# Official Journal C 6/2009

| | ISSN 1725-2423 |
| --- | --- |
| Official Journal
  of the European Union | C 6 |
| | |
| English edition | Information and Notices | Volume 5210 January 2009 |

ISSN 1725-2423

Official Journal

of the European Union

C 6

English edition

Information and Notices

Volume 5210 January 2009

---

| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES |
| | Court of Justice |
| 2009/C 006/01 | Last publication of the Court of Justice in the Official Journal of the European Union
  OJ C 327, 20.12.2008 | 1 |

Notice No

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Court of Justice

2009/C 006/01

Last publication of the Court of Justice in the Official Journal of the European Union
  OJ C 327, 20.12.2008

Official Journal of the European Union

1

| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2009/C 006/02 | Case C-66/06: Judgment of the Court (Second Chamber) of 20 November 2008 — Commission of the European Communities v Ireland (Failure of a Member State to fulfil obligations — Directive 85/337/EEC — Assessment of the effects of projects on the environment — Consent given without an assessment) | 2 |
| 2009/C 006/03 | Case C-1/07: Judgment of the Court (Third Chamber) of 20 November 2008 (Reference for a preliminary ruling from the Landgericht Siegen — Germany) — Criminal proceedings against Frank Weber (Directive 91/439/EEC — Mutual recognition of driving licences — Temporary suspension of a driving licence — Withdrawal of right to drive — Validity of a second driving licence obtained in another Member State during the period of temporary suspension) | 2 |
| 2009/C 006/04 | Case C-38/07 P: Judgment of the Court (Second Chamber) of 20 November 2008 — Heuschen & Schrouff Oriëntal Foods Trading BV v Commission of the European Communities (Appeal — Remission of import duties — Commission decision — Article 239 of the Customs Code — Existence of a special situation — Absence of deception — Obvious negligence on the part of the importer) | 3 |
| 2009/C 006/05 | Case C-46/07: Judgment of the Court (Fourth Chamber) of 13 November 2008 — Commission of the European Communities v Italian Republic (Failure of Member State to fulfil its obligations — Article 141 EC — Social Policy — Equal pay for male and female workers — Concept of pay — Officials' retirement scheme) | 3 |
| 2009/C 006/06 | Case C-158/07: Judgment of the Court (Grand Chamber) of 18 November 2008 (reference for a preliminary ruling from the Centrale Raad van Beroep — Netherlands) — Jacqueline Förster v Hoofddirectie van de Informatie Beheer Groep (Freedom of movement for persons — Student who is a national of one Member State and goes to another Member State to follow a training course — Student maintenance grant — Citizenship of the Union — Article 12 EC — Legal certainty) | 4 |
| 2009/C 006/07 | Case C-209/07: Judgment of the Court (Third Chamber) of 20 November 2008 (Reference for a preliminary ruling from the Supreme Court — Ireland) — The Competition Authority v Beef Industry Development Society Ltd, Barry Brothers (Carrigmore) Meats Ltd (Competition — Article 81(1) EC — Concept of an agreement having as its object the restriction of competition — Agreement to reduce production capacity — Beef and veal) | 4 |
| 2009/C 006/08 | Case C-214/07: Judgment of the Court (Second Chamber) of 13 November 2008 — Commission of the European Communities v French Republic (State aid — Aid scheme — Incompatibility with the common market — Implementation of the decision — Recovery of the aid granted — Absolute impossibility of giving effect to a decision) | 5 |
| 2009/C 006/09 | Case C-227/07: Judgment of the Court (Second Chamber) of 13 November 2008 — Commission of the European Communities v Republic of Poland (Failure of a Member State to fulfil obligations — Electronic communications — Networks and services — Directive 2002/19/EC (Access Directive) — Article 4(1) and the first subparagraph of Article 5(1) — Incorrect transposition) | 5 |
| 2009/C 006/10 | Case C-324/07: Judgment of the Court (Third Chamber) of 13 November 2008 (Reference for a preliminary ruling from the Conseil d'État — Belgium) — Coditel Brabant SPRL v Commune d'Uccle, Région de Bruxelles-Capitale (Public procurement — Tendering procedures — Public service concessions — Concession for the operation of a municipal cable television network — Award by a municipality to an inter-municipal cooperative society — Obligation of transparency — Conditions — Whether the control exercised by the concession-granting authority over the concessionaire is similar to that exercised over its own departments) | 6 |
| 2009/C 006/11 | Case C-375/07: Judgment of the Court (Second Chamber) of 20 November 2008 (reference for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Staatssecretaris van Financiën v Heuschen & Schrouff Oriëntal Foods Trading BV (Reference for a preliminary ruling — Validity of a classification regulation — Interpretation of the Annex to Regulation (EC) No 1196/97 — Articles 220 and 239 of the Customs Code — Articles 871 and 905 of Regulation (EEC) No 2454/93 — Dried sheets consisting of rice flour, salt and water — Tariff classification — Post-clearance recovery of import duties — Procedure for remission — Detectable error on the part of the customs authorities — Obvious negligence on the part of the importer) | 6 |
| 2009/C 006/12 | Case C-436/07 P: Judgment of the Court (Fourth Chamber) of 13 November 2008 — Commission of the European Communities v Efrosyni Alexiadou (Appeal — Arbitration clause — Contract concerning a technological development programme relating to the production of water-repellent leather — Repayment of advance paid — Interest) | 7 |
| 2009/C 006/13 | Case C-437/07: Judgment of the Court (Third Chamber) of 13 November 2008 — Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Public procurement — Design and construction of a municipal tramway — Public works contract — Award by means of a procedure for the award of a public works concession — Infringement of Directive 93/37) | 8 |
| 2009/C 006/14 | Case C-18/08: Judgment of the Court (Second Chamber) of 20 November 2008 (reference for a preliminary ruling from the Tribunal d'instance de Bordeaux — France) — Foselev Sud-Ouest SARL v Administration des douanes et droits indirects (Tax on motor vehicles — Directive 1999/62/EC — Charging of heavy goods vehicles for the use of certain infrastructures — Article 6(2)(b) — Commission decision approving an exemption — No direct effect) | 8 |
| 2009/C 006/15 | Case C-94/08: Judgment of the Court (Sixth Chamber) of 20 November 2008 — Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil its obligations — Posts of ship's captain and chief mate — Nationality clause) | 9 |
| 2009/C 006/16 | Case C-408/08 P: Appeal brought on 22 September 2008 by Lancôme parfums et beauté & Cie SNC against the judgment of the Court of First Instance (Second Chamber) delivered on 8 July 2008 in Case T-160/07 Lancôme v OHIM — CMS Hasche Sigle | 9 |
| 2009/C 006/17 | Case C-442/08: Action brought on 6 October 2008 — Commission of the European Communities v Federal Republic of Germany | 10 |
| 2009/C 006/18 | Case C-443/08: Action brought on 7 October 2008 — Commission of the European Communities v French Republic | 11 |
| 2009/C 006/19 | Case C-449/08: Reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven (Netherlands), lodged on 13 October 2008 — G. Elbertsen v Minister van Landbouw, Natuur en Voedselkwaliteit | 12 |
| 2009/C 006/20 | Case C-451/08: Reference for a preliminary ruling from the Oberlandesgericht Düsseldorf (Germany) lodged on 16 October 2008 — Helmut Müller GmbH v Bundesanstalt für Immobilienaufgaben | 12 |
| 2009/C 006/21 | Case C-452/08: Reference for a preliminary ruling from the Tribunal Superior de Justicia de la Comunidad Autónoma del País Vasco (Spain) lodged on 16 October 2008 — Emilia Flores Fanega v Instituto Nacional de la Seguridad Social (INSS), Tesorería General de la Seguridad Social (TGSS) and Bolumburu S.A. | 13 |
| 2009/C 006/22 | Case C-468/08: Action brought on 30 October 2008 — Commission of the European Communities v French Republic | 14 |
| 2009/C 006/23 | Case C-469/08: Action brought on 30 October 2008 — Commission of the European Communities v Kingdom of Belgium | 14 |
| 2009/C 006/24 | Case C-470/08: Reference for a preliminary ruling from the Gerechtshof te Arnhem (Netherlands), lodged on 3 November 2008 — K. van Dijk v Gemeente Kampen | 15 |
| 2009/C 006/25 | Case C-490/08: Action brought on 12 November 2008 — Commission of the European Communities v Kingdom of Belgium | 15 |
| 2009/C 006/26 | Case C-493/08: Action brought on 14 November 2008 — Commission of the European Communities v Hellenic Republic | 16 |
| 2009/C 006/27 | Case C-500/08: Action brought on 19 November 2008 — Commission of the European Communities v Italian Republic | 16 |
| 2009/C 006/28 | Case C-502/08: Action brought on 20 November 2008 — Commission of the European Communities v Kingdom of Spain | 17 |
| 2009/C 006/29 | Case C-503/08: Action brought on 20 November 2008 — Commission of the European Communities v Kingdom of Spain | 17 |
| 2009/C 006/30 | Case C-504/08: Action brought on 20 November 2008 — Commission of the European Communities v Kingdom of Spain | 17 |
| 2009/C 006/31 | Case C-187/06: Order of the President of the Court of 26 September 2008 — Commission of the European Communities v Kingdom of Belgium | 18 |
| 2009/C 006/32 | Case C-508/07 P: Order of the President of the Eighth Chamber of the Court of 8 October 2008 — Cain Cellars, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) | 18 |
| 2009/C 006/33 | Case C-11/08: Order of the President of the Court of 3 October 2008 — Commission of the European Communities v Republic of Malta | 18 |
| 2009/C 006/34 | Case C-68/08: Order of the President of the Court of 16 October 2008 — Commission of the European Communities v Republic of Estonia | 18 |
| 2009/C 006/35 | Case C-71/08: Order of the President of the Eighth Chamber of the Court of 14 October 2008 — Commission of the European Communities v Czech Republic | 18 |
| 2009/C 006/36 | Case C-270/08: Order of the President of the Court of 28 October 2008 — Commission of the European Communities v Republic of Hungary | 18 |
| | Court of First Instance |
| 2009/C 006/37 | Case T-7/04: Judgment of the Court of First Instance of 12 November 2008 — Shaker v OHIM — Limiñana y Botella (Limoncello della Costiera Amalfitana shaker) (Community trade mark — Opposition proceedings — Application for figurative Community trade mark Limoncello della Costiera Amalfitana shaker — Earlier national word mark LIMONCHELO — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94 — Appeal — Case referred back to the Court of First Instance) | 19 |
| 2009/C 006/38 | Case T-224/04: Judgment of the Court of First Instance (Seventh Chamber) of 13 November 2008 — Italian Republic v Commission (EAGGF — Guarantee Section — Expenditure excluded from Community financing — Aid for the processing of tomatoes and production of olive oil) | 19 |
| 2009/C 006/39 | Case T-128/05: Judgment of the Court of First Instance (Eighth Chamber) of 13 November 2008 — SPM v Council and Commission (Non-contractual liability of the Community — Common organisation of the markets — Bananas — Rules for importing of bananas from ACP countries into the European Union — Lawful or unlawful conduct — Loss allegedly suffered by independent ACP producer) | 20 |
| 2009/C 006/40 | Case T-185/05: Judgment of the Court of First Instance of 20 November 2008 — Italian Republic v Commission (Rules on languages — Implementing rules for recruitment to the European Union Civil Service — Action for annulment under Article 230 EC — Action brought by a Member State against, first, a Commission decision to publish vacancy notices for senior management posts in English, French and German and, second, a Commission vacancy notice published in those three languages for the post of Director-General of OLAF — Admissibility — Time-limit for bringing an action — Measures against which an action may be brought — Statement of reasons — Articles 12 EC, 230 EC and 290 EC — Regulation No 1 — Articles 1d and 27 of the Staff Regulations — Principle of non-discrimination) | 20 |
| 2009/C 006/41 | Case T-210/05: Judgment of the Court of First Instance of 12 November 2008 — Nalocebar v OHIM — Limiñana y Botella (Limoncello di Capri) (Community trade mark — Opposition proceedings — Application for figurative Community trade mark Limoncello di Capri — Earlier national word mark LIMONCHELO — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94) | 21 |
| 2009/C 006/42 | Case T-404/05: Judgment of the Court of First Instance of 19 November 2008 — Greece v Commission (Cohesion Fund — Athens International Airport — Reduction of financial assistance — Principle of proportionality) | 21 |
| 2009/C 006/43 | Case T-187/06: Order of the Court of First Instance of 19 November 2008 — Ralf Schräder v OHIM — (SUMCOL 01) (Community plant variety rights — Plant variety SUMCOL 01 — Rejection of the application for a Community plant variety right — Lack of distinctive character of the candidate variety) | 21 |
| 2009/C 006/44 | Case T-269/06: Judgment of the Court of First Instance of 19 November 2008 — Rautaruukki v OHIM — (RAUTARUUKKI) (Community trade mark — Application for the Community word mark RAUTARUUKKI — Absolute grounds for refusal of registration — Descriptive character — Absence of distinctive character — Article 7(1)(b) and (c) and Article 7(3) of Regulation (EC) No 40/94 — Evidence offered in support) | 22 |
| 2009/C 006/45 | Case T-270/06: Judgment of the Court of First Instance of 12 November 2008 — Lego Juris v OHIM — Mega Brands (Red Lego brick) (Community trade mark — Application for a three-dimensional Community trade mark — Red Lego brick — Absolute ground for refusal — Sign which consists exclusively of the shape of goods which is necessary to obtain a technical result — Article 7(1)(e)(ii) of Regulation (EC) No 40/94 — Offers of evidence) | 22 |
| 2009/C 006/46 | Case T-315/06: Judgment of the Court of First Instance of 19 November 2008 — Ercros v OHIM (Community trade mark — Opposition proceedings — Application for the Community figurative mark TAI CROS — Earlier national word marks CROS, SOCIEDAD ANÓNIMA CROS and ERCROS — Earlier national figurative marks CROS — Relative ground for refusal — No likelihood of confusion — No similarity of the signs — Article 8(1)(b) of Regulation (EC) No 40/94) | 23 |
| 2009/C 006/47 | Case T-316/06: Judgment of the Court of First Instance of 19 November 2008 — Commission v Premium (Arbitration clause — Contracts entered into under a specific research and technological development programme in the field of information technology — Repayment of part of the advance payment made by the Community — Default interest) | 23 |
| 2009/C 006/48 | Case T-406/06: Judgment of the Court of First Instance of 12 November 2008 — Evropaïki Dynamiki v Commission (Public service contracts — Invitation to tender concerning support services for the system of registries established under Directive 2003/87/EC — Rejection of a tender — Decision to award the contract to another tenderer — Manifest error of assessment — Obligation to state the reasons on which the decision is based — Claim for damages) | 24 |
| 2009/C 006/49 | Case T-6/07: Judgment of the Court of First Instance of 19 November 2008 — Galderma v OHIM — Lelas (Nanolat) (Community trade mark — Opposition proceedings — Application for the Community word mark Nanolat — Earlier national word mark TANNOLACT — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94) | 24 |
| 2009/C 006/50 | Case T-60/07: Judgment of the Court of First Instance of 12 November 2008 — Spain v Commission (EAGGF — Guarantee Section — Expenditure excluded from Community financing — Fruit and vegetable sector — Environmental protection — Administrative procedure) | 25 |
| 2009/C 006/51 | Case T-70/07: Judgment of the Court of First Instance (Eighth Chamber) of 12 November 2008 — Cantieri Navali Termoli v Commission (State Aid — Shipbuilding — Operating aid linked to contracts for ships — Application for extension of ship delivery limit under Article 3 of Regulation (EC) No 1540/98 — Causal link between the exceptional event and the delay) | 25 |
| 2009/C 006/52 | Case T-87/07: Judgment of the Court of First Instance of 12 November 2008 — Scil proteins v OHIM — Indena (affilene) (Community trade mark — Opposition proceedings — Application for Community figurative mark affilene — Earlier Community word mark AFFILIN — Relative ground for refusal — Likelihood of confusion — Similarity between products — Article 8(1)(b) of Regulation (EC) No 40/94) | 26 |
| 2009/C 006/53 | Case T-242/07: Judgment of the Court of First Instance of 12 November 2008 — Weiler v OHIM — IQNet Association — The International Certification Network (Q2WEB) (Community trade mark — Invalidity proceedings — Community word mark Q2WEB — Earlier Community word mark QWEB and earlier Community figurative mark QWEB Certified Site — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) and Article 52(1)(a) of Regulation (EC) No 40/94) | 26 |
| 2009/C 006/54 | Case T-281/07: Judgment of the Court of First Instance of 12 November 2008 — ecoblue v OHIM — Banco Bilbao Vizcaya Argentaria (Ecoblue) (Community trade mark — Opposition proceedings — Application for the Community word mark Ecoblue — Earlier Community word mark BLUE — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 40/94) | 27 |
| 2009/C 006/55 | Case T-317/07: Judgment of the Court of First Instance of 19 November 2008 — Commission v B2 Test (Arbitration clause — Contract concluded in the framework of the specific programme for research and technological development, including demonstration, in the field of industrial and materials technologies (1994-1998) — Breach of contract — Repayment of balance of advance paid by the Commission) | 27 |
| 2009/C 006/56 | Case T-325/07: Judgment of the Court of First Instance of 25 November 2008 — Caisse fédérale du Crédit mutuel Centre-Est Europe v OHIM (SURFCARD) (Community trade mark — Application for Community word mark SURFCARD — Absolute ground for refusal — Partially descriptive character — Article 7(1)(c) of Regulation (EC) No 40/94) | 27 |
| 2009/C 006/57 | Case T-346/07: Judgment of the Court of First Instance of 13 November 2008 — Duro Sweden v OHIM (EASYCOVER) (Community trade mark — Application for the Community word mark EASYCOVER — Absolute grounds for refusal — Article 7(1)(b) and (c) of Regulation (EC) No 40/94 — Article 73 of Regulation No 40/94) | 28 |
| 2009/C 006/58 | Case T-373/07: Judgment of the Court of First Instance of 12 November 2008 — EOS v OHIM (PrimeCast) (Community trade mark — Application for Community word mark PrimeCast — Absolute grounds for refusal — Descriptive character — Lack of distinctive character — Article 7(1)(b) and (c) of Regulation (EC) No 40/94) | 28 |
| 2009/C 006/59 | Case T-400/07: Judgment of the Court of First Instance of 12 November 2008 — GretagMacbeth v OHIM (Combination of 24 coloured squares) (Community trade mark — Application for Community colour mark — Combination of 24 coloured squares — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 40/94) | 29 |
| 2009/C 006/60 | Case T-301/06: Order of the Court of First Instance of 13 November 2008 — Lemaître Sécurité v Commission (Action for annulment — Dumping — Imports of footwear with a protective toecap originating in the People's Republic of China and India — Commission Decision closing the anti-dumping proceeding — Not individually concerned — Manifest inadmissibility) | 29 |
| 2009/C 006/61 | Case T-241/07: Order of the Court of First Instance of 27 October 2008 — Buzzi Unichem v Commission (Action for annulment — Directive 2003/87/EC — System of exchange of greenhouse gas emissions allowances — National plan for the allocation of emission allowances for Italy for the period from 2008 to 2012 — Commission Decision not to raise objections on certain conditions — Not individually concerned — Inadmissibility) | 30 |
| 2009/C 006/62 | Case T-403/07: Order of the Court of First Instance of 3 November 2008 — Union nationale de l'apiculture française and Others v Commission (Action for annulment — Directive 91/414/EEC — Plant protection products — Directive 2007/52/EC — Not individually concerned — Inadmissibility) | 30 |
| 2009/C 006/63 | Case T-45/08: Order of the Court of First Instance of 14 November 2008 — Transportes Evaristo Molina v Commission (Action for annulment — Time-limits for commencing proceedings — Starting point — Publication in the Official Journal — Alleged lack of locus standi at the date of publication — Inadmissibility) | 31 |
| 2009/C 006/64 | Case T-222/08: Order of the Court of First Instance of 17 November 2008 — Sanatur v OHIM — Sektkellerei Schloss Wachenheim (life light) (Community trade mark — Opposition — Withdrawal of opposition — No need to adjudicate) | 31 |
| 2009/C 006/65 | Case T-422/08 R: Order of the President of the Court of First Instance of 14 November 2008 — Sacem v Commission (Interim measures — Decision of the Commission ordering cessation of a concerted practice in connection with the collective management of author's rights — Application for stay of execution — Lack of urgency) | 31 |
| 2009/C 006/66 | Case T-405/08: Action brought on 18 September 2008 — SPAR Österreichische Warenhandel v Commission | 32 |
| 2009/C 006/67 | Case T-424/08: Action brought on 16 September 2008 — Nexus Europe (Ireland)/Commission | 32 |
| 2009/C 006/68 | Case T-441/08: Action brought on 26 September 2008 — ICO Services Ltd v Parliament and Council | 33 |
| 2009/C 006/69 | Case T-450/08: Action brought on 6 October 2008 — Coverpla v OHIM — Heinz-Glas (design) | 34 |
| 2009/C 006/70 | Case T-452/08: Action brought on 6 October 2008 — DHL Aviation et DHL Hub Leipzig/Commission | 34 |
| 2009/C 006/71 | Case T-458/08: Action brought on 9 October 2008 — Wilfer v OHIM | 35 |
| 2009/C 006/72 | Case T-466/08: Action brought on 21 October 2008 — Lancôme v OHIM — Focus Magazin Verlag (ACNO FOCUS) | 36 |
| 2009/C 006/73 | Case T-467/08: Action brought on 17 October 2008 — ISDIN v OHIM — Pfizer (ISDIN) | 36 |
| 2009/C 006/74 | Case T-468/08: Action brought on 21 October 2008 — AES-Tisza v Commission | 37 |
| 2009/C 006/75 | Case T-472/08: Action brought on 22 October 2008 — Companhia Muller de Bebidas v OHIM — Missiato Industria e Comercio (61 A NOSSA ALEGRIA) | 38 |
| 2009/C 006/76 | Case T-473/08: Action brought on 28 October 2008 — Apollo Group v OHIM (THINKING AHEAD) | 38 |
| 2009/C 006/77 | Case T-477/08: Action brought on 3 November 2008 — Mundipharma v OHIM — ALK-Abelló (AVANZALENE) | 39 |
| 2009/C 006/78 | Case T-479/08: Action brought on 10 November 2008 — adidas v OHIM — Patrick Holding (Representation of a shoe with two stripes) | 39 |
| 2009/C 006/79 | Case T-481/08: Action brought on 5 November 2008 — Alisei v Commission | 40 |
| 2009/C 006/80 | Case T-486/08: Action brought on 14 November 2008 — Earle Beauty v OHIM (SUPERSKIN) | 41 |
| 2009/C 006/81 | Case T-489/08: Action brought on 17 November 2008 — Power-One Italy v Commission | 41 |
| 2009/C 006/82 | Case T-490/08: Action brought on 17 November 2008 — CM Capital Markets v OHIM — Carbon Capital Markets (CARBON CAPITAL MARKETS Emissions Compliance Solutions & Carbon Finance) | 42 |
| 2009/C 006/83 | Case T-383/03: Order of the Court of First Instance of 17 November 2008 — Hynix Semiconductor v Council | 42 |
| 2009/C 006/84 | Case T-384/05: Order of the Court of First Instance of 14 November 2008 — Abruzzo v Commission | 43 |
| 2009/C 006/85 | Case T-241/06: Order of the Court of First Instance of 17 November 2008 — Reitz and von Gadomski v OHIM (CMD-CLINIC) | 43 |
| 2009/C 006/86 | Case T-303/07: Order of the Court of First Instance of 12 November 2008 — Nölle v OHIM — Viña Carta Vieja (Puzzle) | 43 |
| 2009/C 006/87 | Case T-173/08: Order of the Court of First Instance of 19 November 2008 — Messe Düsseldorf v OHIM — Canon Communications (MEDTEC) | 43 |
| | European Union Civil Service Tribunal |
| 2009/C 006/88 | Case F-41/06: Judgment of the Civil Service Tribunal (First Chamber) of 4 November 2008 — Marcuccio v Commission (Staff cases — Officials — Social security — Insurance against the risk of accident and occupational disease — Invalidity — Retirement on the ground of invalidity — Statement of reasons — Annulment) | 44 |
| 2009/C 006/89 | Case F-145/07: Judgment of the Civil Service Tribunal (First Chamber) of 25 November 2008 — Pierre Bosman v Council of the European Union (Staff case — Former member of the contract staff — Retirement pension — Household allowance — Article 109(3) of the CEOS) | 44 |
| 2009/C 006/90 | Case F-133/06: Order of the Civil Service Tribunal (First Chamber) of 4 November 2008 — Marcuccio v Commission (Staff cases — Officials — Application for the restitution of personal property — Decision rejecting the complaint drafted in a language other than the official's native language — Action out of time — Manifest inadmissibility) | 45 |
| 2009/C 006/91 | Case F-18/07: Order of the Civil Service Tribunal (First Chamber) of 4 November 2008 — Marcuccio v Commission (Staff cases — Officials — Claim — Explicit rejection notified after the implicit rejection — Purely confirmatory measure — Complaint made out of time — Manifest inadmissibility) | 45 |
| 2009/C 006/92 | Case F-87/07: Order of the Civil Service Tribunal (First Chamber) of 4 November 2008 — Marcuccio v Commission (Staff cases — Officials — Action for damages — Allegedly unlawful conduct on the part of the Commission's Medical Service — Inadmissibility — Failure to comply with a reasonable period for lodging a claim for compensation) | 45 |
| 2009/C 006/93 | Case F-91/08: Action brought on 6 November 2008 — Pleijte v Commission | 46 |
| 2009/C 006/94 | Case F-94/08: Action brought on 19 November 2008 — Marcuccio v Commission | 46 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2009/C 006/02

Case C-66/06: Judgment of the Court (Second Chamber) of 20 November 2008 — Commission of the European Communities v Ireland (Failure of a Member State to fulfil obligations — Directive 85/337/EEC — Assessment of the effects of projects on the environment — Consent given without an assessment)

2

2009/C 006/03

Case C-1/07: Judgment of the Court (Third Chamber) of 20 November 2008 (Reference for a preliminary ruling from the Landgericht Siegen — Germany) — Criminal proceedings against Frank Weber (Directive 91/439/EEC — Mutual recognition of driving licences — Temporary suspension of a driving licence — Withdrawal of right to drive — Validity of a second driving licence obtained in another Member State during the period of temporary suspension)

