# Official Journal C 234/2010

| | ISSN 1725-2423
  doi:10.3000/17252423.C_2010.234.eng |
| --- | --- |
| Official Journal
  of the European Union | C 234 |
| | |
| English edition | Information and Notices | Volume 5328 August 2010 |

ISSN 1725-2423

doi:10.3000/17252423.C_2010.234.eng

Official Journal

of the European Union

C 234

English edition

Information and Notices

Volume 5328 August 2010

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| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | Court of Justice of the European Union |
| 2010/C 234/01 | Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 221, 14.8.2010 | 1 |

Notice No

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

2010/C 234/01

Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 221, 14.8.2010

Official Journal of the European Union

1

| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2010/C 234/02 | Case C-139/07 P: Judgment of the Court (Grand Chamber) of 29 June 2010 — European Commission v Technische Glaswerke Ilmenau GmbH, Republic of Finland, Kingdom of Sweden (Appeals — Access to documents of the institutions — Regulation (EC) No 1049/2001 — Documents relating to procedures for reviewing State aid — Exception concerning protection of the purposes of investigations — Duty of the institution concerned to carry out a concrete, individual examination of the content of the documents covered by the application for access) | 2 |
| 2010/C 234/03 | Case C-441/07 P: Judgment of the Court (Grand Chamber) of 29 June 2010 — European Commission v Alrosa Company Ltd (Appeals — Dominant position — Regulation (EC) No 1/2003 — World market in rough diamonds — Individual commitments by a company to cease purchasing rough diamonds from another company — Decision making a company’s individual commitments binding and terminating the proceedings) | 3 |
| 2010/C 234/04 | Case C-28/08 P: Judgment of the Court (Grand Chamber) of 29 June 2010 — European Commission v The Bavarian Lager Co. Ltd, European Data Protection Supervisor (Appeal — Access to the documents of the institutions — Document concerning a meeting held in the context of a procedure for failure to fulfil obligations — Protection of personal data — Regulation (EC) No 45/2001 — Regulation (EC) No 1049/2001) | 3 |
| 2010/C 234/05 | Case C-171/08: Judgment of the Court (First Chamber) of 8 July 2010 — European Commission v Portuguese Republic (Failure of a Member State to fulfil obligations — Articles 56 EC and 43 EC — Free movement of capital — Portuguese State’s golden shares in Portugal Telecom SGPS SA — Restrictions on the acquisition of holdings and on the management of a privatised company — State measure) | 4 |
| 2010/C 234/06 | Case C-194/08: Judgment of the Court (Third Chamber) of 1 July 2010 (reference for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — Susanne Gassmayr v Bundesminister für Wissenschaft und Forschung (Social policy — Directive 92/85/EEC — Introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding — Articles 5(3) and 11(1) to (3) — Direct effect — Pregnant worker granted leave during her pregnancy — Worker on maternity leave — Right to payment of an on-call duty allowance) | 4 |
| 2010/C 234/07 | Case C-334/08: Judgment of the Court (Second Chamber) of 8 July 2010 — European Commission v Italian Republic (Failure of a Member State to fulfil obligations — Union’s own resources — Refusal to make available to the Union own resources corresponding to certain unlawful customs authorisations — Force majeure — Fraudulent conduct by the customs authorities — Liability of the Member States — Lawfulness of the entry of established entitlements in a separate account) | 5 |
| 2010/C 234/08 | Case C-393/08: Judgment of the Court (First Chamber) of 1 July 2010 (reference for a preliminary ruling from the Tribunale Amministrativo Regionale del Lazio — Italy) — Emanuela Sbarigia v Azienda USL RM/A, Comune di Roma, Assiprofar — Associazione Sindacale Proprietari Farmacia, Ordine dei Farmacisti della Provincia di Roma (National legislation governing opening times and closing days of pharmacies — Exemption — Power of decision of the competent authorities) | 6 |
| 2010/C 234/09 | Case C-407/08 P: Judgment of the Court (Second Chamber) of 1 July 2010 — Knauf Gips KG, formerly Gebrüder Knauf Westdeutsche Gipswerke KG v European Commission (Appeal — Agreements, decisions and concerted practices — Plasterboard — Access to the file — Inculpatory and exculpatory evidence — Concept of undertaking — Economic unit — Company responsible for the economic unit’s actions — Argument raised for the first time during the judicial proceedings) | 6 |
| 2010/C 234/10 | Case C-428/08: Judgment of the Court (Grand Chamber) of 6 July 2010 (reference for a preliminary ruling from the Rechtbank’s Gravenhage — Netherlands) — Monsanto Technology LLC v Cefetra BV, Cefetra Feed Service BV, Cefetra Futures BV, Alfred C. Toepfer International GmbH (Industrial and commercial property — Legal protection of biotechnological inventions — Directive 98/44/EC — Article 9 — Patent protecting a product containing or consisting of genetic information — Material incorporating the product — Protection — Conditions) | 7 |
| 2010/C 234/11 | Case C-442/08: Judgment of the Court (Fourth Chamber) of 1 July 2010 — European Commission v Federal Republic of Germany (Failure of a State to fulfil its obligations — EEC-Hungary Association Agreement — Subsequent verification — Failure to comply with rules on origin — Decision of the authorities of the exporting State — Appeal — Commission inspection mission — Customs duties — Post-clearance recovery — Own resources — Making available — Default interest) | 8 |
| 2010/C 234/12 | Joined Cases C-447/08 and C-448/08: Judgment of the Court (Fourth Chamber) of 8 July 2010 (reference for a preliminary ruling from the Svea hovrätt — Sweden) — Criminal proceedings against Otto Sjöberg (C-447/08), Anders Gerdin (C-448/08) (Freedom to provide services — Gambling — Offer of gambling via the internet — Promotion of gambling organised in other Member States — Activities reserved to public or non-profit-making bodies — Criminal penalties) | 8 |
| 2010/C 234/13 | Case C-471/08: Judgment of the Court (Third Chamber) of 1 July 2010 (reference for a preliminary ruling from the Helsingin käräjäoikeus — Finland) — Sanna Maria Parviainen v Finnair Oyj (Social policy — Directive 92/85/EEC — Protection of the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding — Articles 5(2) and 11(1) — Worker temporarily transferred to another job during her pregnancy — Compulsory transfer because of a risk to her safety or health and that of her child — Pay less than the average pay received before the transfer — Previous pay made up of a basic salary and various supplementary allowances — Calculation of the salary to which a pregnant worker is entitled during the period of her temporary transfer) | 9 |
| 2010/C 234/14 | Case C-526/08: Judgment of the Court (Grand Chamber) of 29 June 2010 — European Commission v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Admissibility — Non bis in idem — Res judicata — Articles 226 EC and 228 EC — Article 29 of the Rules of Procedure — Language of the case — Directive 91/676/EEC — Protection of waters against pollution caused by nitrates from agricultural sources — Non-compliance of national measures with the rules relating to the periods, conditions and techniques of land application of fertiliser — Minimum storage capacity for liquid manure — Prohibition on land application on steeply sloping ground — Techniques ensuring a uniform and effective land application of fertiliser) | 10 |
| 2010/C 234/15 | Case C-558/08: Judgment of the Court (First Chamber) of 8 July 2010 (reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands)) — Portakabin Ltd, Portakabin B.V. v Primakabin B.V. (Trade marks — Keyword advertising on the internet — Directive 89/104/EEC — Articles 5 to 7 — Display of advertisements on the basis of a keyword identical with a trade mark — Display of advertisements on the basis of keywords reproducing a trade mark with minor spelling mistakes — Advertising for second-hand goods — Goods manufactured and placed on the market by the proprietor of the trade mark — Exhaustion of the rights conferred by the trade mark — Affixing of labels bearing the name of the reseller and removal of labels bearing the trade mark — Advertising, on the basis of another person’s trade mark, for second-hand goods including, in addition to goods manufactured by the proprietor of the trade mark, goods from another source) | 10 |
| 2010/C 234/16 | Case C-35/09: Judgment of the Court (Second Chamber) of 1 July 2010 (reference for a preliminary ruling from the Corte Suprema di Cassazione — Italy) — Ministero dell’Economia e delle Finanze, Agenzia delle Entrate v Paolo Speranza (Indirect taxation — Tax on the increase in share capital — Article 4(1)(c) of Directive 69/335/EEC — National legislation making registration of the instrument recording an increase in the capital of a company subject to payment of duty — The recipient company and the notary jointly and severally liable — No capital contribution in fact made — Limitation of means of proof) | 11 |
| 2010/C 234/17 | Case C-99/09: Judgment of the Court (Fourth Chamber) of 1 July 2010 (reference for a preliminary ruling from the Sąd Najwyższy (Poland)) — Polska Telefonia Cyfrowa sp. z o.o. v Prezes Urzędu Komunikacji Elektronicznej (Telecommunication services — Directive 2002/22/EC — Article 30(2) — Portability of telephone numbers — Power of the national regulatory authorities — Direct charge to the subscriber — Disincentive — Taking costs into consideration) | 12 |
| 2010/C 234/18 | Case C-233/09: Judgment of the Court (First Chamber) of 1 July 2010 (reference for a preliminary ruling from the Hof van beroep te Antwerpen — Belgium) — Gerhard Dijkman, Maria Dijkman-Lavaleije v Belgische Staat (Freedom to provide services — Free movement of capital — Direct taxation — Difference in treatment according to the place of investment) | 13 |
| 2010/C 234/19 | Case C-246/09: Judgment of the Court (Second Chamber) of 8 July 2010 (reference for a preliminary ruling from the Landesarbeitsgericht Hamburg (Germany)) — Susanne Bulicke v Deutsche Büro Service GmbH (Directive 2000/78/EC — Articles 8 and 9 — National procedure for the enforcement of obligations under the Directive — Period within which a claim must be lodged — Principles of equivalence and effectiveness — Principle of non-reduction of an earlier level of protection) | 13 |
| 2010/C 234/20 | Case C-343/09: Judgment of the Court (Fourth Chamber) of 8 July 2010 (reference for a preliminary ruling from the High Court of Justice of England and Wales, Queen’s Bench Division (Administrative Court) — United Kingdom) — Afton Chemical Limited v Secretary of State for Transport (Reference for a preliminary ruling — Validity — Directive 2009/30/EC — Article 1(8) — Directive 98/70/EC — Article 8a — Atmospheric pollution — Fuels — Use of metallic additives in fuels — Limit for methylcyclopentadienyl manganese tricarbonyl (MMT) content — Labelling — Impact assessment — Manifest error of assessment — Precautionary principle — Proportionality — Equal treatment — Legal certainty — Admissibility) | 14 |
| 2010/C 234/21 | Case C-363/09: Judgment of the Court (Sixth Chamber) of 1 July 2010 — European Commission v Kingdom of Spain (Failure of a Member State to fulfil obligations — Directive 91/444/EEC — Plant protection products — Application for authorisation to place on the market — Data protection) | 15 |
| 2010/C 234/22 | Case C-550/09: Judgment of the Court (Grand Chamber) of 29 June 2010 (reference for a preliminary ruling from the Oberlandesgericht Düsseldorf (Germany)) — Criminal proceedings against E, F (Common foreign and security policy — Specific restrictive measures directed against certain persons and entities with a view to combating terrorism — Common Position 2001/931/CFSP — Regulation (EC) No 2580/2001 — Articles 2 and 3 — Inclusion of an organisation on the list of persons, groups and entities implicated in acts of terrorism — Transfer to an organisation, by members of that organisation, of funds originating from the collection of donations and the sale of publications) | 15 |
| 2010/C 234/23 | Case C-211/10 PPU: Judgment of the Court (Third Chamber) of 1 July 2010 (reference for a preliminary ruling from the Oberster Gerichtshof — Austria) — Doris Povse v Mauro Alpago (Judicial cooperation in civil matters — Matrimonial matters and matters of parental responsibility — Regulation (EC) No 2201/2003 — Unlawful removal of a child — Provisional measures relating to right to take parental decisions — Rights of custody — Judgment ordering the return of the child — Enforcement — Jurisdiction — Urgent preliminary ruling procedure) | 16 |
| 2010/C 234/24 | Case C-517/08 P: Order of the Court of 15 April 2010 — Makhteshim-Agan Holding BV, Alfa Agricultural Supplies SA, Aragonesas Agro, SA v European Commission, Bayer CropScience AG, European Crop Protection Association (ECPA), Kingdom of Spain (Appeal — Directive 91/414/EEC — Non-inclusion of endosulfan in Annex I to that directive — Withdrawal of marketing authorisations — Appeal manifestly unfounded) | 17 |
| 2010/C 234/25 | Case C-39/09 P: Order of the Court of 22 March 2010 — Société des plantations de Mbanga SA (SPM) v Council of the European Union, European Commission (Appeal — Article 119 of the Rules of Procedure of the Court of Justice — Non-contractual liability of the Community — Common organisation of the banana market — Arrangements for importing bananas originating in ACP countries into the Community — Loss allegedly suffered by an independent producer — Failure to comply with the rules on competition in the field of the common agricultural policy — Infringement of general principles of law and, in particular, of the principle of sound administration — Appeal manifestly inadmissible or manifestly unfounded) | 17 |
| 2010/C 234/26 | Case C-91/09: Order of the Court of 26 March 2010 (reference for a preliminary ruling from the Bundesgerichtshof (Germany)) — Eis.de GmbH v BBY Vertriebsgesellschaft mbH (First subparagraph of Article 104(3) of the Rules of Procedure — Trade marks — Internet — Keyword advertising — Display, on the basis of a keyword identical to a trade mark, of an advert of a competitor to the proprietor of that trade mark — Directive 89/104/EEC — Article 5(1)(a)) | 18 |
| 2010/C 234/27 | Case C-193/09 P: Order of the Court (Eighth Chamber) of 4 March 2010 — Kaul GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Bayer AG (Appeal — Application for registration of Community word mark ARCOL — Opposition by proprietor of Community word mark CAPOL — Implementation by OHIM of a judgment annulling a decision of its Boards of Appeal — Right to be heard — Likelihood of confusion — Minimal degree of similarity of the marks required — Rejection for manifest irrelevance of new evidence adduced before the Board of Appeal — Articles 8(1)(b), 61(2), 63(6), 73, second sentence, and 74(2) of Regulation No 40/94) | 18 |
| 2010/C 234/28 | Case C-332/09 P: Order of the Court of 23 April 2010 — Office for Harmonisation in the Internal Market (Trade Marks and Designs) v Frosch Touristik GmbH, DSR touristik GmbH (Appeal — Community trade mark — Regulation (EC) No 40/94 — Community word mark FLUGBÖRSE — Invalidity proceedings — Material date for the examination of an absolute ground for invalidity) | 19 |
| 2010/C 234/29 | Case C-451/09 P: Order of the Court of 12 May 2010 — Pigasos Alieftiki Naftiki Etairia v Council of the European Union and European Commission (Appeal — Non-contractual liability — Proof of Community origin of products fished by a vessel owned by a company registered under Greek law — Failure to adopt provisions permitting the customs authorities of the Member States to accept documents issued by a non-Member State, other than form T2M) | 19 |
| 2010/C 234/30 | Case C-514/09 P: Appeal brought on 11 December 2009 by Hubert Ségaud against the Order of the Court of First Instance (Sixth Chamber) of 29 October 2009 in Case T-249/09 Ségaud v European Commission | 20 |
| 2010/C 234/31 | Case C-214/10: Reference for a preliminary ruling from the Landesarbeitsgericht Hamm (Germany) lodged on 4 May 2010 — KHS AG v Winfried Schulte | 20 |
| 2010/C 234/32 | Case C-244/10: Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 19 May 2010 — Mesopotamia Broadcast A/S METV v Federal Republic of Germany | 20 |
| 2010/C 234/33 | Case C-245/10: Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 19 May 2010 — ROJ TV A/S v Federal Republic of Germany | 21 |
| 2010/C 234/34 | Case C-250/10: Reference for a preliminary ruling from the Finanzgericht Düsseldorf (Germany) lodged on 20 May 2010 — Haltergemeinschaft LBL GbR v Hauptzollamt Düsseldorf | 21 |
| 2010/C 234/35 | Case C-263/10: Reference for a preliminary ruling from the Tribunalul Gorj (Romania) lodged on 27 May 2010 — Iulian Andrei Nisipeanu v Direcția Generală a Finanțelor Publice Gorj, Administrația Finanțelor Publice Târgu-Cărbunești, Administrația Fondului Pentru Mediu | 22 |
| 2010/C 234/36 | Case C-271/10: Reference for a preliminary ruling from the Raad van State (Belgium) lodged on 31 May 2010 — Vereniging van Educatieve en Wetenschappelijke Auteurs (VEWA) v Belgische Staat | 22 |
| 2010/C 234/37 | Case C-280/10: Reference for a preliminary ruling from the Naczelny Sąd Administracyjny (Republic of Poland), lodged on 4 June 2010 — Kopalnia Odkrywkowa Polski Trawertyn P. Granatowicz, M. Wąsiewicz (a partnership) v Dyrektor Izby Skarbowej w Poznaniu | 23 |
| 2010/C 234/38 | Case C-281/10 P: Appeal brought on 4 June 2010 by PepsiCo, Inc. against the judgment of the General Court (Fifth Chamber) delivered on 18 March 2010 in Case T-9/07: Grupo Promer Mon Graphic SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs), PepsiCo, Inc. | 23 |
| 2010/C 234/39 | Case C-282/10: Reference for a preliminary ruling from the Cour de cassation (France) lodged on 7 June 2010 — Maribel Dominguez v Centre informatique du Centre Ouest Atlantique, Prefect of the Centre region | 24 |
| 2010/C 234/40 | Case C-283/10: Reference for a preliminary ruling from the Înalta Curte de Casație și Justiție (Romania) lodged on 7 June 2010 — Circul Globus București (Circ & Variete Globus București) v Uniunea Compozitorilor și Muzicologilor din România — Asociația pentru Drepturi de Autor — U.C.M.R. — A.D.A. | 25 |
| 2010/C 234/41 | Case C-299/10: Reference for a preliminary ruling from the Tribunal Judicial de Amares (Portugal) lodged on 17 June 2010 — Cristiano Marques Vieira v Companhia de Seguros Tranquilidade SA | 25 |
| 2010/C 234/42 | Case C-300/10: Reference for a preliminary ruling from the Tribunal da Relação de Guimarães (Portugal) lodged on 17 June 2010 — Vítor Hugo Marques Almeida v Companhia de Seguros Fidelidade-Mundial SA, Jorge Manuel da Cunha Carvalheira, Paulo Manuel Carvalheira, Fundo de Garantia Automóvel | 26 |
| 2010/C 234/43 | Case C-305/10: Action brought on 25 June 2010 — European Commission v Grand Duchy of Luxembourg | 26 |
| 2010/C 234/44 | Case C-310/10: Reference for a preliminary ruling from the Curtea de Apel Bacău (Romania) lodged on 29 June 2010 — Ministerul Justiției și Libertăților Cetățenești v Ștefan Agafiței and Others | 27 |
| 2010/C 234/45 | Case C-316/10: Reference for a preliminary ruling from the Vestre Landsret (Denmark) lodged on 1 July 2010 — Danske Svineproducenter v Justitsministeriet | 28 |
| 2010/C 234/46 | Case C-342/10: Action brought on 7 July 2010 — European Commission v Republic of Finland | 28 |
| 2010/C 234/47 | Case C-343/10: Action brought on 7 July 2010 — European Commission v Kingdom of Spain | 29 |
| 2010/C 234/48 | Case C-349/10 P: Appeal brought on 9 July 2010 by Claro, S.A. against the judgment delivered by the General Court (Fifth Chamber) on 28 April 2010 in Case T-225/09 Claro, S.A. v OHIM and Telefónica, S.A. | 29 |
| 2010/C 234/49 | Case C-566/08: Order of the President of the Court of 25 February 2010 — European Parliament v Council of the European Union | 30 |
| 2010/C 234/50 | Case C-572/08: Order of the President of the First Chamber of the Court of 6 May 2010 — European Commission v Italian Republic | 30 |
| 2010/C 234/51 | Case C-147/09: Order of the President of the Court of 29 April 2010 (reference for a preliminary ruling from the Oberlandesgericht Wien (Austria)) — Ronald Seunig v Maria Hölzel | 30 |
| | General Court |
| 2010/C 234/52 | Case T-331/06: Judgment of the General Court of 8 July 2010 — Evropaïki Dynamiki v EEA (Public service contracts — EEA tendering procedure — Provision of information technology consultancy services — Rejection of the tender — Action for annulment — Jurisdiction of the Court — Award criteria set out in the tender specifications — Sub-criteria — Manifest error of assessment — Obligation to state the reasons on which a decision is based) | 31 |
| 2010/C 234/53 | Case T-12/08 P-RENV-RX: Judgment of the General Court of 8 July 2010 — M v EMA (Appeal — Civil service — Review of the judgment of the General Court — Whether the state of the proceedings permits final judgment to be given) | 31 |
| 2010/C 234/54 | Case T-85/08: Judgment of the General Court of 9 July 2010 — Exalation v OHIM (Vektor-Lycopin) (Community trade mark — Application for Community word mark Vektor-Lycopin — Absolute grounds for refusal — Lack of distinctive character — Descriptive character — Article 7(1)(b) and (c) of Regulation (EC) No 40/94 (now Article 7(1)(b) and (c) of Regulation (EC) No 207/2009)) | 32 |
| 2010/C 234/55 | Case T-160/08 P: Judgment of the General Court of 8 July 2010 — Commission v Putterie-De-Beukelaer (Appeal — Civil Service — Officials — Annulment at first instance of the career development report — 2005 reporting period — Rules applicable — Heading potential — Evaluation procedure — Attestation procedure) | 32 |
| 2010/C 234/56 | Case T-385/08: Judgment of the General Court of 8 July 2010 — Trautwein v OHIM (Representation of a dog) (Community trade mark — Application for a Community figurative mark representing a dog — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 40/94 (now Article 7(1)(c) of Regulation (EC) No 207/2009)) | 32 |
| 2010/C 234/57 | Case T-386/08: Judgment of the General Court of 8 July 2010 — Trautwein v OHIM (Representation of a horse) (Community trade mark — Application for a Community figurative mark representing a horse — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 40/94 (now Article 7(1)(c) of Regulation (EC) No 207/2009)) | 33 |
| 2010/C 234/58 | Case T-396/08: Judgment of the General Court of 8 July 2010 — Freistaat Sachsen and Land Sachsen-Anhalt v Commission (State aid — Training aid — Decision declaring the aid to be in part compatible and in part incompatible with the common market — Need for the aid — Positive external effects — Obligation to give reasons) | 33 |
| 2010/C 234/59 | Case T-430/08: Judgment of the General Court of 9 July 2010 — Grain Millers v OHIM — Grain Millers (GRAIN MILLERS) (Community trade mark — Opposition proceedings — Application for Community word mark GRAIN MILLERS — Earlier national business name Grain Millers and its figurative representation — Partial refusal to register — Relative ground for refusal — Likelihood of confusion — Article 8(4) of Regulation (EC) No 40/94 (now Article 8(4) of Regulation (EC) No 207/2009)) | 34 |
| 2010/C 234/60 | Case T-510/08: Judgment of the General Court of 9 July 2010 — Toqueville v OHIM — Schiesaro (TOCQUEVILLE 13) (Community trade mark — Revocation proceedings — Community word mark TOCQUEVILLE 13 — Failure to comply with the time-limit for appealing against a revocation decision — Application for restitutio in integrum — Article 78 of Regulation (EC) No 40/94 (now Article 81 of Regulation (EC) No 207/2009)) | 34 |
| 2010/C 234/61 | Case T-30/09: Judgment of the General Court of 8 July 2010 — Engelhorn v OHIM — The Outdoor Group (peerstorm) (Community trade mark — Opposition proceedings — Application for the Community word mark peerstorm — Earlier Community and national word marks PETER STORM — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009) — Genuine use of the earlier marks — Articles 15 and 43(2) of Regulation No 40/94 (now Articles 15 and 42(2) of Regulation No 207/2009)) | 35 |
| 2010/C 234/62 | Case T-368/09 P: Judgment of the General Court of 8 July 2010 — Sevenier v Commission (Appeal — Civil service — Officials — Resignation — Commission’s refusal to accept the withdrawal of the resignation and refer the matter to the invalidity committee — Time-limit for complaint — Lateness — No excusable error) | 35 |
| 2010/C 234/63 | Case T-570/08: Order of the General Court of 14 July 2010 — Deutsche Post v Commission (Action for annulment — State aid — Information injunction — Non-actionable measure — Inadmissibility) | 35 |
| 2010/C 234/64 | Case T-571/08: Order of the General Court of 14 July 2010 — Germany v Commission (Action for annulment — State aid — Information injunction — Non-actionable measure — Inadmissibility) | 36 |
| 2010/C 234/65 | Case T-166/09 P: Order of the General Court of 8 July 2010 — Marcuccio v Commission (Appeal — Civil Service — Officials — Order of referral — Decision which cannot be the object of an appeal — Action for damages — Pre-litigation procedure — Procedural defects — Appeal in part manifestly inadmissible and in part manifestly unfounded) | 36 |
| 2010/C 234/66 | Case T-349/09: Order of the General Court of 6 July 2010 — PAGO International v OHIM — Tirol Milch (Pago) (Community trade mark — Proceedings for revocation — Revocation of the decision of the Board of Appeal — Disappearance of the subject-matter of the proceedings — No need to adjudicate) | 37 |
| 2010/C 234/67 | Case T-401/09: Order of the General Court of 6 July 2010 — Marcuccio v Court of Justice (Action for annulment — Rejection by the Court of Justice of a request for compensation — Action for damages — Service of an appeal to the applicant’s former representative — Absence of harm — Action in part manifestly inadmissible and in part manifestly devoid of any basis in law) | 37 |
| 2010/C 234/68 | Cases T-84/10 R and T-223/10 R: Order of the President of the General Court of 25 June 2010 — Regione Puglia v Commission (Application for interim measures — Decision to reduce Community financial assistance — Debit note — Application to suspend the operation of a measure — No urgency) | 38 |
| 2010/C 234/69 | Case T-177/10 R: Order of the President of the General Court of 9 July 2010 — Alcoa Trasformazioni v Commission (Interim measures — State aid — Preferential electricity tariffs — Decision declaring the aid incompatible with the common market and ordering its recovery — Application for suspension of operation of a measure — No urgency) | 38 |
| 2010/C 234/70 | Case T-211/10: Order of the General Court of 8 July 2010 — Strålfors v OHIM (ID SOLUTIONS) (Action for annulment — Application initiating proceedings — Formal requirements — Manifest inadmissibility) | 38 |
| 2010/C 234/71 | Case T-212/10: Order of the General Court of 8 July 2010 — Strålfors v OHIM (IDENTIFICATION SOLUTIONS) (Action for annulment — Application initiating proceedings — Formal requirements — Manifest inadmissibility) | 39 |
| 2010/C 234/72 | Case T-210/10: Action brought on 5 May 2010 — Condé v Council | 39 |
| 2010/C 234/73 | Case T-243/10: Action brought on 26 May 2010 — Rungis Express/HABM — Žito (MARESTO) | 40 |
| 2010/C 234/74 | Case T-258/10: Action brought on 10 June 2010 — France Télécom v Commission | 40 |
| 2010/C 234/75 | Case T-259/10: Action brought on 8 June 2010 — Ax v Council | 41 |
| 2010/C 234/76 | Case T-267/10: Action brought on 16 June 2010 — Land Wien v Commission | 42 |
| 2010/C 234/77 | Case T-269/10: Action brought on 14 June 2010 — LIS v Commission | 42 |
| 2010/C 234/78 | Case T-274/10: Action brought on 22 June 2010 — Suez Environnement and Lyonnaise des eaux France v Commission | 43 |
| 2010/C 234/79 | Case T-275/10: Action brought on 22 June 2010 — mPAY24 GmbH v OHIM — ULTRA d.o.o. Proizvodnja elektronskih naprav (MPAY 24) | 44 |
| 2010/C 234/80 | Case T-276/10: Action brought on 22 June 2010 — El Coto De Rioja v OHIM — Álvarez Serrano (COTO DE GOMARIZ) | 45 |
| 2010/C 234/81 | Case T-279/10: Action brought on 21 June 2010 — K-Mail Order v OHIM — IVKO (MEN’Z) | 45 |
| 2010/C 234/82 | Case T-280/10: Action brought on 25 June 2010 — Milux v OHMI (ANEURYSMCONTROL) | 46 |
| 2010/C 234/83 | Case T-281/10: Action brought on 25 June 2010 — Milux v OHMI (APPETITECONTROL) | 47 |
| 2010/C 234/84 | Case T-282/10: Action brought on 25 June 2010 — Milux v OHMI (STOMACONTROL) | 47 |
| 2010/C 234/85 | Case T-283/10: Action brought on 25 June 2010 — Milux v OHMI (BMICONTROL) | 48 |
| 2010/C 234/86 | Case T-284/10: Action brought on 25 June 2010 — Milux v OHMI (IMPLANTCONTROL) | 48 |
| 2010/C 234/87 | Case T-285/10: Action brought on 25 June 2010 — Milux v OHMI (CHEMOCONTROL) | 49 |
| 2010/C 234/88 | Case T-287/10: Action brought on 25 June 2010 — Unilever España and Unilever v OHMI — Med Trans G. Poulias-S. Brakatselos (MED FRIGO S.A.) | 49 |
| 2010/C 234/89 | Case T-290/10: Action brought on 30 June 2010 — Sports Warehouse/HABM (TENNIS WAREHOUSE) | 50 |
| 2010/C 234/90 | Case T-291/10: Action brought on 26 June 2010 — Martin v Commission | 51 |
| 2010/C 234/91 | Case T-295/10: Action brought on 7 July 2010 — Camara v Council | 51 |
| 2010/C 234/92 | Case T-299/10: Action brought on 15 July 2010 — Babcock Noell v European Joint Undertaking for ITER and the Development of Fusion Energy | 52 |
| 2010/C 234/93 | Case T-178/06: Order of the General Court of 29 June 2010 — Bavaria v Council | 53 |
| 2010/C 234/94 | Case T-286/07: Order of the General Court of 30 June 2010 — Torres v OHIM — Torres de Anguix (A TORRES de ANGUIX) | 53 |
| 2010/C 234/95 | Case T-115/08: Order of the General Court of 29 June 2010 — Gourmet Burger Kitchen v OHIM (GOURMET BURGER KITCHEN) | 54 |
| 2010/C 234/96 | Case T-121/09: Order of the General Court of 13 July 2010 — Al Shanfari v Council and Commission | 54 |
| 2010/C 234/97 | Case T-361/09: Order of the General Court of 30 June 2010 — Centraal bureau voor de statistiek v Commission | 54 |
| 2010/C 234/98 | Case T-112/10: Order of the General Court of 5 July 2010 — Prionics v Commission and EFSA | 54 |
| | European Union Civil Service Tribunal |
| 2010/C 234/99 | Case F-64/06: Judgment of the Civil Service Tribunal (Second Chamber) of 8 July 2010 — Bergström v Commission (Staff case — Appointment — Members of the temporary staff appointed as officials — Candidates names included on a reserve list prior to the entry into force of the new Staff Regulations — Transitional rules on grading upon recruitment — Grading pursuant to the new less favourable rules — Article 5(4) and Article 12(3) of Annex XIII to the Staff Regulations) | 55 |
| 2010/C 234/00 | Case F-67/06: Judgment of the Civil Service Tribunal (Second Chamber) of 8 July 2010 — Lesniak v Commission (Civil Service — Officials — Appointment — Temporary agents appointed as officials — Candidates placed on a reserve list prior to the entry into force of the new Staff Regulations — Transitional rules governing classification in grade at the time of recruitment — Classification in grade pursuant to the new, less favourable rules — Article 5(4) and Article 12(3) of Annex XIII to the Staff Regulations) | 55 |
| 2010/C 234/01 | Case F-139/06: Judgment of the Civil Service Tribunal (Second Chamber) of 8 July 2010 — Kurrer v Commission (Civil Service — Officials — Appointment — Temporary agents appointed as officials — Candidates placed on a reserve list prior to the entry into force of the new Staff Regulations — Transitional rules governing classification in grade at the time of recruitment — Classification in grade pursuant to the new, less favourable rules — Article 5(4) and Article 12(3) of Annex XIII to the Staff Regulations) | 56 |
| 2010/C 234/02 | Case F-53/08: Judgment of the Civil Service Tribunal (Plenary Formation) of 5 May 2010 — Bouillez and Others v Council (Staff cases — Officials — Promotion — 2007 promotion procedure — Interest in bringing proceedings — Promotion decision — Liste of promoted officials — Consideration of the comparative merits — Criterion of the level of responsibility held — Application for annulment of the promotion decisions — Balance of interests) | 56 |
| 2010/C 234/03 | Case F-89/08: Judgment of the Civil Service Tribunal (Third Chamber) of 24 February 2010 — P v Parliament (Staff case — Temporary staff — European Parliament — Dismissal — Loss of confidence) | 57 |
| 2010/C 234/04 | Case F-2/09: Judgment of the Civil Service Tribunal (Third Chamber) of 24 February 2010 — Menghi v ENISA (Civil Service — Temporary staff — Dismissal following end of the probationary period — Psychological harassment) | 57 |
| 2010/C 234/05 | Case F-55/09: Judgment of the Civil Service Tribunal (First Chamber) of 11 May 2010 — Maxwell v Commission (Staff case — Officials — Secondment in the interests of the service — Leave on personal grounds — Accommodation and education expenses — Action for damages — Liability for a wrongful act — Unjust enrichment) | 57 |
| 2010/C 234/06 | Case F-78/09: Order of the Civil Service Tribunal (First Chamber) of 22 June 2010 — Marcuccio v Commission (Staff cases — Officials — Action for damages — Reimbursement of costs — Availability of a parallel remedy — Manifestly inadmissible) | 58 |
| 2010/C 234/07 | Case F-34/10: Action brought on 26 May 2010 — Arango Jaramillo and Others v EIB | 58 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2010/C 234/02

