# Official Journal C 287/2012

| | ISSN 1977-091X
  doi:10.3000/1977091X.C_2012.287.eng |
| --- | --- |
| Official Journal
  of the European Union | C 287 |
| | |
| English edition | Information and Notices | Volume 5522 September 2012 |

ISSN 1977-091X

doi:10.3000/1977091X.C_2012.287.eng

Official Journal

of the European Union

C 287

English edition

Information and Notices

Volume 5522 September 2012

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| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | Court of Justice of the European Union |
| 2012/C 287/01 | Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 273, 8.9.2012 | 1 |

Notice No

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

2012/C 287/01

Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 273, 8.9.2012

Official Journal of the European Union

1

| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2012/C 287/02 | Case C-269/09: Judgment of the Court (First Chamber) of 12 July 2012 — European Commission v Kingdom of Spain (Failure of a Member State to fulfil obligations — Articles 18 EC, 39 EC and 43 EC — Articles 28 and 31 of the EEA Agreement — Tax legislation — Transfer abroad of a taxpayer’s residence — Obligation to include any income not yet charged to tax in the tax base for the preceding tax year — Loss of the advantage to be gained by deferring the tax debt) | 2 |
| 2012/C 287/03 | Case C-318/10: Judgment of the Court (First Chamber) of 5 July 2012 (reference for a preliminary ruling from the Cour de cassation — Belgium) — Société d’investissement pour l’agriculture tropicale SA (SIAT) v État belge (Freedom to provide services — Tax legislation — Deduction as business expenses of expenses incurred as payment for the provision of services — Expenses incurred in relation to a service provider established in another Member State in which that provider is not subject to tax on income or is subject there to a tax regime which is appreciably more advantageous — Deductibility conditional upon the provision of proof of the genuine and proper nature of the services and the normal nature of the related payments — Obstacle — Justification — Combating tax evasion and avoidance — Effectiveness of fiscal supervision — Balanced allocation between Member States of the power to impose taxes — Proportionality) | 2 |
| 2012/C 287/04 | Case C-378/10: Judgment of the Court (Third Chamber) of 12 July 2012 (reference for a preliminary ruling from the Legfelsőbb Bíróság — Hungary) — Application to register a company made by VALE Építési kft (Articles 49 TFEU and 54 TFEU — Freedom of establishment — Principles of equivalence and effectiveness — Cross-border conversion — Refusal to add to register) | 3 |
| 2012/C 287/05 | Case C-509/10: Judgment of the Court (First Chamber) of 5 July 2012 (reference for a preliminary ruling from the Bundesgerichtshof — Germany) — Josef Geistbeck, Thomas Geistbeck v Saatgut-Treuhandverwaltungs GmbH (Intellectual and industrial property — Community plant variety rights — Regulation (EC) No 2100/94 — Farmer’s privilege — Concept of reasonable compensation — Compensation for damage suffered — Infringement) | 3 |
| 2012/C 287/06 | Case C-527/10: Judgment of the Court (First Chamber) of 5 July 2012 (reference for a preliminary ruling from the Legfelsőbb Bíróság — Hungary) — ERSTE Bank Hungary Nyrt v Magyar Állam, BCL Trading GmbH, ERSTE Befektetési Zrt (Judicial cooperation in civil matters — Insolvency proceedings — Regulation (EC) No 1346/2000 — Article 5(1) — Temporal application — Action in rem brought in a State not a member of the European Union — Insolvency proceedings opened against the debtor in another Member State — First State became a member of the European Union — Applicability) | 4 |
| 2012/C 287/07 | Case C-558/10: Judgment of the Court (Third Chamber) of 5 July 2012 (reference for a preliminary ruling from the Tribunal de grande instance de Chartres — France) — Michel Bourgès-Maunoury, Marie-Louise Heintz, wife of Mr Bourgès-Maunoury v Direction des services fiscaux d’Eure-et-Loir (Privileges and immunities of the European Communities — Exemption from national taxes on salaries paid by the European Union — Inclusion of income paid by the European Union in the calculation of the cap for wealth tax) | 5 |
| 2012/C 287/08 | Case C-562/10: Judgment of the Court (Second Chamber) of 12 July 2012 — European Commission v Federal Republic of Germany (Action for failure to fulfil obligations — Article 56 TFEU — German legislation regarding care insurance — Benefits in kind for assistance at home are unavailable where the person reliant on care is temporarily staying in another Member State — Lower level of exportable cash benefits — Failure to reimburse hire costs of care equipment in other Member States) | 5 |
| 2012/C 287/09 | Case C-602/10: Judgment of the Court (Fourth Chamber) of 12 July 2012 (reference for a preliminary ruling from the Judecătoria Călărași — Romania) — SC Volksbank România SA v Autoritatea Națională pentru Protecția Consumatorilor — Comisariatul Județean pentru Protecția Consumatorilor Călărași (CJPC) (Consumer protection — Credit agreements for consumers — Directive 2008/48/EC — Articles 22, 24 and 30 — National legislation designed to transpose that directive — Applicability to agreements not included in the material and temporal scope of the directive — Obligations not provided for by the directive — Limitation on the bank charges capable of being levied by the creditor — Articles 56 TFEU, 58 TFEU and 63 TFEU — Obligation to put in place, in national law, adequate and effective out-of-court dispute resolution procedures) | 6 |
| 2012/C 287/10 | Joined Cases C-608/10, C-10/11 and C-23/11: Judgment of the Court (First Chamber) of 12 July 2012 (references for a preliminary ruling from the Finanzgericht Hamburg — Germany) — Südzucker AG (C-608/10), WEGO Landwirtschaftliche Schlachtstellen GmbH (C-10/11), Fleischkontor Moksel GmbH (C-23/11) v Hauptzollamt Hamburg-Jonas (Agriculture — Export refunds — Incorrect indication of the exporter in the export declaration — National legislation making entitlement to an export refund subject to the entry of the applicant as the exporter in the export declaration — Correction of the export declaration after the goods have been released) | 6 |
| 2012/C 287/11 | Case C-616/10: Judgment of the Court (Third Chamber) of 12 July 2012 (reference for a preliminary ruling from the Rechtbank ‘s-Gravenhage — Netherlands) — Solvay SA v Honeywell Fluorine Products Europe BV, Honeywell Belgium NV, Honeywell Europe NV (Judicial cooperation in civil matters — Jurisdiction, recognition and enforcement of judgments — Regulation (EC) No 44/2001 — Action for infringement of a European patent — Special and exclusive jurisdiction — Article 6(1) — More than one defendant — Article 22(4) — Validity of the patent called into question — Article 31 — Provisional, including protective, measures) | 7 |
| 2012/C 287/12 | Case C-49/11: Judgment of the Court (Third Chamber) of 5 July 2012 (reference for a preliminary ruling from the Oberlandesgericht Wien — Austria) — Content Services Ltd v Bundesarbeitskammer (Reference for a preliminary ruling — Directive 97/7/EC — Consumer protection — Distance contracts — Consumer information — Information given or received — Durable medium — Meaning — Hyperlink on the website of the supplier — Right of withdrawal) | 8 |
| 2012/C 287/13 | Joined Cases C-55/11, C-57/11 and C-58/11: Judgment of the Court (Fourth Chamber) of 12 July 2012 (reference for a preliminary ruling from the Tribunal Supremo — Spain) — Vodafone España SA v Ayuntamiento de Santa Amalia (C-55/11), Ayuntamiento de Tudela (C-57/11), and France Telecom España SA v Ayuntamiento de Torremayor (C-58/11) (Directive 2002/20/EC — Electronic communications networks and services — Authorisation — Article 13 — Fees for rights of use and rights to install facilities) | 8 |
| 2012/C 287/14 | Case C-59/11: Judgment of the Court (Third Chamber) of 12 July 2012 (reference for a preliminary ruling from the Cour d’appel de Nancy — France) — Association Kokopelli v Graines Baumaux SAS (Agriculture — Directives 98/95/EC, 2002/53/EC, 2002/55/EC and 2009/145/EC — Validity — Vegetables — Sale on the national seed market of vegetable seed not included in the official common catalogue of varieties of vegetable species — Non-compliance with system of prior authorisation for marketing — International Treaty on Plant Genetic Resources for Food and Agriculture — Principle of proportionality — Freedom to conduct a business — Free movement of goods — Equal treatment) | 9 |
| 2012/C 287/15 | Case C-79/11: Judgment of the Court (Second Chamber) of 12 July 2012 (reference for a preliminary ruling from the Tribunale di Firenze — Italy) — Criminal proceedings against Maurizio Giovanardi and Others (Police and judicial cooperation in criminal matters — Framework Decision 2001/220/JHA — Standing of victims in criminal proceedings — Directive 2004/80/EC — Compensation to victims of crime — Liability of a legal person — Compensation in criminal proceedings) | 10 |
| 2012/C 287/16 | Case C-128/11: Judgment of the Court (Grand Chamber) of 3 July 2012 (reference for a preliminary ruling from the Bundesgerichtshof — Germany) — UsedSoft GmbH v Oracle International Corp. (Legal protection of computer programs — Marketing of used licences for computer programs downloaded from the internet — Directive 2009/24/EC — Articles 4(2) and 5(1) — Exhaustion of the distribution right — Concept of lawful acquirer) | 10 |
| 2012/C 287/17 | Case C-138/11: Judgment of the Court (Third Chamber) of 12 July 2012 (reference for a preliminary ruling from the Oberster Gerichtshof — Austria) — Compass-Datenbank GmbH v Republik Österreich (Competition — Article 102 TFEU — Concept of undertaking — Data of the companies register stored in a database — Activity of collection and making available of that data in return for remuneration — Refusal by the public authorities to authorise re-utilisation of that data — Sui generis right provided for in Article 7 of Directive 96/9/EC) | 11 |
| 2012/C 287/18 | Case C-141/11: Judgment of the Court (Second Chamber) of 5 July 2012 (reference for a preliminary ruling from the Södertörns tingsrätt — Sweden) — Torsten Hörnfeldt v Posten Meddelande AB (Equal treatment in employment and occupation — Prohibition of discrimination on grounds of age — National legislation conferring on employees an unconditional right to work until the age of 67 and providing for automatic termination of the employment relationship at the end of the month in which the employee reaches that age — Account not taken of the amount of the retirement pension) | 11 |
| 2012/C 287/19 | Case C-146/11: Judgment of the Court (Second Chamber) of 12 July 2012 (reference for a preliminary ruling from the Riigikohus — Estonia) — AS Pimix, in liquidation v Maksu- ja Tolliameti Lõuna maksu- ja tollikeskus, Põllumajandusministeerium (Accession of new Member States — Setting the charge on surplus stocks of agricultural products — Reference, in a provision of national law, to a provision of a European Union regulation not duly published in the OJ in the language of the Member State in question) | 12 |
| 2012/C 287/20 | Case C-171/11: Judgment of the Court (Fourth Chamber) of 12 July 2012 (reference for a preliminary ruling from the Oberlandesgericht Düsseldorf — Germany) — Fra.bo SpA v Deutsche Vereinigung des Gas- und Wasserfaches eV (DVGW) — Technisch-Wissenschaftlicher Verein (Free movement of goods — Measures having equivalent effect to a quantitative restriction — National certification procedure — Presumption of compliance with national law — Applicability of Article 28 EC to a private-law certification body) | 12 |
| 2012/C 287/21 | Case C-176/11: Judgment of the Court (Fourth Chamber) of 12 July 2012 (reference for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — HIT hoteli, igralnice, turizem dd Nova Gorica and HIT LARIX, prirejanje posebnih iger na srečo in turizem dd v Bundesminister für Finanzen (Article 56 TFEU — Restriction on the freedom to provide services — Games of chance — Legislation of a Member State prohibiting the advertising of casinos located in other States if the level of legal protection for gamblers in those States is not equivalent to that ensured at national level — Justification — Overriding reasons in the public interest — Proportionality) | 13 |