2

2009/C 006/04

Case C-38/07 P: Judgment of the Court (Second Chamber) of 20 November 2008 — Heuschen & Schrouff Oriëntal Foods Trading BV v Commission of the European Communities (Appeal — Remission of import duties — Commission decision — Article 239 of the Customs Code — Existence of a special situation — Absence of deception — Obvious negligence on the part of the importer)

3

2009/C 006/05

Case C-46/07: Judgment of the Court (Fourth Chamber) of 13 November 2008 — Commission of the European Communities v Italian Republic (Failure of Member State to fulfil its obligations — Article 141 EC — Social Policy — Equal pay for male and female workers — Concept of pay — Officials' retirement scheme)

3

2009/C 006/06

Case C-158/07: Judgment of the Court (Grand Chamber) of 18 November 2008 (reference for a preliminary ruling from the Centrale Raad van Beroep — Netherlands) — Jacqueline Förster v Hoofddirectie van de Informatie Beheer Groep (Freedom of movement for persons — Student who is a national of one Member State and goes to another Member State to follow a training course — Student maintenance grant — Citizenship of the Union — Article 12 EC — Legal certainty)

4

2009/C 006/07

Case C-209/07: Judgment of the Court (Third Chamber) of 20 November 2008 (Reference for a preliminary ruling from the Supreme Court — Ireland) — The Competition Authority v Beef Industry Development Society Ltd, Barry Brothers (Carrigmore) Meats Ltd (Competition — Article 81(1) EC — Concept of an agreement having as its object the restriction of competition — Agreement to reduce production capacity — Beef and veal)

4

2009/C 006/08

Case C-214/07: Judgment of the Court (Second Chamber) of 13 November 2008 — Commission of the European Communities v French Republic (State aid — Aid scheme — Incompatibility with the common market — Implementation of the decision — Recovery of the aid granted — Absolute impossibility of giving effect to a decision)

5

2009/C 006/09

Case C-227/07: Judgment of the Court (Second Chamber) of 13 November 2008 — Commission of the European Communities v Republic of Poland (Failure of a Member State to fulfil obligations — Electronic communications — Networks and services — Directive 2002/19/EC (Access Directive) — Article 4(1) and the first subparagraph of Article 5(1) — Incorrect transposition)

5

2009/C 006/10

Case C-324/07: Judgment of the Court (Third Chamber) of 13 November 2008 (Reference for a preliminary ruling from the Conseil d'État — Belgium) — Coditel Brabant SPRL v Commune d'Uccle, Région de Bruxelles-Capitale (Public procurement — Tendering procedures — Public service concessions — Concession for the operation of a municipal cable television network — Award by a municipality to an inter-municipal cooperative society — Obligation of transparency — Conditions — Whether the control exercised by the concession-granting authority over the concessionaire is similar to that exercised over its own departments)

6

2009/C 006/11

Case C-375/07: Judgment of the Court (Second Chamber) of 20 November 2008 (reference for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Staatssecretaris van Financiën v Heuschen & Schrouff Oriëntal Foods Trading BV (Reference for a preliminary ruling — Validity of a classification regulation — Interpretation of the Annex to Regulation (EC) No 1196/97 — Articles 220 and 239 of the Customs Code — Articles 871 and 905 of Regulation (EEC) No 2454/93 — Dried sheets consisting of rice flour, salt and water — Tariff classification — Post-clearance recovery of import duties — Procedure for remission — Detectable error on the part of the customs authorities — Obvious negligence on the part of the importer)

6

2009/C 006/12

Case C-436/07 P: Judgment of the Court (Fourth Chamber) of 13 November 2008 — Commission of the European Communities v Efrosyni Alexiadou (Appeal — Arbitration clause — Contract concerning a technological development programme relating to the production of water-repellent leather — Repayment of advance paid — Interest)

7

2009/C 006/13

Case C-437/07: Judgment of the Court (Third Chamber) of 13 November 2008 — Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Public procurement — Design and construction of a municipal tramway — Public works contract — Award by means of a procedure for the award of a public works concession — Infringement of Directive 93/37)

8

2009/C 006/14

Case C-18/08: Judgment of the Court (Second Chamber) of 20 November 2008 (reference for a preliminary ruling from the Tribunal d'instance de Bordeaux — France) — Foselev Sud-Ouest SARL v Administration des douanes et droits indirects (Tax on motor vehicles — Directive 1999/62/EC — Charging of heavy goods vehicles for the use of certain infrastructures — Article 6(2)(b) — Commission decision approving an exemption — No direct effect)

8

2009/C 006/15

Case C-94/08: Judgment of the Court (Sixth Chamber) of 20 November 2008 — Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil its obligations — Posts of ship's captain and chief mate — Nationality clause)

9

2009/C 006/16

Case C-408/08 P: Appeal brought on 22 September 2008 by Lancôme parfums et beauté & Cie SNC against the judgment of the Court of First Instance (Second Chamber) delivered on 8 July 2008 in Case T-160/07 Lancôme v OHIM — CMS Hasche Sigle

9

2009/C 006/17

Case C-442/08: Action brought on 6 October 2008 — Commission of the European Communities v Federal Republic of Germany

10

2009/C 006/18

Case C-443/08: Action brought on 7 October 2008 — Commission of the European Communities v French Republic

11

2009/C 006/19

Case C-449/08: Reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven (Netherlands), lodged on 13 October 2008 — G. Elbertsen v Minister van Landbouw, Natuur en Voedselkwaliteit

12

2009/C 006/20

Case C-451/08: Reference for a preliminary ruling from the Oberlandesgericht Düsseldorf (Germany) lodged on 16 October 2008 — Helmut Müller GmbH v Bundesanstalt für Immobilienaufgaben

12

2009/C 006/21

Case C-452/08: Reference for a preliminary ruling from the Tribunal Superior de Justicia de la Comunidad Autónoma del País Vasco (Spain) lodged on 16 October 2008 — Emilia Flores Fanega v Instituto Nacional de la Seguridad Social (INSS), Tesorería General de la Seguridad Social (TGSS) and Bolumburu S.A.

13

2009/C 006/22

Case C-468/08: Action brought on 30 October 2008 — Commission of the European Communities v French Republic

14

2009/C 006/23

Case C-469/08: Action brought on 30 October 2008 — Commission of the European Communities v Kingdom of Belgium

14

2009/C 006/24

Case C-470/08: Reference for a preliminary ruling from the Gerechtshof te Arnhem (Netherlands), lodged on 3 November 2008 — K. van Dijk v Gemeente Kampen

15

2009/C 006/25

Case C-490/08: Action brought on 12 November 2008 — Commission of the European Communities v Kingdom of Belgium

15

2009/C 006/26

Case C-493/08: Action brought on 14 November 2008 — Commission of the European Communities v Hellenic Republic

16

2009/C 006/27

Case C-500/08: Action brought on 19 November 2008 — Commission of the European Communities v Italian Republic

16

2009/C 006/28

Case C-502/08: Action brought on 20 November 2008 — Commission of the European Communities v Kingdom of Spain

17

2009/C 006/29

Case C-503/08: Action brought on 20 November 2008 — Commission of the European Communities v Kingdom of Spain

17

2009/C 006/30

Case C-504/08: Action brought on 20 November 2008 — Commission of the European Communities v Kingdom of Spain

17

2009/C 006/31

Case C-187/06: Order of the President of the Court of 26 September 2008 — Commission of the European Communities v Kingdom of Belgium

18

2009/C 006/32

Case C-508/07 P: Order of the President of the Eighth Chamber of the Court of 8 October 2008 — Cain Cellars, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

18

2009/C 006/33

Case C-11/08: Order of the President of the Court of 3 October 2008 — Commission of the European Communities v Republic of Malta

18

2009/C 006/34

Case C-68/08: Order of the President of the Court of 16 October 2008 — Commission of the European Communities v Republic of Estonia

18

2009/C 006/35

Case C-71/08: Order of the President of the Eighth Chamber of the Court of 14 October 2008 — Commission of the European Communities v Czech Republic

18

2009/C 006/36

Case C-270/08: Order of the President of the Court of 28 October 2008 — Commission of the European Communities v Republic of Hungary

18

Court of First Instance

2009/C 006/37

Case T-7/04: Judgment of the Court of First Instance of 12 November 2008 — Shaker v OHIM — Limiñana y Botella (Limoncello della Costiera Amalfitana shaker) (Community trade mark — Opposition proceedings — Application for figurative Community trade mark Limoncello della Costiera Amalfitana shaker — Earlier national word mark LIMONCHELO — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94 — Appeal — Case referred back to the Court of First Instance)

19

2009/C 006/38

Case T-224/04: Judgment of the Court of First Instance (Seventh Chamber) of 13 November 2008 — Italian Republic v Commission (EAGGF — Guarantee Section — Expenditure excluded from Community financing — Aid for the processing of tomatoes and production of olive oil)

19

2009/C 006/39

Case T-128/05: Judgment of the Court of First Instance (Eighth Chamber) of 13 November 2008 — SPM v Council and Commission (Non-contractual liability of the Community — Common organisation of the markets — Bananas — Rules for importing of bananas from ACP countries into the European Union — Lawful or unlawful conduct — Loss allegedly suffered by independent ACP producer)

20

2009/C 006/40

Case T-185/05: Judgment of the Court of First Instance of 20 November 2008 — Italian Republic v Commission (Rules on languages — Implementing rules for recruitment to the European Union Civil Service — Action for annulment under Article 230 EC — Action brought by a Member State against, first, a Commission decision to publish vacancy notices for senior management posts in English, French and German and, second, a Commission vacancy notice published in those three languages for the post of Director-General of OLAF — Admissibility — Time-limit for bringing an action — Measures against which an action may be brought — Statement of reasons — Articles 12 EC, 230 EC and 290 EC — Regulation No 1 — Articles 1d and 27 of the Staff Regulations — Principle of non-discrimination)

20

2009/C 006/41

Case T-210/05: Judgment of the Court of First Instance of 12 November 2008 — Nalocebar v OHIM — Limiñana y Botella (Limoncello di Capri) (Community trade mark — Opposition proceedings — Application for figurative Community trade mark Limoncello di Capri — Earlier national word mark LIMONCHELO — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94)

21

2009/C 006/42

Case T-404/05: Judgment of the Court of First Instance of 19 November 2008 — Greece v Commission (Cohesion Fund — Athens International Airport — Reduction of financial assistance — Principle of proportionality)

21

2009/C 006/43

Case T-187/06: Order of the Court of First Instance of 19 November 2008 — Ralf Schräder v OHIM — (SUMCOL 01) (Community plant variety rights — Plant variety SUMCOL 01 — Rejection of the application for a Community plant variety right — Lack of distinctive character of the candidate variety)

21

2009/C 006/44

Case T-269/06: Judgment of the Court of First Instance of 19 November 2008 — Rautaruukki v OHIM — (RAUTARUUKKI) (Community trade mark — Application for the Community word mark RAUTARUUKKI — Absolute grounds for refusal of registration — Descriptive character — Absence of distinctive character — Article 7(1)(b) and (c) and Article 7(3) of Regulation (EC) No 40/94 — Evidence offered in support)

22

2009/C 006/45

Case T-270/06: Judgment of the Court of First Instance of 12 November 2008 — Lego Juris v OHIM — Mega Brands (Red Lego brick) (Community trade mark — Application for a three-dimensional Community trade mark — Red Lego brick — Absolute ground for refusal — Sign which consists exclusively of the shape of goods which is necessary to obtain a technical result — Article 7(1)(e)(ii) of Regulation (EC) No 40/94 — Offers of evidence)

22

2009/C 006/46

Case T-315/06: Judgment of the Court of First Instance of 19 November 2008 — Ercros v OHIM (Community trade mark — Opposition proceedings — Application for the Community figurative mark TAI CROS — Earlier national word marks CROS, SOCIEDAD ANÓNIMA CROS and ERCROS — Earlier national figurative marks CROS — Relative ground for refusal — No likelihood of confusion — No similarity of the signs — Article 8(1)(b) of Regulation (EC) No 40/94)

23

2009/C 006/47

Case T-316/06: Judgment of the Court of First Instance of 19 November 2008 — Commission v Premium (Arbitration clause — Contracts entered into under a specific research and technological development programme in the field of information technology — Repayment of part of the advance payment made by the Community — Default interest)

23

2009/C 006/48

Case T-406/06: Judgment of the Court of First Instance of 12 November 2008 — Evropaïki Dynamiki v Commission (Public service contracts — Invitation to tender concerning support services for the system of registries established under Directive 2003/87/EC — Rejection of a tender — Decision to award the contract to another tenderer — Manifest error of assessment — Obligation to state the reasons on which the decision is based — Claim for damages)

24

2009/C 006/49

Case T-6/07: Judgment of the Court of First Instance of 19 November 2008 — Galderma v OHIM — Lelas (Nanolat) (Community trade mark — Opposition proceedings — Application for the Community word mark Nanolat — Earlier national word mark TANNOLACT — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94)

24

2009/C 006/50

Case T-60/07: Judgment of the Court of First Instance of 12 November 2008 — Spain v Commission (EAGGF — Guarantee Section — Expenditure excluded from Community financing — Fruit and vegetable sector — Environmental protection — Administrative procedure)

25

2009/C 006/51

Case T-70/07: Judgment of the Court of First Instance (Eighth Chamber) of 12 November 2008 — Cantieri Navali Termoli v Commission (State Aid — Shipbuilding — Operating aid linked to contracts for ships — Application for extension of ship delivery limit under Article 3 of Regulation (EC) No 1540/98 — Causal link between the exceptional event and the delay)

25

2009/C 006/52

Case T-87/07: Judgment of the Court of First Instance of 12 November 2008 — Scil proteins v OHIM — Indena (affilene) (Community trade mark — Opposition proceedings — Application for Community figurative mark affilene — Earlier Community word mark AFFILIN — Relative ground for refusal — Likelihood of confusion — Similarity between products — Article 8(1)(b) of Regulation (EC) No 40/94)

affilene

26

2009/C 006/53

Case T-242/07: Judgment of the Court of First Instance of 12 November 2008 — Weiler v OHIM — IQNet Association — The International Certification Network (Q2WEB) (Community trade mark — Invalidity proceedings — Community word mark Q2WEB — Earlier Community word mark QWEB and earlier Community figurative mark QWEB Certified Site — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) and Article 52(1)(a) of Regulation (EC) No 40/94)

26

2009/C 006/54

Case T-281/07: Judgment of the Court of First Instance of 12 November 2008 — ecoblue v OHIM — Banco Bilbao Vizcaya Argentaria (Ecoblue) (Community trade mark — Opposition proceedings — Application for the Community word mark Ecoblue — Earlier Community word mark BLUE — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 40/94)

27

2009/C 006/55

Case T-317/07: Judgment of the Court of First Instance of 19 November 2008 — Commission v B2 Test (Arbitration clause — Contract concluded in the framework of the specific programme for research and technological development, including demonstration, in the field of industrial and materials technologies (1994-1998) — Breach of contract — Repayment of balance of advance paid by the Commission)

27

2009/C 006/56

Case T-325/07: Judgment of the Court of First Instance of 25 November 2008 — Caisse fédérale du Crédit mutuel Centre-Est Europe v OHIM (SURFCARD) (Community trade mark — Application for Community word mark SURFCARD — Absolute ground for refusal — Partially descriptive character — Article 7(1)(c) of Regulation (EC) No 40/94)

27

2009/C 006/57

Case T-346/07: Judgment of the Court of First Instance of 13 November 2008 — Duro Sweden v OHIM (EASYCOVER) (Community trade mark — Application for the Community word mark EASYCOVER — Absolute grounds for refusal — Article 7(1)(b) and (c) of Regulation (EC) No 40/94 — Article 73 of Regulation No 40/94)

28

2009/C 006/58

Case T-373/07: Judgment of the Court of First Instance of 12 November 2008 — EOS v OHIM (PrimeCast) (Community trade mark — Application for Community word mark PrimeCast — Absolute grounds for refusal — Descriptive character — Lack of distinctive character — Article 7(1)(b) and (c) of Regulation (EC) No 40/94)

28

2009/C 006/59

Case T-400/07: Judgment of the Court of First Instance of 12 November 2008 — GretagMacbeth v OHIM (Combination of 24 coloured squares) (Community trade mark — Application for Community colour mark — Combination of 24 coloured squares — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 40/94)

29

2009/C 006/60

Case T-301/06: Order of the Court of First Instance of 13 November 2008 — Lemaître Sécurité v Commission (Action for annulment — Dumping — Imports of footwear with a protective toecap originating in the People's Republic of China and India — Commission Decision closing the anti-dumping proceeding — Not individually concerned — Manifest inadmissibility)

29

2009/C 006/61

Case T-241/07: Order of the Court of First Instance of 27 October 2008 — Buzzi Unichem v Commission (Action for annulment — Directive 2003/87/EC — System of exchange of greenhouse gas emissions allowances — National plan for the allocation of emission allowances for Italy for the period from 2008 to 2012 — Commission Decision not to raise objections on certain conditions — Not individually concerned — Inadmissibility)

30

2009/C 006/62

Case T-403/07: Order of the Court of First Instance of 3 November 2008 — Union nationale de l'apiculture française and Others v Commission (Action for annulment — Directive 91/414/EEC — Plant protection products — Directive 2007/52/EC — Not individually concerned — Inadmissibility)

30

2009/C 006/63

Case T-45/08: Order of the Court of First Instance of 14 November 2008 — Transportes Evaristo Molina v Commission (Action for annulment — Time-limits for commencing proceedings — Starting point — Publication in the Official Journal — Alleged lack of locus standi at the date of publication — Inadmissibility)

locus standi

31

2009/C 006/64

Case T-222/08: Order of the Court of First Instance of 17 November 2008 — Sanatur v OHIM — Sektkellerei Schloss Wachenheim (life light) (Community trade mark — Opposition — Withdrawal of opposition — No need to adjudicate)

31

2009/C 006/65

Case T-422/08 R: Order of the President of the Court of First Instance of 14 November 2008 — Sacem v Commission (Interim measures — Decision of the Commission ordering cessation of a concerted practice in connection with the collective management of author's rights — Application for stay of execution — Lack of urgency)

31

2009/C 006/66

Case T-405/08: Action brought on 18 September 2008 — SPAR Österreichische Warenhandel v Commission

32

2009/C 006/67

Case T-424/08: Action brought on 16 September 2008 — Nexus Europe (Ireland)/Commission

32

2009/C 006/68

Case T-441/08: Action brought on 26 September 2008 — ICO Services Ltd v Parliament and Council

33

2009/C 006/69

Case T-450/08: Action brought on 6 October 2008 — Coverpla v OHIM — Heinz-Glas (design)

34

2009/C 006/70

Case T-452/08: Action brought on 6 October 2008 — DHL Aviation et DHL Hub Leipzig/Commission

34

2009/C 006/71

Case T-458/08: Action brought on 9 October 2008 — Wilfer v OHIM

35

2009/C 006/72

Case T-466/08: Action brought on 21 October 2008 — Lancôme v OHIM — Focus Magazin Verlag (ACNO FOCUS)

36

2009/C 006/73

Case T-467/08: Action brought on 17 October 2008 — ISDIN v OHIM — Pfizer (ISDIN)

36

2009/C 006/74

Case T-468/08: Action brought on 21 October 2008 — AES-Tisza v Commission

37

2009/C 006/75

Case T-472/08: Action brought on 22 October 2008 — Companhia Muller de Bebidas v OHIM — Missiato Industria e Comercio (61 A NOSSA ALEGRIA)

38

2009/C 006/76

Case T-473/08: Action brought on 28 October 2008 — Apollo Group v OHIM (THINKING AHEAD)

38

2009/C 006/77

Case T-477/08: Action brought on 3 November 2008 — Mundipharma v OHIM — ALK-Abelló (AVANZALENE)

39

2009/C 006/78

Case T-479/08: Action brought on 10 November 2008 — adidas v OHIM — Patrick Holding (Representation of a shoe with two stripes)

39

2009/C 006/79

Case T-481/08: Action brought on 5 November 2008 — Alisei v Commission

40

2009/C 006/80

Case T-486/08: Action brought on 14 November 2008 — Earle Beauty v OHIM (SUPERSKIN)

41

2009/C 006/81

Case T-489/08: Action brought on 17 November 2008 — Power-One Italy v Commission

41

2009/C 006/82

Case T-490/08: Action brought on 17 November 2008 — CM Capital Markets v OHIM — Carbon Capital Markets (CARBON CAPITAL MARKETS Emissions Compliance Solutions & Carbon Finance)

42

2009/C 006/83

Case T-383/03: Order of the Court of First Instance of 17 November 2008 — Hynix Semiconductor v Council

42

2009/C 006/84

Case T-384/05: Order of the Court of First Instance of 14 November 2008 — Abruzzo v Commission

43

2009/C 006/85

Case T-241/06: Order of the Court of First Instance of 17 November 2008 — Reitz and von Gadomski v OHIM (CMD-CLINIC)

43

2009/C 006/86

Case T-303/07: Order of the Court of First Instance of 12 November 2008 — Nölle v OHIM — Viña Carta Vieja (Puzzle)

43

2009/C 006/87

Case T-173/08: Order of the Court of First Instance of 19 November 2008 — Messe Düsseldorf v OHIM — Canon Communications (MEDTEC)

43

European Union Civil Service Tribunal

2009/C 006/88

Case F-41/06: Judgment of the Civil Service Tribunal (First Chamber) of 4 November 2008 — Marcuccio v Commission (Staff cases — Officials — Social security — Insurance against the risk of accident and occupational disease — Invalidity — Retirement on the ground of invalidity — Statement of reasons — Annulment)

44

2009/C 006/89

Case F-145/07: Judgment of the Civil Service Tribunal (First Chamber) of 25 November 2008 — Pierre Bosman v Council of the European Union (Staff case — Former member of the contract staff — Retirement pension — Household allowance — Article 109(3) of the CEOS)

44

2009/C 006/90

Case F-133/06: Order of the Civil Service Tribunal (First Chamber) of 4 November 2008 — Marcuccio v Commission (Staff cases — Officials — Application for the restitution of personal property — Decision rejecting the complaint drafted in a language other than the official's native language — Action out of time — Manifest inadmissibility)

45

2009/C 006/91

Case F-18/07: Order of the Civil Service Tribunal (First Chamber) of 4 November 2008 — Marcuccio v Commission (Staff cases — Officials — Claim — Explicit rejection notified after the implicit rejection — Purely confirmatory measure — Complaint made out of time — Manifest inadmissibility)

45

2009/C 006/92

Case F-87/07: Order of the Civil Service Tribunal (First Chamber) of 4 November 2008 — Marcuccio v Commission (Staff cases — Officials — Action for damages — Allegedly unlawful conduct on the part of the Commission's Medical Service — Inadmissibility — Failure to comply with a reasonable period for lodging a claim for compensation)

45

2009/C 006/93

Case F-91/08: Action brought on 6 November 2008 — Pleijte v Commission

46

2009/C 006/94

Case F-94/08: Action brought on 19 November 2008 — Marcuccio v Commission

46

| EN | |
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EN

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Court of Justice

| 10.1.2009 | EN | Official Journal of the European Union | C 6/1 |
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10.1.2009

EN

Official Journal of the European Union

C 6/1

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(2009/C 6/01)

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

OJ C 327, 20.12.2008

Past publications

OJ C 313, 6.12.2008

OJ C 301, 22.11.2008

OJ C 285, 8.11.2008

OJ C 272, 25.10.2008

OJ C 260, 11.10.2008

OJ C 247, 27.9.2008

These texts are available on:

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

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

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V Announcements

COURT PROCEEDINGS

Court of Justice

| 10.1.2009 | EN | Official Journal of the European Union | C 6/2 |
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10.1.2009

EN

Official Journal of the European Union

C 6/2

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Judgment of the Court (Second Chamber) of 20 November 2008 — Commission of the European Communities v Ireland

(Case C-66/06) (1)

(Failure of a Member State to fulfil obligations - Directive 85/337/EEC - Assessment of the effects of projects on the environment - Consent given without an assessment)

(2009/C 6/02)

Language of the case: English

Parties

Applicant: Commission of the European Communities (represented by: F. Simonetti and X. Lewis, acting as Agents, F. Louis, avocat, and C. O'Daly, Solicitor)

Defendant: Ireland (represented by: D. O'Hagan, acting as Agent, J. Connolly SC and G. Simons BL)

Intervener in support of the defendant: Republic of Poland (represented by: E. Ośniecka-Tamecka, acting as Agent)

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 2(2) and 4(2) to (4) of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40), as amended by Directive 97/11/EC of 3 March 1997 (OJ 1997 L 73, p. 5) — Consent given without an assessment

Operative part of the judgment

The Court:

| 1. | Declares that, by not adopting, in conformity with Articles 2(1) and 4(2) to (4) of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, as amended by Council Directive 97/11/EC of 3 March 1997, all measures to ensure that, before consent is given, projects likely to have significant effects on the environment that belong to the categories of projects covered by point 1(a) to (c) and (f) of Annex II to that directive are made subject to a requirement for development consent and to an assessment with regard to their environmental effects in accordance with Articles 5 to 10 of the directive, Ireland has failed to fulfil its obligations under the directive; |
| --- | --- |

1.

Declares that, by not adopting, in conformity with Articles 2(1) and 4(2) to (4) of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, as amended by Council Directive 97/11/EC of 3 March 1997, all measures to ensure that, before consent is given, projects likely to have significant effects on the environment that belong to the categories of projects covered by point 1(a) to (c) and (f) of Annex II to that directive are made subject to a requirement for development consent and to an assessment with regard to their environmental effects in accordance with Articles 5 to 10 of the directive, Ireland has failed to fulfil its obligations under the directive;

| 2. | Orders Ireland to pay the costs of the Commission of the European Communities; |
| --- | --- |

2.

Orders Ireland to pay the costs of the Commission of the European Communities;

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

3.

Orders the Republic of Poland to bear its own costs.

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(1)  OJ C 108, 6.5.2006.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/2 |
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10.1.2009

EN

Official Journal of the European Union

C 6/2

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Judgment of the Court (Third Chamber) of 20 November 2008 (Reference for a preliminary ruling from the Landgericht Siegen — Germany) — Criminal proceedings against Frank Weber

(Case C-1/07) (1)

(Directive 91/439/EEC - Mutual recognition of driving licences - Temporary suspension of a driving licence - Withdrawal of right to drive - Validity of a second driving licence obtained in another Member State during the period of temporary suspension)

(2009/C 6/03)

Language of the case: German

Referring court

Landgericht Siegen

Party in the main proceedings

Frank Weber

Re:

Reference for a preliminary ruling — Landgericht Siegen — Interpretation of Article 8(2) and (4) of Council Directive 91/439/EEC of 29 July 1991 on driving licences (OJ 1991 L 237, p. 1) — Non-recognition by the Member State of residence, in its territory, of a driving licence obtained in another Member State during a driving ban before the administrative withdrawal of the right to drive by the Member State of residence

Operative part of the judgment

Articles 1(2) and 8(2) and (4) of Council Directive 91/439/EEC of 29 July 1991 on driving licences must be interpreted as meaning that a Member State is not precluded from refusing to recognise, in its territory, a right to drive under a driving licence issued by another Member State to a person whose right to drive was withdrawn, in the territory of the first Member State, even though that withdrawal was ordered after the issue of that driving licence, provided that the licence was obtained during a period in which a licence issued in the first Member State was suspended and both the suspension and the withdrawal are based on grounds existing at the date of issue of the second driving licence.

