ii) of Regulation No 1408/71 be applied in a situation in which the obligation existing in the context of the employment relationship between the employee and a single employer to permanently perform work in several Member States covers performance of obligations in the Member State in which the employee resides even though such a situation — the performance of work in that very State — appears to be precluded at the time that the employment relationship is entered into and, in the event of the answer being in the negative, can Article 14(2)(b)(i) of Regulation No 1408/71 be applied?

---

(1)  OJ, English Special Edition 1971 (II), p. 416

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/14 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/14

---

Reference for a preliminary ruling from the Sąd Rejonowy Poznań (Republic of Poland) lodged on 7 March 2011 — Bank Handlowy, Ryszard Adamiak, Christianapol sp. z o. o.

(Case C-116/11)

2011/C 152/24

Language of the case: Polish

Referring court

Sąd Rejonowy Poznań

Parties to the main proceedings

Bank Handlowy, Ryszard Adamiak, Christianapol sp. z o. o.

Questions referred

| 1. | Is Article 4(1) and (2)(j) of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings (1) to be construed as meaning that the term ‘closure of insolvency proceedings’ used in that provision should be interpreted autonomously, independently of the rules applicable in the legal systems of the individual Member States, or is it solely for the national law of the State of the opening of proceedings to decide when closure of insolvency proceedings occurs? |
| --- | --- |

1.

Is Article 4(1) and (2)(j) of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings (1) to be construed as meaning that the term ‘closure of insolvency proceedings’ used in that provision should be interpreted autonomously, independently of the rules applicable in the legal systems of the individual Member States, or is it solely for the national law of the State of the opening of proceedings to decide when closure of insolvency proceedings occurs?

| 2. | Is Article 27 of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings to be interpreted as meaning that the national court dealing with an application for the opening of secondary insolvency proceedings may never examine the insolvency of a debtor in respect of whom main insolvency proceedings have been opened in another State, or rather that the national court may in certain situations examine the existence of the debtor’s insolvency — particularly where the main proceedings are protective proceedings in which the court has established that the debtor is not insolvent (French sauvegarde proceedings)? |
| --- | --- |

2.

Is Article 27 of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings to be interpreted as meaning that the national court dealing with an application for the opening of secondary insolvency proceedings may never examine the insolvency of a debtor in respect of whom main insolvency proceedings have been opened in another State, or rather that the national court may in certain situations examine the existence of the debtor’s insolvency — particularly where the main proceedings are protective proceedings in which the court has established that the debtor is not insolvent (French sauvegarde proceedings)?

| 3. | Does interpretation of Article 27 of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings permit secondary insolvency proceedings, the nature of which is specified in the second sentence of Article 3(3) of the regulation, to be opened in the Member State in which the whole of the assets of the insolvent person are situated, when the main proceedings, which are subject to automatic recognition, are of a protective nature (French sauvegarde proceedings), a scheme of payment has been accepted and confirmed in those proceedings, that scheme is being implemented by the debtor and the court has forbidden the disposal of the debtor’s assets? |
| --- | --- |

3.

Does interpretation of Article 27 of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings permit secondary insolvency proceedings, the nature of which is specified in the second sentence of Article 3(3) of the regulation, to be opened in the Member State in which the whole of the assets of the insolvent person are situated, when the main proceedings, which are subject to automatic recognition, are of a protective nature (French sauvegarde proceedings), a scheme of payment has been accepted and confirmed in those proceedings, that scheme is being implemented by the debtor and the court has forbidden the disposal of the debtor’s assets?

---

(1)  OJ L 160, 30.6.2000, p. 1.

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/14 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/14

---

Reference for a preliminary ruling from the Council of State (Belgium) lodged on 8 March 2011 — The non-profit-making association PRO-BRAINE and Others v The Commune of Braine-le-Château

(Case C-121/11)

2011/C 152/25

Language of the case: French

Referring court

Council of State

Parties to the main proceedings

Applicants: The non-profit-making association PRO-BRAINE and Others

Defendant: The Commune of Braine-le-Château

Question referred

Does the definitive decision on the carrying on of operations at an authorised or already operational landfill site taken on the basis of Article 14(b) of Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste (1) constitute a consent as referred to in Article 1(2) of Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment? (2)

---

(1)  OJ 1999 L 182, p. 1.

(2)  OJ 1985 L 175, p. 40.

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/15 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/15

---

Reference for a preliminary ruling from the Hof van Cassatie van België lodged on 10 March 2011 — Inno NV v Unie van Zelfstandige Ondernemers VZW (UNIZO), Organisatie voor de Zelfstandige Modedetailhandel VZW (Mode Unie), Couture Albert BVBA

(Case C-126/11)

2011/C 152/26

Language of the case: Dutch

Referring court

Hof van Cassatie van België

Parties to the main proceedings

Applicant: Inno NV

Defendant: Unie van Zelfstandige Ondernemers VZW (UNIZO), Organisatie voor de Zelfstandige Modedetailhandel VZW (Mode Unie), Couture Albert BVBA

Question referred

Must Directive 2005/29 (1) of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (OJ 2005 L 149, p. 22), and in particular Articles 1, 2(d), 3(1) and 5 thereof, be interpreted so that those articles are incompatible with national legislation such as the first and third paragraphs of Article 53(1) of the Wet van 14 juli 1991 betreffende de handelspraktijken en de voorlichting en bescherming van de consument (Law of 14 July 1991 on commercial practices and consumer information and protection), which, for the sectors mentioned in Article 52(1) of that Law, prohibits traders, during the restricted periods of 15 November to 2 January and 15 May to 30 June, and regardless of the place or the means of communication used, from making announcements of price reductions, as well as announcements suggestive of a price reduction, as referred to in Article 42 of that Law, and also from making announcements and suggestions of price reductions before the commencement of a restricted period which would take effect during that restricted period, even though the measure concerned, despite the dual objective put forward by the national legislature, namely, on the one hand, the protection of the interests of consumers and, on the other hand, the regulation of the competitive relations between traders, in reality serves to regulate the competitive relations between traders and, considering the other guarantees provided by the legislation, does not contribute effectively to consumer protection?

---

(1)  OJ 2005 L 149, p. 22.

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/15 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/15

---

Reference for a preliminary ruling from the Arbeidshof te Antwerpen (Belgium) lodged on 11 March 2011 — Aldegonda van den Booren v Rijksdienst voor Pensioenen

(Case C-127/11)

2011/C 152/27

Language of the case: Dutch

Referring court

Arbeidshof te Antwerpen

Parties to the main proceedings

Applicant: Aldegonda van den Booren

Defendant: Rijksdienst voor Pensioenen

Questions referred

| 1. | Is Article 52(1) of the koninklijk besluit van 21 december 1967 tot vaststelling van het algemeen reglement betreffende het rust- en overlevingspensioen voor werknemers (Royal Decree of 21 December 1967 on the general regulation of the retirement and survivor’s pension scheme for employed workers), under which a survivor’s pension is reduced as a result of the increase in an old-age pension awarded under the Wet van 31 mei 1956 inzake een algemene ouderdomsverzekering (Law of 31 May 1956 on general old-age pensions) pursuant to the implementation of the equal treatment of men and women by the Law of 28 March 1985, compatible with Community law, in particular with Article 46a of Council Regulation (EEC) No 1408/71 (1) of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community; |
| --- | --- |

1.

Is Article 52(1) of the koninklijk besluit van 21 december 1967 tot vaststelling van het algemeen reglement betreffende het rust- en overlevingspensioen voor werknemers (Royal Decree of 21 December 1967 on the general regulation of the retirement and survivor’s pension scheme for employed workers), under which a survivor’s pension is reduced as a result of the increase in an old-age pension awarded under the Wet van 31 mei 1956 inzake een algemene ouderdomsverzekering (Law of 31 May 1956 on general old-age pensions) pursuant to the implementation of the equal treatment of men and women by the Law of 28 March 1985, compatible with Community law, in particular with Article 46a of Council Regulation (EEC) No 1408/71 (1) of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community;

| 2. | Is Article 52(1) of the koninklijk besluit van 21 december 1967 tot vaststelling van het algemeen reglement betreffende het rust- en overlevingspensioen voor werknemers (Royal Decree of 21 December 1967 on the general regulation of the retirement and survivor’s pension scheme for employed workers) compatible with Community law, in particular with Articles 10 and 39 to 42 of the Treaty of 25 March 1957 establishing the European Community, if that provision is interpreted in such a way that an old-age pension awarded under the Wet van 31 mei 1956 inzake een algemene ouderdomsverzekering (Law of 31 May 1956 on general old-age pensions) is to be included under the retirement pensions or equivalent benefits referred to in that provision, and in case of incompatibility, should Article 52(1) of the koninklijk besluit van 21 december 1967 then be disapplied? |
| --- | --- |

2.

Is Article 52(1) of the koninklijk besluit van 21 december 1967 tot vaststelling van het algemeen reglement betreffende het rust- en overlevingspensioen voor werknemers (Royal Decree of 21 December 1967 on the general regulation of the retirement and survivor’s pension scheme for employed workers) compatible with Community law, in particular with Articles 10 and 39 to 42 of the Treaty of 25 March 1957 establishing the European Community, if that provision is interpreted in such a way that an old-age pension awarded under the Wet van 31 mei 1956 inzake een algemene ouderdomsverzekering (Law of 31 May 1956 on general old-age pensions) is to be included under the retirement pensions or equivalent benefits referred to in that provision, and in case of incompatibility, should Article 52(1) of the koninklijk besluit van 21 december 1967 then be disapplied?

---

(1)  OJ, English Special Edition, 1971 (II), p. 416

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/16 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/16

---

Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 21 March 2011 — Criminal proceedings against Demba Ngagne

(Case C-140/11)

2011/C 152/28

Language of the case: Italian

Referring court

Corte Suprema di Cassazione

Party to the main proceedings

Demba Ngagne

Questions referred

| 1. | Must Article 7(1) and (4), Article 8(1), (3) and (4), and Article 15(1) of Directive 2008/115/EC (1) be construed as precluding a Member State from ordering a non-national who is unlawfully present on its territory to depart from that territory when it is not possible to proceed by means of deportation, whether immediate or following detention, thereby reversing the priorities and the order of procedure laid down in those provisions? |
| --- | --- |

1.

Must Article 7(1) and (4), Article 8(1), (3) and (4), and Article 15(1) of Directive 2008/115/EC (1) be construed as precluding a Member State from ordering a non-national who is unlawfully present on its territory to depart from that territory when it is not possible to proceed by means of deportation, whether immediate or following detention, thereby reversing the priorities and the order of procedure laid down in those provisions?

| 2. | Must Article 15(1), (4), (5) and (6) of Directive 2008/115/EC accordingly be construed as precluding a Member State from providing, as a consequence of unjustifiable non-cooperation on the part of a non-national in his own voluntary return, and on that ground alone, that that person is to be charged with an offence punishable by a custodial sentence (imprisonment) which is (up to 10 times) longer than the period of pre-deportation detention, which is no longer possible, or objectively impossible, to apply? |
| --- | --- |

2.

Must Article 15(1), (4), (5) and (6) of Directive 2008/115/EC accordingly be construed as precluding a Member State from providing, as a consequence of unjustifiable non-cooperation on the part of a non-national in his own voluntary return, and on that ground alone, that that person is to be charged with an offence punishable by a custodial sentence (imprisonment) which is (up to 10 times) longer than the period of pre-deportation detention, which is no longer possible, or objectively impossible, to apply?

| 3. | Can Article 2(2)(b) of Directive 2008/115/EC be construed, in the light of Article 8 of that directive and the common policy areas identified, in particular, by Article 79 TFEU, as meaning that it is sufficient for the Member State to decide to categorise as a crime the non-national’s non-cooperation in his own voluntary return, because the directive does not apply? |
| --- | --- |

3.