| 2012/C 287/22 | Case C-181/11 P: Judgment of the Court (Sixth Chamber) of 12 July 2012 — Compañía Española de Tabaco en Rama, SA (Cetarsa) v European Commission (Appeal — Competition — Agreements — Spanish market for the purchase and first processing of raw tobacco — Decision finding an infringement of Article 81 EC — Price fixing and market sharing — Fines — Equal treatment — Maximum limit of 10 % of turnover — Cooperation — Distortion of evidence — Manifest error of assessment — Failure to state reasons) | 13 |
| 2012/C 287/23 | Case C-259/11: Judgment of the Court (Sixth Chamber) of 5 July 2012 (reference for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — DTZ Zadelhoff vof v Staatssecretaris van Financiën (Sixth VAT Directive — Articles 5(3)(c) and 13B(d)(5) — Negotiation of a transaction involving the transfer of company shares — Transaction which also entails the transfer of the ownership of immovable property held by such companies — Exemption) | 14 |
| 2012/C 287/24 | Case C-284/11: Judgment of the Court (Second Chamber) of 12 July 2012 (reference for a preliminary ruling from the Varhoven administrativen sad — Bulgaria) — EMS-Bulgaria Transport OOD v Direktor na Direktsia Obzhalvane i upravlenie na izpalnenieto Plovdiv (VAT — Directive 2006/112/EC — Right to deduct — Limitation period for the exercise of the right to deduct VAT — Principle of effectiveness — Refusal of the right to deduct VAT — Principle of fiscal neutrality) | 14 |
| 2012/C 287/25 | Case C-291/11: Judgment of the Court (Third Chamber) of 12 July 2012 (reference for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Staatssecretaris van Financiën v TNT Freight Management (Amsterdam) BV (Common Customs Tariff — Combined Nomenclature — Tariff headings 3002 and 3502 — Blood albumin prepared for therapeutic or prophylactic uses — Processing of the product) | 15 |
| 2012/C 287/26 | Case C-311/11 P: Judgment of the Court (Fifth Chamber) of 12 July 2012 — Smart Technologies ULC v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Appeals — Community trade mark — Regulation (EC) No 40/94 — Article 7(1)(b) — Word mark WIR MACHEN DAS BESONDERE EINFACH — Mark consisting of an advertising slogan — Distinctive character — Refusal to register) | 15 |
| 2012/C 287/27 | Case C-326/11: Judgment of the Court (Fourth Chamber) of 12 July 2012 (reference for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — J.J. Komen en Zonen Beheer Heerhugowaard BV v Staatssecretaris van Financiën (Sixth VAT Directive — Article 13B(g), read in conjunction with Article 4(3)(a) — Supply of buildings and the land upon which they stand — Supply of a building undergoing work with the view to the creation of a new building by transformation — Continuation and completion of the work by the purchaser after the supply — Exemption from VAT) | 16 |
| 2012/C 287/28 | Case C-212/12: Reference for a preliminary ruling from the Amtsgericht Düsseldorf (Germany) lodged on 4 May 2012 — Helmut Butz, Christel Bachman-Butz, Frederike Butz v Société Air France SA | 16 |
| 2012/C 287/29 | Case C-220/12: Reference for a preliminary ruling from the Verwaltungsgericht Hannover (Germany) lodged on 11 May 2012 — Andreas Ingemar Thiele Meneses v Region Hannover | 16 |
| 2012/C 287/30 | Case C-278/12: Reference for a preliminary ruling from the Raad van State (Netherlands), lodged on 4 June 2012 — A. Adil; other party: Minister voor Immigratie, Integratie en Asiel | 17 |
| 2012/C 287/31 | Case C-300/12: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 20 June 2012 — Finanzamt Düsseldorf-Mitte v Ibero Tours GmbH | 17 |
| 2012/C 287/32 | Case C-302/12: Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 20 June 2012 — X; other party: Minister van Financiën | 18 |
| 2012/C 287/33 | Case C-303/12: Reference for a preliminary ruling from the Tribunal de première instance de Liège (Belgium) lodged on 21 June 2012 — Guido Imfeld, Nathalie Garcet v État belge | 18 |
| 2012/C 287/34 | Case C-306/12: Reference for a preliminary ruling from the Landgericht Saarbrücken (Germany) lodged on 26 June 2012 — Spedition Welter GmbH v Avanssur S.A. | 18 |
| 2012/C 287/35 | Case C-309/12: Reference for a preliminary ruling from the Tribunal Central Administrativo Norte (Portugal) lodged on 27 June 2012 — Maria Albertina Gomes Viana Novo and Others v Fundo de Garantia Salarial, IP | 19 |
| 2012/C 287/36 | Case C-311/12: Reference for a preliminary ruling from the Arbeitsgericht Nienburg (Germany) lodged on 27 June 2012 — Heinz Kassner v Mittelweser-Tiefbau GmbH & Co | 19 |
| 2012/C 287/37 | Case C-312/12: Reference for a preliminary ruling from the Tribunal du travail de Huy (Belgium) lodged on 28 June 2012 — Agim Ajdini v État belge, Service des Allocations aux Handicapés | 20 |
| 2012/C 287/38 | Case C-319/12: Reference for a preliminary ruling from the Naczelny Sąd Administracyjny (Poland) lodged on 2 July 2012 — Minister of Finance v MDDP Sp. z o.o., Akademia Biznesu, Sp. komandytowa | 21 |
| 2012/C 287/39 | Case C-321/12: Reference for a preliminary ruling from the Centrale Raad van Beroep (Netherlands), lodged on 2 July 2012 — F. van der Helder, D. Farrington v College voor zorgverzekeringen (Cvz) | 21 |
| 2012/C 287/40 | Case C-322/12: Reference for a preliminary ruling from the Cour de cassation (Belgium) lodged on 4 July 2012 — État belge — SPF Finances v GIMLE SA | 22 |
| 2012/C 287/41 | Case C-325/12: Action brought on 10 July 2012 — European Commission v Portuguese Republic | 22 |
| 2012/C 287/42 | Case C-329/12: Action brought on 11 July 2012 — European Commission v Federal Republic of Germany | 23 |
| 2012/C 287/43 | Case C-330/12: Action brought on 9 July 2012 — European Commission v Republic of Poland | 23 |
| 2012/C 287/44 | Case C-331/12: Action brought on 9 July 2012 — European Commission v Republic of Poland | 24 |
| 2012/C 287/45 | Case C-332/12: Action brought on 10 July 2012 — European Commission v Republic of Poland | 24 |
| 2012/C 287/46 | Case C-333/12: Action brought on 11 July 2012 — European Commission v Republic of Poland | 24 |
| 2012/C 287/47 | Case C-336/12: Reference for a preliminary ruling from the Østre Landsret lodged on 16 July 2012 — Ministeriet for Forskning, Innovation og Videregående Uddannelser v Manova A/S | 25 |
| 2012/C 287/48 | Case C-341/12 P: Appeal brought on 17 July 2012 by Mizuno KK against the judgment of the General Court (Fourth Chamber) of 8 May 2012 in Case T-101/11 Mizuno KK v Office for Harmonisation in the Internal Market (Trade Marks and Designs) | 25 |
| 2012/C 287/49 | Case C-344/12: Action brought on 18 July 2012 — European Commission v Italian Republic | 26 |
| 2012/C 287/50 | Case C-345/12: Action brought on 19 July 2012 — European Commission v Italian Republic | 26 |
| 2012/C 287/51 | Case C-346/12 P: Appeal brought on 19 July 2012 by DMK Deutsches Milchkontor GmbH (formerly Nordmilch AG) against the judgment of the General Court (Fourth Chamber) delivered on 22 May 2012 in Case T-546/10 Nordmilch AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) | 26 |
| 2012/C 287/52 | Case C-347/12: Reference for a preliminary ruling from the Cour de cassation du Grand-Duché de Luxembourg (Luxembourg), lodged on 20 July 2012 — Caisse nationale des prestations familiales v Ulrike Wiering, Markus Wiering | 27 |
| 2012/C 287/53 | Case C-348/12 P: Appeal brought on 16 July 2012 by Council of the European Union against the judgment of the General Court (Fourth Chamber) delivered on 25 April 2012 in Case T-509/10 Manufacturing Support & Procurement Kala Naft v Council | 27 |
| 2012/C 287/54 | Case C-353/12: Action brought on 25 July 2012 — European Commission v Italian Republic | 28 |
| 2012/C 287/55 | Case C-357/12 P: Appeal brought on 27 July 2012 by Harald Wohlfahrt against the judgment of the General Court (Fifth Chamber) delivered on 16 May 2012 in Case T-580/10 Harald Wohlfahrt v Office for Harmonisation in the Internal Market (Trade Marks and Designs) | 28 |
| 2012/C 287/56 | Case C-365/12 P: Appeal brought on 31 July 2012 by the European Commission against the judgment of the General Court (Fourth Chamber) delivered on 22 May 2012 in Case T-344/08 EnBW Energie Baden-Württemberg AG v European Commission | 29 |
| | General Court |
| 2012/C 287/57 | Case T-240/11: Order of the General Court of 17 July 2012 — L’Oréal v OHIM — United Global Media Group (MyBeauty TV) (Community trade mark — Opposition proceedings — Costs recoverable before OHIM — Costs of being represented by an employee — Article 85(1) of Regulation (EC) No 207/2009 — Action manifestly devoid of any basis in law) | 31 |
| 2012/C 287/58 | Case T-517/11: Order of the General Court of 17 July 2012 — United States Polo Association v OHIM — Polo/Lauren (Representation of two polo players) (Community trade mark — Partial refusal of registration — Withdrawal of the application for registration — No need to adjudicate) | 31 |
| 2012/C 287/59 | Case T-317/12: Action brought on 11 July 2012 — Holcim (Romania) v European Commission | 31 |
| 2012/C 287/60 | Case T-319/12: Action brought on 19 July 2012 — Spain v Commission | 32 |
| 2012/C 287/61 | Case T-321/12: Action brought on 20 July 2012 — Ciudad de la Luz and Sociedad Proyectos Temáticos de la Comunidad Valenciana v Commission | 32 |
| 2012/C 287/62 | Case T-327/12: Action brought on 16 July 2012 — Simca Europe v OHIM — PSA Peugeot Citroën (Simca) | 33 |
| 2012/C 287/63 | Case T-328/12: Action brought on 24 July 2012 — Mundipharma v OHIM — AFP Pharmaceuticals (Maxigesic) | 34 |
| 2012/C 287/64 | Case T-331/12: Action brought on 27 July 2012 — Sartorius Weighing Technology v OHIM (Representation of a yellow curve) | 34 |
| 2012/C 287/65 | Case T-332/12: Action brought on 23 July 2012 — ING Groep v Commission | 35 |
| 2012/C 287/66 | Case T-335/12: Action brought on 19 July 2012 — T&L Sugars and Sidul Açúcares v Commission | 35 |
| 2012/C 287/67 | Case T-336/12: Action brought on 1 August 2012 — Klizli v Council | 37 |
| 2012/C 287/68 | Case T-337/12: Action brought on 30 July 2012 — El Hogar Perfecto del Siglo XXI v OHIM — Wenf International Advisers (Corkscrews) | 38 |
| 2012/C 287/69 | Case T-343/12: Action brought on 30 July 2012 — Grupo T Diffusión v OHIM — ABR Producción Contemporánea (Lamps) | 38 |
| 2012/C 287/70 | Case T-349/12: Action brought on 1 August 2012 — Leiner v OHIM — Recaro (REVARO) | 39 |
| 2012/C 287/71 | Case T-82/11: Order of the General Court of 11 July 2012 — Formica v OHIM — Silicalia (CompacTop) | 39 |
| | European Union Civil Service Tribunal |
| 2012/C 287/72 | Case F-4/11: Judgment of the Civil Service Tribunal (First Chamber) of 10 July 2012 — AV v Commission (Civil service — Temporary agent — Recruitment — Medical cover deferment — Retroactive application of medical cover deferment — Opinion of invalidity committee) | 40 |
| 2012/C 287/73 | Case F-66/11: Judgment of the Civil Service Tribunal (Third Chamber) of 20 June 2012 — Cristina v Commission (Civil service — Open competition — Decision of the selection board in the competition not to admit the applicant to the tests — Remedies — Court action brought without waiting for a decision on the administrative complaint — Admissibility — Specific conditions for entry to the competition — Professional experience required) | 40 |
| 2012/C 287/74 | Case F-83/11: Judgment of the Civil Service Tribunal (Third Chamber) of 20 June 2012 — Cristina v Commission (Civil service — Open competition — Decision of the selection board in the competition not to admit the applicant to the tests — Remedies — Court action brought without waiting for a decision on the administrative complaint — Admissibility — Specific conditions for entry to the competition — Professional experience related to the nature of the duties) | 40 |
| 2012/C 287/75 | Case F-22/11: Order of the Civil Service Tribunal (First Chamber) of 12 July 2012 — Conticchio v Commission (Civil service — Officials — Pensions — Calculation of pension rights — Classification by step — Preliminary plea of illegality — Whether admissible) | 41 |
| 2012/C 287/76 | Case F-75/12: Action brought on 20 July 2012 — ZZ and ZZ v Commission | 41 |
| 2012/C 287/77 | Case F-76/12: Action brought on 20 July 2012 — ZZ v Commission | 41 |
| 2012/C 287/78 | Case F-129/11: Order of the Civil Service Tribunal of 28 June 2012 — BH v Commission | 42 |
| 2012/C 287/79 | Case F-139/11: Order of the Civil Service Tribunal of 28 June 2012 — BJ v Commission | 42 |
| 2012/C 287/80 | Case F-140/11: Order of the Civil Service Tribunal of 28 June 2012 — BK v Commission | 42 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2012/C 287/02