Case C-139/07 P: Judgment of the Court (Grand Chamber) of 29 June 2010 — European Commission v Technische Glaswerke Ilmenau GmbH, Republic of Finland, Kingdom of Sweden (Appeals — Access to documents of the institutions — Regulation (EC) No 1049/2001 — Documents relating to procedures for reviewing State aid — Exception concerning protection of the purposes of investigations — Duty of the institution concerned to carry out a concrete, individual examination of the content of the documents covered by the application for access)

2

2010/C 234/03

Case C-441/07 P: Judgment of the Court (Grand Chamber) of 29 June 2010 — European Commission v Alrosa Company Ltd (Appeals — Dominant position — Regulation (EC) No 1/2003 — World market in rough diamonds — Individual commitments by a company to cease purchasing rough diamonds from another company — Decision making a company’s individual commitments binding and terminating the proceedings)

3

2010/C 234/04

Case C-28/08 P: Judgment of the Court (Grand Chamber) of 29 June 2010 — European Commission v The Bavarian Lager Co. Ltd, European Data Protection Supervisor (Appeal — Access to the documents of the institutions — Document concerning a meeting held in the context of a procedure for failure to fulfil obligations — Protection of personal data — Regulation (EC) No 45/2001 — Regulation (EC) No 1049/2001)

3

2010/C 234/05

Case C-171/08: Judgment of the Court (First Chamber) of 8 July 2010 — European Commission v Portuguese Republic (Failure of a Member State to fulfil obligations — Articles 56 EC and 43 EC — Free movement of capital — Portuguese State’s golden shares in Portugal Telecom SGPS SA — Restrictions on the acquisition of holdings and on the management of a privatised company — State measure)

4

2010/C 234/06

Case C-194/08: Judgment of the Court (Third Chamber) of 1 July 2010 (reference for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — Susanne Gassmayr v Bundesminister für Wissenschaft und Forschung (Social policy — Directive 92/85/EEC — Introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding — Articles 5(3) and 11(1) to (3) — Direct effect — Pregnant worker granted leave during her pregnancy — Worker on maternity leave — Right to payment of an on-call duty allowance)

4

2010/C 234/07

Case C-334/08: Judgment of the Court (Second Chamber) of 8 July 2010 — European Commission v Italian Republic (Failure of a Member State to fulfil obligations — Union’s own resources — Refusal to make available to the Union own resources corresponding to certain unlawful customs authorisations — Force majeure — Fraudulent conduct by the customs authorities — Liability of the Member States — Lawfulness of the entry of established entitlements in a separate account)

5

2010/C 234/08

Case C-393/08: Judgment of the Court (First Chamber) of 1 July 2010 (reference for a preliminary ruling from the Tribunale Amministrativo Regionale del Lazio — Italy) — Emanuela Sbarigia v Azienda USL RM/A, Comune di Roma, Assiprofar — Associazione Sindacale Proprietari Farmacia, Ordine dei Farmacisti della Provincia di Roma (National legislation governing opening times and closing days of pharmacies — Exemption — Power of decision of the competent authorities)

6

2010/C 234/09

Case C-407/08 P: Judgment of the Court (Second Chamber) of 1 July 2010 — Knauf Gips KG, formerly Gebrüder Knauf Westdeutsche Gipswerke KG v European Commission (Appeal — Agreements, decisions and concerted practices — Plasterboard — Access to the file — Inculpatory and exculpatory evidence — Concept of undertaking — Economic unit — Company responsible for the economic unit’s actions — Argument raised for the first time during the judicial proceedings)

6

2010/C 234/10

Case C-428/08: Judgment of the Court (Grand Chamber) of 6 July 2010 (reference for a preliminary ruling from the Rechtbank’s Gravenhage — Netherlands) — Monsanto Technology LLC v Cefetra BV, Cefetra Feed Service BV, Cefetra Futures BV, Alfred C. Toepfer International GmbH (Industrial and commercial property — Legal protection of biotechnological inventions — Directive 98/44/EC — Article 9 — Patent protecting a product containing or consisting of genetic information — Material incorporating the product — Protection — Conditions)

7

2010/C 234/11

Case C-442/08: Judgment of the Court (Fourth Chamber) of 1 July 2010 — European Commission v Federal Republic of Germany (Failure of a State to fulfil its obligations — EEC-Hungary Association Agreement — Subsequent verification — Failure to comply with rules on origin — Decision of the authorities of the exporting State — Appeal — Commission inspection mission — Customs duties — Post-clearance recovery — Own resources — Making available — Default interest)

8

2010/C 234/12

Joined Cases C-447/08 and C-448/08: Judgment of the Court (Fourth Chamber) of 8 July 2010 (reference for a preliminary ruling from the Svea hovrätt — Sweden) — Criminal proceedings against Otto Sjöberg (C-447/08), Anders Gerdin (C-448/08) (Freedom to provide services — Gambling — Offer of gambling via the internet — Promotion of gambling organised in other Member States — Activities reserved to public or non-profit-making bodies — Criminal penalties)

8

2010/C 234/13

Case C-471/08: Judgment of the Court (Third Chamber) of 1 July 2010 (reference for a preliminary ruling from the Helsingin käräjäoikeus — Finland) — Sanna Maria Parviainen v Finnair Oyj (Social policy — Directive 92/85/EEC — Protection of the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding — Articles 5(2) and 11(1) — Worker temporarily transferred to another job during her pregnancy — Compulsory transfer because of a risk to her safety or health and that of her child — Pay less than the average pay received before the transfer — Previous pay made up of a basic salary and various supplementary allowances — Calculation of the salary to which a pregnant worker is entitled during the period of her temporary transfer)

9

2010/C 234/14

Case C-526/08: Judgment of the Court (Grand Chamber) of 29 June 2010 — European Commission v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Admissibility — Non bis in idem — Res judicata — Articles 226 EC and 228 EC — Article 29 of the Rules of Procedure — Language of the case — Directive 91/676/EEC — Protection of waters against pollution caused by nitrates from agricultural sources — Non-compliance of national measures with the rules relating to the periods, conditions and techniques of land application of fertiliser — Minimum storage capacity for liquid manure — Prohibition on land application on steeply sloping ground — Techniques ensuring a uniform and effective land application of fertiliser)

10

2010/C 234/15

Case C-558/08: Judgment of the Court (First Chamber) of 8 July 2010 (reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands)) — Portakabin Ltd, Portakabin B.V. v Primakabin B.V. (Trade marks — Keyword advertising on the internet — Directive 89/104/EEC — Articles 5 to 7 — Display of advertisements on the basis of a keyword identical with a trade mark — Display of advertisements on the basis of keywords reproducing a trade mark with minor spelling mistakes — Advertising for second-hand goods — Goods manufactured and placed on the market by the proprietor of the trade mark — Exhaustion of the rights conferred by the trade mark — Affixing of labels bearing the name of the reseller and removal of labels bearing the trade mark — Advertising, on the basis of another person’s trade mark, for second-hand goods including, in addition to goods manufactured by the proprietor of the trade mark, goods from another source)

10

2010/C 234/16

Case C-35/09: Judgment of the Court (Second Chamber) of 1 July 2010 (reference for a preliminary ruling from the Corte Suprema di Cassazione — Italy) — Ministero dell’Economia e delle Finanze, Agenzia delle Entrate v Paolo Speranza (Indirect taxation — Tax on the increase in share capital — Article 4(1)(c) of Directive 69/335/EEC — National legislation making registration of the instrument recording an increase in the capital of a company subject to payment of duty — The recipient company and the notary jointly and severally liable — No capital contribution in fact made — Limitation of means of proof)

11

2010/C 234/17

Case C-99/09: Judgment of the Court (Fourth Chamber) of 1 July 2010 (reference for a preliminary ruling from the Sąd Najwyższy (Poland)) — Polska Telefonia Cyfrowa sp. z o.o. v Prezes Urzędu Komunikacji Elektronicznej (Telecommunication services — Directive 2002/22/EC — Article 30(2) — Portability of telephone numbers — Power of the national regulatory authorities — Direct charge to the subscriber — Disincentive — Taking costs into consideration)

12

2010/C 234/18

Case C-233/09: Judgment of the Court (First Chamber) of 1 July 2010 (reference for a preliminary ruling from the Hof van beroep te Antwerpen — Belgium) — Gerhard Dijkman, Maria Dijkman-Lavaleije v Belgische Staat (Freedom to provide services — Free movement of capital — Direct taxation — Difference in treatment according to the place of investment)

13

2010/C 234/19

Case C-246/09: Judgment of the Court (Second Chamber) of 8 July 2010 (reference for a preliminary ruling from the Landesarbeitsgericht Hamburg (Germany)) — Susanne Bulicke v Deutsche Büro Service GmbH (Directive 2000/78/EC — Articles 8 and 9 — National procedure for the enforcement of obligations under the Directive — Period within which a claim must be lodged — Principles of equivalence and effectiveness — Principle of non-reduction of an earlier level of protection)

13

2010/C 234/20

Case C-343/09: Judgment of the Court (Fourth Chamber) of 8 July 2010 (reference for a preliminary ruling from the High Court of Justice of England and Wales, Queen’s Bench Division (Administrative Court) — United Kingdom) — Afton Chemical Limited v Secretary of State for Transport (Reference for a preliminary ruling — Validity — Directive 2009/30/EC — Article 1(8) — Directive 98/70/EC — Article 8a — Atmospheric pollution — Fuels — Use of metallic additives in fuels — Limit for methylcyclopentadienyl manganese tricarbonyl (MMT) content — Labelling — Impact assessment — Manifest error of assessment — Precautionary principle — Proportionality — Equal treatment — Legal certainty — Admissibility)

14

2010/C 234/21

Case C-363/09: Judgment of the Court (Sixth Chamber) of 1 July 2010 — European Commission v Kingdom of Spain (Failure of a Member State to fulfil obligations — Directive 91/444/EEC — Plant protection products — Application for authorisation to place on the market — Data protection)

15

2010/C 234/22

Case C-550/09: Judgment of the Court (Grand Chamber) of 29 June 2010 (reference for a preliminary ruling from the Oberlandesgericht Düsseldorf (Germany)) — Criminal proceedings against E, F (Common foreign and security policy — Specific restrictive measures directed against certain persons and entities with a view to combating terrorism — Common Position 2001/931/CFSP — Regulation (EC) No 2580/2001 — Articles 2 and 3 — Inclusion of an organisation on the list of persons, groups and entities implicated in acts of terrorism — Transfer to an organisation, by members of that organisation, of funds originating from the collection of donations and the sale of publications)

15

2010/C 234/23

Case C-211/10 PPU: Judgment of the Court (Third Chamber) of 1 July 2010 (reference for a preliminary ruling from the Oberster Gerichtshof — Austria) — Doris Povse v Mauro Alpago (Judicial cooperation in civil matters — Matrimonial matters and matters of parental responsibility — Regulation (EC) No 2201/2003 — Unlawful removal of a child — Provisional measures relating to right to take parental decisions — Rights of custody — Judgment ordering the return of the child — Enforcement — Jurisdiction — Urgent preliminary ruling procedure)

16

2010/C 234/24

Case C-517/08 P: Order of the Court of 15 April 2010 — Makhteshim-Agan Holding BV, Alfa Agricultural Supplies SA, Aragonesas Agro, SA v European Commission, Bayer CropScience AG, European Crop Protection Association (ECPA), Kingdom of Spain (Appeal — Directive 91/414/EEC — Non-inclusion of endosulfan in Annex I to that directive — Withdrawal of marketing authorisations — Appeal manifestly unfounded)

17

2010/C 234/25

Case C-39/09 P: Order of the Court of 22 March 2010 — Société des plantations de Mbanga SA (SPM) v Council of the European Union, European Commission (Appeal — Article 119 of the Rules of Procedure of the Court of Justice — Non-contractual liability of the Community — Common organisation of the banana market — Arrangements for importing bananas originating in ACP countries into the Community — Loss allegedly suffered by an independent producer — Failure to comply with the rules on competition in the field of the common agricultural policy — Infringement of general principles of law and, in particular, of the principle of sound administration — Appeal manifestly inadmissible or manifestly unfounded)

17

2010/C 234/26

Case C-91/09: Order of the Court of 26 March 2010 (reference for a preliminary ruling from the Bundesgerichtshof (Germany)) — Eis.de GmbH v BBY Vertriebsgesellschaft mbH (First subparagraph of Article 104(3) of the Rules of Procedure — Trade marks — Internet — Keyword advertising — Display, on the basis of a keyword identical to a trade mark, of an advert of a competitor to the proprietor of that trade mark — Directive 89/104/EEC — Article 5(1)(a))

18

2010/C 234/27

Case C-193/09 P: Order of the Court (Eighth Chamber) of 4 March 2010 — Kaul GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Bayer AG (Appeal — Application for registration of Community word mark ARCOL — Opposition by proprietor of Community word mark CAPOL — Implementation by OHIM of a judgment annulling a decision of its Boards of Appeal — Right to be heard — Likelihood of confusion — Minimal degree of similarity of the marks required — Rejection for manifest irrelevance of new evidence adduced before the Board of Appeal — Articles 8(1)(b), 61(2), 63(6), 73, second sentence, and 74(2) of Regulation No 40/94)

18

2010/C 234/28

Case C-332/09 P: Order of the Court of 23 April 2010 — Office for Harmonisation in the Internal Market (Trade Marks and Designs) v Frosch Touristik GmbH, DSR touristik GmbH (Appeal — Community trade mark — Regulation (EC) No 40/94 — Community word mark FLUGBÖRSE — Invalidity proceedings — Material date for the examination of an absolute ground for invalidity)

19

2010/C 234/29

Case C-451/09 P: Order of the Court of 12 May 2010 — Pigasos Alieftiki Naftiki Etairia v Council of the European Union and European Commission (Appeal — Non-contractual liability — Proof of Community origin of products fished by a vessel owned by a company registered under Greek law — Failure to adopt provisions permitting the customs authorities of the Member States to accept documents issued by a non-Member State, other than form T2M)

19

2010/C 234/30

Case C-514/09 P: Appeal brought on 11 December 2009 by Hubert Ségaud against the Order of the Court of First Instance (Sixth Chamber) of 29 October 2009 in Case T-249/09 Ségaud v European Commission

20

2010/C 234/31

Case C-214/10: Reference for a preliminary ruling from the Landesarbeitsgericht Hamm (Germany) lodged on 4 May 2010 — KHS AG v Winfried Schulte

20

2010/C 234/32

Case C-244/10: Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 19 May 2010 — Mesopotamia Broadcast A/S METV v Federal Republic of Germany

20

2010/C 234/33

Case C-245/10: Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 19 May 2010 — ROJ TV A/S v Federal Republic of Germany

21

2010/C 234/34

Case C-250/10: Reference for a preliminary ruling from the Finanzgericht Düsseldorf (Germany) lodged on 20 May 2010 — Haltergemeinschaft LBL GbR v Hauptzollamt Düsseldorf

21

2010/C 234/35

Case C-263/10: Reference for a preliminary ruling from the Tribunalul Gorj (Romania) lodged on 27 May 2010 — Iulian Andrei Nisipeanu v Direcția Generală a Finanțelor Publice Gorj, Administrația Finanțelor Publice Târgu-Cărbunești, Administrația Fondului Pentru Mediu

22

2010/C 234/36

Case C-271/10: Reference for a preliminary ruling from the Raad van State (Belgium) lodged on 31 May 2010 — Vereniging van Educatieve en Wetenschappelijke Auteurs (VEWA) v Belgische Staat

22

2010/C 234/37

Case C-280/10: Reference for a preliminary ruling from the Naczelny Sąd Administracyjny (Republic of Poland), lodged on 4 June 2010 — Kopalnia Odkrywkowa Polski Trawertyn P. Granatowicz, M. Wąsiewicz (a partnership) v Dyrektor Izby Skarbowej w Poznaniu

23

2010/C 234/38

Case C-281/10 P: Appeal brought on 4 June 2010 by PepsiCo, Inc. against the judgment of the General Court (Fifth Chamber) delivered on 18 March 2010 in Case T-9/07: Grupo Promer Mon Graphic SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs), PepsiCo, Inc.

23

2010/C 234/39

Case C-282/10: Reference for a preliminary ruling from the Cour de cassation (France) lodged on 7 June 2010 — Maribel Dominguez v Centre informatique du Centre Ouest Atlantique, Prefect of the Centre region

24

2010/C 234/40

Case C-283/10: Reference for a preliminary ruling from the Înalta Curte de Casație și Justiție (Romania) lodged on 7 June 2010 — Circul Globus București (Circ & Variete Globus București) v Uniunea Compozitorilor și Muzicologilor din România — Asociația pentru Drepturi de Autor — U.C.M.R. — A.D.A.

25

2010/C 234/41

Case C-299/10: Reference for a preliminary ruling from the Tribunal Judicial de Amares (Portugal) lodged on 17 June 2010 — Cristiano Marques Vieira v Companhia de Seguros Tranquilidade SA

25

2010/C 234/42

Case C-300/10: Reference for a preliminary ruling from the Tribunal da Relação de Guimarães (Portugal) lodged on 17 June 2010 — Vítor Hugo Marques Almeida v Companhia de Seguros Fidelidade-Mundial SA, Jorge Manuel da Cunha Carvalheira, Paulo Manuel Carvalheira, Fundo de Garantia Automóvel

26

2010/C 234/43

Case C-305/10: Action brought on 25 June 2010 — European Commission v Grand Duchy of Luxembourg

26

2010/C 234/44

Case C-310/10: Reference for a preliminary ruling from the Curtea de Apel Bacău (Romania) lodged on 29 June 2010 — Ministerul Justiției și Libertăților Cetățenești v Ștefan Agafiței and Others

27

2010/C 234/45

Case C-316/10: Reference for a preliminary ruling from the Vestre Landsret (Denmark) lodged on 1 July 2010 — Danske Svineproducenter v Justitsministeriet

28

2010/C 234/46

Case C-342/10: Action brought on 7 July 2010 — European Commission v Republic of Finland

28

2010/C 234/47

Case C-343/10: Action brought on 7 July 2010 — European Commission v Kingdom of Spain

29

2010/C 234/48

Case C-349/10 P: Appeal brought on 9 July 2010 by Claro, S.A. against the judgment delivered by the General Court (Fifth Chamber) on 28 April 2010 in Case T-225/09 Claro, S.A. v OHIM and Telefónica, S.A.

29

2010/C 234/49

Case C-566/08: Order of the President of the Court of 25 February 2010 — European Parliament v Council of the European Union

30

2010/C 234/50

Case C-572/08: Order of the President of the First Chamber of the Court of 6 May 2010 — European Commission v Italian Republic

30

2010/C 234/51

Case C-147/09: Order of the President of the Court of 29 April 2010 (reference for a preliminary ruling from the Oberlandesgericht Wien (Austria)) — Ronald Seunig v Maria Hölzel

30

General Court

2010/C 234/52

Case T-331/06: Judgment of the General Court of 8 July 2010 — Evropaïki Dynamiki v EEA (Public service contracts — EEA tendering procedure — Provision of information technology consultancy services — Rejection of the tender — Action for annulment — Jurisdiction of the Court — Award criteria set out in the tender specifications — Sub-criteria — Manifest error of assessment — Obligation to state the reasons on which a decision is based)

31

2010/C 234/53

Case T-12/08 P-RENV-RX: Judgment of the General Court of 8 July 2010 — M v EMA (Appeal — Civil service — Review of the judgment of the General Court — Whether the state of the proceedings permits final judgment to be given)

31

2010/C 234/54

Case T-85/08: Judgment of the General Court of 9 July 2010 — Exalation v OHIM (Vektor-Lycopin) (Community trade mark — Application for Community word mark Vektor-Lycopin — Absolute grounds for refusal — Lack of distinctive character — Descriptive character — Article 7(1)(b) and (c) of Regulation (EC) No 40/94 (now Article 7(1)(b) and (c) of Regulation (EC) No 207/2009))

32

2010/C 234/55

Case T-160/08 P: Judgment of the General Court of 8 July 2010 — Commission v Putterie-De-Beukelaer (Appeal — Civil Service — Officials — Annulment at first instance of the career development report — 2005 reporting period — Rules applicable — Heading potential — Evaluation procedure — Attestation procedure)

32

2010/C 234/56

Case T-385/08: Judgment of the General Court of 8 July 2010 — Trautwein v OHIM (Representation of a dog) (Community trade mark — Application for a Community figurative mark representing a dog — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 40/94 (now Article 7(1)(c) of Regulation (EC) No 207/2009))

32

2010/C 234/57

Case T-386/08: Judgment of the General Court of 8 July 2010 — Trautwein v OHIM (Representation of a horse) (Community trade mark — Application for a Community figurative mark representing a horse — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 40/94 (now Article 7(1)(c) of Regulation (EC) No 207/2009))

33

2010/C 234/58

Case T-396/08: Judgment of the General Court of 8 July 2010 — Freistaat Sachsen and Land Sachsen-Anhalt v Commission (State aid — Training aid — Decision declaring the aid to be in part compatible and in part incompatible with the common market — Need for the aid — Positive external effects — Obligation to give reasons)

33

2010/C 234/59

Case T-430/08: Judgment of the General Court of 9 July 2010 — Grain Millers v OHIM — Grain Millers (GRAIN MILLERS) (Community trade mark — Opposition proceedings — Application for Community word mark GRAIN MILLERS — Earlier national business name Grain Millers and its figurative representation — Partial refusal to register — Relative ground for refusal — Likelihood of confusion — Article 8(4) of Regulation (EC) No 40/94 (now Article 8(4) of Regulation (EC) No 207/2009))

34

2010/C 234/60

Case T-510/08: Judgment of the General Court of 9 July 2010 — Toqueville v OHIM — Schiesaro (TOCQUEVILLE 13) (Community trade mark — Revocation proceedings — Community word mark TOCQUEVILLE 13 — Failure to comply with the time-limit for appealing against a revocation decision — Application for restitutio in integrum — Article 78 of Regulation (EC) No 40/94 (now Article 81 of Regulation (EC) No 207/2009))

34

2010/C 234/61

Case T-30/09: Judgment of the General Court of 8 July 2010 — Engelhorn v OHIM — The Outdoor Group (peerstorm) (Community trade mark — Opposition proceedings — Application for the Community word mark peerstorm — Earlier Community and national word marks PETER STORM — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009) — Genuine use of the earlier marks — Articles 15 and 43(2) of Regulation No 40/94 (now Articles 15 and 42(2) of Regulation No 207/2009))

35

2010/C 234/62

Case T-368/09 P: Judgment of the General Court of 8 July 2010 — Sevenier v Commission (Appeal — Civil service — Officials — Resignation — Commission’s refusal to accept the withdrawal of the resignation and refer the matter to the invalidity committee — Time-limit for complaint — Lateness — No excusable error)

35

2010/C 234/63

Case T-570/08: Order of the General Court of 14 July 2010 — Deutsche Post v Commission (Action for annulment — State aid — Information injunction — Non-actionable measure — Inadmissibility)

35

2010/C 234/64

Case T-571/08: Order of the General Court of 14 July 2010 — Germany v Commission (Action for annulment — State aid — Information injunction — Non-actionable measure — Inadmissibility)

36

2010/C 234/65

Case T-166/09 P: Order of the General Court of 8 July 2010 — Marcuccio v Commission (Appeal — Civil Service — Officials — Order of referral — Decision which cannot be the object of an appeal — Action for damages — Pre-litigation procedure — Procedural defects — Appeal in part manifestly inadmissible and in part manifestly unfounded)

36

2010/C 234/66

Case T-349/09: Order of the General Court of 6 July 2010 — PAGO International v OHIM — Tirol Milch (Pago) (Community trade mark — Proceedings for revocation — Revocation of the decision of the Board of Appeal — Disappearance of the subject-matter of the proceedings — No need to adjudicate)

37

2010/C 234/67

Case T-401/09: Order of the General Court of 6 July 2010 — Marcuccio v Court of Justice (Action for annulment — Rejection by the Court of Justice of a request for compensation — Action for damages — Service of an appeal to the applicant’s former representative — Absence of harm — Action in part manifestly inadmissible and in part manifestly devoid of any basis in law)

37

2010/C 234/68

Cases T-84/10 R and T-223/10 R: Order of the President of the General Court of 25 June 2010 — Regione Puglia v Commission (Application for interim measures — Decision to reduce Community financial assistance — Debit note — Application to suspend the operation of a measure — No urgency)

38

2010/C 234/69

Case T-177/10 R: Order of the President of the General Court of 9 July 2010 — Alcoa Trasformazioni v Commission (Interim measures — State aid — Preferential electricity tariffs — Decision declaring the aid incompatible with the common market and ordering its recovery — Application for suspension of operation of a measure — No urgency)

38

2010/C 234/70

Case T-211/10: Order of the General Court of 8 July 2010 — Strålfors v OHIM (ID SOLUTIONS) (Action for annulment — Application initiating proceedings — Formal requirements — Manifest inadmissibility)

38

2010/C 234/71

Case T-212/10: Order of the General Court of 8 July 2010 — Strålfors v OHIM (IDENTIFICATION SOLUTIONS) (Action for annulment — Application initiating proceedings — Formal requirements — Manifest inadmissibility)

39

2010/C 234/72

Case T-210/10: Action brought on 5 May 2010 — Condé v Council

39

2010/C 234/73

Case T-243/10: Action brought on 26 May 2010 — Rungis Express/HABM — Žito (MARESTO)

40

2010/C 234/74

Case T-258/10: Action brought on 10 June 2010 — France Télécom v Commission

40

2010/C 234/75

Case T-259/10: Action brought on 8 June 2010 — Ax v Council

41

2010/C 234/76

Case T-267/10: Action brought on 16 June 2010 — Land Wien v Commission

42

2010/C 234/77

Case T-269/10: Action brought on 14 June 2010 — LIS v Commission

42

2010/C 234/78

Case T-274/10: Action brought on 22 June 2010 — Suez Environnement and Lyonnaise des eaux France v Commission

43

2010/C 234/79

Case T-275/10: Action brought on 22 June 2010 — mPAY24 GmbH v OHIM — ULTRA d.o.o. Proizvodnja elektronskih naprav (MPAY 24)

44

2010/C 234/80

Case T-276/10: Action brought on 22 June 2010 — El Coto De Rioja v OHIM — Álvarez Serrano (COTO DE GOMARIZ)

45

2010/C 234/81

Case T-279/10: Action brought on 21 June 2010 — K-Mail Order v OHIM — IVKO (MEN’Z)

45

2010/C 234/82

Case T-280/10: Action brought on 25 June 2010 — Milux v OHMI (ANEURYSMCONTROL)

46

2010/C 234/83

Case T-281/10: Action brought on 25 June 2010 — Milux v OHMI (APPETITECONTROL)

47

2010/C 234/84

Case T-282/10: Action brought on 25 June 2010 — Milux v OHMI (STOMACONTROL)

47

2010/C 234/85

Case T-283/10: Action brought on 25 June 2010 — Milux v OHMI (BMICONTROL)

48

2010/C 234/86

Case T-284/10: Action brought on 25 June 2010 — Milux v OHMI (IMPLANTCONTROL)

48

2010/C 234/87

Case T-285/10: Action brought on 25 June 2010 — Milux v OHMI (CHEMOCONTROL)

49

2010/C 234/88

Case T-287/10: Action brought on 25 June 2010 — Unilever España and Unilever v OHMI — Med Trans G. Poulias-S. Brakatselos (MED FRIGO S.A.)