Can Article 2(2)(b) of Directive 2008/115/EC be construed, in the light of Article 8 of that directive and the common policy areas identified, in particular, by Article 79 TFEU, as meaning that it is sufficient for the Member State to decide to categorise as a crime the non-national’s non-cooperation in his own voluntary return, because the directive does not apply?

| 4. | Must, on the contrary, Article 2(2)(b) and Article 15(4), (5) and (6) of Directive 2008/115/EC be construed, in the light of Article 5 of the ECHR, as precluding a non-national who is unlawfully present on the national territory and in whose case pre-deportation detention is objectively impossible, or no longer possible, from being subjected to a spiral of voluntary departure orders and restrictions on his freedom, the legal basis for which is the fact that his disobedience of those orders is categorised as a punishable offence? |
| --- | --- |

4.

Must, on the contrary, Article 2(2)(b) and Article 15(4), (5) and (6) of Directive 2008/115/EC be construed, in the light of Article 5 of the ECHR, as precluding a non-national who is unlawfully present on the national territory and in whose case pre-deportation detention is objectively impossible, or no longer possible, from being subjected to a spiral of voluntary departure orders and restrictions on his freedom, the legal basis for which is the fact that his disobedience of those orders is categorised as a punishable offence?

| 5. | In conclusion, is it possible to assert — in the light of recital 10 [in the preamble to Directive 2008/115/EC], the earlier version of Article 23 of the Convention implementing the Schengen Agreement, the recommendations and guidelines referred to in the preamble to Directive 2008/115/EC, and Article 5 of the ECHR — that Article 7(1) and (4), Article 8(1), (3) and (4), and Article 15(1), (4), (5) and (6) confer the status of a binding rule on the principles that the restriction of freedom for the purposes of repatriation falls to be regarded as an extreme measure (extrema ratio) and that no custodial measure is justified where it is linked to a deportation procedure in relation to which there is no reasonable prospect of return? |
| --- | --- |

5.

In conclusion, is it possible to assert — in the light of recital 10 [in the preamble to Directive 2008/115/EC], the earlier version of Article 23 of the Convention implementing the Schengen Agreement, the recommendations and guidelines referred to in the preamble to Directive 2008/115/EC, and Article 5 of the ECHR — that Article 7(1) and (4), Article 8(1), (3) and (4), and Article 15(1), (4), (5) and (6) confer the status of a binding rule on the principles that the restriction of freedom for the purposes of repatriation falls to be regarded as an extreme measure (extrema ratio) and that no custodial measure is justified where it is linked to a deportation procedure in relation to which there is no reasonable prospect of return?

---

(1)  OJ 2008 L 348, p. 98.

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/16 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/16

---

Reference for a preliminary ruling from the Södertörns Tingsrätt (Sweden) lodged on 21 March 2011 — Torsten Hörnfeldt v Posten Meddelande AB

(Case C-141/11)

2011/C 152/29

Language of the case: Swedish

Referring court

Södertörns Tingsrätt

Parties to the main proceedings

Applicant: Karl Torsten Hörnfeldt

Defendant: Posten Meddelande AB

Questions referred

The Tingsrätt asks the Court of Justice of the European Union to answer the following questions concerning the interpretation of the general principle of law on the prohibition of age discrimination and of Article 6 of Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation: (1)

| 1. | Can a national rule which, like the 67-year rule, gives rise to a difference of treatment on grounds of age be legitimate even if it is not possible to determine clearly from the context in which the rule has come into being or from other information what aim or purpose the rule is intended to serve? |
| --- | --- |

1.

Can a national rule which, like the 67-year rule, gives rise to a difference of treatment on grounds of age be legitimate even if it is not possible to determine clearly from the context in which the rule has come into being or from other information what aim or purpose the rule is intended to serve?

| 2. | Does a national retirement provision such as the 67-year rule, to which there is no exception and which does not take account of factors such as the pension which an individual may ultimately receive, go beyond what is appropriate and necessary in order to achieve the aim pursued? |
| --- | --- |

2.

Does a national retirement provision such as the 67-year rule, to which there is no exception and which does not take account of factors such as the pension which an individual may ultimately receive, go beyond what is appropriate and necessary in order to achieve the aim pursued?

---

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

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/17 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/17

---

Reference for a preliminary ruling from the Giudice di pace di Mestre (Italy) lodged on 24 March 2011 — Criminal proceedings against Asad Abdallah

(Case C-144/11)

2011/C 152/30

Language of the case: Italian

Referring court

Giudice di pace di Mestre

Party to the main proceedings

Asad Abdallah

Questions referred

| 1. | Does Directive 2008/115/EC (1) preclude a provision of national law, such as Article 10a of Legislative Decree No 286 of 25 July 1998, which categorises as a crime, punishable by a fine of between EUR 5 000 and EUR 10 000, the mere act of entering, or of remaining in, the national territory, in breach of the provisions laid down in relation to immigration where the person who so enters or remains is a citizen of a third country? |
| --- | --- |

1.

Does Directive 2008/115/EC (1) preclude a provision of national law, such as Article 10a of Legislative Decree No 286 of 25 July 1998, which categorises as a crime, punishable by a fine of between EUR 5 000 and EUR 10 000, the mere act of entering, or of remaining in, the national territory, in breach of the provisions laid down in relation to immigration where the person who so enters or remains is a citizen of a third country?

| 2. | Can Article 2(2)(B) of Directive 2008/115/EC be construed as excluding from the scope of the guarantees laid down in that directive deportation by way of alternative penalty, as provided for in Article 16(1) of Legislative Decree No 286 of 25 July 1998, for the crime consisting in the mere act of entering, or of remaining in, the national territory, as laid down in Article 10a of Legislative Decree No 286 of 25 July 1998? |
| --- | --- |

2.

Can Article 2(2)(B) of Directive 2008/115/EC be construed as excluding from the scope of the guarantees laid down in that directive deportation by way of alternative penalty, as provided for in Article 16(1) of Legislative Decree No 286 of 25 July 1998, for the crime consisting in the mere act of entering, or of remaining in, the national territory, as laid down in Article 10a of Legislative Decree No 286 of 25 July 1998?

---

(1)  OJ 2008 L 348, p. 98.

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/17 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/17

---

Reference for a preliminary ruling from Upper Tribunal (United Kingdom) made on 25 March 2011 — Secretary of State for Work and Pensions v Lucja Czop

(Case C-147/11)

2011/C 152/31

Language of the case: English

Referring court

Upper Tribunal

Parties to the main proceedings

Applicant: Secretary of State for Work and Pensions

Defendant: Lucja Czop

Questions referred

In circumstances where a claimant:

| (a) | is a citizen of Poland; |
| --- | --- |

(a)

is a citizen of Poland;

| (b) | came to the United Kingdom before her country acceded to the EU; |
| --- | --- |

(b)

came to the United Kingdom before her country acceded to the EU;

| (c) | established herself in self-employment within the meaning of Article 49 TFEU (ex Article 43 TEC); |
| --- | --- |

(c)

established herself in self-employment within the meaning of Article 49 TFEU (ex Article 43 TEC);

| (d) | remained here, and continued in self-employment, following accession; |
| --- | --- |

(d)

remained here, and continued in self-employment, following accession;

| (e) | is no longer in self-employment; and |
| --- | --- |

(e)

is no longer in self-employment; and

| (f) | is the primary carer of a child who came to the United Kingdom and entered general education after accession and after she ceased to be established in self-employment, |
| --- | --- |

(f)

is the primary carer of a child who came to the United Kingdom and entered general education after accession and after she ceased to be established in self-employment,

does the claimant have a right to reside in the United Kingdom on the basis that (individually or cumulatively):

| (a) | Regulation 1612/68 (1) applies, together with the reasoning of the European Court of Justice in Baumbast and R v Secretary of State for the Home Department (Case C-413/99) [2002] ECR I-7091, London Borough of Harrow v Ibrahim (Case C-310/08) and Teixeira v London Borough of Lambeth (Case C-480/08); |
| --- | --- |

(a)

Regulation 1612/68 (1) applies, together with the reasoning of the European Court of Justice in Baumbast and R v Secretary of State for the Home Department (Case C-413/99) [2002] ECR I-7091, London Borough of Harrow v Ibrahim (Case C-310/08) and Teixeira v London Borough of Lambeth (Case C-480/08);

| (b) | there is a general principle of EU law that equates the position of workers and the self-employed; |
| --- | --- |

(b)

there is a general principle of EU law that equates the position of workers and the self-employed;

| (c) | it would impede or deter the freedom of establishment if the claimant did not have a right to reside? |
| --- | --- |

(c)

it would impede or deter the freedom of establishment if the claimant did not have a right to reside?

---

(1)  OJ L 257, p. 2

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/18 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/18

---

Reference for a preliminary ruling from Upper Tribunal (United Kingdom) made on 25 March 2011 — Secretary of State for Work and Pensions v Margita Punakova

(Case C-148/11)

2011/C 152/32

Language of the case: English

Referring court

Upper Tribunal

Parties to the main proceedings

Applicant: Secretary of State for Work and Pensions

Defendant: Margita Punakova

Questions referred

In circumstances where a claimant:

| (a) | is a citizen of the Czech Republic; |
| --- | --- |

(a)

is a citizen of the Czech Republic;

| (b) | came to the United Kingdom before her country acceded to the EU; |
| --- | --- |

(b)

came to the United Kingdom before her country acceded to the EU;

| (c) | remained here following accession; |
| --- | --- |

(c)

remained here following accession;

| (d) | thereafter established herself in self-employment under Article 49 TFEU (ex. Article 43 TEC); |
| --- | --- |

(d)

thereafter established herself in self-employment under Article 49 TFEU (ex. Article 43 TEC);

| (e) | is no longer in self-employment; and |
| --- | --- |

(e)

is no longer in self-employment; and

| (f) | is the primary carer of a child who entered general education while she was established in self-employment, |
| --- | --- |

(f)

is the primary carer of a child who entered general education while she was established in self-employment,

does the claimant have a right to reside in the United Kingdom on the basis that:

| (a) | Regulation 1612/68 (1) applies, together with the reasoning of the European Court of Justice in Baumbast and R v Secretary of State for the Home Department (Case C-413/99) [2002] ECR I-7091, London Borough of Harrow v Ibrahim (Case C-310/08) and Teixeira v London Borough of Lambeth (Case C-480/08); |
| --- | --- |

(a)

Regulation 1612/68 (1) applies, together with the reasoning of the European Court of Justice in Baumbast and R v Secretary of State for the Home Department (Case C-413/99) [2002] ECR I-7091, London Borough of Harrow v Ibrahim (Case C-310/08) and Teixeira v London Borough of Lambeth (Case C-480/08);

| (b) | there is a general principle of EU law that equates the position of workers and the self-employed; |
| --- | --- |

(b)

there is a general principle of EU law that equates the position of workers and the self-employed;

| (c) | it would impede or deter the freedom of establishment if the claimant did not have a right to reside; or |
| --- | --- |

(c)

it would impede or deter the freedom of establishment if the claimant did not have a right to reside; or

| (d) | some other basis? |
| --- | --- |

(d)

some other basis?