Case C-269/09: Judgment of the Court (First Chamber) of 12 July 2012 — European Commission v Kingdom of Spain (Failure of a Member State to fulfil obligations — Articles 18 EC, 39 EC and 43 EC — Articles 28 and 31 of the EEA Agreement — Tax legislation — Transfer abroad of a taxpayer’s residence — Obligation to include any income not yet charged to tax in the tax base for the preceding tax year — Loss of the advantage to be gained by deferring the tax debt)

2

2012/C 287/03

Case C-318/10: Judgment of the Court (First Chamber) of 5 July 2012 (reference for a preliminary ruling from the Cour de cassation — Belgium) — Société d’investissement pour l’agriculture tropicale SA (SIAT) v État belge (Freedom to provide services — Tax legislation — Deduction as business expenses of expenses incurred as payment for the provision of services — Expenses incurred in relation to a service provider established in another Member State in which that provider is not subject to tax on income or is subject there to a tax regime which is appreciably more advantageous — Deductibility conditional upon the provision of proof of the genuine and proper nature of the services and the normal nature of the related payments — Obstacle — Justification — Combating tax evasion and avoidance — Effectiveness of fiscal supervision — Balanced allocation between Member States of the power to impose taxes — Proportionality)

2

2012/C 287/04

Case C-378/10: Judgment of the Court (Third Chamber) of 12 July 2012 (reference for a preliminary ruling from the Legfelsőbb Bíróság — Hungary) — Application to register a company made by VALE Építési kft (Articles 49 TFEU and 54 TFEU — Freedom of establishment — Principles of equivalence and effectiveness — Cross-border conversion — Refusal to add to register)

3

2012/C 287/05

Case C-509/10: Judgment of the Court (First Chamber) of 5 July 2012 (reference for a preliminary ruling from the Bundesgerichtshof — Germany) — Josef Geistbeck, Thomas Geistbeck v Saatgut-Treuhandverwaltungs GmbH (Intellectual and industrial property — Community plant variety rights — Regulation (EC) No 2100/94 — Farmer’s privilege — Concept of reasonable compensation — Compensation for damage suffered — Infringement)

3

2012/C 287/06

Case C-527/10: Judgment of the Court (First Chamber) of 5 July 2012 (reference for a preliminary ruling from the Legfelsőbb Bíróság — Hungary) — ERSTE Bank Hungary Nyrt v Magyar Állam, BCL Trading GmbH, ERSTE Befektetési Zrt (Judicial cooperation in civil matters — Insolvency proceedings — Regulation (EC) No 1346/2000 — Article 5(1) — Temporal application — Action in rem brought in a State not a member of the European Union — Insolvency proceedings opened against the debtor in another Member State — First State became a member of the European Union — Applicability)

4

2012/C 287/07

Case C-558/10: Judgment of the Court (Third Chamber) of 5 July 2012 (reference for a preliminary ruling from the Tribunal de grande instance de Chartres — France) — Michel Bourgès-Maunoury, Marie-Louise Heintz, wife of Mr Bourgès-Maunoury v Direction des services fiscaux d’Eure-et-Loir (Privileges and immunities of the European Communities — Exemption from national taxes on salaries paid by the European Union — Inclusion of income paid by the European Union in the calculation of the cap for wealth tax)

5

2012/C 287/08

Case C-562/10: Judgment of the Court (Second Chamber) of 12 July 2012 — European Commission v Federal Republic of Germany (Action for failure to fulfil obligations — Article 56 TFEU — German legislation regarding care insurance — Benefits in kind for assistance at home are unavailable where the person reliant on care is temporarily staying in another Member State — Lower level of exportable cash benefits — Failure to reimburse hire costs of care equipment in other Member States)

5

2012/C 287/09

Case C-602/10: Judgment of the Court (Fourth Chamber) of 12 July 2012 (reference for a preliminary ruling from the Judecătoria Călărași — Romania) — SC Volksbank România SA v Autoritatea Națională pentru Protecția Consumatorilor — Comisariatul Județean pentru Protecția Consumatorilor Călărași (CJPC) (Consumer protection — Credit agreements for consumers — Directive 2008/48/EC — Articles 22, 24 and 30 — National legislation designed to transpose that directive — Applicability to agreements not included in the material and temporal scope of the directive — Obligations not provided for by the directive — Limitation on the bank charges capable of being levied by the creditor — Articles 56 TFEU, 58 TFEU and 63 TFEU — Obligation to put in place, in national law, adequate and effective out-of-court dispute resolution procedures)

6

2012/C 287/10

Joined Cases C-608/10, C-10/11 and C-23/11: Judgment of the Court (First Chamber) of 12 July 2012 (references for a preliminary ruling from the Finanzgericht Hamburg — Germany) — Südzucker AG (C-608/10), WEGO Landwirtschaftliche Schlachtstellen GmbH (C-10/11), Fleischkontor Moksel GmbH (C-23/11) v Hauptzollamt Hamburg-Jonas (Agriculture — Export refunds — Incorrect indication of the exporter in the export declaration — National legislation making entitlement to an export refund subject to the entry of the applicant as the exporter in the export declaration — Correction of the export declaration after the goods have been released)

6

2012/C 287/11

Case C-616/10: Judgment of the Court (Third Chamber) of 12 July 2012 (reference for a preliminary ruling from the Rechtbank ‘s-Gravenhage — Netherlands) — Solvay SA v Honeywell Fluorine Products Europe BV, Honeywell Belgium NV, Honeywell Europe NV (Judicial cooperation in civil matters — Jurisdiction, recognition and enforcement of judgments — Regulation (EC) No 44/2001 — Action for infringement of a European patent — Special and exclusive jurisdiction — Article 6(1) — More than one defendant — Article 22(4) — Validity of the patent called into question — Article 31 — Provisional, including protective, measures)

7

2012/C 287/12

Case C-49/11: Judgment of the Court (Third Chamber) of 5 July 2012 (reference for a preliminary ruling from the Oberlandesgericht Wien — Austria) — Content Services Ltd v Bundesarbeitskammer (Reference for a preliminary ruling — Directive 97/7/EC — Consumer protection — Distance contracts — Consumer information — Information given or received — Durable medium — Meaning — Hyperlink on the website of the supplier — Right of withdrawal)

8

2012/C 287/13

Joined Cases C-55/11, C-57/11 and C-58/11: Judgment of the Court (Fourth Chamber) of 12 July 2012 (reference for a preliminary ruling from the Tribunal Supremo — Spain) — Vodafone España SA v Ayuntamiento de Santa Amalia (C-55/11), Ayuntamiento de Tudela (C-57/11), and France Telecom España SA v Ayuntamiento de Torremayor (C-58/11) (Directive 2002/20/EC — Electronic communications networks and services — Authorisation — Article 13 — Fees for rights of use and rights to install facilities)

8

2012/C 287/14

Case C-59/11: Judgment of the Court (Third Chamber) of 12 July 2012 (reference for a preliminary ruling from the Cour d’appel de Nancy — France) — Association Kokopelli v Graines Baumaux SAS (Agriculture — Directives 98/95/EC, 2002/53/EC, 2002/55/EC and 2009/145/EC — Validity — Vegetables — Sale on the national seed market of vegetable seed not included in the official common catalogue of varieties of vegetable species — Non-compliance with system of prior authorisation for marketing — International Treaty on Plant Genetic Resources for Food and Agriculture — Principle of proportionality — Freedom to conduct a business — Free movement of goods — Equal treatment)

9

2012/C 287/15

Case C-79/11: Judgment of the Court (Second Chamber) of 12 July 2012 (reference for a preliminary ruling from the Tribunale di Firenze — Italy) — Criminal proceedings against Maurizio Giovanardi and Others (Police and judicial cooperation in criminal matters — Framework Decision 2001/220/JHA — Standing of victims in criminal proceedings — Directive 2004/80/EC — Compensation to victims of crime — Liability of a legal person — Compensation in criminal proceedings)