49

2010/C 234/89

Case T-290/10: Action brought on 30 June 2010 — Sports Warehouse/HABM (TENNIS WAREHOUSE)

50

2010/C 234/90

Case T-291/10: Action brought on 26 June 2010 — Martin v Commission

51

2010/C 234/91

Case T-295/10: Action brought on 7 July 2010 — Camara v Council

51

2010/C 234/92

Case T-299/10: Action brought on 15 July 2010 — Babcock Noell v European Joint Undertaking for ITER and the Development of Fusion Energy

52

2010/C 234/93

Case T-178/06: Order of the General Court of 29 June 2010 — Bavaria v Council

53

2010/C 234/94

Case T-286/07: Order of the General Court of 30 June 2010 — Torres v OHIM — Torres de Anguix (A TORRES de ANGUIX)

53

2010/C 234/95

Case T-115/08: Order of the General Court of 29 June 2010 — Gourmet Burger Kitchen v OHIM (GOURMET BURGER KITCHEN)

54

2010/C 234/96

Case T-121/09: Order of the General Court of 13 July 2010 — Al Shanfari v Council and Commission

54

2010/C 234/97

Case T-361/09: Order of the General Court of 30 June 2010 — Centraal bureau voor de statistiek v Commission

54

2010/C 234/98

Case T-112/10: Order of the General Court of 5 July 2010 — Prionics v Commission and EFSA

54

European Union Civil Service Tribunal

2010/C 234/99

Case F-64/06: Judgment of the Civil Service Tribunal (Second Chamber) of 8 July 2010 — Bergström v Commission (Staff case — Appointment — Members of the temporary staff appointed as officials — Candidates names included on a reserve list prior to the entry into force of the new Staff Regulations — Transitional rules on grading upon recruitment — Grading pursuant to the new less favourable rules — Article 5(4) and Article 12(3) of Annex XIII to the Staff Regulations)

55

2010/C 234/00

Case F-67/06: Judgment of the Civil Service Tribunal (Second Chamber) of 8 July 2010 — Lesniak v Commission (Civil Service — Officials — Appointment — Temporary agents appointed as officials — Candidates placed on a reserve list prior to the entry into force of the new Staff Regulations — Transitional rules governing classification in grade at the time of recruitment — Classification in grade pursuant to the new, less favourable rules — Article 5(4) and Article 12(3) of Annex XIII to the Staff Regulations)

55

2010/C 234/01

Case F-139/06: Judgment of the Civil Service Tribunal (Second Chamber) of 8 July 2010 — Kurrer v Commission (Civil Service — Officials — Appointment — Temporary agents appointed as officials — Candidates placed on a reserve list prior to the entry into force of the new Staff Regulations — Transitional rules governing classification in grade at the time of recruitment — Classification in grade pursuant to the new, less favourable rules — Article 5(4) and Article 12(3) of Annex XIII to the Staff Regulations)

56

2010/C 234/02

Case F-53/08: Judgment of the Civil Service Tribunal (Plenary Formation) of 5 May 2010 — Bouillez and Others v Council (Staff cases — Officials — Promotion — 2007 promotion procedure — Interest in bringing proceedings — Promotion decision — Liste of promoted officials — Consideration of the comparative merits — Criterion of the level of responsibility held — Application for annulment of the promotion decisions — Balance of interests)

56

2010/C 234/03

Case F-89/08: Judgment of the Civil Service Tribunal (Third Chamber) of 24 February 2010 — P v Parliament (Staff case — Temporary staff — European Parliament — Dismissal — Loss of confidence)

57

2010/C 234/04

Case F-2/09: Judgment of the Civil Service Tribunal (Third Chamber) of 24 February 2010 — Menghi v ENISA (Civil Service — Temporary staff — Dismissal following end of the probationary period — Psychological harassment)

57

2010/C 234/05

Case F-55/09: Judgment of the Civil Service Tribunal (First Chamber) of 11 May 2010 — Maxwell v Commission (Staff case — Officials — Secondment in the interests of the service — Leave on personal grounds — Accommodation and education expenses — Action for damages — Liability for a wrongful act — Unjust enrichment)

57

2010/C 234/06

Case F-78/09: Order of the Civil Service Tribunal (First Chamber) of 22 June 2010 — Marcuccio v Commission (Staff cases — Officials — Action for damages — Reimbursement of costs — Availability of a parallel remedy — Manifestly inadmissible)

58

2010/C 234/07

Case F-34/10: Action brought on 26 May 2010 — Arango Jaramillo and Others v EIB

58

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

EN

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

| 28.8.2010 | EN | Official Journal of the European Union | C 234/1 |
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28.8.2010

EN

Official Journal of the European Union

C 234/1

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2010/C 234/01

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

OJ C 221, 14.8.2010

Past publications

OJ C 209, 31.7.2010

OJ C 195, 17.7.2010

OJ C 179, 3.7.2010

OJ C 161, 19.6.2010

OJ C 148, 5.6.2010

OJ C 134, 22.5.2010

These texts are available on:

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

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V Announcements

COURT PROCEEDINGS

Court of Justice

| 28.8.2010 | EN | Official Journal of the European Union | C 234/2 |
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28.8.2010

EN

Official Journal of the European Union

C 234/2

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Judgment of the Court (Grand Chamber) of 29 June 2010 — European Commission v Technische Glaswerke Ilmenau GmbH, Republic of Finland, Kingdom of Sweden

(Case C-139/07 P) (1)

(Appeals - Access to documents of the institutions - Regulation (EC) No 1049/2001 - Documents relating to procedures for reviewing State aid - Exception concerning protection of the purposes of investigations - Duty of the institution concerned to carry out a concrete, individual examination of the content of the documents covered by the application for access)

2010/C 234/02

Language of the case: German

Parties

Appellant: European Commission (represented by: V. Kreuschitz, P. Aalto and C. Docksey, Agents)

Other parties to the proceedings: Technische Glaswerke Ilmenau GmbH (represented by C. Arhold and N. Wimmer, Rechtsanwälte), Republic of Finland (represented by J. Heliskoski, Agent), Kingdom of Sweden (represented by K. Wistrand, S. Johannesson and K. Petkovska, Agents)

Intervener in support of Technische Glaswerke Ilmenau GmbH: Kingdom of Denmark (represented by B. Weis Fogh, Agent)

Re:

Appeal brought against the judgment of the Court of First Instance (Fifth Chamber) of 14 December 2006 in Case T-237/02 Technische Glaswerke Ilmenau v Commission in which the Court of First Instance annulled the decision of the Commission of 28 May 2002 in so far as it refused to grant the applicant access to documents relating to the investigation procedures in respect of State aid granted to it — Application of Regulation (EC) No 1049/2001 to cases involving the investigation of State aid — Obligation of the institution concerned to undertake a specific and individual appraisal of the content of the documents referred to in the request for access

Operative part of the judgment

The Court:

| 1. | Annuls points 1 and 3 of the operative part of the judgment of the Court of First Instance of the European Communities of 14 December 2006 in Case T-237/02 Technische Glaswerke Ilmenau v Commission; |
| --- | --- |

1.

Annuls points 1 and 3 of the operative part of the judgment of the Court of First Instance of the European Communities of 14 December 2006 in Case T-237/02 Technische Glaswerke Ilmenau v Commission;

| 2. | Dismisses the action brought before the Court of First Instance of the European Communities for annulment of the decision of the Commission of the European Communities of 28 May 2002 in so far as it refuses access to documents relating to procedures for reviewing State aid granted to Technische Glaswerke Ilmenau GmbH; |
| --- | --- |

2.

Dismisses the action brought before the Court of First Instance of the European Communities for annulment of the decision of the Commission of the European Communities of 28 May 2002 in so far as it refuses access to documents relating to procedures for reviewing State aid granted to Technische Glaswerke Ilmenau GmbH;

| 3. | Orders Technische Glaswerke Ilmenau GmbH to bear its own costs and pay those incurred by the European Commission, both at first instance and on appeal; |
| --- | --- |

3.

Orders Technische Glaswerke Ilmenau GmbH to bear its own costs and pay those incurred by the European Commission, both at first instance and on appeal;

| 4. | Orders the Kingdom of Denmark, the Republic of Finland and the Kingdom of Sweden to bear their own costs. |
| --- | --- |

4.

Orders the Kingdom of Denmark, the Republic of Finland and the Kingdom of Sweden to bear their own costs.

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(1)  OJ C 140, 23.6.2007.

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/3 |
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28.8.2010

EN

Official Journal of the European Union

C 234/3

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Judgment of the Court (Grand Chamber) of 29 June 2010 — European Commission v Alrosa Company Ltd

(Case C-441/07 P) (1)

(Appeals - Dominant position - Regulation (EC) No 1/2003 - World market in rough diamonds - Individual commitments by a company to cease purchasing rough diamonds from another company - Decision making a company’s individual commitments binding and terminating the proceedings)

2010/C 234/03

Language of the case: English

Parties

Appellant: European Commission (represented by: F. Castillo de la Torre and R. Sauer, Agents)

Other party to the proceedings: Alrosa Company Ltd (represented by: R. Subiotto QC, K. Jones, solicitor-advocate, and S. Mobley, solicitor)

Re:

Appeal against the judgment of the Court of First Instance (Fourth Chamber, Extended Composition) of 11 July 2007 in Case T-170/06 Alrosa v Commission, annulling Decision 2006/520/EC of 22 February 2006 relating to a proceeding pursuant to Articles 82 EC and 54 EEA (Case COMP/B-2/38.381 — De Beers), making binding the commitments given by De Beers to bring to an end its purchases of rough diamonds from Alrosa with effect from 2009, after a period of progressive reduction of the amounts purchased by it from 2006 to 2008, and bringing the proceedings to an end in accordance with Article 9 of Council Regulation (EC) No 1/2003 (OJ 2003 L 1, p. 1)

Operative part of the judgment

The Court:

| 1. | Sets aside the judgment of the Court of First Instance of the European Communities of 11 July 2007 in Case T-170/06 Alrosa v Commission; |
| --- | --- |

1.

Sets aside the judgment of the Court of First Instance of the European Communities of 11 July 2007 in Case T-170/06 Alrosa v Commission;

| 2. | Dismisses the action brought by Alrosa Company Ltd before the Court of First Instance of the European Communities; |
| --- | --- |

2.

Dismisses the action brought by Alrosa Company Ltd before the Court of First Instance of the European Communities;

| 3. | Orders Alrosa Company Ltd to pay the costs both of the appeal and of the proceedings at first instance. |
| --- | --- |

3.

Orders Alrosa Company Ltd to pay the costs both of the appeal and of the proceedings at first instance.

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(1)  OJ C 283, 24.11.2007.

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/3 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/3

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Judgment of the Court (Grand Chamber) of 29 June 2010 — European Commission v The Bavarian Lager Co. Ltd, European Data Protection Supervisor

(Case C-28/08 P) (1)

(Appeal - Access to the documents of the institutions - Document concerning a meeting held in the context of a procedure for failure to fulfil obligations - Protection of personal data - Regulation (EC) No 45/2001 - Regulation (EC) No 1049/2001)

2010/C 234/04

Language of the case: English

Parties

Appellant: European Commission (represented by: C. Docksey and P. Aalto, acting as Agents)

Interveners in support of the appellant: United Kingdom of Great Britain and Northern Ireland (represented by: E. Jenkinson and V. Jackson, acting as Agents, assisted by J. Coppel, Barrister), Council of the European Union (represented by: B. Driessen and C. Fekete, acting as Agents)

Other parties to the proceedings: The Bavarian Lager Co. Ltd (represented by: J. Webber and M. Readings, Solicitors), European Data Protection Supervisor (represented by: H. Hijmans, A. Scirocco and H. Kranenborg, acting as Agents)

Interveners in support of the defendant: Kingdom of Denmark (represented by: B. Weis Fogh, acting as Agent), Republic of Finland (represented by: J. Heliskoski, acting as Agent), Kingdom of Sweden (represented by: K. Petkovska, acting as Agent)

Re:

Appeal against the judgment of the Court of First Instance (Third Chamber) of 8 November 2007 in Case T-194/04 The Bavarian Lager Co. Ltd v Commission of the European Communities annulling the Commission's decision of 18 March 2004 refusing the applicant access to a document concerning a meeting held in connection with proceedings for failure to fulfil Treaty obligations relating to the United Kingdom provisions on the sale of beers from other Member States in public houses in the United Kingdom — Interpretation of Article 4(1)(b) of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43)

Operative part of the judgment

The Court:

| 1. | Sets aside the judgment of the Court of First Instance of the European Communities of 8 November 2007 in Case T-194/04 Bavarian Lager v Commission, in so far as it annuls the Commission’s decision of 18 March 2004, rejecting an application for access to the full minutes of the meeting of 11 October 1996, including all the names, and in so far as it orders the European Commission to pay the costs of The Bavarian Lager Co. Ltd; |
| --- | --- |

1.

Sets aside the judgment of the Court of First Instance of the European Communities of 8 November 2007 in Case T-194/04 Bavarian Lager v Commission, in so far as it annuls the Commission’s decision of 18 March 2004, rejecting an application for access to the full minutes of the meeting of 11 October 1996, including all the names, and in so far as it orders the European Commission to pay the costs of The Bavarian Lager Co. Ltd;

| 2. | Dismisses the action of The Bavarian Lager Co. Ltd against the Commission’s decision of 18 March 2004, rejecting an application for access to the full minutes of the meeting of 11 October 1996, including all the names; |
| --- | --- |

2.

Dismisses the action of The Bavarian Lager Co. Ltd against the Commission’s decision of 18 March 2004, rejecting an application for access to the full minutes of the meeting of 11 October 1996, including all the names;

| 3. | Orders The Bavarian Lager Co. Ltd to pay the costs incurred by the European Commission both in the context of the present appeal proceedings and before the Court of First Instance; |
| --- | --- |

3.

Orders The Bavarian Lager Co. Ltd to pay the costs incurred by the European Commission both in the context of the present appeal proceedings and before the Court of First Instance;

| 4. | Orders the Kingdom of Denmark, the Republic of Finland, the Kingdom of Sweden, the United Kingdom of Great Britain and Northern Ireland, the Council of the European Union and the European Data Protection Supervisor to bear their own costs. |
| --- | --- |

4.

Orders the Kingdom of Denmark, the Republic of Finland, the Kingdom of Sweden, the United Kingdom of Great Britain and Northern Ireland, the Council of the European Union and the European Data Protection Supervisor to bear their own costs.

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(1)  OJ C 79, 29.03.2008.

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/4 |
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28.8.2010

EN

Official Journal of the European Union

C 234/4

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Judgment of the Court (First Chamber) of 8 July 2010 — European Commission v Portuguese Republic

(Case C-171/08) (1)

(Failure of a Member State to fulfil obligations - Articles 56 EC and 43 EC - Free movement of capital - Portuguese State’s ‘golden’ shares in Portugal Telecom SGPS SA - Restrictions on the acquisition of holdings and on the management of a privatised company - State measure)

2010/C 234/05

Language of the case: Portuguese

Parties

Applicant: European Commission (represented by: E. Montaguti, M. Teles Romão and P. Guerra e Andrade, acting as Agents)

Defendant: Portuguese Republic (represented by: L. Inez Fernandes, acting as Agent, and by M. Gorjão Henriques, advogado)

Re:

Failure of a Member State to fulfil its obligations — Infringement of Articles 43 EC and 56 EC — Special shares (‘golden shares’) held by the Portuguese State in Portugal Telecom S.A.

Operative part of the judgment

The Court:

| 1. | Declares that, by maintaining in Portugal Telecom SGPS SA special rights, such as those provided for in that company’s articles of association for the State and other public sector bodies, allocated in connection with the State’s golden shares in Portugal Telecom SGPS SA, the Portuguese Republic has failed to fulfil its obligations under Article 56 EC; |
| --- | --- |

1.

Declares that, by maintaining in Portugal Telecom SGPS SA special rights, such as those provided for in that company’s articles of association for the State and other public sector bodies, allocated in connection with the State’s golden shares in Portugal Telecom SGPS SA, the Portuguese Republic has failed to fulfil its obligations under Article 56 EC;

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

2.

Orders the Portuguese Republic to pay the costs.

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(1)  OJ C 171, 05.07.2008.

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/4 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/4

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Judgment of the Court (Third Chamber) of 1 July 2010 (reference for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — Susanne Gassmayr v Bundesminister für Wissenschaft und Forschung

(Case C-194/08) (1)

(Social policy - Directive 92/85/EEC - Introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding - Articles 5(3) and 11(1) to (3) - Direct effect - Pregnant worker granted leave during her pregnancy - Worker on maternity leave - Right to payment of an on-call duty allowance)

2010/C 234/06

Language of the case: German

Referring court

Verwaltungsgerichtshof

Parties to the main proceedings

Applicant: Susanne Gassmayr

Defendant: Bundesminister für Wissenschaft und Forschung

Re:

Reference for a preliminary ruling — Verwaltungsgerichtshof — Interpretation of Article 11(1), (2) and (3) of Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (OJ 1992 L 348, p. 1) — Direct effect — Right of a female worker, during periods when pregnant workers are prohibited from working and/or during maternity leave, to a non-flat-rate allowance for on-call duty outside normal working hours (‘Journaldienstzulage’).

Operative part of the judgment

| 1. | Article 11(1) of Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) has direct effect and gives rise, for the benefit of individuals, to rights which they can rely on against a Member State which has failed to implement that directive in national law or has implemented it incorrectly, and which the national courts are required to protect; |
| --- | --- |

1.

Article 11(1) of Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) has direct effect and gives rise, for the benefit of individuals, to rights which they can rely on against a Member State which has failed to implement that directive in national law or has implemented it incorrectly, and which the national courts are required to protect;

| 2. | Article 11(1) of Directive 92/85 must be interpreted as not precluding national legislation which provides that a pregnant worker temporarily granted leave from work on account of her pregnancy is entitled to pay equivalent to the average earnings she received during a reference period prior to the beginning of her pregnancy with the exception of the on-call duty allowance; |
| --- | --- |

2.

Article 11(1) of Directive 92/85 must be interpreted as not precluding national legislation which provides that a pregnant worker temporarily granted leave from work on account of her pregnancy is entitled to pay equivalent to the average earnings she received during a reference period prior to the beginning of her pregnancy with the exception of the on-call duty allowance;

| 3. | Article 11(2) and (3) of Directive 92/85 must be interpreted as not precluding national legislation which provides that a worker on maternity leave is entitled to pay equivalent to the average earnings she received during a reference period prior to the beginning of her maternity leave with the exception of the on-call duty allowance. |
| --- | --- |

3.

Article 11(2) and (3) of Directive 92/85 must be interpreted as not precluding national legislation which provides that a worker on maternity leave is entitled to pay equivalent to the average earnings she received during a reference period prior to the beginning of her maternity leave with the exception of the on-call duty allowance.

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(1)  OJ C 197, 2.8.2008.

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/5 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/5

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Judgment of the Court (Second Chamber) of 8 July 2010 — European Commission v Italian Republic

(Case C-334/08) (1)

(Failure of a Member State to fulfil obligations - Union’s own resources - Refusal to make available to the Union own resources corresponding to certain unlawful customs authorisations - Force majeure - Fraudulent conduct by the customs authorities - Liability of the Member States - Lawfulness of the entry of established entitlements in a separate account)

2010/C 234/07

Language of the case: Italian

Parties

Applicant: European Commission (represented by: A. Aresu and A. Caeiros, acting as Agents)

Defendant: Italian Republic (represented by: I. Bruni, acting as Agent, assisted by G. Albenzio, avvocato dello Stato)

Intervener in support of the defendant: Federal Republic of Germany (represented by M. Lumma and B. Klein, acting as Agents)

Re:

Failure of a Member State to fulfil obligations — Infringement of Article 10 EC, Article 8 of Council Decision 2000/597/EC, Euratom of 29 September 2000 on the system of the European Communities’ own resources (OJ 2000 L 253, p. 42), and Articles 2, 6, 10, 11 and 17 of the Council Regulation (EC, Euratom) of 22 May 2000 implementing Decision 94/728/EC, Euratom on the system of the Communities’ own resources (OJ 2000 L 130, p. 11) — Refusal to make available to the Communities the own resources corresponding to certain irregular customs authorisations

Operative part of the judgment

The Court:

| 1. | Declares that, by refusing to place at the disposal of the Commission the own resources corresponding to the customs debt deriving from the issue by the Direzione Compartimentale delle Dogane per le Regioni Puglia e Basilicata, located in Bari, as from 27 February 1997, of irregular authorisations to create and operate Type C customs bonded warehouses in Taranto, followed by consecutive authorisations for processing under customs control and to use the inward processing procedure, until their revocation on 4 December 2002, the Italian Republic has failed to fulfil its obligations under Article 8 of Council Decision 2000/597/EC, Euratom of 29 September 2000 on the system of the European Communities’ own resources and Articles 2, 6, 10, 11 and 17 of Council Regulation (EC, Euratom) No 1150/2000 of 22 May 2000 implementing Decision 94/728/EC, Euratom on the system of the Communities’ own resources; |
| --- | --- |

1.

Declares that, by refusing to place at the disposal of the Commission the own resources corresponding to the customs debt deriving from the issue by the Direzione Compartimentale delle Dogane per le Regioni Puglia e Basilicata, located in Bari, as from 27 February 1997, of irregular authorisations to create and operate Type C customs bonded warehouses in Taranto, followed by consecutive authorisations for processing under customs control and to use the inward processing procedure, until their revocation on 4 December 2002, the Italian Republic has failed to fulfil its obligations under Article 8 of Council Decision 2000/597/EC, Euratom of 29 September 2000 on the system of the European Communities’ own resources and Articles 2, 6, 10, 11 and 17 of Council Regulation (EC, Euratom) No 1150/2000 of 22 May 2000 implementing Decision 94/728/EC, Euratom on the system of the Communities’ own resources;

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

2.

Orders the Italian Republic to pay the costs;

| 3. | Orders the Federal Republic of Germany to bear its own costs. |
| --- | --- |

3.

Orders the Federal Republic of Germany to bear its own costs.

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(1)  OJ C 223, 30.08.2008.

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/6 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/6

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Judgment of the Court (First Chamber) of 1 July 2010 (reference for a preliminary ruling from the Tribunale Amministrativo Regionale del Lazio — Italy) — Emanuela Sbarigia v Azienda USL RM/A, Comune di Roma, Assiprofar — Associazione Sindacale Proprietari Farmacia, Ordine dei Farmacisti della Provincia di Roma

(Case C-393/08) (1)

(National legislation governing opening times and closing days of pharmacies - Exemption - Power of decision of the competent authorities)

2010/C 234/08

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale del Lazio

Parties to the main proceedings

Applicant: Emanuela Sbarigia

Defendants: Azienda USL RM/A, Comune di Roma, Assiprofar — Associazione Sindacale Proprietari Farmacia, Ordine dei Farmacisti della Provincia di Roma

Re:

Reference for a Preliminary Ruling — Tribunale Amministrativo Regionale del Lazio– Interpretation of Arts 49, 81 to 86, 152 and 153 EC — National legislation governing the opening hours and rota arrangements for pharmacies — Pharmacists forbidden to decline annual holiday closure or to remain open beyond the maximum limits set for opening hours

Operative part of the judgment

The reference for a preliminary ruling from the Tribunale amministrativo regionale per il Lazio, made by decision of 21 May 2008, is inadmissible.

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(1)  OJ C 285, 8.11.2008.

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/6 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/6

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Judgment of the Court (Second Chamber) of 1 July 2010 — Knauf Gips KG, formerly Gebrüder Knauf Westdeutsche Gipswerke KG v European Commission

(Case C-407/08 P) (1)

(Appeal - Agreements, decisions and concerted practices - Plasterboard - Access to the file - Inculpatory and exculpatory evidence - Concept of ‘undertaking’ - Economic unit - Company responsible for the economic unit’s actions - Argument raised for the first time during the judicial proceedings)

2010/C 234/09

Language of the case: German

Parties

Appellant: Knauf Gips KG, formerly Gebrüder Knauf Westdeutsche Gipswerke KG (represented by: M. Klusmann and S. Thomas, Rechtsanwälte)

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 (Third Chamber) of 8 July 2008 in Case T-52/03 Knauf Gips v Commission dismissing the action for annulment of Commission Decision 2005/471/EC of 27 November 2002 relating to proceedings under Article 81 of the EC Treaty against BPB PLC, Gebrüder Knauf Westdeutsche Gipswerke KG, Société Lafarge SA and Gyproc Benelux NV (Case COMP/E-1/37.152 — Plasterboard (OJ 2005 L 166, p. 8), or, in the alternative, for reduction of the fine imposed on the appellant — Cartel on the plasterboard market — Failure to take into account a breach of the rights of the defence during the administrative procedure — Infringement of the ‘in dubio pro reo’ principle — Taking into account, for the purpose of calculating the amount of the fine, the turnover of undertakings that do not form part of the same economic unit as the appellant

Operative part of the judgment

The Court:

| 1. | Sets aside the judgment of 8 July 2008 of the Court of First Instance of the European Communities in Case T-52/03 Knauf Gips v Commission in so far as it imputes to Knauf Gips KG liability for the infringements committed by the companies constituting the Knauf Group; |
| --- | --- |

1.

Sets aside the judgment of 8 July 2008 of the Court of First Instance of the European Communities in Case T-52/03 Knauf Gips v Commission in so far as it imputes to Knauf Gips KG liability for the infringements committed by the companies constituting the Knauf Group;

| 2. | Dismisses the rest of the appeal; |
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2.

Dismisses the rest of the appeal;

| 3. | Dismisses the action brought by Knauf Gips KG for annulment of Commission Decision 2005/471/EC of 27 November 2007 relating to proceedings under Article 81 of the EC Treaty against BPB PLC, Gebrüder Knauf Westdeutsche Gipswerke KG, Société Lafarge SA and Gyproc Benelux NV (Case No COMP/E-1/37.152 — Plasterboard); |
| --- | --- |

3.

Dismisses the action brought by Knauf Gips KG for annulment of Commission Decision 2005/471/EC of 27 November 2007 relating to proceedings under Article 81 of the EC Treaty against BPB PLC, Gebrüder Knauf Westdeutsche Gipswerke KG, Société Lafarge SA and Gyproc Benelux NV (Case No COMP/E-1/37.152 — Plasterboard);

| 4. | Orders each party to bear its own costs relating to the appeal and Knauf Gips KG to pay all the costs at first instance. |
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4.

Orders each party to bear its own costs relating to the appeal and Knauf Gips KG to pay all the costs at first instance.

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(1)  OJ C 313, 6.12.2008.

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/7 |
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28.8.2010

EN

Official Journal of the European Union

C 234/7

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Judgment of the Court (Grand Chamber) of 6 July 2010 (reference for a preliminary ruling from the Rechtbank’s Gravenhage — Netherlands) — Monsanto Technology LLC v Cefetra BV, Cefetra Feed Service BV, Cefetra Futures BV, Alfred C. Toepfer International GmbH

(Case C-428/08) (1)

(Industrial and commercial property - Legal protection of biotechnological inventions - Directive 98/44/EC - Article 9 - Patent protecting a product containing or consisting of genetic information - Material incorporating the product - Protection - Conditions)

2010/C 234/10

Language of the case: Dutch

Referring court

Rechtbank’s Gravenhage

Parties to the main proceedings

Applicant: Monsanto Technology LLC

Defendants: Cefetra BV, Cefetra Feed Service BV, Cefetra Futures BV, Alfred C. Toepfer International GmbH

Intervener in support of the defendants: Argentine State

Re:

Reference for a preliminary ruling — Rechtbank ’s-Gravenhage — Interpretation of Article 9 of Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions (OJ 1998 L 213, p. 13) — Scope of the protection conferred by the patent — Product (a DNA sequence) forming part of a material (soy meal) imported into the European Union — Absolute protection conferred on the DNA sequence by national legislation — Patent granted before the Directive was adopted — Articles 27 and 30 of the TRIPS Agreement

Operative part of the judgment

| 1. | Article 9 of Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions is to be interpreted as not conferring patent right protection in circumstances such as those of the case in the main proceedings, in which the patented product is contained in the soy meal, where it does not perform the function for which it is patented, but did perform that function previously in the soy plant, of which the meal is a processed product, or would possibly again be able to perform that function after it had been extracted from the soy meal and inserted into the cell of a living organism. |
| --- | --- |

1.

Article 9 of Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions is to be interpreted as not conferring patent right protection in circumstances such as those of the case in the main proceedings, in which the patented product is contained in the soy meal, where it does not perform the function for which it is patented, but did perform that function previously in the soy plant, of which the meal is a processed product, or would possibly again be able to perform that function after it had been extracted from the soy meal and inserted into the cell of a living organism.

| 2. | Article 9 of the Directive effects an exhaustive harmonisation of the protection it confers, with the result that it precludes the national patent legislation from offering absolute protection to the patented product as such, regardless of whether it performs its function in the material containing it. |
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2.

Article 9 of the Directive effects an exhaustive harmonisation of the protection it confers, with the result that it precludes the national patent legislation from offering absolute protection to the patented product as such, regardless of whether it performs its function in the material containing it.

| 3. | Article 9 of the Directive precludes the holder of a patent issued prior to the adoption of that directive from relying on the absolute protection for the patented product accorded to it under the national legislation then applicable. |
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3.

Article 9 of the Directive precludes the holder of a patent issued prior to the adoption of that directive from relying on the absolute protection for the patented product accorded to it under the national legislation then applicable.

| 4. | Articles 27 and 30 of the Agreement on Trade-Related Aspects of Intellectual Property Rights, constituting Annex 1C to the Agreement establishing the World Trade Organisation (WTO), signed at Marrakesh on 15 April 1994 and approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) do not affect the interpretation given of Article 9 of the Directive. |
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4.

Articles 27 and 30 of the Agreement on Trade-Related Aspects of Intellectual Property Rights, constituting Annex 1C to the Agreement establishing the World Trade Organisation (WTO), signed at Marrakesh on 15 April 1994 and approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) do not affect the interpretation given of Article 9 of the Directive.

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(1)  OJ C 313, 06.12.2008.

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/8 |
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28.8.2010

EN

Official Journal of the European Union

C 234/8

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Judgment of the Court (Fourth Chamber) of 1 July 2010 — European Commission v Federal Republic of Germany

(Case C-442/08) (1)

(Failure of a State to fulfil its obligations - EEC-Hungary Association Agreement - Subsequent verification - Failure to comply with rules on origin - Decision of the authorities of the exporting State - Appeal - Commission inspection mission - Customs duties - Post-clearance recovery - Own resources - Making available - Default interest)

2010/C 234/11

Language of the case: German

Parties

Applicant: European Commission (represented by: A. Caeiros and B. Conte, acting as Agents)

Defendant: Federal Republic of Germany (represented by: M. Lumma and B. Klein, acting as Agents)

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 2, 6, 9, 10 and 11 of Council Regulation (EEC, Euratom) No 1552/89 of 29 May 1989 implementing Decision 88/376/EEC, Euratom on the system of the Communities’ own resources (OJ 1989 L 155, p. 1), and the corresponding provisions of Council Regulation (EC, Euratom) No 1150/2000 of 22 May 2000 implementing Decision 94/728/EC, Euratom on the system of the Communities’ own resources (OJ 2000 L 130, p. 1) — Late payment of the Communities’ own resources in the event of subsequent collection of import tariffs and refusal to pay default interest — Obligation of the importing Member State not to delay implementation of the procedure for the subsequent collection of import tariffs for goods whose certificate of origin was revoked by the authorities of the exporting State — Obligation of the importing Member State to pay default interest due in the event of late entry of the own resources payable in respect of tariff claims time-barred as a result of the inactivity of those authorities during the legal proceedings brought in the exporting State for the annulment of the decisions revoking the certificates of origin

Operative part of the judgment

The Court:

| 1. | Declares that, by allowing customs claims to become time-barred, despite the receipt of a mutual assistance communication, paying the own resources owed in this connection late and refusing to pay the default interest payable, the Federal Republic of Germany has failed to fulfil its obligations under Articles 2, 6 and 9 to 11 of Council Regulation (EEC, Euratom) No 1552/89 of 29 May 1989 implementing Decision 88/376/EEC, Euratom on the system of the Communities’ own resources and the same articles of Council Regulation (EC, Euratom) No 1150/2000 of 22 May 2000 implementing Decision 94/728/EC, Euratom on the system of the Communities’ own resources; |
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1.

Declares that, by allowing customs claims to become time-barred, despite the receipt of a mutual assistance communication, paying the own resources owed in this connection late and refusing to pay the default interest payable, the Federal Republic of Germany has failed to fulfil its obligations under Articles 2, 6 and 9 to 11 of Council Regulation (EEC, Euratom) No 1552/89 of 29 May 1989 implementing Decision 88/376/EEC, Euratom on the system of the Communities’ own resources and the same articles of Council Regulation (EC, Euratom) No 1150/2000 of 22 May 2000 implementing Decision 94/728/EC, Euratom on the system of the Communities’ own resources;

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

Orders the Federal Republic of Germany to pay the costs.

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(1)  OJ C 6, 10.1.2009.

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/8 |
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28.8.2010

EN

Official Journal of the European Union

C 234/8

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Judgment of the Court (Fourth Chamber) of 8 July 2010 (reference for a preliminary ruling from the Svea hovrätt — Sweden) — Criminal proceedings against Otto Sjöberg (C-447/08), Anders Gerdin (C-448/08)

(Joined Cases C-447/08 and C-448/08) (1)

(Freedom to provide services - Gambling - Offer of gambling via the internet - Promotion of gambling organised in other Member States - Activities reserved to public or non-profit-making bodies - Criminal penalties)

2010/C 234/12

Language of the case: Swedish

Referring court

Svea hovrätt

Parties in the main proceedings

Otto Sjöberg (C-447/08), Anders Gerdin (C-448/08)

Re:

References for a preliminary ruling — Svea Hovrätt — Interpretation of Arts. 12, 43, 49 and 54 EC — National legislation prohibiting, by means of criminal penalties, the promotion of participation in a lottery only in the case where it is organised in another Member State

Operative part of the judgment

| 1. | Article 49 EC must be interpreted as not precluding legislation of a Member State, such as that at issue in the main actions, which prohibits the advertising to residents of that State of gambling organised for the purposes of profit by private operators in other Member States; |
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1.