---

(1)  OJ L 257, p. 2

---

General Court

| 21.5.2011 | EN | Official Journal of the European Union | C 152/19 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/19

---

Judgment of the General Court of 7 April 2011 — Intesa Sanpaolo v OHIM — MIP Metro (COMIT)

(Case T-84/08) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark COMIT - Earlier national figurative mark Comet - Relative ground for refusal - Likelihood of confusion - Similarity of the signs - Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009) - Article 8(3) of Regulation (EC) No 216/96)

2011/C 152/33

Language of the case: English

Parties

Applicant: Intesa Sanpaolo SpA (Turin, Italy) (represented by: A. Perani and P. Pozzi, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: MIP Metro Group Intellectual Property GmbH & Co. KG (Düsseldorf, Germany) (represented by R. Kaase, J.-C. Plate and M. Berger, lawyers)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 19 December 2007 (Case R 138/2006-4), concerning opposition proceedings between MIP Metro Group Intellectual Property GmbH & Co. KG and Intesa Sanpaolo SpA.

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 19 December 2007 (Case R 138/2006-4) to the extent that it dismisses the claim made by Intesa Sanpaolo SpA in respect of the goods in Class 16; |
| --- | --- |

1.

Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 19 December 2007 (Case R 138/2006-4) to the extent that it dismisses the claim made by Intesa Sanpaolo SpA in respect of the goods in Class 16;

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

2.

Dismisses the action as to the remainder;

| 3. | Orders OHIM to bear its own costs, together with half of the costs incurred by Intesa Sanpaolo; |
| --- | --- |

3.

Orders OHIM to bear its own costs, together with half of the costs incurred by Intesa Sanpaolo;

| 4. | Orders MIP Metro Group Intellectual Property GmbH & Co. KG to bear its own costs. |
| --- | --- |

4.

Orders MIP Metro Group Intellectual Property GmbH & Co. KG to bear its own costs.

---

(1)  OJ C 116, 9.5.2008.

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/19 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/19

---

Judgment of the General Court of 7 April 2011 — Gruber v OHIM (Run the globe)

(Case T-12/09) (1)

(Community trade mark - Application for Community word mark Run the globe - Absolute ground for refusal - Lack of distinctive character - Article 7(1)(b) of Regulation (EC) No 40/94 (now Article 7(1)(b) of Regulation (EC) No 207/2009))

2011/C 152/34

Language of the case: German

Parties

Applicant: Alexander Gruber (Ulm, Germany) (represented by: T. Kienle and M. Krinke, lawyers)

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

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 6 November 2008 (Case R 1779/2007-1) concerning a request for registration of the word sign Run the globe as a Community trade mark.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Mr Alexander Gruber to pay the costs. |
| --- | --- |

2.

Orders Mr Alexander Gruber to pay the costs.

---

(1)  OJ C 69, 21.3.2009.

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/19 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/19

---

Order of the General Court of 4 April 2011 — Marcuccio v Commission

(Case T-239/09 P) (1)

(Appeal - Civil service - Officials - Refusal by an institution to open an inquiry - Pre-litigation procedure - Action for damages - Appeal in part manifestly inadmissible and in part manifestly unfounded)

2011/C 152/35

Language of the case: Italian

Parties

Appellant: Luigi Marcuccio (Tricase, Italy) (represented by: G. Cipressa, lawyer)

Other party to the proceedings: European Commission (represented by: J. Currall and C. Berardis Kayser, agents, and A. dal Ferro, laywer)

Re:

Appeal against the order of the Civil Service Tribunal of the European Union (First Chamber) of 31 March 2009 in Case F-146/07 Marcuccio v Commission, not yet published in the ECR, seeking annulment of that order.

Operative part of the order

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

1.

The appeal is dismissed.

| 2. | Mr Luigi Marcuccio shall bear his own costs and pay those incurred by the European Commission in the present proceedings. |
| --- | --- |

2.

Mr Luigi Marcuccio shall bear his own costs and pay those incurred by the European Commission in the present proceedings.

---

(1)  OJ C 193, 15.8.2009.

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/20 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/20

---

Order of the President of the General Court of 2 March 2011 — 1. garantovaná v Commission

(Case T-392/09 R)

(Application for interim measures - Competition - Commission Decision imposing a fine - Bank guarantee - Application for suspension of operation of a measure - Prima facie case - Financial loss - Exceptional circumstances - Urgency - Balance of interests - Partial and conditional suspension)

2011/C 152/36

Language of the case: English

Parties

Applicant: 1. garantovaná a.s. (Bratislava, Slovakia) (represented: initially by M. Powell, Solicitor, A. Sutton and G. Forwood, Barristers, and subsequently by M. Powell and G. Forwood)

Defendant: European Commission (represented by: J. Bourke and N. von Lingen, Agents)

Re:

Application for suspension of operation of Commission Decision C(2009) 5791 final of 22 July 2009, relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39.396 — Calcium carbide and magnesium based reagents for the steel and gas industries).

Operative part of the order

| 1. | The application for leave to intervene, lodged by Messrs Jaroslav Červenka, Milan Hošek, Roman Murar, Adrián Vološin, Milan Kasanický and Peter Fratič, is dismissed. |
| --- | --- |

1.

The application for leave to intervene, lodged by Messrs Jaroslav Červenka, Milan Hošek, Roman Murar, Adrián Vološin, Milan Kasanický and Peter Fratič, is dismissed.

| 2. | The obligation on the applicant, 1. garantovaná a.s., to provide the European Commission with a bank guarantee in order to avoid immediate recovery of the fine imposed on it by Article 2 of Commission Decision C(2009) 5791 final of 22 July 2009, relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39.396 — Calcium carbide and magnesium based reagents for the steel and gas industries) is suspended until the earlier of the following two events occurs:






  — | maturing of the long-term loans on 11 July 2012, |
| --- | --- | --- |

2.

The obligation on the applicant, 1. garantovaná a.s., to provide the European Commission with a bank guarantee in order to avoid immediate recovery of the fine imposed on it by Article 2 of Commission Decision C(2009) 5791 final of 22 July 2009, relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39.396 — Calcium carbide and magnesium based reagents for the steel and gas industries) is suspended until the earlier of the following two events occurs:

—

maturing of the long-term loans on 11 July 2012,

| — | delivery of the judgment bringing the main proceedings to an end, |
| --- | --- |

—

delivery of the judgment bringing the main proceedings to an end,

provided that:

| — | from notification of this order, the applicant does not transfer, either directly or indirectly, its shares in its subsidiary G1 Investments Ltd without the Commission’s prior authorisation; |
| --- | --- |

—

from notification of this order, the applicant does not transfer, either directly or indirectly, its shares in its subsidiary G1 Investments Ltd without the Commission’s prior authorisation;

| — | within a period of one month from notification of this order, the applicant provides to the President of the General Court a written agreement pursuant to which neither its subsidiary G1 Investments nor G1 Investments’ subsidiary, Bounty Commodities Ltd, may transfer their assets to a third party without the Commission’s prior authorisation; |
| --- | --- |

—

within a period of one month from notification of this order, the applicant provides to the President of the General Court a written agreement pursuant to which neither its subsidiary G1 Investments nor G1 Investments’ subsidiary, Bounty Commodities Ltd, may transfer their assets to a third party without the Commission’s prior authorisation;

| — | upon notification of this order, the applicant pays to the Commission the sum of EUR 2.1 million; |
| --- | --- |

—

upon notification of this order, the applicant pays to the Commission the sum of EUR 2.1 million;

| — | within a period of one month from notification of this order, then every three months until delivery of judgment in the main action, and upon every event which might have an effect on its future ability to pay the fine imposed, the applicant provides the Commission with a written report on the development of its assets, and more specifically its long-term investments. |
| --- | --- |

—

within a period of one month from notification of this order, then every three months until delivery of judgment in the main action, and upon every event which might have an effect on its future ability to pay the fine imposed, the applicant provides the Commission with a written report on the development of its assets, and more specifically its long-term investments.

| 3. | Costs are reserved. |
| --- | --- |

3.

Costs are reserved.

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/20 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/20

---

Order of the General Court of 25 March 2011 — Noko Ngele v Commission and Others

(Case T-15/10) (1)

(Non-contractual liability - Action brought in part before a court which has no jurisdiction - Action inadmissible in part - Absence of causal link - Action in part manifestly devoid of any basis in law - Articles 111 and 114 of the Rules of Procedure of the General Court)

2011/C 152/37

Language of the case: French

Parties

Applicant: Mariyus Noko Ngele (Brussels, Belgium) (represented by: F. Sabakunzi, lawyer)

Defendants: European Commission (represented by: A. Bordes, agent), AT (Brussels, Belgium) AU (Brussels), AV (Brussels) and AW (Brussels)

Re:

Action for damages for the loss allegedly suffered by the applicant as a result of the impossibility of pursuing recovery of a debt owed to him and the non-material damage allegedly suffered by the applicant as a result of criminal proceedings instigated against him in Belgium

Operative part of the order

| 1. | The action is dismissed on the basis that it has been brought before a court that has no jurisdiction to hear it, in so far as it is directed against AT, AU, AV and AW. |
| --- | --- |

1.

The action is dismissed on the basis that it has been brought before a court that has no jurisdiction to hear it, in so far as it is directed against AT, AU, AV and AW.

| 2. | Mr Mariyus Noko Ngele’s head of claim seeking from the Court a declaration that the Centre pour le développement des entreprises (CDE) never replaced the Centre pour le développement industriel (CDI) and that the CDE does not exist in law or have legal personality in Belgium is dismissed on the basis that it is made before a court that has no jurisdiction to hear it. |
| --- | --- |

2.

Mr Mariyus Noko Ngele’s head of claim seeking from the Court a declaration that the Centre pour le développement des entreprises (CDE) never replaced the Centre pour le développement industriel (CDI) and that the CDE does not exist in law or have legal personality in Belgium is dismissed on the basis that it is made before a court that has no jurisdiction to hear it.

| 3. | Mr Noko Ngele’s claim that the Court should order that the judgment to be delivered is enforceable is rejected as inadmissible. |
| --- | --- |

3.

Mr Noko Ngele’s claim that the Court should order that the judgment to be delivered is enforceable is rejected as inadmissible.

| 4. | The action is dismissed as to the remainder as manifestly devoid of any basis in law. |
| --- | --- |

4.

The action is dismissed as to the remainder as manifestly devoid of any basis in law.

| 5. | Mr Noko Ngele is ordered to pay the costs of the present proceedings and those of the proceedings for interim measures. |
| --- | --- |

5.

Mr Noko Ngele is ordered to pay the costs of the present proceedings and those of the proceedings for interim measures.

---

(1)  OJ C 161, 19.6.2010.

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/21 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/21

---

Order of the General Court of 24 March 2011 — Internationaler Hilfsfonds v Commission

(Case T-36/10) (1)

(Action for annulment - Access to documents - Regulation (EC) No 1049/2001 - Documents relating to the LIEN 97-2011 contract - Response to an initial request - Period allowed for bringing proceedings - Manifestly inadmissible - Implied refusal of access - Interest in bringing proceedings - Explicit decision adopted after the action was brought - No need to adjudicate)

2011/C 152/38

Language of the case: German

Parties

Applicant: Internationaler Hilfsfonds eV (Rosbach, Germany) (represented by: initially, H. Kaltenecker, subsequently R. Bôhm, and lastly H. Kaltenecker, lawyers)

Defendant: European Commission (represented by: P. Costa de Oliveira and T. Scharf, agents)

Intervener in support of the applicant: Kingdom of Denmark (represented by: initally B. Weis Fogh and V. Pasternak Jørgensen and, subsequently, V. Pasternak Jørgensen, C. Yang and S. Juul Jørgensen, agents)

Re:

Action for annulment of the Commission’s decisions of 9 October 2009 and 1 December 2009 refusing Internationaler Hilfsfonds full access to the file relating to the LIEN 97-2011 contract.