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(1)  OJ C 42, 24.2.2007.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/3 |
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10.1.2009

EN

Official Journal of the European Union

C 6/3

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Judgment of the Court (Second Chamber) of 20 November 2008 — Heuschen & Schrouff Oriëntal Foods Trading BV v Commission of the European Communities

(Case C-38/07 P) (1)

(Appeal - Remission of import duties - Commission decision - Article 239 of the Customs Code - Existence of a special situation - Absence of deception - Obvious negligence on the part of the importer)

(2009/C 6/04)

Language of the case: Dutch

Parties

Appellant: Heuschen & Schrouff Oriëntal Foods Trading BV (represented by: H. de Bie, advocaat)

Other party to the proceedings: Commission of the European Communities (represented by: X. Lewis, acting as Agent, assisted by F. Tuytschaever, advocaat)

Re:

Appeal against the judgment of the Court of First Instance (Third Chamber) of 30 November 2006 in Case T-382/04 Heuschen & Schrouff Oriëntal Foods v Commission, by which the Court of First Instance dismissed an application for annulment of Commission Decision REM 19/2002 of 17 June 2004 finding that remission of import duties was not justified in a particular case

Operative part of the judgment

The Court:

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

1.

Dismisses the appeal;

| 2. | Orders Heuschen & Schrouff Oriëntal Foods Trading BV to pay the costs. |
| --- | --- |

2.

Orders Heuschen & Schrouff Oriëntal Foods Trading BV to pay the costs.

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(1)  OJ C 82, 14.4.2007.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/3 |
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10.1.2009

EN

Official Journal of the European Union

C 6/3

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Judgment of the Court (Fourth Chamber) of 13 November 2008 — Commission of the European Communities v Italian Republic

(Case C-46/07) (1)

(Failure of Member State to fulfil its obligations - Article 141 EC - Social Policy - Equal pay for male and female workers - Concept of ‘pay’ - Officials' retirement scheme)

(2009/C 6/05)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: L. Pignataro-Nolin and M. van Beek, acting as Agents)

Defendant: Italian Republic (represented by: I. Braguglia, Agent and G. Fiengo and W. Ferrante, Lawyers)

Re:

Failure of Member State to fulfil its obligations — Infringement of Article 141 EC — Infringement of the principle of equal pay for male and female workers — National legislation providing for a retirement age for public officials which varies according to sex

Operative part of the judgment

The Court:

| 1. | declares that by maintaining provisions under which the age at which officials have the right to receive the old-age pension varies according to whether they are men or women, the Italian Republic has failed to fulfil its obligations under Article 141 EC; |
| --- | --- |

1.

declares that by maintaining provisions under which the age at which officials have the right to receive the old-age pension varies according to whether they are men or women, the Italian Republic has failed to fulfil its obligations under Article 141 EC;

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

2.

orders the Italian Republic to pay the costs.

---

(1)  OJ C 82, 14.4.2007.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/4 |
| --- | --- | --- | --- |

10.1.2009

EN

Official Journal of the European Union

C 6/4

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Judgment of the Court (Grand Chamber) of 18 November 2008 (reference for a preliminary ruling from the Centrale Raad van Beroep — Netherlands) — Jacqueline Förster v Hoofddirectie van de Informatie Beheer Groep

(Case C-158/07) (1)

(Freedom of movement for persons - Student who is a national of one Member State and goes to another Member State to follow a training course - Student maintenance grant - Citizenship of the Union - Article 12 EC - Legal certainty)

(2009/C 6/06)

Language of the case: Dutch

Referring court

Centrale Raad van Beroep

Parties to the main proceedings

Applicant: Jacqueline Förster

Defendant: Hoofddirectie van de Informatie Beheer Groep

Re:

Reference for a preliminary ruling — Centrale Raad van Beroep — Interpretation of Article 12 EC, Article 18 EC, Article 7 of Regulation (EEC) No 1251/70 of the Commission of 29 June 1970 on the right of workers to remain in the territory of a Member State after having been employed in that State (OJ, English Special Edition 1970 (II), p. 402), and Article 3 of Council Directive 93/96/EEC of 29 October 1993 on the right of residence for students (OJ 1993 L 317, p. 59) — Student who is a national of one Member State and goes to another Member State to follow a training course, at the same time working as an employed person in the second Member State but who has, meanwhile, ceased that employment.

Operative part of the judgment

| 1. | A student in the situation of the applicant in the main proceedings cannot rely on Article 7 of Regulation (EEC) No 1251/70 of the Commission of 29 June 1970 on the right of workers to remain in the territory of a Member State after having been employed in that State in order to obtain a maintenance grant. |
| --- | --- |

1.

A student in the situation of the applicant in the main proceedings cannot rely on Article 7 of Regulation (EEC) No 1251/70 of the Commission of 29 June 1970 on the right of workers to remain in the territory of a Member State after having been employed in that State in order to obtain a maintenance grant.

| 2. | A student who is a national of a Member State and travels to another Member State to study there can rely on the first paragraph of Article 12 EC in order to obtain a maintenance grant where he or she has resided for a certain duration in the host Member State. The first paragraph of Article 12 EC does not preclude the application to nationals of other Member States of a requirement of five years' prior residence. |
| --- | --- |

2.

A student who is a national of a Member State and travels to another Member State to study there can rely on the first paragraph of Article 12 EC in order to obtain a maintenance grant where he or she has resided for a certain duration in the host Member State. The first paragraph of Article 12 EC does not preclude the application to nationals of other Member States of a requirement of five years' prior residence.

| 3. | In circumstances such as those of the main proceedings, Community law, in particular the principle of legal certainty, does not preclude the application of a residence requirement which makes the right of students from other Member States to a maintenance grant subject to the completion of periods of residence which occurred prior to the introduction of that requirement. |
| --- | --- |

3.

In circumstances such as those of the main proceedings, Community law, in particular the principle of legal certainty, does not preclude the application of a residence requirement which makes the right of students from other Member States to a maintenance grant subject to the completion of periods of residence which occurred prior to the introduction of that requirement.

---

(1)  OJ C 117, 26.5.2007.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/4 |
| --- | --- | --- | --- |

10.1.2009

EN

Official Journal of the European Union

C 6/4

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Judgment of the Court (Third Chamber) of 20 November 2008 (Reference for a preliminary ruling from the Supreme Court — Ireland) — The Competition Authority v Beef Industry Development Society Ltd, Barry Brothers (Carrigmore) Meats Ltd

(Case C-209/07) (1)

(Competition - Article 81(1) EC - Concept of an ‘agreement having as its object the restriction of competition’ - Agreement to reduce production capacity - Beef and veal)

(2009/C 6/07)

Language of the case: English

Referring court

Supreme Court

Parties to the main proceedings

Appellant: The Competition Authority

Respondents: Beef Industry Development Society Ltd, Barry Brothers (Carrigmore) Meats Ltd

Re:

Reference for a preliminary ruling — Supreme Court, Ireland — Interpretation of Article 81(1) EC — Measures limiting or controlling production — Inclusion of an agreement whose effect is to reduce structural capacity selectively

Operative part of the judgment

An agreement with features such as those of the standard form of contract concluded between the 10 principal beef and veal processors in Ireland, who are members of Beef Industry Development Society Ltd, and requiring, among other things, a reduction of the order of 25 % in processing capacity, has as its object the prevention, restriction or distortion of competition within the meaning of Article 81(1) EC.

---

(1)  OJ C 140, 23.6.2007.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/5 |
| --- | --- | --- | --- |

10.1.2009

EN

Official Journal of the European Union

C 6/5

---

Judgment of the Court (Second Chamber) of 13 November 2008 — Commission of the European Communities v French Republic

(Case C-214/07) (1)

(State aid - Aid scheme - Incompatibility with the common market - Implementation of the decision - Recovery of the aid granted - Absolute impossibility of giving effect to a decision)

(2009/C 6/08)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: C. Giolito, Agent)

Defendant: French Republic (represented by: G. de Bergues, S. Ramet and J.-C. Gracia, Agents)

Re:

Failure of a Member State to fulfil obligations — Failure to take, within the prescribed period, the measures necessary to comply with Commission Decision of 16 December 2003 on the aid scheme implemented by France for the takeover of firms in difficulty (State aid C(2003) 4636, OJ 2004 L 108, p. 38) — Failure to take steps to recover the aid illegally granted — Implementation of the decision ordering the recovery of the aid not impossible

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to implement within the prescribed period Commission Decision 2004/343/EC of 16 December 2003 on the aid scheme implemented by France for the takeover of firms in difficulty, the French Republic has failed to fulfil its obligations under Article 5 of that decision |
| --- | --- |

1.

Declares that, by failing to implement within the prescribed period Commission Decision 2004/343/EC of 16 December 2003 on the aid scheme implemented by France for the takeover of firms in difficulty, the French Republic has failed to fulfil its obligations under Article 5 of that decision

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

2.

Orders the French Republic to pay the costs

---

(1)  OJ C 170, 21.7.2007.

---

| 10.1.2009 | EN | Official Journal of the European Union | C 6/5 |
| --- | --- | --- | --- |

10.1.2009

EN

Official Journal of the European Union

C 6/5

---

Judgment of the Court (Second Chamber) of 13 November 2008 — Commission of the European Communities v Republic of Poland

(Case C-227/07) (1)

(Failure of a Member State to fulfil obligations - Electronic communications - Networks and services - Directive 2002/19/EC (Access Directive) - Article 4(1) and the first subparagraph of Article 5(1) - Incorrect transposition)

(2009/C 6/09)

Language of the case: Polish

Parties

Applicant: Commission of the European Communities (represented by: M. Shotter and K. Mojzesowicz, acting as Agents)

Defendant: Republic of Poland (represented initially by: E. Ośniecka-Tamecka, T. Nowakowski, and subsequently by M. Dowgielewicz, acting as Agents)

Re:

Failure of a Member State to fulfil obligations — Incorrect transposition of Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive) (OJ 2002 L 108, p. 7) — National legislation on telecommunications requiring, by way of a general legal provision, operators of public telecommunications networks to negotiate in good faith access contracts and providing that, if the parties do not reach an agreement, the regulatory authority may, at the request of one of the parties, adopt a decision which will replace the contract

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to transpose correctly Article 4(1) of Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive), the Republic of Poland has failed to fulfil its obligations under that Directive; |
| --- | --- |

1.

Declares that, by failing to transpose correctly Article 4(1) of Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive), the Republic of Poland has failed to fulfil its obligations under that Directive;

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

2.

Dismisses the action as to the remainder;

| 3. | Orders the Commission of the European Communities and the Republic of Poland to bear their own costs. |
| --- | --- |

3.

Orders the Commission of the European Communities and the Republic of Poland to bear their own costs.

---

(1)  OJ C 199, 25.8.2007.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/6 |
| --- | --- | --- | --- |

10.1.2009

EN

Official Journal of the European Union

C 6/6

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Judgment of the Court (Third Chamber) of 13 November 2008 (Reference for a preliminary ruling from the Conseil d'État — Belgium) — Coditel Brabant SPRL v Commune d'Uccle, Région de Bruxelles-Capitale

(Case C-324/07) (1)

(Public procurement - Tendering procedures - Public service concessions - Concession for the operation of a municipal cable television network - Award by a municipality to an inter-municipal cooperative society - Obligation of transparency - Conditions - Whether the control exercised by the concession-granting authority over the concessionaire is similar to that exercised over its own departments)

(2009/C 6/10)

Language of the case: French

Referring court

Conseil d'État

Parties to the main proceedings

Applicant: Coditel Brabant SPRL

Defendant: Commune d'Uccle, Région de Bruxelles-Capitale

Third party: Société Intercommunale pour la Diffusion de la Télévision (Brutélé)

Re:

Preliminary ruling — Conseil d'État — Interpretation of the fundamental principles of primary Community law (principles of non-discrimination and transparency) and of the exceptions to those principles in the area of public service concessions — Concession relating to the operation of a municipal television network — Need for competitive tendering except in those cases where the awarding authority exercises, over the concessionaire, a control similar to that which it exercises over its own departments and where the concessionaire performs the major part of its activities with the authority which controls it

Operative part of the judgment

| 1. | Articles 43 EC and 49 EC, the principles of equal treatment and of non-discrimination on grounds of nationality and the concomitant obligation of transparency do not preclude a public authority from awarding, without calling for competition, a public service concession to an inter-municipal cooperative society of which all the members are public authorities, where those public authorities exercise over that cooperative society control similar to that exercised over their own departments and where that society carries out the essential part of its activities with those public authorities; |
| --- | --- |

1.

Articles 43 EC and 49 EC, the principles of equal treatment and of non-discrimination on grounds of nationality and the concomitant obligation of transparency do not preclude a public authority from awarding, without calling for competition, a public service concession to an inter-municipal cooperative society of which all the members are public authorities, where those public authorities exercise over that cooperative society control similar to that exercised over their own departments and where that society carries out the essential part of its activities with those public authorities;

| 2. | Subject to verification of the facts by the referring court as regards the degree of independence enjoyed by the inter-municipal cooperative society in question, in circumstances such as those of the case before the referring court, where decisions regarding the activities of an inter-municipal cooperative society owned exclusively by public authorities are taken by bodies, created under the statutes of that society, which are composed of representatives of the affiliated public authorities, the control exercised over those decisions by the public authorities may be regarded as enabling those authorities to exercise over the cooperative society control similar to that exercised over their own departments; |
| --- | --- |

2.

Subject to verification of the facts by the referring court as regards the degree of independence enjoyed by the inter-municipal cooperative society in question, in circumstances such as those of the case before the referring court, where decisions regarding the activities of an inter-municipal cooperative society owned exclusively by public authorities are taken by bodies, created under the statutes of that society, which are composed of representatives of the affiliated public authorities, the control exercised over those decisions by the public authorities may be regarded as enabling those authorities to exercise over the cooperative society control similar to that exercised over their own departments;

| 3. | Where a public authority joins an inter-communal cooperative of which all the members are public authorities in order to transfer to that cooperative society the management of a public service, it is possible, in order for the control which those member authorities exercise over the cooperative to be regarded as similar to that which they exercise over their own departments, for it to be exercised jointly by those authorities, decisions being taken by a majority, as the case may be. |
| --- | --- |

3.

Where a public authority joins an inter-communal cooperative of which all the members are public authorities in order to transfer to that cooperative society the management of a public service, it is possible, in order for the control which those member authorities exercise over the cooperative to be regarded as similar to that which they exercise over their own departments, for it to be exercised jointly by those authorities, decisions being taken by a majority, as the case may be.

---

(1)  OJ C 211, 8.9.2007.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/6 |
| --- | --- | --- | --- |

10.1.2009

EN

Official Journal of the European Union

C 6/6

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Judgment of the Court (Second Chamber) of 20 November 2008 (reference for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Staatssecretaris van Financiën v Heuschen & Schrouff Oriëntal Foods Trading BV

(Case C-375/07) (1)

(Reference for a preliminary ruling - Validity of a classification regulation - Interpretation of the Annex to Regulation (EC) No 1196/97 - Articles 220 and 239 of the Customs Code - Articles 871 and 905 of Regulation (EEC) No 2454/93 - Dried sheets consisting of rice flour, salt and water - Tariff classification - Post-clearance recovery of import duties - Procedure for remission - Detectable error on the part of the customs authorities - Obvious negligence on the part of the importer)

(2009/C 6/11)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicant: Staatssecretaris van Financiën

Defendant: Heuschen & Schrouff Oriëntal Foods Trading BV

Re:

Reference for a preliminary ruling — Hoge Raad der Nederlanden — Interpretation of the Annex to Commission Regulation (EC) No 1196/97 of 27 June 1997 concerning the classification of certain goods in the Combined Nomenclature (OJ 1997 L 170, p. 13), of Article 220(2)(b) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), as amended by Commission Regulation (EC) No 1677/98 of 29 July 1998 (OJ 1998 L 212, p. 18), and of Article 871(1) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1993 L 253, p. 1) — Dried sheets consisting of rice flour, salt and water — Tariff classification under heading 1905 of the CN — Post-clearance recovery of customs duties — Error on the part of the customs authorities which could not ‘reasonably have been detected by the person liable for payment’ — Mandatory reference to the Commission

Operative part of the judgment

| 1. | Sheets prepared from rice flour, salt and water which are then dried, but do not undergo any heat treatment, are covered by subheading 1905 90 20 of the Combined Nomenclature in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, in the version resulting from Commission Regulation (EC) No 1624/97 of 13 August 1997. |
| --- | --- |

1.

Sheets prepared from rice flour, salt and water which are then dried, but do not undergo any heat treatment, are covered by subheading 1905 90 20 of the Combined Nomenclature in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, in the version resulting from Commission Regulation (EC) No 1624/97 of 13 August 1997.

| 2. | Examination of the question referred has disclosed no factor of such a kind as to affect the validity of Commission Regulation (EC) No 1196/97 of 27 June 1997 concerning the classification of certain goods in the combined nomenclature. |
| --- | --- |

2.

Examination of the question referred has disclosed no factor of such a kind as to affect the validity of Commission Regulation (EC) No 1196/97 of 27 June 1997 concerning the classification of certain goods in the combined nomenclature.

| 3. | Where an application for remission of import duties has been submitted to the Commission of the European Communities by a Member State under Article 239 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Regulation (EC) No 82/97 of the European Parliament and of the Council of 19 December 1996, and the Commission has already adopted a decision containing assessments of fact and law in a particular case concerning import transactions, such assessments bind all the authorities of the Member State to which that decision was addressed, in accordance with Article 249 EC, including the courts which have to assess that case under Article 220 of that regulation.
  If the importer has, within the period prescribed in the fifth paragraph of Article 230 EC, brought an action for annulment of a decision of the Commission of the European Communities in respect of an application for remission of import duties pursuant to Article 239 of that regulation, it is for the national court to decide whether to stay the proceedings until a definitive decision has been given in the action for annulment or to refer itself a question to the Court of Justice of the European Communities for a preliminary ruling as to validity. |
| --- | --- |

3.

Where an application for remission of import duties has been submitted to the Commission of the European Communities by a Member State under Article 239 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Regulation (EC) No 82/97 of the European Parliament and of the Council of 19 December 1996, and the Commission has already adopted a decision containing assessments of fact and law in a particular case concerning import transactions, such assessments bind all the authorities of the Member State to which that decision was addressed, in accordance with Article 249 EC, including the courts which have to assess that case under Article 220 of that regulation.

If the importer has, within the period prescribed in the fifth paragraph of Article 230 EC, brought an action for annulment of a decision of the Commission of the European Communities in respect of an application for remission of import duties pursuant to Article 239 of that regulation, it is for the national court to decide whether to stay the proceedings until a definitive decision has been given in the action for annulment or to refer itself a question to the Court of Justice of the European Communities for a preliminary ruling as to validity.

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(1)  OJ C 82, 14.4.2007.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/7 |
| --- | --- | --- | --- |

10.1.2009

EN

Official Journal of the European Union

C 6/7

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Judgment of the Court (Fourth Chamber) of 13 November 2008 — Commission of the European Communities v Efrosyni Alexiadou

(Case C-436/07 P) (1)

(Appeal - Arbitration clause - Contract concerning a technological development programme relating to the production of water-repellent leather - Repayment of advance paid - Interest)

(2009/C 6/12)

Language of the case: Greek

Parties

Appellant: Commission of the European Communities (represented by: D. Triantafyllou, acting as Agent)

Other party to the proceedings: Efrosyni Alexiadou (represented by: Ch. Matellas and E. Alexiadou, lawyers)

Re:

Appeal against the judgment of the Court of First Instance (Fourth Chamber) of 12 July 2007 in Case T-312/05 Commission v Alexiadou [2007] ECR II-86, in which the Court dismissed an action under an arbitration clause seeking an order that the defendant reimburse the amount of the advance paid by the Commission under a contract concerning a technological development programme relating to the production of water-repellent leather (Contract No G1ST-CT-2002-50227).

Operative part of the judgment

The Court:

| 1. | Sets aside the judgment of the Court of First Instance of the European Communities of 12 July 2007 in Case T-312/05 Commission v Alexiadou [2007], which was notified to the Commission on 18 July 2007; |
| --- | --- |

1.

Sets aside the judgment of the Court of First Instance of the European Communities of 12 July 2007 in Case T-312/05 Commission v Alexiadou [2007], which was notified to the Commission on 18 July 2007;

| 2. | Orders that the case be referred back to the Court of First Instance of the European Communities; |
| --- | --- |

2.

Orders that the case be referred back to the Court of First Instance of the European Communities;

| 3. | Orders that the costs be reserved. |
| --- | --- |

3.

Orders that the costs be reserved.

---

(1)  OJ C 269, 10.11.2007.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/8 |
| --- | --- | --- | --- |

10.1.2009

EN

Official Journal of the European Union

C 6/8

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Judgment of the Court (Third Chamber) of 13 November 2008 — Commission of the European Communities v Italian Republic

(Case C-437/07) (1)

(Failure of a Member State to fulfil obligations - Public procurement - Design and construction of a municipal tramway - Public works contract - Award by means of a procedure for the award of a public works concession - Infringement of Directive 93/37)

(2009/C 6/13)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: C. Zadra and D. Kukovec, Agents)

Defendant: Italian Republic (represented by: I. Braguglia and G. Fiengo, Agents)

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 43 EC and 49 EC and Articles 7 and 11 of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ 1993 L 199, p. 54) — Infringement of the principles of transparency and non-discrimination — Public works carried out by means of ‘project financing’

Operative part of the judgment

| 1. | In so far as the Comune di l'Aquila (Municipality of Aquila) awarded a public works contract concerning the design and construction of a rubber tramway for public transport in that town by means of a procedure different to those laid down for the award of public works contracts by Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts, the Italian Republic has failed to fulfil its obligations under that Directive; |
| --- | --- |

1.

In so far as the Comune di l'Aquila (Municipality of Aquila) awarded a public works contract concerning the design and construction of a rubber tramway for public transport in that town by means of a procedure different to those laid down for the award of public works contracts by Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts, the Italian Republic has failed to fulfil its obligations under that Directive;

| 2. | The Italian Republic is to pay the costs. |
| --- | --- |

2.

The Italian Republic is to pay the costs.

---

(1)  OJ C 297, 8.12.2007.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/8 |
| --- | --- | --- | --- |

10.1.2009

EN

Official Journal of the European Union

C 6/8

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Judgment of the Court (Second Chamber) of 20 November 2008 (reference for a preliminary ruling from the Tribunal d'instance de Bordeaux — France) — Foselev Sud-Ouest SARL v Administration des douanes et droits indirects

(Case C-18/08) (1)

(Tax on motor vehicles - Directive 1999/62/EC - Charging of heavy goods vehicles for the use of certain infrastructures - Article 6(2)(b) - Commission decision approving an exemption - No direct effect)

(2009/C 6/14)

Language of the case: French

Referring court

Tribunal d'instance de Bordeaux

Parties to the main proceedings

Applicant: Foselev Sud-Ouest SARL

Defendant: Administration des douanes et droits indirects

Re:

Reference for a preliminary ruling — Tribunal d'Instance de Bordeaux (France) — Interpretation of Commission Decision 2005/449/EC, concerning a request for exemption from the vehicle tax rules submitted by France pursuant to Article 6(2)(b) of Directive 1999/62/EC of the European Parliament and of the Council of 17 June 1999 on the charging of heavy goods vehicles for the use of certain infrastructures (OJ 2005 L 158, p. 23) — Whether that decision has direct effect or, as an authorisation decision, requires a measure transposing it into national law?

Operative part of the judgment

Commission Decision 2005/449/EC of 20 June 2005 concerning a request for exemption from the vehicle tax rules submitted by France pursuant to Article 6(2)(b) of Directive 1999/62/EC of the European Parliament and of the Council on the charging of heavy goods vehicles for the use of certain infrastructures cannot be relied on by an individual against the French Republic, to which that decision was addressed, in order to obtain the benefit of the exemption approved by that decision upon its notification or publication.

---

(1)  OJ C 79, 29.3.2008.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/9 |
| --- | --- | --- | --- |

10.1.2009

EN

Official Journal of the European Union

C 6/9

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Judgment of the Court (Sixth Chamber) of 20 November 2008 — Commission of the European Communities v Kingdom of Spain

(Case C-94/08) (1)

(Failure of a Member State to fulfil its obligations - Posts of ship's captain and chief mate - Nationality clause)

(2009/C 6/15)

Language of the case: Spain

Parties

Applicant: Commission of the European Communities (represented by: G. Rozet and L. Lozano Palacios, acting as Agents)

Defendant: Kingdom of Spain (represented by: B. Plaza Cruz, Agent)

Re:

Failure of Member State to fulfil its obligations — Infringement of Article 39 EC — Requirement of Spanish nationality for persons occupying the posts of captain and chief mate on certain ships flying the Spanish flag — Incompatibility with Community law.

Operative part of the judgment

The Court:

| 1. | Declares that in requiring in its legislation Spanish nationality for persons occupying the posts of ship's captain and chief mate of all merchant ships flying the Spanish flag other than merchant ships with a gross tonnage less than 100 GT, which carry cargo or fewer than 100 passengers and operate exclusively between ports or points situated in areas in which the Kingdom of Spain has sovereignty, sovereign rights or jurisdiction, the Kingdom of Spain has failed to fulfil its obligations under Community law and, in particular, under Article 39 EC; |
| --- | --- |

1.

Declares that in requiring in its legislation Spanish nationality for persons occupying the posts of ship's captain and chief mate of all merchant ships flying the Spanish flag other than merchant ships with a gross tonnage less than 100 GT, which carry cargo or fewer than 100 passengers and operate exclusively between ports or points situated in areas in which the Kingdom of Spain has sovereignty, sovereign rights or jurisdiction, the Kingdom of Spain has failed to fulfil its obligations under Community law and, in particular, under Article 39 EC;

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

2.

Orders the Kingdom of Spain to pay the costs.