Article 49 EC must be interpreted as not precluding legislation of a Member State, such as that at issue in the main actions, which prohibits the advertising to residents of that State of gambling organised for the purposes of profit by private operators in other Member States;

| 2. | Article 49 EC must be interpreted as precluding legislation of a Member State subjecting gambling to a system of exclusive rights, according to which the promotion of gambling organised in another Member State is subject to stricter penalties than the promotion of gambling operated on national territory without a licence. It is for the referring court to ascertain whether that is true of the national legislation at issue in the main actions. |
| --- | --- |

2.

Article 49 EC must be interpreted as precluding legislation of a Member State subjecting gambling to a system of exclusive rights, according to which the promotion of gambling organised in another Member State is subject to stricter penalties than the promotion of gambling operated on national territory without a licence. It is for the referring court to ascertain whether that is true of the national legislation at issue in the main actions.

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(1)  OJ C 327, 20.12.2008.

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/9 |
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28.8.2010

EN

Official Journal of the European Union

C 234/9

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Judgment of the Court (Third Chamber) of 1 July 2010 (reference for a preliminary ruling from the Helsingin käräjäoikeus — Finland) — Sanna Maria Parviainen v Finnair Oyj

(Case C-471/08) (1)

(Social policy - Directive 92/85/EEC - Protection of the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding - Articles 5(2) and 11(1) - Worker temporarily transferred to another job during her pregnancy - Compulsory transfer because of a risk to her safety or health and that of her child - Pay less than the average pay received before the transfer - Previous pay made up of a basic salary and various supplementary allowances - Calculation of the salary to which a pregnant worker is entitled during the period of her temporary transfer)

2010/C 234/13

Language of the case: Finnish

Referring court

Helsingin käräjäoikeus

Parties to the main proceedings

Applicant: Sanna Maria Parviainen

Defendant: Finnair Oyj

Re:

Reference for a preliminary ruling — Helsingin käräjäoikeus — Interpretation of Article 11(1) of Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (OJ 1992 L 348, p. 1) — Air hostess having worked as a purser, transferred on account of her pregnancy to ground activities which pay less than the post occupied before the transfer — Maintenance of remuneration equivalent to the remuneration received prior to the transfer

Operative part of the judgment

Article 11(1) of Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) must be interpreted as meaning that a pregnant worker who, in accordance with Article 5(2) thereof, has been temporarily transferred on account of her pregnancy to a job in which she performs tasks other than those she performed prior to that transfer, is not entitled to the pay she received on average prior to that transfer. In addition to the maintenance of her basic salary, such a worker is entitled, pursuant to Article 11(1), to pay components or supplementary allowances relating to her professional status, such as allowances relating to her seniority, her length of service and her professional qualifications. Although Article 11(1) of Directive 92/85 does not preclude the use of a method of calculating remuneration to be paid to such a worker based on the average amount of the allowances linked to working conditions of all the air crew in the same pay grade during a given reference period, the failure to take account of those pay components or supplementary allowances must be regarded as contrary to the latter provision.

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(1)  OJ C 19, 24.1.2009.

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/10 |
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28.8.2010

EN

Official Journal of the European Union

C 234/10

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Judgment of the Court (Grand Chamber) of 29 June 2010 — European Commission v Grand Duchy of Luxembourg

(Case C-526/08) (1)

(Failure of a Member State to fulfil obligations - Admissibility - Non bis in idem - Res judicata - Articles 226 EC and 228 EC - Article 29 of the Rules of Procedure - Language of the case - Directive 91/676/EEC - Protection of waters against pollution caused by nitrates from agricultural sources - Non-compliance of national measures with the rules relating to the periods, conditions and techniques of land application of fertiliser - Minimum storage capacity for liquid manure - Prohibition on land application on steeply sloping ground - Techniques ensuring a uniform and effective land application of fertiliser)

2010/C 234/14

Language of the case: French

Parties

Applicant: European Commission (represented by: S. Pardo Quintillán, N. von Lingen and B. Smulders, acting as Agents)

Defendant: Grand Duchy of Luxembourg (represented by: C. Schiltz, acting as Agent, and P. Kinsch, avocat)

Re:

Failure to fulfil obligations — Failure to adopt the laws, regulations and administrative provisions necessary to comply fully and properly with Articles 4 and 5, in conjunction with Annex II A(1) and Annex III 1(1), Annex II A(5) and Annex III 1(2), Annex II A(2) and Annex II A(6) of Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources (OJ 1991 L 375, p. 1) — Procedures, conditions and periods of land application of fertilisers — Minimum manure storage capacity — Prohibition of land application on steeply sloping grounds — Techniques for ensuring uniform and efficient land application of fertilisers

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Articles 4 and 5 of Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources, in conjunction with Annex II A(1), (2), (5) and (6), and Annex III(1)(1) and (2) thereto, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive; |
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1.

Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Articles 4 and 5 of Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources, in conjunction with Annex II A(1), (2), (5) and (6), and Annex III(1)(1) and (2) thereto, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;

| 2. | Orders the Grand Duchy of Luxembourg to pay the costs. |
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2.

Orders the Grand Duchy of Luxembourg to pay the costs.

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(1)  OJ C 44, 21.2.2009.

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/10 |
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28.8.2010

EN

Official Journal of the European Union

C 234/10

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Judgment of the Court (First Chamber) of 8 July 2010 (reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands)) — Portakabin Ltd, Portakabin B.V. v Primakabin B.V.

(Case C-558/08) (1)

(Trade marks - Keyword advertising on the internet - Directive 89/104/EEC - Articles 5 to 7 - Display of advertisements on the basis of a keyword identical with a trade mark - Display of advertisements on the basis of keywords reproducing a trade mark with ‘minor spelling mistakes’ - Advertising for second-hand goods - Goods manufactured and placed on the market by the proprietor of the trade mark - Exhaustion of the rights conferred by the trade mark - Affixing of labels bearing the name of the reseller and removal of labels bearing the trade mark - Advertising, on the basis of another person’s trade mark, for second-hand goods including, in addition to goods manufactured by the proprietor of the trade mark, goods from another source)

2010/C 234/15

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicants: Portakabin Ltd, Portakabin B.V.

Defendant: Primakabin B.V.

Re:

Reference for a preliminary ruling — Hoge Raad der Nederlanden — Interpretation of Articles 5(1)(a), 5(5), 6(1)(b) and (c) and 7 of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1) — Right of the proprietor of a trade mark to oppose unlawful use of his trade mark — Use — Concept — Use of the trade mark as a search term for the purpose of carrying out, via a search engine, an internet search for goods covered by that mark — Display of a link to the website of a reseller of goods covered by the trade mark

Operative part of the judgment

| 1. | Article 5(1) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks, as amended by the Agreement on the European Economic Area of 2 May 1992, must be interpreted as meaning that a trade mark proprietor is entitled to prohibit an advertiser from advertising, on the basis of a keyword identical with, or similar to, that mark, which that advertiser has selected for an internet referencing service without the consent of the proprietor, in relation to goods or services identical to those in respect of which the mark is registered, where that advertising does not enable average internet users, or enables them only with difficulty, to ascertain whether the goods or services referred to by the ad originate from the proprietor of the trade mark or from an undertaking economically linked to it or, on the contrary, originate from a third party. |
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1.

Article 5(1) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks, as amended by the Agreement on the European Economic Area of 2 May 1992, must be interpreted as meaning that a trade mark proprietor is entitled to prohibit an advertiser from advertising, on the basis of a keyword identical with, or similar to, that mark, which that advertiser has selected for an internet referencing service without the consent of the proprietor, in relation to goods or services identical to those in respect of which the mark is registered, where that advertising does not enable average internet users, or enables them only with difficulty, to ascertain whether the goods or services referred to by the ad originate from the proprietor of the trade mark or from an undertaking economically linked to it or, on the contrary, originate from a third party.

| 2. | Article 6 of Directive 89/104, as amended by the Agreement on the European Economic Area of 2 May 1992, must be interpreted as meaning that, where use by advertisers of signs identical with, or similar to, trade marks as keywords for an internet referencing service is liable to be prohibited pursuant to Article 5 of that directive, those advertisers cannot, in general, rely on the exception provided for in Article 6(1) in order to avoid such a prohibition. It is, however, for the national court to determine, in the light of the particular circumstances of the case, whether or not there was, in fact, a use, within the terms of Article 6(1), which could be regarded as having been made in accordance with honest practices in industrial or commercial matters. |
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2.

Article 6 of Directive 89/104, as amended by the Agreement on the European Economic Area of 2 May 1992, must be interpreted as meaning that, where use by advertisers of signs identical with, or similar to, trade marks as keywords for an internet referencing service is liable to be prohibited pursuant to Article 5 of that directive, those advertisers cannot, in general, rely on the exception provided for in Article 6(1) in order to avoid such a prohibition. It is, however, for the national court to determine, in the light of the particular circumstances of the case, whether or not there was, in fact, a use, within the terms of Article 6(1), which could be regarded as having been made in accordance with honest practices in industrial or commercial matters.

| 3. | Article 7 of Directive 89/104, as amended by the Agreement on the European Economic Area of 2 May 1992, must be interpreted as meaning that a trade mark proprietor is not entitled to prohibit an advertiser from advertising — on the basis of a sign identical with, or similar to, that trade mark, which that advertiser chose as a keyword for an internet referencing service without the consent of that proprietor — the resale of goods manufactured and placed on the market in the European Economic Area by that proprietor or with his consent, unless there is a legitimate reason, within the meaning of Article 7(2), which justifies him opposing that advertising, such as use of that sign which gives the impression that the reseller and the trade mark proprietor are economically linked or use which is seriously detrimental to the reputation of the mark.
  The national court, which must assess whether or not there is such a legitimate reason in the case before it:






  — | cannot find that the ad gives the impression that the reseller and the trade mark proprietor are economically linked, or that the ad is seriously detrimental to the reputation of that mark, merely on the basis that an advertiser uses another person’s trade mark with additional wording indicating that the goods in question are being resold, such as ‘used’ or ‘second-hand’; |
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3.

Article 7 of Directive 89/104, as amended by the Agreement on the European Economic Area of 2 May 1992, must be interpreted as meaning that a trade mark proprietor is not entitled to prohibit an advertiser from advertising — on the basis of a sign identical with, or similar to, that trade mark, which that advertiser chose as a keyword for an internet referencing service without the consent of that proprietor — the resale of goods manufactured and placed on the market in the European Economic Area by that proprietor or with his consent, unless there is a legitimate reason, within the meaning of Article 7(2), which justifies him opposing that advertising, such as use of that sign which gives the impression that the reseller and the trade mark proprietor are economically linked or use which is seriously detrimental to the reputation of the mark.

The national court, which must assess whether or not there is such a legitimate reason in the case before it:

—

cannot find that the ad gives the impression that the reseller and the trade mark proprietor are economically linked, or that the ad is seriously detrimental to the reputation of that mark, merely on the basis that an advertiser uses another person’s trade mark with additional wording indicating that the goods in question are being resold, such as ‘used’ or ‘second-hand’;

| — | is obliged to find that there is such a legitimate reason where the reseller, without the consent of the proprietor of the trade mark which it uses in the context of advertising for its resale activities, has removed reference to that trade mark from the goods, manufactured and placed on the market by that proprietor, and replaced it with a label bearing the reseller’s name, thereby concealing the trade mark; and |
| --- | --- |

—

is obliged to find that there is such a legitimate reason where the reseller, without the consent of the proprietor of the trade mark which it uses in the context of advertising for its resale activities, has removed reference to that trade mark from the goods, manufactured and placed on the market by that proprietor, and replaced it with a label bearing the reseller’s name, thereby concealing the trade mark; and

| — | is obliged to find that a specialist reseller of second-hand goods under another person’s trade mark cannot be prohibited from using that mark to advertise to the public its resale activities which include, in addition to the sale of second-hand goods under that mark, the sale of other second-hand goods, unless the sale of those other goods, in the light of their volume, their presentation or their poor quality, risks seriously damaging the image which the proprietor has succeeded in creating for its mark. |
| --- | --- |

—

is obliged to find that a specialist reseller of second-hand goods under another person’s trade mark cannot be prohibited from using that mark to advertise to the public its resale activities which include, in addition to the sale of second-hand goods under that mark, the sale of other second-hand goods, unless the sale of those other goods, in the light of their volume, their presentation or their poor quality, risks seriously damaging the image which the proprietor has succeeded in creating for its mark.

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(1)  OJ C 55, 7.3.2009.

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/11 |
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28.8.2010

EN

Official Journal of the European Union

C 234/11

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Judgment of the Court (Second Chamber) of 1 July 2010 (reference for a preliminary ruling from the Corte Suprema di Cassazione — Italy) — Ministero dell’Economia e delle Finanze, Agenzia delle Entrate v Paolo Speranza

(Case C-35/09) (1)

(Indirect taxation - Tax on the increase in share capital - Article 4(1)(c) of Directive 69/335/EEC - National legislation making registration of the instrument recording an increase in the capital of a company subject to payment of duty - The recipient company and the notary jointly and severally liable - No capital contribution in fact made - Limitation of means of proof)

2010/C 234/16

Language of the case: Italian

Referring court

Corte Suprema di Cassazione

Parties to the main proceedings

Applicants: Ministero dell’Economia e delle Finanze, Agenzia delle Entrate

Defendant: Paolo Speranza

Re:

Reference for a preliminary ruling — Corte Suprema di Cassazione — Interpretation of Article 4(1)(c) of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital (OJ, English Special Edition, 1969 (II), p. 412) — Company resolution converting a limited liability company into a public limited company — Duty on the corresponding increase in capital — National legislation imposing joint and several liability for payment of the duty on the company whose capital is increased and the notary

Operative part of the judgment

| 1. | Articles 4(1)(c) and 5(1)(a) of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital, as amended by Council Directive 85/303/EEC of 10 June 1985, must be interpreted as not precluding a Member State from identifying the registration of an instrument recording an increase in the capital of a company as the point at which the chargeable event for capital duty occurs, provided that there remains a connection between the levying of the duty and the actual contribution of assets to the company receiving them. If, at the time when such an instrument is executed, the actual contribution of assets has not been effected and it remains uncertain whether it will be effected, the Member State concerned cannot demand payment of capital duty until the contribution has become definite. The principle of effectiveness must be interpreted as precluding national legislation which restricts, before the tax courts, the means of proving that no contribution was in fact effected to increase the capital of a company, in accordance with the company’s resolution, to the production of a civil judgment that has become final declaring the registration null and void or annulling it, so that capital duty must in any event be paid and can be reimbursed only by means of the production of such a civil judgment. |
| --- | --- |

1.

Articles 4(1)(c) and 5(1)(a) of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital, as amended by Council Directive 85/303/EEC of 10 June 1985, must be interpreted as not precluding a Member State from identifying the registration of an instrument recording an increase in the capital of a company as the point at which the chargeable event for capital duty occurs, provided that there remains a connection between the levying of the duty and the actual contribution of assets to the company receiving them. If, at the time when such an instrument is executed, the actual contribution of assets has not been effected and it remains uncertain whether it will be effected, the Member State concerned cannot demand payment of capital duty until the contribution has become definite. The principle of effectiveness must be interpreted as precluding national legislation which restricts, before the tax courts, the means of proving that no contribution was in fact effected to increase the capital of a company, in accordance with the company’s resolution, to the production of a civil judgment that has become final declaring the registration null and void or annulling it, so that capital duty must in any event be paid and can be reimbursed only by means of the production of such a civil judgment.

| 2. | Directive 69/335, as amended, must be interpreted as not precluding a Member State from providing that the public officer who drafted or certified the instrument recording the increase in capital is jointly and severally liable for payment of capital duty, provided that the officer has the right to bring an action under a right of recourse against the company receiving the capital contribution. |
| --- | --- |

2.

Directive 69/335, as amended, must be interpreted as not precluding a Member State from providing that the public officer who drafted or certified the instrument recording the increase in capital is jointly and severally liable for payment of capital duty, provided that the officer has the right to bring an action under a right of recourse against the company receiving the capital contribution.

---

(1)  OJ C 82, 04.04.2009.

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/12 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/12

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Judgment of the Court (Fourth Chamber) of 1 July 2010 (reference for a preliminary ruling from the Sąd Najwyższy (Poland)) — Polska Telefonia Cyfrowa sp. z o.o. v Prezes Urzędu Komunikacji Elektronicznej

(Case C-99/09) (1)

(Telecommunication services - Directive 2002/22/EC - Article 30(2) - Portability of telephone numbers - Power of the national regulatory authorities - Direct charge to the subscriber - Disincentive - Taking costs into consideration)

2010/C 234/17

Language of the case: Polish

Referring court

Sąd Najwyższy

Parties to the main proceedings

Applicant: Polska Telefonia Cyfrowa sp. z o.o.

Defendant: Prezes Urzędu Komunikacji Elektronicznej

Re:

Reference for a preliminary ruling — Sąd Najwyższy — Interpretation of Article 30(2) of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (OJ 2002 L 108, p. 51) — Portability of telephone numbers — Obligation on the national regulatory authority, when performing the obligation to ensure that the charge to be paid by consumers for use of the porting facility does not act as a disincentive, to take into account the costs incurred by mobile telephone operators in providing that facility

Operative part of the judgment

Article 30(2) of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) is to be interpreted as obliging the national regulatory authority to take account of the costs incurred by mobile telephone network operators in implementing the number portability service when it assesses whether the direct charge to subscribers for the use of that service is a disincentive. However, it retains the power to fix the maximum amount of that charge levied by operators at a level below the costs incurred by them, when a charge calculated only on the basis of those costs is liable to dissuade users from making use of the portability facility.

---

(1)  OJ C 129, 6.6.2009.

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/13 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/13

---

Judgment of the Court (First Chamber) of 1 July 2010 (reference for a preliminary ruling from the Hof van beroep te Antwerpen — Belgium) — Gerhard Dijkman, Maria Dijkman-Lavaleije v Belgische Staat

(Case C-233/09) (1)

(Freedom to provide services - Free movement of capital - Direct taxation - Difference in treatment according to the place of investment)

2010/C 234/18

Language of the case: Dutch

Referring court

Hof van beroep te Antwerpen

Parties to the main proceedings

Applicant: Gerhard Dijkman, Maria Dijkman-Lavaleije

Defendant: Belgische Staat

Re:

Reference for a preliminary ruling — Hof van beroep te Antwerpen (Belgium) — National income tax rules — Supplementary municipal tax calculated on the basis of the amount of income tax — Discharge resulting from withholding tax on movable assets — Different treatment according to the place of investment — Compatibility with Article 56(1) EC

Operative part of the judgment

Article 56 EC precludes legislation of a Member State according to which taxpayers resident in that Member State who receive interest or dividends from investments made in another Member State are subject to a supplementary municipal tax when they have not elected for that income from moveable assets to be paid to them by an intermediary established in their Member State of residence, whereas income of the same type from investments made in their Member State of residence, because it is subject to withholding tax at source, need not be declared and, in that case, is not subject to the supplementary municipal tax.

---

(1)  OJ C 220, 12.9.2009.

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/13 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/13

---

Judgment of the Court (Second Chamber) of 8 July 2010 (reference for a preliminary ruling from the Landesarbeitsgericht Hamburg (Germany)) — Susanne Bulicke v Deutsche Büro Service GmbH

(Case C-246/09) (1)

(Directive 2000/78/EC - Articles 8 and 9 - National procedure for the enforcement of obligations under the Directive - Period within which a claim must be lodged - Principles of equivalence and effectiveness - Principle of non-reduction of an earlier level of protection)

2010/C 234/19

Language of the case: German

Referring court

Landesarbeitsgericht Hamburg

Parties to the main proceedings

Applicant: Susanne Bulicke

Defendant: Deutsche Büro Service GmbH

Re:

Reference for a preliminary ruling — Landesarbeitsgericht Hamburg — Interpretation of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16) and of general principles of Community law — Prohibition of discrimination on the basis of the age at the time of hiring — National legislation laying down a time-limit of two months from receipt of the rejection of the job application, or knowledge of the discrimination, within which to bring an action seeking damages and/or compensation

Operative part of the judgment

| 1. | The primary law of the European Union and Article 9 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as not precluding a national procedural rule under which a victim of discrimination in recruitment on grounds of age must make a claim against the perpetrator of that discrimination within two months in order to obtain compensation for pecuniary or non-pecuniary damage, provided:






  — | firstly, that that time-limit is not less favourable than that applicable to similar domestic actions in employment law, |
| --- | --- | --- |

1.

The primary law of the European Union and Article 9 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as not precluding a national procedural rule under which a victim of discrimination in recruitment on grounds of age must make a claim against the perpetrator of that discrimination within two months in order to obtain compensation for pecuniary or non-pecuniary damage, provided:

—

firstly, that that time-limit is not less favourable than that applicable to similar domestic actions in employment law,

| — | secondly, that the fixing of the point from which that time-limit starts to run does not render practically impossible or excessively difficult the exercise of rights conferred by the Directive. |
| --- | --- |

—

secondly, that the fixing of the point from which that time-limit starts to run does not render practically impossible or excessively difficult the exercise of rights conferred by the Directive.

It is for the national court to ascertain whether those two conditions are met.

| 2. | Article 8 of the Directive must be interpreted as not precluding a national procedural rule, adopted in order to implement the Directive, which has the effect of amending earlier legislation which provided for a time-limit for claiming compensation for discrimination on grounds of sex. |
| --- | --- |

2.

Article 8 of the Directive must be interpreted as not precluding a national procedural rule, adopted in order to implement the Directive, which has the effect of amending earlier legislation which provided for a time-limit for claiming compensation for discrimination on grounds of sex.

---

(1)  OJ C 244, 10.10.2009.

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/14 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/14

---

Judgment of the Court (Fourth Chamber) of 8 July 2010 (reference for a preliminary ruling from the High Court of Justice of England and Wales, Queen’s Bench Division (Administrative Court) — United Kingdom) — Afton Chemical Limited v Secretary of State for Transport

(Case C-343/09) (1)

(Reference for a preliminary ruling - Validity - Directive 2009/30/EC - Article 1(8) - Directive 98/70/EC - Article 8a - Atmospheric pollution - Fuels - Use of metallic additives in fuels - Limit for methylcyclopentadienyl manganese tricarbonyl (MMT) content - Labelling - Impact assessment - Manifest error of assessment - Precautionary principle - Proportionality - Equal treatment - Legal certainty - Admissibility)

2010/C 234/20

Language of the case: English

Referring court

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

Parties to the main proceedings

Applicant: Afton Chemical Limited

Defendant: Secretary of State for Transport

Re:

Reference for a preliminary ruling — High Court of Justice of England & Wales, Queen’s Bench Division (Administrative Court) — Validity of Directive 2009/30/EC of the European Parliament and of the Council of 23 April 2009 amending Directive 98/70/EC as regards the specification of petrol, diesel and gas-oil and introducing a mechanism to monitor and reduce greenhouse gas emissions and amending Council Directive 1999/32/EC as regards the specification of fuel used by inland waterway vessels and repealing Directive 93/12/EEC (OJ 2009 L 140, p. 88) — Validity with regard to the labelling requirement for fuels which contain metallic additives and with regard to the setting of a limit for methylcyclopentadienyl manganese tricarbonyl (MMT) — Manifest error of assessment — Infringement of the principles of proportionality, equal treatment and legal certainty

Operative part of the judgment

Consideration of the questions referred has disclosed nothing capable of affecting the validity of Article 1(8) of Directive 2009/30/EC of the European Parliament and of the Council of 23 April 2009 amending Directive 98/70/EC as regards the specification of petrol, diesel and gas-oil and introducing a mechanism to monitor and reduce greenhouse gas emissions and amending Council Directive 1999/32/EC as regards the specification of fuel used by inland waterway vessels and repealing Directive 93/12/EEC, in so far as it inserts a new Article 8a(2) and 8a(4) to (6) in Directive 98/70/EC of the European Parliament and of the Council of 13 October 1998 relating to the quality of petrol and diesel fuels and amending Council Directive 93/12/EEC.

---

(1)  OJ C 267, 7.11.2009

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/15 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/15

---

Judgment of the Court (Sixth Chamber) of 1 July 2010 — European Commission v Kingdom of Spain

(Case C-363/09) (1)

(Failure of a Member State to fulfil obligations - Directive 91/444/EEC - Plant protection products - Application for authorisation to place on the market - Data protection)

2010/C 234/21

Language of the case: Spanish

Parties

Applicant: European Commission (represented by: L. Parpala and F. Jimeno Fernández, acting as Agents)

Defendant: Kingdom of Spain (represented by: J. López-Medel Bascones, acting as Agent)

Re:

Failure of a Member State to fulfil obligations — Infringement of Article 13 of Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (OJ 1991 L 230, p. 1) — Data accompanying the application — Data use and protection — Confidentiality

Operative part of the judgment

The Court:

| 1. | Declares that by maintaining in force Article 38 of Ley 43/2002 de sanidad vegetal (Law 43/2002 on plant health) of 20 November 2002, the Kingdom of Spain has failed to fulfil its obligations under Article 13 of Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market; |
| --- | --- |

1.

Declares that by maintaining in force Article 38 of Ley 43/2002 de sanidad vegetal (Law 43/2002 on plant health) of 20 November 2002, the Kingdom of Spain has failed to fulfil its obligations under Article 13 of Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market;

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

2.

Orders the Kingdom of Spain to pay the costs.

---

(1)  OJ C 267, 7.11.2009.

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/15 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/15

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Judgment of the Court (Grand Chamber) of 29 June 2010 (reference for a preliminary ruling from the Oberlandesgericht Düsseldorf (Germany)) — Criminal proceedings against E, F

(Case C-550/09) (1)

(Common foreign and security policy - Specific restrictive measures directed against certain persons and entities with a view to combating terrorism - Common Position 2001/931/CFSP - Regulation (EC) No 2580/2001 - Articles 2 and 3 - Inclusion of an organisation on the list of persons, groups and entities implicated in acts of terrorism - Transfer to an organisation, by members of that organisation, of funds originating from the collection of donations and the sale of publications)

2010/C 234/22

Language of the case: German

Referring court

Oberlandesgericht Düsseldorf

Parties in the main proceedings

E, F

Re:

Reference for a preliminary ruling — Oberlandesgericht Düsseldorf — Interpretation of Articles 2 and 3 of Council Regulation (EC) No 2580/2001 of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism (OJ 2001 L 344, p. 70) — Challenge, before the national court, to the validity of a Council decision including an organisation on the list provided for in Article 2(3) of that regulation, where the decision has not been contested by the organisation in question — Scope of the regulation’s provisions prohibiting economic resources from being made available to an organisation included on the list — Transfer of economic resources within the organisation by persons forming part of it

Operative part of the judgment

| 1. | In respect of the period prior to 29 June 2007, the inclusion of Devrimci Halk Kurtulus Partisi-Cephesi (DHKP-C) on the list provided for in Article 2(3) of Council Regulation (EC) No 2580/2001 of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism is illegal and, accordingly, can form no part of the basis for a criminal conviction linked to an alleged infringement of that regulation. |
| --- | --- |

1.

In respect of the period prior to 29 June 2007, the inclusion of Devrimci Halk Kurtulus Partisi-Cephesi (DHKP-C) on the list provided for in Article 2(3) of Council Regulation (EC) No 2580/2001 of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism is illegal and, accordingly, can form no part of the basis for a criminal conviction linked to an alleged infringement of that regulation.

| 2. | Article 2(1)(b) of Regulation No 2580/2001 must be interpreted as covering the transfer to a legal person, group or entity on the list provided for in Article 2(3) of that regulation, by a member of that legal person, group or entity, of funds and other financial assets or economic resources collected or obtained from third persons. |
| --- | --- |

2.

Article 2(1)(b) of Regulation No 2580/2001 must be interpreted as covering the transfer to a legal person, group or entity on the list provided for in Article 2(3) of that regulation, by a member of that legal person, group or entity, of funds and other financial assets or economic resources collected or obtained from third persons.

---

(1)  OJ C 148, 5.6.2010.

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/16 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/16

---

Judgment of the Court (Third Chamber) of 1 July 2010 (reference for a preliminary ruling from the Oberster Gerichtshof — Austria) — Doris Povse v Mauro Alpago

(Case C-211/10 PPU) (1)

(Judicial cooperation in civil matters - Matrimonial matters and matters of parental responsibility - Regulation (EC) No 2201/2003 - Unlawful removal of a child - Provisional measures relating to ‘right to take parental decisions’ - Rights of custody - Judgment ordering the return of the child - Enforcement - Jurisdiction - Urgent preliminary ruling procedure)

2010/C 234/23

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Appellant: Doris Povse

Respondent: Mauro Alpago

Re:

Reference for a preliminary ruling — Oberster Gerichtshof — Interpretation of Articles 10(b)(iv), 11(8), 42(2) and 47(2) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (OJ 2003 L 338, p. 1) — Child abduction — Jurisdiction of courts or tribunals of a Member State to order the return of the child to that State in circumstances where the child has resided more than one year in another Member State and where the courts of the first State have, after the abduction, provisionally awarded custody of the child to the parent who abducted the child — Whether possible to refuse, in the interests of the child, enforcement of the decision ordering the child’s return to the first Member State

Operative part of the judgment

| 1. | Article 10(b)(iv) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, must be interpreted as meaning that a provisional measure does not constitute a ‘judgment on custody that does not entail the return of the child’ within the meaning of that provision, and cannot be the basis of a transfer of jurisdiction to the courts of the Member State to which the child has been unlawfully removed. |
| --- | --- |

1.

Article 10(b)(iv) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, must be interpreted as meaning that a provisional measure does not constitute a ‘judgment on custody that does not entail the return of the child’ within the meaning of that provision, and cannot be the basis of a transfer of jurisdiction to the courts of the Member State to which the child has been unlawfully removed.

| 2. | Article 11(8) of Regulation No 2201/2003 must be interpreted as meaning that a judgment of the court with jurisdiction ordering the return of the child falls within the scope of that provision, even if it is not preceded by a final judgment of that court relating to rights of custody of the child. |
| --- | --- |

2.

Article 11(8) of Regulation No 2201/2003 must be interpreted as meaning that a judgment of the court with jurisdiction ordering the return of the child falls within the scope of that provision, even if it is not preceded by a final judgment of that court relating to rights of custody of the child.

| 3. | The second subparagraph of Article 47(2) of Regulation No 2201/2003 must be interpreted as meaning that a judgment delivered subsequently by a court in the Member State of enforcement which awards provisional rights of custody and is deemed to be enforceable under the law of that State cannot preclude enforcement of a certified judgment delivered previously by the court which has jurisdiction in the Member State of origin and ordering the return of the child. |
| --- | --- |

3.

The second subparagraph of Article 47(2) of Regulation No 2201/2003 must be interpreted as meaning that a judgment delivered subsequently by a court in the Member State of enforcement which awards provisional rights of custody and is deemed to be enforceable under the law of that State cannot preclude enforcement of a certified judgment delivered previously by the court which has jurisdiction in the Member State of origin and ordering the return of the child.

| 4. | Enforcement of a certified judgment cannot be refused in the Member State of enforcement because, as a result of a subsequent change of circumstances, it might be seriously detrimental to the best interests of the child. Such a change must be pleaded before the court which has jurisdiction in the Member State of origin, which should also hear any application to suspend enforcement of its judgment. |
| --- | --- |

4.

Enforcement of a certified judgment cannot be refused in the Member State of enforcement because, as a result of a subsequent change of circumstances, it might be seriously detrimental to the best interests of the child. Such a change must be pleaded before the court which has jurisdiction in the Member State of origin, which should also hear any application to suspend enforcement of its judgment.

---

(1)  OJ C 179, 3.7.2010.