10

2012/C 287/16

Case C-128/11: Judgment of the Court (Grand Chamber) of 3 July 2012 (reference for a preliminary ruling from the Bundesgerichtshof — Germany) — UsedSoft GmbH v Oracle International Corp. (Legal protection of computer programs — Marketing of used licences for computer programs downloaded from the internet — Directive 2009/24/EC — Articles 4(2) and 5(1) — Exhaustion of the distribution right — Concept of lawful acquirer)

10

2012/C 287/17

Case C-138/11: Judgment of the Court (Third Chamber) of 12 July 2012 (reference for a preliminary ruling from the Oberster Gerichtshof — Austria) — Compass-Datenbank GmbH v Republik Österreich (Competition — Article 102 TFEU — Concept of undertaking — Data of the companies register stored in a database — Activity of collection and making available of that data in return for remuneration — Refusal by the public authorities to authorise re-utilisation of that data — Sui generis right provided for in Article 7 of Directive 96/9/EC)

11

2012/C 287/18

Case C-141/11: Judgment of the Court (Second Chamber) of 5 July 2012 (reference for a preliminary ruling from the Södertörns tingsrätt — Sweden) — Torsten Hörnfeldt v Posten Meddelande AB (Equal treatment in employment and occupation — Prohibition of discrimination on grounds of age — National legislation conferring on employees an unconditional right to work until the age of 67 and providing for automatic termination of the employment relationship at the end of the month in which the employee reaches that age — Account not taken of the amount of the retirement pension)

11

2012/C 287/19

Case C-146/11: Judgment of the Court (Second Chamber) of 12 July 2012 (reference for a preliminary ruling from the Riigikohus — Estonia) — AS Pimix, in liquidation v Maksu- ja Tolliameti Lõuna maksu- ja tollikeskus, Põllumajandusministeerium (Accession of new Member States — Setting the charge on surplus stocks of agricultural products — Reference, in a provision of national law, to a provision of a European Union regulation not duly published in the OJ in the language of the Member State in question)

12

2012/C 287/20

Case C-171/11: Judgment of the Court (Fourth Chamber) of 12 July 2012 (reference for a preliminary ruling from the Oberlandesgericht Düsseldorf — Germany) — Fra.bo SpA v Deutsche Vereinigung des Gas- und Wasserfaches eV (DVGW) — Technisch-Wissenschaftlicher Verein (Free movement of goods — Measures having equivalent effect to a quantitative restriction — National certification procedure — Presumption of compliance with national law — Applicability of Article 28 EC to a private-law certification body)

12

2012/C 287/21

Case C-176/11: Judgment of the Court (Fourth Chamber) of 12 July 2012 (reference for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — HIT hoteli, igralnice, turizem dd Nova Gorica and HIT LARIX, prirejanje posebnih iger na srečo in turizem dd v Bundesminister für Finanzen (Article 56 TFEU — Restriction on the freedom to provide services — Games of chance — Legislation of a Member State prohibiting the advertising of casinos located in other States if the level of legal protection for gamblers in those States is not equivalent to that ensured at national level — Justification — Overriding reasons in the public interest — Proportionality)

13

2012/C 287/22

Case C-181/11 P: Judgment of the Court (Sixth Chamber) of 12 July 2012 — Compañía Española de Tabaco en Rama, SA (Cetarsa) v European Commission (Appeal — Competition — Agreements — Spanish market for the purchase and first processing of raw tobacco — Decision finding an infringement of Article 81 EC — Price fixing and market sharing — Fines — Equal treatment — Maximum limit of 10 % of turnover — Cooperation — Distortion of evidence — Manifest error of assessment — Failure to state reasons)

13

2012/C 287/23

Case C-259/11: Judgment of the Court (Sixth Chamber) of 5 July 2012 (reference for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — DTZ Zadelhoff vof v Staatssecretaris van Financiën (Sixth VAT Directive — Articles 5(3)(c) and 13B(d)(5) — Negotiation of a transaction involving the transfer of company shares — Transaction which also entails the transfer of the ownership of immovable property held by such companies — Exemption)

14

2012/C 287/24

Case C-284/11: Judgment of the Court (Second Chamber) of 12 July 2012 (reference for a preliminary ruling from the Varhoven administrativen sad — Bulgaria) — EMS-Bulgaria Transport OOD v Direktor na Direktsia Obzhalvane i upravlenie na izpalnenieto Plovdiv (VAT — Directive 2006/112/EC — Right to deduct — Limitation period for the exercise of the right to deduct VAT — Principle of effectiveness — Refusal of the right to deduct VAT — Principle of fiscal neutrality)

14

2012/C 287/25

Case C-291/11: Judgment of the Court (Third Chamber) of 12 July 2012 (reference for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Staatssecretaris van Financiën v TNT Freight Management (Amsterdam) BV (Common Customs Tariff — Combined Nomenclature — Tariff headings 3002 and 3502 — Blood albumin prepared for therapeutic or prophylactic uses — Processing of the product)

15

2012/C 287/26

Case C-311/11 P: Judgment of the Court (Fifth Chamber) of 12 July 2012 — Smart Technologies ULC v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Appeals — Community trade mark — Regulation (EC) No 40/94 — Article 7(1)(b) — Word mark WIR MACHEN DAS BESONDERE EINFACH — Mark consisting of an advertising slogan — Distinctive character — Refusal to register)

15

2012/C 287/27

Case C-326/11: Judgment of the Court (Fourth Chamber) of 12 July 2012 (reference for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — J.J. Komen en Zonen Beheer Heerhugowaard BV v Staatssecretaris van Financiën (Sixth VAT Directive — Article 13B(g), read in conjunction with Article 4(3)(a) — Supply of buildings and the land upon which they stand — Supply of a building undergoing work with the view to the creation of a new building by transformation — Continuation and completion of the work by the purchaser after the supply — Exemption from VAT)

16

2012/C 287/28

Case C-212/12: Reference for a preliminary ruling from the Amtsgericht Düsseldorf (Germany) lodged on 4 May 2012 — Helmut Butz, Christel Bachman-Butz, Frederike Butz v Société Air France SA

16

2012/C 287/29

Case C-220/12: Reference for a preliminary ruling from the Verwaltungsgericht Hannover (Germany) lodged on 11 May 2012 — Andreas Ingemar Thiele Meneses v Region Hannover

16

2012/C 287/30

Case C-278/12: Reference for a preliminary ruling from the Raad van State (Netherlands), lodged on 4 June 2012 — A. Adil; other party: Minister voor Immigratie, Integratie en Asiel

17

2012/C 287/31

Case C-300/12: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 20 June 2012 — Finanzamt Düsseldorf-Mitte v Ibero Tours GmbH

17

2012/C 287/32

Case C-302/12: Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 20 June 2012 — X; other party: Minister van Financiën

18

2012/C 287/33

Case C-303/12: Reference for a preliminary ruling from the Tribunal de première instance de Liège (Belgium) lodged on 21 June 2012 — Guido Imfeld, Nathalie Garcet v État belge

18

2012/C 287/34

Case C-306/12: Reference for a preliminary ruling from the Landgericht Saarbrücken (Germany) lodged on 26 June 2012 — Spedition Welter GmbH v Avanssur S.A.

18

2012/C 287/35

Case C-309/12: Reference for a preliminary ruling from the Tribunal Central Administrativo Norte (Portugal) lodged on 27 June 2012 — Maria Albertina Gomes Viana Novo and Others v Fundo de Garantia Salarial, IP

19

2012/C 287/36

Case C-311/12: Reference for a preliminary ruling from the Arbeitsgericht Nienburg (Germany) lodged on 27 June 2012 — Heinz Kassner v Mittelweser-Tiefbau GmbH & Co

19

2012/C 287/37

Case C-312/12: Reference for a preliminary ruling from the Tribunal du travail de Huy (Belgium) lodged on 28 June 2012 — Agim Ajdini v État belge, Service des Allocations aux Handicapés

20

2012/C 287/38

Case C-319/12: Reference for a preliminary ruling from the Naczelny Sąd Administracyjny (Poland) lodged on 2 July 2012 — Minister of Finance v MDDP Sp. z o.o., Akademia Biznesu, Sp. komandytowa

21

2012/C 287/39

Case C-321/12: Reference for a preliminary ruling from the Centrale Raad van Beroep (Netherlands), lodged on 2 July 2012 — F. van der Helder, D. Farrington v College voor zorgverzekeringen (Cvz)

21

2012/C 287/40

Case C-322/12: Reference for a preliminary ruling from the Cour de cassation (Belgium) lodged on 4 July 2012 — État belge — SPF Finances v GIMLE SA

22

2012/C 287/41

Case C-325/12: Action brought on 10 July 2012 — European Commission v Portuguese Republic

22

2012/C 287/42

Case C-329/12: Action brought on 11 July 2012 — European Commission v Federal Republic of Germany

23

2012/C 287/43

Case C-330/12: Action brought on 9 July 2012 — European Commission v Republic of Poland

23

2012/C 287/44

Case C-331/12: Action brought on 9 July 2012 — European Commission v Republic of Poland

24

2012/C 287/45

Case C-332/12: Action brought on 10 July 2012 — European Commission v Republic of Poland

24

2012/C 287/46

Case C-333/12: Action brought on 11 July 2012 — European Commission v Republic of Poland

24

2012/C 287/47

Case C-336/12: Reference for a preliminary ruling from the Østre Landsret lodged on 16 July 2012 — Ministeriet for Forskning, Innovation og Videregående Uddannelser v Manova A/S

25

2012/C 287/48

Case C-341/12 P: Appeal brought on 17 July 2012 by Mizuno KK against the judgment of the General Court (Fourth Chamber) of 8 May 2012 in Case T-101/11 Mizuno KK v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Mizuno KK

25

2012/C 287/49

Case C-344/12: Action brought on 18 July 2012 — European Commission v Italian Republic

26

2012/C 287/50

Case C-345/12: Action brought on 19 July 2012 — European Commission v Italian Republic

26

2012/C 287/51

Case C-346/12 P: Appeal brought on 19 July 2012 by DMK Deutsches Milchkontor GmbH (formerly Nordmilch AG) against the judgment of the General Court (Fourth Chamber) delivered on 22 May 2012 in Case T-546/10 Nordmilch AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

26

2012/C 287/52

Case C-347/12: Reference for a preliminary ruling from the Cour de cassation du Grand-Duché de Luxembourg (Luxembourg), lodged on 20 July 2012 — Caisse nationale des prestations familiales v Ulrike Wiering, Markus Wiering

27

2012/C 287/53

Case C-348/12 P: Appeal brought on 16 July 2012 by Council of the European Union against the judgment of the General Court (Fourth Chamber) delivered on 25 April 2012 in Case T-509/10 Manufacturing Support & Procurement Kala Naft v Council

Manufacturing Support & Procurement Kala Naft v Council

27

2012/C 287/54

Case C-353/12: Action brought on 25 July 2012 — European Commission v Italian Republic

28

2012/C 287/55

Case C-357/12 P: Appeal brought on 27 July 2012 by Harald Wohlfahrt against the judgment of the General Court (Fifth Chamber) delivered on 16 May 2012 in Case T-580/10 Harald Wohlfahrt v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

28

2012/C 287/56

Case C-365/12 P: Appeal brought on 31 July 2012 by the European Commission against the judgment of the General Court (Fourth Chamber) delivered on 22 May 2012 in Case T-344/08 EnBW Energie Baden-Württemberg AG v European Commission