---

(1)  OJ C 107, 26.4.2008.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/9 |
| --- | --- | --- | --- |

10.1.2009

EN

Official Journal of the European Union

C 6/9

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Appeal brought on 22 September 2008 by Lancôme parfums et beauté & Cie SNC against the judgment of the Court of First Instance (Second Chamber) delivered on 8 July 2008 in Case T-160/07 Lancôme v OHIM — CMS Hasche Sigle

(Case C-408/08 P)

(2009/C 6/16)

Language of the case: French

Parties

Appellant: Lancôme parfums et beauté & Cie SNC (represented by: A. von Mühlendahl, Rechtsanwalt)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), CMS Hasche Sigle

Form of order sought

The appellant claims that the Court should:

| — | set aside the judgment of the Court of First Instance of 8 July 2008 in Case T-160/07; |
| --- | --- |

—

set aside the judgment of the Court of First Instance of 8 July 2008 in Case T-160/07;

| — | dismiss, as unfounded, the appeal against the decision of the Office's Cancellation Division of 21 December 2006 in Case 892 C concerning the registration of the Community trade mark 2965804 COLOR EDITION, on grounds of the applicant having no right to bring an action or, alternatively, on account of there being no grounds for absolute refusal; |
| --- | --- |

—

dismiss, as unfounded, the appeal against the decision of the Office's Cancellation Division of 21 December 2006 in Case 892 C concerning the registration of the Community trade mark 2965804 COLOR EDITION, on grounds of the applicant having no right to bring an action or, alternatively, on account of there being no grounds for absolute refusal;

| — | order the Office to pay the costs incurred in the proceedings before the Court of First Instance and before the Court of Justice; |
| --- | --- |

—

order the Office to pay the costs incurred in the proceedings before the Court of First Instance and before the Court of Justice;

| — | order CMS Hasche Sigle to pay the costs incurred in the proceedings before the Office's Board of Appeal. |
| --- | --- |

—

order CMS Hasche Sigle to pay the costs incurred in the proceedings before the Office's Board of Appeal.

Pleas in law and main arguments

The appellant advances two grounds of appeal in support of its appeal.

By its first ground, which has two branches, it submits that the Court of First Instance erred in law in its interpretation of Article 55(1)(a) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (1).

The error consists in the confirmation of the capacity to bring proceedings granted to the law firm CMS Hasche Sigle in the proceedings brought before the Office for Harmonisation in the Internal Market (Trade Marks and Designs), then before the Court of First Instance. That party had not in fact demonstrated that it had an actual or potential economic interest which, in itself, might warrant a law firm, acting on its own behalf, having the capacity to bring legal proceedings for a declaration of the invalidity of a trade mark for cosmetics. Community law does not recognise actions brought in the absence of a private individual or economic interest (actio popularis).

According to the appellant, to concede that a lawyer, acting on its own behalf, may bring an application for removal from the register of a trade mark is, on any view, incompatible with the professional profile of a lawyer, as a member of the legal profession.

By its second plea, the appellant challenges the finding of the Court of First Instance that the trade mark COLOR EDITION is perceived as descriptive and consequently falls under Article 7(1)(c) of Regulation No 40/94. That interpretation conflicts with the Court's case-law relating to the constituent elements of the concept of a descriptive mark. Being able to infer from a trade mark the protected goods and their characteristics is not an adequate test. It is necessary to ascertain whether the chosen terms, taken individually as well as jointly, are known and usually employed in the everyday language of the relevant public.

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

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/10 |
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Action brought on 6 October 2008 — Commission of the European Communities v Federal Republic of Germany

(Case C-442/08)

(2009/C 6/17)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: A. Caeiros and B. Kotschy, acting as Agents)

Defendant: Federal Republic of Germany

Form of order sought

| — | Declare that the Federal Republic of Germany has infringed its obligations under 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 (1) or, as the case may be, 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), by






  — | allowing tariff claims to become time-barred, irrespective of the receipt of a mutual assistance sheet, and making a late entry in the accounts of the own resources owed in this connection; |
| --- | --- | --- |

—

Declare that the Federal Republic of Germany has infringed its obligations under 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 (1) or, as the case may be, 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), by

—

allowing tariff claims to become time-barred, irrespective of the receipt of a mutual assistance sheet, and making a late entry in the accounts of the own resources owed in this connection;

| — | refusing to pay the accrued default interest; |
| --- | --- |

—

refusing to pay the accrued default interest;

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

—

order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

From 1994 onwards, motor vehicles from Hungary were imported into Germany within the framework of the preferential tariff treatment laid down in the EC-Hungary Europe Agreement. By way of a mutual assistance sheet of 26 June 1998, the European Anti-Fraud Office (OLAF) officially informed the Member States that, at the end of their revision, the Hungarian authorities revoked the declarations of origin for 58 006 vehicles (including 19 123 vehicles for Germany). By way of a letter of which the English version was delivered to the German authorities on 13 July 1998 and the German translation on 18 August 1998, OLAF forwarded the documents and files forming part of that mutual assistance sheet, including the letter of 26 May 1998, by which the Hungarian authorities informed OLAF of the results of the revision and pointed out that the Hungarian manufacturer had brought an action before a Hungarian court against the decisions of the Hungarian authorities. By way of a further mutual assistance sheet of 27 October 1999, OLAF informed the Member States of the outcome of those proceedings. As a result of the re-assessment of the declarations of origin that became necessary following the judgment of the Hungarian court, declarations of origin for 30 771 vehicles remained revoked on the ground of invalidity.

The results of a Commission mission in Germany regarding the control of own resources and information provided by the German authorities showed that the German authorities allowed entitlements in the amount of EUR 408 735,35 for the import of motor vehicles whose declarations of origin remained revoked even after the re-assessment following the judgment of the Hungarian court, to become time-barred. Following a request by the Commission, the own resources owed for those time-barred tariff claims were made available by the German authorities on 31 October 2005, in other words, after the expiry of the time-period provided for in Regulation No 1552/89 (or, as the case may be, Regulation No 1150/2000); however, the German authorities refused to pay default interest in respect of the late entry of those own resources.

The Commission bases the present action essentially on two grounds, namely, first, the late entry of the own resources (in the accounting ledger) and, second, the refusal to pay default interest in respect of that late entry. According to the Commission, at the latest as of 18 August 1998 (the date by which the documents and files forming part of the mutual assistance sheet of 26 June 1998 had been sent out in all languages), all Member States were in a position to identify debtors and the amount of the claim and therefore ought, from then onwards, to have taken the necessary steps to collect the relevant entitlements and to establish, and pay, the own resources connected with it. Taking into consideration an appropriate time-limit of three months for the introduction of such measures, the Commission took the position that all Member States which failed to act are liable for the entitlements that were time-barred from 18 November 1998 onwards.

As regards the Commission's first plea in law, namely the late entry of the own resources, the relevant provisions of Regulation No 1552/89 (or, as the case may be, Regulation No 1150/2000) and the case-law of the Court of Justice show that the Member States are under an obligation to establish the own resources of the Communities and that this obligation exists irrespective of whether or not the entitlements have actually been entered in the accounts, or, as the case may be, whether or not it was possible to collect the entitlements from the debtor. In principle, the incurrence of a customs debt gives the Communities a right to the customary own resources connected to that customs debt, and does so even where the entitlement was not entered in the accounting ledgers or was not collected from the debtor in an individual case. The moment at which the own resources ought to be established is determined by the moment at which the national customs authorities are in a position to calculate the entitlement arising from a customs debt and to identify the debtor.

The question as to which position is to be adopted by the customs authorities of a Member State into which goods have been imported accompanied by declarations of origin which, following a revision, are revoked on the ground of invalidity cannot be answered on the basis of the laws of the relevant third country. Given that Protocol No 4 to the EC-Hungary Association Agreement likewise does not contain provisions to that effect, other sources of Community law have to be examined to determine what Member States have to do once they have been informed of the results of a revision which raised doubts as to the origin of the goods. Article 78(3) of Regulation No 2913/92 provides that the customs authorities of the Member States are to take the measures necessary to regularise the situation, taking account of the new information available to them. In the same way, the regulation requires Member States, following the incurrence of a customs debt, to rapidly implement the procedure for collecting the debt, both during the first phase of the procedure, which consists of entering the entitlement in the accounts, and the phase during which the entitlement is collected from the debtor.

Pursuant to Article 244 of Regulation No 2913/92, the lodging of an appeal against a decision taken by the customs authorities of Member States is not to cause implementation of that decision to be suspended, except in exceptional circumstances. Under normal circumstances, suspension of implementation is to be subject to the existence or lodging of a security. Therefore, in cases in which the incurrence of a customs debt results from the revocation of the declarations of origin at the end of a revision, the fact that legal action has been brought cannot, in the Commission's view, preclude the customs authorities of the importing Member State from (subsequently) collecting the entitlements. Given that the goods were already brought into the Community and that the court proceedings may take several years, such suspension could render the collection of the customs debt far more difficult if the legal action were dismissed.

Finally, as regards the Commission's second plea in law, namely the refusal to pay default interest, Article 11 of Regulation No 1552/89 (or, as the case may be, Regulation No 1150/2000) and the case-law of the Court of Justice show that, even where own resources fail to be established, Member States are required to pay default interest. In the present case, the contested amount of own resources ought to have been entered in the accounts at the latest two months after 18 November 1998, on the first working day following the 19th of that month (in other words, on 20 January 1999). Given that the German authorities only made the entry on 31 October 2005, the Federal Republic of Germany delayed the entry and is under an obligation to pay default interest for the period of delay.

---

(1)  OJ 1989 L 155, p. 1.

(2)  OJ 2000 L 130, p. 1.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/11 |
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Action brought on 7 October 2008 — Commission of the European Communities v French Republic

(Case C-443/08)

(2009/C 6/18)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: A. Alcover San Pedro and J.-B. Laignelot, Agents)

Defendant: French Republic

Form of order sought

The applicant claims that the Court should:

| — | declare that, by failing to adopt all the laws and regulations necessary to correctly transpose Article 2(3), Article 2(4) and Article 4(4) of Council Directive 1999/13/EC of 11 March 1999 on the limitation of emissions of volatile organic compounds due to the use of organic solvents in certain activities and installations (1) as regards the definition of the concepts of ‘small installation’ and ‘substantial change’ and the obligations applying to existing installations, the French Republic has failed to fulfil its obligations under that directive; |
| --- | --- |

—

declare that, by failing to adopt all the laws and regulations necessary to correctly transpose Article 2(3), Article 2(4) and Article 4(4) of Council Directive 1999/13/EC of 11 March 1999 on the limitation of emissions of volatile organic compounds due to the use of organic solvents in certain activities and installations (1) as regards the definition of the concepts of ‘small installation’ and ‘substantial change’ and the obligations applying to existing installations, the French Republic has failed to fulfil its obligations under that directive;

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

—

order French Republic to pay the costs.

Pleas in law and main arguments

The applicant submits that the concepts of ‘small installation’ and ‘substantial change’, as defined in Articles 2(3) and 2(4) of Directive 1999/13/EC, are necessary in order to ensure a harmonised and efficient application of that directive in so far as they specify the obligations applying to certain categories of industrial installations referred to by that directive. There are many omissions in that regard in the transposition of the directive into French law because the defendant did not include any definition of the concept ‘small installation’, while its definition of the concept ‘substantial change’ does not take into account the thresholds for the increase of emissions of volatile organic compounds, above which the change in an installation must be considered to be substantial.

The applicant also criticises the lack of precision and clarity in the transposition of Article 4(4) of the Directive concerning the obligations applying to substantial changes in existing installations. The rules relating to new installations being stricter than those applicable to old installations, clearer rules should in fact be drawn up also in the cases where an existing installation undergoes significant changes in order to ensure the directive, the purpose of which is to guarantee a high level of protection of the environment, remains effective.

---

(1)  OJ 1999 L 85, p. 1.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/12 |
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Reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven (Netherlands), lodged on 13 October 2008 — G. Elbertsen v Minister van Landbouw, Natuur en Voedselkwaliteit

(Case C-449/08)

(2009/C 6/19)

Language of the case: Dutch

Referring court

College van Beroep voor het bedrijfsleven

Parties to the main proceedings

Claimant: G. Elbertsen

Defendant: Minister van Landbouw, Natuur en Voedselkwaliteit

Questions referred

| 1. | Should Article 42(4) of Council Regulation (EC) No 1782/2003 of 29 September 2003 (1) be interpreted as permitting a Member State to establish a reference amount of EUR 0 and not to allocate entitlements to payments from the national reserve to a farmer who finds himself in a special situation as described in Article 21 of Commission Regulation (EC) No 795/2004 of 21 April 2004 (2)? |
| --- | --- |

1.

Should Article 42(4) of Council Regulation (EC) No 1782/2003 of 29 September 2003 (1) be interpreted as permitting a Member State to establish a reference amount of EUR 0 and not to allocate entitlements to payments from the national reserve to a farmer who finds himself in a special situation as described in Article 21 of Commission Regulation (EC) No 795/2004 of 21 April 2004 (2)?

| 2. | If the answer to that question is in the affirmative, does Community law preclude the application of a provision such as Article 17(1)(b) of the Regeling GLB-inkomenssteun 2006 (2006 Netherlands Regulations on CAP income support), under which any increase in the amount of additional payments arising as a result of an investment in production capacity or a purchase of land is subject to a deduction of EUR 500 before a reference amount is established as the basis for the allocation of entitlements to payments from the national reserve? |
| --- | --- |

2.

If the answer to that question is in the affirmative, does Community law preclude the application of a provision such as Article 17(1)(b) of the Regeling GLB-inkomenssteun 2006 (2006 Netherlands Regulations on CAP income support), under which any increase in the amount of additional payments arising as a result of an investment in production capacity or a purchase of land is subject to a deduction of EUR 500 before a reference amount is established as the basis for the allocation of entitlements to payments from the national reserve?

---

(1)  Regulation establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers and amending Regulations (EEC) No 2019/93, (EC) No 1452/2001, (EC) No 1453/2001, (EC) No 1454/2001, (EC) 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, (EC) No 1673/2000, (EEC) No 2358/71 and (EC) No 2529/2001 (OJ 2003 L 270, p. 1).

(2)  Regulation laying down detailed rules for the implementation of the single payment scheme provided for in Council Regulation (EC) No 1782/2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers (OJ 2004 L 141, p. 1).

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/12 |
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Reference for a preliminary ruling from the Oberlandesgericht Düsseldorf (Germany) lodged on 16 October 2008 — Helmut Müller GmbH v Bundesanstalt für Immobilienaufgaben

(Case C-451/08)

(2009/C 6/20)

Language of the case: German

Referring court

Oberlandesgericht Düsseldorf

Parties to the main proceedings

Applicant: Helmut Müller GmbH

Defendant: Bundesanstalt für Immobilienaufgaben

Questions referred

| 1. | Is it a requirement, in order for there to be a public works contract under Art. 1(2)(b) of European Parliament and Council Directive 2004/18/EC of 31 March 2004 (1) on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, that the works be physically carried out for the public contracting authority and bring it an immediate economic benefit? |
| --- | --- |

1.

Is it a requirement, in order for there to be a public works contract under Art. 1(2)(b) of European Parliament and Council Directive 2004/18/EC of 31 March 2004 (1) on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, that the works be physically carried out for the public contracting authority and bring it an immediate economic benefit?

| 2. | In so far as, according to the definition of a public works contract in Article 1(2)(b) of Directive 2004/18/EC, the element of procurement is indispensable: Is procurement to be regarded as having taken place, in accordance with the second variant of the provision, if the intended works for the public contracting authority fulfil a particular public purpose (for example the development of part of a town) and the public contracting authority has the legal right under the contract to ensure that the public purpose is achieved and that the necessary works will be available? |
| --- | --- |

2.

In so far as, according to the definition of a public works contract in Article 1(2)(b) of Directive 2004/18/EC, the element of procurement is indispensable: Is procurement to be regarded as having taken place, in accordance with the second variant of the provision, if the intended works for the public contracting authority fulfil a particular public purpose (for example the development of part of a town) and the public contracting authority has the legal right under the contract to ensure that the public purpose is achieved and that the necessary works will be available?

| 3. | Does the concept of a public works contract in accordance with the first and second variants of Article 1(2)(b) of Directive 2004/18/EC require that the contractor be directly or indirectly obliged to provide the works. If so, must there be a legally enforceable obligation? |
| --- | --- |

3.

Does the concept of a public works contract in accordance with the first and second variants of Article 1(2)(b) of Directive 2004/18/EC require that the contractor be directly or indirectly obliged to provide the works. If so, must there be a legally enforceable obligation?

| 4. | Does the concept of a public works contract in accordance with the third variant of Article 1(2)(b) of Directive 2004/18/EC require that the contractor be obliged to carry out works, or that works form the subject-matter of the contract? |
| --- | --- |

4.

Does the concept of a public works contract in accordance with the third variant of Article 1(2)(b) of Directive 2004/18/EC require that the contractor be obliged to carry out works, or that works form the subject-matter of the contract?

| 5. | Do contracts by which, through the requirements specified by the public contracting authority, it is intended to ensure that the works to be carried out for a particular public purpose be available, and by which (by contractual stipulation) the contracting body is given the legal power to ensure (in its own indirect interest) the availability of the works for the public purpose, fall within the third variant of Article 1(2)(b) of Directive 2004/18/EC? |
| --- | --- |

5.

Do contracts by which, through the requirements specified by the public contracting authority, it is intended to ensure that the works to be carried out for a particular public purpose be available, and by which (by contractual stipulation) the contracting body is given the legal power to ensure (in its own indirect interest) the availability of the works for the public purpose, fall within the third variant of Article 1(2)(b) of Directive 2004/18/EC?

| 6. | Is the concept of ‘requirements specified by the contracting authority’ in Article 1(2)(b) of Directive 2004/18/EC fulfilled, if the works are to be carried out in accordance with plans examined and approved by the public contracting authority? |
| --- | --- |

6.

Is the concept of ‘requirements specified by the contracting authority’ in Article 1(2)(b) of Directive 2004/18/EC fulfilled, if the works are to be carried out in accordance with plans examined and approved by the public contracting authority?

| 7. | Must there be held to be no public works concession under Article 1(3) of Directive 2004/18/EC, if the concessionaire is or will become the owner of the land on which the works are to be carried out, or the concession is granted for an indeterminate period? |
| --- | --- |

7.

Must there be held to be no public works concession under Article 1(3) of Directive 2004/18/EC, if the concessionaire is or will become the owner of the land on which the works are to be carried out, or the concession is granted for an indeterminate period?

| 8. | Does Directive 2004/18/EC — with the legal consequence of an obligation on the public contracting authority to invite tenders — apply if a sale of land by a third party and the award of a public works contract take place at different times and on the conclusion of the land sale the public works contract has not yet been awarded, but at the last-mentioned time there was, on the part of the public authority, the intention to award such a contract? |
| --- | --- |

8.

Does Directive 2004/18/EC — with the legal consequence of an obligation on the public contracting authority to invite tenders — apply if a sale of land by a third party and the award of a public works contract take place at different times and on the conclusion of the land sale the public works contract has not yet been awarded, but at the last-mentioned time there was, on the part of the public authority, the intention to award such a contract?

| 9. | Are separate but related transactions concerning a sale of land and a public works contract to be regarded from the point of view of the law on the awarding of contracts as a unity, if at the time the land sale contract was entered into the award of a public works contract was intended and the participants deliberately created a close connection between the contracts from a substantive — and possibly also temporal — point of view (see Case C-29/04 Commission v Austria [2005] I 9722)? |
| --- | --- |

9.

Are separate but related transactions concerning a sale of land and a public works contract to be regarded from the point of view of the law on the awarding of contracts as a unity, if at the time the land sale contract was entered into the award of a public works contract was intended and the participants deliberately created a close connection between the contracts from a substantive — and possibly also temporal — point of view (see Case C-29/04 Commission v Austria [2005] I 9722)?

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(1)  OJ 2004 L 134, p. 114.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/13 |
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Reference for a preliminary ruling from the Tribunal Superior de Justicia de la Comunidad Autónoma del País Vasco (Spain) lodged on 16 October 2008 — Emilia Flores Fanega v Instituto Nacional de la Seguridad Social (INSS), Tesorería General de la Seguridad Social (TGSS) and Bolumburu S.A.

(Case C-452/08)

(2009/C 6/21)

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia de la Comunidad Autónoma del País Vasco

Parties to the main proceedings

Applicant: Emilia Flores Fanega

Defendant: Instituto Nacional de la Seguridad Social (INSS), Tesorería General de la Seguridad Social (TGSS) and Bolumburu S.A.

Questions referred

| 1. | Is Clause 2(6) of Annex 1 to Council Directive 96/34/EC (1) of 3 June 1996 to be interpreted as meaning that observance of rights in the process of being acquired extends to a pension for life on the ground of a person's total and permanent incapacity to perform her usual work, arising during the period of a year's parental leave taken in the form of a reduction in the working day and pay, as a result of an occupational disease contracted in carrying out the work she was employed to perform for the undertaking that gave the parental leave and revealing itself during that leave period, having regard to the fact that Social Security covers that benefit in subrogation to the obligations of the undertaking, by reason of the relationship of compulsory insurance against the risks of accidents at work and occupational diseases? |
| --- | --- |

1.

Is Clause 2(6) of Annex 1 to Council Directive 96/34/EC (1) of 3 June 1996 to be interpreted as meaning that observance of rights in the process of being acquired extends to a pension for life on the ground of a person's total and permanent incapacity to perform her usual work, arising during the period of a year's parental leave taken in the form of a reduction in the working day and pay, as a result of an occupational disease contracted in carrying out the work she was employed to perform for the undertaking that gave the parental leave and revealing itself during that leave period, having regard to the fact that Social Security covers that benefit in subrogation to the obligations of the undertaking, by reason of the relationship of compulsory insurance against the risks of accidents at work and occupational diseases?

| 2. | If the reply to the first question is affirmative, is that provision to be interpreted as meaning that the guarantee of protection which it provides is infringed by a provision of domestic law that, with the object of fixing the amount of pension for total permanent invalidity on account of occupational disease, takes into consideration the pay received by the worker concerned and the contributions actually made on the basis of that pay in the 12 months before the operative event, during the greater part of which the worker made use of that leave with a reduction in her working day, pay and contributions, but does not provide any correcting factor making it possible to ensure that the object of that provision of Community law is achieved? |
| --- | --- |

2.

If the reply to the first question is affirmative, is that provision to be interpreted as meaning that the guarantee of protection which it provides is infringed by a provision of domestic law that, with the object of fixing the amount of pension for total permanent invalidity on account of occupational disease, takes into consideration the pay received by the worker concerned and the contributions actually made on the basis of that pay in the 12 months before the operative event, during the greater part of which the worker made use of that leave with a reduction in her working day, pay and contributions, but does not provide any correcting factor making it possible to ensure that the object of that provision of Community law is achieved?

| 3. | At all events, and whatever the tenor of the answer to the foregoing questions, are Clauses 2(8) and 4(2) of Annex I to that directive to be interpreted as meaning that the obligations and measures that they prescribe are incompatible with the application of a rule of calculation such as that described? |
| --- | --- |

3.

At all events, and whatever the tenor of the answer to the foregoing questions, are Clauses 2(8) and 4(2) of Annex I to that directive to be interpreted as meaning that the obligations and measures that they prescribe are incompatible with the application of a rule of calculation such as that described?

| 4. | Irrespective of the replies to the foregoing questions, is Article 4(1) of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security, in conjunction with Article 5 thereof, to be interpreted as meaning that it is contrary to the principle of equal treatment to apply a calculation formula such as that referred to, given that, according to the statistics, female workers form the overwhelming majority of workers availing themselves of the form of parental leave described? |
| --- | --- |

4.

Irrespective of the replies to the foregoing questions, is Article 4(1) of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security, in conjunction with Article 5 thereof, to be interpreted as meaning that it is contrary to the principle of equal treatment to apply a calculation formula such as that referred to, given that, according to the statistics, female workers form the overwhelming majority of workers availing themselves of the form of parental leave described?

---

(1)  Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC, (OJ L 145, 19.6.1996, p. 4).

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/14 |
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Action brought on 30 October 2008 — Commission of the European Communities v French Republic

(Case C-468/08)

(2009/C 6/22)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: H. Støvlbæk and V. Peere, acting as Agents)

Defendant: French Republic

Form of order sought

| — | declare that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (1) or, in any event, by failing to inform the Commission thereof, the French Republic has failed to fulfil its obligations under that Directive; |
| --- | --- |

—

declare that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (1) or, in any event, by failing to inform the Commission thereof, the French Republic has failed to fulfil its obligations under that Directive;

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

—

order the French Republic to pay the costs.

Pleas in law and main arguments

The period for the transposition of Directive 2005/36/EC expired on 20 October 2007. At the date of bringing this action, the defendant had not yet taken all the measures necessary to transpose the Directive or, in any event, it had not informed the Commission of them.

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(1)  OJ 2005 L 255, p. 22.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/14 |
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Action brought on 30 October 2008 — Commission of the European Communities v Kingdom of Belgium

(Case C-469/08)

(2009/C 6/23)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: H. Støvlbæk and V. Peere, acting as Agents)

Defendant: Kingdom of Belgium

Form of order sought

| — | declare that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (1) or, in any event, by failing to inform the Commission thereof, the Kingdom of Belgium has failed to fulfil its obligations under that Directive; |
| --- | --- |

—

declare that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (1) or, in any event, by failing to inform the Commission thereof, the Kingdom of Belgium has failed to fulfil its obligations under that Directive;

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

—

order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

The period for the transposition of Directive 2005/36/EC expired on 20 October 2007. At the date of bringing this action, the Defendant had not yet taken all the measures necessary to transpose the Directive or, in any event, it had not informed the Commission of them.

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(1)  OJ 2005 L 255, p. 22.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/15 |
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Official Journal of the European Union

C 6/15

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Reference for a preliminary ruling from the Gerechtshof te Arnhem (Netherlands), lodged on 3 November 2008 — K. van Dijk v Gemeente Kampen

(Case C-470/08)

(2009/C 6/24)

Language of the case: Dutch

Referring court

Gerechtshof te Arnhem

Parties to the main proceedings

Appellant: K. van Dijk

Respondent: Gemeente Kampen

Questions referred

| 1. | Do Regulation No 1782/2003 (1) and Regulation No 795/2004 (2), or the general principles of Community law, in particular the principle of the prohibition of unjustified enrichment, require a lessee, in the absence of national rules in this respect, to deliver the leased land, including the payment entitlements accumulated thereon or relating thereto, to the lessor on the expiry of the lease? |
| --- | --- |

1.