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/17 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/17

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Order of the Court of 15 April 2010 — Makhteshim-Agan Holding BV, Alfa Agricultural Supplies SA, Aragonesas Agro, SA v European Commission, Bayer CropScience AG, European Crop Protection Association (ECPA), Kingdom of Spain

(Case C-517/08 P) (1)

(Appeal - Directive 91/414/EEC - Non-inclusion of endosulfan in Annex I to that directive - Withdrawal of marketing authorisations - Appeal manifestly unfounded)

2010/C 234/24

Language of the case: English

Parties

Appellants: Makhteshim-Agan Holding BV, Alfa Agricultural Supplies SA, Aragonesas Agro, SA (represented by: C. Mereu and K. Van Maldegem, avocats)

Other parties to the proceedings: European Commission, Bayer CropScience AG, European Crop Protection Association (ECPA) (represented by: L. Parpala and N.B. Rasmussen, acting as Agents, C. Mereu, avocat, K. Van Maldegem, avocat, D. Waelbroeck, avocat and N. Rampal, avocate), Kingdom of Spain

Re:

Appeal brought against the judgment of the Court of First Instance (Fourth Chamber) delivered on 9 September 2008 in Case T-75/06 Bayer CropScience AG and Others v Commission by which the Court of First Instance dismissed an action for the annulment of Commission Decision C(2005) 864 of 2 December 2005 concerning the non-inclusion of endosulfan in Annex I to Directive 91/414/EEC and the withdrawal of authorisations for plant protection products containing that active substance [notified under No C(2005) 4611] (OJ 2005 L 317, p. 25)

Operative part of the order

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

1.

The appeal is dismissed.

| 2. | Makhteshim-Agan Holding BV, Alfa Agricultural Supplies SA and Aragonesas Agro SA are ordered to pay the costs. |
| --- | --- |

2.

Makhteshim-Agan Holding BV, Alfa Agricultural Supplies SA and Aragonesas Agro SA are ordered to pay the costs.

| 3. | European Crop Protection Association (ECPA) shall bear its own costs. |
| --- | --- |

3.

European Crop Protection Association (ECPA) shall bear its own costs.

---

(1)  OJ C 19, 24.1.2009.

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/17 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/17

---

Order of the Court of 22 March 2010 — Société des plantations de Mbanga SA (SPM) v Council of the European Union, European Commission

(Case C-39/09 P) (1)

(Appeal - Article 119 of the Rules of Procedure of the Court of Justice - Non-contractual liability of the Community - Common organisation of the banana market - Arrangements for importing bananas originating in ACP countries into the Community - Loss allegedly suffered by an independent producer - Failure to comply with the rules on competition in the field of the common agricultural policy - Infringement of general principles of law and, in particular, of the principle of sound administration - Appeal manifestly inadmissible or manifestly unfounded)

2010/C 234/25

Language of the case: French

Parties

Appellant: Société des plantations de Mbanga SA (SPM) (represented by: A. Farache, avocat)

Other parties to the proceedings: Council of the European Union (represented by: A. De Gregorio Merino, E. Sitbon, Agents), European Commission (represented by: F. Clotuche-Duvieusart, Agent)

Re:

Appeal brought against the judgment of the Court of First Instance (Eighth Chamber) of 13 November 2008 in Case T-128/05 SPM v Council and Commission, by which the Court dismissed the appellant’s action seeking damages for the loss which it suffered as a result of the allegedly illegal rules adopted by the Council and the Commission on the import of bananas into the Community — Non-contractual liability of the Community — Bananas originating in ACP countries — Loss allegedly suffered by an independent producer — Failure to comply with the rules on competition in the field of the common agricultural policy — Infringement of general principles of law and, in particular, of the principle of sound administration

Operative part of the order

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

1.

The appeal is dismissed.

| 2. | Société des plantations de Mbanga SA (SPM) shall pay the costs. |
| --- | --- |

2.

Société des plantations de Mbanga SA (SPM) shall pay the costs.

---

(1)  OJ C 90, 18.4.2009

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/18 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/18

---

Order of the Court of 26 March 2010 (reference for a preliminary ruling from the Bundesgerichtshof (Germany)) — Eis.de GmbH v BBY Vertriebsgesellschaft mbH

(Case C-91/09) (1)

(First subparagraph of Article 104(3) of the Rules of Procedure - Trade marks - Internet - Keyword advertising - Display, on the basis of a keyword identical to a trade mark, of an advert of a competitor to the proprietor of that trade mark - Directive 89/104/EEC - Article 5(1)(a))

2010/C 234/26

Language of the case: German

Referring court

Bundesgerichtshof (Germany)

Parties to the main proceedings

Applicant: Eis.de GmbH

Defendant: BBY Vertriebsgesellschaft mbH

Re:

Reference for a preliminary ruling — Bundesgerichtshof Karlsruhe — Interpretation of Article 5(1)(a) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1) — Inscription of a sign similar to a trade mark with a service provider operating an Internet search engine in order automatically to have displayed on the screen, after entry of that sign as a search term, adverts for goods or services identical to those for which the trade mark in question was registered (‘keyword advertising’) — Absence of authorisation from the proprietor of the trade mark — Classification of that use of the mark as ‘use’ within the meaning of the provision cited above

Operative part of the order

Article 5(1)(a) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks must be interpreted as meaning that the proprietor of a trade mark is entitled to prohibit an advertiser from advertising, on the basis of a keyword identical with that trade mark which that advertiser has, without the consent of the proprietor, selected in connection with an internet referencing service, goods or services identical with those for which that mark is registered, in the case where that advertisement does not enable an average internet user, or enables that user only with difficulty to ascertain whether the goods or services referred to therein originate from the proprietor of the trade mark or an undertaking economically connected to it or, on the contrary, originate from a third party.

---

(1)  OJ C 129, 6.6.2009.

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/18 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/18

---

Order of the Court (Eighth Chamber) of 4 March 2010 — Kaul GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Bayer AG

(Case C-193/09 P) (1)

(Appeal - Application for registration of Community word mark ARCOL - Opposition by proprietor of Community word mark CAPOL - Implementation by OHIM of a judgment annulling a decision of its Boards of Appeal - Right to be heard - Likelihood of confusion - Minimal degree of similarity of the marks required - Rejection for manifest irrelevance of new evidence adduced before the Board of Appeal - Articles 8(1)(b), 61(2), 63(6), 73, second sentence, and 74(2) of Regulation No 40/94)

2010/C 234/27

Language of the case: English

Parties

Appellant: Kaul GmbH (represented by: R. Kunze, Rechtsanwalt and Solicitor)

Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: G. Schneider, Agent), Bayer AG

Re:

Appeal brought against the judgment of the Court of First Instance (Fifth Chamber) of 25 March 2009 in Case T-402/07 Kaul GmbH v OHIM by which the Court of First Instance dismissed an action for annulment brought by the proprietor of the Community word mark ‘CAPOL’ for goods in Class 1 against Decision R 782/2000-2 of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 1 August 2007, dismissing for the second time the appeal brought against the decision of the Opposition Division which rejected the opposition brought against the application for registration of the Community word mark ‘ARCOL’ for goods in Classes 1, 17 and 20, following the annulment in Case C-29/05 P OHIM v Kaul of the Third Board of Appeal’s initial decision to reject the opposition

Operative part of the order

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

1.

The appeal is dismissed.

| 2. | Kaul GmbH shall pay the costs. |
| --- | --- |

2.

Kaul GmbH shall pay the costs.

---

(1)  OJ C 193, 15.8.2009.

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/19 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/19

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Order of the Court of 23 April 2010 — Office for Harmonisation in the Internal Market (Trade Marks and Designs) v Frosch Touristik GmbH, DSR touristik GmbH

(Case C-332/09 P) (1)

(Appeal - Community trade mark - Regulation (EC) No 40/94 - Community word mark FLUGBÖRSE - Invalidity proceedings - Material date for the examination of an absolute ground for invalidity)

2010/C 234/28

Language of the case: German

Parties

Appellant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: B. Schmidt, acting as Agent)

Other parties to the proceedings: Frosch Touristik GmbH (represented by: H. Lauf, Rechtsanwalt), DSR touristik GmbH

Re:

Appeal against the judgment of the Court of First Instance (Fifth Chamber) of 3 June 2009 in Case T-189/07 Frosch Touristik v OHIM — DSR touristik (FLUGBÖRSE), by which the Court annulled the decision of the Fourth Board of Appeal of OHIM of 22 March 2007 dismissing the appeal by the proprietor of the Community word mark ‘FLUGBÖRSE’ against the decision of the Cancellation Division declaring that mark partially invalid — Determination of the material date for the examination of an absolute ground for invalidity in invalidity proceedings

Operative part of the order

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

1.

The appeal is dismissed.

| 2. | The Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) is ordered to pay the costs. |
| --- | --- |

2.

The Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) is ordered to pay the costs.

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(1)  OJ C 256, 24.10.2009.

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/19 |
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28.8.2010

EN

Official Journal of the European Union

C 234/19

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Order of the Court of 12 May 2010 — Pigasos Alieftiki Naftiki Etairia v Council of the European Union and European Commission

(Case C-451/09 P) (1)

(Appeal - Non-contractual liability - Proof of Community origin of products fished by a vessel owned by a company registered under Greek law - Failure to adopt provisions permitting the customs authorities of the Member States to accept documents issued by a non-Member State, other than form T2M)

2010/C 234/29

Language of the case: Greek

Parties

Appellant: Pigasos Alieftiki Naftiki Etairia (represented by: N. Skandamis and E. Perakis, dikigoroi)

Other parties to the proceedings: Council of the European Union (represented by: F. Florindo Gijón and M. Balta, acting as Agents), European Commission (represented by: M. Patakia and B.-R. Killmann, acting as Agents)

Re:

Appeal against the judgment of the Court of First Instance (Seventh Chamber) of 16 September 2009 in Case T-162/07 Pigasos Alieftiki Naftiki Etairia v Council and Commission, in which that Court dismissed an action for damages to compensate for the damage alleged to have been suffered by the applicant as a result of the fact that the Council and the Commission did not adopt provisions enabling the customs authorities of a Member State, in this case the Greek customs authorities, to accept as proof of the Community nature of products fished by a Greek vessel belonging to the applicant documents issued by a third State other than the T2M form provided for in Commission Regulation (EEC) No 2454/93 of 2 July 1993 (JO 1993 L 253, p. 1)

Operative part of the order

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

1.

The appeal is dismissed.

| 2. | Pigasos Alieftiki Naftiki Etairia is ordered to pay the costs. |
| --- | --- |

2.

Pigasos Alieftiki Naftiki Etairia is ordered to pay the costs.

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(1)  OJ C 24, 30.1.2010.

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/20 |
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28.8.2010

EN

Official Journal of the European Union

C 234/20

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Appeal brought on 11 December 2009 by Hubert Ségaud against the Order of the Court of First Instance (Sixth Chamber) of 29 October 2009 in Case T-249/09 Ségaud v European Commission

(Case C-514/09 P)

()

2010/C 234/30

Language of the case: French

Parties

Appellant: Hubert Ségaud (represented by: J.-P Ekeu, avocat)

Other party to the proceedings: European Commission

By order of 21May 2010, the Court of Justice (Eight Chamber) dismissed the appeal and ordered Mr Ségaud to bear his own costs.

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/20 |
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28.8.2010

EN

Official Journal of the European Union

C 234/20

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Reference for a preliminary ruling from the Landesarbeitsgericht Hamm (Germany) lodged on 4 May 2010 — KHS AG v Winfried Schulte

(Case C-214/10)

()

2010/C 234/31

Language of the case: German

Referring court

Landesarbeitsgericht Hamm

Parties to the main proceedings

Applicant: KHS AG

Defendant: Winfried Schulte

Question referred

Is Article 7(1) of Directive 2003/88/EC (1) to be interpreted as precluding national legislation and/or practices under which entitlement to minimum paid annual leave expires at the end of the reference period and/or carry-over period even in the case where the worker has been unfit for work over a prolonged period (and that prolonged period of unfitness for work has the result that that worker could have accumulated entitlement to minimum leave for several years if the possibility of carrying over such entitlement had not been limited in time)? If that question is answered in the negative, must the possibility of carrying over leave entitlement exist for a period of at least 18 months?

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(1)  Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (OJ 2003 L 299, p. 9).

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/20 |
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28.8.2010

EN

Official Journal of the European Union

C 234/20

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Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 19 May 2010 — Mesopotamia Broadcast A/S METV v Federal Republic of Germany

(Case C-244/10)

()

2010/C 234/32

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicant: Mesopotamia Broadcast A/S METV

Defendant: Federal Republic of Germany

Question referred

A ruling is sought from the Court of Justice of the European Union on whether and, if so, the circumstances under which the application of national legislation concerning the prohibition of an association for infringement of the principles of international understanding falls within the field coordinated by Council Directive 89/552/EEC (1) of 3 October 1989 on the coordination of certain provisions laid down by Law, Regulation or Administrative Action in Member States concerning the pursuit of television broadcasting activities, as amended by Directive 97/36/EC (2) of 30 June 1997 and, thus, is precluded by Article 2a of the directive?

---

(1)  Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by Law, Regulation or Administrative Action in Member States concerning the pursuit of television broadcasting activities (OJ 1989 L 298, p. 23).

(2)  Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997 amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (OJ 1997 L 202, p. 60).

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/21 |
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28.8.2010

EN

Official Journal of the European Union

C 234/21

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Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 19 May 2010 — ROJ TV A/S v Federal Republic of Germany

(Case C-245/10)

()

2010/C 234/33

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicant: ROJ TV A/S

Defendant: Federal Republic of Germany

Question referred

A ruling is sought from the Court of Justice of the European Union on whether and, if so, the circumstances under which the application of national legislation concerning the prohibition of an association for infringement of the principles of international understanding falls within the field coordinated by Council Directive 89/552/EEC (1) of 3 October 1989 on the coordination of certain provisions laid down by Law, Regulation or Administrative Action in Member States concerning the pursuit of television broadcasting activities, as amended by Directive 97/36/EC (2) of 30 June 1997 and, thus, is precluded by Article 2a of the directive?

---

(1)  Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by Law, Regulation or Administrative Action in Member States concerning the pursuit of television broadcasting activities (OJ 1989 L 298, p. 23).

(2)  Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997 amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (OJ 1997 L 202, p. 60).

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/21 |
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28.8.2010

EN

Official Journal of the European Union

C 234/21

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Reference for a preliminary ruling from the Finanzgericht Düsseldorf (Germany) lodged on 20 May 2010 — Haltergemeinschaft LBL GbR v Hauptzollamt Düsseldorf

(Case C-250/10)

()

2010/C 234/34

Language of the case: German

Referring court

Finanzgericht Düsseldorf

Parties to the main proceedings

Applicant: Haltergemeinschaft LBL GbR

Defendant: Hauptzollamt Düsseldorf

Question referred

Subject to an affirmative answer to the first question referred by order of the Bundesfinanzhof (Federal Finance Court) on 1 December 2009 in the proceedings for a preliminary ruling already pending before the Court of Justice of the European Union as Case C-79/10, is the person leasing or chartering out his aircraft, including the jet fuel to be provided by him, entitled to the exemption from taxation provided for in Article 14(1)(b) of Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity? (1)

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(1)  OJ 2003 L 283, p. 51

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/22 |
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28.8.2010

EN

Official Journal of the European Union

C 234/22

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Reference for a preliminary ruling from the Tribunalul Gorj (Romania) lodged on 27 May 2010 — Iulian Andrei Nisipeanu v Direcția Generală a Finanțelor Publice Gorj, Administrația Finanțelor Publice Târgu-Cărbunești, Administrația Fondului Pentru Mediu

(Case C-263/10)

()

2010/C 234/35

Language of the case: Romanian

Referring court

Tribunalul Gorj

Parties to the main proceedings

Applicant: Iulian Andrei Nisipeanu

Defendants: Direcția Generală a Finanțelor Publice Gorj, Administrația Finanțelor Publice Târgu-Cărbunești, Administrația Fondului Pentru Mediu

Questions referred

| 1. | Must Article 110 of the Treaty on the Functioning of the European Union be interpreted as meaning that the prohibition in the Treaty on discriminatory internal taxes extends to the tax provided for by the rules enacted in Romania by Government Emergency Order No 50/2008 of 25 April 2008 introducing a pollution tax on vehicles, as amended by Emergency Order No 208/2008 of 8 December 2008, Emergency Order No 218/2008 of 11 December 2008, Emergency Order No 7/2009 of 19 February 2009 and Emergency Order No 117/2009 30 December 2009? |
| --- | --- |

1.

Must Article 110 of the Treaty on the Functioning of the European Union be interpreted as meaning that the prohibition in the Treaty on discriminatory internal taxes extends to the tax provided for by the rules enacted in Romania by Government Emergency Order No 50/2008 of 25 April 2008 introducing a pollution tax on vehicles, as amended by Emergency Order No 208/2008 of 8 December 2008, Emergency Order No 218/2008 of 11 December 2008, Emergency Order No 7/2009 of 19 February 2009 and Emergency Order No 117/2009 30 December 2009?

| 2. | Does Article 110 of the Treaty on the Functioning of the European Union permit Romania to implement in its national legislation, by means of Government Emergency Order No 50/2008, which entered into force on 1 July 2008, the criterion of ‘first registration in Romania’, as laid down by Article 4(a) of the emergency order, and is that criterion an objective requirement, as required by the provisions of the Treaty? |
| --- | --- |

2.

Does Article 110 of the Treaty on the Functioning of the European Union permit Romania to implement in its national legislation, by means of Government Emergency Order No 50/2008, which entered into force on 1 July 2008, the criterion of ‘first registration in Romania’, as laid down by Article 4(a) of the emergency order, and is that criterion an objective requirement, as required by the provisions of the Treaty?

| 3. | Does Article 110 of the Treaty on the Functioning of the European Union authorise Romania, as a Member State of the European Union, to apply, with effect from 1 July 2008, the pollution tax to second-hand vehicles imported from within the European Union or purchased within the European Union which are registered for the first time in Romania, whilst exempting second-hand vehicles purchased in Romania? |
| --- | --- |

3.

Does Article 110 of the Treaty on the Functioning of the European Union authorise Romania, as a Member State of the European Union, to apply, with effect from 1 July 2008, the pollution tax to second-hand vehicles imported from within the European Union or purchased within the European Union which are registered for the first time in Romania, whilst exempting second-hand vehicles purchased in Romania?

| 4. | Does Article 110 of the Treaty on the Functioning of the European Union permit Romania, under the legislation referred to above, to grant exemption from payment of the pollution tax solely in respect of ‘vehicles in category M1 and pollution class Euro 4, with an engine capacity no greater than 2 000 cubic centimetres, and all vehicles in category N1 and pollution class Euro 4, registered for the first time in Romania or in another Member State of the European Union between 15 December 2008 and 31 December 2009’ and to withhold such exemption from new motor vehicles with different characteristics? |
| --- | --- |

4.

Does Article 110 of the Treaty on the Functioning of the European Union permit Romania, under the legislation referred to above, to grant exemption from payment of the pollution tax solely in respect of ‘vehicles in category M1 and pollution class Euro 4, with an engine capacity no greater than 2 000 cubic centimetres, and all vehicles in category N1 and pollution class Euro 4, registered for the first time in Romania or in another Member State of the European Union between 15 December 2008 and 31 December 2009’ and to withhold such exemption from new motor vehicles with different characteristics?

| 5. | Must Article 110 of the Treaty on the Functioning of the European Union be interpreted as permitting Romania to protect its own motor car industry, inasmuch as the pollution tax must be paid only in respect of imported second-hand motor vehicles registered elsewhere in the European Union or purchased elsewhere in the European Union, whilst it is not payable in respect of second-hand motor vehicles that are already registered in Romania and are resold within the territory of Romania? |
| --- | --- |

5.

Must Article 110 of the Treaty on the Functioning of the European Union be interpreted as permitting Romania to protect its own motor car industry, inasmuch as the pollution tax must be paid only in respect of imported second-hand motor vehicles registered elsewhere in the European Union or purchased elsewhere in the European Union, whilst it is not payable in respect of second-hand motor vehicles that are already registered in Romania and are resold within the territory of Romania?

| 6. | If the criterion of ‘first registration in Romania’ laid down in Article 4(a) of Government Emergency Order No 50/2008 cannot be regarded as objective in relation to the stated aim of introducing a pollution tax in accordance with the ‘polluter pays’ principle and that tax, which is linked to that criterion, protects the Romanian motor vehicle manufacturing industry and the Romanian market for second-hand motor vehicles, does the situation described constitute discriminatory taxation, prohibited by Article 110 of the Treaty on the Functioning of the European Union? |
| --- | --- |

6.

If the criterion of ‘first registration in Romania’ laid down in Article 4(a) of Government Emergency Order No 50/2008 cannot be regarded as objective in relation to the stated aim of introducing a pollution tax in accordance with the ‘polluter pays’ principle and that tax, which is linked to that criterion, protects the Romanian motor vehicle manufacturing industry and the Romanian market for second-hand motor vehicles, does the situation described constitute discriminatory taxation, prohibited by Article 110 of the Treaty on the Functioning of the European Union?

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/22 |
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28.8.2010

EN

Official Journal of the European Union

C 234/22

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Reference for a preliminary ruling from the Raad van State (Belgium) lodged on 31 May 2010 — Vereniging van Educatieve en Wetenschappelijke Auteurs (VEWA) v Belgische Staat

(Case C-271/10)

()

2010/C 234/36

Language of the case: Dutch

Referring court

Raad van State van België

Parties to the main proceedings

Applicant: Vereniging van Educatieve en Wetenschappelijke Auteurs (VEWA)

Defendant: Belgische Staat

Question referred

Does Article 5(1) of Council Directive 92/100/EEC (1) of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property, now Article 6(1) of Directive 2006/115/EC (2) of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property, according to which at least authors should obtain a remuneration for public lending, preclude a national provision which sets the remuneration at a flat rate of EUR 1 per adult per year and of EUR 0,5 per minor per year?

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(1)  OJ 1992 L 346, p. 61.

(2)  OJ 2006 L 376, p. 28.

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/23 |
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28.8.2010

EN

Official Journal of the European Union

C 234/23

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Reference for a preliminary ruling from the Naczelny Sąd Administracyjny (Republic of Poland), lodged on 4 June 2010 — Kopalnia Odkrywkowa Polski Trawertyn P. Granatowicz, M. Wąsiewicz (a partnership) v Dyrektor Izby Skarbowej w Poznaniu

(Case C-280/10)

()

2010/C 234/37

Language of the case: Polish

Referring court

Naczelny Sąd Administracyjny

Parties to the main proceedings

Appellant: Kopalnia Odkrywkowa Polski Trawertyn P. Granatowicz, M. Wąsiewicz (a partnership)

Respondent: Dyrektor Izby Skarbowej w Poznaniu

Questions referred

| 1. | Is an entity, in the persons of future partners, which effects investment expenditure before formal registration of the partnership as an entity governed by commercial law or registration for purposes of value added tax, entitled, following registration of the partnership as an entity governed by commercial law and registration for purposes of value added tax, to exercise, pursuant to Article 9 and Articles 168 and 169 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, (1) the right to deduct input tax incurred in connection with investment expenditure which is used for taxable activities carried out within the framework of the partnership? |
| --- | --- |

1.

Is an entity, in the persons of future partners, which effects investment expenditure before formal registration of the partnership as an entity governed by commercial law or registration for purposes of value added tax, entitled, following registration of the partnership as an entity governed by commercial law and registration for purposes of value added tax, to exercise, pursuant to Article 9 and Articles 168 and 169 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, (1) the right to deduct input tax incurred in connection with investment expenditure which is used for taxable activities carried out within the framework of the partnership?

| 2. | Does an invoice documenting incurred investment expenditure which was issued to the partners, and not to the partnership, preclude exercise of the right to deduct input tax incurred in connection with investment expenditure as referred to in Question 1? |
| --- | --- |

2.

Does an invoice documenting incurred investment expenditure which was issued to the partners, and not to the partnership, preclude exercise of the right to deduct input tax incurred in connection with investment expenditure as referred to in Question 1?

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

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/23 |
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28.8.2010

EN

Official Journal of the European Union

C 234/23

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Appeal brought on 4 June 2010 by PepsiCo, Inc. against the judgment of the General Court (Fifth Chamber) delivered on 18 March 2010 in Case T-9/07: Grupo Promer Mon Graphic SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs), PepsiCo, Inc.

(Case C-281/10 P)

()

2010/C 234/38

Language of the case: English

Parties

Appellants: PepsiCo, Inc. (represented by: E. Armijo Chávarri, A. Castán Pérez-Gómez, abogados, V. von Bomhard, Rechtsanwältin)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Grupo Promer Mon Graphic SA

Form of order sought

The appellant claims that the Court should:

| — | Set aside the judgment of the General Court of 18 March 2010 in Case T-9/07, |
| --- | --- |

—

Set aside the judgment of the General Court of 18 March 2010 in Case T-9/07,

| — | Give final judgment on the dispute by rejection the order sought at first instance or, in the alternative, remit the case to the General Court and |
| --- | --- |

—

Give final judgment on the dispute by rejection the order sought at first instance or, in the alternative, remit the case to the General Court and

| — | Order that the costs of the proceedings be borne by the applicant at first instance. |
| --- | --- |

—

Order that the costs of the proceedings be borne by the applicant at first instance.

Pleas in law and main arguments

The appellant submits that the contested judgment should be annulled on the grounds that the General Court violated article 25(1) (d) of Council Regulation (EC) No. 6/2002 (1) by:

| a) | failing to take into account the constraints on the designer in developing the contested design; |
| --- | --- |

a)

failing to take into account the constraints on the designer in developing the contested design;

| b) | wrongly interpreting the notion of the ‘informed user’ and his attention level; |
| --- | --- |

b)

wrongly interpreting the notion of the ‘informed user’ and his attention level;

| c) | applying erroneous criteria in its assessment of ‘different overall impression’; |
| --- | --- |

c)

applying erroneous criteria in its assessment of ‘different overall impression’;

| d) | carrying out a comparison between the designs based on actual products in the file rather than on the designs as registered; |
| --- | --- |

d)

carrying out a comparison between the designs based on actual products in the file rather than on the designs as registered;

| e) | basing the comparison on distorted facts. |
| --- | --- |

e)

basing the comparison on distorted facts.

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(1)  Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs

OJ L 3, p. 1

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/24 |
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28.8.2010

EN

Official Journal of the European Union

C 234/24

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Reference for a preliminary ruling from the Cour de cassation (France) lodged on 7 June 2010 — Maribel Dominguez v Centre informatique du Centre Ouest Atlantique, Prefect of the Centre region

(Case C-282/10)

()

2010/C 234/39

Language of the case: French

Referring court

Cour de cassation

Parties to the main proceedings

Applicant: Maribel Dominguez

Defendants: Centre informatique du Centre Ouest Atlantique, Prefect of the Centre region

Questions referred

| 1. | Must Article 7(1) of Directive 2003/88/EC (1) be interpreted as precluding national provisions or practices which make entitlement to paid annual leave conditional on a minimum of ten days’ (or one month’s) actual work during the reference period? |
| --- | --- |

1.

Must Article 7(1) of Directive 2003/88/EC (1) be interpreted as precluding national provisions or practices which make entitlement to paid annual leave conditional on a minimum of ten days’ (or one month’s) actual work during the reference period?

| 2. | If the answer to the first question is in the affirmative, does Article 7 of Directive 2003/88/EC, which imposes a specific obligation on an employer in so far as it creates entitlement to paid leave for a worker who is absent on health grounds for a period of one year or more, require a national court hearing proceedings between individuals to disregard a conflicting national provision which makes entitlement to paid annual leave conditional on at least ten days’ actual work during the reference year? |
| --- | --- |

2.

If the answer to the first question is in the affirmative, does Article 7 of Directive 2003/88/EC, which imposes a specific obligation on an employer in so far as it creates entitlement to paid leave for a worker who is absent on health grounds for a period of one year or more, require a national court hearing proceedings between individuals to disregard a conflicting national provision which makes entitlement to paid annual leave conditional on at least ten days’ actual work during the reference year?

| 3. | Since Article 7 of Directive 2003/88/EC does not distinguish between workers according to whether their absence from work during the reference period is due to a work-related accident, an occupational disease, an accident on the journey to or from work or a non-occupational disease, are workers entitled, under that directive, to paid leave of the same length whatever the reason for their absence on health grounds, or must that directive be interpreted as not precluding the length of paid leave differing according to the reason for the worker’s absence, since national law provides in certain circumstances for the length of paid annual leave to exceed the minimum of four weeks provided for by the directive? |
| --- | --- |

3.

Since Article 7 of Directive 2003/88/EC does not distinguish between workers according to whether their absence from work during the reference period is due to a work-related accident, an occupational disease, an accident on the journey to or from work or a non-occupational disease, are workers entitled, under that directive, to paid leave of the same length whatever the reason for their absence on health grounds, or must that directive be interpreted as not precluding the length of paid leave differing according to the reason for the worker’s absence, since national law provides in certain circumstances for the length of paid annual leave to exceed the minimum of four weeks provided for by the directive?

---

(1)  Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (OJ 2003 L 299, p. 9).

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/25 |
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28.8.2010

EN

Official Journal of the European Union

C 234/25

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Reference for a preliminary ruling from the Înalta Curte de Casație și Justiție (Romania) lodged on 7 June 2010 — Circul Globus București (Circ & Variete Globus București) v Uniunea Compozitorilor și Muzicologilor din România — Asociația pentru Drepturi de Autor — U.C.M.R. — A.D.A.

(Case C-283/10)

()

2010/C 234/40

Language of the case: Romanian

Referring court

Înalta Curte de Casație și Justiție

Parties to the main proceedings

Applicant: Circul Globus București (Circ & Variete Globus București)

Defendant: Uniunea Compozitorilor și Muzicologilor din România — Asociația pentru Drepturi de Autor — U.C.M.R. — A.D.A.

Question referred

Is Article 3(1) of Directive 2001/29/EC (1) of the European Parliament and of the Council of 22 May 2001 to be interpreted to the effect that ‘communication to the public’ means:

| (a) | exclusively communication to the public where the public is not present at the place where the communication originates, or |
| --- | --- |

(a)

exclusively communication to the public where the public is not present at the place where the communication originates, or

| (b) | also any other communication of a work which is carried out directly in a place open to the public using any means of public performance or direct presentation of the work? |
| --- | --- |

(b)

also any other communication of a work which is carried out directly in a place open to the public using any means of public performance or direct presentation of the work?

In the event that point (a) represents the correct meaning, does that mean that the acts, referred to in point (b), by which works are communicated directly to the public do not fall within the scope of that directive or that they do not constitute communication of a work to the public, but rather the public performance of a work, within the meaning of Article 11(1)(i) of the Berne Convention?

In the event that point (b) represents the correct meaning, does Article 3(1) of the directive permit Member States to make statutory provision for the compulsory collective management of the right to communicate musical works to the public, irrespective of the means of communication used, even though that right can be and is managed individually by authors, no provision being made for authors to be able to exclude their works from collective management?

---

(1)  Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10).

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/25 |
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28.8.2010

EN

Official Journal of the European Union

C 234/25

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Reference for a preliminary ruling from the Tribunal Judicial de Amares (Portugal) lodged on 17 June 2010 — Cristiano Marques Vieira v Companhia de Seguros Tranquilidade SA

(Case C-299/10)

()

2010/C 234/41

Language of the case: Portuguese

Referring court

Tribunal Judicial de Amares

Parties to the main proceedings

Applicant: Cristiano Marques Vieira

Defendant: Companhia de Seguros Tranquilidade SA

Question referred

In a motor vehicle collision in which none of the drivers is liable for the accident on the basis of fault, and which has caused personal injury and material loss to one of the drivers (the injured party claiming compensation, who is a minor), is it contrary to Community law, in particular Article 3(1) of the First Directive (Directive 72/166/EEC), (1) Article 2(1) of the Second Directive (84/5/EEC) (2) and Article 1 of the Third Directive (90/232/EEC), (3) as those provisions have been interpreted by the Court of Justice of the European Communities, for it to be possible to apportion liability for risk (Article 506(1) and (2) of the Código Civil (Portuguese Civil Code)) with a direct impact on the amount of compensation to be awarded to the injured party for the material and non-material loss resulting from the personal injuries suffered (since that apportionment of liability for risk will entail a commensurate reduction in the amount of compensation)?

