# Official Journal C 129/2009

| | ISSN 1725-2423
  doi:10.3000/17252423.C_2009.129.eng |
| --- | --- |
| Official Journal
  of the European Union | C 129 |
| | |
| English edition | Information and Notices | Volume 526 June 2009 |

ISSN 1725-2423

doi:10.3000/17252423.C_2009.129.eng

Official Journal

of the European Union

C 129

English edition

Information and Notices

Volume 526 June 2009

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| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES |
| | Court of Justice |
| 2009/C 129/01 | Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 113, 16.5.2009 | 1 |

Notice No

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Court of Justice

2009/C 129/01

Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 113, 16.5.2009

Official Journal of the European Union

1

| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2009/C 129/02 | Case C-290/08 P: Appeal brought on 1 July 2008 by Carlos Correia de Matos against the order of the Court of First Instance (Fifth Chamber) delivered on 9 April 2008 in Case T-38/08 Corriea de Matos v Commission | 2 |
| 2009/C 129/03 | Case C-41/09: Action brought on 29 January 2009 — Commission of the European Communities v Kingdom of the Netherlands | 2 |
| 2009/C 129/04 | Case C-57/09: Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 10 February 2009 — Bundesrepublik Deutschland v B, Other party to the proceedings: Der Vertreter des Bundesinteresses beim Bundesverwaltungsgericht | 3 |
| 2009/C 129/05 | Case C-79/09: Action brought on 23 February 2009 — Commission of the European Communities v Kingdom of the Netherlands | 3 |
| 2009/C 129/06 | Case C-91/09: Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 6 March 2009 — Eis.de GmbH v BBY Vertriebsgesellschaft mbH | 4 |
| 2009/C 129/07 | Case C-92/09: Reference for a preliminary ruling from the Verwaltungsgericht Wiesbaden (Germany) lodged on 6 March 2009 — Volker und Markus Schecke GbR v Land Hessen, interested party: Bundesanstalt für Landwirtschaft und Ernährung | 4 |
| 2009/C 129/08 | Case C-97/09: Reference for a preliminary ruling from the Unabhängiger Finanzsenat, Außenstelle Vienna (Austria) lodged on 10 March 2009 — Ingrid Schmelz v Finanzamt Waldviertel | 5 |
| 2009/C 129/09 | Case C-98/09: Reference for a preliminary ruling from the Tribunale di Trani (Italy) lodged on 6 March 2009 — Francesca Sorge v Poste Italiane SpA | 6 |
| 2009/C 129/10 | Case C-99/09: Reference for a preliminary ruling from the Sąd Najwyższy (Republic of Poland) lodged on 11 March 2009 — Polska Telefonia Cyfrowa sp. z o. o. v Prezes Urzędu Komunikacji Elektronicznej | 6 |
| 2009/C 129/11 | Case C-101/09: Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 13 March 2009 — Federal Republic of Germany v D, other parties: The Representative of the Federal Interest at the Bundesverwaltungsgericht, The Federal Commissioner for Asylum Matters at the Bundesamt für Migration und Flüchtlinge | 7 |
| 2009/C 129/12 | Case C-102/09: Reference for a preliminary ruling from the Tribunale di Firenze, lodged on 13 March 2009 — Camar Srl v Presidente del Consiglio dei Ministri | 7 |
| 2009/C 129/13 | Case C-103/09: Reference for a preliminary ruling from Court of Appeal (United Kingdom) made on 13 March 2009 — The Commissioners for Her Majesty's Revenue & Customs v Weald Leasing Limited | 8 |
| 2009/C 129/14 | Case C-105/09: Reference for a preliminary ruling from the Conseil d’Etat (Belgium) lodged on 20 March 2009 — Terre wallonne v Région wallonne | 8 |
| 2009/C 129/15 | Case C-110/09: Reference for a preliminary ruling from the Conseil d’Etat (Belgium) lodged on 23 March 2009 — Inter-Environnement Wallonnie ASBL v Région wallonne | 9 |
| 2009/C 129/16 | Case C-116/09: Reference for a preliminary ruling from the Bezirksgericht Ried i.I. (Austria) lodged on 30 March 2009 — Criminal proceedings against Antonio Formato, Lenka Rohackova, Torsten Kuntz, Gardel Jong Aten, Hubert Kanatschnig, Jarmila Szabova, Zdenka Powerova, Nousia Nettuno | 10 |
| 2009/C 129/17 | Case C-123/09: Reference for a preliminary ruling from the Finanzgericht München (Germany), lodged on 3 April 2009 — Roeckl Sporthandschuhe GmbH & Co. KG v Hauptzollamt München | 10 |
| 2009/C 129/18 | Case C-124/09: Reference for a preliminary ruling from the Raad van State (Netherlands) lodged on 3 April 2009 — Smit Reizen BV v Minister van Verkeer en Waterstaat | 11 |
| | Court of First Instance |
| 2009/C 129/19 | Case T-286/05: Judgment of the Court of First Instance of 22 April 2009 — CESD-Communautaire v Commission (Public procurement — Declaration of a serious breach of contract — Article 93(1)(f) of Regulation (EC, Euratom) No 1605/2002 — Action for annulment — Error of law — Jurisdiction of the Court of First Instance — Legal interest in bringing proceedings — Admissibility — Misuse of powers — Manifest error of assessment — Statement of reasons — Right to a fair hearing) | 12 |
| 2009/C 129/20 | Case T-118/06: Judgment of the Court of First Instance of 2 April 2009 — Zuffa v OHIM (ULTIMATE FIGHTING CHAMPIONSHIP) (Community trade mark — Application for the Community word mark ULTIMATE FIGHTING CHAMPIONSHIP — Absolute grounds for refusal — Lack of distinctive character — Descriptive character — Duty to state reasons — Articles 7(1)(b) and (c) and 73 of Regulation (EC) No 40/94) | 12 |
| 2009/C 129/21 | Case T-289/06: Judgment of the Court of First Instance of 22 April 2009 — CESD-Communautaire v Commission (Public procurement — Declaration of a serious breach of contract — Article 93(1)(f) of Regulation (EC, Euratom) No 1605/2002 — Action for annulment — Error of fact and law — Jurisdiction of the Court of First Instance — Legal interest in bringing proceedings — Admissibility — Misuse of powers — Manifest error of assessment — Statement of reasons — Right to a fair hearing) | 13 |
| 2009/C 129/22 | Case T-473/07 P: Judgment of the Court of First Instance of 2 April 2009 — Commission v Berrisford (Appeal — Staff cases — Officials — Promotion — 2005 promotion procedure — Article 45 of the Staff Regulations — Examination of comparative merits — Obligation to take into account the fact that the official concerned was included in the reserve) | 13 |
| 2009/C 129/23 | Case T-125/07: Order of the Court of First Instance of 25 March 2009 — Scientific and Technological Committee of AGH and Others v Commission (Proceedings for failure to act — Technologies for subterranean storage of carbon dioxide — Commission’s failure to adopt a position — Inadmissbility) | 13 |
| 2009/C 129/24 | Case T-81/09: Action brought on 24 February 2009 — Greece v Commission | 14 |
| 2009/C 129/25 | Case T-89/09: Action brought on 25 February 2009 — Pollmeier Massivholz v Commission | 14 |
| 2009/C 129/26 | Case T-97/09: Action brought on 4 March 2009 — Germany v Commission | 15 |
| 2009/C 129/27 | Case T-108/09: Action brought on 16 March 2009 — Ravensburger v OHIM — Educa Borras (MEMORY) | 16 |
| 2009/C 129/28 | Case T-113/09: Action brought on 19 March 2009 — PromoCell bioscience alive v OHIM (SupplementPack) | 16 |
| 2009/C 129/29 | Case T-124/09: Action brought on 30 March 2009 — Valigeria Roncato v OHIM — Roncato (CARLO RONCATO) | 17 |
| 2009/C 129/30 | Case T -125/09: Action brought on 26 March 2009 — Gruener Janura AG v OHIM — Centum Aqua Marketing (HUNDERTWASSER) | 17 |
| 2009/C 129/31 | Case T-126/09: Action brought on 24 March 2009 — Italy v Commission | 18 |
| 2009/C 129/32 | Case T-131/09: Action brought on 2 April 2009 — Farmeco v OHIM — Allergan (BOTUMAX) | 18 |
| 2009/C 129/33 | Case T -132/09: Action brought on 6 April 2009 — Epcos v OHIM — Epco Sistemas (EPCOS) | 19 |
| 2009/C 129/34 | Case T -137/09: Action brought on 6 April 2009 — Nike International v OHIM — Muñoz Molina (R10) | 19 |
| | European Union Civil Service Tribunal |
| 2009/C 129/35 | Case F-23/09: Action brought on 13 March 2009 — Cerafogli v ECB | 21 |
| 2009/C 129/36 | Case F-29/09: Action brought on 30 March 2009 — Lebedef and Jones v Commission | 21 |
| 2009/C 129/37 | Case F-30/09: Action brought on 31 March 2009 — Chaouch v Commission | 21 |
| 2009/C 129/38 | Case F-31/09: Action brought on 26 March 2009 — Noël v Council | 22 |
| 2009/C 129/39 | Case F-32/09: Action brought on 1 April 2009 — Andrikopoulou v Council | 22 |
| 2009/C 129/40 | Case F-33/09: Action brought on 1 April 2009 — Tzvetanova v Commission | 22 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2009/C 129/02

Case C-290/08 P: Appeal brought on 1 July 2008 by Carlos Correia de Matos against the order of the Court of First Instance (Fifth Chamber) delivered on 9 April 2008 in Case T-38/08 Corriea de Matos v Commission

2

2009/C 129/03

Case C-41/09: Action brought on 29 January 2009 — Commission of the European Communities v Kingdom of the Netherlands

2

2009/C 129/04

Case C-57/09: Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 10 February 2009 — Bundesrepublik Deutschland v B, Other party to the proceedings: Der Vertreter des Bundesinteresses beim Bundesverwaltungsgericht

3

2009/C 129/05

Case C-79/09: Action brought on 23 February 2009 — Commission of the European Communities v Kingdom of the Netherlands

3

2009/C 129/06

Case C-91/09: Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 6 March 2009 — Eis.de GmbH v BBY Vertriebsgesellschaft mbH

4

2009/C 129/07

Case C-92/09: Reference for a preliminary ruling from the Verwaltungsgericht Wiesbaden (Germany) lodged on 6 March 2009 — Volker und Markus Schecke GbR v Land Hessen, interested party: Bundesanstalt für Landwirtschaft und Ernährung

4

2009/C 129/08

Case C-97/09: Reference for a preliminary ruling from the Unabhängiger Finanzsenat, Außenstelle Vienna (Austria) lodged on 10 March 2009 — Ingrid Schmelz v Finanzamt Waldviertel

5

2009/C 129/09

Case C-98/09: Reference for a preliminary ruling from the Tribunale di Trani (Italy) lodged on 6 March 2009 — Francesca Sorge v Poste Italiane SpA

6

2009/C 129/10

Case C-99/09: Reference for a preliminary ruling from the Sąd Najwyższy (Republic of Poland) lodged on 11 March 2009 — Polska Telefonia Cyfrowa sp. z o. o. v Prezes Urzędu Komunikacji Elektronicznej

6

2009/C 129/11

Case C-101/09: Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 13 March 2009 — Federal Republic of Germany v D, other parties: The Representative of the Federal Interest at the Bundesverwaltungsgericht, The Federal Commissioner for Asylum Matters at the Bundesamt für Migration und Flüchtlinge

7

2009/C 129/12

Case C-102/09: Reference for a preliminary ruling from the Tribunale di Firenze, lodged on 13 March 2009 — Camar Srl v Presidente del Consiglio dei Ministri

7

2009/C 129/13

Case C-103/09: Reference for a preliminary ruling from Court of Appeal (United Kingdom) made on 13 March 2009 — The Commissioners for Her Majesty's Revenue & Customs v Weald Leasing Limited

8

2009/C 129/14

Case C-105/09: Reference for a preliminary ruling from the Conseil d’Etat (Belgium) lodged on 20 March 2009 — Terre wallonne v Région wallonne

8

2009/C 129/15

Case C-110/09: Reference for a preliminary ruling from the Conseil d’Etat (Belgium) lodged on 23 March 2009 — Inter-Environnement Wallonnie ASBL v Région wallonne

9

2009/C 129/16

Case C-116/09: Reference for a preliminary ruling from the Bezirksgericht Ried i.I. (Austria) lodged on 30 March 2009 — Criminal proceedings against Antonio Formato, Lenka Rohackova, Torsten Kuntz, Gardel Jong Aten, Hubert Kanatschnig, Jarmila Szabova, Zdenka Powerova, Nousia Nettuno

10

2009/C 129/17

Case C-123/09: Reference for a preliminary ruling from the Finanzgericht München (Germany), lodged on 3 April 2009 — Roeckl Sporthandschuhe GmbH & Co. KG v Hauptzollamt München

10

2009/C 129/18

Case C-124/09: Reference for a preliminary ruling from the Raad van State (Netherlands) lodged on 3 April 2009 — Smit Reizen BV v Minister van Verkeer en Waterstaat

11

Court of First Instance

2009/C 129/19

Case T-286/05: Judgment of the Court of First Instance of 22 April 2009 — CESD-Communautaire v Commission (Public procurement — Declaration of a serious breach of contract — Article 93(1)(f) of Regulation (EC, Euratom) No 1605/2002 — Action for annulment — Error of law — Jurisdiction of the Court of First Instance — Legal interest in bringing proceedings — Admissibility — Misuse of powers — Manifest error of assessment — Statement of reasons — Right to a fair hearing)