Do Regulation No 1782/2003 (1) and Regulation No 795/2004 (2), or the general principles of Community law, in particular the principle of the prohibition of unjustified enrichment, require a lessee, in the absence of national rules in this respect, to deliver the leased land, including the payment entitlements accumulated thereon or relating thereto, to the lessor on the expiry of the lease?

| 2. | If the answer to Question 1 is in the affirmative: do Regulation No 1782/2003 and Regulation No 795/2004, or the general principles of Community law, in particular the principle of the prohibition of unjustified enrichment, require a lessor, in the absence of national rules in this respect, to pay to the lessee compensation for the payment entitlements transferred to the lessor, and if so, should the lessor compensate the lessee for the full value of those entitlements or for only a proportion of that value, and, if the latter, for what proportion? |
| --- | --- |

2.

If the answer to Question 1 is in the affirmative: do Regulation No 1782/2003 and Regulation No 795/2004, or the general principles of Community law, in particular the principle of the prohibition of unjustified enrichment, require a lessor, in the absence of national rules in this respect, to pay to the lessee compensation for the payment entitlements transferred to the lessor, and if so, should the lessor compensate the lessee for the full value of those entitlements or for only a proportion of that value, and, if the latter, for what proportion?

| 3. | If the answer to Question 1 is in the negative: do Regulation No 1782/2003 and Regulation No 795/2004, or the general principles of Community law, in particular the principle of the prohibition of unjustified enrichment, require a lessee, in the absence of national rules in this respect, to pay to the lessor compensation for the payment entitlements retained by the lessee, and if so, should the lessee compensate the lessor for the full value of those entitlements or for only a proportion of that value, and, if the latter, for what proportion? |
| --- | --- |

3.

If the answer to Question 1 is in the negative: do Regulation No 1782/2003 and Regulation No 795/2004, or the general principles of Community law, in particular the principle of the prohibition of unjustified enrichment, require a lessee, in the absence of national rules in this respect, to pay to the lessor compensation for the payment entitlements retained by the lessee, and if so, should the lessee compensate the lessor for the full value of those entitlements or for only a proportion of that value, and, if the latter, for what proportion?

---

(1)  Council Regulation (EC) No 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers and amending Regulations (EEC) No 2019/93, (EC) No 1452/2001, (EC) No 1453/2001, (EC) No 1454/2001, (EC) 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, (EC) No 1673/2000, (EEC) No 2358/71 and (EC) No 2529/2001 (OJ 2003 L 270, p. 1).

(2)  Commission Regulation (EC) No 795/2004 of 21 April 2004 laying down detailed rules for the implementation of the single payment scheme provided for in Council Regulation (EC) No 1782/2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers (OJ 2004 L 141, p. 1).

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/15 |
| --- | --- | --- | --- |

10.1.2009

EN

Official Journal of the European Union

C 6/15

---

Action brought on 12 November 2008 — Commission of the European Communities v Kingdom of Belgium

(Case C-490/08)

(2009/C 6/25)

Language of the case: French

Parties

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

Defendant: Kingdom of Belgium

Form of order sought

| — | Declare that by not adopting all the laws, regulations and administrative provisions necessary to comply with Directive 2005/68/EC of the European Parliament and of the Council of 16 November 2005 on reinsurance and amending Council Directives 73/239/EEC and 92/49/EEC as well as Directives 98/78/EC and 2002/83/EC (1) or, in any event, by not communicating those measures to the Commission, the Kingdom of Belgium has failed to fulfil its obligations under that directive; |
| --- | --- |

—

Declare that by not adopting all the laws, regulations and administrative provisions necessary to comply with Directive 2005/68/EC of the European Parliament and of the Council of 16 November 2005 on reinsurance and amending Council Directives 73/239/EEC and 92/49/EEC as well as Directives 98/78/EC and 2002/83/EC (1) or, in any event, by not communicating those measures to the Commission, the Kingdom of Belgium has failed to fulfil its obligations under that directive;

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

—

order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

The period for transposition of Directive 2005/68/EC expired on 10 December 2007. At the date of bringing the present action, the defendant had still not adopted the necessary transposing measures or, in any event, had not yet communicated them to the Commission.

---

(1)  OJ 2005 L 323, p. 1.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/16 |
| --- | --- | --- | --- |

10.1.2009

EN

Official Journal of the European Union

C 6/16

---

Action brought on 14 November 2008 — Commission of the European Communities v Hellenic Republic

(Case C-493/08)

(2009/C 6/26)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (represented by: Iro Dimitriou and P. Dejmek, acting as Agents)

Defendant: Hellenic Republic

Form of order sought

| — | Declare that by not bringing into force the laws, regulations and administrative provisions necessary to comply with Directive 2005/56/EC (1) of the European Parliament and of the Council of 26 October 2005 on cross-border mergers of limited liability companies the Hellenic Republic has failed to fulfil its obligations under the first paragraph of Article 19 of that directive; |
| --- | --- |

—

Declare that by not bringing into force the laws, regulations and administrative provisions necessary to comply with Directive 2005/56/EC (1) of the European Parliament and of the Council of 26 October 2005 on cross-border mergers of limited liability companies the Hellenic Republic has failed to fulfil its obligations under the first paragraph of Article 19 of that directive;

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

—

order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

The period for the transposition of that directive into national law expired on 15 December 2007.

---

(1)  OJ L 310, 25.11.2005, p. 1.

---

| 10.1.2009 | EN | Official Journal of the European Union | C 6/16 |
| --- | --- | --- | --- |

10.1.2009

EN

Official Journal of the European Union

C 6/16

---

Action brought on 19 November 2008 — Commission of the European Communities v Italian Republic

(Case C-500/08)

(2009/C 6/27)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: F. Erlbacher and E. Vesco, acting as Agents)

Defendant: Italian Republic

Form of order sought

| — | Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2005/94/EC of 20 December 2005 on Community measures for the control of avian influenza and repealing Directive 92/40/EEC (1), the Italian Republic has failed to fulfil its obligations under that directive. |
| --- | --- |

—

Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2005/94/EC of 20 December 2005 on Community measures for the control of avian influenza and repealing Directive 92/40/EEC (1), the Italian Republic has failed to fulfil its obligations under that directive.

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

—

order the Italian Republic to pay the costs.

Pleas in law and main arguments

The period prescribed for transposing Directive 2005/94/EC into national law expired on 1 July 2007.

---

(1)  OJ 2005 L 10, p. 16.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/17 |
| --- | --- | --- | --- |

10.1.2009

EN

Official Journal of the European Union

C 6/17

---

Action brought on 20 November 2008 — Commission of the European Communities v Kingdom of Spain

(Case C-502/08)

(2009/C 6/28)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (represented by: P. Dejmek and E. Adsera Ribera, acting as Agents)

Defendant: Kingdom of Spain

Form of order sought

| — | declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2005/60/EC (1) of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing or, in any event, by failing to notify them to the Commission, the Kingdom of Spain has failed to fulfil its obligations under Article 45 of that directive; |
| --- | --- |

—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2005/60/EC (1) of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing or, in any event, by failing to notify them to the Commission, the Kingdom of Spain has failed to fulfil its obligations under Article 45 of that directive;

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

—

order Kingdom of Spain to pay the costs.

Pleas in law and main arguments

The period prescribed for transposing Directive 2005/60/EC into national law expired on 15 December 2007.

---

(1)  OJ 2005 L 309, p. 15.

---

| 10.1.2009 | EN | Official Journal of the European Union | C 6/17 |
| --- | --- | --- | --- |

10.1.2009

EN

Official Journal of the European Union

C 6/17

---

Action brought on 20 November 2008 — Commission of the European Communities v Kingdom of Spain

(Case C-503/08)

(2009/C 6/29)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (represented by: P. Dejmek and E. Adsera Ribera, acting as Agents)

Defendant: Kingdom of Spain

Form of order sought

| — | declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2005/56/EC (1) of the European Parliament and of the Council of 26 October 2005 on cross-border mergers of limited liability companies, the Kingdom of Spain has failed to fulfil its obligations under Article 19 of that directive; |
| --- | --- |

—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2005/56/EC (1) of the European Parliament and of the Council of 26 October 2005 on cross-border mergers of limited liability companies, the Kingdom of Spain has failed to fulfil its obligations under Article 19 of that directive;

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

—

order Kingdom of Spain to pay the costs.

Pleas in law and main arguments

The period prescribed for transposing Directive 2005/56/EC into national law expired on 15 December 2007.

---

(1)  OJ 2005, L 310, p. 1.

---

| 10.1.2009 | EN | Official Journal of the European Union | C 6/17 |
| --- | --- | --- | --- |

10.1.2009

EN

Official Journal of the European Union

C 6/17

---

Action brought on 20 November 2008 — Commission of the European Communities v Kingdom of Spain

(Case C-504/08)

(2009/C 6/30)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (represented by: P. Dejmek and E. Adsera Ribera, acting as Agents)

Defendant: Kingdom of Spain

Form of order sought

| — | declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Commission Directive 2006/70/EC (1) of 1 August 2006 laying down implementing measures for Directive 2005/60/EC of the European Parliament and of the Council as regards the definition of politically exposed person and the technical criteria for simplified customer due diligence procedures and for exemption on grounds of a financial activity conducted on an occasional or very limited basis or, in any event, by failing to notify those provisions to the Commission, the Kingdom of Spain has failed to fulfil its obligations under Article 5 thereof; |
| --- | --- |

—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Commission Directive 2006/70/EC (1) of 1 August 2006 laying down implementing measures for Directive 2005/60/EC of the European Parliament and of the Council as regards the definition of politically exposed person and the technical criteria for simplified customer due diligence procedures and for exemption on grounds of a financial activity conducted on an occasional or very limited basis or, in any event, by failing to notify those provisions to the Commission, the Kingdom of Spain has failed to fulfil its obligations under Article 5 thereof;

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

—

order Kingdom of Spain to pay the costs.

Pleas in law and main arguments

The period prescribed for bringing national law into conformity with Directive 2006/70/EC expired on 15 December 2007.

---

(1)  OJ 2006 L 214, p. 29.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/18 |
| --- | --- | --- | --- |

10.1.2009

EN

Official Journal of the European Union

C 6/18

---

Order of the President of the Court of 26 September 2008 — Commission of the European Communities v Kingdom of Belgium

(Case C-187/06) (1)

(2009/C 6/31)

Language of the case: French

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

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(1)  OJ C 154, 1.7.2008.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/18 |
| --- | --- | --- | --- |

10.1.2009

EN

Official Journal of the European Union

C 6/18

---

Order of the President of the Eighth Chamber of the Court of 8 October 2008 — Cain Cellars, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-508/07 P) (1)

(2009/C 6/32)

Language of the case: German

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

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(1)  OJ C 22, 26.1.2008.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/18 |
| --- | --- | --- | --- |

10.1.2009

EN

Official Journal of the European Union

C 6/18

---

Order of the President of the Court of 3 October 2008 — Commission of the European Communities v Republic of Malta

(Case C-11/08) (1)

(2009/C 6/33)

Language of the case: English

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

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(1)  OJ C 51, 23.2.2008.

---

| 10.1.2009 | EN | Official Journal of the European Union | C 6/18 |
| --- | --- | --- | --- |

10.1.2009

EN

Official Journal of the European Union

C 6/18

---

Order of the President of the Court of 16 October 2008 — Commission of the European Communities v Republic of Estonia

(Case C-68/08) (1)

(2009/C 6/34)

Language of the case: Estonian

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

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(1)  OJ C 92, 12.4.2008.

---

| 10.1.2009 | EN | Official Journal of the European Union | C 6/18 |
| --- | --- | --- | --- |

10.1.2009

EN

Official Journal of the European Union

C 6/18

---

Order of the President of the Eighth Chamber of the Court of 14 October 2008 — Commission of the European Communities v Czech Republic

(Case C-71/08) (1)

(2009/C 6/35)

Language of the case: Czech

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

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(1)  OJ C 92, 12.4.2008.

---

| 10.1.2009 | EN | Official Journal of the European Union | C 6/18 |
| --- | --- | --- | --- |

10.1.2009

EN

Official Journal of the European Union

C 6/18

---

Order of the President of the Court of 28 October 2008 — Commission of the European Communities v Republic of Hungary

(Case C-270/08) (1)

(2009/C 6/36)

Language of the case: Hungarian

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

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(1)  OJ C 209, 15.8.2008.

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Court of First Instance

| 10.1.2009 | EN | Official Journal of the European Union | C 6/19 |
| --- | --- | --- | --- |

10.1.2009

EN

Official Journal of the European Union

C 6/19

---

Judgment of the Court of First Instance of 12 November 2008 — Shaker v OHIM — Limiñana y Botella (Limoncello della Costiera Amalfitana shaker)

(Case T-7/04) (1)

(Community trade mark - Opposition proceedings - Application for figurative Community trade mark Limoncello della Costiera Amalfitana shaker - Earlier national word mark LIMONCHELO - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94 - Appeal - Case referred back to the Court of First Instance)

(2009/C 6/37)

Language of the case: Italian

Parties

Applicant: Shaker di L. Laudato & C. Sas (Vietri sul Mare, Italy) (represented by: F. Sciaudone, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: O. Montalto and P. Bullock, acting as Agents)

Other party to the proceedings before the Board of Appeal of OHIM: Limiñana y Botella, SL (Monforte del Cid, Spain)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 24 October 2003 (Case R 933/2002-2), relating to opposition proceedings between Limiñana y Botella, SL and Shaker di L. Laudato & C. Sas.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Shaker di L. Laudato & C. Sas to pay all the costs of the proceedings before the Court of First Instance and the Court of Justice. |
| --- | --- |

2.

Orders Shaker di L. Laudato & C. Sas to pay all the costs of the proceedings before the Court of First Instance and the Court of Justice.

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(1)  OJ C 59, 6.3.2004.

---

| 10.1.2009 | EN | Official Journal of the European Union | C 6/19 |
| --- | --- | --- | --- |

10.1.2009

EN

Official Journal of the European Union

C 6/19

---

Judgment of the Court of First Instance (Seventh Chamber) of 13 November 2008 — Italian Republic v Commission

(Case T-224/04) (1)

(EAGGF - ‘Guarantee’ Section - Expenditure excluded from Community financing - Aid for the processing of tomatoes and production of olive oil)

(2009/C 6/38)

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: M. Fiorilli, lawyer)

Defendant: Commission of the European Communities (represented by: L. Visaggio and C. Cattabriga, Agents)

Re:

Action for partial annulment of Commission Decision 2003/536/EC of 22 July 2003 excluding from Community financing certain expenditure incurred by the Member States under the ‘Guarantee’ Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) (OJ 2003 L 184, p. 42) to the extent that it excludes certain expenditure by the Italian Republic in the financial years 1999 to 2002.

Operative part of the judgment

The Court:

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

1.

dismisses the action;

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

2.

orders the Italian Republic to pay the costs.

---

(1)  OJ C 304, 13.12.2003 (formerly Case C-430/03).

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/20 |
| --- | --- | --- | --- |

10.1.2009

EN

Official Journal of the European Union

C 6/20

---

Judgment of the Court of First Instance (Eighth Chamber) of 13 November 2008 — SPM v Council and Commission

(Case T-128/05) (1)

(Non-contractual liability of the Community - Common organisation of the markets - Bananas - Rules for importing of bananas from ACP countries into the European Union - Lawful or unlawful conduct - Loss allegedly suffered by independent ACP producer)

(2009/C 6/39)

Language of the case: French

Parties

Applicant: Société des plantations de Mbanga SA (SPM) (Douala, Cameroon) (represented initially by P. Soler Couteaux and S. Cahn, then by S. Cahn, B. Doré and A. Farache, lawyers)

Defendants: Council of the European Union (represented by: A. De Gregorio Merino, M. Balta and A. Westerhoff Löfflerova, Agents) and Commission of the European Communities (represented by: F. Clotuche-Duvieusart and L. Visaggio, Agents)

Re:

Action for damages pursuant to Article 235 EC and the second paragraph of Article 288 EC, based, principally, on the unlawful conduct of the Council and the Commission in the establishment of the rules relating to the import of bananas into the Community and, alternatively, on the liability of the Community in the absence of unlawful conduct by those two institutions.

Operative part of the judgment

The Court:

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

1.

dismisses the action;

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

2.

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

---

(1)  OJ C 171, 9.7.2005.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/20 |
| --- | --- | --- | --- |

10.1.2009

EN

Official Journal of the European Union

C 6/20

---

Judgment of the Court of First Instance of 20 November 2008 — Italian Republic v Commission

(Case T-185/05) (1)

(Rules on languages - Implementing rules for recruitment to the European Union Civil Service - Action for annulment under Article 230 EC - Action brought by a Member State against, first, a Commission decision to publish vacancy notices for senior management posts in English, French and German and, second, a Commission vacancy notice published in those three languages for the post of Director-General of OLAF - Admissibility - Time-limit for bringing an action - Measures against which an action may be brought - Statement of reasons - Articles 12 EC, 230 EC and 290 EC - Regulation No 1 - Articles 1d and 27 of the Staff Regulations - Principle of non-discrimination)

(2009/C 6/40)

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: I. Braguglia and M. Fiorilli, avvocati dello Stato)

Defendant: Commission of the European Communities (represented by: L. Cimaglia and P. Aalto, Agents)

Interveners in support of the applicant: Kingdom of Spain (represented by: F. Díez Moreno, abogado del Estado); and Republic of Latvia (represented initially by: E. Balode-Buraka, and subsequently by: L. Ostrovska, Agents)

Re:

APPLICATION for annulment, first, of the decision adopted by the Commission at its 1678th meeting on 10 November 2004, whereby external publications of the vacancy notices for senior management posts in the Official Journal of the European Union would be in English, French and German for a period that would in principle end on 1 January 2007 and, second, of vacancy notice COM/2005/335 for the post of Director-General (grade A*15/A*16) of the European Anti-Fraud Office (OLAF), published by the Commission on 9 February 2005 (OJ 2005 C 34 A, p. 3).

Operative part of the judgment

The Court:

| 1. | Annuls the decision adopted by the Commission at its 1678th meeting on 10 November 2004, whereby external publications of the vacancy notices for senior management posts in the Official Journal of the European Union would henceforth be in English, French and German for a period ending 1 January 2007; |
| --- | --- |

1.

Annuls the decision adopted by the Commission at its 1678th meeting on 10 November 2004, whereby external publications of the vacancy notices for senior management posts in the Official Journal of the European Union would henceforth be in English, French and German for a period ending 1 January 2007;

| 2. | Annuls vacancy notice COM/2005/335 for the post of Director-General (grade A*15/A*16) of the European Anti-Fraud Office (OLAF), published by the Commission on 9 February 2005 (OJ 2005 C 34 A, p. 3); |
| --- | --- |

2.

Annuls vacancy notice COM/2005/335 for the post of Director-General (grade A*15/A*16) of the European Anti-Fraud Office (OLAF), published by the Commission on 9 February 2005 (OJ 2005 C 34 A, p. 3);

| 3. | Orders each party to bear its own costs. |
| --- | --- |

3.

Orders each party to bear its own costs.

---

(1)  OJ C 155, 25.6.2005.

---

| 10.1.2009 | EN | Official Journal of the European Union | C 6/21 |
| --- | --- | --- | --- |

10.1.2009

EN

Official Journal of the European Union

C 6/21

---

Judgment of the Court of First Instance of 12 November 2008 — Nalocebar v OHIM — Limiñana y Botella (Limoncello di Capri)

(Case T-210/05) (1)

(Community trade mark - Opposition proceedings - Application for figurative Community trade mark Limoncello di Capri - Earlier national word mark LIMONCHELO - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94)

(2009/C 6/41)

Language of the case: Italian

Parties

Applicant: Nalocebar — Consultores e Serviços Lda (São Pedro, Portugal) (represented by: G. Pasquarella and R. Pasquarella, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: initially M. Capostagno and then O. Montalto, Agents)

Other party to the proceedings before the Board of Appeal of OHIM: Limiñana y Botella, SL (Monforte del Cid, Spain)

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 18 March 2005 (Case R 646/2004-1) relating to opposition proceedings between Limiñana y Botella, SL and Nalocebar — Consultores e Serviços Lda.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Nalocebar — Consultores e Serviços Lda to pay the costs. |
| --- | --- |

2.

Orders Nalocebar — Consultores e Serviços Lda to pay the costs.

---

(1)  OJ C 182, 23.7.2005.

---

| 10.1.2009 | EN | Official Journal of the European Union | C 6/21 |
| --- | --- | --- | --- |

10.1.2009

EN

Official Journal of the European Union

C 6/21

---

Judgment of the Court of First Instance of 19 November 2008 — Greece v Commission

(Case T-404/05) (1)

(Cohesion Fund - Athens International Airport - Reduction of financial assistance - Principle of proportionality)

(2009/C 6/42)

Language of the case: Greek

Parties

Applicant: Hellenic Republic (represented by: M. Tassopoulou, Agent, assisted by N. Korogiannakis and N. Keramidas, lawyers)

Defendant: Commission of the European Communities (represented by: D. Triantafyllou and A. Weimar, Agents)

Re:

Application for annulment of Commission Decision C(2005) 3243 final of 1 September 2005 reducing the financial assistance granted under the Cohesion Fund for Project No 95/09/65/040 (new Athens International Airport at Spata) by Commission Decision C(96) 1356 final of 24 May 1996.

Operative part of the judgment

The Court:

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

1.

Dismisses the action.

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

2.

Orders the Hellenic Republic to pay the costs.

---

(1)  OJ C 22, 28.1.2006.

---

| 10.1.2009 | EN | Official Journal of the European Union | C 6/21 |
| --- | --- | --- | --- |

10.1.2009

EN

Official Journal of the European Union

C 6/21

---

Order of the Court of First Instance of 19 November 2008 — Ralf Schräder v OHIM — (SUMCOL 01)

(Case T-187/06) (1)

(Community plant variety rights - Plant variety SUMCOL 01 - Rejection of the application for a Community plant variety right - Lack of distinctive character of the candidate variety)

(2009/C 6/43)

Language of the case: German

Parties

Applicant: Ralf Schräder (Lüdinghausen — Germany) (represented by: initially by T. Leidereiter, W.-A. Schmidt and I. Memmler, and later by T. Leidereiter and W.-A. Schmidt, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: B. Kiewiet and M. Ekvad, Agents, assisted by G. Schohe, lawyer)

Re:

ACTION against the decision of the Board of Appeal of the CPVO of 2 May 2006 (Case A 003/2004), concerning an application for Community plant variety rights in respect of the plant variety SOMCOL 01

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Mr Ralf Schräder to pay the costs. |
| --- | --- |

2.

Orders Mr Ralf Schräder to pay the costs.

---

(1)  OJ C 212, 2.9.2006.

---

| 10.1.2009 | EN | Official Journal of the European Union | C 6/22 |
| --- | --- | --- | --- |

10.1.2009

EN

Official Journal of the European Union

C 6/22

---

Judgment of the Court of First Instance of 19 November 2008 — Rautaruukki v OHIM — (RAUTARUUKKI)

(Case T-269/06) (1)

(Community trade mark - Application for the Community word mark RAUTARUUKKI - Absolute grounds for refusal of registration - Descriptive character - Absence of distinctive character - Article 7(1)(b) and (c) and Article 7(3) of Regulation (EC) No 40/94 - Evidence offered in support)

(2009/C 6/44)

Language of the case: English

Parties

Applicant: Rautaruukki Oyj (Helsinki, Finland) (represented by: P. Hagman, lawyer)

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

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 20 July 2006 (Case R 48/2006-4) concerning the registration of the word mark RAUTARUUKKI as a Community trade mark.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Rautaruukki Oyj to pay the costs. |
| --- | --- |

2.

Orders Rautaruukki Oyj to pay the costs.

---

(1)  OJ C 281, 18.11.2006.

---

| 10.1.2009 | EN | Official Journal of the European Union | C 6/22 |
| --- | --- | --- | --- |

10.1.2009

EN

Official Journal of the European Union

C 6/22

---

Judgment of the Court of First Instance of 12 November 2008 — Lego Juris v OHIM — Mega Brands (Red Lego brick)

(Case T-270/06) (1)

(Community trade mark - Application for a three-dimensional Community trade mark - Red Lego brick - Absolute ground for refusal - Sign which consists exclusively of the shape of goods which is necessary to obtain a technical result - Article 7(1)(e)(ii) of Regulation (EC) No 40/94 - Offers of evidence)

(2009/C 6/45)

Language of the case: English

Parties

Applicant: Lego Juris A/S (Billund, Denmark) (represented by: V. von Bomhard, A. Renck and T. Dolde, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the Court of First Instance: Mega Brands, Inc. (Montreal, Canada) (represented by: P. Cappuyns and C. De Meyer, lawyers)

Re:

Action brought against the decision of the Grand Board of Appeal of OHIM of 10 July 2006 (Case R 856/2004-G) relating to invalidity proceedings between Mega Brands, Inc. and Lego Juris A/S.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Lego Juris A/S to pay the costs. |
| --- | --- |

2.

Orders Lego Juris A/S to pay the costs.

---

(1)  OJ C 294, 2.12.2006.

---

| 10.1.2009 | EN | Official Journal of the European Union | C 6/23 |
| --- | --- | --- | --- |

10.1.2009

EN

Official Journal of the European Union

C 6/23

---

Judgment of the Court of First Instance of 19 November 2008 — Ercros v OHIM

(Case T-315/06) (1)

(Community trade mark - Opposition proceedings - Application for the Community figurative mark TAI CROS - Earlier national word marks CROS, SOCIEDAD ANÓNIMA CROS and ERCROS - Earlier national figurative marks CROS - Relative ground for refusal - No likelihood of confusion - No similarity of the signs - Article 8(1)(b) of Regulation (EC) No 40/94)

(2009/C 6/46)

Language of the case: German

Parties

Applicant: Ercros, SA (Barcelona, Spain) (represented by: R. Thierie, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Degussa GmbH, formerly Degussa AG (Düsseldorf, Germany) (represented by: S. Schäffler, lawyer)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 20 September 2006 (Case R 29/2006-1) concerning opposition proceedings between Ercros, SA and Degussa GmbH.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Ercros, SA to pay the costs. |
| --- | --- |

2.

Orders Ercros, SA to pay the costs.

---

(1)  OJ C 326, 30.12.2006.