---

(1)  Council Directive 72/166/EEC of 24 April 1972 on the approximation of the laws of Member States relating to insurance against civil liability in respect of the use of motor vehicles, and to the enforcement of the obligation to insure against such liability (OJ, English Special Edition 1972 (II), p. 360).

(2)  Second Council Directive 84/5/EEC of 30 December 1983 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles (OJ 1984 L 8, p. 17).

(3)  Third Council Directive 90/232/EEC of 14 May 1990 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles (OJ 1990 L 129, p. 33).

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/26 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/26

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Reference for a preliminary ruling from the Tribunal da Relação de Guimarães (Portugal) lodged on 17 June 2010 — Vítor Hugo Marques Almeida v Companhia de Seguros Fidelidade-Mundial SA, Jorge Manuel da Cunha Carvalheira, Paulo Manuel Carvalheira, Fundo de Garantia Automóvel

(Case C-300/10)

()

2010/C 234/42

Language of the case: Portuguese

Referring court

Tribunal da Relação de Guimarães

Parties to the main proceedings

Applicant: Vítor Hugo Marques Almeida

Defendants: Companhia de Seguros Fidelidade-Mundial SA, Jorge Manuel da Cunha Carvalheira, Paulo Manuel Carvalheira, Fundo de Garantia Automóvel

Questions referred

| (a) | Must Articles 3(1) of the First Directive (72/166/EEC), (1) 2(1) of the Second Directive (84/5/EEC) (2) and 1 and 1a of the Third Directive (90/232/EEC) (3) be interpreted to the effect that they preclude national civil law, in particular through the rules laid down in Articles 503(1), 504, 505 and 570 of the Civil Code, from providing that if, when two vehicles collide, the event is not attributable to the fault of either driver, and it gives rise to personal injury to the passenger in one of the vehicles (the injured person seeking compensation), the compensation to which the latter is entitled is to be refused or limited, on the ground that that passenger has contributed to the occurrence of the injury, for he was travelling in the vehicle, in the front passenger seat, without fastening his seat-belt as required by national legislation? |
| --- | --- |

(a)

Must Articles 3(1) of the First Directive (72/166/EEC), (1) 2(1) of the Second Directive (84/5/EEC) (2) and 1 and 1a of the Third Directive (90/232/EEC) (3) be interpreted to the effect that they preclude national civil law, in particular through the rules laid down in Articles 503(1), 504, 505 and 570 of the Civil Code, from providing that if, when two vehicles collide, the event is not attributable to the fault of either driver, and it gives rise to personal injury to the passenger in one of the vehicles (the injured person seeking compensation), the compensation to which the latter is entitled is to be refused or limited, on the ground that that passenger has contributed to the occurrence of the injury, for he was travelling in the vehicle, in the front passenger seat, without fastening his seat-belt as required by national legislation?

| (b) | having regard to the fact that it has been established that when the two vehicles involved collided, because of that collision and because he had not fastened his seat-belt, that passenger struck his head with force against the windscreen, breaking it, which resulted in deep cuts to his head and face? |
| --- | --- |

(b)

having regard to the fact that it has been established that when the two vehicles involved collided, because of that collision and because he had not fastened his seat-belt, that passenger struck his head with force against the windscreen, breaking it, which resulted in deep cuts to his head and face?

| (c) | and having regard to the fact that, one of the vehicles involved not being covered by valid and effective insurance with any insurer at the date of the accident, the defendants and respondents in the proceedings include, in addition to the insurer of the other vehicle involved, the owner of the uninsured vehicle, its driver and the Fundo de Garantia Automóvel, who and which may, in so far as strict liability is concerned, be jointly and severally liable to pay such compensation? |
| --- | --- |

(c)

and having regard to the fact that, one of the vehicles involved not being covered by valid and effective insurance with any insurer at the date of the accident, the defendants and respondents in the proceedings include, in addition to the insurer of the other vehicle involved, the owner of the uninsured vehicle, its driver and the Fundo de Garantia Automóvel, who and which may, in so far as strict liability is concerned, be jointly and severally liable to pay such compensation?

---

(1)  Council Directive 72/166/EEC of 24 April 1972 on the approximation of the laws of Member States relating to insurance against civil liability in respect of the use of motor vehicles, and to the enforcement of the obligation to insure against such liability (OJ, English Special Edition 1972 (II), p. 360).

(2)  Second Council Directive 84/5/EEC of 30 December 1983 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles (OJ 1984 L 8, p. 17).

(3)  Third Council Directive 90/232/EEC of 14 May 1990 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles (OJ 1990 L 129, p. 33).

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/26 |
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28.8.2010

EN

Official Journal of the European Union

C 234/26

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Action brought on 25 June 2010 — European Commission v Grand Duchy of Luxembourg

(Case C-305/10)

()

2010/C 234/43

Language of the case: French

Parties

Applicant: European Commission (represented by: V. Peere and M. van Beek, Agents)

Defendant: Grand Duchy of Luxembourg

Form of order sought

| — | declare that, by failing to adopt the laws, regulations and administrative provisions necessary to ensure compliance with Council Directive 2005/47/EC of 18 July 2005 on the Agreement between the Community of European Railways (CER) and the European Transport Workers’ Federation (ETF) on certain aspects of the working conditions of mobile workers engaged in interoperable cross-border services in the railway sector (1) and, in any event, by not communicating those provisions to the Commission, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive; |
| --- | --- |

—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to ensure compliance with Council Directive 2005/47/EC of 18 July 2005 on the Agreement between the Community of European Railways (CER) and the European Transport Workers’ Federation (ETF) on certain aspects of the working conditions of mobile workers engaged in interoperable cross-border services in the railway sector (1) and, in any event, by not communicating those provisions to the Commission, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;

| — | order the Grand Duchy of Luxembourg to pay the costs. |
| --- | --- |

—

order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

The period within which Directive 2005/47/EC had to be transposed expired on 26 July 2008. On the date on which the present action was brought, however, the defendant had not yet adopted all necessary transposition measures or, in any event, had not communicated them to the Commission.

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(1)  OJ 2005 L 195, p. 15.

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/27 |
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28.8.2010

EN

Official Journal of the European Union

C 234/27

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Reference for a preliminary ruling from the Curtea de Apel Bacău (Romania) lodged on 29 June 2010 — Ministerul Justiției și Libertăților Cetățenești v Ștefan Agafiței and Others

(Case C-310/10)

()

2010/C 234/44

Language of the case: Romanian

Referring court

Curtea de Apel Bacău

Parties to the main proceedings

Appellant: Ministerul Justiției și Libertăților Cetățenești

Respondents: Ștefan Agafiței, Apetroaei Raluca, Bărbieru Marcel, Budeanu Sorin, Chiagă Luminița, Crăciun Mihaela, Curpăn Sorin-Vasile, Dabija Mihaela, Damian Mia-Cristina, Danalache Sorina, Dogaru Oana-Alina, Dorneanu Geanina, Galavan Adina-Cătălina, Grancea Gabriel, Radu (Hobjilă) Mădălina, Iacobuț Nicolae Cătălin, Lăcătușu Roxana, Lupașcu Sergiu, Maftei Smaranda, Mărmureanu Silvia, Oborocianu Maria, Panfil Simona, Pânzaru Oana-Georgeta, Păduraru Laurențiu, Pîrjol-Năstase Elena, Pocovnicu Ioana, Pușcașu Alina, Ștefănescu Cezar, Ștefănescu Roxana, Țimiraș Ciprian, Vintilă Cristina

Intervening Parties: Tribunalul Bacău, Curtea de Apel Bacău, Ministerul Economiei si Finanțelor Publice, Consiliul Național pentru Combaterea Discriminării

Questions referred

| 1. | Do Article 15 of Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (1) and Article 17 of Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation (2) — both transposed into national law by OG (Ordonanța Guvernului (Government legislative decree)) No 137/2000, as republished and amended — preclude national legislation or a judgment of the Curte Constituțională (Constitutional Court) prohibiting the national judicial authorities from awarding to claimants who have been discriminated against the compensation for material and/or non-material damage which is considered appropriate in cases in which the compensation for the damage caused by discrimination relates to salary rights provided for by law and granted to a socio-professional category other than that to which the claimants belong (see, to that effect, judgments of the Curte Constituțională No 1325 of 4 December 2008 and No 146 of 25 February 2010)? |
| --- | --- |

1.

Do Article 15 of Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (1) and Article 17 of Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation (2) — both transposed into national law by OG (Ordonanța Guvernului (Government legislative decree)) No 137/2000, as republished and amended — preclude national legislation or a judgment of the Curte Constituțională (Constitutional Court) prohibiting the national judicial authorities from awarding to claimants who have been discriminated against the compensation for material and/or non-material damage which is considered appropriate in cases in which the compensation for the damage caused by discrimination relates to salary rights provided for by law and granted to a socio-professional category other than that to which the claimants belong (see, to that effect, judgments of the Curte Constituțională No 1325 of 4 December 2008 and No 146 of 25 February 2010)?

| 2. | If the answer to Question 1 is in the affirmative, are the national courts required to await the repeal or amendment of the provisions of national law — and/or a change in the case-law of the Curte Constituțională — which are, ex hypothesi, contrary to the provisions of Community law, or are the courts required to apply Community law, as interpreted by the Court of Justice of the European Union, directly and immediately to the proceedings pending before them, declining to apply any provision of national law or any judgment of the Curte Constituțională which is contrary to the provisions of Community law? |
| --- | --- |

2.

If the answer to Question 1 is in the affirmative, are the national courts required to await the repeal or amendment of the provisions of national law — and/or a change in the case-law of the Curte Constituțională — which are, ex hypothesi, contrary to the provisions of Community law, or are the courts required to apply Community law, as interpreted by the Court of Justice of the European Union, directly and immediately to the proceedings pending before them, declining to apply any provision of national law or any judgment of the Curte Constituțională which is contrary to the provisions of Community law?

---

(1)  Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ 2000 L 180, p. 22).

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

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/28 |
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28.8.2010

EN

Official Journal of the European Union

C 234/28

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Reference for a preliminary ruling from the Vestre Landsret (Denmark) lodged on 1 July 2010 — Danske Svineproducenter v Justitsministeriet

(Case C-316/10)

()

2010/C 234/45

Language of the case: Danish

Referring court

Vestre Landsret

Parties to the main proceedings

Applicant: Danske Svineproducenter

Defendant: Justitsministeriet

Question referred

Is the second paragraph of Article 249 EC [now the second paragraph of Article 267 TFEU] and Article 37 of Council Regulation No 1/2005 (1) on the protection of animals during transport and related operations and amending Directives 64/432/EEC and 93/119/EC and Regulation (EC) No 1255/97, and also Article 3(f) and (g), together with point 1.1(f) and point 1.2 of Chapter II, together with Part D of Chapter VII of Annex I to that regulation to be interpreted as meaning that Member States are precluded from adopting national rules which lay down detailed requirements for internal transport height, inspection height and loading density?

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(1)  Council Regulation (EC) No 1/2005 of 22 December 2004 on the protection of animals during transport and related operations and amending Directives 64/432/EEC and 93/119/EC and Regulation (EC) No 1255/97 (OJ 2005 L 3, p. 1)

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/28 |
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28.8.2010

EN

Official Journal of the European Union

C 234/28

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Action brought on 7 July 2010 — European Commission v Republic of Finland

(Case C-342/10)

()

2010/C 234/46

Language of the case: Finnish

Parties

Applicant: European Commission (represented by I. Koskinen and R. Lyal)

Defendant: Republic of Finland

Form of order sought

| — | declare that, by introducing and maintaining in force a scheme under which dividends paid to foreign pension funds are taxed in a discriminatory manner, the Republic of Finland has failed to fulfil its obligations under Article 63 TFEU and Article 40 of the EEA Agreement; |
| --- | --- |

—

declare that, by introducing and maintaining in force a scheme under which dividends paid to foreign pension funds are taxed in a discriminatory manner, the Republic of Finland has failed to fulfil its obligations under Article 63 TFEU and Article 40 of the EEA Agreement;

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

—

order the Republic of Finland to pay the costs.

Pleas in law and main arguments

Finland taxes foreign pension funds on the dividends received by them more heavily than Finnish pension funds. Finnish pension funds are taxed under a special tax scheme (Elinkeinoverolaki) and their tax rate is determined differently from that of other corporations. Under Paragraph 6a of the Elinkeinoverolaki, only 75 % of their dividend income is taxable income, and since the corporation tax rate is 26 % their real tax rate is 19,5 %. Finnish pension institutions can also deduct, under Paragraph 7 and point 10 of the first subparagraph of Paragraph 8 of the Elinkeinoverolaki, expenses and losses deriving from the acquisition or preservation of income, and also pension liabilities. Dividends received by comparable foreign pension funds are charged withholding tax at a tax rate of as much as 28 %. As regards pension funds established in the Member States and most pension funds from EFTA countries belonging to the EEA, the dividends are taxed in accordance with a tax rate of 19,5 %, but foreign pension funds are not entitled to make the corresponding deductions.

The tax rate applicable to dividends paid to recipients abroad under the Finnish tax scheme, together with the broader basis of assessment applicable to them, acts to the disadvantage of foreign pension funds offering their services to Finnish customers by placing them in an unfavourable competitive situation. The discriminatory treatment of foreign pension funds makes it less profitable and attractive for those funds to invest in Finnish companies and affects the opportunities of Finnish companies to acquire capital finance from foreign pension funds. There is therefore a prohibited restriction for the purposes of Article 63 TFEU and Article 40 of the EEA Agreement. The discriminatory treatment of foreign pension funds cannot be justified on any of the grounds put forward by the Republic of Finland.

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/29 |
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28.8.2010

EN

Official Journal of the European Union

C 234/29

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Action brought on 7 July 2010 — European Commission v Kingdom of Spain

(Case C-343/10)

()

2010/C 234/47

Language of the case: Spanish

Parties

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

Defendant: Kingdom of Spain

Form of order sought

| — | Declare that, by failing to ensure that






  — | urban waste water from the agglomerations with a population equivalent of more than 15 000 of Valle de Güimar, Noreste (Valle Guerra), Valle de la Orotava, Arenys de Mar, Alcossebre and Cariño is collected in conformity with Article 3 of Directive 91/271/EEC, (1) and |
| --- | --- | --- |

—

Declare that, by failing to ensure that

—

urban waste water from the agglomerations with a population equivalent of more than 15 000 of Valle de Güimar, Noreste (Valle Guerra), Valle de la Orotava, Arenys de Mar, Alcossebre and Cariño is collected in conformity with Article 3 of Directive 91/271/EEC, (1) and

| — | urban waste water from the agglomerations with a population equivalent of more than 15 000 of Arroyo de la Miel, Arroyo de la Víbora, Estepota (San Pedro de Alcántara), Alhaurín el Grande, Coín, Barbate, Chipiona, Isla Cristina, Matalascañas, Nerja, Tarifa, Torrox Costa, Vejer de la Frontera, Gijón-Este, Llanes, Valles de Güimar, Noreste (Valle Guerra), Los Llanos de Aridane, Arenys de Mar, Pineda de Mar, Ceuta, Alcossebre, Benicarló, Elx (Arenales), Peñíscola, Teulada Moraira (Rada Moraira), Vinaròs, A Coruña, Cariño, Tui, Vigo, Aguiño-Carreira-Ribeira, Baiona, Noia, Santiago, Viveiro and Irán (Hondarribia) is treated in conformity with Article 4(1), (3) and, where applicable, (4) of the directive, |
| --- | --- |

—

urban waste water from the agglomerations with a population equivalent of more than 15 000 of Arroyo de la Miel, Arroyo de la Víbora, Estepota (San Pedro de Alcántara), Alhaurín el Grande, Coín, Barbate, Chipiona, Isla Cristina, Matalascañas, Nerja, Tarifa, Torrox Costa, Vejer de la Frontera, Gijón-Este, Llanes, Valles de Güimar, Noreste (Valle Guerra), Los Llanos de Aridane, Arenys de Mar, Pineda de Mar, Ceuta, Alcossebre, Benicarló, Elx (Arenales), Peñíscola, Teulada Moraira (Rada Moraira), Vinaròs, A Coruña, Cariño, Tui, Vigo, Aguiño-Carreira-Ribeira, Baiona, Noia, Santiago, Viveiro and Irán (Hondarribia) is treated in conformity with Article 4(1), (3) and, where applicable, (4) of the directive,

the Kingdom of Spain has failed to fulfil its obligations under the cited provisions of Directive 91/271/EEC;

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

—

order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

In accordance with Article 3(1) and Article 4(1) of Directive 91/271/EEC, agglomerations with a population equivalent of more than 15 000 had to be provided with collecting systems and subjected to secondary treatment or an equivalent for urban waste water by 31 December 2000 at the latest.

In accordance with Article 3(2) of the directive, the collecting systems for urban waste water have to satisfy the requirements of Annex I (A).

As regards the obligations to treat urban waste water, Article 4(1) of the directive imposes on the Member States the obligation to ensure that, before discharge, waste water entering collecting systems is subjected to secondary treatment or an equivalent treatment.

Pursuant to Article 4(3) of the directive, discharges from treatment plants are to satisfy the relevant requirements of Annex I (B). For its part, Annex I (B) referred to the requirements set out in table I of that annex. Finally, the methods for monitoring set out in Annex I (D) make it possible to verify whether discharges from urban waste water treatment plants satisfy the requirements laid down in Annex I (B).

In respect of the 38 agglomerations concerned, the Kingdom of Spain has failed to satisfy the requirements laid down in the directive.

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(1)  Council Directive of 21 May 1991 concerning urban waste water treatment (OJ 1991 L 135, p. 40).

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/29 |
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28.8.2010

EN

Official Journal of the European Union

C 234/29

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Appeal brought on 9 July 2010 by Claro, S.A. against the judgment delivered by the General Court (Fifth Chamber) on 28 April 2010 in Case T-225/09 Claro, S.A. v OHIM and Telefónica, S.A.

(Case C-349/10 P)

()

2010/C 234/48

Language of the case: Spanish

Parties

Appellant: Claro, S.A. (represented by: E. Armijo Chávarri and Castán Pérez-Gómez, abogados)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) and Telefónica, S.A.

Form of order sought

The appellant claims that the Court should take cognisance of the appeal lodged and the supporting documents, declare the appeal against the judgment of the Fifth Chamber of the General Court of 28 April 2010 in Case T-225/09 lodged in time and in the required form and, via the appropriate procedure, and set aside the judgment under appeal and grant the form of order sought by Claro, S.A.

Grounds of appeal and main arguments

Erroneous interpretation made by the General Court of Article 59 of the Community trade mark regulation. The appeal is based on the premise that, contrary to the arguments of the General Court (and of the Board of Appeal earlier in the proceedings), the submission of the statement of the grounds for the appeal does not constitute a requirement for the admissibility of the appeal, but constitutes a mere procedural requirement. By its ground of appeal the appellant also claims that that misinterpretation on the part of the General Court (and the Board of Appeal earlier in the proceedings) entailed an infringement of the principle of continuity in terms of their functions between the various departments of OHIM, set out in Article 62(1) of Regulation No 40/94. (1)

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(1)  Council Regulation of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/30 |
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28.8.2010

EN

Official Journal of the European Union

C 234/30

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Order of the President of the Court of 25 February 2010 — European Parliament v Council of the European Union

(Case C-566/08) (1)

()

2010/C 234/49

Language of the case: French

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

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(1)  OJ C 44, 21.2.2009.

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/30 |
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28.8.2010

EN

Official Journal of the European Union

C 234/30

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Order of the President of the First Chamber of the Court of 6 May 2010 — European Commission v Italian Republic

(Case C-572/08) (1)

()

2010/C 234/50

Language of the case: Italian

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

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(1)  OJ C 55, 7.3.2009.

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/30 |
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28.8.2010

EN

Official Journal of the European Union

C 234/30

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Order of the President of the Court of 29 April 2010 (reference for a preliminary ruling from the Oberlandesgericht Wien (Austria)) — Ronald Seunig v Maria Hölzel

(Case C-147/09) (1)

()

2010/C 234/51

Language of the case: German

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

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(1)  OJ C 153, 4.7.2009.

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General Court

| 28.8.2010 | EN | Official Journal of the European Union | C 234/31 |
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28.8.2010

EN

Official Journal of the European Union

C 234/31

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Judgment of the General Court of 8 July 2010 — Evropaïki Dynamiki v EEA

(Case T-331/06) (1)

(Public service contracts - EEA tendering procedure - Provision of information technology consultancy services - Rejection of the tender - Action for annulment - Jurisdiction of the Court - Award criteria set out in the tender specifications - Sub-criteria - Manifest error of assessment - Obligation to state the reasons on which a decision is based)

2010/C 234/52

Language of the case: English

Parties

Applicant: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (Athens, Greece) (represented by: N. Korogiannakis and N. Keramidas, lawyers)

Defendant: European Environment Agency (EEA) (represented by: M. Hofstötter, Agent, and J. Stuyck, lawyer)

Re:

Action for annulment of the decision of the EEA of 14 September 2006 to reject the tender submitted by the applicant in tendering procedure EEA/IDS/06/002 relating to the provision of information technology consultancy services (OJ 2006 S 118-125101) and to award the public contract to other tenderers

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to pay the costs. |
| --- | --- |

2.

Orders Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to pay the costs.

---

(1)  OJ C 326, 30.12.2006.

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/31 |
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28.8.2010

EN

Official Journal of the European Union

C 234/31

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Judgment of the General Court of 8 July 2010 — M v EMA

(Case T-12/08 P-RENV-RX) (1)

(Appeal - Civil service - Review of the judgment of the General Court - Whether the state of the proceedings permits final judgment to be given)

2010/C 234/53

Language of the case: French

Parties

Appellant: M (Browbourne, United Kingdom) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal, lawyers)

Other party to the proceedings: European Medicines Agency (EMA) (represented by: V. Salvatore and N. Rampal Olmedo, Agents)

Re:

Appeal against the order of the European Union Civil Service Tribunal (First Chamber) of 19 October 2007 in Case F-23/07 M v EMEA (not yet published in the ECR), seeking to have that order set aside

Operative part of the judgment

The General Court:

| 1. | Refers the case back to the European Union Civil Service Tribunal for it to rule on the claim for compensation for the non-material damage allegedly suffered by Mr M; |
| --- | --- |

1.

Refers the case back to the European Union Civil Service Tribunal for it to rule on the claim for compensation for the non-material damage allegedly suffered by Mr M;

| 2. | Reserves the costs. |
| --- | --- |

2.

Reserves the costs.

---

(1)  OJ C 64, 8.3.2008.

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/32 |
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28.8.2010

EN

Official Journal of the European Union

C 234/32

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Judgment of the General Court of 9 July 2010 — Exalation v OHIM (Vektor-Lycopin)

(Case T-85/08) (1)

(Community trade mark - Application for Community word mark Vektor-Lycopin - Absolute grounds for refusal - Lack of distinctive character - Descriptive character - Article 7(1)(b) and (c) of Regulation (EC) No 40/94 (now Article 7(1)(b) and (c) of Regulation (EC) No 207/2009))

2010/C 234/54

Language of the case: German

Parties

Applicant: Exalation Ltd (Ilford, Essex, United Kingdom) (represented by: K. Zingsheim, lawyer)

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

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 17 December 2007 (Case R 1037/2007-4), concerning an application for registration of the word sign Vektor-Lycopin as a Community trade mark.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Exalation Ltd to pay the costs. |
| --- | --- |

2.

Orders Exalation Ltd to pay the costs.

---

(1)  OJ C 107, 26.4.2008.

---

| 28.8.2010 | EN | Official Journal of the European Union | C 234/32 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/32

---

Judgment of the General Court of 8 July 2010 — Commission v Putterie-De-Beukelaer

(Case T-160/08 P) (1)

(Appeal - Civil Service - Officials - Annulment at first instance of the career development report - 2005 reporting period - Rules applicable - Heading ‘potential’ - Evaluation procedure - Attestation procedure)

2010/C 234/55

Language of the case: French

Parties

Appellant: European Commission (represented by: C. Berardis-Kayser and K. Hermann, Agents)

Other party to the proceedings: Françoise Putterie-De-Beukelaer (Brussels, Belgium) (represented by: É. Boigelot, lawyer)

Re:

Appeal seeking to have set aside the judgment of the European Union Civil Service Tribunal (First Chamber) of 21 February 2008 in Case F-31/07 Putterie-De-Beukelaer v Commission, not yet published in the ECR.

Operative part of the judgment

The General Court:

| 1. | Sets aside the judgment of the European Union Civil Service Tribunal (First Chamber) of 21 February 2008 in Case F-31/07 Putterie-De-Beukelaer v Commission (not yet published in the ECR); |
| --- | --- |

1.

Sets aside the judgment of the European Union Civil Service Tribunal (First Chamber) of 21 February 2008 in Case F-31/07 Putterie-De-Beukelaer v Commission (not yet published in the ECR);

| 2. | Refers the case back to the European Union Civil Service Tribunal; |
| --- | --- |

2.

Refers the case back to the European Union Civil Service Tribunal;

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

3.

Reserves the costs.

---

(1)  OJ C 183 of 19.7.2008.

---

| 28.8.2010 | EN | Official Journal of the European Union | C 234/32 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/32

---

Judgment of the General Court of 8 July 2010 — Trautwein v OHIM (Representation of a dog)

(Case T-385/08) (1)

(Community trade mark - Application for a Community figurative mark representing a dog - Absolute ground for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 40/94 (now Article 7(1)(c) of Regulation (EC) No 207/2009))

2010/C 234/56

Language of the case: German

Parties

Applicant: Nadine Trautwein Rolf Trautwein GbR, Research and Development (Leopoldshöhe, Germany) (represented by: C. Czychowski, A. Nordemann and A.. Dustmann, lawyers)

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

Re:

Action brought against the decision of 30 June 2008 of the First Board of Appeal of OHIM (Case R 1734/2007-1) concerning an application for registration as a Community trade mark of a figurative sign representing a dog

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Nadine Trautwein Rolf Trautwein GbR, Research and Development to pay the costs. |
| --- | --- |

2.

Orders Nadine Trautwein Rolf Trautwein GbR, Research and Development to pay the costs.

---

(1)  OJ C 313, 6.12.2008.

---

| 28.8.2010 | EN | Official Journal of the European Union | C 234/33 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/33

---

Judgment of the General Court of 8 July 2010 — Trautwein v OHIM (Representation of a horse)

(Case T-386/08) (1)

(Community trade mark - Application for a Community figurative mark representing a horse - Absolute ground for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 40/94 (now Article 7(1)(c) of Regulation (EC) No 207/2009))

2010/C 234/57

Language of the case: German

Parties

Applicant: Nadine Trautwein Rolf Trautwein GbR, Research and Development (Leopoldshöhe, Germany) (represented by: C. Czychowski, A. Nordemann and A. Dustmann, lawyers)

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

Re:

Action brought against the decision of 7 July 2008 of the First Board of Appeal of OHIM (Case R 1730/2007-1) concerning an application for registration as a Community trade mark of a figurative sign representing a horse

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Nadine Trautwein Rolf Trautwein GbR, Research and Development to pay the costs. |
| --- | --- |

2.

Orders Nadine Trautwein Rolf Trautwein GbR, Research and Development to pay the costs.

---

(1)  OJ C 313, 6.12.2008.

---

| 28.8.2010 | EN | Official Journal of the European Union | C 234/33 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/33

---

Judgment of the General Court of 8 July 2010 — Freistaat Sachsen and Land Sachsen-Anhalt v Commission

(Case T-396/08) (1)

(State aid - Training aid - Decision declaring the aid to be in part compatible and in part incompatible with the common market - Need for the aid - Positive external effects - Obligation to give reasons)

2010/C 234/58

Language of the case: German

Parties

Applicants: Freistaat Sachsen (Germany) and Land Sachsen-Anhalt (Germany) (represented by: T. Müller-Ibold and T. Graf, lawyers)

Defendant: European Commission (represented by: F. França, K. Gross and B. Martenczuk, Agents)

Re:

Application for the partial annulment of Commission Decision 2008/878/EC of 2 July 2008 on State aid which Germany is planning to implement for DHL (OJ 2008 L 312, p. 31)

Operative part of the judgment

The General Court:

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

1.

Dismisses the action;

| 2. | Orders Freistaat Sachsen and Land Sachsen-Anhalt to bear their own costs and to pay the costs incurred by the European Commission. |
| --- | --- |

2.

Orders Freistaat Sachsen and Land Sachsen-Anhalt to bear their own costs and to pay the costs incurred by the European Commission.

---

(1)  OJ C 327 of 20.12.2008.

---

| 28.8.2010 | EN | Official Journal of the European Union | C 234/34 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/34

---

Judgment of the General Court of 9 July 2010 — Grain Millers v OHIM — Grain Millers (GRAIN MILLERS)

(Case T-430/08) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark GRAIN MILLERS - Earlier national business name Grain Millers and its figurative representation - Partial refusal to register - Relative ground for refusal - Likelihood of confusion - Article 8(4) of Regulation (EC) No 40/94 (now Article 8(4) of Regulation (EC) No 207/2009))

2010/C 234/59

Language of the case: English

Parties

Applicant: Grain Millers, Inc. (Eden Prairie, Minnesota, United States) (represented by: L.-E. Ström, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the Court: Grain Millers GmbH & Co. KG (Bremen, Germany) (R. Böckenholt, lawyer)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 23 July 2008 (Case R 478/2007-2), concerning opposition proceedings between Grain Millers GmbH & Co. KG and Grain Millers, Inc.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Grain Millers, Inc. to pay the costs. |
| --- | --- |

2.

Orders Grain Millers, Inc. to pay the costs.

---

(1)  OJ C 313, 6.12.2008.

---

| 28.8.2010 | EN | Official Journal of the European Union | C 234/34 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/34

---

Judgment of the General Court of 9 July 2010 — Toqueville v OHIM — Schiesaro (TOCQUEVILLE 13)

(Case T-510/08) (1)

(Community trade mark - Revocation proceedings - Community word mark TOCQUEVILLE 13 - Failure to comply with the time-limit for appealing against a revocation decision - Application for restitutio in integrum - Article 78 of Regulation (EC) No 40/94 (now Article 81 of Regulation (EC) No 207/2009))

2010/C 234/60

Language of the case: Italian

Parties

Applicant: Toqueville Srl (Milan, Italy) (represented by: S. Bariatti, I Palombella and E. Cucchiara, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervening before the General Court: Marco Schiesaro (Limbiate, Italy) (represented by: A. Canella and D. Camaiora, lawyers)

Re:

Action brought against the decision of 26 August 2008 of the Second Board of Appeal of OHIM (Case R 829/2008-2) concerning the applicant’s application for restitutio in integrum

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Toqueville Srl to pay the costs. |
| --- | --- |

2.

Orders Toqueville Srl to pay the costs.

---

(1)  OJ C 19, 24.1.2009.

---

| 28.8.2010 | EN | Official Journal of the European Union | C 234/35 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/35

---

Judgment of the General Court of 8 July 2010 — Engelhorn v OHIM — The Outdoor Group (peerstorm)

(Case T-30/09) (1)

(Community trade mark - Opposition proceedings - Application for the Community word mark peerstorm - Earlier Community and national word marks PETER STORM - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009) - Genuine use of the earlier marks - Articles 15 and 43(2) of Regulation No 40/94 (now Articles 15 and 42(2) of Regulation No 207/2009))

2010/C 234/61

Language of the case: English

Parties

Applicant: Engelhorn KGaA (Mannheim, Germany) (represented by: W. Göpfert and K. Mende, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (represented by: A. Folliard-Monguiral, acting as Agent)

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: The Outdoor Group Ltd (Northampton, United Kingdom) (represented by: M. Edenborough, Barrister)

Re:

Action brought against the decision of the Fifth Board of Appeal of OHIM of 28 October 2008 (Case R 167/2008-5), relating to opposition proceedings between The Outdoor Group Ltd and Engelhorn KGaA.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Engelhorn KGaA to bear its own costs and to pay those of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and of The Outdoor Group Ltd. |
| --- | --- |

2.