Operative part of the order

| 1. | In so far as it is directed against the Commission’s decision of 9 October 2009, the action for annulment is dismissed as inadmissible. |
| --- | --- |

1.

In so far as it is directed against the Commission’s decision of 9 October 2009, the action for annulment is dismissed as inadmissible.

| 2. | There is no longer any need to adjudicate on the heads of claim in the action brought by Internationaler Hilfsfonds eV for annulment of the implied decision of the European Commission rejecting its request of 15 October 2009 for access to documents relating to the LIEN 97-2011 contract. |
| --- | --- |

2.

There is no longer any need to adjudicate on the heads of claim in the action brought by Internationaler Hilfsfonds eV for annulment of the implied decision of the European Commission rejecting its request of 15 October 2009 for access to documents relating to the LIEN 97-2011 contract.

| 3. | Internationaler Hilfsfonds shall bear its own costs and pay those incurred by the Commission relating to the heads of claim for annulment, in so far as they are directed against the Commission’s decision of 9 October 2009. |
| --- | --- |

3.

Internationaler Hilfsfonds shall bear its own costs and pay those incurred by the Commission relating to the heads of claim for annulment, in so far as they are directed against the Commission’s decision of 9 October 2009.

| 4. | The Commission shall bear its own costs and pay those incurred by Internationaler Hilfsfonds relating to the heads of claim for annulment, in so far as they are directed against the Commission’s decision of 1 December 2009. |
| --- | --- |

4.

The Commission shall bear its own costs and pay those incurred by Internationaler Hilfsfonds relating to the heads of claim for annulment, in so far as they are directed against the Commission’s decision of 1 December 2009.

| 5. | The Kingdom of Denmark shall bear its own costs. |
| --- | --- |

5.

The Kingdom of Denmark shall bear its own costs.

---

(1)  OJ C 100, 17.4.2010.

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/21 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/21

---

Order of the President of the General Court of 8 April 2011 — Xeda International v Commission

(Case T-71/10 R)

(Application for interim measures - Directive 91/414/EEC - Decision concerning the non-inclusion of diphenylamine in Annex I to Directive 91/414 - Application for suspension of operation of a measure - Lack of urgency)

2011/C 152/39

Language of the case: English

Parties

Applicant: Xeda International SA (Saint-Andiol, France) (represented by: C. Mereu, K. Van Maldegem, lawyers, and P. Sellar, Solicitor)

Defendant: European Commission (represented by: D. Bianchi and L. Parpala, Agents, assisted by J. Stuyck, lawyer)

Re:

Application, essentially, for suspension of operation of Commission Decision 2009/859/EC of 30 November 2009 concerning the non-inclusion of diphenylamine in Annex I to Council Directive 91/414/EEC and the withdrawal of authorisations for plant protection products containing that substance (OJ 2009 L 314, p. 79) pending judgment in the main proceedings.

Operative part of the order

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

1.

The application for interim measures is dismissed.

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

2.

Costs are reserved.

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/22 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/22

---

Order of the President of the General Court of 17 February 2011 — Gas Natural Fenosa SDG v Commission

(Case T-484/10 R)

(Interim measures - State aid - Compensation for the additional production costs of certain power plants arising from the public service obligation to produce certain volumes of electricity out of indigenous coal and implementation of a ‘preferential dispatch mechanism’ in their favour - Decision not to raise objections - Application for suspension of operation - Prima facie case - Lack of urgency - Weighing of the interests)

2011/C 152/40

Language of the case: Spanish

Parties

Applicant: Gas Natural Fenosa SDG, SA (Madrid, Spain) (represented by: F. González Díaz and F. Salerno, lawyers)

Defendant: European Commission (represented by: É. Gippini Fournier and C. Urraca Caviedes, acting as Agents)

Intervener in support of the defendant: Kingdom of Spain (represented by: J.M. Rodríguez Cárcamo, acting as Agent)

Re:

Application for interim measures seeking, in essence, an order for the suspension of operation of Commission Decision C(2010) 4499 of 29 September 2010 relating to State aid No N 178/2010 notified by the Kingdom of Spain in the form of a public service compensation linked to a preferential dispatch mechanism in favour of electricity power plants which use indigenous coal

Operative part of the order

| 1. | The application for leave to intervene lodged by the Cámara Oficial de Comercio, Industria y Navegación de A Coruña is dismissed. |
| --- | --- |

1.

The application for leave to intervene lodged by the Cámara Oficial de Comercio, Industria y Navegación de A Coruña is dismissed.

| 2. | E.ON Generación, SL, Hidroeléctrica del Cantábrico SA and the Federación Nacional de Empresarios de Minas de Carbón are granted leave to intervene in support of the form of order sought by the European Commission. |
| --- | --- |

2.

E.ON Generación, SL, Hidroeléctrica del Cantábrico SA and the Federación Nacional de Empresarios de Minas de Carbón are granted leave to intervene in support of the form of order sought by the European Commission.

| 3. | The order of the President of the General Court of 3 November 2010 in Case T-484/10 R Gas Natural Fenosa SDG v Commission, not published in the ECR, is cancelled. |
| --- | --- |

3.

The order of the President of the General Court of 3 November 2010 in Case T-484/10 R Gas Natural Fenosa SDG v Commission, not published in the ECR, is cancelled.

| 4. | A period shall be fixed for Gas Natural Fenosa SDG, the Commission and the Kingdom of Spain to request that certain confidential information in the file and in the present order be excluded from communication to the parties referred to in point 2 of this operative part and to provide, for the purposes of that communication, a non-confidential version of the documents in the file and of the present order. |
| --- | --- |

4.

A period shall be fixed for Gas Natural Fenosa SDG, the Commission and the Kingdom of Spain to request that certain confidential information in the file and in the present order be excluded from communication to the parties referred to in point 2 of this operative part and to provide, for the purposes of that communication, a non-confidential version of the documents in the file and of the present order.

| 5. | The costs are reserved. |
| --- | --- |

5.

The costs are reserved.

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/22 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/22

---

Order of the President of the General Court of 17 February 2011 — Iberdrola v Commission

(Case T-486/10 R)

(Interim measures - State aid - Compensation for the additional production costs of certain power plants arising from the public service obligation to produce certain volumes of electricity out of indigenous coal and implementation of a ‘preferential dispatch mechanism’ in their favour - Decision not to raise objections - Application for suspension of operation - Prima facie case - Lack of urgency - Weighing of the interests)

2011/C 152/41

Language of the case: Spanish

Parties

Applicant: Iberdrola, SA (Bilbao, Spain) (represented by: J. Ruiz Calzado and É. Barbier de la Serre, lawyers)

Defendant: European Commission (represented by: É. Gippini Fournier and C. Urraca Caviedes, acting as Agents)

Intervener in support of the defendant: Kingdom of Spain (represented by: J.M. Rodríguez Cárcamo, acting as Agent)

Re:

Application for interim measures seeking, in essence, an order for the suspension of operation of Commission Decision C(2010) 4499 of 29 September 2010 relating to State aid No N 178/2010 notified by the Kingdom of Spain in the form of a public service compensation linked to a preferential dispatch mechanism in favour of electricity power plants which use indigenous coal

Operative part of the order

| 1. | E.ON Generación, SL, Hidroeléctrica del Cantábrico SA and the Federación Nacional de Empresarios de Minas de Carbón are granted leave to intervene in support of the form of order sought by the European Commission. |
| --- | --- |

1.

E.ON Generación, SL, Hidroeléctrica del Cantábrico SA and the Federación Nacional de Empresarios de Minas de Carbón are granted leave to intervene in support of the form of order sought by the European Commission.

| 2. | The order of the President of the General Court of 3 November 2010 in Case T-486/10 R Iberdrola v Commission, not published in the ECR, is cancelled. |
| --- | --- |

2.

The order of the President of the General Court of 3 November 2010 in Case T-486/10 R Iberdrola v Commission, not published in the ECR, is cancelled.

| 3. | A period shall be fixed for Iberdrola, the Commission and the Kingdom of Spain to request that certain confidential information in the file and in the present order be excluded from communication to the parties referred to in point 1 of this operative part and to provide, for the purposes of that communication, a non-confidential version of the documents in the file and of the present order. |
| --- | --- |

3.

A period shall be fixed for Iberdrola, the Commission and the Kingdom of Spain to request that certain confidential information in the file and in the present order be excluded from communication to the parties referred to in point 1 of this operative part and to provide, for the purposes of that communication, a non-confidential version of the documents in the file and of the present order.

| 4. | The costs are reserved. |
| --- | --- |

4.

The costs are reserved.

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/23 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/23

---

Order of the President of the General Court of 17 February 2011 — Endesa and Endesa Generación v Commission

(Case T-490/10 R)

(Interim measures - State aid - Compensation for the additional production costs of certain power plants arising from the public service obligation to produce certain volumes of electricity out of indigenous coal and implementation of a ‘preferential dispatch mechanism’ in their favour - Decision not to raise objections - Application for suspension of operation - Prima facie case - Lack of urgency - Weighing of the interests)

2011/C 152/42

Language of the case: Spanish

Parties

Applicants: Endesa, SA (Madrid, Spain) and Endesa Generación, SA (Seville, Spain) (represented by: M. Merola, lawyer)

Defendant: European Commission (represented by: É. Gippini Fournier and C. Urraca Caviedes, acting as Agents)

Intervener in support of the defendant: Kingdom of Spain (represented by: J.M. Rodríguez Cárcamo, acting as Agent)

Re:

Application for interim measures seeking, in essence, an order for the suspension of operation of Commission Decision C(2010) 4499 of 29 September 2010 relating to State aid No N 178/2010 notified by the Kingdom of Spain in the form of a public service compensation linked to a preferential dispatch mechanism in favour of electricity power plants which use indigenous coal

Operative part of the order

| 1. | E.ON Generación, SL, Hidroeléctrica del Cantábrico SA and the Federación Nacional de Empresarios de Minas de Carbón are granted leave to intervene in support of the form of order sought by the European Commission. |
| --- | --- |

1.

E.ON Generación, SL, Hidroeléctrica del Cantábrico SA and the Federación Nacional de Empresarios de Minas de Carbón are granted leave to intervene in support of the form of order sought by the European Commission.

| 2. | The order of the President of the General Court of 3 November 2010 in Case T-490/10 R Endesa and Endesa Generación v Commission, not published in the ECR, is cancelled. |
| --- | --- |

2.

The order of the President of the General Court of 3 November 2010 in Case T-490/10 R Endesa and Endesa Generación v Commission, not published in the ECR, is cancelled.

| 3. | A period shall be fixed for Endesa, SA, Endesa Generación, SA, the Commission and the Kingdom of Spain to request that certain confidential information in the file and in the present order be excluded from communication to the parties referred to in point 1 of this operative part and to provide, for the purposes of that communication, a non-confidential version of the documents in the file and of the present order. |
| --- | --- |

3.

A period shall be fixed for Endesa, SA, Endesa Generación, SA, the Commission and the Kingdom of Spain to request that certain confidential information in the file and in the present order be excluded from communication to the parties referred to in point 1 of this operative part and to provide, for the purposes of that communication, a non-confidential version of the documents in the file and of the present order.

| 4. | The costs are reserved. |
| --- | --- |

4.

The costs are reserved.