12

2009/C 129/20

Case T-118/06: Judgment of the Court of First Instance of 2 April 2009 — Zuffa v OHIM (ULTIMATE FIGHTING CHAMPIONSHIP) (Community trade mark — Application for the Community word mark ULTIMATE FIGHTING CHAMPIONSHIP — Absolute grounds for refusal — Lack of distinctive character — Descriptive character — Duty to state reasons — Articles 7(1)(b) and (c) and 73 of Regulation (EC) No 40/94)

12

2009/C 129/21

Case T-289/06: Judgment of the Court of First Instance of 22 April 2009 — CESD-Communautaire v Commission (Public procurement — Declaration of a serious breach of contract — Article 93(1)(f) of Regulation (EC, Euratom) No 1605/2002 — Action for annulment — Error of fact and law — Jurisdiction of the Court of First Instance — Legal interest in bringing proceedings — Admissibility — Misuse of powers — Manifest error of assessment — Statement of reasons — Right to a fair hearing)

13

2009/C 129/22

Case T-473/07 P: Judgment of the Court of First Instance of 2 April 2009 — Commission v Berrisford (Appeal — Staff cases — Officials — Promotion — 2005 promotion procedure — Article 45 of the Staff Regulations — Examination of comparative merits — Obligation to take into account the fact that the official concerned was included in the reserve)

13

2009/C 129/23

Case T-125/07: Order of the Court of First Instance of 25 March 2009 — Scientific and Technological Committee of AGH and Others v Commission (Proceedings for failure to act — Technologies for subterranean storage of carbon dioxide — Commission’s failure to adopt a position — Inadmissbility)

13

2009/C 129/24

Case T-81/09: Action brought on 24 February 2009 — Greece v Commission

14

2009/C 129/25

Case T-89/09: Action brought on 25 February 2009 — Pollmeier Massivholz v Commission

14

2009/C 129/26

Case T-97/09: Action brought on 4 March 2009 — Germany v Commission

15

2009/C 129/27

Case T-108/09: Action brought on 16 March 2009 — Ravensburger v OHIM — Educa Borras (MEMORY)

16

2009/C 129/28

Case T-113/09: Action brought on 19 March 2009 — PromoCell bioscience alive v OHIM (SupplementPack)

16

2009/C 129/29

Case T-124/09: Action brought on 30 March 2009 — Valigeria Roncato v OHIM — Roncato (CARLO RONCATO)

17

2009/C 129/30

Case T -125/09: Action brought on 26 March 2009 — Gruener Janura AG v OHIM — Centum Aqua Marketing (HUNDERTWASSER)

17

2009/C 129/31

Case T-126/09: Action brought on 24 March 2009 — Italy v Commission

18

2009/C 129/32

Case T-131/09: Action brought on 2 April 2009 — Farmeco v OHIM — Allergan (BOTUMAX)

18

2009/C 129/33

Case T -132/09: Action brought on 6 April 2009 — Epcos v OHIM — Epco Sistemas (EPCOS)

19

2009/C 129/34

Case T -137/09: Action brought on 6 April 2009 — Nike International v OHIM — Muñoz Molina (R10)

19

European Union Civil Service Tribunal

2009/C 129/35

Case F-23/09: Action brought on 13 March 2009 — Cerafogli v ECB

21

2009/C 129/36

Case F-29/09: Action brought on 30 March 2009 — Lebedef and Jones v Commission

21

2009/C 129/37

Case F-30/09: Action brought on 31 March 2009 — Chaouch v Commission

21

2009/C 129/38

Case F-31/09: Action brought on 26 March 2009 — Noël v Council

22

2009/C 129/39

Case F-32/09: Action brought on 1 April 2009 — Andrikopoulou v Council

22

2009/C 129/40

Case F-33/09: Action brought on 1 April 2009 — Tzvetanova v Commission

22

| EN | |
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EN

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Court of Justice

| 6.6.2009 | EN | Official Journal of the European Union | C 129/1 |
| --- | --- | --- | --- |

6.6.2009

EN

Official Journal of the European Union

C 129/1

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2009/C 129/01

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

OJ C 113, 16.5.2009

Past publications

OJ C 102, 1.5.2009

OJ C 90, 18.4.2009

OJ C 82, 4.4.2009

OJ C 69, 21.3.2009

OJ C 55, 7.3.2009

OJ C 44, 21.2.2009

These texts are available on:

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

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V Announcements

COURT PROCEEDINGS

Court of Justice

| 6.6.2009 | EN | Official Journal of the European Union | C 129/2 |
| --- | --- | --- | --- |

6.6.2009

EN

Official Journal of the European Union

C 129/2

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Appeal brought on 1 July 2008 by Carlos Correia de Matos against the order of the Court of First Instance (Fifth Chamber) delivered on 9 April 2008 in Case T-38/08 Corriea de Matos v Commission

(Case C-290/08 P)

2009/C 129/02

Language of the case: Portuguese

Parties

Appellant: Carlos Correia de Matos (represented by: C.I. Correia de Matos, advogada)

Other party to the proceedings: Commission of the European Communities

By order of 10 February 2009, the Court of Justice (Eighth Chamber) dismissed the appeal.

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| 6.6.2009 | EN | Official Journal of the European Union | C 129/2 |
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6.6.2009

EN

Official Journal of the European Union

C 129/2

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Action brought on 29 January 2009 — Commission of the European Communities v Kingdom of the Netherlands

(Case C-41/09)

2009/C 129/03

Language of the case: Dutch

Parties

Applicant: Commission of the European Communities (represented by: D. Triantafyllou and W. Roels, Agents)

Defendant: Kingdom of the Netherlands

Form of order sought

| — | rule that, by applying a reduced rate of VAT to the supply, importation and intra-Community acquisition of certain live animals, in particular horses, which are not normally intended for the preparation or production of foodstuffs for human or animal consumption, the Kingdom of the Netherlands has failed to fulfil its obligations under Article 12 of, in conjunction with Annex H to, the Sixth VAT Directive, (1) and under Articles 96, 97, 98 and 99(1) of, in conjunction with Annex III to, the VAT Directive; (2) |
| --- | --- |

—

rule that, by applying a reduced rate of VAT to the supply, importation and intra-Community acquisition of certain live animals, in particular horses, which are not normally intended for the preparation or production of foodstuffs for human or animal consumption, the Kingdom of the Netherlands has failed to fulfil its obligations under Article 12 of, in conjunction with Annex H to, the Sixth VAT Directive, (1) and under Articles 96, 97, 98 and 99(1) of, in conjunction with Annex III to, the VAT Directive; (2)

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

—

order the Kingdom of the Netherlands to pay the costs.

Pleas in law and main arguments

The Commission takes the view that the Netherlands Wet op de omzetbelasting (Law on turnover tax) breaches the provisions of Articles 96, 97, 98 and 99(1) of, in conjunction with Annex III to, the VAT Directive by applying a reduced rate of VAT to the supply of certain live animals (in particular, horses) even in cases where those animals are not intended for the preparation or production of foodstuffs. More specifically, the Commission is of the opinion that live animals — and, in particular, horses — which are not normally intended for use as foodstuffs do not come under Category 1 of Annex III to the VAT Directive.

According to settled case-law, Category 1 of Annex III to the VAT Directive must, in the same way as any other provision concerning the reduced rates of VAT, be subject to strict interpretation. Furthermore, in the light of the wording of Category 1 of Annex III to the Directive, the reduced rate applies to foodstuffs.

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(1)  Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1).

(2)  Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).

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| 6.6.2009 | EN | Official Journal of the European Union | C 129/3 |
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6.6.2009

EN

Official Journal of the European Union

C 129/3

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Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 10 February 2009 — Bundesrepublik Deutschland v B, Other party to the proceedings: Der Vertreter des Bundesinteresses beim Bundesverwaltungsgericht

(Case C-57/09)

2009/C 129/04

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicant: Bundesrepublik Deutschland

Defendant: B

Other party to the proceedings: Der Vertreter des Bundesinteresses beim Bundesverwaltungsgericht

Questions referred

| 1. | Does it constitute a serious non-political crime or an act contrary to the purposes and principles of the United Nations within the meaning of Article 12(2)(b) and (c) of Council Directive 2004/83/EC of 29 April 2004 if the appellant was a member of an organisation which is included in the list of persons, groups and entities (1) annexed to the Council Common Position on the application of specific measures to combat terrorism and employs terrorist methods, and the appellant has actively supported that organisation’s armed struggle? |
| --- | --- |

1.

Does it constitute a serious non-political crime or an act contrary to the purposes and principles of the United Nations within the meaning of Article 12(2)(b) and (c) of Council Directive 2004/83/EC of 29 April 2004 if the appellant was a member of an organisation which is included in the list of persons, groups and entities (1) annexed to the Council Common Position on the application of specific measures to combat terrorism and employs terrorist methods, and the appellant has actively supported that organisation’s armed struggle?

| 2. | If Question 1 is to be answered in the affirmative: does exclusion from recognition as a refugee under Article 12(2)(b) and (c) of Directive 2004/83/EC require that the appellant continue to constitute a danger? |
| --- | --- |

2.

If Question 1 is to be answered in the affirmative: does exclusion from recognition as a refugee under Article 12(2)(b) and (c) of Directive 2004/83/EC require that the appellant continue to constitute a danger?

| 3. | If Question 2 is to be answered in the negative: does exclusion from recognition as a refugee under Article 12(2)(b) and (c) of Directive 2004/83/EC require that a proportionality test be undertaken in relation to the individual case? |
| --- | --- |

3.

If Question 2 is to be answered in the negative: does exclusion from recognition as a refugee under Article 12(2)(b) and (c) of Directive 2004/83/EC require that a proportionality test be undertaken in relation to the individual case?

| 4. | If Question 3 is to be answered in the affirmative:






  a) | Is it to be taken into account in considering proportionality that the appellant enjoys protection against deportation under Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 or under national rules? |
| --- | --- | --- |

4.

If Question 3 is to be answered in the affirmative:

a)

Is it to be taken into account in considering proportionality that the appellant enjoys protection against deportation under Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 or under national rules?

| b) | Is exclusion disproportionate only in exceptional cases having particular characteristics? |
| --- | --- |

b)

Is exclusion disproportionate only in exceptional cases having particular characteristics?

| 5. | Is it compatible with the directive, for the purposes of Article 3 of Directive 2004/83/EC, if the appellant has a right to asylum under national constitutional law even if one of the exclusion criteria laid down in Article 12(2) of the directive is satisfied? |
| --- | --- |

5.

Is it compatible with the directive, for the purposes of Article 3 of Directive 2004/83/EC, if the appellant has a right to asylum under national constitutional law even if one of the exclusion criteria laid down in Article 12(2) of the directive is satisfied?

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(1)  OJ L 304, p. 12.

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| 6.6.2009 | EN | Official Journal of the European Union | C 129/3 |
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6.6.2009

EN

Official Journal of the European Union

C 129/3

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Action brought on 23 February 2009 — Commission of the European Communities v Kingdom of the Netherlands

(Case C-79/09)

2009/C 129/05

Language of the case: Dutch

Parties

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

Defendant: Kingdom of the Netherlands

Form of order sought

| — | Declare that, by granting exemption from VAT for the making available of personnel in the socio-cultural sector, the health sector and the education sector to so-called Euregios and for promotion of work mobility, the Kingdom of the Netherlands has failed to fulfil its obligations under Article 2(1)(c), Article 24(1) and Article 132 of the VAT Directive; (1) |
| --- | --- |

—

Declare that, by granting exemption from VAT for the making available of personnel in the socio-cultural sector, the health sector and the education sector to so-called Euregios and for promotion of work mobility, the Kingdom of the Netherlands has failed to fulfil its obligations under Article 2(1)(c), Article 24(1) and Article 132 of the VAT Directive; (1)

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

—

order Kingdom of the Netherlands to pay the costs.

Pleas in law and main arguments

The Commission submits that the making available of staff in the socio-cultural sector, the health sector and the education sector must be subject to tax in accordance with Articles 2, 9 and 24 of the VAT Directive and that neither the exemptions under Article 132(1)(b), (c), (g) and (i) nor the exemption under Article 132(1)(n) is applicable to this provision of services

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(1)  Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 11).

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| 6.6.2009 | EN | Official Journal of the European Union | C 129/4 |
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6.6.2009

EN

Official Journal of the European Union

C 129/4

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Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 6 March 2009 — Eis.de GmbH v BBY Vertriebsgesellschaft mbH

(Case C-91/09)

2009/C 129/06

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: Eis.de GmbH

Defendant: BBY Vertriebsgesellschaft mbH

Question referred

Is there use for the purposes of Article 5(1)(a) of Directive 89/104/EEC (1) where a third party provides as a keyword to a search engine operator a sign which is identical with a trade mark, without the consent of the proprietor of that trade mark, so that, on inputting the sign identical with the trade mark as a search term into the search engine, an electronic promotional link to the third party’s website advertising identical goods or services appears in an advertising block set apart from the list of search results, that link is marked as a sponsored link and the advertisement itself does not comprise the sign nor contain any reference to the trade mark proprietor or to the products it is offering for sale?

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(1)  First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40 of 11.2.1989, p. 1).

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| 6.6.2009 | EN | Official Journal of the European Union | C 129/4 |
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6.6.2009

EN

Official Journal of the European Union

C 129/4

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Reference for a preliminary ruling from the Verwaltungsgericht Wiesbaden (Germany) lodged on 6 March 2009 — Volker und Markus Schecke GbR v Land Hessen, interested party: Bundesanstalt für Landwirtschaft und Ernährung

(Case C-92/09)

2009/C 129/07

Language of the case: German

Referring court

Verwaltungsgericht Wiesbaden

Parties to the main proceedings

Applicant: Volker und Markus Schecke GbR

Defendant: Land Hessen

Interested party: Bundesanstalt für Landwirtschaft und Ernährung

Questions referred

| 1. | Are point 8b of Article 42(1) and Article 44a of Council Regulation (EC) No 1290/2005 of 21 June 2005 on the financing of the common agricultural policy (OJ 2005 L 209, p. 1), inserted by Council Regulation (EC) No 1437/2007 of 26 November 2007 amending Regulation (EC) No 1290/2005 on the financing of the common agricultural policy (OJ 2007 L 322, p. 1), invalid? |
| --- | --- |

1.