---

| 10.1.2009 | EN | Official Journal of the European Union | C 6/23 |
| --- | --- | --- | --- |

10.1.2009

EN

Official Journal of the European Union

C 6/23

---

Judgment of the Court of First Instance of 19 November 2008 — Commission v Premium

(Case T-316/06) (1)

(Arbitration clause - Contracts entered into under a specific research and technological development programme in the field of information technology - Repayment of part of the advance payment made by the Community - Default interest)

(2009/C 6/47)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: E. Montaguti, acting as Agent, assisted by J.-L. Fagnart and F. Longfils, lawyers)

Defendant: Premium SA (Le Roeulx, Belgium) (represented by: S. Bertouille and D. Joos de ter Beerst, lawyers)

Re:

Action under Article 238 EC claiming that the defendant should be ordered to repay part of the advance payments made by the Community, together with default interest, because of failure to comply with certain contractual obligations

Operative part of the judgment

The Court:

| 1. | orders Premium SA to pay to the Commission the principal sum of EUR 57 605,74, together with default interest:






  — | at the rate of 3,36 % per annum for the period from 1 October to 31 December 1998; |
| --- | --- | --- |

1.

orders Premium SA to pay to the Commission the principal sum of EUR 57 605,74, together with default interest:

—

at the rate of 3,36 % per annum for the period from 1 October to 31 December 1998;

| — | at the rate of 3,47 % per annum for the period from 1 January to 31 December 1999; |
| --- | --- |

—

at the rate of 3,47 % per annum for the period from 1 January to 31 December 1999;

| — | at the rate of 2,74 % per annum for the period from 1 January to 31 December 2000; |
| --- | --- |

—

at the rate of 2,74 % per annum for the period from 1 January to 31 December 2000;

| — | at the rate of 4,26 % per annum for the period from 1 January 2001 to 31 December 2002; |
| --- | --- |

—

at the rate of 4,26 % per annum for the period from 1 January 2001 to 31 December 2002;

| — | at the rate of 3,29 % per annum for the period from 1 January to 31 December 2003; |
| --- | --- |

—

at the rate of 3,29 % per annum for the period from 1 January to 31 December 2003;

| — | at the rate of 2,27 % per annum for the period from 1 January to 31 December 2004; |
| --- | --- |

—

at the rate of 2,27 % per annum for the period from 1 January to 31 December 2004;

| — | at the rate of 2,05 % per annum for the period from 1 January to 31 December 2005; |
| --- | --- |

—

at the rate of 2,05 % per annum for the period from 1 January to 31 December 2005;

| — | at the rate of 2,11 % per annum for the period from 1 January 2006 to the date of the present judgment; |
| --- | --- |

—

at the rate of 2,11 % per annum for the period from 1 January 2006 to the date of the present judgment;

| — | at the rate applicable under French law for the period from the date of the present judgment to that of final settlement of the principal sum; |
| --- | --- |

—

at the rate applicable under French law for the period from the date of the present judgment to that of final settlement of the principal sum;

| 2. | orders Premium to pay to the Commission the principal sum of EUR 30 988,74, together with default interest:






  — | at the rate of 3,95 % per annum for the period from 1 October to 31 December 1998; |
| --- | --- | --- |

2.

orders Premium to pay to the Commission the principal sum of EUR 30 988,74, together with default interest:

—

at the rate of 3,95 % per annum for the period from 1 October to 31 December 1998;

| — | at the rate of 2,85 % per annum for the period from 1 January to 31 December 1999; |
| --- | --- |

—

at the rate of 2,85 % per annum for the period from 1 January to 31 December 1999;

| — | at the rate of 3,6 % per annum for the period from 1 January 2000 to 31 December 2001; |
| --- | --- |

—

at the rate of 3,6 % per annum for the period from 1 January 2000 to 31 December 2001;

| — | at the rate of 2,95 % per annum for the period from 1 January to 31 December 2002; |
| --- | --- |

—

at the rate of 2,95 % per annum for the period from 1 January to 31 December 2002;

| — | at the rate of 2,15 % per annum for the period from 1 January 2003 to 31 December 2004; |
| --- | --- |

—

at the rate of 2,15 % per annum for the period from 1 January 2003 to 31 December 2004;

| — | at the rate of 2,4 % per annum for the period from 1 January to 31 December 2005; |
| --- | --- |

—

at the rate of 2,4 % per annum for the period from 1 January to 31 December 2005;

| — | at the rate of 2,5 % per annum for the period from 1 January 2006 to the date of the present judgment; |
| --- | --- |

—

at the rate of 2,5 % per annum for the period from 1 January 2006 to the date of the present judgment;

| — | at the rate applicable under Danish law for the period from the date of the present judgment to that of final settlement of the principal sum; |
| --- | --- |

—

at the rate applicable under Danish law for the period from the date of the present judgment to that of final settlement of the principal sum;

| 3. | orders Premium to pay the costs. |
| --- | --- |

3.

orders Premium to pay the costs.

---

(1)  OJ C 326, 30.12.2006.

---

| 10.1.2009 | EN | Official Journal of the European Union | C 6/24 |
| --- | --- | --- | --- |

10.1.2009

EN

Official Journal of the European Union

C 6/24

---

Judgment of the Court of First Instance of 12 November 2008 — Evropaïki Dynamiki v Commission

(Case T-406/06) (1)

(Public service contracts - Invitation to tender concerning support services for the system of registries established under Directive 2003/87/EC - Rejection of a tender - Decision to award the contract to another tenderer - Manifest error of assessment - Obligation to state the reasons on which the decision is based - Claim for damages)

(2009/C 6/48)

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: Commission of the European Communities (represented by: M. Wilderspin and E. Manhaeve, acting as Agents)

Re:

Application for, first, annulment of the Commission's decision of 19 October 2006 to reject the applicant's offer in a call for tenders for support services for the system of registries established under Directive 2003/87/CE of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ 2003 L 275, p. 32), the Community independent transaction log (CITL), with technical maintenance and user support (OJ 2006 S 102), and an application for annulment of the decision to award the contract to another tenderer and, secondly, a claim for damages.

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 its own costs and those incurred by the Commission. |
| --- | --- |

2.

Orders Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to pay its own costs and those incurred by the Commission.

---

(1)  OJ C 42, 24.2.2007.

---

| 10.1.2009 | EN | Official Journal of the European Union | C 6/24 |
| --- | --- | --- | --- |

10.1.2009

EN

Official Journal of the European Union

C 6/24

---

Judgment of the Court of First Instance of 19 November 2008 — Galderma v OHIM — Lelas (Nanolat)

(Case T-6/07) (1)

(Community trade mark - Opposition proceedings - Application for the Community word mark Nanolat - Earlier national word mark TANNOLACT - No likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94)

(2009/C 6/49)

Language of the case: German

Parties

Applicant: Galderma SA (Cham, Switzerland) (represented by: N. Hebeis, lawyer)

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 Court of First Instance: Tihomir Lelas (Zagreb, Croatia) (represented by: H.-J. Omsels, lawyer)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 25 October 2006 (Case R 146/2006-4) relating to opposition proceedings between Galderma SA and Mr Tihomir Lelas

Operative part of the judgment

The Court:

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

1.

dismisses the action;

| 2. | orders Galderma SA to pay the costs. |
| --- | --- |

2.

orders Galderma SA to pay the costs.

---

(1)  OJ C 56, 10.3.2007.

---

| 10.1.2009 | EN | Official Journal of the European Union | C 6/25 |
| --- | --- | --- | --- |

10.1.2009

EN

Official Journal of the European Union

C 6/25

---

Judgment of the Court of First Instance of 12 November 2008 — Spain v Commission

(Case T-60/07) (1)

(EAGGF - Guarantee Section - Expenditure excluded from Community financing - Fruit and vegetable sector - Environmental protection - Administrative procedure)

(2009/C 6/50)

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by: M. Muñoz Pérez, lawyer)

Defendant: Commission of the European Communities (represented by: F. Jimeno Fernández, Agent)

Re:

Application for partial annulment of Commission Decision 2006/932/EC of 14 December 2006 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural and Guarantee Fund (EAGGF) (OJ 2006 L 355, p. 96), in so far as it excludes certain expenditure incurred by the Kingdom of Spain in the fruit and vegetable sector

Operative part of the judgment

The Court:

| 1. | Dismisses the application; |
| --- | --- |

1.

Dismisses the application;

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

2.

orders the Kingdom of Spain to pay the costs.

---

(1)  OJ C 95, 28.4.2007.

---

| 10.1.2009 | EN | Official Journal of the European Union | C 6/25 |
| --- | --- | --- | --- |

10.1.2009

EN

Official Journal of the European Union

C 6/25

---

Judgment of the Court of First Instance (Eighth Chamber) of 12 November 2008 — Cantieri Navali Termoli v Commission

(Case T-70/07) (1)

(State Aid - Shipbuilding - Operating aid linked to contracts for ships - Application for extension of ship delivery limit under Article 3 of Regulation (EC) No 1540/98 - Causal link between the exceptional event and the delay)

(2009/C 6/51)

Language of the case: Italian

Parties

Applicant: Cantieri Navali Termoli SpA (Termoli, Italy) (represented by: B. Mammarella, lawyer)

Defendant: Commission of the European Communities (represented by: G. Conte and C. Urraca Caviedes, Agents)

Re:

Action for annulment of the Commission's decision 2006/948/EC of 4 July 2006 on State aid which Italy plans to implement for Cantieri Navali Termoli SpA (OJ 2006 L 383, p. 53)

Operative part of the judgment

The Court:

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

1.

dismisses the action;

| 2. | orders Cantieri Navali Termoli SpA to pay the costs. |
| --- | --- |

2.

orders Cantieri Navali Termoli SpA to pay the costs.

---

(1)  OJ C 95, 28.4.2007.

---

| 10.1.2009 | EN | Official Journal of the European Union | C 6/26 |
| --- | --- | --- | --- |

10.1.2009

EN

Official Journal of the European Union

C 6/26

---

Judgment of the Court of First Instance of 12 November 2008 — Scil proteins v OHIM — Indena (affilene)

(Case T-87/07) (1)

(Community trade mark - Opposition proceedings - Application for Community figurative mark affilene - Earlier Community word mark AFFILIN - Relative ground for refusal - Likelihood of confusion - Similarity between products - Article 8(1)(b) of Regulation (EC) No 40/94)

(2009/C 6/52)

Language of the case: English

Parties

Applicant: Scil proteins GmbH (Halle, Germany) (represented by: V. Dalichau and I.-M. Helbig, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Indena SpA (Milan, Italy)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 23 January 2007 (Case R 10/2006-2) relating to opposition proceedings between Scil proteins GmbH and Indena SpA.

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 23 January 2007 (Case R 10/2006-2) in so far as it dismisses the opposition with respect to the following goods: ‘extracts of medicinal plants for use in the pharmaceutical, cosmetic and food industries, not for diagnostic purposes’; |
| --- | --- |

1.

Annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 23 January 2007 (Case R 10/2006-2) in so far as it dismisses the opposition with respect to the following goods: ‘extracts of medicinal plants for use in the pharmaceutical, cosmetic and food industries, not for diagnostic purposes’;

| 2. | Orders OHIM to pay the costs. |
| --- | --- |

2.

Orders OHIM to pay the costs.

---

(1)  OJ C 117, 26.5.2007.

---

| 10.1.2009 | EN | Official Journal of the European Union | C 6/26 |
| --- | --- | --- | --- |

10.1.2009

EN

Official Journal of the European Union

C 6/26

---

Judgment of the Court of First Instance of 12 November 2008 — Weiler v OHIM — IQNet Association — The International Certification Network (Q2WEB)

(Case T-242/07) (1)

(Community trade mark - Invalidity proceedings - Community word mark Q2WEB - Earlier Community word mark QWEB and earlier Community figurative mark QWEB Certified Site - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) and Article 52(1)(a) of Regulation (EC) No 40/94)

(2009/C 6/53)

Language of the case: German

Parties

Applicant: Dieter Weiler (Pulheim, Germany) (represented by: T. Dolde, V. von Bomhard and A. Renck, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: IQNet Association — The International Certification Network (Berne, Switzerland) (represented by: A. Masetti Zannini de Concina, M. Bucarelli and P. Bodenham, lawyers)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 29 March 2007 (Case R 893/2005-1) concerning invalidity proceedings between CISQ Federazione Certificazione Italiana Sistemi di Qualità Aziendali, then IQNet Association — The International Certification Network, and Mr Weiler

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Mr Dieter Weiler to pay the costs. |
| --- | --- |

2.

Orders Mr Dieter Weiler to pay the costs.

---

(1)  OJ C 211, 8.9.2007.

---

| 10.1.2009 | EN | Official Journal of the European Union | C 6/27 |
| --- | --- | --- | --- |

10.1.2009

EN

Official Journal of the European Union

C 6/27

---

Judgment of the Court of First Instance of 12 November 2008 — ecoblue v OHIM — Banco Bilbao Vizcaya Argentaria (Ecoblue)

(Case T-281/07) (1)

(Community trade mark - Opposition proceedings - Application for the Community word mark Ecoblue - Earlier Community word mark BLUE - Relative ground for refusal - Likelihood of confusion - Similarity of the signs - Article 8(1)(b) of Regulation (EC) No 40/94)

(2009/C 6/54)

Language of the case: English

Parties

Applicant: ecoblue AG (Munich-Bogenhausen, Germany) (represented by: C. Osterrieth and T. Schmitz, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Banco Bilbao Vizcaya Argentaria, SA (Madrid, Spain)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 25 April 2007 (Case R 844/2006-1), concerning opposition proceedings between Banco Bilbao Vizcaya Argentaria, SA and ecoblue AG.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders ecoblue AG to pay the costs. |
| --- | --- |

2.

Orders ecoblue AG to pay the costs.

---

(1)  OJ C 235, 6.10.2007.

---

| 10.1.2009 | EN | Official Journal of the European Union | C 6/27 |
| --- | --- | --- | --- |

10.1.2009

EN

Official Journal of the European Union

C 6/27

---

Judgment of the Court of First Instance of 19 November 2008 — Commission v B2 Test

(Case T-317/07) (1)

(Arbitration clause - Contract concluded in the framework of the specific programme for research and technological development, including demonstration, in the field of industrial and materials technologies (1994-1998) - Breach of contract - Repayment of balance of advance paid by the Commission)

(2009/C 6/55)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: L. Escobar Guerrero, Agent, assisted by E. Boutier and J. Marthan, lawyers)

Defendant: B2 Test SA (Gardanne, France) (represented by: M. Baffert, lawyer)

Re:

Application under Article 238 EC seeking to obtain repayment of the balance of the advance paid by the European Community, plus late-payment interest thereon, in the framework of the contract BRST-CT-98-5452, and the payment of damages with interest.

Operative part of the judgment

The Court:

| 1. | Orders B2 Test SA to repay to the Commission the principal sum of EUR 43 437,94, increased by late-payment interest at the statutory annual rate applicable in France, from 31 July 2002 until the debt has been paid in full; |
| --- | --- |

1.

Orders B2 Test SA to repay to the Commission the principal sum of EUR 43 437,94, increased by late-payment interest at the statutory annual rate applicable in France, from 31 July 2002 until the debt has been paid in full;

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

2.

Dismisses the action as to the remainder;

| 3. | Orders B2 Test to pay the costs. |
| --- | --- |

3.

Orders B2 Test to pay the costs.

---

(1)  OJ C 269, 10.11.2007.

---

| 10.1.2009 | EN | Official Journal of the European Union | C 6/27 |
| --- | --- | --- | --- |

10.1.2009

EN

Official Journal of the European Union

C 6/27

---

Judgment of the Court of First Instance of 25 November 2008 — Caisse fédérale du Crédit mutuel Centre-Est Europe v OHIM (SURFCARD)

(Case T-325/07) (1)

(Community trade mark - Application for Community word mark SURFCARD - Absolute ground for refusal - Partially descriptive character - Article 7(1)(c) of Regulation (EC) No 40/94)

(2009/C 6/56)

Language of the case: French

Parties

Applicant: Caisse fédérale du Crédit mutuel Centre-Est Europe (CFCMCEE) (Strasbourg, France) (represented by: P. Greffe, J. Schouman and L. Paudrat, lawyers)

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

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 14 June 2007 (Case R 1130/2006-1) concerning an application for registration of the word sign SURFCARD as a Community trade mark.

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 14 June 2007 (Case R 1130/2006-1) to the extent that it refuses the registration as a Community trade mark of the word sign SURFCARD for ‘magnetic data media, optical data media’ falling within Class 9 and ‘credit card services, debit card services’ falling within Class 36 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended. |
| --- | --- |

1.

Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 14 June 2007 (Case R 1130/2006-1) to the extent that it refuses the registration as a Community trade mark of the word sign SURFCARD for ‘magnetic data media, optical data media’ falling within Class 9 and ‘credit card services, debit card services’ falling within Class 36 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended.

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

2.

Dismisses the action as to the remainder.

| 3. | Orders the Caisse fédérale du Crédit mutuel Centre-Est Europe (CFCMCEE) and OHIM to bear their own costs. |
| --- | --- |

3.

Orders the Caisse fédérale du Crédit mutuel Centre-Est Europe (CFCMCEE) and OHIM to bear their own costs.

---

(1)  OJ C 269, 10.11.2007.

---

| 10.1.2009 | EN | Official Journal of the European Union | C 6/28 |
| --- | --- | --- | --- |

10.1.2009

EN

Official Journal of the European Union

C 6/28

---

Judgment of the Court of First Instance of 13 November 2008 — Duro Sweden v OHIM (EASYCOVER)

(Case T-346/07) (1)

(Community trade mark - Application for the Community word mark EASYCOVER - Absolute grounds for refusal - Article 7(1)(b) and (c) of Regulation (EC) No 40/94 - Article 73 of Regulation No 40/94)

(2009/C 6/57)

Language of the case: English

Parties

Applicant: Duro Sweden AB (Gävle, Sweden) (represented by: R. Bird, Solicitor)

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

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 3 July 2007 (Case R 1065/2005-4) relating to an application for registration of the word mark EASYCOVER as a Community trade mark

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 3 July 2007 (Case R 1065/2005 4) in so far as concerns goods in the category ‘monuments, not of metal’; |
| --- | --- |

1.

Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 3 July 2007 (Case R 1065/2005 4) in so far as concerns goods in the category ‘monuments, not of metal’;

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

2.

Dismisses the action as to the remainder;

| 3. | Orders Duro Sweden AB to bear its own costs and to pay three-quarters of OHIM's costs. OHIM is ordered to pay one quarter of its own costs. |
| --- | --- |

3.

Orders Duro Sweden AB to bear its own costs and to pay three-quarters of OHIM's costs. OHIM is ordered to pay one quarter of its own costs.

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(1)  OJ C 269, 10.11.2007.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/28 |
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Official Journal of the European Union

C 6/28

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Judgment of the Court of First Instance of 12 November 2008 — EOS v OHIM (PrimeCast)

(Case T-373/07) (1)

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

(2009/C 6/58)

Language of the case: German

Parties

Applicant: EOS GmbH Electro Optical Systems (Krailling, Germany) (represented by: M. Mentjes, lawyer)

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

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 20 July 2007 (Case R 333/2005-4) concerning an application for registration of the word mark PrimeCast as a Community trade mark

Operative part of the judgment

The Court:

| 1. | Dismisses the application; |
| --- | --- |

1.

Dismisses the application;

| 2. | orders EOS GmbH Electro Optical Systems to pay the costs. |
| --- | --- |

2.

orders EOS GmbH Electro Optical Systems to pay the costs.

---

(1)  OJ C 283, 24.11.2007.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/29 |
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C 6/29

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Judgment of the Court of First Instance of 12 November 2008 — GretagMacbeth v OHIM (Combination of 24 coloured squares)

(Case T-400/07) (1)

(Community trade mark - Application for Community colour mark - Combination of 24 coloured squares - Absolute ground for refusal - Lack of distinctive character - Article 7(1)(b) of Regulation (EC) No 40/94)

(2009/C 6/59)

Language of the case: German

Parties

Applicant: GretagMacbeth LLC (New Windsor, New York, United States) (represented by: J. Weiser, lawyer)

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

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 30 August 2007 (Case R 30/2007-4) concerning an application for registration as a Community trade mark of a colour sign composed of 24 coloured squares

Operative part of the judgment

The Court:

| 1. | Dismisses the application; |
| --- | --- |

1.

Dismisses the application;

| 2. | orders GretagMacbeth LLC to pay the costs. |
| --- | --- |

2.

orders GretagMacbeth LLC to pay the costs.

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(1)  OJ C 315, 22.12.2007.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/29 |
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C 6/29

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Order of the Court of First Instance of 13 November 2008 — Lemaître Sécurité v Commission

(Case T-301/06) (1)

(Action for annulment - Dumping - Imports of footwear with a protective toecap originating in the People's Republic of China and India - Commission Decision closing the anti-dumping proceeding - Not individually concerned - Manifest inadmissibility)

(2009/C 6/60)

Language of the case: French

Parties

Applicant: Lemaître Sécurité SAS (La Walck, France) (represented by: D. Bollecker, lawyer)

Defendant: Commission of the European Communities (represented by: H. van Vliet and C. Giolito, acting as Agents)

Intervener in support of the applicant: Associazione nazionale calzaturifici italiani (Milan, Italy) (represented by: D. Bollecker, lawyer)

Re:

Annulment of Commission Decision No 2006/582/EC of 28 August 2006 terminating the anti-dumping proceeding concerning imports of footwear with a protective toecap, originating in the People's Republic of China and India (OJ 2006 L 234, p. 33)

Operative part of the order

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

1.

The action is dismissed as manifestly inadmissible.

| 2. | Lemaître Sécurité SAS shall bear its own costs and pay those incurred by the Commission. |
| --- | --- |

2.

Lemaître Sécurité SAS shall bear its own costs and pay those incurred by the Commission.

| 3. | Associazione nazionale calzaturifici italiani shall bear its own costs. |
| --- | --- |

3.

Associazione nazionale calzaturifici italiani shall bear its own costs.

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(1)  OJ C 326, 30.12.2006.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/30 |
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C 6/30

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Order of the Court of First Instance of 27 October 2008 — Buzzi Unichem v Commission

(Case T-241/07) (1)

(Action for annulment - Directive 2003/87/EC - System of exchange of greenhouse gas emissions allowances - National plan for the allocation of emission allowances for Italy for the period from 2008 to 2012 - Commission Decision not to raise objections on certain conditions - Not individually concerned - Inadmissibility)

(2009/C 6/61)

Language of the case: Italian

Parties

Applicant: Buzzi Unichem SpA (Casale Monferrato, Italy) (represented by: C. Vivani, M. Vellano and G. Osch, lawyers)

Defendant: Commission of the European Communities (represented by: U. Wölker and D. Recchia, acting as Agents)

Re:

Annulment of the Commission Decision of 15 May 2007 concerning the national plan for the allocation of greenhouse gas emission allowances notified by Italy for the period from 2008 to 2012, in accordance with Directive 2003/87/EC of the European Parliament and of the Council establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ 2003 L 275, p. 32), inasmuch as the Commission makes its decision not to raise objections with regard to that national allocation plan conditional on withdrawal of the authorisation for installation operators to retain part of the allowances allocated in the event of ‘closure due to a production rationalisation process’.

Operative part of the order

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

1.

The action is dismissed as inadmissible.

| 2. | Buzzi Unichem SpA shall bear its own costs and shall pay those incurred by the Commission. |
| --- | --- |

2.

Buzzi Unichem SpA shall bear its own costs and shall pay those incurred by the Commission.

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(1)  OJ C 211, 8.9.2007.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/30 |
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C 6/30

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Order of the Court of First Instance of 3 November 2008 — Union nationale de l'apiculture française and Others v Commission

(Case T-403/07) (1)

(Action for annulment - Directive 91/414/EEC - Plant protection products - Directive 2007/52/EC - Not individually concerned - Inadmissibility)

(2009/C 6/62)

Language of the case: French

Parties

Applicants: Union nationale de l'apiculture française (Paris, France); Deutscher Berufs- und Erwerbsimkerbund eV (Utting am Ammersee, Germany); Unione nazionale associazioni apicoltori italiani (Unaapi) (Castel Sanpietro Terme, Italy); and Asociación Galega de Apicultura (AGA) (Santiago de Compostela, Spain) (represented by: B. Fau, lawyer)

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

Re:

Application for annulment of Commission Directive 2007/52/EC of 16 August 2007 amending Council Directive 91/414/EEC to include ethoprophos, pirimiphos-methyl and fipronil as active substances (OJ 2007 L 214, p. 3)

Operative part of the order

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

1.

The action is dismissed as inadmissible.

| 2. | There is no need to rule on the applications to intervene. |
| --- | --- |

2.

There is no need to rule on the applications to intervene.

| 3. | Union nationale de l'apiculture française, Deutscher Berufs- und Erwerbsimkerbund eV, Unione nazionale associazioni apicoltori italiani and Asociación Galega de Apicultura shall bear their own costs and pay the costs incurred by the Commission. |
| --- | --- |

3.

Union nationale de l'apiculture française, Deutscher Berufs- und Erwerbsimkerbund eV, Unione nazionale associazioni apicoltori italiani and Asociación Galega de Apicultura shall bear their own costs and pay the costs incurred by the Commission.

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(1)  OJ C 8, 12.1.2008.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/31 |
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C 6/31

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Order of the Court of First Instance of 14 November 2008 — Transportes Evaristo Molina v Commission

(Case T-45/08) (1)

(Action for annulment - Time-limits for commencing proceedings - Starting point - Publication in the Official Journal - Alleged lack of locus standi at the date of publication - Inadmissibility)

(2009/C 6/63)

Language of the case: Spanish

Parties

Applicant: Transportes Evaristo Molina, SA (El Ejido, Spain) (represented by: A. Hernández Pardo, L. Ruiz Ezquerra and C. Flores Hernández, lawyers)

Defendant: Commission of the European Communities (represented by: É. Gippini, acting as Agent)

Re:

Annulment of Commission Decision 2006/446/EC of 12 April 2006, relating to a proceeding under Article 81 EC (Case COMP/B-1/38.348 — Repsol CPP) (summary published in OJ 2006 L 176, p. 104) making binding the undertakings made by Repsol CPP, adopted in accordance with Article 9 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1)

Operative part of the order

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

1.

The action is dismissed.

| 2. | It is not necessary to adjudicate on the application to intervene made by Repsol Comercial de Productos Petrolíferos, SA. |
| --- | --- |

2.

It is not necessary to adjudicate on the application to intervene made by Repsol Comercial de Productos Petrolíferos, SA.

| 3. | Transportes Evaristo Molina, SA shall bear its own costs and pay those incurred by the Commission. |
| --- | --- |

3.

Transportes Evaristo Molina, SA shall bear its own costs and pay those incurred by the Commission.