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/23 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/23

---

Action brought on 4 March 2011 — Clorox v OHIM — Industrias Alen (CLORALEX)

(Case T-135/11)

2011/C 152/43

Language in which the application was lodged: English

Parties

Applicant: The Clorox Company (Oakland, USA) (represented by: S. Malynicz, barrister, and A. Chaudri, solicitor)

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

Other party to the proceedings before the Board of Appeal: Industrias Alen SA de CV (Santa Catarina, Mexico)

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 16 December 2010 in case R 521/2009-4; |
| --- | --- |

—

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 16 December 2010 in case R 521/2009-4;

| — | Order the defendant and the other party to the proceedings before the Board of Appeal to pay the costs of the proceedings. |
| --- | --- |

—

Order the defendant and the other party to the proceedings before the Board of Appeal to pay the costs of the proceedings.

Pleas in law and main arguments

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

Community trade mark concerned: The word mark ‘CLORALEX’, for goods in classes 3 and 5 — Community trade mark application No 4037371

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

Mark or sign cited in opposition: Greek trade mark registration No 147925 of the word mark ‘CLOROX’, for goods in classes 3 and 5; Benelux trade mark registration No 340039 of the word mark ‘CLOROX’, for goods in classes 1, 3 and 5; Czech trade mark registration No 165741 of the word mark ‘CLOROX’, for goods in classes 3 and 5; Danish trade mark registration No VR 04.153 1985 of the word mark ‘CLOROX’, for goods in class 3; French trade mark registration No 1402988 of the word mark ‘CLOROX’, for goods in classes 1, 3, 5, 29, 30, 31 and 32; Lithuanian trade mark registration No 8254 of the word mark ‘CLOROX’, for goods in classes 3 and 5; Portuguese trade mark registration No 296498 of the word mark ‘CLOROX’, for goods in class 3; Portuguese trade mark registration No 193727 of the word mark ‘CLOROX’, for goods in class 5; Spanish trade mark registration No 1047984 of the word mark ‘CLOROX’, for goods in class 3; Spanish trade mark registration No 835878 of the word mark ‘CLOROX’, for goods in class 5; Austrian trade mark registration No 52470 of the word mark ‘CLOROX’, for goods in class 1; Estonian trade mark registration No 8348 of the word mark ‘CLOROX’, for goods in classes 3 and 5; German trade mark registration No 644398 of the word mark ‘CLOROX’, for goods in classes 3 and 5; Hungarian trade mark registration No 124182 of the word mark ‘CLOROX’, for goods in classes 3 and 5; Latvian trade mark registration No M 10054 of the word mark ‘CLOROX’, for goods in classes 3 and 5; Slovenian trade mark registration No 9181304 of the word mark ‘CLOROX’, for goods in classes 3 and 5; Italian trade mark registration No 825852 of the word mark ‘CLOROX’, for goods in classes 3 and 5; Danish trade mark registration No VR 01.019 1978 of the word mark ‘CLOROX’, for goods in class 5; Finish trade mark registration No 93244 of the word mark ‘CLOROX’, for goods in classes 3 and 5; Polish trade mark registration No 60273 of the word mark ‘CLOROX’, for goods in classes 3 and 5

Decision of the Opposition Division: Upheld the Opposition

Decision of the Board of Appeal: Annulled the decision of the Opposition Division and rejected the opposition in its entirety

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly analysed the distinctive character of the marks at the stage of comparing them visually, aurally and conceptually, and also failed to take account of the clear similarities between the beginnings and endings of the marks.

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/24 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/24

---

Action brought on 9 March 2011 — Consorzio vino Chianti Classico v OHIM — Fédération française de rugby (Emblem with a drawing of a rooster)

(Case T-143/11)

2011/C 152/44

Language in which the application was lodged: English

Parties

Applicant: Consorzio vino Chianti Classico (Radda in Chianti, Italy) (represented by: S. Corona and G. Ciccone, lawyers)

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

Other party to the proceedings before the Board of Appeal: Fédération française de rugby (Paris, 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 10 January 2011 in case R 43/2010-4 and the Community trade mark application No 5713888 shall be prevented for registration, as of the date of the opposition; |
| --- | --- |

—

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 10 January 2011 in case R 43/2010-4 and the Community trade mark application No 5713888 shall be prevented for registration, as of the date of the opposition;

| — | Subordinately, alter the above mentioned decision and prevent the application for the contested sign for registration for wines in class 33; and |
| --- | --- |

—

Subordinately, alter the above mentioned decision and prevent the application for the contested sign for registration for wines in class 33; and

| — | Order the other party to the proceedings before the Board of Appeal to pay its own costs, as well as those of the applicant, also for the proceedings in front of the Opposition Division and the Board of Appeal. |
| --- | --- |

—

Order the other party to the proceedings before the Board of Appeal to pay its own costs, as well as those of the applicant, also for the proceedings in front of the Opposition Division and the Board of Appeal.

Pleas in law and main arguments

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

Community trade mark concerned: The figurative mark ‘F.F.R’ with the description ‘orange-yellow: PMS reference 1235C; gold: PMS reference 145C; red: PMS reference 1795C’, for goods in class 33 — Community trade mark application No 5713888

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

Mark or sign cited in opposition: Italian trade mark application No FI2007C00984 of the figurative mark (collective) ‘CONSORZIO VINO CHIANTI CLASSICO — CHIANTI CLASSICO’, for goods in class 33; Italian collective trade mark registration No 856049 of the figurative mark ‘CHIANTI CLASSICO — CONSORZIO DEL MARCHIO STORICO’, for goods in class 33; Italian collective trade mark registration No 856219 of the figurative mark ‘CHIANTI CLASSICO — CHIANTI CLASSICO — CONSORZIO’, for goods in class 33; Italian collective trade mark registration No 1006311 of the figurative mark ‘CHIANTI CLASSICO — SINCE 1716’, for goods in class 33; Italian collective trade mark registration No 856048 of the figurative mark ‘CHIANTI CLASSICO — CONSORZIO DEL MARCHIO STORICO’, for goods in class 33; United Kingdom trade mark registration No 1215633 of the figurative mark ‘CONSORTIO VINO CHIANTI CLASSICO’, for goods in class 33; German and France well known trade mark ‘CHIANTI CLASSICO — CONSORZIO VINO CHIANTI CLASSICO’, for goods in class 33; and non registered trade mark used in the course of trade in Germany and France ‘CHIANTI CLASSICO — CONSORZIO VINO CHIANTI CLASSICO’, for goods in class 33.

Decision of the Opposition Division: Upheld the opposition

Decision of the Board of Appeal: Annulled the decision of the Opposition Division and rejected the opposition in its entirety

Pleas in law: Infringement of Articles 8(1)(b) and 8(5) of Council Regulation No 207/2009, as the Board of Appeal: (i) wrongly concluded that there is no likelihood of confusion between the contested sign and the applicant’s trademarks and it did not take into adequate consideration the enhanced distinctiveness of the applicant’s marks; (ii) failed to consider the detriment to the applicant’s trademarks and the unfair advantage that the contested sign would gain if its registration were allowed; and (iii) failed to consider the specificity of the case, that in the nature of the collective trademark of the applicant’s mark, with an institutional function that makes it one of the States hallmarks.

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/25 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/25

---

Action brought on 16 March 2011 — Reddig v OHMI — Morleys (Shape of knife handles)

(Case T-164/11)

2011/C 152/45

Language in which the application was lodged: English

Parties

Applicant: Reddig GmbH (Drebber, Germany) (represented by: C. Thomas, lawyer)

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

Other party to the proceedings before the Board of Appeal: Morleys Ltd (Preston, United Kingdom)

Form of order sought

| — | Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 December 2010 in case R 1072/2009-2; |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 December 2010 in case R 1072/2009-2;

| — | Order the defendant to pay the costs incurred in the proceedings before the General Court and order the (potential) intervener to pay the costs of the administrative proceedings before the Board of Appeal; and |
| --- | --- |

—

Order the defendant to pay the costs incurred in the proceedings before the General Court and order the (potential) intervener to pay the costs of the administrative proceedings before the Board of Appeal; and

| — | Set a date for an oral hearing for the case that findings of the General Court are not possible without an oral hearing. |
| --- | --- |

—

Set a date for an oral hearing for the case that findings of the General Court are not possible without an oral hearing.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The three-dimensional mark ‘dolphin’, for goods in classes 6, 8 and 20 — Community trade mark registration No 2630101

Proprietor of the Community trade mark: The applicant

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

Grounds for the application for a declaration of invalidity: The party requesting the declaration of invalidity grounded its request on absolute grounds for invalidity pursuant to Article 52(1)(a) in conjunction with Article 7(1)(b), (c), (d) and (e)(ii) of Council Regulation (EC) No 207/2009, and on that the proprietor had acted in bad faith when failing the application pursuant to Article 52(1)(b) of Council Regulation (EC) No 207/2009.

Decision of the Cancellation Division: Accepted the request for a declaration of invalidity and declared the registration of the Community trade mark invalid in its entirety

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 7(1)(e)(ii) of Council Regulation No 207/2009, the Board of Appeal incorrectly interpreted this article and incorrectly interpreted the requirements of the Lego decision of the Court of the European Union (Judgement of the Court of 14 September 2010, Lego Juris v OHIM, C-48/09 P).

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/25 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/25

---

Action brought on 11 March 2011 — Stichting Regionaal Opleidingencentrum van Amsterdam v OHIM — Investimust (COLLEGE)

(Case T-165/11)

2011/C 152/46

Language in which the application was lodged: English

Parties

Applicant: Stichting Regionaal Opleidingencentrum van Amsterdam (Amsterdam, Netherlands) (represented by: R.M.R. van Leeuwen, lawyer)

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

Other party to the proceedings before the Board of Appeal: Investimust, S.A. (Geneva, Switzerland)

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 12 January 2011 in case R 508/2010-4; and |
| --- | --- |

—

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 12 January 2011 in case R 508/2010-4; and

| — | 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

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The word mark ‘COLLEGE’, for services in classes 39 and 43 — Community trade mark registration No 2645489

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

Applicant for the declaration of invalidity of the Community trade mark: The applicant

Grounds for the application for a declaration of invalidity: The party requesting the declaration of invalidity grounded its request on absolute grounds for invalidity pursuant to Article 52(1)(a) in conjunction with Article 7 of Council Regulation (EC) No 207/2009

Decision of the Cancellation Division: Rejected the request for declaration of invalidity

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 52(1)(a) in conjunction with Article 7(1)(c) and in conjunction with Article 7(1)(b) of Council Regulation No 207/2009, as also the Board of Appeal wrongly did not consider the evidence presented in appeal.

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/26 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/26

---

Action brought on 14 March 2011 — Carbunión v Council

(Case T-176/11)

2011/C 152/47

Language of the case: English

Parties

Applicant: Federación Nacional de Empresarios de Minas de Carbón (Carbunión) (Madrid, Spain) (represented by: K. Desai, Solicitor, S. Cisnal de Ugarte and M. Peristeraki, lawyers)

Defendant: Council of the European Union

Form of order sought

| — | declare the action for annulment admissible; |
| --- | --- |

—

declare the action for annulment admissible;

| — | declare the action for annulment founded and accordingly annul Article 3(1) indents (a) (b) and (f); and Article 3(3) of the Council Decision of 10 December 2010 on State aid to facilitate the closure of uncompetitive coal mines (2010/787/EU) (1); and |
| --- | --- |

—

declare the action for annulment founded and accordingly annul Article 3(1) indents (a) (b) and (f); and Article 3(3) of the Council Decision of 10 December 2010 on State aid to facilitate the closure of uncompetitive coal mines (2010/787/EU) (1); and

| — | condemn the Council to bear the costs incurred by the applicant in relation to these proceedings. |
| --- | --- |

—

condemn the Council to bear the costs incurred by the applicant in relation to these proceedings.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging manifest errors in the appreciation of the relevant acts since the defendant based the contested decision on the following findings:






  — | the contribution of coal in the EU energy supply is small; |
| --- | --- | --- |

1.