Are point 8b of Article 42(1) and Article 44a of Council Regulation (EC) No 1290/2005 of 21 June 2005 on the financing of the common agricultural policy (OJ 2005 L 209, p. 1), inserted by Council Regulation (EC) No 1437/2007 of 26 November 2007 amending Regulation (EC) No 1290/2005 on the financing of the common agricultural policy (OJ 2007 L 322, p. 1), invalid?

| 2. | Is Commission Regulation (EC) No 259/2008 of 18 March 2008 laying down detailed rules for the application of Council Regulation (EC) No 1290/2005 as regards the publication of information on the beneficiaries of funds deriving from the European Agricultural Guarantee Fund (EAGF) and the European Agricultural Fund for Rural Development (EAFRD) (OJ 2008 L 76, p. 28)






  (a) | invalid, or |
| --- | --- | --- |

2.

Is Commission Regulation (EC) No 259/2008 of 18 March 2008 laying down detailed rules for the application of Council Regulation (EC) No 1290/2005 as regards the publication of information on the beneficiaries of funds deriving from the European Agricultural Guarantee Fund (EAGF) and the European Agricultural Fund for Rural Development (EAFRD) (OJ 2008 L 76, p. 28)

(a)

invalid, or

| (b) | valid by reason only of the fact that Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC (OJ 2006 L 105, p. 54) is invalid? |
| --- | --- |

(b)

valid by reason only of the fact that Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC (OJ 2006 L 105, p. 54) is invalid?

If the provisions mentioned in the first and second questions are valid:

| 3. | Must the second indent of Article 18(2) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31) be interpreted as meaning that publication in accordance with Commission Regulation (EC) No 259/2008 of 18 March 2008 laying down detailed rules for the application of Council Regulation (EC) No 1290/2005 as regards the publication of information on the beneficiaries of funds deriving from the European Agricultural Guarantee Fund (EAGF) and the European Agricultural Fund for Rural Development (EAFRD) may be effected only following implementation of the procedure — in lieu of notification to a supervisory authority — established by that article? |
| --- | --- |

3.

Must the second indent of Article 18(2) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31) be interpreted as meaning that publication in accordance with Commission Regulation (EC) No 259/2008 of 18 March 2008 laying down detailed rules for the application of Council Regulation (EC) No 1290/2005 as regards the publication of information on the beneficiaries of funds deriving from the European Agricultural Guarantee Fund (EAGF) and the European Agricultural Fund for Rural Development (EAFRD) may be effected only following implementation of the procedure — in lieu of notification to a supervisory authority — established by that article?

| 4. | Must Article 20 of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31) be interpreted as meaning that publication in accordance with Commission Regulation (EC) No 259/2008 of 18 March 2008 laying down detailed rules for the application of Council Regulation (EC) No 1290/2005 as regards the publication of information on the beneficiaries of funds deriving from the European Agricultural Guarantee Fund (EAGF) and the European Agricultural Fund for Rural Development (EAFRD) may be effected only following exercise of the prior check required by national law in that case? |
| --- | --- |

4.

Must Article 20 of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31) be interpreted as meaning that publication in accordance with Commission Regulation (EC) No 259/2008 of 18 March 2008 laying down detailed rules for the application of Council Regulation (EC) No 1290/2005 as regards the publication of information on the beneficiaries of funds deriving from the European Agricultural Guarantee Fund (EAGF) and the European Agricultural Fund for Rural Development (EAFRD) may be effected only following exercise of the prior check required by national law in that case?

| 5. | If the fourth question is answered in the affirmative: Must Article 20 of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31) be interpreted as meaning that no effective prior check has been performed, if it was effected on the basis of a register established in accordance with the second indent of Article 18(2) of that directive which lacks an item of information prescribed? |
| --- | --- |

5.

If the fourth question is answered in the affirmative: Must Article 20 of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31) be interpreted as meaning that no effective prior check has been performed, if it was effected on the basis of a register established in accordance with the second indent of Article 18(2) of that directive which lacks an item of information prescribed?

| 6. | Must Article 7 — and in this case, in particular, subparagraph (e) — of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31) be interpreted as precluding a practice of storing the IP addresses of the users of a homepage without their express consent? |
| --- | --- |

6.

Must Article 7 — and in this case, in particular, subparagraph (e) — of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31) be interpreted as precluding a practice of storing the IP addresses of the users of a homepage without their express consent?

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| 6.6.2009 | EN | Official Journal of the European Union | C 129/5 |
| --- | --- | --- | --- |

6.6.2009

EN

Official Journal of the European Union

C 129/5

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Reference for a preliminary ruling from the Unabhängiger Finanzsenat, Außenstelle Vienna (Austria) lodged on 10 March 2009 — Ingrid Schmelz v Finanzamt Waldviertel,

(Case C-97/09)

2009/C 129/08

Language of the case: German

Referring court

Unabhängiger Finanzsenat, Außenstelle Vienna

Parties to the main proceedings

Applicant: Ingrid Schmelz

Defendant: Finanzamt Waldviertel

Questions referred

| 1. | Does the wording ‘as well as supplies of goods and services effected by a taxable person who is not established in the territory of the country’ in Article 24(3) and in Article 28i of the Sixth Council Directive 77/388/EEC of 17 May 1977 (1) on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, in the version of No 21 of Council Directive 92/111/EEC of 14 December 1992 (2) amending Directive 77/388/EEC and introducing simplification measures with regard to value added tax, and a scheme transposing this provision into national law infringe the Treaty establishing the European Community, in particular the principle of non-discrimination (Article 12 EC), the freedom of establishment (Article 43 EC et seq.), the freedom to provide services (Article 49 EC et seq.), or fundamental rights under Community law (the Community-law principle of equal treatment) because the provision has the effect that Union citizens who are not established in the territory of the relevant country are excluded from the exemption under Article 24(2) of the Sixth Directive (Special scheme for small undertakings), whilst Union citizens who are established in the territory of the relevant country are able to claim this exemption where the relevant Member State grants an exemption for small undertakings in accordance with the Directive? |
| --- | --- |

1.

Does the wording ‘as well as supplies of goods and services effected by a taxable person who is not established in the territory of the country’ in Article 24(3) and in Article 28i of the Sixth Council Directive 77/388/EEC of 17 May 1977 (1) on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, in the version of No 21 of Council Directive 92/111/EEC of 14 December 1992 (2) amending Directive 77/388/EEC and introducing simplification measures with regard to value added tax, and a scheme transposing this provision into national law infringe the Treaty establishing the European Community, in particular the principle of non-discrimination (Article 12 EC), the freedom of establishment (Article 43 EC et seq.), the freedom to provide services (Article 49 EC et seq.), or fundamental rights under Community law (the Community-law principle of equal treatment) because the provision has the effect that Union citizens who are not established in the territory of the relevant country are excluded from the exemption under Article 24(2) of the Sixth Directive (Special scheme for small undertakings), whilst Union citizens who are established in the territory of the relevant country are able to claim this exemption where the relevant Member State grants an exemption for small undertakings in accordance with the Directive?

| 2. | Does the wording ‘supplies of goods or services carried out by a taxable person who is not established in the Member State in which the VAT is due’ in Article 283(1)(c) of Council Directive 2006/112/EC of 28 November 2006 (3) on the common system of value added tax and that of a scheme transposing this provision into national law infringe the Treaty establishing the European Community, in particular the principle of non-discrimination (Article 12 EC), the freedom of establishment (Article 43 EC et seq.), the freedom to provide services (Article 49 EC et seq.), or fundamental rights under Community law (the Community-law principle of equal treatment), because the provision has the effect that Union citizens who are not established in the relevant Member State are excluded from the exemption under Article 282 et seq. of Directive 2006/112/EC (Special scheme for small enterprises), whilst Union citizens who are established in the territory of the relevant country are able to claim this exemption where the relevant Member State grants an exemption for small enterprises in accordance with the Directive? |
| --- | --- |

2.

Does the wording ‘supplies of goods or services carried out by a taxable person who is not established in the Member State in which the VAT is due’ in Article 283(1)(c) of Council Directive 2006/112/EC of 28 November 2006 (3) on the common system of value added tax and that of a scheme transposing this provision into national law infringe the Treaty establishing the European Community, in particular the principle of non-discrimination (Article 12 EC), the freedom of establishment (Article 43 EC et seq.), the freedom to provide services (Article 49 EC et seq.), or fundamental rights under Community law (the Community-law principle of equal treatment), because the provision has the effect that Union citizens who are not established in the relevant Member State are excluded from the exemption under Article 282 et seq. of Directive 2006/112/EC (Special scheme for small enterprises), whilst Union citizens who are established in the territory of the relevant country are able to claim this exemption where the relevant Member State grants an exemption for small enterprises in accordance with the Directive?

| 3. | If the answer to the first question is in the affirmative: is the wording ‘as well as supplies of goods and services effected by a taxable person who is not established in the territory of the country’ in Article 24(3) and in Article 28i of the Sixth Directive invalid within the meaning of Article 234(b) EC? |
| --- | --- |

3.

If the answer to the first question is in the affirmative: is the wording ‘as well as supplies of goods and services effected by a taxable person who is not established in the territory of the country’ in Article 24(3) and in Article 28i of the Sixth Directive invalid within the meaning of Article 234(b) EC?

| 4. | If the answer to the second question is in the affirmative: is the wording ‘supplies of goods or services carried out by a taxable person who is not established in the Member State in which the VAT is due’ in Article 283(1)(c) of Directive 2006/112/EC invalid within the meaning of Article 234(b) EC? |
| --- | --- |

4.

If the answer to the second question is in the affirmative: is the wording ‘supplies of goods or services carried out by a taxable person who is not established in the Member State in which the VAT is due’ in Article 283(1)(c) of Directive 2006/112/EC invalid within the meaning of Article 234(b) EC?

| 5. | If the answer to the third question is in the affirmative: should ‘turnover’ within the meaning of Annex XV of the Treaty between the Kingdom of Belgium, the Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Portuguese Republic, the United Kingdom of Great Britain and Northern Ireland (Member States of the European Union) and the Kingdom of Norway, the Republic of Austria, the Republic of Finland, the Kingdom of Sweden, concerning the accession of the Kingdom of Norway, the Republic of Austria, the Republic of Finland and the Kingdom of Sweden to the European Union together with the Final Act (The Treaty of Accession), IX. Taxation, (4) (2)(c) and of Article 24 of the Sixth Directive respectively be understood to mean the turnover generated in one year in the particular Member State for which the small undertakings scheme is utilised or the undertaking’s turnover generated in one year throughout the Community? |
| --- | --- |

5.

If the answer to the third question is in the affirmative: should ‘turnover’ within the meaning of Annex XV of the Treaty between the Kingdom of Belgium, the Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Portuguese Republic, the United Kingdom of Great Britain and Northern Ireland (Member States of the European Union) and the Kingdom of Norway, the Republic of Austria, the Republic of Finland, the Kingdom of Sweden, concerning the accession of the Kingdom of Norway, the Republic of Austria, the Republic of Finland and the Kingdom of Sweden to the European Union together with the Final Act (The Treaty of Accession), IX. Taxation, (4) (2)(c) and of Article 24 of the Sixth Directive respectively be understood to mean the turnover generated in one year in the particular Member State for which the small undertakings scheme is utilised or the undertaking’s turnover generated in one year throughout the Community?

| 6. | If the answer to the fourth question is in the affirmative: Should ‘annual turnover’ within the meaning of Article 287 of Directive 2006/112/EC be understood to mean the turnover generated in one year in the particular Member State for which the small undertakings scheme is utilised or the undertaking’s turnover generated in one year throughout the Community? |
| --- | --- |

6.

If the answer to the fourth question is in the affirmative: Should ‘annual turnover’ within the meaning of Article 287 of Directive 2006/112/EC be understood to mean the turnover generated in one year in the particular Member State for which the small undertakings scheme is utilised or the undertaking’s turnover generated in one year throughout the Community?

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(1)  OJ L 145, p. 1.

(2)  OJ L 383, p. 47.

(3)  OJ L 347, p. 1.

(4)  OJ 1994 C 241, p. 335.

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| 6.6.2009 | EN | Official Journal of the European Union | C 129/6 |
| --- | --- | --- | --- |

6.6.2009

EN

Official Journal of the European Union

C 129/6

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Reference for a preliminary ruling from the Tribunale di Trani (Italy) lodged on 6 March 2009 — Francesca Sorge v Poste Italiane SpA

(Case C-98/09)

2009/C 129/09

Language of the case: Italian

Referring court

Tribunale di Trani

Parties to the main proceedings

Applicant: Francesca Sorge

Defendant: Poste Italiane SpA

Questions referred

| 1. | Must Clause 8 of the Framework Agreement put into effect by Directive 1990/70/EEC (1) be interpreted as precluding domestic rules (such as those laid down by Articles 11 and 1 of Legislative Decree No 368/2001) which, in implementation of Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, repealed Article 1(2)(b) of Law 230/1962, according to which it was ‘permitted to impose a time-limit on the duration of the contract ... when the recruitment’ took ‘place in order to replace absent workers’ who ‘retained the right to their post, provided that in the fixed-term contract’‘an indication was given of the name of the replaced worker and the reasons for his replacement’, substituting for it a provision which no longer imposes that obligation to give details? |
| --- | --- |

1.