29

General Court

2012/C 287/57

Case T-240/11: Order of the General Court of 17 July 2012 — L’Oréal v OHIM — United Global Media Group (MyBeauty TV) (Community trade mark — Opposition proceedings — Costs recoverable before OHIM — Costs of being represented by an employee — Article 85(1) of Regulation (EC) No 207/2009 — Action manifestly devoid of any basis in law)

31

2012/C 287/58

Case T-517/11: Order of the General Court of 17 July 2012 — United States Polo Association v OHIM — Polo/Lauren (Representation of two polo players) (Community trade mark — Partial refusal of registration — Withdrawal of the application for registration — No need to adjudicate)

31

2012/C 287/59

Case T-317/12: Action brought on 11 July 2012 — Holcim (Romania) v European Commission

31

2012/C 287/60

Case T-319/12: Action brought on 19 July 2012 — Spain v Commission

32

2012/C 287/61

Case T-321/12: Action brought on 20 July 2012 — Ciudad de la Luz and Sociedad Proyectos Temáticos de la Comunidad Valenciana v Commission

32

2012/C 287/62

Case T-327/12: Action brought on 16 July 2012 — Simca Europe v OHIM — PSA Peugeot Citroën (Simca)

33

2012/C 287/63

Case T-328/12: Action brought on 24 July 2012 — Mundipharma v OHIM — AFP Pharmaceuticals (Maxigesic)

34

2012/C 287/64

Case T-331/12: Action brought on 27 July 2012 — Sartorius Weighing Technology v OHIM (Representation of a yellow curve)

34

2012/C 287/65

Case T-332/12: Action brought on 23 July 2012 — ING Groep v Commission

35

2012/C 287/66

Case T-335/12: Action brought on 19 July 2012 — T&L Sugars and Sidul Açúcares v Commission

35

2012/C 287/67

Case T-336/12: Action brought on 1 August 2012 — Klizli v Council

37

2012/C 287/68

Case T-337/12: Action brought on 30 July 2012 — El Hogar Perfecto del Siglo XXI v OHIM — Wenf International Advisers (Corkscrews)

38

2012/C 287/69

Case T-343/12: Action brought on 30 July 2012 — Grupo T Diffusión v OHIM — ABR Producción Contemporánea (Lamps)

38

2012/C 287/70

Case T-349/12: Action brought on 1 August 2012 — Leiner v OHIM — Recaro (REVARO)

39

2012/C 287/71

Case T-82/11: Order of the General Court of 11 July 2012 — Formica v OHIM — Silicalia (CompacTop)

39

European Union Civil Service Tribunal

2012/C 287/72

Case F-4/11: Judgment of the Civil Service Tribunal (First Chamber) of 10 July 2012 — AV v Commission (Civil service — Temporary agent — Recruitment — Medical cover deferment — Retroactive application of medical cover deferment — Opinion of invalidity committee)

40

2012/C 287/73

Case F-66/11: Judgment of the Civil Service Tribunal (Third Chamber) of 20 June 2012 — Cristina v Commission (Civil service — Open competition — Decision of the selection board in the competition not to admit the applicant to the tests — Remedies — Court action brought without waiting for a decision on the administrative complaint — Admissibility — Specific conditions for entry to the competition — Professional experience required)

40

2012/C 287/74

Case F-83/11: Judgment of the Civil Service Tribunal (Third Chamber) of 20 June 2012 — Cristina v Commission (Civil service — Open competition — Decision of the selection board in the competition not to admit the applicant to the tests — Remedies — Court action brought without waiting for a decision on the administrative complaint — Admissibility — Specific conditions for entry to the competition — Professional experience related to the nature of the duties)

40

2012/C 287/75

Case F-22/11: Order of the Civil Service Tribunal (First Chamber) of 12 July 2012 — Conticchio v Commission (Civil service — Officials — Pensions — Calculation of pension rights — Classification by step — Preliminary plea of illegality — Whether admissible)

41

2012/C 287/76

Case F-75/12: Action brought on 20 July 2012 — ZZ and ZZ v Commission

41

2012/C 287/77

Case F-76/12: Action brought on 20 July 2012 — ZZ v Commission

41

2012/C 287/78

Case F-129/11: Order of the Civil Service Tribunal of 28 June 2012 — BH v Commission

42

2012/C 287/79

Case F-139/11: Order of the Civil Service Tribunal of 28 June 2012 — BJ v Commission

42

2012/C 287/80

Case F-140/11: Order of the Civil Service Tribunal of 28 June 2012 — BK v Commission

42

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

EN

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

| 22.9.2012 | EN | Official Journal of the European Union | C 287/1 |
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22.9.2012

EN

Official Journal of the European Union

C 287/1

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2012/C 287/01

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

OJ C 273, 8.9.2012

Past publications

OJ C 258, 25.8.2012

OJ C 250, 18.8.2012

OJ C 243, 11.8.2012

OJ C 235, 4.8.2012

OJ C 227, 28.7.2012

OJ C 217, 21.7.2012

These texts are available on:

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

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V Announcements

COURT PROCEEDINGS

Court of Justice

| 22.9.2012 | EN | Official Journal of the European Union | C 287/2 |
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22.9.2012

EN

Official Journal of the European Union

C 287/2

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Judgment of the Court (First Chamber) of 12 July 2012 — European Commission v Kingdom of Spain

(Case C-269/09) (1)

(Failure of a Member State to fulfil obligations - Articles 18 EC, 39 EC and 43 EC - Articles 28 and 31 of the EEA Agreement - Tax legislation - Transfer abroad of a taxpayer’s residence - Obligation to include any income not yet charged to tax in the tax base for the preceding tax year - Loss of the advantage to be gained by deferring the tax debt)

2012/C 287/02

Language of the case: Spanish

Parties

Applicant: European Commission (represented by: R. Lyal and F. Jimeno Fernández, Agents)

Defendant: Kingdom of Spain (represented by: M. Muñoz Pérez, Agent)

Intervener in support of the defendant: Federal Republic of Germany (represented by: M. Lumma and C. Blaschke, and by K. Petersen, Agents), Kingdom of the Netherlands (represented by: C. Wissels and M. de Ree, Agents), Portuguese Republic (represented by: L. Inez Fernandes, Agent)

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 19 EC, 38 EC and 43 EC and of Articles 28 and 31 of the EEA Agreement — Taxpayers transferring their residence abroad — Obligation to include all income not yet charged to tax in the tax base for the last tax year during which they were considered to be resident taxpayers

Operative part of the judgment

The Court:

| 1. | Declares that the Kingdom of Spain has failed to fulfil its obligations under Articles 18 EC, 39 EC and 43 EC, by adopting and maintaining in Article 14(3) of Law 35/2006 on personal income tax and amending in part the laws on the taxation of corporations, of the income of non-residents and of wealth (Ley 35/2006 del Impuesto sobre la Renta de las Personas Físicas y de modificación parcial de las leyes de los Impuestos sobre Sociedades, sobre la Renta de no residentes y sobre el Patrimonio) of 28 November 2006, a provision under which taxpayers who transfer their residence to another Member State must include, in the tax base for the last tax year in which they were treated as resident taxpayers, any income not yet charged to tax; |
| --- | --- |

1.

Declares that the Kingdom of Spain has failed to fulfil its obligations under Articles 18 EC, 39 EC and 43 EC, by adopting and maintaining in Article 14(3) of Law 35/2006 on personal income tax and amending in part the laws on the taxation of corporations, of the income of non-residents and of wealth (Ley 35/2006 del Impuesto sobre la Renta de las Personas Físicas y de modificación parcial de las leyes de los Impuestos sobre Sociedades, sobre la Renta de no residentes y sobre el Patrimonio) of 28 November 2006, a provision under which taxpayers who transfer their residence to another Member State must include, in the tax base for the last tax year in which they were treated as resident taxpayers, any income not yet charged to tax;

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

2.

Dismisses the action as to the remainder;

| 3. | Orders the Kingdom of Spain to pay three-quarters of the costs, and the European Commission to pay the remaining quarter; |
| --- | --- |

3.

Orders the Kingdom of Spain to pay three-quarters of the costs, and the European Commission to pay the remaining quarter;

| 4. | Orders the Federal Republic of Germany, the Kingdom of the Netherlands and the Portuguese Republic to bear their own costs. |
| --- | --- |

4.

Orders the Federal Republic of Germany, the Kingdom of the Netherlands and the Portuguese Republic to bear their own costs.

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(1)  OJ C 220, 12.9.2009.

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/2 |
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22.9.2012

EN

Official Journal of the European Union

C 287/2

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Judgment of the Court (First Chamber) of 5 July 2012 (reference for a preliminary ruling from the Cour de cassation — Belgium) — Société d’investissement pour l’agriculture tropicale SA (SIAT) v État belge

(Case C-318/10) (1)

(Freedom to provide services - Tax legislation - Deduction as business expenses of expenses incurred as payment for the provision of services - Expenses incurred in relation to a service provider established in another Member State in which that provider is not subject to tax on income or is subject there to a tax regime which is appreciably more advantageous - Deductibility conditional upon the provision of proof of the genuine and proper nature of the services and the normal nature of the related payments - Obstacle - Justification - Combating tax evasion and avoidance - Effectiveness of fiscal supervision - Balanced allocation between Member States of the power to impose taxes - Proportionality)

2012/C 287/03

Language of the case: French

Referring court

Cour de cassation

Parties to the main proceedings

Applicant: Société d’investissement pour l’agriculture tropicale SA (SIAT)

Defendant: État belge

Re:

Reference for a preliminary ruling — Cour de cassation — Interpretation of Article 49 EC — Tax legislation allowing the deduction of business expenses incurred by a resident taxpayer, but not allowing the deduction of such expenses if the taxpayer resides or is established in another Member State in which that taxpayer is not subject to any tax on income or is subject there to a tax regime which is appreciably more advantageous — Restriction on the freedom to provide services

Operative part of the judgment

Article 49 EC must be interpreted as precluding legislation of a Member State, such as the legislation at issue in the main proceedings, under which payments made by a resident taxpayer to a non-resident company for supplies or services are not to be regarded as deductible business expenses where the non-resident company is not subject, in the Member State of establishment, to tax on income or is subject, as regards the relevant income, to a tax regime which is appreciably more advantageous than the applicable regime in the former Member State, unless the taxpayer proves that such payments relate to genuine and proper transactions and do not exceed the normal limits, whereas, under the general rule, such payments are to be regarded as deductible business expenses if they are necessary for acquiring or retaining taxable income and if the taxpayer demonstrates the authenticity and amount of those expenses.

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(1)  OJ C 246, 11.9.2010.