First plea in law, alleging manifest errors in the appreciation of the relevant acts since the defendant based the contested decision on the following findings:

—

the contribution of coal in the EU energy supply is small;

| — | the closure of the uncompetitive mines and elimination of the EU coal production will encourage renewable energy sources; |
| --- | --- |

—

the closure of the uncompetitive mines and elimination of the EU coal production will encourage renewable energy sources;

| — | the coal production in the EU and in Spain in particular are by no means expected to become competitive by 2018. |
| --- | --- |

—

the coal production in the EU and in Spain in particular are by no means expected to become competitive by 2018.

| 2. | Second plea in law, alleging lack of statement of reasons since the Council failed to:






  — | address the abundant evidence and conclusions that were presented to it during the preparatory procedure by other institutions and stakeholders demonstrating the importance of the EU coal industry for the security of supply in the EU; |
| --- | --- | --- |

2.

Second plea in law, alleging lack of statement of reasons since the Council failed to:

—

address the abundant evidence and conclusions that were presented to it during the preparatory procedure by other institutions and stakeholders demonstrating the importance of the EU coal industry for the security of supply in the EU;

| — | state reasons for (i) departing from the State aid framework and policy instituted with the 2002 Coal Regulation (2), which was based on security of supply concerns, and (ii) instead adopting the contested decision based solely on competitiveness’ considerations. |
| --- | --- |

—

state reasons for (i) departing from the State aid framework and policy instituted with the 2002 Coal Regulation (2), which was based on security of supply concerns, and (ii) instead adopting the contested decision based solely on competitiveness’ considerations.

| 3. | Third plea in law, alleging breach of the principles of legal certainty and legitimate expectations since the contested decision:






  — | constitutes an abrupt and unexpected change of the position of the EU towards the indigenous coal sector in the EU and in Spain in particular; |
| --- | --- | --- |

3.

Third plea in law, alleging breach of the principles of legal certainty and legitimate expectations since the contested decision:

—

constitutes an abrupt and unexpected change of the position of the EU towards the indigenous coal sector in the EU and in Spain in particular;

| — | violates the principle of legitimate expectations as it does not provide for a transitional period to allow the applicant to adapt to this significant change of policy. |
| --- | --- |

—

violates the principle of legitimate expectations as it does not provide for a transitional period to allow the applicant to adapt to this significant change of policy.

| 4. | Fourth plea in law, alleging breach of the principle of proportionality as the contested decision imposes unjustified and excessive restrictions to the operation of the indigenous coal mines in Spain, which do not correspond to the Council’s objectives. More precisely, in the applicant’s view, the measures adopted by the contested decision do not address the environmental concerns put forward by the Council, since the EU electricity plants will continue to ‘burn’ imported coal. In fact the contested decision imposes overly burdensome obligations on the applicant which are totally unrelated to the objective of environmental protection. Furthermore, the applicant submits that competition concerns arising from the subsidisation of the indigenous coal are also exaggerated in the contested decision. |
| --- | --- |

4.

Fourth plea in law, alleging breach of the principle of proportionality as the contested decision imposes unjustified and excessive restrictions to the operation of the indigenous coal mines in Spain, which do not correspond to the Council’s objectives. More precisely, in the applicant’s view, the measures adopted by the contested decision do not address the environmental concerns put forward by the Council, since the EU electricity plants will continue to ‘burn’ imported coal. In fact the contested decision imposes overly burdensome obligations on the applicant which are totally unrelated to the objective of environmental protection. Furthermore, the applicant submits that competition concerns arising from the subsidisation of the indigenous coal are also exaggerated in the contested decision.

| 5. | Fifth plea in law, alleging misuse of powers. In this regard the applicant submits that the measures adopted in the contested decision, given their adverse effects for the coal mining sector in the EU, do not correspond to the strategic goals and the policy objectives that the EU is meant to pursue under Article 194 TFEU. The contested decision endangers the proper functioning of the energy market in the EU and the security of energy supply in the EU and in Spain in particular. Therefore, the Council misused its powers in adopting the contested decision which aims at eliminating one of the most important indigenous raw materials for securing energy supply in the EU. |
| --- | --- |

5.

Fifth plea in law, alleging misuse of powers. In this regard the applicant submits that the measures adopted in the contested decision, given their adverse effects for the coal mining sector in the EU, do not correspond to the strategic goals and the policy objectives that the EU is meant to pursue under Article 194 TFEU. The contested decision endangers the proper functioning of the energy market in the EU and the security of energy supply in the EU and in Spain in particular. Therefore, the Council misused its powers in adopting the contested decision which aims at eliminating one of the most important indigenous raw materials for securing energy supply in the EU.

| 6. | Sixth plea in law, alleging breach of the principles of equal treatment and non discrimination. In the applicant’s view, the contested decision discriminates against indigenous coal producers (i) vis-à-vis importers of coal in the EU and (ii) vis-à-vis other forms of energy respectively. |
| --- | --- |

6.

Sixth plea in law, alleging breach of the principles of equal treatment and non discrimination. In the applicant’s view, the contested decision discriminates against indigenous coal producers (i) vis-à-vis importers of coal in the EU and (ii) vis-à-vis other forms of energy respectively.

| 7. | Seventh plea in law, alleging that the contested decision is founded on the wrong legal basis. The applicant submits that the contested decision is adopted on the basis of Article 107(3)(e) TFEU alone when it should have also been adopted on the basis of Article 109 TFEU and follow the corresponding procedure. |
| --- | --- |

7.

Seventh plea in law, alleging that the contested decision is founded on the wrong legal basis. The applicant submits that the contested decision is adopted on the basis of Article 107(3)(e) TFEU alone when it should have also been adopted on the basis of Article 109 TFEU and follow the corresponding procedure.

---

(1)  OJ 2010 L 336, p. 24

(2)  Council Regulation (EC) No 1407/2002 of 23 July 2002 on State aid to the coal industry, OJ 2002 L 205, p. 1

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/27 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/27

---

Action brought on 18 March 2011 — Sport Eybl & Sports Experts v OHIM — Seven (SEVEN SUMMITS)

(Case T-179/11)

2011/C 152/48

Language in which the application was lodged: English

Parties

Applicant: Sport Eybl & Sports Experts GmbH (Wels, Austria) (represented by: S. Fürst, lawyer)

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

Other party to the proceedings before the Board of Appeal: Seven SpA (Leinì, Italy)

Form of order sought

| — | Overrule the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 17 January 2011 in case R 364/2010-4; |
| --- | --- |

—

Overrule the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 17 January 2011 in case R 364/2010-4;

| — | Fix the total amount of costs to be paid by the defendant. |
| --- | --- |

—

Fix the total amount of costs to be paid by the defendant.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘SEVEN SUMMITS’, in colours blue and red, for amongst others goods in class 18 — Community trade mark application No 6307243

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

Mark or sign cited in opposition: Community trade mark registration No 3489234 of the figurative mark ‘Seven’, for goods in classes 16 and 18; Community trade mark registration No 4783866 of the figurative mark ‘7Seven’, for goods in classes 16 and 18

Decision of the Opposition Division: Upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly determined the existence of likelihood of confusion.

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/27 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/27

---

Action brought on 23 March 2011 — Chivas v OHIM — Glencairn Scotch Whisky (CHIVAS LIVE WITH CHIVALRY)

(Case T-180/11)

2011/C 152/49

Language in which the application was lodged: English

Parties

Applicant: Chivas Holdings (IP) Ltd (Renfrewshire, United Kingdom) (represented by: A. Carboni, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Glencairn Scotch Whisky Co. Ltd (Glasgow, United Kingdom)

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 12 January 2011 in case R 1262/2010-1, and remit the application to OHIM to allow it to proceed; and |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 12 January 2011 in case R 1262/2010-1, and remit the application to OHIM to allow it to proceed; and

| — | Order the defendant and any intervening parties in this appeal to bear their own costs and those of the applicant, incurred for these proceedings and those of the appeal procedure before the Board of Appeal. |
| --- | --- |

—

Order the defendant and any intervening parties in this appeal to bear their own costs and those of the applicant, incurred for these proceedings and those of the appeal procedure before the Board of Appeal.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘CHIVAS LIVE WITH CHIVALRY’, for goods and services in classes 33, 35 and 41 — Community trade mark application No 7299605

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

Mark or sign cited in opposition: United Kingdom trade mark registration No 1293610 of the figurative mark ‘CHIVALRY’, for goods in class 33; United Kingdom trade mark registration No 2468527 of the figurative mark ‘CHIVALRY SPECIAL RESERVE SCOTCH WHISKY’, for goods in class 33; Non-registered United Kingdom trade mark of the word ‘CHIVALRY’ in respect of ‘Scotch whisky’

Decision of the Opposition Division: Partly upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 76(1) and 75 of Council Regulation No 207/2009, as the Board of Appeal: (i) wrongly made a finding of fact as to the characteristics of the relevant public and failed to state the reasons for making the said finding; (ii) in the alternative to ground (i), having found that the relevant consumer is ‘particularly brand-conscious and brand-loyal’, incorrectly failed to appreciate that such characteristics would increase the attentiveness of the relevant consumer and accordingly reduce the likelihood of confusion occurring; (iii) failed to take into account, or took insufficient account of, the different nature and purposes of the marks under consideration; (iv) failed to take into account of important guidance laid down by the Court of Justice and took the wrong approach when comparing the marks; (v) focused undue attention on the presence of the word ‘CHIVALRY’ in the applicant’s mark and ignored the visual differences between the marks; (vi) wrongly assumed that the aural comparison of the marks could be approached in the same way as the visual comparison; (vii) was wrong to limit, or focus, its analysis of the conceptual similarity between the marks to the single word ‘CHIVALRY’ that appeared in each mark; and (viii) incorrectly assessed likelihood of confusion.

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/28 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/28

---

Action brought on 23 March 2011 — Chivas v OHIM — Glencairn Scotch Whisky (LIVE WITH CHIVALRY)

(Case T-181/11)

2011/C 152/50

Language in which the application was lodged: English

Parties

Applicant: Chivas Holdings (IP) Ltd (Renfrewshire, United Kingdom) (represented by: A. Carboni, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Glencairn Scotch Whisky Co. Ltd (Glasgow, United Kingdom)

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 12 January 2011 in case R 1263/2010-1, and remit the application to OHIM to allow it to proceed; and |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 12 January 2011 in case R 1263/2010-1, and remit the application to OHIM to allow it to proceed; and

| — | Order the defendant and any intervening parties in this appeal to bear their own costs and those of the applicant, incurred for these proceedings and those of the appeal procedure before the Board of Appeal. |
| --- | --- |

—

Order the defendant and any intervening parties in this appeal to bear their own costs and those of the applicant, incurred for these proceedings and those of the appeal procedure before the Board of Appeal.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘LIVE WITH CHIVALRY’, for goods and services in classes 33, 35 and 41 — Community trade mark application No 6616569

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

Mark or sign cited in opposition: United Kingdom trade mark registration No 1293610 of the figurative mark ‘CHIVALRY’, for goods in class 33; United Kingdom trade mark registration No 2468527 of the figurative mark ‘CHIVALRY SPECIAL RESERVE SCOTCH WHISKY’, for goods in class 33; Non-registered United Kingdom trade mark of the word ‘CHIVALRY’ in respect of ‘Scotch whisky’

Decision of the Opposition Division: Partly upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 76(1) and 75 of Council Regulation No 207/2009, as the Board of Appeal: (i) wrongly made a finding of fact as to the characteristics of the relevant public and failed to state the reasons for making the said finding; (ii) in the alternative to ground (i), having found that the relevant consumer is ‘particularly brand-conscious and brand-loyal’, incorrectly failed to appreciate that such characteristics would increase the attentiveness of the relevant consumer and accordingly reduce the likelihood of confusion occurring; (iii) failed to take into account, or took insufficient account of, the different nature and purposes of the marks under consideration; (iv) failed to take into account of important guidance laid down by the Court of Justice and took the wrong approach when comparing the marks; (v) focused undue attention on the presence of the word ‘CHIVALRY’ in the applicant’s mark and ignored the visual differences between the marks; (vi) wrongly assumed that the aural comparison of the marks could be approached in the same way as the visual comparison; (vii) was wrong to limit, or focus, its analysis of the conceptual similarity between the marks to the single word ‘CHIVALRY’ that appeared in each mark; and (viii) incorrectly assessed likelihood of confusion.