Must Clause 8 of the Framework Agreement put into effect by Directive 1990/70/EEC (1) be interpreted as precluding domestic rules (such as those laid down by Articles 11 and 1 of Legislative Decree No 368/2001) which, in implementation of Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, repealed Article 1(2)(b) of Law 230/1962, according to which it was ‘permitted to impose a time-limit on the duration of the contract ... when the recruitment’ took ‘place in order to replace absent workers’ who ‘retained the right to their post, provided that in the fixed-term contract’‘an indication was given of the name of the replaced worker and the reasons for his replacement’, substituting for it a provision which no longer imposes that obligation to give details?

| 2. | If the answer to the foregoing question is yes, is the national court required to disapply the national legislation that conflicts with Community law? |
| --- | --- |

2.

If the answer to the foregoing question is yes, is the national court required to disapply the national legislation that conflicts with Community law?

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(1)  OJ 1999 L 175, p. 43.

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| 6.6.2009 | EN | Official Journal of the European Union | C 129/6 |
| --- | --- | --- | --- |

6.6.2009

EN

Official Journal of the European Union

C 129/6

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Reference for a preliminary ruling from the Sąd Najwyższy (Republic of Poland) lodged on 11 March 2009 — Polska Telefonia Cyfrowa sp. z o. o. v Prezes Urzędu Komunikacji Elektronicznej

(Case C-99/09)

2009/C 129/10

Language of the case: Polish

Referring court

Sąd Najwyższy

Parties to the main proceedings

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

Defendant: Prezes Urzędu Komunikacji Elektronicznej

Question referred

Is Article 30(2) of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (1) ... to be interpreted as meaning that the competent regulatory authority of a Member State, when ensuring that direct charges to subscribers do not act as a disincentive for the use of the additional facility of porting numbers, has an obligation to take account of the costs incurred by mobile telephone network operators in providing that facility?

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(1)  OJ 2002 L 108, p. 51.

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| 6.6.2009 | EN | Official Journal of the European Union | C 129/7 |
| --- | --- | --- | --- |

6.6.2009

EN

Official Journal of the European Union

C 129/7

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Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 13 March 2009 — Federal Republic of Germany v D, other parties: The Representative of the Federal Interest at the Bundesverwaltungsgericht, The Federal Commissioner for Asylum Matters at the Bundesamt für Migration und Flüchtlinge

(Case C-101/09)

2009/C 129/11

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicant: Federal Republic of Germany

Defendant: D

Other parties: The Representative of the Federal Interest at the Bundesverwaltungsgericht

The Federal Commissioner for Asylum Matters at the Bundesamt für Migration und Flüchtlinge

Questions referred

| 1. | Does it constitute a serious non-political crime or an act contrary to the purposes and principles of the United Nations within the meaning of Article 12(2)(b) and (c) of Council Directive 2004/83/EC (1) of 29 April 2004 if a foreign national was for many years involved as a combatant and an official — including for a time as a member of its governing body — in an organisation (in this case, the PKK) which repeatedly employed terrorist methods in its armed struggle against the state (in this case, Turkey) and is included in the list of persons, groups and entities annexed to the Council Common Position on the application of specific measures to combat terrorism, and the foreign national thereby actively supported its armed struggle in a prominent position? |
| --- | --- |

1.

Does it constitute a serious non-political crime or an act contrary to the purposes and principles of the United Nations within the meaning of Article 12(2)(b) and (c) of Council Directive 2004/83/EC (1) of 29 April 2004 if a foreign national was for many years involved as a combatant and an official — including for a time as a member of its governing body — in an organisation (in this case, the PKK) which repeatedly employed terrorist methods in its armed struggle against the state (in this case, Turkey) and is included in the list of persons, groups and entities annexed to the Council Common Position on the application of specific measures to combat terrorism, and the foreign national thereby actively supported its armed struggle in a prominent position?

| 2. | If Question 1 is to be answered in the affirmative: does exclusion from recognition as a refugee under Article 12(2)(b) and (c) of Directive 2004/83/EC require that the foreign national continue to constitute a danger? |
| --- | --- |

2.

If Question 1 is to be answered in the affirmative: does exclusion from recognition as a refugee under Article 12(2)(b) and (c) of Directive 2004/83/EC require that the foreign national continue to constitute a danger?

| 3. | If Question 2 is to be answered in the negative: does exclusion from recognition as a refugee under Article 12(2)(b) and (c) of Directive 2004/83/EC require that a proportionality test be undertaken in relation to the individual case? |
| --- | --- |

3.

If Question 2 is to be answered in the negative: does exclusion from recognition as a refugee under Article 12(2)(b) and (c) of Directive 2004/83/EC require that a proportionality test be undertaken in relation to the individual case?

| 4. | If Question 3 is to be answered in the affirmative:






  (a) | Is it to be taken into account in considering proportionality that the foreign national enjoys protection against deportation under Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 or under national rules? |
| --- | --- | --- |

4.

If Question 3 is to be answered in the affirmative:

(a)

Is it to be taken into account in considering proportionality that the foreign national enjoys protection against deportation under Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 or under national rules?

| (b) | Is exclusion disproportionate only in exceptional cases having particular characteristics? |
| --- | --- |

(b)

Is exclusion disproportionate only in exceptional cases having particular characteristics?

| 5. | Is it compatible with the directive, for the purposes of Article 3 of Directive 2004/83/EC, if the foreign national continues to be recognised as having a right to asylum under national constitutional law even if one of the exclusion criteria laid down in Article 12(2) of the directive is satisfied and refugee status under Article 14(3) of the directive is revoked? |
| --- | --- |

5.

Is it compatible with the directive, for the purposes of Article 3 of Directive 2004/83/EC, if the foreign national continues to be recognised as having a right to asylum under national constitutional law even if one of the exclusion criteria laid down in Article 12(2) of the directive is satisfied and refugee status under Article 14(3) of the directive is revoked?

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(1)  OJ 2004 L 304, p. 12.

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| 6.6.2009 | EN | Official Journal of the European Union | C 129/7 |
| --- | --- | --- | --- |

6.6.2009

EN

Official Journal of the European Union

C 129/7

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Reference for a preliminary ruling from the Tribunale di Firenze, lodged on 13 March 2009 — Camar Srl v Presidente del Consiglio dei Ministri

(Case C-102/09)

2009/C 129/12

Language of the case: Italian

Referring court

Tribunale di Firenze

Parties to the main proceedings

Claimant: Camar Srl

Defendant: Presidente del Consiglio dei Ministri

Questions referred

| 1. | Did Article 14 of the First Yaoundé Convention preclude the introduction by a Member State of an internal tax on bananas originating in Somalia, which was not in practice applied to domestically produced bananas (the production of which was totally non-existent or insignificant) and was not applicable to any other type of domestically produced fruit?
  In the event of an affirmative answer to the foregoing question: |
| --- | --- |

1.

Did Article 14 of the First Yaoundé Convention preclude the introduction by a Member State of an internal tax on bananas originating in Somalia, which was not in practice applied to domestically produced bananas (the production of which was totally non-existent or insignificant) and was not applicable to any other type of domestically produced fruit?

In the event of an affirmative answer to the foregoing question:

| 2. | Did the Protocol on Bananas annexed to the Lomé Convention then in force preclude collection of a tax that was incompatible with Article 14 of the First Yaoundé Convention in respect of imports into Italy of Somali bananas effected in 1990, having regard to the combined provisions of that protocol and of the like protocols annexed to the earlier Lomé Conventions, and also Article 5 of the Second Yaoundé Convention?
  In the event of a negative answer: |
| --- | --- |

2.

Did the Protocol on Bananas annexed to the Lomé Convention then in force preclude collection of a tax that was incompatible with Article 14 of the First Yaoundé Convention in respect of imports into Italy of Somali bananas effected in 1990, having regard to the combined provisions of that protocol and of the like protocols annexed to the earlier Lomé Conventions, and also Article 5 of the Second Yaoundé Convention?

In the event of a negative answer:

| 3. | Must it be concluded that the Protocols on Bananas annexed to the Lomé Conventions precluded increases of a tax such as the Italian consumption tax on bananas originating in Somalia after 1 April 1976 regardless of the specific effect of such increases on the export of such bananas? |
| --- | --- |

3.

Must it be concluded that the Protocols on Bananas annexed to the Lomé Conventions precluded increases of a tax such as the Italian consumption tax on bananas originating in Somalia after 1 April 1976 regardless of the specific effect of such increases on the export of such bananas?

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| 6.6.2009 | EN | Official Journal of the European Union | C 129/8 |
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6.6.2009

EN

Official Journal of the European Union

C 129/8

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Reference for a preliminary ruling from Court of Appeal (United Kingdom) made on 13 March 2009 — The Commissioners for Her Majesty's Revenue & Customs v Weald Leasing Limited

(Case C-103/09)

2009/C 129/13

Language of the case: English

Referring court

Court of Appeal

Parties to the main proceedings

Applicant: The Commissioners for Her Majesty's Revenue & Customs

Defendant: Weald Leasing Limited

Questions referred

| 1. | In circumstances such as those that exist in the present case, where a largely exempt trader adopts an asset leasing structure involving an intermediate third party, instead of purchasing assets outright, does the asset leasing structure or any part of it give rise to a tax advantage which is contrary to the purpose of the Sixth Directive (1) within the meaning of paragraph 74 of the Judgment in Case C-255/02 Halifax plc, Leeds Permanent Development Services Ltd, County Wide Property Investments Ltd v. CCE (‘Halifax’)? |
| --- | --- |

1.

In circumstances such as those that exist in the present case, where a largely exempt trader adopts an asset leasing structure involving an intermediate third party, instead of purchasing assets outright, does the asset leasing structure or any part of it give rise to a tax advantage which is contrary to the purpose of the Sixth Directive (1) within the meaning of paragraph 74 of the Judgment in Case C-255/02 Halifax plc, Leeds Permanent Development Services Ltd, County Wide Property Investments Ltd v. CCE (‘Halifax’)?

| 2. | Having regard to the fact that the Sixth VAT Directive contemplates the leasing of assets by exempt or partly exempt traders, and having regard to the Court's reference to ‘normal commercial operations’ in paragraphs 69 and 80 of the Judgement in Halifax and 27 of Case C-162/07 Ampliscientifica and also to the absence of any such reference in the Judgement in Case C-425/06 Part Service, is it an abusive practice for an exempt, or partly exempt, trader to do so even though in the context of its normal commercial operations it does not engage in leasing transactions? |
| --- | --- |

2.

Having regard to the fact that the Sixth VAT Directive contemplates the leasing of assets by exempt or partly exempt traders, and having regard to the Court's reference to ‘normal commercial operations’ in paragraphs 69 and 80 of the Judgement in Halifax and 27 of Case C-162/07 Ampliscientifica and also to the absence of any such reference in the Judgement in Case C-425/06 Part Service, is it an abusive practice for an exempt, or partly exempt, trader to do so even though in the context of its normal commercial operations it does not engage in leasing transactions?

| 3. | If the answer to question 2 is yes:






  (a) | what is the relevance of ‘normal commercial operations’ in the context of paragraphs 74 and 75 of the Judgment in Halifax: is it relevant to paragraph 74 or to paragraph 75 or to both; |
| --- | --- | --- |

3.

If the answer to question 2 is yes:

(a)

what is the relevance of ‘normal commercial operations’ in the context of paragraphs 74 and 75 of the Judgment in Halifax: is it relevant to paragraph 74 or to paragraph 75 or to both;

| (b) | is the reference to ‘normal commercial operations’ a reference to:






  (1) | operations in which the taxpayer in question typically engages; |
| --- | --- | --- |

(b)

is the reference to ‘normal commercial operations’ a reference to:

(1)

operations in which the taxpayer in question typically engages;

| (2) | operations in which two or more parties engage at arm's length; |
| --- | --- |

(2)

operations in which two or more parties engage at arm's length;

| (3) | operations which are commercially viable; |
| --- | --- |

(3)

operations which are commercially viable;

| (4) | operations which create the commercial burdens and risks typically associated with related commercial benefits; |
| --- | --- |

(4)

operations which create the commercial burdens and risks typically associated with related commercial benefits;

| (5) | operations that are not artificial in that they have commercial substance; |
| --- | --- |

(5)

operations that are not artificial in that they have commercial substance;

| (6) | any other type or category of operations? |
| --- | --- |

(6)

any other type or category of operations?

| 4. | If the asset leasing structure or any part of it is found to constitute an abusive practice, what is the appropriate redefinition? In particular, should the national court or the tax collecting authority:






  (a) | ignore the existence of the intermediate third party and direct that VAT be paid on an open market value of the rentals; |
| --- | --- | --- |

4.

If the asset leasing structure or any part of it is found to constitute an abusive practice, what is the appropriate redefinition? In particular, should the national court or the tax collecting authority:

(a)

ignore the existence of the intermediate third party and direct that VAT be paid on an open market value of the rentals;

| (b) | redefine the leasing structure as an outright purchase; or |
| --- | --- |

(b)

redefine the leasing structure as an outright purchase; or

| (c) | redefine the transactions in any other way which either the court or thetax collecting authority considers to be an appropriate means by which to re-establish the situation that would have prevailed in the absence of the transactions constituting the abusive practice? |
| --- | --- |

(c)

redefine the transactions in any other way which either the court or thetax collecting authority considers to be an appropriate means by which to re-establish the situation that would have prevailed in the absence of the transactions constituting the abusive practice?