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(1)  OJ C 92, 12.4.2008.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/31 |
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C 6/31

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Order of the Court of First Instance of 17 November 2008 — Sanatur v OHIM — Sektkellerei Schloss Wachenheim (life light)

(Case T-222/08) (1)

(Community trade mark - Opposition - Withdrawal of opposition - No need to adjudicate)

(2009/C 6/64)

Language of the case: German

Parties

Applicant: Sanatur GmbH (Singen, Germany) (represented by: M. Wiume, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Sektkellerei Schloss Wachenheim AG (Trier, Germany)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 6 March 2008 (Case R 1257/2006-1) relating to opposition proceedings between Sektkellerei Schloss Wachenheim AG and Sanatur GmbH

Operative part of the order

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

1.

There is no need to adjudicate on the action.

| 2. | The applicant and OHIM shall bear their own costs. |
| --- | --- |

2.

The applicant and OHIM shall bear their own costs.

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(1)  OJ C 223, 30.8.2008.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/31 |
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Official Journal of the European Union

C 6/31

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Order of the President of the Court of First Instance of 14 November 2008 — Sacem v Commission

(Case T-422/08 R)

(Interim measures - Decision of the Commission ordering cessation of a concerted practice in connection with the collective management of author's rights - Application for stay of execution - Lack of urgency)

(2009/C 6/65)

Language of the case: French

Parties

Applicant: Société des auteurs, compositeurs et éditeurs de musique (Sacem) (Neuilly-sur-Seine, France) (represented by: H. Calvet, lawyer)

Defendant: Commission of the European Communities (represented by: F. Castillo de la Torre and É. Gippini Fournier, acting as Agents)

Re:

Application for a stay of execution of Commission Decision C(2008) final of 16 July 2008 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (Case COMP/C2/38.698 — CISAC)

Operative part of the order

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

1.

The application for interim measures is dismissed.

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

2.

Costs are reserved.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/32 |
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C 6/32

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Action brought on 18 September 2008 — SPAR Österreichische Warenhandel v Commission

(Case T-405/08)

(2009/C 6/66)

Language of the case: German

Parties

Applicant: SPAR Österreichische Warenhandels-AG (represented by: A.-H. Bischke, S. Brack und D. Bräunlich, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | annul the defendant's decision of 23 June 2008; |
| --- | --- |

—

annul the defendant's decision of 23 June 2008;

| — | 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

The applicant has brought an action against the decision of the Commission of 23 June 2008 in Case COMP/M.5047 — REWE/ADEG, by which the Commission approved the acquisition by Billa AG, a company in the German REWE Group, of sole control of ADEG Österreich Handelsaktiengesellschaft. The applicant submits that the Commission should not have approved the concentration in accordance with Article 6(2) of the EC Merger Regulation (1), since the undertakings given were not sufficient to remove what the applicant considers to be existing competition concerns.

In support of its action, the applicant putting forward two pleas in law:

First, the applicant submits that Article 6(1)(c) of the EC Merger Regulation has been infringed because the Commission erred in law when it failed to open Phase II proceedings and approved the proposed concentration ‘REWE/ADEG’ subject to conditions in Phase I. The Commission failed to sufficiently investigate the effect the proposed concentration would have on competition and therefore also misjudged the serious competition concerns arising in connection with the proposed concentration. In detail, the infringement consists of the following manifest errors of assessment:

| — | the Commission misjudged the effect of the proposed takeover on competition in the retail market in the whole of Austria, because if wrongly assumed that a number of competitors would remain in place and underestimated ADEG's competitive potential; |
| --- | --- |

—

the Commission misjudged the effect of the proposed takeover on competition in the retail market in the whole of Austria, because if wrongly assumed that a number of competitors would remain in place and underestimated ADEG's competitive potential;

| — | the Commission wrongly determined and wrongly assessed the market position of the parties at regional and local level; |
| --- | --- |

—

the Commission wrongly determined and wrongly assessed the market position of the parties at regional and local level;

| — | the undertakings accepted by the Commission are not appropriate for removing the existing competition concerns, since they were assessed on the wrong basis; |
| --- | --- |

—

the undertakings accepted by the Commission are not appropriate for removing the existing competition concerns, since they were assessed on the wrong basis;

| — | the Commission wrongly determined and wrongly assessed the effect on competition in the labour markets. |
| --- | --- |

—

the Commission wrongly determined and wrongly assessed the effect on competition in the labour markets.

Second, during the merger control proceedings, the Commission infringed essential formal requirements. It infringed the applicant's and the Member States' right to a fair hearing when it failed to market test the last undertaking proposed by the parties and failed to forward it to the Member States. Moreover, the Commission failed to give sufficient reasons for its decision.

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(1)  Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ 2004 L 24, p. 1).

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/32 |
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Action brought on 16 September 2008 — Nexus Europe (Ireland)/Commission

(Case T-424/08)

(2009/C 6/67)

Language of the case: English

Parties

Applicant(s): Nexus Europe (Ireland) Ltd (Dublin, Ireland) (represented by: M. Noonan, Barrister

Defendant(s): Commission of the European Communities

Form of order sought

| — | Order the Commission to pay damages in the sum of EUR 95 418,99; |
| --- | --- |

—

Order the Commission to pay damages in the sum of EUR 95 418,99;

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

—

Order the Commission to pay the costs of these proceedings.

Pleas in law and main arguments

On the 31 October 2001 the applicant and the Commission entered into a ‘shared-cost and research development’ type of contract, as set out in Annex IV (‘Rules for financial participation by the Community’) to the European Parliament and Council Decision No 182/1999/EC of 22 December 1998 concerning the fifth framework programme of the European Community for RDT activities (1998-2002) (1), whereby the applicant, together with other contractors forming a consortium, undertook to implement the project MUTEIS IST-2000-30117, aimed at explaining and understanding the functional and spatial diversity in Europe's digital economy from a macro and local/urban perspective. The applicant proposed to the Commission to participate in the project on the basis of the ‘Additional costs’ model of reimbursement for the project's eligible costs. Further to an exchange of correspondence between the parties, the Commission informed the applicant that it had to temporarily reject personnel and overhead costs presented by the latter and suggested that the applicant should reconsider its participation on the basis of total eligible costs participation or full participation with the lump sum option in respect of overheads. An amended contract was signed by the applicant, according to such terms, on the 30 April 2004.

On the basis of its application for damages, the applicant claims that the Commission acted without or in excess of its powers by purporting to amend the contract and to invoke Article 3(2) of Annex II of the contract. The applicant submits that whilst the Commission could have declined to accept the cost model proposed to it by the applicant at the time the contract was signed, there is no provision in the contract allowing the Commission to change the cost model in the course of a project. Moreover, in the absence of any reasonable grounds of suspected fraud or financial irregularity on the part of the applicant, the applicant submits that the Commission was not entitled to invoke Article 3(2) of Annex II of the contract in order to justify the alteration of the contact's terms.

Further, the applicant contends that the Commission breached its contractual obligations, thereby infringing Article 1134, first paragraph, of the Belgian Civil Code, according to which agreements legally entered into operate as law for those who engaged in them. According to the applicant, it is the cost model agreed by the parties when signing the contract that should prevail for its duration and the Commission therefore breached the contract in requiring the applicant to change the cost model as agreed by the parties.

In addition, the applicant submits that the Commission breached the principle of legitimate expectations and the principle of sound administration.

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(1)  OJ 1999 L 26, p. 1.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/33 |
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Action brought on 26 September 2008 — ICO Services Ltd v Parliament and Council

(Case T-441/08)

(2009/C 6/68)

Language of the case: English

Parties

Applicant: ICO Services Limited (Slough, United Kingdom) (represented by: S. Tupper, Solicitor)

Defendants: European Parliament and Council of the European Union

Form of order sought

| — | Order that Decision No 626/2008/EC of the European Parliament and of the Council of 30 June 2008 on the selection and authorisation of systems providing mobile satellite services (MSS) is void in accordance with the provisions under Article 230 CE and 231 EC; |
| --- | --- |

—

Order that Decision No 626/2008/EC of the European Parliament and of the Council of 30 June 2008 on the selection and authorisation of systems providing mobile satellite services (MSS) is void in accordance with the provisions under Article 230 CE and 231 EC;

| — | Order that the costs of the present action be paid by the defendants and any other orders that the Court may deem appropriate. |
| --- | --- |

—

Order that the costs of the present action be paid by the defendants and any other orders that the Court may deem appropriate.

Pleas in law and main arguments

By means of its application pursuant to Article 230 EC, the applicant seeks the annulment of Decision No 626/2008/EC of the European Parliament and of the Council of 30 June 2008 on the selection and authorisation of systems providing mobile satellite services (‘MSS’) (1).

The applicant claims that the contested decision does not address the existence of, nor gives consideration to, any MSS System's pre-existing rights to band-width on the 2 GHz spectrum, whether derived from the International Telecommunications Union (‘ITU’) or the European Conference of Postal and Telecommunications Administration regimes. Moreover, the applicant submits that the contested decision has the effect of depriving it of property rights accrued to it under international law that permit the applicant to offer MSS worldwide without unlawful interference. In fact, the applicant claims to be the sole operator with a system, ‘ICO-P’, providing MSS services in the 2 GHz Band. According to the applicant, the contested decision attempts to allocate frequencies in the 2 GHz Band without affording ICO-P's rights appropriate recognition, thereby putting EU Member States in contravention of their Treaty obligations with respect to the relevant rules of the ITU.

The applicant, moreover, claims that the contested decision ignores the existence of the applicant's rights and sets up a system through which the applicant's right to use the 2 GHz spectrum is infringed. Moreover, it is submitted that the decision puts in great jeopardy the applicant's considerable investments to date and forces the applicant to participate to the EU tender process while interfering in the day-to-day running of its business.

Further, the applicant claims that by adopting the contested decision, the defendant has acted disproportionately and in a discriminatory way, contrary to the applicant's legitimate expectations. In fact, the applicant contends, that contrary to its rights and/or legitimate expectations, the contested decision is founded on the premise that the whole of the 2 GHz spectrum is available for allocation, since it provides for the selection and authorisation of operators of MSS to utilise the entire range of frequencies existing in the 2 GHz spectrum.

In addition, it is submitted that the contested decision violates the applicant's rights to the peaceful enjoyment of the benefits accorded to the ICO-P system as a result of recognition of the recording by the ITU in the Master International Frequency Register maintained by the ITU, and other similar property rights, contrary to Article 1 of Protocol 1 of the European Convention of Human Rights and international law.

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(1)  OJ 2008 L 172, p. 15.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/34 |
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Action brought on 6 October 2008 — Coverpla v OHIM — Heinz-Glas (design)

(Case T-450/08)

(2009/C 6/69)

Language in which the application was lodged: French

Parties

Applicant: Coverpla (Nice, France) (represented by: P. Greffe and M. Chaminade, 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: Heinz-Glas GmbH (Kleintettau, Germany)

Form of order sought

| — | Annul the decision of the Third Board of Appeal of 7 July 2008 (Case R 1411/2007-3) in so far as it dismissed the applicant's appeal and declared the Community design ‘Tour’ No 29178-0002 invalid; |
| --- | --- |

—

Annul the decision of the Third Board of Appeal of 7 July 2008 (Case R 1411/2007-3) in so far as it dismissed the applicant's appeal and declared the Community design ‘Tour’ No 29178-0002 invalid;

| — | declare Community design ‘Tour’ No 29178-0002 in class 09-01 valid. |
| --- | --- |

—

declare Community design ‘Tour’ No 29178-0002 in class 09-01 valid.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: Community design No 29178/0002 for ‘phials’

Proprietor of the Community design: The applicant

Applicant for the declaration of invalidity: Heinz-Glas GmbH

Trade mark right of applicant for the declaration: An unregistered phial named ‘Empire’ (reference number F 3990)

Decision of the Cancellation Division: Declaration of invalidity of the Community design

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: The Community design does have the requisite novelty; the documents which Heinz-Glas GmbH submitted to show that it disclosed to the public a prior design of an identical phial have no evidential value.

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Action brought on 6 October 2008 — DHL Aviation et DHL Hub Leipzig/Commission

(Case T-452/08)

(2009/C 6/70)

Language of the case: English

Parties

Applicant(s): DHL Aviation NV (Zaventem, Belgium) and DHL Hub Leipzig GmbH (Schkeuditz, Germany) (represented by: A. Burnside, Solicitor and B. van de Walle de Ghelcke, lawyer)

Defendant(s): Commission of the European Communnities

Form of order sought

| — | Annul the decision in so far as it identifies the applicants as beneficiaries of State aid that is considered to be incompatible with the common market, and in so far as the decision orders Germany to recover the alleged State aid, and |
| --- | --- |

—

Annul the decision in so far as it identifies the applicants as beneficiaries of State aid that is considered to be incompatible with the common market, and in so far as the decision orders Germany to recover the alleged State aid, and

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

—

Order the Commission to pay the costs.

Pleas in law and main arguments

The applicants seek partial annulment of the Commission's Decision of 23 July 2008 in Case C 48/06 (ex N 227/06) — Germany, in so far as it identifies the applicants as beneficiaries of the State aid that is considered to be incompatible with the common market and in so far as the decision orders Germany to recover the alleged State aid.

On 5 April 2006 Germany notified measures undertaken by the publicly-owned Leipzig Airport and Land Sachsen concerning the construction and operation of the new southern runway at Leipzig Airport, relating; in particular, to the establishment of the European hub of the DHL group for its express parcel operations at the said airport. The notified measures were, specifically, the ‘Framework agreement’ (1) concluded between the airport and DHL Hub Leipzig as well as a ‘Comfort letter’ issued by Land Sachsen in favour of the Leipzig Airport and DHL Hub Leipzig to pay a set amount of damages in the event that DHL Hub Leipzig would no longer operate as foreseen at the airport. The applicants claim that, as a consequence of the contested decision, they are deprived of the contractual obligations undertaken by Leipzig Airport and Mitteldeutsche Flughafen (‘MFAG’) under the Framework Agreement as well as of the guarantee provided by the Comfort Letter and also subject to recovery of the alleged State aid.

The applicants raise the following pleas:

| | In they first and second pleas, the applicants submit that the Commission committed manifest errors in the application of Article 87(1) EC. By characterising the ‘Nightflight clause’ and the ‘90 % Clause’ as State aid, the Commission failed to correctly apply the said provision according to the applicant. The applicants submit that the Commission manifestly erred in the application of the private investor test by holding that the point of reference for it was November 2004 and not the actual date of the conclusion of the Framework agreement. Further, the applicants claim that the Commission manifestly erred by holding that, regardless of the point of reference for the investment decision, the so-called unlimited guarantees provided in the Framework agreement constituted State aid in any event, since risks that DHL assumed under these provisions were financed by a capital injection which constituted State aid itself. |
| --- | --- |

In they first and second pleas, the applicants submit that the Commission committed manifest errors in the application of Article 87(1) EC. By characterising the ‘Nightflight clause’ and the ‘90 % Clause’ as State aid, the Commission failed to correctly apply the said provision according to the applicant. The applicants submit that the Commission manifestly erred in the application of the private investor test by holding that the point of reference for it was November 2004 and not the actual date of the conclusion of the Framework agreement. Further, the applicants claim that the Commission manifestly erred by holding that, regardless of the point of reference for the investment decision, the so-called unlimited guarantees provided in the Framework agreement constituted State aid in any event, since risks that DHL assumed under these provisions were financed by a capital injection which constituted State aid itself.

| | On the basis of its second plea, the applicants claim that the Commission failed to correctly apply Article 87(1) EC, by holding that the Comfort letter constitutes State aid without considering the usual business practice between holding companies and subsidiaries. |
| --- | --- |

On the basis of its second plea, the applicants claim that the Commission failed to correctly apply Article 87(1) EC, by holding that the Comfort letter constitutes State aid without considering the usual business practice between holding companies and subsidiaries.

| | In its third plea, the applicants submit that the Commission infringed Article 253 EC by not considering all relevant factors when characterising the Nightflight Clause, the 90 % Clause and the Comfort Letter as State aid. |
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In its third plea, the applicants submit that the Commission infringed Article 253 EC by not considering all relevant factors when characterising the Nightflight Clause, the 90 % Clause and the Comfort Letter as State aid.

| | In its fourth plea, the applicants submit that the Commission made a manifest error of assessment in ordering the recovery of the alleged State aid. |
| --- | --- |

In its fourth plea, the applicants submit that the Commission made a manifest error of assessment in ordering the recovery of the alleged State aid.

| | In its fifth plea, the applicants submit that the Commission infringed Article 235 EC by holding that Articles 8 and 9 of the Framework Agreement contain the alleged State aid and by deciding that these provisions are not compatible with the common market and must therefore be terminated. |
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In its fifth plea, the applicants submit that the Commission infringed Article 235 EC by holding that Articles 8 and 9 of the Framework Agreement contain the alleged State aid and by deciding that these provisions are not compatible with the common market and must therefore be terminated.

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(1)  According to the communication published in the OJ 2007 C 48, p. 7, this agreement imposes on the airport the obligation to construct the new southern runway and further obligations in terms of capacity and operation. In case of non-fulfilment (e.g. if night flights are banned by the regulatory authorities), DHL can claim compensation of its losses and damages.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/35 |
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Official Journal of the European Union

C 6/35

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Action brought on 9 October 2008 — Wilfer v OHIM

(Case T-458/08)

(2009/C 6/71)

Language in which the application was lodged: German

Parties

Applicant: Hans-Peter Wilfer (Markneukirchen, Germany) (represented by A. Kockläuner, 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 of 25 July 2008 in Case R 78/2007-4 in its entirety; |
| --- | --- |

—

annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 25 July 2008 in Case R 78/2007-4 in its entirety;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Figurative mark representing the head of a guitar using the colours silver, grey and brown, for goods in Classes 9 and 15 (No 2 639 821)

Decision of the Examiner: Rejection of the registration

Decision of the Board of Appeal: Rejection of the appeal

Pleas in law:

| — | infringement of Article 7(1)(b) of Regulation (EC) No 40/94 (1); |
| --- | --- |

—

infringement of Article 7(1)(b) of Regulation (EC) No 40/94 (1);

| — | infringement of the principle of examination of the facts by the Office of its own motion, including disregard for the rules concerning the burden of proof under Article 74(1) of Regulation No 40/94; |
| --- | --- |

—

infringement of the principle of examination of the facts by the Office of its own motion, including disregard for the rules concerning the burden of proof under Article 74(1) of Regulation No 40/94;

| — | infringement of the requirement to state reasons for the purposes of the first sentence of Article 73 of Regulation No 40/94; |
| --- | --- |

—

infringement of the requirement to state reasons for the purposes of the first sentence of Article 73 of Regulation No 40/94;

| — | infringement of the principle of equal treatment. |
| --- | --- |

—

infringement of the principle of equal treatment.

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

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/36 |
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Official Journal of the European Union

C 6/36

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Action brought on 21 October 2008 — Lancôme v OHIM — Focus Magazin Verlag (ACNO FOCUS)

(Case T-466/08)

(2009/C 6/72)

Language in which the application was lodged: English

Parties

Applicant: Lancôme parfums et beauté & Cie SNC (Paris, France) (represented by: A. von Mühlendahl and J. Pagenberg, lawyers)

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

Other party to the proceedings before the Board of Appeal: Focus Magazin Verlag GmbH (München, 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 29 July 2008 in case R 1796/2007-1; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 29 July 2008 in case R 1796/2007-1;

| — | Dismiss the opposition filed by the other party to the proceedings before the Board of Appeal against the registration of the community trade mark concerned to the extent the opposition is based on the trade mark cited in the opposition proceedings and, further, is based on a likelihood of confusion within the meaning of Article 8(1)(b) of Council Regulation 40/94; |
| --- | --- |

—

Dismiss the opposition filed by the other party to the proceedings before the Board of Appeal against the registration of the community trade mark concerned to the extent the opposition is based on the trade mark cited in the opposition proceedings and, further, is based on a likelihood of confusion within the meaning of Article 8(1)(b) of Council Regulation 40/94;

| — | Order OHIM to pay the costs of the proceedings, including those incurred by the applicant before the Board of Appeal; and |
| --- | --- |

—

Order OHIM to pay the costs of the proceedings, including those incurred by the applicant before the Board of Appeal; and

| — | Order the other party to the proceedings before the Board of Appeal to pay the costs of the proceedings, including those incurred by the applicant before the Board of Appeal, should the other party to the proceedings before the Board of Appeal become an intervener in the present case. |
| --- | --- |

—

Order the other party to the proceedings before the Board of Appeal to pay the costs of the proceedings, including those incurred by the applicant before the Board of Appeal, should the other party to the proceedings before the Board of Appeal become an intervener in the present case.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘ACNO FOCUS’ for goods in class 3 — application No 3 272 705

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

Mark or sign cited: German trade mark registration No 394 07 564 of the word mark ‘FOCUS’ for goods and services in classes 3, 5, 6, 7, 8, 9, 14, 15, 16, 18, 20, 21, 24, 25, 26, 28, 29, 30, 33, 34, 36, 38, 39, 41 and 42; Community trade mark application No 453 720 for, among others, goods in class 3

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

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 42(3) in conjunction with Article 43(2) of Council Regulation No 40/94 as the Board of Appeal erred in its approach that the other party to the proceedings before the Board of Appeal can rely on goods in class 3 to oppose the registration of the Community trade mark concerned; Infringement of Article 8(1)(b) of Council Regulation No 40/94 as the Board of Appeal erred in its finding that there exists a likelihood of confusion between the trade marks concerned.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/36 |
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Official Journal of the European Union

C 6/36

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Action brought on 17 October 2008 — ISDIN v OHIM — Pfizer (ISDIN)

(Case T-467/08)

(2009/C 6/73)

Language in which the application was lodged: English

Parties

Applicant: Isdin, SA (Barcelona, Spain) (represented by: M. Esteve Sanz, lawyer)

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

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

Form of order sought

| — | Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 4 July 2008 in case R 1031/2007-1; and |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 4 July 2008 in case R 1031/2007-1; and

| — | Order the defendant and, as the case may be, the other party to the proceedings before the Board of Appeal, to pay the costs of the proceedings, including those incurred before the Board of Appeal. |
| --- | --- |

—

Order the defendant and, as the case may be, the other party to the proceedings before the Board of Appeal, to pay the costs of the proceedings, including those incurred before the Board of Appeal.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘ISDIN’ for goods in classes 3 and 5 — application No 3 288 339

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

Mark or sign cited: Irish trade mark registration No 64 939 of the word mark ‘ISTIN’ for goods in class 5; United Kingdom trade mark registration No 824978 of the word mark ‘ISTIN’ for goods in class 5

Decision of the Opposition Division: Partially upheld the opposition

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94 as the Board of Appeal erred in its findings that the trade marks concerned are similar, that the goods in question were hardly similar and that there is a likelihood of confusion between the trade marks concerned.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/37 |
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Official Journal of the European Union

C 6/37

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Action brought on 21 October 2008 — AES-Tisza v Commission

(Case T-468/08)

(2009/C 6/74)

Language of the case: English

Parties

Applicant: AES-Tisza Erőmű kft (AES-Tisza kft) (Tiszaújváros, Hungary) (represented by: T. Ottervanger and E. Henny, lawyers)

Defendant: Commission of the European communities

Form of order sought

| — | Annul the decision of the Commission of 4 June 2008, C 41/2005; |
| --- | --- |

—

Annul the decision of the Commission of 4 June 2008, C 41/2005;

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

—

Order the Commission to pay the costs.

Pleas in law and main arguments

The applicant seeks the annulment of Commission Decision C(2008) 2223 final, of 4 June 2008, declaring incompatible with the common market the aid granted by the Hungarian authorities to certain electricity generating producers in the form of long-term power purchase agreements (‘PPA’) of electricity concluded between the transmission operator Magyar Villamos Müvek Rt. (‘MVM’), owned by the Hungarian State, and these producers at a date prior to the accession of the Republic of Hungary to the European Union [State aid C 41/05 (ex NN 49/05) — Hungarian ‘Stranded Costs’]. The applicant is identified in the contested decision as a beneficiary of the alleged State aid and the decision orders Hungary to recover the aid, including interest, from the applicant.

The applicant claims that the Commission erred in law and committed manifest errors of assessment, and has further infringed fundamental principles of European law, by finding that the purchase obligations contained in the PPA between MVM and the applicant constitute illegal State aid. In support of its claims, the applicant raises seven pleas in law.

In its first plea, the applicant submits that the Commission infringed Article 87(1) EC in as much as it committed errors of law and manifest errors of assessment by failing to establish to the requisite standard that the alleged aid measure conferred a selective advantage to the applicant through State resources.

Second, the applicant claims that, by qualifying the applicant's PPA as aid and requiring its recovery, the decision violates the fundamental principles of Community law. The applicant argues that the Commission infringed its procedural rights by failing to respect the right to a fair hearing. In the applicant's view, the Commission infringed as well the fundamental principles of legal certainty and of legitimate expectations in as much as it applied an ex post assessment to the alleged aid measures, departing from the established rule of ex ante assessment, without any valid justification. The applicant further submits that the Commission infringed the principles of neutrality and equal treatment.

Third, the applicant contends that the Commission committed manifest errors of assessment in relation to the application of the cumulative criteria of Article 87(1) EC to the applicant's PPA in the period after the accession.

Fourth, the applicant states that the Commission infringed its obligation to state reasons, as required by Article 253 EC, in particular in relation to the conclusions regarding the classification of the PPAs as aid as of 1 May 2004 and in the application of the ‘counterfactual’ market.

Fifth, the applicant submits that the Commission infringed Article 87(3)(a) and (c) EC by failing to recognize any role for the applicant's PPA in securing the necessary investment in a modern, upgraded plant.

Sixth, in the applicant's opinion, the Commission infringed its duty to ensure legal specificity in respect of recovery, failed to qualify the scope and value of the ‘purchase obligations’ and based its recovery order on hypothetical elements.