Orders Engelhorn KGaA to bear its own costs and to pay those of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and of The Outdoor Group Ltd.

---

(1)  OJ C 82, 4.4.2009.

---

| 28.8.2010 | EN | Official Journal of the European Union | C 234/35 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/35

---

Judgment of the General Court of 8 July 2010 — Sevenier v Commission

(Case T-368/09 P) (1)

(Appeal - Civil service - Officials - Resignation - Commission’s refusal to accept the withdrawal of the resignation and refer the matter to the invalidity committee - Time-limit for complaint - Lateness - No excusable error)

2010/C 234/62

Language of the case: French

Parties

Appellant: Roberto Sevenier (Paris, France) (represented by: É. Boigelot and L. Defalque, lawyers)

Other party to the proceedings: European Commission (represented by: J. Currall and D. Martin, Agents)

Re:

Appeal against the order of 8 July 2009 of the European Union Civil Service Tribunal (Third Chamber) in Case F-62/08 Sevenier v Commission (not yet published in the ECR) to have that order set aside

Operative part of the judgment

The Court:

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

1.

Dismisses the appeal;

| 2. | Orders Mr Roberto Sevenier to bear his own costs and to pay those incurred by the European Commission on the appeal. |
| --- | --- |

2.

Orders Mr Roberto Sevenier to bear his own costs and to pay those incurred by the European Commission on the appeal.

---

(1)  OJ C 282, 21.11.2009.

---

| 28.8.2010 | EN | Official Journal of the European Union | C 234/35 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/35

---

Order of the General Court of 14 July 2010 — Deutsche Post v Commission

(Case T-570/08) (1)

(Action for annulment - State aid - Information injunction - Non-actionable measure - Inadmissibility)

2010/C 234/63

Language of the case: German

Parties

Applicant: Deutsche Post AG (Bonn, Germany) (represented by: J. Sedemund and T. Lübbig, lawyers)

Defendant: European Commission (represented by: B. Martenczuk, Agent)

Re:

Application for the annulment of the decision contained in the Commission’s letter of 30 October 2008, requiring information to be provided in the proceedings relating to State aid to Deutsche Post AG (C 36/2007 (ex NN 25/2007)).

Operative part of the order

| 1. | The action is dismissed as inadmissible. |
| --- | --- |

1.

The action is dismissed as inadmissible.

| 2. | Deutsche Post AG shall pay the costs. |
| --- | --- |

2.

Deutsche Post AG shall pay the costs.

---

(1)  OJ C 55, 7.3.2009.

---

| 28.8.2010 | EN | Official Journal of the European Union | C 234/36 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/36

---

Order of the General Court of 14 July 2010 — Germany v Commission

(Case T-571/08) (1)

(Action for annulment - State aid - Information injunction - Non-actionable measure - Inadmissibility)

2010/C 234/64

Language of the case: German

Parties

Applicant: Federal Republic of Germany (represented by: M. Lumma and B. Klein, Agents)

Defendant: European Commission (represented by: B. Martenczuk, Agent)

Re:

Application for the annulment of the decision contained in the Commission’s letter of 30 October 2008, requiring information to be provided in the proceedings relating to State aid to Deutsche Post AG (C 36/2007 (ex NN 25/2007)).

Operative part of the order

| 1. | The action is dismissed as inadmissible. |
| --- | --- |

1.

The action is dismissed as inadmissible.

| 2. | The Federal Republic of Germany shall pay the costs. |
| --- | --- |

2.

The Federal Republic of Germany shall pay the costs.

---

(1)  OJ C 55, 7.3.2009.

---

| 28.8.2010 | EN | Official Journal of the European Union | C 234/36 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/36

---

Order of the General Court of 8 July 2010 — Marcuccio v Commission

(Case T-166/09 P) (1)

(Appeal - Civil Service - Officials - Order of referral - Decision which cannot be the object of an appeal - Action for damages - Pre-litigation procedure - Procedural defects - Appeal in part manifestly inadmissible and in part manifestly unfounded)

2010/C 234/65

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, acting as Agents, and A. dal Ferro, lawyer)

Re:

Appeal lodged against the order of the European Union Civil Service Tribunal (First Chamber) of 18 February 2009 in Case F-70/07 Marcuccio v Commission ECR-SC 0000, seeking the 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 141, 20.6.2009.

---

| 28.8.2010 | EN | Official Journal of the European Union | C 234/37 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/37

---

Order of the General Court of 6 July 2010 — PAGO International v OHIM — Tirol Milch (Pago)

(Case T-349/09) (1)

(Community trade mark - Proceedings for revocation - Revocation of the decision of the Board of Appeal - Disappearance of the subject-matter of the proceedings - No need to adjudicate)

2010/C 234/66

Language of the case: German

Parties

Applicant: PAGO International GmbH (Klagenfurt, Austria) (represented by: C. Hauer and C. Schumacher, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: G. Schneider, acting as Agent)

Other party to the proceedings before the Board of Appeal of OHIM intervening before the General Court: Tirol Milch reg. Gen. mbH Innsbruck (Innsbruck, Austria)

Re:

Action for annulment brought against the decision of the Fourth Board of Appeal of OHIM of 1 July 2009 (Case R 864/2008-4) concerning revocation proceedings between Tirol Milch reg. Gen. mbH Innsbruck and PAGPO International GmbH

Operative part of the order

| 1. | There is no longer any need to adjudicate on the action. |
| --- | --- |

1.

There is no longer any need to adjudicate on the action.

| 2. | The Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) is ordered to pay the costs. |
| --- | --- |

2.

The Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) is ordered to pay the costs.

---

(1)  OJ C 267, 7.11.2009.

---

| 28.8.2010 | EN | Official Journal of the European Union | C 234/37 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/37

---

Order of the General Court of 6 July 2010 — Marcuccio v Court of Justice

(Case T-401/09) (1)

(Action for annulment - Rejection by the Court of Justice of a request for compensation - Action for damages - Service of an appeal to the applicant’s former representative - Absence of harm - Action in part manifestly inadmissible and in part manifestly devoid of any basis in law)

2010/C 234/67

Language of the case: Italian

Parties

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

Defendant: Court of Justice of the European Union (represented by: A. Placco, acting as Agent)

Re:

Firstly, an action for annulment of the alleged rejection by the Court of Justice of the applicant’s request for damages by way of compensation for the damage suffered by the applicant as a result of an alleged irregularity in service on him of an appeal in Case T-20/09 P and, secondly, an action for damages

Operative part of the order

| 1. | The action is dismissed. |
| --- | --- |

1.

The action is dismissed.

| 2. | Mr Luigi Marcuccio is ordered to pay the costs. |
| --- | --- |

2.

Mr Luigi Marcuccio is ordered to pay the costs.

| 3. | There is no need to adjudicate on the application of the European Commission for leave to intervene. |
| --- | --- |

3.

There is no need to adjudicate on the application of the European Commission for leave to intervene.

---

(1)  OJ C 297, 5.12.2009.

---

| 28.8.2010 | EN | Official Journal of the European Union | C 234/38 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/38

---

Order of the President of the General Court of 25 June 2010 — Regione Puglia v Commission

(Cases T-84/10 R and T-223/10 R)

(Application for interim measures - Decision to reduce Community financial assistance - Debit note - Application to suspend the operation of a measure - No urgency)

2010/C 234/68

Language of the case: Italian

Parties

Applicant: Regione Puglia (represented by: F. Brunelli and A. Aloia, lawyers)

Defendant: European Commission (represented by: C. Cattabriga and A. Steiblytè, Agents)

Re:

Action to suspend the operation, first, of Commission Decision C(2009) 10350 of 22 December 2009, concerning the cancellation of part of the contribution from the European Regional Development Fund (ERDF), allocated to Italy for the operational programme POR Puglia, within Objective 1 (2000-2006) and, second, of the payment order contained in the debit note of 26 February 2010 issued following that decision.

Operative part of the order

| 1. | Cases T-84/10 R and T-223/10 R are joined for the purposes of this order. |
| --- | --- |

1.

Cases T-84/10 R and T-223/10 R are joined for the purposes of this order.

| 2. | The applications for interim measures are dismissed. |
| --- | --- |

2.

The applications for interim measures are dismissed.

| 3. | The costs are reserved. |
| --- | --- |

3.

The costs are reserved.

---

| 28.8.2010 | EN | Official Journal of the European Union | C 234/38 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/38

---

Order of the President of the General Court of 9 July 2010 — Alcoa Trasformazioni v Commission

(Case T-177/10 R)

(Interim measures - State aid - Preferential electricity tariffs - Decision declaring the aid incompatible with the common market and ordering its recovery - Application for suspension of operation of a measure - No urgency)

2010/C 234/69

Language of the case: Italian

Parties

Applicant: Alcoa Trasformazioni Srl (Portoscuso, Italy) (represented by: M. Siragusa, T. Müller-Ibold and F. Salerno, lawyers)

Defendant: European Commission (represented by: V. Di Bucci and E. Gippini Fournier, Agents)

Re:

Application for suspension of operation of Commission decision C(2009) 8112 final of 19 November 2009 on the State aid C 38/A/2004 (ex NN 58/2004) and C 36/B/2006 (ex NN 38/2006) implemented by the Italian Republic in favour of Alcoa Trasformazioni.

Operative part of the order

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

1.

The application for interim measures is dismissed.

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

2.

The costs are reserved.

---

| 28.8.2010 | EN | Official Journal of the European Union | C 234/38 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/38

---

Order of the General Court of 8 July 2010 — Strålfors v OHIM (ID SOLUTIONS)

(Case T-211/10) (1)

(Action for annulment - Application initiating proceedings - Formal requirements - Manifest inadmissibility)

2010/C 234/70

Language of the case: English

Parties

Applicant: Strålfors AB (Malmö, Sweden) (represented by: M.S. Nielsen, lawyer)

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

Re:

Action against the decision of the Second Board of Appeal of OHIM of 25 January 2010 (Case R 1111/2009-2), concerning an application for registration of word sign ID SOLUTIONS as a Community trade mark.

Operative part of the order

| 1. | The action is dismissed as inadmissible. |
| --- | --- |

1.

The action is dismissed as inadmissible.

| 2. | Strålfors AB shall bear its own costs. |
| --- | --- |

2.

Strålfors AB shall bear its own costs.

---

(1)  OJ C 195, 17.7.2010.

---

| 28.8.2010 | EN | Official Journal of the European Union | C 234/39 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/39

---

Order of the General Court of 8 July 2010 — Strålfors v OHIM (IDENTIFICATION SOLUTIONS)

(Case T-212/10) (1)

(Action for annulment - Application initiating proceedings - Formal requirements - Manifest inadmissibility)

2010/C 234/71

Language of the case: English

Parties

Applicant: Strålfors AB (Malmö, Sweden) (represented by: M.S. Nielsen, lawyer)

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

Re:

Action against the decision of the Second Board of Appeal of OHIM of 22 January 2010 (Case R 1112/2009-2), concerning an application for registration of word sign IDENTIFICATION SOLUTIONS as a Community trade mark.

Operative part of the order

| 1. | The action is dismissed as inadmissible. |
| --- | --- |

1.

The action is dismissed as inadmissible.

| 2. | Strålfors AB shall bear its own costs. |
| --- | --- |

2.

Strålfors AB shall bear its own costs.

---

(1)  OJ C 195, 17.7.2010.

---

| 28.8.2010 | EN | Official Journal of the European Union | C 234/39 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/39

---

Action brought on 5 May 2010 — Condé v Council

(Case T-210/10)

()

2010/C 234/72

Language of the case: French

Parties

Applicant: Mamoudou Condé (represented by: J.-C. Tchikaya, lawyer)

Defendant: Council of the European Union

Form of order sought

| — | Annul Council Regulation (EU) No 1284/2009 of 22 December 2009 imposing certain specific restrictive measures in respect of the Republic of Guinea, in so far as it concerns the applicant; |
| --- | --- |

—

Annul Council Regulation (EU) No 1284/2009 of 22 December 2009 imposing certain specific restrictive measures in respect of the Republic of Guinea, in so far as it concerns the applicant;

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

—

Order the Council to pay the costs.

Pleas in law and main arguments

The applicant seeks annulment of Council Regulation (EU) No 1284/2009 of 22 December 2009 imposing certain specific restrictive measures in respect of the Republic of Guinea (1) in so far as the applicant is included on the list of natural or legal persons, entities or bodies whose funds and economic resources are frozen under Article 6 of that regulation.

In support of his action, the applicant raises three pleas in law alleging:

| — | an infringement of the right to an effective judicial remedy since he was not informed of the rights of appeal available to him; |
| --- | --- |

—

an infringement of the right to an effective judicial remedy since he was not informed of the rights of appeal available to him;

| — | an infringement of his rights of defence since he was not informed of the evidence against him; |
| --- | --- |

—

an infringement of his rights of defence since he was not informed of the evidence against him;

| — | an infringement of the principle of proportionality and of his right to property. |
| --- | --- |

—

an infringement of the principle of proportionality and of his right to property.

---

(1)  OJ 2009 L 346, p. 26.

---

| 28.8.2010 | EN | Official Journal of the European Union | C 234/40 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/40

---

Action brought on 26 May 2010 — Rungis Express/HABM — Žito (MARESTO)

(Case T-243/10)

()

2010/C 234/73

Language in which the application was lodged: German

Parties

Applicant: RUNGIS Express AG (Meckenheim, Germany) (represented by: U. Feldmann, Rechtsanwalt)

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

Other party in the proceedings before the Board of Appeal: ŽITO prehrambena industrija, d.d. (Ljubljana, Slovenia)

Forms of order sought

| — | Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 11 March 2010 in Case R 691/2009-1; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 11 March 2010 in Case R 691/2009-1;

| — | Dismiss the Defendant's opposition. |
| --- | --- |

—

Dismiss the Defendant's opposition.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: Word mark MARESTO for goods in Class 29.

Proprietor of the marks cited in opposition: ŽITO prehrambena industrija, d.d.

Marks cited in opposition: National pictorial mark depicting a cook and including the word element M·A·E·S·T·R·O for goods in Classes 29 and 30, a national pictorial mark including the word element M•A•E•S•T•R•O for goods in Classes 29, 30 and 43, and the national word mark ‘BRAVO MAESTRO!’ for goods in Classes 29, 30 and 43.

Decision of the Opposition Division: Opposition upheld.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Article 7(1) (b), (c) and (d) of Regulation (EC) No 207/2009, (1) on the ground that the marks cited in opposition lacked distinctive character and/or were purely descriptive.

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

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/40 |
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28.8.2010

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Official Journal of the European Union

C 234/40

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Action brought on 10 June 2010 — France Télécom v Commission

(Case T-258/10)

()

2010/C 234/74

Language of the case: French

Parties

Applicant: France Télécom (Paris, France) (represented by: M. van der Woude and D. Gillet, lawyers)

Defendant: European Commission

Form of order sought

| — | Declare the present action admissible; |
| --- | --- |

—

Declare the present action admissible;

| — | Annul the decision; and |
| --- | --- |

—

Annul the decision; and

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

—

Order the Commission to pay all the costs of the proceedings.

Pleas in law and main arguments

The applicant seeks annulment of Commission Decision C(2009) 7426 final of 30 September 2009, (1) declaring that the compensation for public service charges in the amount of EUR 59 million, granted by the French authorities to a group of undertakings for the establishment and operation of a very high-speed broadband electronic communications network (project THD 92) in the French Hauts-de-Seine department, does not constitute State aid.

In support of its action, the applicant raises two pleas in law, alleging:

| — | an infringement of the notion of State aid for the purposes of Article 107(1) TFEU, since the Commission committed an error of law in applying the four ‘Altmark’ criteria in the present case, in so far as:






  — | Project THD92 does not pursue an objective of general economic interest, but a competitive one on the part of Hauts-de-Seine department as an international business centre; |
| --- | --- | --- |

—

an infringement of the notion of State aid for the purposes of Article 107(1) TFEU, since the Commission committed an error of law in applying the four ‘Altmark’ criteria in the present case, in so far as:

—

Project THD92 does not pursue an objective of general economic interest, but a competitive one on the part of Hauts-de-Seine department as an international business centre;

| — | Project THD92 is taking place in a ‘black area’ and does not respond to a market failure; |
| --- | --- |

—

Project THD92 is taking place in a ‘black area’ and does not respond to a market failure;

| — | the compensation in the amount of EUR 59 million is disproportionate and was granted on the basis of previously unknown selection criteria; and |
| --- | --- |

—

the compensation in the amount of EUR 59 million is disproportionate and was granted on the basis of previously unknown selection criteria; and

| — | an infringement of Article 108(2) TFEU since the Commission infringed the applicant's procedural rights by not initiating the formal investigation procedure, thus depriving the applicant of the possibility of voicing its point of view as an interested third party. |
| --- | --- |

—

an infringement of Article 108(2) TFEU since the Commission infringed the applicant's procedural rights by not initiating the formal investigation procedure, thus depriving the applicant of the possibility of voicing its point of view as an interested third party.

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(1)  State Aid N 331/2008 — France.

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/41 |
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Action brought on 8 June 2010 — Ax v Council

(Case T-259/10)

()

2010/C 234/75

Language of the case: German

Parties

Applicant: Thomas Ax (Neckargemünd, Germany) (represented by: J. Baumann, Rechtsanwalt)

Defendant: Council of the European Union

Form of order sought

| — | Annul Council Regulation (EU) No 407/2010 of 11 May 2010 establishing a European financial stabilisation mechanism; |
| --- | --- |

—

Annul Council Regulation (EU) No 407/2010 of 11 May 2010 establishing a European financial stabilisation mechanism;

| — | Order the Council of the European Union to pay the costs. |
| --- | --- |

—

Order the Council of the European Union to pay the costs.

Pleas in law and main arguments

The applicant seeks the annulment of Regulation (EU) No 407/2010. (1)

The applicant argues, inter alia, that the aid released by the contested regulation would infringe the prohibition under Article 125 TFEU on undertaking liability for or assuming the commitments of other Member States.

Moreover, Regulation No 407/2010 is not covered by the enabling provision of Article 122 TFEU. The applicant argues that the Member States affected by speculative attacks have not been seriously threatened with severe difficulties within the meaning of that provision. Moreover, the difficulties arising as a result of the speculative attacks are not caused by exceptional occurrences beyond the control of the Member States concerned.

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(1)  Council Regulation (EU) No 407/2010 of 11 May 2010 establishing a European financial stabilisation mechanism (OJ 2010 L 118, p. 1).

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/42 |
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28.8.2010

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C 234/42

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Action brought on 16 June 2010 — Land Wien v Commission

(Case T-267/10)

()

2010/C 234/76

Language of the case: Geman

Parties

Applicant: Land Wien (represented by: W.-G. Schärf, lawyer)

Defendant: European Commission

Form of order sought

| — | declare the decision of 25 March 2010 to be void; |
| --- | --- |

—

declare the decision of 25 March 2010 to be void;

| — | hold that the European Commission has breached Regulation (EC) No 1049/2001 (1) as not all of the requested documents relating to the extension of blocks 3 and 4 of the Mochovce nuclear power plant were forwarded to the complainant party, with the result that the Commission failed to act within the terms of Article 265 TFEU and [...] is in breach of [Article 2](3) of Regulation No 1049/2001; |
| --- | --- |

—

hold that the European Commission has breached Regulation (EC) No 1049/2001 (1) as not all of the requested documents relating to the extension of blocks 3 and 4 of the Mochovce nuclear power plant were forwarded to the complainant party, with the result that the Commission failed to act within the terms of Article 265 TFEU and [...] is in breach of [Article 2](3) of Regulation No 1049/2001;

| — | order the Commission to pay all costs relating to the proceedings incurred by the applicant, Land Wien. |
| --- | --- |

—

order the Commission to pay all costs relating to the proceedings incurred by the applicant, Land Wien.

Pleas in law and main arguments

The applicant is challenging the Commission decision of 25 March 2010, by which the complaint procedure in respect of the applicant’s complaint concerning the completion of blocks 3 and 4 of the Mochovce nuclear power plant in Slovakia was discontinued. The applicant further complains that it did not receive from the Commission all of the requested documents concerning the extension of blocks 3 and 4 of the Mochovce nuclear power plant and that there was therefore a failure to act, within the terms of Article 265 TFEU, on the part of the Commission.

As grounds for its action, the applicant submits that, by its decision of 25 March 2010, the Commission has failed to have regard for Directive 2003/35/EC (2) and for the fundamental right under Article 37 of the Charter of Fundamental Rights of the European Union.

In conjunction with its application for the provision of information, the applicant contends that the improper treatment accorded to it breaches Article 42 of the Charter of Fundamental Rights. Article 7 of Regulation No 1049/2001, it submits, has also been breached.

The applicant further takes the view that, by failing to act in respect of the complaint and the request for information, the Commission has also failed to comply with the obligations to act which are laid down in the EAEC Treaty and discussed in detail in the judgment of the Court of Justice of 27 October 2009 in Case C-115/08 ČEZ (not yet published in the ECR).

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

(2)  Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending, with regard to public participation and access to justice, Council Directives 85/337/EEC and 96/61/EC (OJ 2003 L 156, p. 17).

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/42 |
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Action brought on 14 June 2010 — LIS v Commission

(Case T-269/10)

()

2010/C 234/77

Language of the case: German

Parties

Applicant: LIS GmbH Licht Impex Service (Mettmann, Germany) (represented by: K.-P. Langenkamp, lawyer)

Defendant: European Commission

Form of order sought

| — | declare the Commission decision of 12 April 2010 to be void pursuant to Article 264 TFEU; |
| --- | --- |

—

declare the Commission decision of 12 April 2010 to be void pursuant to Article 264 TFEU;

| — | order the Commission to pay the costs necessarily incurred pursuant to Article 87(2) of the Rules of Procedure of the General Court. |
| --- | --- |

—

order the Commission to pay the costs necessarily incurred pursuant to Article 87(2) of the Rules of Procedure of the General Court.

Pleas in law and main arguments

The applicant challenges Commission Decision C(2010) 2198 final of 12 April 2010 by which the Commission rejected the applicant’s requests for reimbursement of anti-dumping duties paid in respect of the importation of integrated electronic compact fluorescent lamps originating in the People’s Republic of China.

In support of its claim, the applicant submits that, in applying Article 11(8) of Regulation (EC) No 384/96, (1) the Commission failed to have regard for the purpose and objective of that rule and did not apply principles of logical reasoning.

In this regard, it is submitted, inter alia, that there was never any case of dumping in the specific case, as the production price was below the export price paid and the same product was subsequently offered by a German company at a price which was lower than the original Chinese export price.

The applicant submits, further, that the Commission disregarded the fact that the products in issue are not ordinary energy-saving light bulbs within the meaning of the measure.

The applicant also contends that the classification of the product by the German customs authorities was not, contrary to the Commission’s view, open to criticism, as there is no other classification number under which the product could have been entered.

Moreover, the Commission paid no regard to the fact that there was at no time any danger of damage within the Community in the specific case, as the light products marketed by the applicant were marketed throughout Europe by the applicant alone and there was, for that reason, no other manufacturer in need of protection.

In conclusion, it is submitted that it cannot be relevant, for purposes of entitlement to reimbursement, that the specific dumping margin has not disappeared; rather, what is decisive is that there never was any such dumping margin.

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(1)  Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1).

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/43 |
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Action brought on 22 June 2010 — Suez Environnement and Lyonnaise des eaux France v Commission

(Case T-274/10)

()

2010/C 234/78

Language of the case: French

Parties

Applicants: Suez Environnement Company (Paris, France) and Lyonnaise des eaux France (Paris) (represented by: P. Zelenko and O. d'Ormesson, lawyers)

Defendant: European Commission

Form of order sought

| — | Annul the contested inspection decision and/or the inspection mandate of 6 April 2010; |
| --- | --- |

—

Annul the contested inspection decision and/or the inspection mandate of 6 April 2010;

| — | Annul any action undertaken originating from the inspections carried out on the basis of that unlawful decision and that unlawful mandate; |
| --- | --- |

—

Annul any action undertaken originating from the inspections carried out on the basis of that unlawful decision and that unlawful mandate;

| — | Order, in particular, the return of all of the documents seized in the course of the inspections carried out, failing which, the Commission will have its future decision on the substance annulled by the Court, and |
| --- | --- |

—

Order, in particular, the return of all of the documents seized in the course of the inspections carried out, failing which, the Commission will have its future decision on the substance annulled by the Court, and

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

—

Order the Commission to pay the costs.

Pleas in law and main arguments

In the present case, the applicants seek annulment of Commission Decision C(2010) 1984/4 of 23 March 2010 requiring Suez Environnement and all of the undertakings which it controls, including Lyonnaise des eaux France, to submit to an inspection pursuant to Article 20(4) of Council Regulation No 1/2003, taken in the context of a proceeding pursuant to Article 101 TFEU concerning the markets for the provision of water and sanitation services. (1)

In support of their actions, the applicants raise three pleas in law alleging:

| — | an infringement of fundamental rights and freedoms and in particular of the right to respect for the home since the applicants were not notified of any national judicial authorisation, thus depriving them of any fundamental guarantee such as access to a judge while the investigations were being carried out and the possibility of pursuing the ordinary avenues of legal redress against such an authorisation; |
| --- | --- |

—

an infringement of fundamental rights and freedoms and in particular of the right to respect for the home since the applicants were not notified of any national judicial authorisation, thus depriving them of any fundamental guarantee such as access to a judge while the investigations were being carried out and the possibility of pursuing the ordinary avenues of legal redress against such an authorisation;

| — | an infringement of the principle of proportionality since the validity of the inspection decision was unlimited in duration and had a very broad scope; |
| --- | --- |

—

an infringement of the principle of proportionality since the validity of the inspection decision was unlimited in duration and had a very broad scope;

| — | that the inspection mandate accompanying the inspection decision does not provide sufficient guarantees of impartiality and objectivity, in so far as the Commission's agents which previously examined the confidential information which the applicant Lyonnaise des eaux France sent to the Commission in the context of a notification of a concentration are designated in that mandate. |
| --- | --- |

—

that the inspection mandate accompanying the inspection decision does not provide sufficient guarantees of impartiality and objectivity, in so far as the Commission's agents which previously examined the confidential information which the applicant Lyonnaise des eaux France sent to the Commission in the context of a notification of a concentration are designated in that mandate.

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(1)  Case COMP/B-1/39.756.

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/44 |
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Action brought on 22 June 2010 — mPAY24 GmbH v OHIM — ULTRA d.o.o. Proizvodnja elektronskih naprav (MPAY 24)

(Case T-275/10)

()

2010/C 234/79

Language in which the application was lodged: English

Parties

Applicant: mPAY24 GmbH (Vienna, Austria) (represented by: Dr. H. G. Zeiner and S. Di Natale, lawyers)

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

Other party to the proceedings before the Board of Appeal: ULTRA d.o.o. Proizvodnja elektronskih naprav (Zagorje ob Savi, Slovenia)

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 22 March 2010 in case R 1102/2008-1; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 22 March 2010 in case R 1102/2008-1;

| — | Order the defendant to bear the costs of the proceedings; and |
| --- | --- |

—

Order the defendant to bear the costs of the proceedings; and

| — | Order the other party to the proceedings before the Board of Appeal to pay the costs of the proceedings, should it become an intervening party in this case. |
| --- | --- |

—

Order the other party to the proceedings before the Board of Appeal to pay the costs of the proceedings, should it become an intervening party in this case.

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: The word mark ‘MPAY24’ for goods and services in classes 9, 16, 35, 36 and 38 — Community trade mark application No 2601656

Proprietor of the Community trade mark cited in the invalidity proceedings: The applicant

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

Trade mark right of the party requesting the declaration of invalidity: The party requesting the declaration of invalidity relied its request on absolute grounds for refusal pursuant to Articles 52(1)(a), 7(1)(b), 7(1)(c) and 7(2) of Council Regulation (EC) No 207/2009

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

Decision of the Board of Appeal: Upheld the appeal and, as a result, annulled the decision of the Cancellation Division and declared the invalidity of the registered Community trade mark

Pleas in law: The applicant advances two pleas in law in support of its application.

On the basis of its first plea, the applicant claims that the contested decision infringes Articles 7(1)(b) and 7(1)(c) of Council Regulation (EC) No 207/2009, as the Board of Appeal erred in concluding that the provisions of these articles are applicable to the contested Community trade mark. In particular, the First Board of Appeal: (i) erred in overturning the previous decision of the Second Board of Appeal of 21 April 2004 which concerns the same matter and which is based on the same grounds; and (ii) erroneously found that the contested Community trade mark is descriptive for the goods and services in question as well as devoid of any distinctive character.

By its second plea, the applicant considers that the contested decision does not comply with the provisions of Council Regulation (EC) No 207/2009, as the Board of Appeal erred in annulling the contested Community trade mark for all the goods and services registered in classes 9, 16, 35, 36 and 38 only on the basis of questionable and not corroborated assumptions.

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/45 |
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Action brought on 22 June 2010 — El Coto De Rioja v OHIM — Álvarez Serrano (COTO DE GOMARIZ)

(Case T-276/10)

()

2010/C 234/80

Language in which the application was lodged: Spanish

Parties

Applicant: El Coto De Rioja, S.A. (Oyón, Alava) (Spain) (represented by: J. Grimau Muñoz and J. Villamor Muguerza, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: María Álvarez Serrano (Gomariz Leiro, Orense) (Spain)

Form of order sought

| — | Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 28 April 2010 in Case R 1020/2008-4 and, consequently, declare invalid Community trade mark No 2 631 828, in Class 33, which contains the verbal element ‘COTO DE GOMARIZ’, and |
| --- | --- |

—

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 28 April 2010 in Case R 1020/2008-4 and, consequently, declare invalid Community trade mark No 2 631 828, in Class 33, which contains the verbal element ‘COTO DE GOMARIZ’, and

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: Figurative trade mark containing the verbal element ‘COTO DE GOMARIZ’ (Application No 2 631 828) for goods in Class 33 ‘wines’.

Proprietor of the Community trade mark: María Álvarez Serrano

Applicant for the declaration of invalidity of the Community trade mark: EL COTO DE RIOJA S.A.

Trade mark right or sign of the applicant for the declaration: Community word mark ‘COTO DE IMAZ’ (No 339 333) for goods in Classes 29, 32 and 33; Community word mark ‘EL COTO’ (No 339 408) for goods in Classes 29, 32 and 33; and the well-known Spanish marks ‘EL COTO’ and ‘COTO DE IMAZ’ for ‘wines’.

Decision of the Cancellation Division: Annulment of the contested Community trade mark.

Decision of the Board of Appeal: Annulment of the contested decision and dismissal of the application for a declaration of invalidity.

Pleas in law: Incorrect application of Article 52(1) of Regulation No 207/2009 on the Community trade mark, in conjunction with Articles 8(1)(b) and 8(5) of that regulation.