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/29 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/29

---

Action brought on 28 March 2011 — Dacoury-Tabley v Council

(Case T-182/11)

2011/C 152/51

Language of the case: French

Parties

Applicant: Philippe Henry Dacoury-Tabley (Abidjan, Côte d’Ivoire) (represented by: G. Collard, lawyer)

Defendant: Council of the European Union

Forms of order sought

The applicant claims that the Court should:

| — | declare that, concerning the applicant, Mr Philippe Henry DACOURY-TABLEY, Council Regulation No 85/2011 of 31 January 2011, published on 2 February 2011 in the Official Journal of the European Union, and Council Decision 2011/71/CFSP of 31 January 2011, published on 2 February 2011 in the Official Journal of the European Union, have no factual basis, |
| --- | --- |

—

declare that, concerning the applicant, Mr Philippe Henry DACOURY-TABLEY, Council Regulation No 85/2011 of 31 January 2011, published on 2 February 2011 in the Official Journal of the European Union, and Council Decision 2011/71/CFSP of 31 January 2011, published on 2 February 2011 in the Official Journal of the European Union, have no factual basis,

| — | accordingly,






  — | annul Council Regulation No 85/2011 of 31 January 2011 and Council Decision 2011/71/CFSP of 31 Janaury 2011 |
| --- | --- | --- |

—

accordingly,

—

annul Council Regulation No 85/2011 of 31 January 2011 and Council Decision 2011/71/CFSP of 31 Janaury 2011

| — | in the alternative, order that the name of Mr Philippe Henry DACOURY-TABLEY be removed from the list annexed to that Regulation and Decision. |
| --- | --- |

—

in the alternative, order that the name of Mr Philippe Henry DACOURY-TABLEY be removed from the list annexed to that Regulation and Decision.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging breach of the obligation to state reasons, since the reasons for including the applicant in the list of persons and entities to which the restrictive measures apply are stereotypical, with no mention of any precise factual evidence which allow the assessment of the relevance of that inclusion, |
| --- | --- |

1.

First plea in law, alleging breach of the obligation to state reasons, since the reasons for including the applicant in the list of persons and entities to which the restrictive measures apply are stereotypical, with no mention of any precise factual evidence which allow the assessment of the relevance of that inclusion,

| 2. | Second plea in law, alleging a manifest error of assessment in so far as






  — | the applicant is alleged to have refused recognise the authority of M. A. Ouattara, although he attempted to subject the BCEAO (Central Bank of West African States) for which he was governor, to his authority; |
| --- | --- | --- |

2.

Second plea in law, alleging a manifest error of assessment in so far as

—

the applicant is alleged to have refused recognise the authority of M. A. Ouattara, although he attempted to subject the BCEAO (Central Bank of West African States) for which he was governor, to his authority;

| — | the applicant is alleged to have helped to fund the illegitimate administration of M. L. Gbagbo, although such support cannot be inferred from the operations of the BCEAO; |
| --- | --- |

—

the applicant is alleged to have helped to fund the illegitimate administration of M. L. Gbagbo, although such support cannot be inferred from the operations of the BCEAO;

| — | in addition, the applicant was no longer governor of the BCEAO at the time of adoption of the contested Regulation and Decision. |
| --- | --- |

—

in addition, the applicant was no longer governor of the BCEAO at the time of adoption of the contested Regulation and Decision.

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/29 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/29

---

Action brought on 30 March 2011 — Trabelsi and Others v Council

(Case T-187/11)

2011/C 152/52

Language of the case: French

Parties

Applicants: Mohamed Trabelsi (Paris, France), Ines Lejri (Paris), Moncef Trabelsi (Paris), Selima Trabelsi (Paris) and Tarek Trabelsi (Paris) (represented by: A. Metzker, lawyer)

Defendant: Council of the European Union

Form of order sought

The applicants claim that the Court should:

| — | annul the contested decision of the Council of the European Union of 4 February 2011; |
| --- | --- |

—

annul the contested decision of the Council of the European Union of 4 February 2011;

| — | remove the name ‘Mohamed TRABELSI’ from the list; |
| --- | --- |

—

remove the name ‘Mohamed TRABELSI’ from the list;

| — | remove the name ‘INES LEJRI’ from the list; |
| --- | --- |

—

remove the name ‘INES LEJRI’ from the list;

| — | remove the name of Mr Mohamed TRABELSI’s mother; |
| --- | --- |

—

remove the name of Mr Mohamed TRABELSI’s mother;

| — | remove the address indicated in relation to Mr Mohamed TRABELSI; |
| --- | --- |

—

remove the address indicated in relation to Mr Mohamed TRABELSI;

| — | grant Mr and Mrs TRABELSI a right to respond; |
| --- | --- |

—

grant Mr and Mrs TRABELSI a right to respond;

| — | protect Mr Tarek TRABELSI given his disability; |
| --- | --- |

—

protect Mr Tarek TRABELSI given his disability;

| — | instruct the Council of the European Union to re-examine its text and to comply with the principle of the presumption of innocence; |
| --- | --- |

—

instruct the Council of the European Union to re-examine its text and to comply with the principle of the presumption of innocence;

| — | suspend the text adopted by the Council of the European Union; |
| --- | --- |

—

suspend the text adopted by the Council of the European Union;

| — | order the Council of the European Union to pay Mr TRABELSI the sum of EUR 150 000 by way of damages for the harm suffered; |
| --- | --- |

—

order the Council of the European Union to pay Mr TRABELSI the sum of EUR 150 000 by way of damages for the harm suffered;

| — | hold the European Union liable for the sum of EUR 25 000 by way of costs; |
| --- | --- |

—

hold the European Union liable for the sum of EUR 25 000 by way of costs;

| — | order the State to pay non-recoverable expenses — which it falls to the Court to set on an equitable basis — pursuant to Article L 761-1 of the Code de justice administrative (Administrative Justice Code). |
| --- | --- |

—

order the State to pay non-recoverable expenses — which it falls to the Court to set on an equitable basis — pursuant to Article L 761-1 of the Code de justice administrative (Administrative Justice Code).

Pleas in law and main arguments

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

| 1. | First plea in law alleging a formal illegality of the contested decision by reason of a misuse of powers and of infringement of the principles of the presumption of innocence, of the legality of criminal offences and penalties, of non bis in idem and of the principle that both parties must be heard, as well as that of fair legal process. |
| --- | --- |

1.

First plea in law alleging a formal illegality of the contested decision by reason of a misuse of powers and of infringement of the principles of the presumption of innocence, of the legality of criminal offences and penalties, of non bis in idem and of the principle that both parties must be heard, as well as that of fair legal process.

| 2. | Second plea in law alleging a substantive illegality of the contested decision by reason of an infringement of the right to property as well as of the principles of human dignity and equality, of an infringement of the freedoms of the TRABELSIs, of an interference with private life and of discrimination against a disabled child. |
| --- | --- |

2.

Second plea in law alleging a substantive illegality of the contested decision by reason of an infringement of the right to property as well as of the principles of human dignity and equality, of an infringement of the freedoms of the TRABELSIs, of an interference with private life and of discrimination against a disabled child.

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/30 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/30

---

Action brought on 24 March 2011 — Yordanov v OHIM — Distribuidora comercial del frio (DISCO DESIGNER)

(Case T-189/11)

2011/C 152/53

Language in which the application was lodged: German

Parties

Applicant: Peter Yordanov (Rousse, Bulgaria) (represented by: T. Walter, lawyer)

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

Other party to the proceedings before the Board of Appeal: Distribuidora comercial del frio, SA (Madrid, Spain)

Form of order sought

| — | Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 14 January 2011 in Case R 803/2010-2; |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 14 January 2011 in Case R 803/2010-2;

| — | 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: The applicant.

Community trade mark concerned: Word mark ‘DISCO DESIGNER’ for goods in Classes 11, 19 and 20.

Proprietor of the mark or sign cited in the opposition proceedings: Distribuidora comercial del frio, SA.

Mark or sign cited in opposition: Figurative mark including the word element ‘DISCO’ for goods in Class 11.

Decision of the Opposition Division: To uphold the opposition.

Decision of the Board of Appeal: To dismiss the appeal.

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009, (1) since there is no likelihood of confusion between the marks in question and the Board of Appeal incorrectly held that the goods at issue were identical.

---

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

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/30 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/30

---

Action brought on 31 March 2011 — Seka Yapo and Others v Council

(Case T-192/11)

2011/C 152/54

Language of the case: French

Parties

Applicants: Anselme Seka Yapo (Abidjan, Côte d'Ivoire), Brouha Nathanaël Ahouma (Abidjan), Blé Brunot Dogbo (Abidjan), Gagbei Faussignaux Vagba (Abidjan), Georges Guiai Bi Poin (Abidjan), Affro (Abidjan), Kassaraté Tiapé (Abidjan) and Philippe Mangou (Abidjan) (represented by: J.-C. Tchikaya, lawyer)

Defendant: Council of the European Union

Form of order sought

The applicants claim that the Court should:

| — | annul Council Decision 2011/18/CFSP of 14 January 2011 amending Council Decision 2010/656/CFSP renewing the restrictive measures against Côte d'Ivoire and Council Regulation (EU) No 25/2011 of 14 January 2011 amending Regulation (EC) No 560/2005 imposing certain specific restrictive measures directed against certain persons and entities in view of the situation in Côte d’Ivoire, in so far as they concern the applicants; |
| --- | --- |

—

annul Council Decision 2011/18/CFSP of 14 January 2011 amending Council Decision 2010/656/CFSP renewing the restrictive measures against Côte d'Ivoire and Council Regulation (EU) No 25/2011 of 14 January 2011 amending Regulation (EC) No 560/2005 imposing certain specific restrictive measures directed against certain persons and entities in view of the situation in Côte d’Ivoire, in so far as they concern the applicants;

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

—

order the Council to pay the costs.

Pleas in law and main arguments

The pleas in law and principal arguments relied on by the applicants are in essence identical or similar to those relied upon in Case T-118/11 Attey v Council.