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/3 |
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22.9.2012

EN

Official Journal of the European Union

C 287/3

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Judgment of the Court (Third Chamber) of 12 July 2012 (reference for a preliminary ruling from the Legfelsőbb Bíróság — Hungary) — Application to register a company made by VALE Építési kft

(Case C-378/10) (1)

(Articles 49 TFEU and 54 TFEU - Freedom of establishment - Principles of equivalence and effectiveness - Cross-border conversion - Refusal to add to register)

2012/C 287/04

Language of the case: Hungarian

Referring court

Legfelsőbb Bíróság

Parties to the main proceedings

VALE Építési kft

Re:

Reference for a preliminary ruling — Magyar Köztársaság Legfelsőbb Bíróság — Interpretation of Articles 267 EC and 48 EC — Movement of a company governed by the law of a Member State to another Member State, thereby changing the national law applicable — National legislation which refuses to record in the companies register the predecessor in law of a company established in another Member State

Operative part of the judgment

| 1. | Articles 49 TFEU and 54 TFEU are to be interpreted as precluding national legislation which enables companies established under national law to convert, but does not allow, in a general manner, companies governed by the law of another Member State to convert to companies governed by national law by incorporating such a company. |
| --- | --- |

1.

Articles 49 TFEU and 54 TFEU are to be interpreted as precluding national legislation which enables companies established under national law to convert, but does not allow, in a general manner, companies governed by the law of another Member State to convert to companies governed by national law by incorporating such a company.

| 2. | Articles 49 TFEU and 54 TFEU are to be interpreted, in the context of cross border company conversions, as meaning that the host Member State is entitled to determine the national law applicable to such operations and thus to apply the provisions of its national law on the conversion of national companies governing the incorporation and functioning of companies, such as the requirements relating to the drawing up of lists of assets and liabilities and property inventories. However, the principles of equivalence and effectiveness, respectively, preclude the host Member State from






  — | refusing, in relation to cross border conversions, to record the company which has applied to convert as the ‘predecessor in law’, if such a record is made of the predecessor company in the commercial register for domestic conversions, and |
| --- | --- | --- |

2.

Articles 49 TFEU and 54 TFEU are to be interpreted, in the context of cross border company conversions, as meaning that the host Member State is entitled to determine the national law applicable to such operations and thus to apply the provisions of its national law on the conversion of national companies governing the incorporation and functioning of companies, such as the requirements relating to the drawing up of lists of assets and liabilities and property inventories. However, the principles of equivalence and effectiveness, respectively, preclude the host Member State from

—

refusing, in relation to cross border conversions, to record the company which has applied to convert as the ‘predecessor in law’, if such a record is made of the predecessor company in the commercial register for domestic conversions, and

| — | refusing to take due account, when examining a company’s application for registration, of documents obtained from the authorities of the Member State of origin. |
| --- | --- |

—

refusing to take due account, when examining a company’s application for registration, of documents obtained from the authorities of the Member State of origin.

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(1)  OJ C 317, 20.11.2010.

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/3 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/3

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Judgment of the Court (First Chamber) of 5 July 2012 (reference for a preliminary ruling from the Bundesgerichtshof — Germany) — Josef Geistbeck, Thomas Geistbeck v Saatgut-Treuhandverwaltungs GmbH

(Case C-509/10) (1)

(Intellectual and industrial property - Community plant variety rights - Regulation (EC) No 2100/94 - ‘Farmer’s privilege’ - Concept of ‘reasonable compensation’ - Compensation for damage suffered - Infringement)

2012/C 287/05

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicants: Josef Geistbeck, Thomas Geistbeck

Defendant: Saatgut-Treuhandverwaltungs GmbH

Re:

Reference for a preliminary ruling — Bundesgerichtshof — Interpretation of Article 14(3) and Article 94(1) and (2) of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ 1994 L 227, p. 1) and of Articles 5 and 8 of Commission Regulation (EC) No 1768/95 of 24 July 1995 implementing rules on the agricultural exemption provided for in Article 14(3) of Regulation (EC) No 2100/94 (OJ 1995 L 173, p. 14) — Community plant variety rights — Infringement — Obligation to pay the holder of such rights reasonable compensation and to compensate him for damage — Criteria for determining the damage and reasonable compensation

Operative part of the judgment

| 1. | In order to determine the ‘reasonable compensation’ payable, under Article 94(1) of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights, by a farmer who has used the propagating material of a protected variety obtained through planting and has not fulfilled his obligations under Article 14(3) of that regulation, read in conjunction with Article 8 of Commission Regulation (EC) No 1768/95 of 24 July 1995 implementing rules on the agricultural exemption provided for in Article 14(3) of Regulation (EC) No 2100/94, as amended by Commission Regulation (EC) No 2605/98 of 3 December 1998, it is appropriate to base the calculation on the amount of the fee payable for the licensed production of propagating material of protected varieties of the plant species concerned in the same area. |
| --- | --- |

1.

In order to determine the ‘reasonable compensation’ payable, under Article 94(1) of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights, by a farmer who has used the propagating material of a protected variety obtained through planting and has not fulfilled his obligations under Article 14(3) of that regulation, read in conjunction with Article 8 of Commission Regulation (EC) No 1768/95 of 24 July 1995 implementing rules on the agricultural exemption provided for in Article 14(3) of Regulation (EC) No 2100/94, as amended by Commission Regulation (EC) No 2605/98 of 3 December 1998, it is appropriate to base the calculation on the amount of the fee payable for the licensed production of propagating material of protected varieties of the plant species concerned in the same area.

| 2. | The payment of compensation for costs incurred for monitoring compliance with the rights of the plant variety holder cannot enter into the calculation of the ‘reasonable compensation’ provided for under Article 94(1) of Regulation No 2100/94. |
| --- | --- |

2.

The payment of compensation for costs incurred for monitoring compliance with the rights of the plant variety holder cannot enter into the calculation of the ‘reasonable compensation’ provided for under Article 94(1) of Regulation No 2100/94.

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(1)  OJ C 30, 29.1.2011.

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/4 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/4

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Judgment of the Court (First Chamber) of 5 July 2012 (reference for a preliminary ruling from the Legfelsőbb Bíróság — Hungary) — ERSTE Bank Hungary Nyrt v Magyar Állam, BCL Trading GmbH, ERSTE Befektetési Zrt

(Case C-527/10) (1)

(Judicial cooperation in civil matters - Insolvency proceedings - Regulation (EC) No 1346/2000 - Article 5(1) - Temporal application - Action in rem brought in a State not a member of the European Union - Insolvency proceedings opened against the debtor in another Member State - First State became a member of the European Union - Applicability)

2012/C 287/06

Language of the case: Hungarian

Referring court

Legfelsőbb Bíróság

Parties to the main proceedings

Applicant: ERSTE Bank Hungary Nyrt

Defendant: Magyar Állam, BCL Trading GmbH, ERSTE Befektetési Zrt

Re:

Reference for a preliminary ruling — Legfelsőbb Bíróság — Interpretation of Article 5(1) of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings (OJ 2000 L 160, p. 1) — Action in rem brought in the Member State where the subject of the right in rem is situated against a defendant with its registered office in another Member State and against which insolvency proceedings were commenced in that latter State before the accession of the former State to the European Union — Temporal applicability of Article 5(1) of Regulation (EC) No 1346/2000

Operative part of the judgment

Article 5(1) of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings must be interpreted as meaning that that provision is applicable, in circumstances such as those in the main proceedings, even to insolvency proceedings opened before the accession of the Republic of Hungary to the European Union where, on 1 May 2004, the debtor’s assets on which the right in rem concerned was based were situated in that State, which is for the referring court to ascertain.

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(1)  OJ C 30, 29.1.2011.

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/5 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/5

---

Judgment of the Court (Third Chamber) of 5 July 2012 (reference for a preliminary ruling from the Tribunal de grande instance de Chartres — France) — Michel Bourgès-Maunoury, Marie-Louise Heintz, wife of Mr Bourgès-Maunoury v Direction des services fiscaux d’Eure-et-Loir

(Case C-558/10) (1)

(Privileges and immunities of the European Communities - Exemption from national taxes on salaries paid by the European Union - Inclusion of income paid by the European Union in the calculation of the cap for wealth tax)

2012/C 287/07

Language of the case: French

Referring court

Tribunal de grande instance de Chartres

Parties to the main proceedings

Applicant: Michel Bourgès-Maunoury, Marie-Louise Heintz, wife of Mr Bourgès-Maunoury

Defendant: Direction des services fiscaux d’Eure-et-Loir

Re:

Reference for a preliminary ruling — Tribunal de grande instance de Chartres –Interpretation of the second paragraph of Article 13 of Chapter V of the Protocol on the privileges and immunities of the European Communities (OJ 1967, 152, p. 13) — Validity of national legislation providing that the entirety of a taxpayer’s income, including Community income, is to be taken into account in calculating the cap on wealth tax — Exemption from national taxes on remuneration paid by the Communities — Former officials of the European Communities

Operative part of the judgment

The second paragraph of Article 13 of the Protocol on the Privileges and Immunities of the European Communities, initially annexed to the Treaty establishing a single Council and a single Commission of the European Communities, and subsequently, under the Amsterdam Treaty, to the EC Treaty must be interpreted as meaning that it precludes national legislation such as that at issue in the main proceedings which takes account of the income, including the pensions and allowances on termination of service, paid by the European Union to its officials and other staff, or to its former officials and former staff, in calculating the cap on a tax such as the wealth tax.

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(1)  OJ C 46, 12.2.2011.

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/5 |
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22.9.2012

EN

Official Journal of the European Union

C 287/5

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Judgment of the Court (Second Chamber) of 12 July 2012 — European Commission v Federal Republic of Germany

(Case C-562/10) (1)

(Action for failure to fulfil obligations - Article 56 TFEU - German legislation regarding care insurance - Benefits in kind for assistance at home are unavailable where the person reliant on care is temporarily staying in another Member State - Lower level of exportable cash benefits - Failure to reimburse hire costs of care equipment in other Member States)

2012/C 287/08

Language of the case: German

Parties

Applicant: European Commission (represented by: F.W. Bulst and I. Rogalski, acting as Agents)

Defendant: Federal Republic of Germany (represented by: T. Henze and J. Möller, acting as Agents)

Re:

Failure of a Member State to fulfil obligations — Infringement of Article 56 TFEU — National legislation regarding care insurance limiting entitlement to a care allowance to six weeks where an insured person stays temporarily in another Member State, excluding reimbursement of hire costs of care equipment and providing that care-related benefits in kind supplied in the Member State of stay are not reimbursed at the same rate as those supplied in Germany

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

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

2.

Orders the Commission to pay the costs.

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(1)  OJ C 63, 26.2.2011.

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/6 |
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22.9.2012

EN

Official Journal of the European Union

C 287/6

---

Judgment of the Court (Fourth Chamber) of 12 July 2012 (reference for a preliminary ruling from the Judecătoria Călărași — Romania) — SC Volksbank România SA v Autoritatea Națională pentru Protecția Consumatorilor — Comisariatul Județean pentru Protecția Consumatorilor Călărași (CJPC)

(Case C-602/10) (1)

(Consumer protection - Credit agreements for consumers - Directive 2008/48/EC - Articles 22, 24 and 30 - National legislation designed to transpose that directive - Applicability to agreements not included in the material and temporal scope of the directive - Obligations not provided for by the directive - Limitation on the bank charges capable of being levied by the creditor - Articles 56 TFEU, 58 TFEU and 63 TFEU - Obligation to put in place, in national law, adequate and effective out-of-court dispute resolution procedures)

2012/C 287/09

Language of the case: Romanian

Referring court

Judecătoria Călărași

Parties to the main proceedings

Applicant: SC Volksbank România SA

Defendant: Autoritatea Națională pentru Protecția Consumatorilor — Comisariatul Județean pentru Protecția Consumatorilor Călărași (CJPC)

Re:

Reference for a preliminary ruling — Judecătoria Călărași — Interpretation of Articles 22(1), 24(1) and 30(1) of Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC (OJ 2008 L 133, p. 66) — Interpretation of Articles 56, 58 and 63(1) TFEU — Application ratione temporis of the national implementing legislation — Failure to comply with the obligation to put in place adequate and effective out-of-court dispute resolution procedures — Application ratione materiae of the national implementing leglislation — Additional obligations for credit institutions not laid down in the directive

Operative part of the judgment

| 1. | Article 22(1) of Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC must be interpreted as not precluding a national measure designed to transpose that directive into domestic law from including in its material scope credit agreements, such as those at issue in the main proceedings, concerning the grant of credit secured by immovable property, even though such agreements are expressly excluded from the material scope of the directive by virtue of Article 2(2)(a) thereof. |
| --- | --- |

1.