Finally, the applicant claims that the Commission infringed the fundamental principles of Community law in ordering recovery of the alleged aid.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/38 |
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Official Journal of the European Union

C 6/38

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Action brought on 22 October 2008 — Companhia Muller de Bebidas v OHIM — Missiato Industria e Comercio (61 A NOSSA ALEGRIA)

(Case T-472/08)

(2009/C 6/75)

Language in which the application was lodged: English

Parties

Applicant: Companhia Muller de Bebidas (Pirassununga, Brazil) (represented by: G. Da Cunha Ferreira and I. Bairrão, lawyers)

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

Other party to the proceedings before the Board of Appeal: Missiato Industria e Comercio Lda (Santa Rita do Passa Quatro, Brazil)

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 4 July 2008 in case R 1687/2007-1, inasmuch as it upheld the decision allowing the registration of the Community trade mark concerned; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 4 July 2008 in case R 1687/2007-1, inasmuch as it upheld the decision allowing the registration of the Community trade mark concerned;

| — | Declare the registration of the Community trade mark concerned invalid for all goods protected, on the basis that there is a likelihood of confusion with the trade marks cited in the opposition proceedings; and |
| --- | --- |

—

Declare the registration of the Community trade mark concerned invalid for all goods protected, on the basis that there is a likelihood of confusion with the trade marks cited in the opposition proceedings; and

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

—

Order the defendant and the other party to the proceeding before the Board of Appeal 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 ‘61 A NOSSA ALEGRIA’ for goods in class 33

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

Mark or sign cited: Portuguese trade mark registration No 273 105 of the figurative mark ‘CACHAÇA 51’ for goods in class 33; Portuguese trade mark registration No 331 952 of the figurative mark ‘CACHAÇA 51’ for goods in class 33; Benelux trade mark registration No 576 901 of the figurative mark ‘CACHAÇA 51’ for goods in classes 32 and 33; Danish trade mark registration No VR 1998 03649 of the figurative mark ‘CACHAÇA 51’ for goods in class 33; United Kingdom trade mark registration No 2 248 316 of the series of figurative marks ‘CACHAÇA 51’ for goods in class 33; Spanish trade mark registration No 2 354 943 of the figurative mark ‘CACHAÇA 51’ for goods in class 33; German trade mark registration No 30 071 545 of the figurative mark ‘CACHAÇA 51’; Austrian trade mark registration No 161 564 of the figurative mark ‘CACHAÇA 51’ for goods in class 33; Portuguese well-known figurative trade mark ‘CACHAÇA 51’ for goods in class 33; Portuguese well-known word trade mark ‘CACHAÇA 51’ for goods in class 33.

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

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94 as the Board of Appeal erred in its finding that there is no likelihood of confusion between the conflicting trade marks; Infringement of Article 52(1)(a) of Council Regulation No 40/94 as the Board of Appeal erred in its finding that the evidence submitted by the applicant was not sufficient to prove the well known character of the earlier trade marks in Portugal, or, at least its enhanced distinctiveness as a whole.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/38 |
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Official Journal of the European Union

C 6/38

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Action brought on 28 October 2008 — Apollo Group v OHIM (THINKING AHEAD)

(Case T-473/08)

(2009/C 6/76)

Language of the case: English

Parties

Applicant(s): Apollo Group, Inc. (Phoenix, United States) (represented by A. Jaeger-Lenz and A. Link, lawyers)

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

Form of order sought

| — | Annul the Decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 14 August 2008 in case R 728/2008-2, and |
| --- | --- |

—

Annul the Decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 14 August 2008 in case R 728/2008-2, and

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

—

Order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘THINKING AHEAD’ for goods and services in classes 9, 16 and 41

Decision of the examiner: Partial rejection of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) of Council Regulation No 40/94 as the Board of Appeal erred in its finding that the trade mark concerned is devoid of any distinctive character.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/39 |
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10.1.2009

EN

Official Journal of the European Union

C 6/39

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Action brought on 3 November 2008 — Mundipharma v OHIM — ALK-Abelló (AVANZALENE)

(Case T-477/08)

(2009/C 6/77)

Language in which the application was lodged: English

Parties

Applicant: Mundipharma AG (Basel, Switzerland) (represented by: F. Nielsen, lawyer)

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

Other party to the proceedings before the Board of Appeal: ALK-Abelló A/S (Hørsholm, Denmark)

Form of order sought

| — | Revoke the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 28 August 2008 in case R 1694/2007-4; and |
| --- | --- |

—

Revoke the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 28 August 2008 in case R 1694/2007-4; and

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

—

Order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘AVANZALENE’ for goods in class 5 — application No 4 632 501

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

Mark or sign cited: Community trade mark registration No 3 331 444 of the word mark ‘AVANZ’ for goods in class 5

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

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94 as the Board of Appeal erred in its finding that there is a likelihood of confusion between the trade marks concerned.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/39 |
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Official Journal of the European Union

C 6/39

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Action brought on 10 November 2008 — adidas v OHIM — Patrick Holding (Representation of a shoe with two stripes)

(Case T-479/08)

(2009/C 6/78)

Language in which the application was lodged: English

Parties

Applicant: adidas AG (Herzogenaurach, Germany) (represented by: V. von Bomhard, A. Renck lawyers and I. Fowler, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Patrick Holding ApS (Fredensborg, Denmark)

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 27 August 2008 in case R 849/2007-2; and |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 27 August 2008 in case R 849/2007-2; and

| — | Order the defendant to bear the costs, or, in the event that the other party to the proceedings before the Board of Appeal intervenes on the side of the defendant, order both parties to bear jointly the costs. |
| --- | --- |

—

Order the defendant to bear the costs, or, in the event that the other party to the proceedings before the Board of Appeal intervenes on the side of the defendant, order both parties to bear jointly 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 representing a shoe with two stripes, for goods in classes 18, 25 and 28.

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

Mark or sign cited: German trade mark registration No 39 950 559 of the figurative mark representing a shoe with three stripes for goods in class 25; German trade mark registration No 944 623 of the figurative mark representing a shoe with three stripes for goods in class 25; German trade mark registration No 944 624 of the figurative mark representing a shoe with three stripes for goods in class 25; German trade mark registration No 897 134 of the figurative mark representing a shoe with three stripes for goods in class 25; German designation of the international trade mark registration No 391 692 of the figurative mark representing a shoe with three stripes for goods in class 25; German designation of the international trade mark registration No 414 034 of the figurative mark representing three stripes for goods in class 25; German designation of the international trade mark registration No 414 035 of the figurative mark representing three stripes for goods in class 25; German designation of the international trade mark registration No 414 036 of the figurative mark representing three stripes for goods in class 25; German designation of the international trade mark registration No 414 037 of the figurative mark representing three stripes for goods in class 25.

Decision of the Opposition Division: Upheld the opposition and rejected the Community trade mark concerned in its entirety

Decision of the Board of Appeal: Annulled the decision of the Opposition Division

Pleas in law: Infringement of Rules 16(3), 17(2) and 20(2) of Commission Regulation No 2868/95 (1), thereby also infringing Article 8(1)(b) of Council Regulation 40/94, as the Board of Appeal erred in its finding that the applicant did not fulfil the translation requirement and thereby did not properly substantiate the validity, existence and scope of the earlier trade marks invoked, in particular of German trade mark registration No 39 950 559.

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(1)  Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1).

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/40 |
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Official Journal of the European Union

C 6/40

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Action brought on 5 November 2008 — Alisei v Commission

(Case T-481/08)

(2009/C 6/79)

Language of the case: Italian

Parties

Applicant: Alisei NGO (Rome, Italy) (represented by: F. Sciaudone, R. Sciaudone, S. Gobbato, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Annulment of Commission Decision D (2007) 8449 of 19 August 2008; |
| --- | --- |

—

Annulment of Commission Decision D (2007) 8449 of 19 August 2008;

| — | Order the Commission to compensate for the loss suffered; |
| --- | --- |

—

Order the Commission to compensate for the loss suffered;

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

—

Order the Commission to pay the costs.

Pleas in law and main arguments

The applicant, a non-governmental organisation active in the field of international cooperation for development and humanitarian assistance, challenges the Commission's decision confirming that the procedure initiated in June 2006, concerning the accounting verification of a selection of contracts concluded with the applicant, was in order. The Commission had also provided the applicant with the final report from Ernst & Young, informing it that that report was a reliable technical basis for taking the necessary measures, in particular the launching of a recovery procedure for a total amount of EUR 4 750 121.

The applicant puts forward the following arguments in support of its action:

| — | infringement of the principle of sound administration and diligence in administrative action, in that the applicant was subjected to an administrative procedure the nature and rules for implementation of which were quite specific, only to discover subsequently that that procedure in reality had a purpose and was conducted in a manner quite different from what had been communicated to it. In particular, the defendant decided, first of all, to initiate an accounting verification procedure to be carried out through an audit, before accepting the findings obtained through a different verification procedure, a ‘amicable procedure’, of which the applicant was never informed. |
| --- | --- |

—

infringement of the principle of sound administration and diligence in administrative action, in that the applicant was subjected to an administrative procedure the nature and rules for implementation of which were quite specific, only to discover subsequently that that procedure in reality had a purpose and was conducted in a manner quite different from what had been communicated to it. In particular, the defendant decided, first of all, to initiate an accounting verification procedure to be carried out through an audit, before accepting the findings obtained through a different verification procedure, a ‘amicable procedure’, of which the applicant was never informed.

| — | infringement of the provisions governing limitations, in that the decision orders, without distinction, the recovery of amounts which should not have been claimed because the defendant's right to demand repayment of those amounts had been extinguished. |
| --- | --- |

—

infringement of the provisions governing limitations, in that the decision orders, without distinction, the recovery of amounts which should not have been claimed because the defendant's right to demand repayment of those amounts had been extinguished.

The applicant also alleges infringement of its rights of defence, and of the principle of proportionality.

Lastly, it asks that the Commission be ordered to compensate for the loss suffered.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/41 |
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10.1.2009

EN

Official Journal of the European Union

C 6/41

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Action brought on 14 November 2008 — Earle Beauty v OHIM (SUPERSKIN)

(Case T-486/08)

(2009/C 6/80)

Language of the case: English

Parties

Applicant(s): Liz Earle Beauty Co. Ltd (formerly Liz Earle Cosmetics Ltd.) (Ryde, United Kingdom) (represented by M. Cover, solicitor)

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 15 September 2008 in case R 1656/2007-4 and declare that the Community trade mark concerned (application No 5 967 856) proceed to application and registration; and |
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Annul the Decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 September 2008 in case R 1656/2007-4 and declare that the Community trade mark concerned (application No 5 967 856) proceed to application and registration; and

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

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘SUPERSKIN’ for goods and services in classes 3, 5 and 44 — application No 5 967 856

Decision of the examiner: Rejection of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(c) of Council Regulation No 40/94 as the Board of Appeal erred in its finding that the trade mark concerned is descriptive of the characteristics of the goods or services for which registration is sought.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/41 |
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10.1.2009

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Official Journal of the European Union

C 6/41

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Action brought on 17 November 2008 — Power-One Italy v Commission

(Case T-489/08)

(2009/C 6/81)

Language of the case: Italian

Parties

Applicant: Power-One Italy SpA (Terranova, Bracciolini, Italy) (represented by: R. Giuffrida, lawyer, A. Guissani, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | Pursuant to Article 288 of the Treaty establishing the European Community, order the European Commission to compensate Power One Italy SpA for all the loss suffered and quantified in the amount of EUR 2 876 188,99 or, in the alternative, the cost incurred for the PNEUMA project or, in the further alternative, such amount as the Court considers just and appropriate; |
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Pursuant to Article 288 of the Treaty establishing the European Community, order the European Commission to compensate Power One Italy SpA for all the loss suffered and quantified in the amount of EUR 2 876 188,99 or, in the alternative, the cost incurred for the PNEUMA project or, in the further alternative, such amount as the Court considers just and appropriate;

| — | In the event of the applicant's being successful, order the defendant to pay the costs. |
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In the event of the applicant's being successful, order the defendant to pay the costs.

Pleas in law and main arguments

The present action concerns the decision to end the project known as ‘Pneuma’ and to recover the amount granted in advance to finance it. The purpose of that project was the creation of an innovative UPS system for the supply, through the use of an appropriate reserve of compressed air, of energy for the installations of the radio equipment serving as bases for cellular telephone networks. In order to carry out the project, the applicant concluded an agreement with strategic partners, in particular with the University of Florence, which was responsible for the planning and development of the practical aspects of the project and testing the prototypes of the new system, with ENEA and FEBE ECOLOGIC, for the environmental studies of the new UPS, and with TELEFONICA MOVILES, which made available a number of radio equipment bases in Spain in order to allow for the testing of prototypes in actual operational conditions.

Pursuant to the aforementioned decision of the Commission, the applicant had to reimburse the full amount received by way of advance financing and, in addition, was placed in the position of having to answer to its own strategic partners who had brought claims for compensation. In any event, Power One completed and delivered the project using its own funds, on the basis of a legitimate expectation that the Commission would continue to grant extensions, thereby incurring costs of EUR 2 876 188,99 and delivering the fully operational and functioning equipment in Spain as stipulated in agreements with the defendant and the partners.

The applicant puts forward the following arguments in support of its action:

| — | Infringement of Article 10 of Regulation (EC) No 1655/2000 of the European Parliament and of the Council of 17 July 2000 concerning the Financial Instrument for the Environment (LIFE) (1). |
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Infringement of Article 10 of Regulation (EC) No 1655/2000 of the European Parliament and of the Council of 17 July 2000 concerning the Financial Instrument for the Environment (LIFE) (1).

| — | Inapplicability of Article 14 of the Standard administrative provisions Life — nature, in so far as the applicant has always acted properly and consistently in a spirit of cooperation and has always responded promptly to each of the Commission's requests. Moreover, the ‘Pneuma’ project was realised in full, made functional and tested. |
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Inapplicability of Article 14 of the Standard administrative provisions Life — nature, in so far as the applicant has always acted properly and consistently in a spirit of cooperation and has always responded promptly to each of the Commission's requests. Moreover, the ‘Pneuma’ project was realised in full, made functional and tested.

| — | Discriminatory nature of the decision in question and infringement of the general principle of protection of legitimate expectations. |
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Discriminatory nature of the decision in question and infringement of the general principle of protection of legitimate expectations.

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(1)  OJ L 192, 28.7.2000, p. 1.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/42 |
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10.1.2009

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Official Journal of the European Union

C 6/42

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Action brought on 17 November 2008 — CM Capital Markets v OHIM — Carbon Capital Markets (CARBON CAPITAL MARKETS Emissions Compliance Solutions & Carbon Finance)

(Case T-490/08)

(2009/C 6/82)

Language in which the application was lodged: Spanish

Parties

Applicant: CM Capital Markets Holding SA (Madrid, Spain) (represented by: J. Calderón Chavero and T. Villate Consonni, 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: Carbon Capital Markets Ltd (London, United Kingdom)

Form of order sought

| — | annul the decision of the First Board of Appeal of OHIM of 3 September 2008 in Case R-16/2008-1, which would lead to the rejection of the contested trade mark in its entirety; |
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annul the decision of the First Board of Appeal of OHIM of 3 September 2008 in Case R-16/2008-1, which would lead to the rejection of the contested trade mark in its entirety;

| — | uphold the applicant's claims; |
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uphold the applicant's claims;

| — | order OHIM to pay the costs of the present proceedings should they be contested and reject its claims. |
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order OHIM to pay the costs of the present proceedings should they be contested and reject its claims.

Pleas in law and main arguments

Applicant for a Community trade mark: Carbon Capital Markets Limited.

Community trade mark concerned: Figurative mark ‘CARBON CAPITAL MARKETS (Emissions Compliance Solutions & Carbon Finance)’ (Application No 4.480.349), for services in Class 36.

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

Mark or sign cited in opposition: Community figurative mark ‘Capital Markets’ (Application No 3.409.281), for services in Classes 35, 36 and 42; Spanish figurative mark ‘Capital Markets’, for services in Class 36.

Decision of the Opposition Division: Rejection of the opposition.

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

Pleas in law: Infringement of Article 8(1)(b) of Regulation No 40/94 on the Community trade mark.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/42 |
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10.1.2009

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Official Journal of the European Union

C 6/42

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Order of the Court of First Instance of 17 November 2008 — Hynix Semiconductor v Council

(Case T-383/03) (1)

(2009/C 6/83)

Language of the case: English

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

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(1)  OJ C 21, 24.1.2004.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/43 |
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10.1.2009

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Official Journal of the European Union

C 6/43

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Order of the Court of First Instance of 14 November 2008 — Abruzzo v Commission

(Case T-384/05) (1)

(2009/C 6/84)

Language of the case: Italian

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

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(1)  OJ C 330, 24.12.2005.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/43 |
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10.1.2009

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Official Journal of the European Union

C 6/43

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Order of the Court of First Instance of 17 November 2008 — Reitz and von Gadomski v OHIM (CMD-CLINIC)

(Case T-241/06) (1)

(2009/C 6/85)

Language of the case: German

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

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(1)  OJ C 261, 28.10.2006.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/43 |
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10.1.2009

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Official Journal of the European Union

C 6/43

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Order of the Court of First Instance of 12 November 2008 — Nölle v OHIM — Viña Carta Vieja (Puzzle)

(Case T-303/07) (1)

(2009/C 6/86)

Language of the case: German

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

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(1)  OJ C 235, 6.10.2007.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/43 |
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Official Journal of the European Union

C 6/43

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Order of the Court of First Instance of 19 November 2008 — Messe Düsseldorf v OHIM — Canon Communications (MEDTEC)

(Case T-173/08) (1)

(2009/C 6/87)

Language of the case: English

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

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(1)  OJ C 171, 5.7.2008.

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European Union Civil Service Tribunal

| 10.1.2009 | EN | Official Journal of the European Union | C 6/44 |
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10.1.2009

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Official Journal of the European Union

C 6/44

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Judgment of the Civil Service Tribunal (First Chamber) of 4 November 2008 — Marcuccio v Commission

(Case F-41/06) (1)

(Staff cases - Officials - Social security - Insurance against the risk of accident and occupational disease - Invalidity - Retirement on the ground of invalidity - Statement of reasons - Annulment)

(2009/C 6/88)

Language of the case: Italian

Parties

Applicant: Luigi Marcuccio (Tricase, Italy) (represented by: L. Garofalo, lawyer)

Defendant: Commission of the European Communities (represented by: J. Currall and C. Berardis-Kayser, acting as Agents, assisted by A. Dal Ferro, lawyer)

Re:

First, action for annulment of the Commission decision by which the applicant was retired on grounds of invalidity and of a series of measures connected to that decision and, secondly, a claim for damages

Operative part of the judgment

The Tribunal:

| 1. | annuls the decision of the Commission of the European Communities of 30 May 2005 by which Mr Marcuccio was retired on grounds of invalidity; |
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1.

annuls the decision of the Commission of the European Communities of 30 May 2005 by which Mr Marcuccio was retired on grounds of invalidity;

| 2. | orders the Commission of the European Communities to pay Mr Marcuccio the sum of EUR 3 000; |
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2.

orders the Commission of the European Communities to pay Mr Marcuccio the sum of EUR 3 000;

| 3. | dismisses the action as to the remainder; |
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3.

dismisses the action as to the remainder;

| 4. | orders the Commission of the European Communities to pay two thirds of Mr Marcuccio's costs as well as to bear its own costs; |
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4.

orders the Commission of the European Communities to pay two thirds of Mr Marcuccio's costs as well as to bear its own costs;

| 5. | orders Mr Marcuccio to bear one third of his own costs. |
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5.

orders Mr Marcuccio to bear one third of his own costs.

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(1)  OJ C 131, 3.6.2006, p. 54.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/44 |
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Official Journal of the European Union

C 6/44

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Judgment of the Civil Service Tribunal (First Chamber) of 25 November 2008 — Pierre Bosman v Council of the European Union

(Case F-145/07) (1)

(Staff case - Former member of the contract staff - Retirement pension - Household allowance - Article 109(3) of the CEOS)

(2009/C 6/89)

Language of the case: French

Parties

Applicant: Pierre Bosman (Lebbeke, Belgium) (represented by: T. Bontinck and P. Gennari Curlo, lawyers)

Defendant: Council of the European Union (represented by: M. Bauer and I. Šulce, Agents)

Re:

Annulment of the decision relating to an individual of 28 February 2007 refusing the household allowance for the purposes of the calculation of retirement pension rights, on the basis of Article 109(3) of the Conditions of Employment of Other Servants of the European Communities.

Operative part of the judgment

The Tribunal:

| 1. | Dismisses the action; |
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1.

Dismisses the action;

| 2. | Orders Mr Bosman to pay all the costs, that is to bear his own costs and to pay those of the Council of the European Union. |
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2.

Orders Mr Bosman to pay all the costs, that is to bear his own costs and to pay those of the Council of the European Union.

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(1)  OJ C 79, 29.3.2008, p. 38.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/45 |
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10.1.2009

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Official Journal of the European Union

C 6/45

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Order of the Civil Service Tribunal (First Chamber) of 4 November 2008 — Marcuccio v Commission

(Case F-133/06) (1)

(Staff cases - Officials - Application for the restitution of personal property - Decision rejecting the complaint drafted in a language other than the official's native language - Action out of time - Manifest inadmissibility)

(2009/C 6/90)

Language of the case: Italian

Parties

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

Defendant: Commission of the European Communities (represented by: J. Currall and C. Berardis-Kayser, acting as Agents, assisted by A. Dal Ferro, lawyer)

Re:

First, action for annulment of the Commission decision rejecting the applicant's application to have delivered to him, at his current residence, property previously left at the official lodgings assigned to him in Angola and, secondly, a claim for damages

Operative part of the order

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

The action is dismissed as manifestly inadmissible.

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

Mr Marcuccio is ordered to pay the costs.

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(1)  OJ C 223, 22.9.2007, p. 18.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/45 |
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Official Journal of the European Union

C 6/45

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Order of the Civil Service Tribunal (First Chamber) of 4 November 2008 — Marcuccio v Commission

(Case F-18/07) (1)

(Staff cases - Officials - Claim - Explicit rejection notified after the implicit rejection - Purely confirmatory measure - Complaint made out of time - Manifest inadmissibility)

(2009/C 6/91)

Language of the case: Italian

Parties

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

Defendant: Commission of the European Communities (represented by: J. Currall and C. Berardis-Kayser, acting as Agents, assisted by A. Dal Ferro, lawyer)

Re:

Action for annulment of the decision of 25 October 2005 rejecting the applicant's claim for recognition that he has a serious illness for the purposes of Article 72 of the Staff Regulations and the Sickness Insurance Scheme common to the institutions of the European Communities

Operative part of the order

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

The action is dismissed as inadmissible.

| 2. | Each party is to bear its own costs. |
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2.

Each party is to bear its own costs.

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(1)  OJ C 223, 22.9.2007, p. 18.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/45 |
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10.1.2009

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Official Journal of the European Union

C 6/45

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Order of the Civil Service Tribunal (First Chamber) of 4 November 2008 — Marcuccio v Commission

(Case F-87/07) (1)

(Staff cases - Officials - Action for damages - Allegedly unlawful conduct on the part of the Commission's Medical Service - Inadmissibility - Failure to comply with a reasonable period for lodging a claim for compensation)

(2009/C 6/92)

Language of the case: Italian

Parties

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

Defendant: Commission of the European Communities (represented by: J. Currall and C. Berardis-Kayser, acting as Agents, assisted by A. Dal Ferro, lawyer)

Re:

Action for annulment of the Commission's decision not to grant the applicant's claim for compensation in respect of damage allegedly suffered by reason of the unlawful conduct of the Commission's Medical Service in dealing with three medical certificates produced by the applicant in the summer of 2001

Operative part of the order

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

The action is dismissed as manifestly inadmissible.

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

Mr Marcuccio is ordered to pay the costs.

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(1)  OJ C 247, 20.10.2007, p. 45.

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/46 |
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10.1.2009

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Official Journal of the European Union

C 6/46

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Action brought on 6 November 2008 — Pleijte v Commission

(Case F-91/08)

(2009/C 6/93)

Language of the case: French

Parties

Applicant: Johanna Gerdina Pleijte (Senningerberg, Luxembourg) (represented by: P. Nelissen Grade, lawyer)

Defendant: Commission of the European Communities

Subject-matter and description of the proceedings

Action for annulment of the decision of the appointing authority not to include the applicant's name on the provisional list of preselected officials in the context of the 2007 certification exercise and to subtract the length of a period of leave on personal grounds from the 10-year period which was taken into account in order to establish her length of service for the purposes of that certification procedure

Form of order sought

| — | Annul the decision of the appointing authority of 7 August 2008 rejecting the applicant's complaint; |
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Annul the decision of the appointing authority of 7 August 2008 rejecting the applicant's complaint;

| — | Annul the appointing authority's decision not to include the applicant's name on the provisional list of preselected officials in the context of the 2007 certification exercise; |
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Annul the appointing authority's decision not to include the applicant's name on the provisional list of preselected officials in the context of the 2007 certification exercise;

| — | Add the applicant's name to the list of preselected officials in sufficient time to enable her to take part in the training programme provided for by Article 6 of the GIP; |
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Add the applicant's name to the list of preselected officials in sufficient time to enable her to take part in the training programme provided for by Article 6 of the GIP;

| — | Amend the methodology in the administrative notice of 8 January 2008 adopted on the basis of Commission Decision C(2007) 5694 of 20 November 2007 on the general provisions for the implementation of Article 45a of the Staff Regulations as regards the part relating to the taking into account of experience within the institutions; |
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Amend the methodology in the administrative notice of 8 January 2008 adopted on the basis of Commission Decision C(2007) 5694 of 20 November 2007 on the general provisions for the implementation of Article 45a of the Staff Regulations as regards the part relating to the taking into account of experience within the institutions;

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

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| 10.1.2009 | EN | Official Journal of the European Union | C 6/46 |
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10.1.2009

EN

Official Journal of the European Union

C 6/46

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Action brought on 19 November 2008 — Marcuccio v Commission

(Case F-94/08)

(2009/C 6/94)

Language of the case: Italian

Parties

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

Defendant: Commission of the European Communities

Subject-matter and description of the proceedings

Annulment of a note by which the Commission announced its intention to recover a credit relating to procedural costs through a deduction from the invalidity pension paid to the applicant, and an application for damages for the non-pecuniary loss caused by that act.

Form of order sought

| — | Annulment of the note dated 28 March 2008 and also the contested decision; |
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Annulment of the note dated 28 March 2008 and also the contested decision;

| — | Annulment, in so far as necessary, of the decision to reject the claim dated 19 April 2008; |
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Annulment, in so far as necessary, of the decision to reject the claim dated 19 April 2008;

| — | Annulment, in so far as necessary, of the note dated 11 August 2008; |
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Annulment, in so far as necessary, of the note dated 11 August 2008;

| — | Order the European Commission to compensate the applicant for the non-pecuniary loss caused by the acts annulment of which is sought by the present action, in the amount of EUR 10 000 or such higher or lesser amount as the Court considers appropriate and equitable; |
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Order the European Commission to compensate the applicant for the non-pecuniary loss caused by the acts annulment of which is sought by the present action, in the amount of EUR 10 000 or such higher or lesser amount as the Court considers appropriate and equitable;

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

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