---

(1)  Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of Assessment OJ L 145, p. 1

---

| 6.6.2009 | EN | Official Journal of the European Union | C 129/8 |
| --- | --- | --- | --- |

6.6.2009

EN

Official Journal of the European Union

C 129/8

---

Reference for a preliminary ruling from the Conseil d’Etat (Belgium) lodged on 20 March 2009 — Terre wallonne v Région wallonne

(Case C-105/09)

2009/C 129/14

Language of the case: French

Referring court

Conseil d’Etat

Parties to the main proceedings

Applicant: Terre wallonne

Defendant: Région wallonne

Questions referred

| 1. | Is a nitrogen management plan relating to designated vulnerable zones established pursuant to Article 5(1) of Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources (1) a plan or programme under Article 3(2)(a) of Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment, (2) which is prepared for the agriculture, forestry, fisheries, energy, industry, transport, waste management, water management, telecommunications, tourism, town and country planning or land use sectors, and does it set the framework for future development consent of projects listed in Annexes I and II to Directive 85/337/EEC? (3) |
| --- | --- |

1.

Is a nitrogen management plan relating to designated vulnerable zones established pursuant to Article 5(1) of Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources (1) a plan or programme under Article 3(2)(a) of Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment, (2) which is prepared for the agriculture, forestry, fisheries, energy, industry, transport, waste management, water management, telecommunications, tourism, town and country planning or land use sectors, and does it set the framework for future development consent of projects listed in Annexes I and II to Directive 85/337/EEC? (3)

| 2. | Is a nitrogen management plan relating to designated vulnerable zones established pursuant to Article 5(1) of Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources a plan or programme under Article 3(2)(b) of Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment which, in view of the likely effect on sites, requires an assessment pursuant to Article 6 or 7 of Directive 92/43/EEC, (4) in particular when the nitrogen management plan in question applies to all the vulnerable zones designated in the Région wallonne? |
| --- | --- |

2.

Is a nitrogen management plan relating to designated vulnerable zones established pursuant to Article 5(1) of Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources a plan or programme under Article 3(2)(b) of Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment which, in view of the likely effect on sites, requires an assessment pursuant to Article 6 or 7 of Directive 92/43/EEC, (4) in particular when the nitrogen management plan in question applies to all the vulnerable zones designated in the Région wallonne?

| 3. | Is a nitrogen management plan relating to designated vulnerable zones established pursuant to Article 5(1) of Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources a plan or programme other than one of those referred to in Article 3(2) of Directive 2001/42/EC, which sets the framework for future development consent in regard to which the Member States must under Article 3(4) determine that they are likely to have significant environmental effects under paragraph (5)? |
| --- | --- |

3.

Is a nitrogen management plan relating to designated vulnerable zones established pursuant to Article 5(1) of Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources a plan or programme other than one of those referred to in Article 3(2) of Directive 2001/42/EC, which sets the framework for future development consent in regard to which the Member States must under Article 3(4) determine that they are likely to have significant environmental effects under paragraph (5)?

---

(1)  OJ 1991 L 375, p. 1.

(2)  OJ 2001 L 197, p. 30.

(3)  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).

(4)  Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7).

---

| 6.6.2009 | EN | Official Journal of the European Union | C 129/9 |
| --- | --- | --- | --- |

6.6.2009

EN

Official Journal of the European Union

C 129/9

---

Reference for a preliminary ruling from the Conseil d’Etat (Belgium) lodged on 23 March 2009 — Inter-Environnement Wallonnie ASBL v Région wallonne

(Case C-110/09)

2009/C 129/15

Language of the case: French

Referring court

Conseil d’Etat

Parties to the main proceedings

Applicant: Inter-Environnement Wallonnie ASBL

Defendant: Région wallonne

Questions referred

| 1. | Is a nitrogen management plan relating to designated vulnerable zones established pursuant to Article 5(1) of Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources (1) a plan or programme under Article 3(2)(a) of Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment, (2) which is prepared for the agriculture, forestry, fisheries, energy, industry, transport, waste management, water management, telecommunications, tourism, town and country planning or land use sectors, and does it set the framework for future development consent of projects listed in Annexes I and II to Directive 85/337/EEC? (3) |
| --- | --- |

1.

Is a nitrogen management plan relating to designated vulnerable zones established pursuant to Article 5(1) of Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources (1) a plan or programme under Article 3(2)(a) of Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment, (2) which is prepared for the agriculture, forestry, fisheries, energy, industry, transport, waste management, water management, telecommunications, tourism, town and country planning or land use sectors, and does it set the framework for future development consent of projects listed in Annexes I and II to Directive 85/337/EEC? (3)

| 2. | Is a nitrogen management plan relating to designated vulnerable zones established pursuant to Article 5(1) of Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources a plan or programme under Article 3(2)(b) of Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment which, in view of the likely effect on sites, requires an assessment pursuant to Article 6 or 7 of Directive 92/43/EEC, (4) in particular when the nitrogen management plan in question applies to all the vulnerable zones designated in the Région wallonne? |
| --- | --- |

2.

Is a nitrogen management plan relating to designated vulnerable zones established pursuant to Article 5(1) of Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources a plan or programme under Article 3(2)(b) of Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment which, in view of the likely effect on sites, requires an assessment pursuant to Article 6 or 7 of Directive 92/43/EEC, (4) in particular when the nitrogen management plan in question applies to all the vulnerable zones designated in the Région wallonne?

| 3. | Is a nitrogen management plan relating to designated vulnerable zones established pursuant to Article 5(1) of Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources a plan or programme other than one of those referred to in Article 3(2) of Directive 2001/42/EC, which sets the framework for future development consent in regard to which the Member States must under Article 3(4) determine that they are likely to have significant environmental effects under paragraph (5)? |
| --- | --- |

3.

Is a nitrogen management plan relating to designated vulnerable zones established pursuant to Article 5(1) of Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources a plan or programme other than one of those referred to in Article 3(2) of Directive 2001/42/EC, which sets the framework for future development consent in regard to which the Member States must under Article 3(4) determine that they are likely to have significant environmental effects under paragraph (5)?

---

(1)  OJ 1991 L 375, p. 1.

(2)  OJ 2001 L 197, p. 30.

(3)  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).

(4)  Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7).

---

| 6.6.2009 | EN | Official Journal of the European Union | C 129/10 |
| --- | --- | --- | --- |

6.6.2009

EN

Official Journal of the European Union

C 129/10

---

Reference for a preliminary ruling from the Bezirksgericht Ried i.I. (Austria) lodged on 30 March 2009 — Criminal proceedings against Antonio Formato, Lenka Rohackova, Torsten Kuntz, Gardel Jong Aten, Hubert Kanatschnig, Jarmila Szabova, Zdenka Powerova, Nousia Nettuno

(Case C-116/09)

2009/C 129/16

Language of the case: German

Referring court

Bezirksgericht Ried i.I.

Defendants in the main proceedings

Antonio Formato, Lenka Rohackova, Torsten Kuntz, Gardel Jong Aten, Hubert Kanatschnig, Jarmila Szabova, Zdenka Powerova, Nousia Nettuno

Questions referred

| 1. | Is Article 43 EC (Treaty establishing the European Community, in the version of 2 October 1997, most recently amended by the Treaty of 25 April 2005 (1) concerning the accession of the Republic of Bulgaria and Romania to the European Union) to be interpreted as precluding a provision which provides that only public limited companies established in the territory of a particular Member State may there operate games of chance in casinos, thereby necessitating the establishment or acquisition of a company limited by shares in that Member State? |
| --- | --- |

1.

Is Article 43 EC (Treaty establishing the European Community, in the version of 2 October 1997, most recently amended by the Treaty of 25 April 2005 (1) concerning the accession of the Republic of Bulgaria and Romania to the European Union) to be interpreted as precluding a provision which provides that only public limited companies established in the territory of a particular Member State may there operate games of chance in casinos, thereby necessitating the establishment or acquisition of a company limited by shares in that Member State?

| 2. | Are Articles 43 EC and 49 EC to be interpreted as precluding a national monopoly on certain types of gaming, such as games of chance in casinos, if there is no consistent and systematic policy whatsoever in the Member State concerned to limit gaming, inasmuch as national licensed organisers encourage participation in gaming — such as public sports betting and lotteries — and advertise such gaming (on television and in newspapers and magazines) in a manner which goes as far as offering a cash payment for a lottery ticket shortly before the lottery draw is made (‘TOI TOI TOI — Believe in luck!’)? |
| --- | --- |

2.

Are Articles 43 EC and 49 EC to be interpreted as precluding a national monopoly on certain types of gaming, such as games of chance in casinos, if there is no consistent and systematic policy whatsoever in the Member State concerned to limit gaming, inasmuch as national licensed organisers encourage participation in gaming — such as public sports betting and lotteries — and advertise such gaming (on television and in newspapers and magazines) in a manner which goes as far as offering a cash payment for a lottery ticket shortly before the lottery draw is made (‘TOI TOI TOI — Believe in luck!’)?

| 3. | Are Articles 43 EC and 49 EC to be interpreted as precluding a provision under which all licences granting the right to operate games of chance and casinos are issued for a period of 15 years on the basis of a scheme under which Community competitors (not belonging to that Member State) are excluded from the tendering procedure? |
| --- | --- |

3.

Are Articles 43 EC and 49 EC to be interpreted as precluding a provision under which all licences granting the right to operate games of chance and casinos are issued for a period of 15 years on the basis of a scheme under which Community competitors (not belonging to that Member State) are excluded from the tendering procedure?

---

(1)  OJ 2005 L 157, p. 11

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| 6.6.2009 | EN | Official Journal of the European Union | C 129/10 |
| --- | --- | --- | --- |

6.6.2009

EN

Official Journal of the European Union

C 129/10

---

Reference for a preliminary ruling from the Finanzgericht München (Germany), lodged on 3 April 2009 — Roeckl Sporthandschuhe GmbH & Co. KG v Hauptzollamt München

(Case C-123/09)

2009/C 129/17

Language of the case: German

Referring court

Finanzgericht München

Parties to the main proceedings

Claimant: Roeckl Sporthandschuhe GmbH & Co. KG

Defendant: Hauptzollamt München

Question referred

Must subheading 3926 20 00 of the Combined Nomenclature, in the version set out in Commission Regulation (EC) No 1789/2003 of 11 September 2003 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, (1) be interpreted as meaning that it covers also textile articles that have been roughened on one side and covered with a layer of plastic, but which do not have a function beyond that of mere reinforcement, where the roughening serves only to improve the adhesion of the layer of plastic and is no longer discernible to the user once the manufacture of the article has been completed (cf. also Harmonised System explanatory note 56.6 on Chapter 39 of the Combined Nomenclature)?

---

(1)  OJ 2003 L 281, p. 1; OJ 1987 L 256, p. 1.

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| 6.6.2009 | EN | Official Journal of the European Union | C 129/11 |
| --- | --- | --- | --- |

6.6.2009

EN

Official Journal of the European Union

C 129/11

---

Reference for a preliminary ruling from the Raad van State (Netherlands) lodged on 3 April 2009 — Smit Reizen BV v Minister van Verkeer en Waterstaat

(Case C-124/09)

2009/C 129/18

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Appellant: Smit Reizen BV

Respondent: Minister van Verkeer en Waterstaat

Questions referred

| 1. | Against the background of Article 1(5) of Council Regulation (EEC) No 3820/85 (1) of 20 December 1985 on the harmonisation of certain social legislation relating to road transport and of Article 15 of Council Regulation (EEC) No 3821/85 (2) of 20 December 1985 on recording equipment in road transport, how must the term ‘operating centre,’ as referred to in paragraph 21, and elsewhere, of the judgment of the Court of Justice in Case C-297/99 Skills Motor Coaches Ltd [2001] ECR I-573, be interpreted? |
| --- | --- |

1.

Against the background of Article 1(5) of Council Regulation (EEC) No 3820/85 (1) of 20 December 1985 on the harmonisation of certain social legislation relating to road transport and of Article 15 of Council Regulation (EEC) No 3821/85 (2) of 20 December 1985 on recording equipment in road transport, how must the term ‘operating centre,’ as referred to in paragraph 21, and elsewhere, of the judgment of the Court of Justice in Case C-297/99 Skills Motor Coaches Ltd [2001] ECR I-573, be interpreted?

| 2. | For the assessment as to what constitutes rest for the purposes of Article 1(5) of Council Regulation (EEC) No 3820/85 of 20 December 1985 on the harmonisation of certain social legislation relating to road transport, does it make any difference whether the driver concerned drives himself to a place where he is to take over a vehicle in which a tachograph must be installed or is driven there by someone else? |
| --- | --- |

2.

For the assessment as to what constitutes rest for the purposes of Article 1(5) of Council Regulation (EEC) No 3820/85 of 20 December 1985 on the harmonisation of certain social legislation relating to road transport, does it make any difference whether the driver concerned drives himself to a place where he is to take over a vehicle in which a tachograph must be installed or is driven there by someone else?

---

(1)  Council Regulation (EEC) No 3820/85 of 20 December 1985 on the harmonisation of certain social legislation relating to road transport (OJ 1985 L 370, p. 1).

(2)  Council Regulation (EEC) No 3821/85 of 20 December 1985 on recording equipment in road transport (OJ 1985 L 370, p. 8).

---

Court of First Instance

| 6.6.2009 | EN | Official Journal of the European Union | C 129/12 |
| --- | --- | --- | --- |

6.6.2009

EN

Official Journal of the European Union

C 129/12

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Judgment of the Court of First Instance of 22 April 2009 — CESD-Communautaire v Commission

(Case T-286/05) (1)

(Public procurement - Declaration of a serious breach of contract - Article 93(1)(f) of Regulation (EC, Euratom) No 1605/2002 - Action for annulment - Error of law - Jurisdiction of the Court of First Instance - Legal interest in bringing proceedings - Admissibility - Misuse of powers - Manifest error of assessment - Statement of reasons - Right to a fair hearing)

2009/C 129/19

Language of the case: French

Parties

Applicant: Centre européen pour la statistique et le développement ASBL (CESD-Communautaire) (Luxembourg, Luxembourg) (represented by: D. Grisay and D. Piccininno, lawyers)

Defendant: Commission of the European Communities (represented by: F. Dintilhac and G. Wilms, acting as Agents)

Re:

Application for annulment of the Commission’s letter of 18 May 2005 by which it informed the applicant that it had taken the decision to declare, as regards various contracts referred to, that there had been a serious breach of contract under Article 93(1)(f) of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1)

Operative part of the judgment

The Court:

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

1.

dismisses the action;

| 2. | orders Centre européen pour la statistique et le développement ASBL (CESD-Communautaire) to pay the costs. |
| --- | --- |

2.

orders Centre européen pour la statistique et le développement ASBL (CESD-Communautaire) to pay the costs.