Article 22(1) of Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC must be interpreted as not precluding a national measure designed to transpose that directive into domestic law from including in its material scope credit agreements, such as those at issue in the main proceedings, concerning the grant of credit secured by immovable property, even though such agreements are expressly excluded from the material scope of the directive by virtue of Article 2(2)(a) thereof.

| 2. | Article 30(1) of Directive 2008/48 must be interpreted as not precluding a national measure designed to transpose that directive into domestic law from defining its temporal scope so that the measure also applies to credit agreements, such as those at issue in the main proceedings, which are excluded from the material scope of that directive and were existing on the date when that national measure entered into force. |
| --- | --- |

2.

Article 30(1) of Directive 2008/48 must be interpreted as not precluding a national measure designed to transpose that directive into domestic law from defining its temporal scope so that the measure also applies to credit agreements, such as those at issue in the main proceedings, which are excluded from the material scope of that directive and were existing on the date when that national measure entered into force.

| 3. | Article 22(1) of Directive 2008/48 must be interpreted as not precluding a national measure designed to transpose that directive into domestic law from imposing on credit institutions obligations not provided for by the directive as regards the types of charges that they may levy in connection with consumer credit agreements falling within the scope of that measure. |
| --- | --- |

3.

Article 22(1) of Directive 2008/48 must be interpreted as not precluding a national measure designed to transpose that directive into domestic law from imposing on credit institutions obligations not provided for by the directive as regards the types of charges that they may levy in connection with consumer credit agreements falling within the scope of that measure.

| 4. | The rules of the FEU Treaty concerning the freedom to provide services must be interpreted as not precluding a provision of national law that prohibits credit institutions from levying certain bank charges. |
| --- | --- |

4.

The rules of the FEU Treaty concerning the freedom to provide services must be interpreted as not precluding a provision of national law that prohibits credit institutions from levying certain bank charges.

| 5. | Article 24(1) of Directive 2008/48 must be interpreted as not precluding a rule forming part of the national measure designed to transpose that directive that, as regards disputes concerning consumer credit, allows consumers to have direct recourse to a consumer protection authority, which may subsequently impose penalties on credit institutions for infringement of that national measure, without having to use beforehand the out-of-court resolution procedures provided for by national legislation for such disputes. |
| --- | --- |

5.

Article 24(1) of Directive 2008/48 must be interpreted as not precluding a rule forming part of the national measure designed to transpose that directive that, as regards disputes concerning consumer credit, allows consumers to have direct recourse to a consumer protection authority, which may subsequently impose penalties on credit institutions for infringement of that national measure, without having to use beforehand the out-of-court resolution procedures provided for by national legislation for such disputes.

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(1)  OJ C 89, 19.3.2011.

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/6 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/6

---

Judgment of the Court (First Chamber) of 12 July 2012 (references for a preliminary ruling from the Finanzgericht Hamburg — Germany) — Südzucker AG (C-608/10), WEGO Landwirtschaftliche Schlachtstellen GmbH (C-10/11), Fleischkontor Moksel GmbH (C-23/11) v Hauptzollamt Hamburg-Jonas

(Joined Cases C-608/10, C-10/11 and C-23/11) (1)

(Agriculture - Export refunds - Incorrect indication of the exporter in the export declaration - National legislation making entitlement to an export refund subject to the entry of the applicant as the exporter in the export declaration - Correction of the export declaration after the goods have been released)

2012/C 287/10

Language of the cases: German

Referring court

Finanzgericht Hamburg

Parties to the main proceedings

Applicants: Südzucker AG (C-608/10), WEGO Landwirtschaftliche Schlachtstellen GmbH (C-10/11), Fleischkontor Moksel GmbH (C-23/11)

Defendant: Hauptzollamt Hamburg-Jonas

Re:

References for a preliminary ruling — Finanzgericht Hamburg — Interpretation of Article 5(7) of Commission Regulation (EC) No 800/1999 of 15 April 1999 laying down common detailed rules for the application of the system of export refunds on agricultural products (OJ 1999 L 102, p. 11) and of Article 78(1) and (3) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1) — Incorrect indication of the exporter in the export declaration — National rules making the right to an export refund subject to the entry of the applicant as exporter in the export declaration

Operative part of the judgment

| 1. | Article 5(7) of Commission Regulation (EC) No 800/1999 of 15 April 1999 laying down common detailed rules for the application of the system of export refunds on agricultural products, as amended by Commission Regulation (EC) No 90/2001 of 17 January 2001, must be interpreted as meaning that, in principle, the holder of an export licence is entitled to an export refund only if he is registered as exporter in box 2 of the export declaration lodged with the competent customs office. |
| --- | --- |

1.

Article 5(7) of Commission Regulation (EC) No 800/1999 of 15 April 1999 laying down common detailed rules for the application of the system of export refunds on agricultural products, as amended by Commission Regulation (EC) No 90/2001 of 17 January 2001, must be interpreted as meaning that, in principle, the holder of an export licence is entitled to an export refund only if he is registered as exporter in box 2 of the export declaration lodged with the competent customs office.

| 2. | Article 78(1) and (3) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code must be interpreted as allowing a post-clearance revision of the export declaration for the purpose of refunds, in order to change the name of the exporter featuring in the box provided for that purpose, and as meaning that the customs authorities are required:






  — | firstly, to examine whether a revision of that declaration must be considered to be possible in that, in particular, the objectives of the European Union legislation as regards export refunds have not been threatened and the goods in question have in fact been exported, this being a matter for the applicant to establish, as well as; |
| --- | --- | --- |

2.

Article 78(1) and (3) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code must be interpreted as allowing a post-clearance revision of the export declaration for the purpose of refunds, in order to change the name of the exporter featuring in the box provided for that purpose, and as meaning that the customs authorities are required:

—

firstly, to examine whether a revision of that declaration must be considered to be possible in that, in particular, the objectives of the European Union legislation as regards export refunds have not been threatened and the goods in question have in fact been exported, this being a matter for the applicant to establish, as well as;

| — | secondly, where relevant, to take the measures necessary to regularise the situation, taking account of the new information available to them. |
| --- | --- |

—

secondly, where relevant, to take the measures necessary to regularise the situation, taking account of the new information available to them.

| 3. | Article 5(7) of Regulation No 800/1999, as amended by Regulation No 90/2001, and the customs legislation of the European Union must be interpreted as meaning that, in a case such as Case C-608/10, in which the holder of an export licence is not registered as the exporter in box 2 of the export declaration, the customs authorities cannot grant that holder the export refund without prior correction of the export declaration. |
| --- | --- |

3.

Article 5(7) of Regulation No 800/1999, as amended by Regulation No 90/2001, and the customs legislation of the European Union must be interpreted as meaning that, in a case such as Case C-608/10, in which the holder of an export licence is not registered as the exporter in box 2 of the export declaration, the customs authorities cannot grant that holder the export refund without prior correction of the export declaration.

| 4. | In a case such as those in Cases C-10/11 and C-23/11, the customs legislation of the European Union must be interpreted as meaning that the customs office responsible for paying the export refund is bound by a post-clearance revision, by the customs office of export, of the reference in box 2 of the export declaration, or, as the case may be, of the T5 control copy, if the amending decision fulfils all the formal and substantive conditions of a ‘decision’ provided for both by Article 4(5) of Regulation No 2913/92 and by the relevant provisions of the national law concerned. It is for the referring court to determine whether those conditions have been satisfied in the disputes in the main proceedings. |
| --- | --- |

4.

In a case such as those in Cases C-10/11 and C-23/11, the customs legislation of the European Union must be interpreted as meaning that the customs office responsible for paying the export refund is bound by a post-clearance revision, by the customs office of export, of the reference in box 2 of the export declaration, or, as the case may be, of the T5 control copy, if the amending decision fulfils all the formal and substantive conditions of a ‘decision’ provided for both by Article 4(5) of Regulation No 2913/92 and by the relevant provisions of the national law concerned. It is for the referring court to determine whether those conditions have been satisfied in the disputes in the main proceedings.

| 5. | Article 5(7) of Regulation No 800/1999, as amended by Regulation No 90/2001, and the customs legislation of the European Union must be interpreted as meaning that the customs office responsible for paying the export refund is not entitled, in a case such as Case C-23/11, and if it is not bound under national law by the revision made by the customs office of export, to take at face value the reference in box 2 of the export declaration and to refuse an application for an export refund on the ground that the party making that application is not the exporter of the goods covered by that application. By contrast, if the competent customs office grants the application for amendment and validly rectifies the exporter’s name, the customs office responsible for paying the export refund is bound by that decision. |
| --- | --- |

5.

Article 5(7) of Regulation No 800/1999, as amended by Regulation No 90/2001, and the customs legislation of the European Union must be interpreted as meaning that the customs office responsible for paying the export refund is not entitled, in a case such as Case C-23/11, and if it is not bound under national law by the revision made by the customs office of export, to take at face value the reference in box 2 of the export declaration and to refuse an application for an export refund on the ground that the party making that application is not the exporter of the goods covered by that application. By contrast, if the competent customs office grants the application for amendment and validly rectifies the exporter’s name, the customs office responsible for paying the export refund is bound by that decision.

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(1)  OJ C 113, 9.4.2011.

OJ C 120, 16.4.2011.

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/7 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/7

---

Judgment of the Court (Third Chamber) of 12 July 2012 (reference for a preliminary ruling from the Rechtbank ‘s-Gravenhage — Netherlands) — Solvay SA v Honeywell Fluorine Products Europe BV, Honeywell Belgium NV, Honeywell Europe NV

(Case C-616/10) (1)

(Judicial cooperation in civil matters - Jurisdiction, recognition and enforcement of judgments - Regulation (EC) No 44/2001 - Action for infringement of a European patent - Special and exclusive jurisdiction - Article 6(1) - More than one defendant - Article 22(4) - Validity of the patent called into question - Article 31 - Provisional, including protective, measures)

2012/C 287/11

Language of the case: Dutch

Referring court

Rechtbank ‘s-Gravenhage

Parties to the main proceedings

Applicant: Solvay SA

Defendants: Honeywell Fluorine Products Europe BV, Honeywell Belgium NV, Honeywell Europe NV

Re:

Reference for a preliminary ruling — Rechtbank ‘s-Gravenhage — Interpretation of Article 6(1), Article 22(4) and Article 31 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and on the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1) — Special and exclusive jurisdiction — More than one defendant — Proceedings for interim relief brought by the proprietor of a European patent seeking an order prohibiting cross-border infringement of a patent

Operative part of the judgment

| 1. | Article 6(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, must be interpreted as meaning that a situation where two or more companies established in different Member States, in proceedings pending before a court of one of those Member States, are each separately accused of committing an infringement of the same national part of a European patent which is in force in yet another Member State by virtue of their performance of reserved actions with regard to the same product, is capable of leading to ‘irreconcilable judgments’ resulting from separate proceedings as referred to in that provision. It is for the referring court to assess whether such a risk exists, taking into account all the relevant information in the file. |
| --- | --- |

1.