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/45 |
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Action brought on 21 June 2010 — K-Mail Order v OHIM — IVKO (MEN’Z)

(Case T-279/10)

()

2010/C 234/81

Language in which the application was lodged: German

Parties

Applicant: K-Mail Order GmbH & Co. KG (Pforzheim, Germany) (represented by: T. Zeiher, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: IVKO Industrieprodukt-Vertriebskontakt GmbH (Baar-Wanderath, Germany)

Form of order sought

| — | Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 March 2010 in Case R 746/2009-1; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 March 2010 in Case R 746/2009-1;

| — | Uphold the opposition against allowing the contested Community trade mark application; in the alternative, refer the case back to the Board of Appeal for further consideration; |
| --- | --- |

—

Uphold the opposition against allowing the contested Community trade mark application; in the alternative, refer the case back to the Board of Appeal for further consideration;

| — | Order the unsuccessful party to pay the costs. |
| --- | --- |

—

Order the unsuccessful party to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: IVKO Industrieprodukt-Vertriebskontakt GmbH

Community trade mark concerned: the figurative mark MEN’Z for goods in Classes 9, 14 and 18

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

Mark or sign cited in opposition: the company name ‘WENZ’ used in Germany in the course of trade for goods in Classes 14, 18 and 25

Decision of the Opposition Division: Rejection of the opposition

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(4) in conjunction with Article 41(1)(c) of Regulation (EC) No 207/2009 (1) and infringement of Article 76(1) of that regulation as the applicant’s company name is of more than mere local significance

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

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/46 |
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Action brought on 25 June 2010 — Milux v OHMI (ANEURYSMCONTROL)

(Case T-280/10)

()

2010/C 234/82

Language of the case: English

Parties

Applicant: Milux Holding S.A. (Luxembourg, Luxembourg) (represented by: J. Bojs, lawyer)

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

Form of order sought

| — | Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 29 April 2010 in case R 1432/2009-4; |
| --- | --- |

—

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 29 April 2010 in case R 1432/2009-4;

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘ANEURYSMCONTROL’ for goods and services in classes 9, 10 and 44

Decision of the examiner: Refused the application for a Community trade mark

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Council Regulation No 207/2009, as the Board of Appeal misapplied the principle of non-discrimination to the facts of this case; in the alternative, infringement of Article 7(1)(b) of Council Regulation No 207/2009, as the Board of Appeal erred in its conclusion that the trade mark applied for does not possess sufficient inherent distinctiveness.

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/47 |
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Action brought on 25 June 2010 — Milux v OHMI (APPETITECONTROL)

(Case T-281/10)

()

2010/C 234/83

Language of the case: English

Parties

Applicant: Milux Holding S.A. (Luxembourg, Luxembourg) (represented by: J. Bojs, lawyer)

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

Form of order sought

| — | Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 29 April 2010 in case R 1433/2009-4; |
| --- | --- |

—

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 29 April 2010 in case R 1433/2009-4;

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘APPETITECONTROL’ for goods and services in classes 9, 10 and 44

Decision of the examiner: Refused the application for a Community trade mark

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Council Regulation No 207/2009, as the Board of Appeal misapplied the principle of non-discrimination to the facts of this case; in the alternative, infringement of Article 7(1)(b) of Council Regulation No 207/2009, as the Board of Appeal erred in its conclusion that the trade mark applied for does not possess sufficient inherent distinctiveness.

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/47 |
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28.8.2010

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Action brought on 25 June 2010 — Milux v OHMI (STOMACONTROL)

(Case T-282/10)

()

2010/C 234/84

Language of the case: English

Parties

Applicant: Milux Holding S.A. (Luxembourg, Luxembourg) (represented by: J. Bojs, lawyer)

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

Form of order sought

| — | Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 8 June 2010 in case R 1434/2009-4; |
| --- | --- |

—

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 8 June 2010 in case R 1434/2009-4;

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘STOMACONTROL’ for goods and services in classes 9, 10 and 44

Decision of the examiner: Refused the application for a Community trade mark

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Council Regulation No 207/2009, as the Board of Appeal misapplied the principle of non-discrimination to the facts of this case; in the alternative, infringement of Articles 7(1)(b) and 7(1)(c) of Council Regulation No 207/2009, as the Board of Appeal erred in its conclusion that the trade mark applied for does not possess sufficient inherent distinctiveness.

---

| 28.8.2010 | EN | Official Journal of the European Union | C 234/48 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/48

---

Action brought on 25 June 2010 — Milux v OHMI (BMICONTROL)

(Case T-283/10)

()

2010/C 234/85

Language of the case: English

Parties

Applicant: Milux Holding S.A. (Luxembourg, Luxembourg) (represented by: J. Bojs, lawyer)

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

Form of order sought

| — | Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 17 June 2010 in case R 1435/2009-4; |
| --- | --- |

—

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 17 June 2010 in case R 1435/2009-4;

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘BMICONTROL’ for goods and services in classes 9, 10 and 44

Decision of the examiner: Refused the application for a Community trade mark

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Council Regulation No 207/2009, as the Board of Appeal misapplied the principle of non-discrimination to the facts of this case; in the alternative, infringement of Articles 7(1)(b) and 7(1)(c) of Council Regulation No 207/2009, as the Board of Appeal erred in its conclusion that the trade mark applied for does not possess sufficient inherent distinctiveness.

---

| 28.8.2010 | EN | Official Journal of the European Union | C 234/48 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/48

---

Action brought on 25 June 2010 — Milux v OHMI (IMPLANTCONTROL)

(Case T-284/10)

()

2010/C 234/86

Language of the case: English

Parties

Applicant: Milux Holding S.A. (Luxembourg, Luxembourg) (represented by: J. Bojs, lawyer)

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

Form of order sought

| — | Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 3 June 2010 in case R 1438/2009-4; |
| --- | --- |

—

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 3 June 2010 in case R 1438/2009-4;

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘IMPLANTCONTROL’ for goods and services in classes 9, 10 and 44

Decision of the examiner: Refused the application for a Community trade mark

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Council Regulation No 207/2009, as the Board of Appeal misapplied the principle of non-discrimination to the facts of this case; in the alternative, infringement of Articles 7(1)(b) and 7(1)(c) of Council Regulation No 207/2009, as the Board of Appeal erred in its conclusion that the trade mark applied for does not possess sufficient inherent distinctiveness.

---

| 28.8.2010 | EN | Official Journal of the European Union | C 234/49 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/49

---

Action brought on 25 June 2010 — Milux v OHMI (CHEMOCONTROL)

(Case T-285/10)

()

2010/C 234/87

Language of the case: English

Parties

Applicant: Milux Holding S.A. (Luxembourg, Luxembourg) (represented by: J. Bojs, lawyer)

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

Form of order sought

| — | Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 29 April 2010 in case R 1444/2009-4; |
| --- | --- |

—

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 29 April 2010 in case R 1444/2009-4;

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘CHEMOCONTROL’ for goods and services in classes 9, 10 and 44

Decision of the examiner: Refused the application for a Community trade mark

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Council Regulation No 207/2009, as the Board of Appeal misapplied the principle of non-discrimination to the facts of this case; in the alternative, infringement of Article 7(1)(b) of Council Regulation No 207/2009, as the Board of Appeal erred in its conclusion that the trade mark applied for does not possess sufficient inherent distinctiveness.

---

| 28.8.2010 | EN | Official Journal of the European Union | C 234/49 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/49

---

Action brought on 25 June 2010 — Unilever España and Unilever v OHMI — Med Trans G. Poulias-S. Brakatselos (MED FRIGO S.A.)

(Case T-287/10)

()

2010/C 234/88

Language in which the application was lodged: English

Parties

Applicants: Unilever España S.A. and Unilever N.V. (Barcelona, Spain) (represented by: C. Prat, lawyer)

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

Other party to the proceedings before the Board of Appeal:‘Med Trans’ G. Poulias-S. Brakatselos A.E. (Patra, Greece)

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 20 April 2010 in case R 1025/2009-2; |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 20 April 2010 in case R 1025/2009-2;

| — | Request the Opposition division of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to continue with the examination of the evidence, evaluating the applicability of Articles 8(1)(b), 8(4) and 8(5) of the CTMR; |
| --- | --- |

—

Request the Opposition division of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to continue with the examination of the evidence, evaluating the applicability of Articles 8(1)(b), 8(4) and 8(5) of the CTMR;

| — | In the alternative, alter the contested decision, and decide on the merits of the case; |
| --- | --- |

—

In the alternative, alter the contested decision, and decide on the merits of the case;

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

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

Community trade mark concerned: The figurative mark ‘MED FRIGO S.A.’, for goods and services in class 39

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

Mark or sign cited: Spanish trade mark registration No 112534 of the word mark ‘FRIGO’, for goods in class 30; Spanish trade mark registration No 123204 of the figurative mark ‘Frigo’, for goods in class 30; Spanish trade mark registration No 434378 of the figurative mark ‘Frigo’, for goods in class 30; Spanish trade mark registration No 767539 of the figurative mark ‘Frigo’, for goods in class 30; Spanish trade mark registration No 2148274 of the figurative mark ‘Frigo’ for goods in class 30; Spanish trade mark registration No 60893 of the word mark ‘FRIGO S.A.’ for ‘business named to ice creams and milk products manufacturing and production’

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Rule 19(2)(a)(ii) of Commission Regulation (EC) No 2868/95, as the Board of Appeal wrongly assessed that the applicant did not file all the necessary proof of existence, validity and scope of protection of its earlier trade mark upon which the opposition was based; infringement of Rule 19(3) in connection with Rule 98(1) of Commission Regulation (EC) No 2868/95, as the Board of Appeal wrongly considered that the translations filed by the applicant were not sufficiently clear and well-structured.

---

| 28.8.2010 | EN | Official Journal of the European Union | C 234/50 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/50

---

Action brought on 30 June 2010 — Sports Warehouse/HABM (TENNIS WAREHOUSE)

(Case T-290/10)

()

2010/C 234/89

Language in which the application was lodged: German

Parties

Applicant: Sports Warehouse GmbH (Schutterwald, Germany) (represented by: M. Douglas, Rechtsanwalt)

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

Form of order sought

| — | Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 21 April 2010 in Case R 1259/2009-1; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 21 April 2010 in Case R 1259/2009-1;

| — | Register the Community trade mark 7536899 ‘TENNIS WAREHOUSE’ |
| --- | --- |

—

Register the Community trade mark 7536899 ‘TENNIS WAREHOUSE’

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

—

Order the Office to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘TENNIS WAREHOUSE’ for goods and services in Classes 25, 28 and 35

Decision of the examiner: Registration refused

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: Infringement of Article 7(1) (b) and (c) of Regulation (EC) No 207/2009, (1) on the ground that the mark was not descriptive in character and that the concept of the need for reservation was ignored; infringement of the duty to state reasons under Article 75 of Regulation (EC) No 207/2009.

---

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

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/51 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/51

---

Action brought on 26 June 2010 — Martin v Commission

(Case T-291/10)

()

2010/C 234/90

Language of the case: English

Parties

Applicants: Anne Martin (Brussels, Belgium), (represented by: U. O’Dwyer, Solicitor)

Defendant: European Commission

Form of order sought

| — | Annul the implied Decision of the Commission of 20 April 2010 to refuse confirmatory access to the applicant’s 4 March 2010 request for access to documents; |
| --- | --- |

—

Annul the implied Decision of the Commission of 20 April 2010 to refuse confirmatory access to the applicant’s 4 March 2010 request for access to documents;

| — | Order for the Commission to comply with Regulation (EC) No 1049/2001 (1) of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents within the time-limits as deemed appropriate by the Court; and |
| --- | --- |

—

Order for the Commission to comply with Regulation (EC) No 1049/2001 (1) of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents within the time-limits as deemed appropriate by the Court; 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

By means of the present application, the applicant seeks, pursuant to Article 263 TFUE, the annulment of the implied Decision of the Commission of 20 April 2010, whereby the latter failed to respond to the applicant’s confirmatory access to documents application to the Secretariat General of the Commission under Article 7(2) of Regulation 1049/2001 re-stating her original access to documents request of 22 December 2009 by the deadline of 20 April 2010.

In support of his appeal, the applicant submits the following pleas in law:

The failure of the Commission to take a decision by the time limit of 20 April 2010 imposed on it by Regulation 1049/2001 constitutes an implied refusal of the confirmatory access to document request of 4 March 2010 of the Applicant and is in breach of Article 8(1) of the said regulation and Article 296 TFEU for failing to state adequate reasons for the refusal.

---

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

---

| 28.8.2010 | EN | Official Journal of the European Union | C 234/51 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/51

---

Action brought on 7 July 2010 — Camara v Council

(Case T-295/10)

()

2010/C 234/91

Language of the case: French

Parties

Applicant: Kerfalla Person Camara (represented by: J.-C. Tchikaya, lawyer)

Defendant: Council of the European Union

Form of order sought

| — | Annul Council Regulation (EU) No 1284/2009 of 22 December 2009 imposing certain specific restrictive measures in respect of the Republic of Guinea, in so far as it concerns the applicant; |
| --- | --- |

—

Annul Council Regulation (EU) No 1284/2009 of 22 December 2009 imposing certain specific restrictive measures in respect of the Republic of Guinea, in so far as it concerns the applicant;

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

—

Order the Council to pay the costs.

Pleas in law and main arguments

The applicant seeks annulment of Council Regulation (EU) No 1284/2009 of 22 December 2009 imposing certain specific restrictive measures in respect of the Republic of Guinea (1) in so far as the applicant is included on the list of natural or legal persons, entities or bodies whose funds and economic resources are frozen under Article 6 of that regulation.

In support of his action, the applicant raises three pleas in law alleging:

| — | a manifest error of assessment in including the applicant on the list of natural or legal persons entities or bodies whose funds and economic resources are frozen; |
| --- | --- |

—

a manifest error of assessment in including the applicant on the list of natural or legal persons entities or bodies whose funds and economic resources are frozen;

| — | an infringement of Article 215(3) TFEU since the contested regulation does not contain any legal guarantees, in particular procedural guarantees; |
| --- | --- |

—

an infringement of Article 215(3) TFEU since the contested regulation does not contain any legal guarantees, in particular procedural guarantees;

| — | an infringement of the Charter of Fundamental Rights of the European Union in so far as the contested regulation infringes, (i) the principle of non-discrimination by maintaining the applicant's name on the list of persons sanctioned because of social background, (ii) his rights of defence in that it does not provide for any procedure to inform the applicant of the evidence against him, (iii) the right to an effective judicial remedy in that the Council did not inform the applicant of his rights of appeal, and (iv) the applicant's right to property. |
| --- | --- |

—

an infringement of the Charter of Fundamental Rights of the European Union in so far as the contested regulation infringes, (i) the principle of non-discrimination by maintaining the applicant's name on the list of persons sanctioned because of social background, (ii) his rights of defence in that it does not provide for any procedure to inform the applicant of the evidence against him, (iii) the right to an effective judicial remedy in that the Council did not inform the applicant of his rights of appeal, and (iv) the applicant's right to property.

---

(1)  OJ 2009 L 346, p. 26.

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/52 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/52

---

Action brought on 15 July 2010 — Babcock Noell v European Joint Undertaking for ITER and the Development of Fusion Energy

(Case T-299/10)

()

2010/C 234/92

Language of the case: English

Parties

Applicant: Babcock Noell GmbH (Würzburg, Germany) (represented by: M. Werner and C. Ebrecht, lawyers)

Defendant: European Joint Undertaking for ITER and the Development of Fusion Energy

Form of order sought

| — | declare void the decisions of the defendant of 1 July 2010 in the procurement procedure F4E-2009-OPE-053 (MS-MG) to eliminate the applicant’s tenders — four separate offers for LOTs A, B, C and D — from the procedure; |
| --- | --- |

—

declare void the decisions of the defendant of 1 July 2010 in the procurement procedure F4E-2009-OPE-053 (MS-MG) to eliminate the applicant’s tenders — four separate offers for LOTs A, B, C and D — from the procedure;

| — | declare void the decision of the defendant of 2 July 2010 in the procurement procedure F4E-2009-OPE-053 (MS-MG) to award the contract to the winning tenderer; |
| --- | --- |

—

declare void the decision of the defendant of 2 July 2010 in the procurement procedure F4E-2009-OPE-053 (MS-MG) to award the contract to the winning tenderer;

| — | order the defendant to cancel the tender procedure F4E-2009-OPE-053 (MS-MG) and to organise a fresh tender procedure for the supply of ITER Toroidal Field Coils Winding Packs; |
| --- | --- |

—

order the defendant to cancel the tender procedure F4E-2009-OPE-053 (MS-MG) and to organise a fresh tender procedure for the supply of ITER Toroidal Field Coils Winding Packs;

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

—

order the defendant to bear the costs.

Pleas in law and main arguments

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

First, it argues that the decisions eliminating the applicant’s bids from the procedure for non-compliance with the tender specifications are in breach of the principle of equal treatment and contain a manifest error of assessment, given that the bids did not contain substantial modifications (‘45 deviations’) to the model contract, as alleged by the defendant, but in fact only a list containing several proposals of issues to be negotiated. Furthermore, the applicant contends that the defendant breached the principles of good administrative practice and transparency in taking these decisions.

Second, the applicant submits that the contested decisions are in breach of the general principle of equal treatment of all tenderers given that the defendant, in the course of the tender procedure, did not remedy the fact that the winning tenderer had a significant information advantage when formulating its tender, as a result of carrying out works for the defendant and other entities prior to the procedure. Furthermore, it claims that the contested decisions are in breach of the transparency principle, as the defendant did not make available to the applicant all information relating to the circumstances and the factual backgrounds for its decision not to reveal relevant information for the assessment of the existence of an information advantage of the winning tenderer.

Third, the applicant argues that the contested decisions are in breach of Article 84 (a) of the Financial Regulation (1), given that the winning tenderer was subject to a conflict of interest with regard to the contract to be awarded.

Fourth, the applicant claims that the contested decisions are in breach of the provisions in Articles 93 and 100(2) (h) of the Implementing Rules (2), given that the decision of the defendant to award the contracts in the tender procedure F4E-2009-OPE-053 (MS-MG) were taken following an open procedure, instead of a competitive dialogue procedure or negotiated procedure.

Fifth, it contends that the contested decisions are in breach of the provision of Article 23 (2) Directive 2004/18/EC (3) (which applies to this tender procedure by way of an analogy), given that the terms and conditions used in the model contract of the tender specifications in the procedure are contrary to the applicable Spanish law and qualify as having the effect of creating unjustified obstacles to the opening up of public procurement for competition.

Sixth, the applicant submits that by making use of vague and unclear requirements in the technical specifications, the defendant has breached the principle of transparency and has disregarded the provision in Article 116(1) of the Implementing Rules.

Finally, it claims that the defendant has breached the principles of transparency and equal treatment by applying award criteria in the tender specifications for the current procedure that are vague and non-transparent and do not refer to the subject of the contract, but to the qualification and selection of the tenderer.

---

(1)  Decision of 22 October 2007 of the Governing Board of the European Joint Undertaking for ITER and the development of Fusion Energy adopting the Financial Regulation

(2)  Decision of 22 October 2007 the Governing Board of the European Joint Undertaking for ITER and the development of Fusion Energy adopting the Implementing Rules of the Financial Regulation (Implementing Rules)

(3)  Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, OJ 2004 L 134, p. 114

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/53 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/53

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Order of the General Court of 29 June 2010 — Bavaria v Council

(Case T-178/06) (1)

()

2010/C 234/93

Language of the case: Dutch

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

---

(1)  OJ C 224, 16.9.2006.

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/53 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/53

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Order of the General Court of 30 June 2010 — Torres v OHIM — Torres de Anguix (A TORRES de ANGUIX)

(Case T-286/07) (1)

()

2010/C 234/94

Language of the case: Spanish

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

---

(1)  OJ C 235, 6.10.2007.

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/54 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/54

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Order of the General Court of 29 June 2010 — Gourmet Burger Kitchen v OHIM (GOURMET BURGER KITCHEN)

(Case T-115/08) (1)

()

2010/C 234/95

Language of the case: English

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

---

(1)  OJ C 107, 26.4.2008.

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/54 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/54

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Order of the General Court of 13 July 2010 — Al Shanfari v Council and Commission

(Case T-121/09) (1)

()

2010/C 234/96

Language of the case: English

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

---

(1)  OJ C 113, 16.5.2009.

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/54 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/54

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Order of the General Court of 30 June 2010 — Centraal bureau voor de statistiek v Commission

(Case T-361/09) (1)

()

2010/C 234/97

Language of the case: Dutch

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

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(1)  OJ C 282, 21.11.2009.

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/54 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/54

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Order of the General Court of 5 July 2010 — Prionics v Commission and EFSA

(Case T-112/10) (1)

()

2010/C 234/98

Language of the case: German

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

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(1)  OJ C 113, 1.5.2010.

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European Union Civil Service Tribunal

| 28.8.2010 | EN | Official Journal of the European Union | C 234/55 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/55

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Judgment of the Civil Service Tribunal (Second Chamber) of 8 July 2010 — Bergström v Commission

(Case F-64/06) (1)

(Staff case - Appointment - Members of the temporary staff appointed as officials - Candidates names included on a reserve list prior to the entry into force of the new Staff Regulations - Transitional rules on grading upon recruitment - Grading pursuant to the new less favourable rules - Article 5(4) and Article 12(3) of Annex XIII to the Staff Regulations)

2010/C 234/99

Language of the case: French

Parties

Applicant: Ragnar Bergström (Linkebeek, Belgium) (represented by: initially, T. Bontinck and J. Feld, lawyers, and, subsequently, T. Bontinck and S. Woog, lawyers)

Defendant: European Commission (represented by: J. Currall and H. Krämer, agents)

Intervener in support of the defendant: Council of the European Union (represented by: M. Arpio Santacruz and I. Šulce, agents)

Re:

Application for annulment of the decision of the Appointing Authority of 10 August 2005 by which the applicant, a member of the temporary staff who was successful in open competition COM/A/3/02, was appointed as an official in Grade A*6, step 2, in accordance with the provisions of Annex XIII to the Staff Regulations.

Operative part of the judgment

The Tribunal:

| 1. | Dismisses the application. |
| --- | --- |

1.

Dismisses the application.

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

2.

Orders each party to bear its own costs.

---

(1)  OJ C 165, 15.7.2006, p. 36.

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/55 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/55

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Judgment of the Civil Service Tribunal (Second Chamber) of 8 July 2010 — Lesniak v Commission

(Case F-67/06) (1)

(Civil Service - Officials - Appointment - Temporary agents appointed as officials - Candidates placed on a reserve list prior to the entry into force of the new Staff Regulations - Transitional rules governing classification in grade at the time of recruitment - Classification in grade pursuant to the new, less favourable rules - Article 5(4) and Article 12(3) of Annex XIII to the Staff Regulations)

2010/C 234/100

Language of the case: French

Parties

Applicant: Christophe Lesniak (Brussels, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal, lawyers)

Defendant: European Commission (represented by: J. Currall and H. Krämer, Agents)

Intervener in support of the defendant: Council of the European Union (represented by: M. Simm and I. Šulce, Agents)

Re:

Annulment of the Commission decision of 8 August 2005 appointing the applicant — at that time a member of the temporary staff in grade A*10, step 2, and a successful candidate in External Competition PE/99/A — as a probationary official in grade A*6, step 2

Operative part of the judgment

The Tribunal:

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

1.

Dismisses the action;

| 2. | Orders the parties to beat their own respective costs. |
| --- | --- |

2.

Orders the parties to beat their own respective costs.

---

(1)  OJ C 178 of 29.07.06, p. 43.

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/56 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/56

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Judgment of the Civil Service Tribunal (Second Chamber) of 8 July 2010 — Kurrer v Commission

(Case F-139/06) (1)

(Civil Service - Officials - Appointment - Temporary agents appointed as officials - Candidates placed on a reserve list prior to the entry into force of the new Staff Regulations - Transitional rules governing classification in grade at the time of recruitment - Classification in grade pursuant to the new, less favourable rules - Article 5(4) and Article 12(3) of Annex XIII to the Staff Regulations)

2010/C 234/101

Language of the case: French

Parties

Applicant: Christian Kurrer (Watermael-Boitsfort, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal, lawyers)

Defendant: European Commission (represented by: J. Currall and H. Krämer, Agents)

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

Re:

Annulment of the Commission decision, effective from 1 April 2006, by which the applicant — a member of the temporary staff in grade A7 (now grade A*8) and a successful candidate in Open Competition COM/A/3/03 — was appointed as an official in grade A*6, step 2, pursuant to the provisions of Annex XIII to the Staff Regulations, without maintenance of the points which he had accumulated as a member of the temporary staff

Operative part of the judgment

The Tribunal:

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

1.

Dismisses the action;

| 2. | Orders the parties to bear their own respective costs. |
| --- | --- |

2.

Orders the parties to bear their own respective costs.

---

(1)  OJ C 20 of 27.01.07, p. 39.

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/56 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/56

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Judgment of the Civil Service Tribunal (Plenary Formation) of 5 May 2010 — Bouillez and Others v Council

(Case F-53/08) (1)

(Staff cases - Officials - Promotion - 2007 promotion procedure - Interest in bringing proceedings - Promotion decision - Liste of promoted officials - Consideration of the comparative merits - Criterion of the level of responsibility held - Application for annulment of the promotion decisions - Balance of interests)

2010/C 234/102

Language of the case: French

Parties

Applicants: Vincent Bouillez (Overijse, Belgium) and Others (represented by: S. Orlandi, A. Coolen, J.-N. Louis, E. Marchal, lawyers)

Defendant: Council of the European Union

Interveners: Eliza Niniou and Maria-Béatrice Postiglione Branco, residing at Schaerbeek (Belgium) and at Kraainem (Belgium) respectively, (represented by: T. Bontinck and S. Woog initially, and then by T. Bontinck and S. Greco, lawyers)

and

Maria De Jesus Cabrita and Marie-France Liegard, officials of the Council of the European Union, residing in Brussels (Belgium), (represented by: N. Lhoëst initially, then by N. Lhoëst and L. Delhaye, lawyers)

Re:

Annulment of the decisions of the appointing authority not to promote the applicants to grade AST 7 under the 2007 promotion procedure

Operative part of the judgment

The Tribunal:

| 1. | Annuls the decisions by which the Council of the European Union refused to promote Mr Bouillez and Van Neyghem and Ms Wagner-Leclercq to grade AST 7 under the 2007 promotion procedure; |
| --- | --- |

1.

Annuls the decisions by which the Council of the European Union refused to promote Mr Bouillez and Van Neyghem and Ms Wagner-Leclercq to grade AST 7 under the 2007 promotion procedure;

| 2. | Dismisses the remainder of the claims in the actions brought by Mr Bouillez and Van Neyghem and by Ms Wagner-Leclercq; |
| --- | --- |

2.

Dismisses the remainder of the claims in the actions brought by Mr Bouillez and Van Neyghem and by Ms Wagner-Leclercq;

| 3. | Orders the Council of the European Union to pay the costs; |
| --- | --- |

3.

Orders the Council of the European Union to pay the costs;

| 4. | Orders the interveners to bear their own costs. |
| --- | --- |

4.

Orders the interveners to bear their own costs.

---

(1)  OJ C 183, 19.7.2008, p. 35.

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/57 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/57

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Judgment of the Civil Service Tribunal (Third Chamber) of 24 February 2010 — P v Parliament

(Case F-89/08) (1)

(Staff case - Temporary staff - European Parliament - Dismissal - Loss of confidence)

2010/C 234/103

Language of the case: French

Parties

Applicant: P (Brussels, Belgium) (represented by: E. Boigelot, lawyer)

Defendant: European Parliament (represented by: S. Seyr, A. Lukošiūtė and R. Ignătescu, agents)

Re:

First, application for annulment of the decision of the Parliament to dismiss the applicant with three months’ notice and, second, a claim for damages.

Operative part of the judgment

The Tribunal:

| 1. | Dismisses the application. |
| --- | --- |

1.

Dismisses the application.

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

2.

Orders each party to bear its own costs.

---

(1)  OJ C 44, 21.2.2009, p. 74.

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/57 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/57

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Judgment of the Civil Service Tribunal (Third Chamber) of 24 February 2010 — Menghi v ENISA

(Case F-2/09) (1)

(Civil Service - Temporary staff - Dismissal following end of the probationary period - Psychological harassment)

2010/C 234/104

Language of the case: French

Parties

Applicant: Riccardo Achille Menghi (Cagliari, Italy) (represented by: L. Defalque, lawyer)

Defendant: European Network and Information Security Agency (represented by: E. Maurage, Agent, and B. Wägenbaur, lawyer)

Re:

Annulment of the decision not to confirm the applicant’s contract after the probationary period and an application for compensation for the material and non-material harm suffered.

Operative part of the judgment

The Tribunal:

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

1.

Dismisses the action;

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

2.

Orders each party to bear its own costs.

---

(1)  OJ C 55 of 07.03.2009, p. 53.

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/57 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/57

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Judgment of the Civil Service Tribunal (First Chamber) of 11 May 2010 — Maxwell v Commission

(Case F-55/09) (1)

(Staff case - Officials - Secondment in the interests of the service - Leave on personal grounds - Accommodation and education expenses - Action for damages - Liability for a wrongful act - Unjust enrichment)

2010/C 234/105

Language of the case: French

Parties

Applicant: Allan Maxwell (Brussels, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers)

Defendant: European Commission (represented by: J. Currall and J. Baquero Cruz, agents)

Re:

Application for compensation for the loss suffered by the applicant during his leave on personal grounds taken to perform the duties of ‘EU Senior Adviser’ at the Korean Peninsular Energy Development Organization, loss resulting from the failure to reimburse accommodation and education expenses.

Operative part of the judgment

The Tribunal:

| 1. | Dismisses Mr Maxwell’s application. |
| --- | --- |

1.

Dismisses Mr Maxwell’s application.

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

2.

Orders each party to bear its own costs.

---

(1)  OJ C 180, 1.8.2009, p. 64.

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/58 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/58

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Order of the Civil Service Tribunal (First Chamber) of 22 June 2010 — Marcuccio v Commission

(Case F-78/09) (1)

(Staff cases - Officials - Action for damages - Reimbursement of costs - Availability of a parallel remedy - Manifestly inadmissible)

2010/C 234/106

Language of the case: Italian

Parties

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

Defendant: European Commission (represented by: J. Currall and C. Berardis-Kayser, Agents)

Re:

First, application for annulment of the Commission’s decision rejecting the applicant’s application for reimbursement of the costs he incurred in Case T-18/04 and which the defendant was ordered to pay by judgment of 10 June 2008. Secondly, an application for damages.

Operative part of the order

| 1. | Mr Marcuccio’s action is dismissed as manifestly inadmissible. |
| --- | --- |

1.

Mr Marcuccio’s action is dismissed as manifestly inadmissible.

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

2.

The parties are to bear their own costs.

---

(1)  OJ C 312, 19.12.2009, p. 43

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| 28.8.2010 | EN | Official Journal of the European Union | C 234/58 |
| --- | --- | --- | --- |

28.8.2010

EN

Official Journal of the European Union

C 234/58

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Action brought on 26 May 2010 — Arango Jaramillo and Others v EIB

(Case F-34/10)

()

2010/C 234/107

Language of the case: French

Parties

Applicants: Oscar Orlando Arango Jaramillo (Luxembourg, Luxembourg) and Others (represented by: B. Cortese, C. Cortese and F. Spitaleri, lawyers)

Defendant: European Investment Bank

Subject-matter and description of the proceedings

Annulment of the EIB’s decisions to increase the applicants’ contributions to the pension system and compensation for the non-material harm suffered by them.

Form of order sought

The applicant claims that the Tribunal should:

| — | annul the decisions of the EIB relating to the applicants’ salary slips for February 2010, which increase the applicants’ contributions to the pension system, through the increase of the basis for calculation (the salary subject to deduction) of those contributions on the one hand, and of the coefficient for calculation, expressed as a percentage of that salary subject to deduction, on the other; |
| --- | --- |

—

annul the decisions of the EIB relating to the applicants’ salary slips for February 2010, which increase the applicants’ contributions to the pension system, through the increase of the basis for calculation (the salary subject to deduction) of those contributions on the one hand, and of the coefficient for calculation, expressed as a percentage of that salary subject to deduction, on the other;

| — | order the Bank to pay a symbolic EUR 1, by way of compensation for the non-material harm suffered by the applicants; |
| --- | --- |

—

order the Bank to pay a symbolic EUR 1, by way of compensation for the non-material harm suffered by the applicants;

| — | order the European Investment Bank to pay the costs. |
| --- | --- |

—

order the European Investment Bank to pay the costs.

---