---

(1)  OJ C 229, 17.9.2005.

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| 6.6.2009 | EN | Official Journal of the European Union | C 129/12 |
| --- | --- | --- | --- |

6.6.2009

EN

Official Journal of the European Union

C 129/12

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Judgment of the Court of First Instance of 2 April 2009 — Zuffa v OHIM (ULTIMATE FIGHTING CHAMPIONSHIP)

(Case T-118/06) (1)

(Community trade mark - Application for the Community word mark ULTIMATE FIGHTING CHAMPIONSHIP - Absolute grounds for refusal - Lack of distinctive character - Descriptive character - Duty to state reasons - Articles 7(1)(b) and (c) and 73 of Regulation (EC) No 40/94)

2009/C 129/20

Language of the case: English

Parties

Applicant: Zuffa, LLC (Las Vegas, Nevada, United States) (represented by: S. Malynicz, Barrister, M. Blair and C. Balme, Solicitors)

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

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 30 January 2006 (Case R 931/2005-1) concerning registration of the word sign ULTIMATE FIGHTING CHAMPIONSHIP 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 30 January 2006 (Case R 931/2005-1) in so far as it dismisses the appeal brought by Zuffa, LLC, on the basis of Article 7(1)(b) and (c) of Council Regulation (EC) N0 40/94 of 20 December 1993 on the Community trade mark; |
| --- | --- |

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 30 January 2006 (Case R 931/2005-1) in so far as it dismisses the appeal brought by Zuffa, LLC, on the basis of Article 7(1)(b) and (c) of Council Regulation (EC) N0 40/94 of 20 December 1993 on the Community trade mark;

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

2.

Orders OHIM to pay the costs.

---

(1)  OJ C 131, 3.6.2006.

---

| 6.6.2009 | EN | Official Journal of the European Union | C 129/13 |
| --- | --- | --- | --- |

6.6.2009

EN

Official Journal of the European Union

C 129/13

---

Judgment of the Court of First Instance of 22 April 2009 — CESD-Communautaire v Commission

(Case T-289/06) (1)

(Public procurement - Declaration of a serious breach of contract - Article 93(1)(f) of Regulation (EC, Euratom) No 1605/2002 - Action for annulment - Error of fact and law - Jurisdiction of the Court of First Instance - Legal interest in bringing proceedings - Admissibility - Misuse of powers - Manifest error of assessment - Statement of reasons - Right to a fair hearing)

2009/C 129/21

Language of the case: French

Parties

Applicant: Centre européen pour la statistique et le développement ASBL (CESD-Communautaire) (Luxembourg, Luxembourg) (represented by: D. Grisay and D. Piccininno, lawyers)

Defendant: Commission of the European Communities (represented by: G. Wilms and J.-F. Pasquier, acting as Agents)

Re:

Application for annulment of the Commission’s letter of 11 August 2006 by which it informed the applicant that it had taken the decision to declare, as regards three contracts referred to in that letter, that there had been a serious breach of contract under Article 93(1)(f) of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1)

Operative part of the judgment

The Court:

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

1.

dismisses the action;

| 2. | orders Centre européen pour la statistique et le développement ASBL (CESD-Communautaire) to pay the costs. |
| --- | --- |

2.

orders Centre européen pour la statistique et le développement ASBL (CESD-Communautaire) to pay the costs.

---

(1)  OJ C 310, 16.12.2006.

---

| 6.6.2009 | EN | Official Journal of the European Union | C 129/13 |
| --- | --- | --- | --- |

6.6.2009

EN

Official Journal of the European Union

C 129/13

---

Judgment of the Court of First Instance of 2 April 2009 — Commission v Berrisford

(Case T-473/07 P) (1)

(Appeal - Staff cases - Officials - Promotion - 2005 promotion procedure - Article 45 of the Staff Regulations - Examination of comparative merits - Obligation to take into account the fact that the official concerned was included in the reserve)

2009/C 129/22

Language of the case: French

Parties

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

Other party to the proceedings: Michael Berrisford (Brussels, Belgium) (represented by: É. Boigelot, lawyer)

Re:

Appeal against the judgment of the Civil Service Tribunal of the European Union (Third Chamber) of 10 October 2007 in Case F-107/06 Berrisford v Commission (not yet published in the ECR), seeking the setting aside of that judgment

Operative part of the judgment

The Court:

| 1. | dismisses the appeal; |
| --- | --- |

1.

dismisses the appeal;

| 2. | orders the Commission to bear its own cost and to pay those incurred by Mr Michael Berrisford in the present proceedings. |
| --- | --- |

2.

orders the Commission to bear its own cost and to pay those incurred by Mr Michael Berrisford in the present proceedings.

---

(1)  OJ C 64, 8.3.2008.

---

| 6.6.2009 | EN | Official Journal of the European Union | C 129/13 |
| --- | --- | --- | --- |

6.6.2009

EN

Official Journal of the European Union

C 129/13

---

Order of the Court of First Instance of 25 March 2009 — Scientific and Technological Committee of AGH and Others v Commission

(Case T-125/07) (1)

(Proceedings for failure to act - Technologies for subterranean storage of carbon dioxide - Commission’s failure to adopt a position - Inadmissbility)

2009/C 129/23

Language of the case: Polish

Parties

Applicants: Scientific and Technological Committee of AGH University of Science and Technology (Krakow, Poland); Europejskie Stowarzyszenie Ochrony Środowiska (Krakow); Przedsiębiorstwo Usług Geologiczno — Wiertniczych Chemkop-Geowiert sp. z o.o. (Krakow); Stowarzyszenie Obrony Środowiska (Krakow); Fundacja Partnerstwo dla Środowiska (Krakow); Niezależne Forum Ochrony Biosfery Ziemi (Skawina, Poland); Jan Adamczyk (Krakow); Emanuel Lipartowski (Krakow) (represented by: A. Żuraniewski, and subsequently by: M. Rogoziński and B. Balcerzak, lawyers),

Defendant: Commission of the European Communities (represented by: A. Alcover San Pedro and M. Kaduczak, acting as Agents)

Re:

Action for failure to act, seeking a declaration that members of the Commission unlawfully failed to take appropriate measures, following the complaints made by the applicants, to eliminate the harmful effects on human health and the environment of techniques of capture and underground storage of carbon dioxide partly financed by the European Union

Operative part of the order

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

1.

The action is dismissed.

| 2. | Scientific and Technological Committee of AGH University of Science and Technology; Europejskie Stowarzyszenie Ochrony Środowiska; Przedsiębiorstwo Usług Geologiczno — Wiertniczych Chemkop-Geowiert sp. z o.o.; Stowarzyszenie Obrony Środowiska; Fundacja Partnerstwo dla Środowiska; Niezależne Forum Ochrony Biosfery Ziemi; Mr Jan Adamczyk and Mr Emanuel Lipartowski are ordered to pay the costs. |
| --- | --- |

2.

Scientific and Technological Committee of AGH University of Science and Technology; Europejskie Stowarzyszenie Ochrony Środowiska; Przedsiębiorstwo Usług Geologiczno — Wiertniczych Chemkop-Geowiert sp. z o.o.; Stowarzyszenie Obrony Środowiska; Fundacja Partnerstwo dla Środowiska; Niezależne Forum Ochrony Biosfery Ziemi; Mr Jan Adamczyk and Mr Emanuel Lipartowski are ordered to pay the costs.

---

(1)  OJ C 140, 23.6.2007.

---

| 6.6.2009 | EN | Official Journal of the European Union | C 129/14 |
| --- | --- | --- | --- |

6.6.2009

EN

Official Journal of the European Union

C 129/14

---

Action brought on 24 February 2009 — Greece v Commission

(Case T-81/09)

2009/C 129/24

Language of the case: Greek

Parties

Applicant: Hellenic Republic (represented by K. Meidanis and E. Lampadarios, assisted by M. Tassopoulou)

Defendant: Commission of the European Communities

Form of order sought

| — | annul Commission Decision C (2008) 8573 of 15 December 2008 reducing the financial assistance of the European Regional Development Fund (‘ERDF’) which was granted to Greece under Objective 1 of the operational programme ‘Accessibility and Trunk Roads’ by Commission Decision C (94) 3579 of 16 December 1994 authorising financial assistance from the ERDF, CCI No 94.08.09.019, in so far as it reduces the financial aid by imposing financial corrections amounting to EUR 11 946 583,53 and EUR 17 488 622, as more specifically set out in the application; |
| --- | --- |

—

annul Commission Decision C (2008) 8573 of 15 December 2008 reducing the financial assistance of the European Regional Development Fund (‘ERDF’) which was granted to Greece under Objective 1 of the operational programme ‘Accessibility and Trunk Roads’ by Commission Decision C (94) 3579 of 16 December 1994 authorising financial assistance from the ERDF, CCI No 94.08.09.019, in so far as it reduces the financial aid by imposing financial corrections amounting to EUR 11 946 583,53 and EUR 17 488 622, as more specifically set out in the application;

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

—

order the Commission to pay all the costs.

Pleas in law and main arguments

The applicant contends that the contested decision should be annulled for the following reasons.

First, in the applicant’s submission, the contested decision was adopted in breach of an essential procedural requirement laid down by Article 23(2) of Regulation (EEC) No 4253/88, (1) since the check on the basis of which the decision was adopted and financial corrections were imposed in respect of certain works was carried out by, amongst others, persons who were not Commission officials. Furthermore, in breach of the principle of transparency, the report on the check does not mention the names of the auditors from the private firm who participated in the check, nor is the report signed by them.

Second, the applicant pleads that the decision was adopted without full, clear and sufficient reasons being stated.

Third, the applicant submits that the contested decision was adopted in breach of the law, in particular (i) it was adopted pursuant to a rule which had not been enacted in the programme period 1994-99 and (ii) the Commission misinterpreted the provisions of Greek law transposing a Community directive, or in the alternative the statement of reasons is insufficient.

Fourth, the applicant maintains that in adopting the decision the Commission misappraised the factual circumstances (error as to the facts) and infringed the principle of proportionality.

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(1)  Council Regulation (EEC) No 4253/88 of 19 December 1988, laying down provisions for implementing Regulation (EEC) No 2052/88 as regards coordination of the activities of the different Structural Funds between themselves and with the operations of the European Investment Bank and the other existing financial instruments (OJ 1988 L 374, p. 1).

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| 6.6.2009 | EN | Official Journal of the European Union | C 129/14 |
| --- | --- | --- | --- |

6.6.2009

EN

Official Journal of the European Union

C 129/14

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Action brought on 25 February 2009 — Pollmeier Massivholz v Commission

(Case T-89/09)

2009/C 129/25

Language of the case: German

Parties

Applicant: Pollmeier Massivholz GmbH & Co. KG (Creuzburg, Germany) (represented by: J. Heithecker and F. von Alemann, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul the decision of the Commission of the European Communities of 21 October 2008 in the procedure ‘State aid N 512/2007 — Germany, Abalon Hardwood Hessen GmbH’; |
| --- | --- |

—

Annul the decision of the Commission of the European Communities of 21 October 2008 in the procedure ‘State aid N 512/2007 — Germany, Abalon Hardwood Hessen GmbH’;

| — | Annul the decision of the Commission of the European Communities of 15 December 2008 in the procedure ‘CP 195/2007 — Abalon Hardwood Hessen GmbH’; |
| --- | --- |

—

Annul the decision of the Commission of the European Communities of 15 December 2008 in the procedure ‘CP 195/2007 — Abalon Hardwood Hessen GmbH’;

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

The applicant contests, first, the Commission’s Decision of 21 October 2008 in the procedure State aid N 512/2007 — Germany, Abalon Hardwood Hessen GmbH by which the Commission raised no objections to a number of support measures for the construction of a new sawmill in favour of Abalon Hardwood Hessen GmbH, one of the applicant’s direct competitors, and, second, the Commission’s Decision of 15 December 2008 by which the Commission terminated the complaint procedure CP 195/2007 pending before it in respect of those measures.

The applicant relies on seven pleas in law in support of its action.

First, the contested decisions infringed Article 88(2) and (3) EC and Regulation (EC) No 659/1999 (1) in that the defendant erroneously used the legal position at the time the support measures were granted as a basis for its assessment of the notified support measures and thus came to a conclusion which is incompatible with objective law.

Secondly, the applicant submits, in the alternative, in the event that the Court should reject the first plea, that the defendant infringed Article 88(3) EC and Regulation No 659/1999 in that it carried out the procedure for notified aid under Article 4 of Regulation No 659/1999 although the relevant aid had already been granted.

Thirdly, the defendant infringed Article 88(2) and (3) EC in that it did not initiate the formal investigation procedure despite serious difficulties of assessment.

Fourthly, the defendant infringed its obligation to conduct a diligent and impartial examination because it manifestly failed to deal at all with a number of the applicant’s main arguments.

Fifthly, the applicant submits that there are deficiencies in the statement of reasons for the contested decisions.

Sixthly, the defendant infringed the applicant’s right to be involved in the procedure to the extent appropriate in that it did not inform the applicant as to the type of procedure it had chosen.

Seventhly, the defendant infringed Article 87(1) EC and Article 88(3) EC in that its calculation of the aid value of the guarantees was incorrect.