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/31 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/31

---

Action brought on 31 March 2011 — Ahoua-N’Guetta and Others v Council

(Case T-193/11)

2011/C 152/55

Language of the case: French

Parties

Applicants: Timothée Ahoua-N’Guetta (Abidjan, Côte d’Ivoire), Jacques André Monoko Daligou (Abidjan), Bruno Walé Ekpo (Abidjan), Félix Tano Kouakou (Abidjan), Hortense Sess (Abidjan); and Joséphine Suzanne Ebah (Abidjan) (represented by: J.-C. Tchikaya, lawyer)

Defendant: Council of the European Union

Forms of order sought

The applicants claim that the Court should:

| — | Annul Council Decision 2011/18/CFSP of 14 January 2011 amending Council Decision 2010/656/CFSP renewing the restrictive measures against Côte d'Ivoire, and Council Regulation (EU) No 25/2011 of 14 January 2011 amending Regulation (EC) No 560/2005 imposing certain specific restrictive measures directed against certain persons and entities in view of the situation in Côte d'Ivoire, in so far as they concern the applicants; |
| --- | --- |

—

Annul Council Decision 2011/18/CFSP of 14 January 2011 amending Council Decision 2010/656/CFSP renewing the restrictive measures against Côte d'Ivoire, and Council Regulation (EU) No 25/2011 of 14 January 2011 amending Regulation (EC) No 560/2005 imposing certain specific restrictive measures directed against certain persons and entities in view of the situation in Côte d'Ivoire, in so far as they concern the applicants;

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

—

order the Council to pay the costs.

Pleas in law and main arguments

The pleas in law and main arguments relied on by the applicants are essentially identical or similar to those submitted in Case T-118/11 Attey v Council

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/31 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/31

---

Action brought on 31 March 2011 — Bro Grébé v Council

(Case T-194/11)

2011/C 152/56

Language of the case: French

Parties

Applicant: Geneviève Bro Grébé (Abidjan, Côte d’Ivoire) (represented by: J. C. Tchikaya, lawyer)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

| — | Annul Council Decision 2011/18/CFSP of 14 January 2011 amending Council Decision 2010/656/CFSP renewing the restrictive measures against Côte d'Ivoire, and Council Regulation (EU) No 25/2011 of 14 January 2011 amending Regulation (EC) No 560/2005 imposing certain specific restrictive measures directed against certain persons and entities in view of the situation in Côte d'Ivoire, in so far as they concern the applicant; |
| --- | --- |

—

Annul Council Decision 2011/18/CFSP of 14 January 2011 amending Council Decision 2010/656/CFSP renewing the restrictive measures against Côte d'Ivoire, and Council Regulation (EU) No 25/2011 of 14 January 2011 amending Regulation (EC) No 560/2005 imposing certain specific restrictive measures directed against certain persons and entities in view of the situation in Côte d'Ivoire, in so far as they concern the applicant;

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

—

order the Council to pay the costs.

Pleas in law and main arguments

The pleas in law and main arguments relied on by the applicants are essentially identical or similar to those submitted in Case T-118/11 Attey v Council

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/31 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/31

---

Appeal brought on 12 April 2011 by the College of staff representatives of the European Investment Bank and Others against the order of the President of the Second Chamber of the Civil Service Tribunal of 17 March 2011 in Case F-95/10 Bömcke v EIB

(Case T-213/11 P(I))

2011/C 152/57

Language of the case: French

Parties

Appellant: College of staff representatives of the European Investment Bank (Luxembourg, Luxembourg), Marie-Christel Heger (Luxembourg), Jean-Pierre Bodson (Luxembourg), Evangelos Kourgias (Senningerberg, Luxembourg), Manuel Sutil (Nondkeil, France) and Patrick Vanhoudt (Gonderange, Luxembourg) (represented by: G. J. Wilson, A. Senes and B. Entringer, lawyers)

Other party to the proceedings: Eberhard Bömcke (Athus, Belgium) and the European Investment Bank

Forms of order sought by the appellant

The applicants claim that the Court should:

| — | amend the order the order of 17 March 2011 of the President of the Second Chamber of the Civil Service Tribunal; |
| --- | --- |

—

amend the order the order of 17 March 2011 of the President of the Second Chamber of the Civil Service Tribunal;

| — | declare admissible and well founded the application to intervene submitted on 12 January 2011 to the President and other members of the Civil Service Tribunal and declare the applicant a party to the dispute between Eberhard BÖMCKE and the European Investment Bank, in light of the direct interest of the applicant to be a party thereto, pursuant to Articles 109 ff. of the Rules of Procedure of the European Union Civil Service Tribunal. |
| --- | --- |

—

declare admissible and well founded the application to intervene submitted on 12 January 2011 to the President and other members of the Civil Service Tribunal and declare the applicant a party to the dispute between Eberhard BÖMCKE and the European Investment Bank, in light of the direct interest of the applicant to be a party thereto, pursuant to Articles 109 ff. of the Rules of Procedure of the European Union Civil Service Tribunal.

Pleas in law and main arguments

By order of 17 March 2011, the President of the Second Chamber of the Civil Service Tribunal dismissed as inadmissible, on the grounds that it was out of time, the application to intervene made in Case F-95/10 Bömcke v EIB, by the College of staff representatives of the European Investment Bank and Ms Heger, Mr Bodson, Mr Kourgias, Mr Sutil and Mr Vanhoudt.

In support of the appeal, the appellant relies on three pleas in law.

| 1. | First plea in law, alleging an error in the calculation of the time-limit for the submission of the application for leave to appeal, since the time-limit of four weeks provided for in Article 109 of the Rules of Procedure of the Civil Service Tribunal and the extension on account of distance by a single period of 10 days under Article 100(3) of the Rules should be regarded as separate and independent time-limits, so that the postponement of the deadline, pursuant to Article 100(2) of the Rules, until the end of the first following working day, if the period would otherwise end on a Saturday, Sunday or official holiday, must apply to the deadline of four weeks before adding the extension on account of distance and does not apply to the whole time-limit including the extension on account of distance. |
| --- | --- |

1.

First plea in law, alleging an error in the calculation of the time-limit for the submission of the application for leave to appeal, since the time-limit of four weeks provided for in Article 109 of the Rules of Procedure of the Civil Service Tribunal and the extension on account of distance by a single period of 10 days under Article 100(3) of the Rules should be regarded as separate and independent time-limits, so that the postponement of the deadline, pursuant to Article 100(2) of the Rules, until the end of the first following working day, if the period would otherwise end on a Saturday, Sunday or official holiday, must apply to the deadline of four weeks before adding the extension on account of distance and does not apply to the whole time-limit including the extension on account of distance.

| 2. | Second plea in law, alleging wrongful application of the order in Case T-85/97 Horeca-Wallonie v Commission [1997] ECR II-2113, paragraphs 25 and 26, since that order deals with a different situation to that at issue in the present case. |
| --- | --- |

2.

Second plea in law, alleging wrongful application of the order in Case T-85/97 Horeca-Wallonie v Commission [1997] ECR II-2113, paragraphs 25 and 26, since that order deals with a different situation to that at issue in the present case.

| 3. | Third plea in law, alleging infringement of the fundamental rights of the applicants for leave to intervene, since the interpretation given by the President of the Second Chamber was very adverse to the right to appeal. |
| --- | --- |

3.

Third plea in law, alleging infringement of the fundamental rights of the applicants for leave to intervene, since the interpretation given by the President of the Second Chamber was very adverse to the right to appeal.

---

European Union Civil Service Tribunal

| 21.5.2011 | EN | Official Journal of the European Union | C 152/33 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/33

---

Action brought on 2 February 2011 — AX v ECB

(Case F-7/11)

2011/C 152/58

Language of the case: English

Parties

Applicant: AX (represented by: L. Levi and M. Vandenbussche, lawyers)

Defendant: European Central Bank

Subject-matter and description of the proceedings

The annulment of the ECB's decision suspending the applicant with effect from 5 August 2010 and the claim for damages.

Form of order sought

The applicant claims that the Court should:

| — | Annul the decision of the ECB dated 4 August 2010 suspending the applicant with effect from 5 August 2010; |
| --- | --- |

—

Annul the decision of the ECB dated 4 August 2010 suspending the applicant with effect from 5 August 2010;

| — | as a consequence, order the full reinstatement of the Appellant in his function with the appropriate publicity in order to restore his good name; |
| --- | --- |

—

as a consequence, order the full reinstatement of the Appellant in his function with the appropriate publicity in order to restore his good name;

| — | in any case, order the compensation of the moral prejudice suffered by the Appellant evaluated ex aequo et bono at 20 000,00 EUR; |
| --- | --- |

—

in any case, order the compensation of the moral prejudice suffered by the Appellant evaluated ex aequo et bono at 20 000,00 EUR;

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

—

order the ECB to pay the costs.

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/33 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/33

---

Action brought on 7 February 2011 — Sabbag Afota v Council

(Case F-9/11)

2011/C 152/59

Language of the case: French

Parties

Applicant: Veronica Sabbag Afota (Brussels, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal, lawyers)

Defendant: Council of the European Union

Subject-matter and description of the proceedings

Annulment of the decision of the Appointing Authority not to promote the applicant to Grade AD 11 in the 2010 promotion exercise.

Form of order sought

The applicant claims that the Tribunal should:

| — | annul the Council’s decision of 19 November 2010 rejecting the complaint against the decision of the Appointing Authority not to promote the applicant to Grade AD 11 in the 2010 promotion exercise; |
| --- | --- |

—

annul the Council’s decision of 19 November 2010 rejecting the complaint against the decision of the Appointing Authority not to promote the applicant to Grade AD 11 in the 2010 promotion exercise;

| — | to the necessary extent, annul the decision of the countersigning officer finalising the applicant’s report for the 2008-2009 reporting period and the decision of the Appointing Authority of 26 April 2010 not to promote the applicant to Grade AD 11 in the 2010 promotion exercise; |
| --- | --- |

—

to the necessary extent, annul the decision of the countersigning officer finalising the applicant’s report for the 2008-2009 reporting period and the decision of the Appointing Authority of 26 April 2010 not to promote the applicant to Grade AD 11 in the 2010 promotion exercise;

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

—

order the Council to pay the costs.

---

| 21.5.2011 | EN | Official Journal of the European Union | C 152/33 |
| --- | --- | --- | --- |

21.5.2011

EN

Official Journal of the European Union

C 152/33

---

Action brought on 7 March 2011 — Nicolas Katrakasas v Commission

(Case F-24/11)

2011/C 152/60

Language of the case: French

Parties

Applicant: Nicolas Katrakasas (Brussels, Belgium) (represented by: L. Levi, lawyer)

Defendant: European Commission

Subject-matter and description of the proceedings

Annulment of the decision of the selection board not to include the applicant on the reserve list for competition COM/INT/OLAF/09/AD8.

Form of order sought

The applicant claims that the Tribunal should:

| — | annul the decision of the selection board of 11 May 2010 upholding, following reconsideration, its decision of 9 March 2010 not to include the applicant on the reserve list for internal competition COM/INT/OLAF/09/AD8- Administrators specialised in anti-fraud; |
| --- | --- |

—

annul the decision of the selection board of 11 May 2010 upholding, following reconsideration, its decision of 9 March 2010 not to include the applicant on the reserve list for internal competition COM/INT/OLAF/09/AD8- Administrators specialised in anti-fraud;

| — | to the necessary extent, annul the decision of the European Commission of 25 November 2010 rejecting the applicant’s complaint; |
| --- | --- |

—

to the necessary extent, annul the decision of the European Commission of 25 November 2010 rejecting the applicant’s complaint;

| — | annul the reserve list in so far as it does not include the applicant’s name, and all other decisions taken on the basis of that list; |
| --- | --- |

—

annul the reserve list in so far as it does not include the applicant’s name, and all other decisions taken on the basis of that list;

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

—

order the European Commission to pay the costs.

---