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(1)  Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).

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| 6.6.2009 | EN | Official Journal of the European Union | C 129/15 |
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6.6.2009

EN

Official Journal of the European Union

C 129/15

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Action brought on 4 March 2009 — Germany v Commission

(Case T-97/09)

2009/C 129/26

Language of the case: German

Parties

Applicant: Federal Republic of Germany (represented by: M. Lumma and C. von Donat, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Declare void Commission Decision C(2008) 8465 final of 19 December 2008 on the reduction of the assistance from the European Regional Development Fund (ERDF) for an operational programme in the Objective 1 region of the Land of Saxony in the Federal Republic of Germany (1994-1999) in accordance with Commission Decision C(94) 1939/4 of 5 August 1994, Commission Decision C(94) 2273/4 of 22 August 1994 and Commission Decision C(94) 1425 of 6 September 1994; |
| --- | --- |

—

Declare void Commission Decision C(2008) 8465 final of 19 December 2008 on the reduction of the assistance from the European Regional Development Fund (ERDF) for an operational programme in the Objective 1 region of the Land of Saxony in the Federal Republic of Germany (1994-1999) in accordance with Commission Decision C(94) 1939/4 of 5 August 1994, Commission Decision C(94) 2273/4 of 22 August 1994 and Commission Decision C(94) 1425 of 6 September 1994;

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

—

Order the Commission to pay the costs of the action.

Pleas in law and main arguments

The applicant challenges Commission Decision C(2008) 8465 final of 19 December 2008, by which the financial assistance granted from the European Regional Development Fund for the Objective 1 region of Freistaat Sachsen in the Federal Republic of Germany (1994-1999) was reduced.

The applicant bases its claim on the following grounds:

Firstly, there is no legal basis for the consolidation and extrapolation of financial corrections in the funding period 1994 to 1999.

Secondly, the contested decision infringes Article 24(2) of Regulation (EEC) No 4253/88, (1) since the requirements are not met for a reduction to be made.

In particular, the Commission has misapplied the concept of ‘irregularity’ and has established important factual elements without any foundation for doing so. The assumption of systematic errors in administration and monitoring is based on incorrect findings of fact.

In the alternative, the applicant submits that the Commission has not used the discretion given to it pursuant to Article 24(2) of Regulation (EEC) No 4253/88. The lump sum corrections were disproportionate and the extrapolation was incorrectly calculated.

The applicant complains in addition that insufficient reasons were given for the contested decision. The derivation and grounds for the size of the consolidation applied could not be deduced from those reasons.

Finally, the applicant submits that the defendant infringed the principle of cooperation, since, despite the finding of operational capability of the administrative and monitoring systems in an administrative agreement, it complains in the contested decision of systematic deficiencies in the administrative and monitoring systems.

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(1)  Council Regulation (EEC) No 4253/88 of 19 December 1988, laying down provisions for implementing Regulation (EEC) No 2052/88 as regards coordination of the activities of the different Structural Funds between themselves and with the operations of the European Investment Bank and the other existing financial instruments (OJ 1988 L 374, p. 1).

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| 6.6.2009 | EN | Official Journal of the European Union | C 129/16 |
| --- | --- | --- | --- |

6.6.2009

EN

Official Journal of the European Union

C 129/16

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Action brought on 16 March 2009 — Ravensburger v OHIM — Educa Borras (MEMORY)

(Case T-108/09)

2009/C 129/27

Language in which the application was lodged: English

Parties

Applicants: Ravensburger AG (Ravensburg, Germany) (represented by: R. Kunze, lawyer and Solicitor and G. Würtenberger, lawyer)

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

Other party to the proceedings before the Board of Appeal: Educa Borras S.A. (Sant Quirze del Valles, Spain)

Form of order sought

| — | Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 8 January 2009 in case R 305/2008-2; and |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 8 January 2009 in case R 305/2008-2; and

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

—

Order OHIM to pay the costs.

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: The word mark “MEMORY” for goods in classes 9 and 28

Proprietor of the Community trade mark: The applicant

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

Decision of the Cancellation Division: Declared the Community trade mark concerned invalid

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 7(1)(b) and (c) in conjunction with Article 51(1)(a) of Council Regulation 40/94 as the Board of Appeal wrongly considered the term “memory” to be descriptive and lacking distinctive character at the time the cancellation proceedings took place, and thereby wrongly ignored that only those circumstances presented at the time of registration of the trade mark in question can be taken into account; Infringement of Article 7(1)(b) and (c) in conjunction with Article 51(1)(a) of Council Regulation 40/94 as the Board of Appeal wrongly considered the use of the term “memory” to be descriptive based on only two references of use within the European Community and without further determination whether these suggest descriptive use, thereby disregarding the long-term unchallenged use of the registered trade mark in question for games in a competitive consumer-oriented marketing; The Board of Appeal wrongly based its confirmation of the descriptive and non-distinctive character of the registered trade mark in question on unevaluated sources having their origin in countries outside the European Union; Infringement of Article 75 of Council Regulation 40/94 as the Board of Appeal erred when refusing to grant the request to summons for a hearing lodged by the applicant.

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| 6.6.2009 | EN | Official Journal of the European Union | C 129/16 |
| --- | --- | --- | --- |

6.6.2009

EN

Official Journal of the European Union

C 129/16

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Action brought on 19 March 2009 — PromoCell bioscience alive v OHIM (SupplementPack)

(Case T-113/09)

2009/C 129/28

Language in which the application was lodged: German

Parties

Applicant: PromoCell bioscience alive GmbH Biomedizinische Produkte (Heidelberg, Germany) (represented by K. Mende, 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 15 January 2009 in Case R 996/2008-4; |
| --- | --- |

—

Annul the decision of the Fourth Board of Appeal of 15 January 2009 in Case R 996/2008-4;

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: the word mark ‘SupplementPack’ for goods and services in Classes 1, 3, 5, 41 and 42 (Application No 5 433 883)

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)(b) and (c) of Council Regulation (EC) No 40/94 as the mark applied for has the requisite distinctive character and its availability does not have to be preserved

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| 6.6.2009 | EN | Official Journal of the European Union | C 129/17 |
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6.6.2009

EN

Official Journal of the European Union

C 129/17

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Action brought on 30 March 2009 — Valigeria Roncato v OHIM — Roncato (CARLO RONCATO)

(Case T-124/09)

2009/C 129/29

Language in which the application was lodged: Italian

Parties

Applicant: Valigeria Roncato SpA (Campodarsego, Italy) (represented by: P. Perani, lawyer, and P. Pozzi, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Roncato Srl (Campodarsego, Italy)

Forms of order sought

| — | Annul the decision of the First Board of Appeal of OHIM of 23 January 2009, notified on 30 January 2009, in joined cases R 237/2008-1 and R 263/2008-1; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of OHIM of 23 January 2009, notified on 30 January 2009, in joined cases R 237/2008-1 and R 263/2008-1;

| — | Order the defendant and the other party to the proceedings to pay the costs of these proceedings, as well as those incurred in the proceedings before the Board of Appeal. |
| --- | --- |

—

Order the defendant and the other party to the proceedings to pay the costs of these proceedings, as well as those incurred in the proceedings before the Board of Appeal.

Pleas in law and main arguments

Applicant for a Community trade mark: RONCATO Srl.

Community trade mark concerned: Word mark “CARLO RONCATO” (registration application No 4 631 719) for goods in Classes 3, 9 and 14.

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

Mark or sign cited in opposition: Italian figurative mark “RV RONCATO” (No 622 773), Italian word mark “RONCATO” (No. 510 528) and non-registered Italian figurative marks “RV RONCATO”.

Decision of the Opposition Division: Opposition upheld in part.

Decision of the Board of Appeal: Rejected the opposition and upheld the application for registration in its entirety.

Pleas in law: Misapplication of Article 8(4) and (5) of Regulation (EC) No 40/94 on the Community trade mark.

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| 6.6.2009 | EN | Official Journal of the European Union | C 129/17 |
| --- | --- | --- | --- |

6.6.2009

EN

Official Journal of the European Union

C 129/17

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Action brought on 26 March 2009 — Gruener Janura AG v OHIM — Centum Aqua Marketing (HUNDERTWASSER)

(Case T -125/09)

2009/C 129/30

Language in which the application was lodged: German

Parties

Applicant: Gruener Janura AG (represented by: P. Endres, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Centum Aqua Marketing GmbH (Magdeburg, Germany)

Form of order sought

| — | Reject application No 4491891 for the trade mark ‘Hundertwasser’ for the following goods and services:






  — | Class 20: Goods (not included in other classes) of wood, cork, reed, cane, wicker, horn, bone, ivory, whalebone, shell, mother-of-pearl, meerschaum and substitutes for all these materials, or of plastics; |
| --- | --- | --- |

—

Reject application No 4491891 for the trade mark ‘Hundertwasser’ for the following goods and services:

—

Class 20: Goods (not included in other classes) of wood, cork, reed, cane, wicker, horn, bone, ivory, whalebone, shell, mother-of-pearl, meerschaum and substitutes for all these materials, or of plastics;

| — | Class 30: Sugar, rice, tapioca, sago, artificial coffee; flour and preparations made from cereals, bread, pastry and confectionery; honey, treacle; yeast, baking-powder; salt, mustard; vinegar, sauces (condiments); spices; ice; confectionery, candyfloss; |
| --- | --- |

—

Class 30: Sugar, rice, tapioca, sago, artificial coffee; flour and preparations made from cereals, bread, pastry and confectionery; honey, treacle; yeast, baking-powder; salt, mustard; vinegar, sauces (condiments); spices; ice; confectionery, candyfloss;

| — | Class 31: Agricultural, horticultural and forestry products and grains not included in other classes; live animals; seeds, natural plants and flowers; foodstuffs for animals; malt; products from organic farming, flowers, arrangements, plant arrangements; |
| --- | --- |

—

Class 31: Agricultural, horticultural and forestry products and grains not included in other classes; live animals; seeds, natural plants and flowers; foodstuffs for animals; malt; products from organic farming, flowers, arrangements, plant arrangements;

| — | Class 35: Advertising, marketing concepts; |
| --- | --- |

—

Class 35: Advertising, marketing concepts;

| — | Class 39: Transport, packaging and storage of goods; travel arrangement, exhibition guides, city and building guides, tourist services, package holidays; |
| --- | --- |

—

Class 39: Transport, packaging and storage of goods; travel arrangement, exhibition guides, city and building guides, tourist services, package holidays;

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

—

Order the applicant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Centum Aqua Marketing GmbH

Community trade mark concerned: the word mark ‘HUNDERTWASSER’ for goods and services in Classes 20, 25, 30, 31, 32, 35, 39 and 42 (application No 4 491 891)

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

Mark or sign cited in opposition: the word mark ‘FRIEDENSREICH HUNDERTWASSER’ for goods and services in Classes 3, 16, 19, 24, 25, 27, 32 and 33 (Community trade mark No 1 825 629) and the word mark ‘HUNDERTWASSER’ for goods and services in Classes 14, 16, 18, 19, 21, 24, 41 and 42 (Community trade mark No 1 931 393)

Decision of the Opposition Division: partial rejection of the opposition

Decision of the Board of Appeal: annulment of the Opposition Division’s decision and partial upholding of the appeal as well as partial rejection of the application

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

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| 6.6.2009 | EN | Official Journal of the European Union | C 129/18 |
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6.6.2009

EN

Official Journal of the European Union

C 129/18

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Action brought on 24 March 2009 — Italy v Commission

(Case T-126/09)

2009/C 129/31

Language of the case: Italian

Parties

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

Defendant: Commission of the European Communities

Form of order sought

| — | Annulment of Notices of open competitions EPSO/AD/144/09 (public health), EPSO/AD/145/09 (food safety (policy and legislation)), and EPSO/AD/146/09 (food safety (audit, inspection and evaluation)) for the drawing up of a reserve from which to recruit 35, 40 and 55 administrators (AD 5) respectively, with Bulgarian, Cypriot, Czech, Estonian, Hungarian, Latvian, Lithuanian, Maltese, Polish, Romanian, Slovak and Slovenian citizenship, in the field of public health. |
| --- | --- |

—

Annulment of Notices of open competitions EPSO/AD/144/09 (public health), EPSO/AD/145/09 (food safety (policy and legislation)), and EPSO/AD/146/09 (food safety (audit, inspection and evaluation)) for the drawing up of a reserve from which to recruit 35, 40 and 55 administrators (AD 5) respectively, with Bulgarian, Cypriot, Czech, Estonian, Hungarian, Latvian, Lithuanian, Maltese, Polish, Romanian, Slovak and Slovenian citizenship, in the field of public health.

Pleas in law and main arguments

The pleas in law and main arguments are similar to those in Case T-166/07 Italy v Commission.

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| 6.6.2009 | EN | Official Journal of the European Union | C 129/18 |
| --- | --- | --- | --- |

6.6.2009

EN

Official Journal of the European Union

C 129/18

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Action brought on 2 April 2009 — Farmeco v OHIM — Allergan (BOTUMAX)

(Case T-131/09)

2009/C 129/32

Language in which the application was lodged: English

Parties

Applicants: Farmeco SA Dermocosmetics, trading as “Farmeco SA” (Athens, Greece) (represented by: N. Lyberis, lawyer)

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

Other party to the proceedings before the Board of Appeal: Allergan, Inc. (Irvine, United States)

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 2 February 2009 in case R 60/2008-4, to the extent that the application for the Community trade mark concerned was rejected for all goods in classes 3 and 5 and certain goods in class 16; |
| --- | --- |

—

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 2 February 2009 in case R 60/2008-4, to the extent that the application for the Community trade mark concerned was rejected for all goods in classes 3 and 5 and certain goods in class 16;

| — | Dismiss the appeal filed by the other party to the proceedings before the Board of Appeal against the decision of 26 October 2007 of the Opposition Division and allow the Community trade mark concerned to proceed to registration for all goods applied for; and |
| --- | --- |

—

Dismiss the appeal filed by the other party to the proceedings before the Board of Appeal against the decision of 26 October 2007 of the Opposition Division and allow the Community trade mark concerned to proceed to registration for all goods applied for; and

| — | Order OHIM and the other party to the proceedings before the Board of Appeal to pay the costs, including those incurred in opposition and appeal proceedings. |
| --- | --- |

—

Order OHIM and the other party to the proceedings before the Board of Appeal to pay the costs, including those incurred in opposition and appeal proceedings.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark “BOTUMAX”, for goods in classes 3, 5 and 16 — application No 3 218 237

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: Various Community and national trade mark registrations of the word mark or the sign “BOTOX” for goods and services in classes 5, 16, and 42, respectively

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Annulled the contested decision and rejected partially the application for the Community trade mark concerned

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation 40/94 as the Board of Appeal erred in its finding that there is a likelihood of confusion between the trade marks concerned in respect of identical or highly similar goods, in spite of the existing differences between the visual and phonetic perception of the two signs; Infringement of Article 8(5) of Council Regulation 40/94 as the Board of Appeal wrongly considered that the conditions for the application of the said article were met.

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| 6.6.2009 | EN | Official Journal of the European Union | C 129/19 |
| --- | --- | --- | --- |

6.6.2009

EN

Official Journal of the European Union

C 129/19

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Action brought on 6 April 2009 — Epcos v OHIM — Epco Sistemas (EPCOS)

(Case T -132/09)

2009/C 129/33

Language in which the application was lodged: German

Parties

Applicant: Epcos AG (Munich, Germany) (represented by: L. von Zumbusch, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Epco Sistemas, SL (Constanti, Spain)

Form of order sought

| — | Annul the decision of the Second Board of Appeal of 19 January 2009, R 1088/2008-2; |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of 19 January 2009, R 1088/2008-2;

| — | annul Decision No B 979767 of the Opposition Division of 22 May 2008 on the opposition proceedings brought by the opposing party, in so far as the opposition was upheld in respect of the goods ‘NTC-Thermistoren’, ‘PTC-Thermistoren’ and ‘Sensoren’, and reject the opposition in its entirety; |
| --- | --- |

—

annul Decision No B 979767 of the Opposition Division of 22 May 2008 on the opposition proceedings brought by the opposing party, in so far as the opposition was upheld in respect of the goods ‘NTC-Thermistoren’, ‘PTC-Thermistoren’ and ‘Sensoren’, and reject the opposition in its entirety;

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

—

order the defendant and the opposing party to pay the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: Figurative mark ‘EPCOS’ for goods in Classes 6 and 9 (application No 4 133 799)

Proprietor of the mark or sign cited in the opposition proceedings: Epco Sistemas, SL

Mark or sign cited in opposition: Spanish figurative mark ‘E epco SISTEMAS’ for goods in Class 9

Decision of the Opposition Division: Upholding in part of the opposition

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Breach of Article 8(1)(b) and Article 43(2) and (3) of Regulation (EC) No 40/94 and Rule 19(3) of Regulation (EC) No 2868/95, (1) since the opposition trade mark has not been used within the five years prior to publication of the trade mark applied for and there is no likelihood of confusion between the two opposing marks.

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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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| 6.6.2009 | EN | Official Journal of the European Union | C 129/19 |
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6.6.2009

EN

Official Journal of the European Union

C 129/19

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Action brought on 6 April 2009 — Nike International v OHIM — Muñoz Molina (R10)

(Case T -137/09)

2009/C 129/34

Language in which the application was lodged: Spanish

Parties

Applicant: Nike International Ltd (Oregon, United States) (represented by: M. de Justo Bailey, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Aurelio Muñoz Molina (Santa Pola, Spain)

Form of order sought

| — | Amend the contested decision with regard to the inadmissibility of the appeal, finding that that appeal is admissible, and order the Board of Appeal act in accordance therewith and examine the substance of the appeal; |
| --- | --- |

—

Amend the contested decision with regard to the inadmissibility of the appeal, finding that that appeal is admissible, and order the Board of Appeal act in accordance therewith and examine the substance of the appeal;

| — | In the alternative, find infringement by the Board of Appeal and the Opposition Division of Article 73 of Regulation No 40/94 and the other provisions applicable, ordering its retroactive application to the file to remedy the lack of opportunity of the applicant (Nike International Ltd) to correct the anomalies as assignee of the prior right and/or, at the very least, the correct notification of the Decision to the representative of the preceding proprietor (DL Sports & Marketing Ltda.). |
| --- | --- |

—

In the alternative, find infringement by the Board of Appeal and the Opposition Division of Article 73 of Regulation No 40/94 and the other provisions applicable, ordering its retroactive application to the file to remedy the lack of opportunity of the applicant (Nike International Ltd) to correct the anomalies as assignee of the prior right and/or, at the very least, the correct notification of the Decision to the representative of the preceding proprietor (DL Sports & Marketing Ltda.).

Pleas in law and main arguments

Applicant for a Community trade mark: Aurelio Muñoz Molina.

Community trade mark concerned: Word mark ‘R10’ (application for registration No 4 813 713) for goods and services in Classes 18, 25 and 35.

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

Mark or sign cited in opposition: Unregistered Spanish mark ‘R10’.

Decision of the Opposition Division: Rejection of the opposition on procedural grounds and, specifically, for infringement of the provisions of Article 58 of Council Regulation (EC) No 40/94 on the Community trade mark, (1) and of Rule 49(1) of Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark. (2)

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

Pleas in law: Incorrect assessment of the conditions for admissibility of the appeal, breach of the duty to give reasons and breach of the right to a fair hearing.

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

(2)  OJ 1995 L 303, p. 1.

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European Union Civil Service Tribunal

| 6.6.2009 | EN | Official Journal of the European Union | C 129/21 |
| --- | --- | --- | --- |

6.6.2009

EN

Official Journal of the European Union

C 129/21

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Action brought on 13 March 2009 — Cerafogli v ECB

(Case F-23/09)

2009/C 129/35

Language of the case: French

Parties

Applicant: Maria Concetta Cerafogli (Fankfurt, Germany) (represented by: L. Lévi, M. Vandenbussche, lawyers)

Defendant: European Central Bank

Subject-matter and description of the proceedings

Application for annulment of the decision of the Board of Directors of the Bank appointing, on a temporary basis, an adviser to the Oversight Division and of vacancy notice ECB/074/08, as well as all decisions adopted on the basis of that vacancy notice. In addition, an application to order the defendant to pay compensation for the material and non-material damage suffered by the applicant.

Form of order sought

| — | annul the decision of Board of Directors of 17 July 2008 appointing Mr L. on a temporary basis to the position of adviser in the Oversight Division; |
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annul the decision of Board of Directors of 17 July 2008 appointing Mr L. on a temporary basis to the position of adviser in the Oversight Division;

| — | annul vacancy notice ECB/074/08; |
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annul vacancy notice ECB/074/08;

| — | consequently, (i) annul all decisions taken on the basis of the vacancy notice, including the decision to appoint Mr L to the position of adviser in the Oversight Division taken following the recruitment procedure, and (ii) order the defendant to pay the sum of EUR 10 000, fixed ex aequo et bono, as compensation for the non-material damage suffered by the applicant as well as EUR 2 500 to compensate for the material damage connected to the intervention of the applicant’s advisers at the pre-litigation stage; |
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consequently, (i) annul all decisions taken on the basis of the vacancy notice, including the decision to appoint Mr L to the position of adviser in the Oversight Division taken following the recruitment procedure, and (ii) order the defendant to pay the sum of EUR 10 000, fixed ex aequo et bono, as compensation for the non-material damage suffered by the applicant as well as EUR 2 500 to compensate for the material damage connected to the intervention of the applicant’s advisers at the pre-litigation stage;

| — | on the assumption that giving effect to a judgment annulling the decision or decisions would be very difficult, order the defendant to pay the sum of EUR 45 600; |
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on the assumption that giving effect to a judgment annulling the decision or decisions would be very difficult, order the defendant to pay the sum of EUR 45 600;

| — | order the European Central Bank to pay the costs. |
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order the European Central Bank to pay the costs.

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| 6.6.2009 | EN | Official Journal of the European Union | C 129/21 |
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6.6.2009

EN

Official Journal of the European Union

C 129/21

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Action brought on 30 March 2009 — Lebedef and Jones v Commission

(Case F-29/09)

2009/C 129/36

Language of the case: French

Parties

Applicants: Giorgio Lebedef (Senningerberg, Luxembourg) and Trevor Jones (Ernzen, Luxembourg)) (represented by: F. Frabetti, lawyer)

Defendant: Commission of the European Communities

Subject-matter and description of the proceedings

Annulment of the decision to refuse to increase the purchasing power of salaries in Luxembourg to a level equivalent to that of the purchasing power of salaries in Brussels and, second, annulment of the applicants’ pay slips issued from 15 June 2008.

Form of order sought

| — | Annul the implied decision to refuse to increase the purchasing power of salaries in Luxembourg to a level equivalent to that of the purchasing power of salaries in Brussels; |
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Annul the implied decision to refuse to increase the purchasing power of salaries in Luxembourg to a level equivalent to that of the purchasing power of salaries in Brussels;

| — | Annul, secondly, the applicants’ pay slips issued for the period from 15 June 2008; |
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Annul, secondly, the applicants’ pay slips issued for the period from 15 June 2008;

| — | 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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| 6.6.2009 | EN | Official Journal of the European Union | C 129/21 |
| --- | --- | --- | --- |

6.6.2009

EN

Official Journal of the European Union

C 129/21

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Action brought on 31 March 2009 — Chaouch v Commission

(Case F-30/09)

2009/C 129/37

Language of the case: French

Parties

Applicant: Dhikra Chaouch (Oetrange, Luxembourg) (represented by: F. Moyse and A. Salerno, lawyers)

Defendant: Commission of the European Communities

Subject-matter and description of the proceedings

Annulment of the decision of the appointing authority not to grant the applicant the installation allowance.

Form of order sought

| — | Find that there was an infringement of Article 5 of Annex VII to the Staff Regulations in relation to Article 20 and, consequently, annul the decisions of the appointing authority of 2 July 2008 and 8 December 2008; |
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Find that there was an infringement of Article 5 of Annex VII to the Staff Regulations in relation to Article 20 and, consequently, annul the decisions of the appointing authority of 2 July 2008 and 8 December 2008;

| — | Declare that the applicant has a right to the installation allowance laid down in Article 5(1) of Annex VII to the Staff Regulations plus default interest from the date at which the indemnity was due until the date of actual payment at the interest rate applied by the European Central Bank to its main refinancing operations during the period concerned plus two percentage points; |
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Declare that the applicant has a right to the installation allowance laid down in Article 5(1) of Annex VII to the Staff Regulations plus default interest from the date at which the indemnity was due until the date of actual payment at the interest rate applied by the European Central Bank to its main refinancing operations during the period concerned plus two percentage points;

| — | 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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| 6.6.2009 | EN | Official Journal of the European Union | C 129/22 |
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6.6.2009

EN

Official Journal of the European Union

C 129/22

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Action brought on 26 March 2009 — Noël v Council

(Case F-31/09)

2009/C 129/38

Language of the case: French

Parties

Applicant: Isabelle Noël (Rosières-Saint-André, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal, lawyers)

Defendant: Council of the European Union

Subject-matter and description of the proceedings

Annulment of the decision appointing the applicant a probationary official to the extent that that decision affects his AST 1-7 career path.

Form of order sought

| — | Annul the decision of 13 November 2006 appointing the applicant an official to the extent that that decision affects his AST 1-7 career path; |
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Annul the decision of 13 November 2006 appointing the applicant an official to the extent that that decision affects his AST 1-7 career path;

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

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| 6.6.2009 | EN | Official Journal of the European Union | C 129/22 |
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6.6.2009

EN

Official Journal of the European Union

C 129/22

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Action brought on 1 April 2009 — Andrikopoulou v Council

(Case F-32/09)

2009/C 129/39

Language of the case: French

Parties

Applicant: Anna Andrikopoulou (Rhode-Saint-Genèse, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal, lawyers)

Defendant: Council of the European Union

Subject-matter and description of the proceedings

Annulment of the decision not to promote the applicant to grade AST 7 under the 2008 promotion procedure and, to the extent that it is necessary, the decision to promote to that grade less meritorious officials.

Form of order sought

| — | Annul the decision of the appointing authority not to promote the applicant to grade AST 7 under the 2008 promotion procedure and, to the extent that it is necessary, the decision to promote to that grade less meritorious officials; |
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Annul the decision of the appointing authority not to promote the applicant to grade AST 7 under the 2008 promotion procedure and, to the extent that it is necessary, the decision to promote to that grade less meritorious officials;

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

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| 6.6.2009 | EN | Official Journal of the European Union | C 129/22 |
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6.6.2009

EN

Official Journal of the European Union

C 129/22

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Action brought on 1 April 2009 — Tzvetanova v Commission

(Case F-33/09)

2009/C 129/40

Language of the case: French

Parties

Applicant: Aglika Tzvetanova (Brussels, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal, lawyers)

Defendant: Commission of the European Communities

Subject-matter and description of the proceedings

Annulment of the decision of the Commission to refuse the applicant the benefit of the expatriation allowance provided for in Article 4(1)(a) of Annex VII to the Staff Regulations.

Form of order sought

| — | Annul the decision of the appointing authority not to grant the applicant the expatriation allowance; |
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Annul the decision of the appointing authority not to grant the applicant the expatriation allowance;

| — | 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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