Article 6(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, must be interpreted as meaning that a situation where two or more companies established in different Member States, in proceedings pending before a court of one of those Member States, are each separately accused of committing an infringement of the same national part of a European patent which is in force in yet another Member State by virtue of their performance of reserved actions with regard to the same product, is capable of leading to ‘irreconcilable judgments’ resulting from separate proceedings as referred to in that provision. It is for the referring court to assess whether such a risk exists, taking into account all the relevant information in the file.

| 2. | Article 22(4) of Regulation No 44/2001 must be interpreted as not precluding, in circumstances such as those at issue in the main proceedings, the application of Article 31 of that regulation. |
| --- | --- |

2.

Article 22(4) of Regulation No 44/2001 must be interpreted as not precluding, in circumstances such as those at issue in the main proceedings, the application of Article 31 of that regulation.

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(1)  OJ C 89, 19.3.2011.

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/8 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/8

---

Judgment of the Court (Third Chamber) of 5 July 2012 (reference for a preliminary ruling from the Oberlandesgericht Wien — Austria) — Content Services Ltd v Bundesarbeitskammer

(Case C-49/11) (1)

(Reference for a preliminary ruling - Directive 97/7/EC - Consumer protection - Distance contracts - Consumer information - Information given or received - Durable medium - Meaning - Hyperlink on the website of the supplier - Right of withdrawal)

2012/C 287/12

Language of the case: German

Referring court

Oberlandesgericht Wien

Parties to the main proceedings

Applicant: Content Services Ltd

Defendant: Bundesarbeitskammer

Re:

Reference for a preliminary ruling — Oberlandesgericht Wien — Interpretation of Article 5(1) of Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts (OJ 1997 L 144, p. 19) — Information concerning the contract made available to the consumer via a hyperlink to the supplier's website — Right of the consumer to receive that information in a durable medium — Interpretation of the notion of ‘durable medium’

Operative part of the judgment

Article 5(1) of Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts must be interpreted as meaning that a business practice consisting of making the information referred to in that provision accessible to the consumer only via a hyperlink on a website of the undertaking concerned does not meet the requirements of that provision, since that information is neither ‘given’ by that undertaking nor ‘received’ by the consumer, within the meaning of that provision, and a website such as that at issue in the main proceedings cannot be regarded as a ‘durable medium’ within the meaning of Article 5(1).

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(1)  OJ C 145, 14.5.2011.

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/8 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/8

---

Judgment of the Court (Fourth Chamber) of 12 July 2012 (reference for a preliminary ruling from the Tribunal Supremo — Spain) — Vodafone España SA v Ayuntamiento de Santa Amalia (C-55/11), Ayuntamiento de Tudela (C-57/11), and France Telecom España SA v Ayuntamiento de Torremayor (C-58/11)

(Joined Cases C-55/11, C-57/11 and C-58/11) (1)

(Directive 2002/20/EC - Electronic communications networks and services - Authorisation - Article 13 - Fees for rights of use and rights to install facilities)

2012/C 287/13

Language of the case: Spanish

Referring court

Tribunal Supremo

Parties to the main proceedings

Applicants: Vodafone España SA (C-55/11 and C-57/11), France Telecom España SA (C-58/11)

Defendants: Ayuntamiento de Santa Amalia (C-55/11), Ayuntamiento de Tudela (C-57/11), Ayuntamiento de Torremayor (C-58/11)

Re:

Reference for preliminary ruling — Tribunal Supremo — Interpretation of Article 13 of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) (OJ 2002 L 108, p. 21) — Fees for rights of use and the right to install equipment — Municipal public property

Operative part of the judgment

| 1. | Article 13 of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) must be interpreted as precluding the imposition of a fee for the right to install facilities on, over or under public or private property on operating undertakings which, without being proprietors of those facilities, use them to provide mobile telephony services; |
| --- | --- |

1.

Article 13 of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) must be interpreted as precluding the imposition of a fee for the right to install facilities on, over or under public or private property on operating undertakings which, without being proprietors of those facilities, use them to provide mobile telephony services;

| 2. | Article 13 of Directive 2002/20 has direct effect and therefore it grants individuals the right to rely upon it before the national courts to dispute the application of a decision by the public authority that is incompatible with that article. |
| --- | --- |

2.

Article 13 of Directive 2002/20 has direct effect and therefore it grants individuals the right to rely upon it before the national courts to dispute the application of a decision by the public authority that is incompatible with that article.

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(1)  OJ C 139, 7.5.2011.

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/9 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/9

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Judgment of the Court (Third Chamber) of 12 July 2012 (reference for a preliminary ruling from the Cour d’appel de Nancy — France) — Association Kokopelli v Graines Baumaux SAS

(Case C-59/11) (1)

(Agriculture - Directives 98/95/EC, 2002/53/EC, 2002/55/EC and 2009/145/EC - Validity - Vegetables - Sale on the national seed market of vegetable seed not included in the official common catalogue of varieties of vegetable species - Non-compliance with system of prior authorisation for marketing - International Treaty on Plant Genetic Resources for Food and Agriculture - Principle of proportionality - Freedom to conduct a business - Free movement of goods - Equal treatment)

2012/C 287/14

Language of the case: French

Referring court

Cour d’appel de Nancy

Parties to the main proceedings

Applicant: Association Kokopelli

Defendant: Graines Baumaux SAS

Re:

Reference for a preliminary ruling — Cour d’appel de Nancy — Validity, in the light of inter alia the principles of proportionality, equal treatment, free movement of goods and undertakings under the International Treaty on Plant Genetic Resources for Food and Agriculture, Council Directive 98/95/EC of 14 December 1998 amending, in respect of the consolidation of the internal market, genetically modified plant varieties and plant genetic resources, Directives 66/400/EEC, 66/401/EEC, 66/402/EEC, 66/403/EEC, 69/208/EEC, 70/457/EEC and 70/458/EEC on the marketing of beet seed, fodder plant seed, cereal seed, seed potatoes, seed of oil and fibre plants and vegetable seed and on the common catalogue of varieties of agricultural plant species (OJ 1999 L 25, p. 1), Council Directive 2002/53/EC of 13 June 2002 on the common catalogue of varieties of agricultural plant species (OJ 2002 L 193, p. 1), Council Directive 2002/55/EC of 13 June 2002 on the marketing of vegetable seed (OJ 2002 L 193, p. 33) and Commission Directive 2009/145/EC of 26 November 2009 providing for certain derogations, for acceptance of vegetable landraces and varieties which have been traditionally grown in particular localities and regions and are threatened by genetic erosion and of vegetable varieties with no intrinsic value for commercial crop production but developed for growing under particular conditions and for marketing of seed of those landraces and varieties (OJ 1999 L 312, p. 44) — Sale on the national market of vegetable seed not included in the official common catalogue of varieties of vegetable species — Non-compliance with national scheme of prior marketing authorisation, deemed to be too restrictive — Acts of unfair competition or infringement of the principles of proportionality, equal treatment and free movement of goods

Operative part of the judgment

Consideration of the question raised has disclosed no factor of such a kind as to affect the validity of Council Directive 2002/55/EC of 13 June 2002 on the marketing of vegetable seed, and of Commission Directive 2009/145/EC of 26 November 2009 providing for certain derogations, for acceptance of vegetable landraces and varieties which have been traditionally grown in particular localities and regions and are threatened by genetic erosion and of vegetable varieties with no intrinsic value for commercial crop production but developed for growing under particular conditions and for marketing of seed of those landraces and varieties.

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(1)  OJ C 120, 16.4.2011.

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/10 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/10

---

Judgment of the Court (Second Chamber) of 12 July 2012 (reference for a preliminary ruling from the Tribunale di Firenze — Italy) — Criminal proceedings against Maurizio Giovanardi and Others

(Case C-79/11) (1)

(Police and judicial cooperation in criminal matters - Framework Decision 2001/220/JHA - Standing of victims in criminal proceedings - Directive 2004/80/EC - Compensation to victims of crime - Liability of a legal person - Compensation in criminal proceedings)

2012/C 287/15

Language of the case: Italian

Referring court

Tribunale di Firenze

Parties in the main proceedings

Maurizio Giovanardi, Andrea Lastini, Filippo Ricci, Vito Piglionica, Massimiliano Pempori, Gezim Lakja, Elettrifer Srl, Rete Ferroviaria Italiana SpA

Re:

Reference for a preliminary ruling — Tribunale Ordinario di Firenze — Interpretation of Articles 2, 3 and 8 of Council Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings (OJ 2001 L 82, p. 1) — Interpretation of Article 9 of Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims (OJ 2004 L 261, p. 15) — Criminal liability of legal persons — Right of a victim of a criminal act to be compensated, in the context of criminal proceedings, by a legal person indirectly liable for the harm suffered

Operative part of the judgment

Article 9(1) of Council Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings must be interpreted as meaning that, under a system governing the liability of legal persons such as that at issue in the main proceedings, that provision does not preclude a situation in which the victim of a criminal act is not entitled to seek compensation for the harm directly caused by that act in the course of criminal proceedings from the legal person who committed an administrative offence.

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(1)  OJ C 120, 16.4.2011.

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/10 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/10

---

Judgment of the Court (Grand Chamber) of 3 July 2012 (reference for a preliminary ruling from the Bundesgerichtshof — Germany) — UsedSoft GmbH v Oracle International Corp.

(Case C-128/11) (1)

(Legal protection of computer programs - Marketing of used licences for computer programs downloaded from the internet - Directive 2009/24/EC - Articles 4(2) and 5(1) - Exhaustion of the distribution right - Concept of lawful acquirer)

2012/C 287/16

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: UsedSoft GmbH

Defendant: Oracle International Corp.

Re:

Reference for a preliminary ruling — Bundesgerichtshof — Interpretation of first subparagraph of Article 4(2) and Article 5(1) of Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs (OJ 2009 L 111, p. 16) — Downloading of copies of computer programs from the internet with the rightholder’s consent onto a data carrier on the basis of a software licence — Whether that action can be classified as exhausting the rightholder’s distribution right with regard to the copies downloaded — Marketing of ‘used’ licences of programs downloaded by the first acquirer — Concept of ‘lawful acquirer’

Operative part of the judgment

| 1. | Article 4(2) of Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs must be interpreted as meaning that the right of distribution of a copy of a computer program is exhausted if the copyright holder who has authorised, even free of charge, the downloading of that copy from the internet onto a data carrier has also conferred, in return for payment of a fee intended to enable him to obtain a remuneration corresponding to the economic value of the copy of the work of which he is the proprietor, a right to use that copy for an unlimited period. |
| --- | --- |

1.

Article 4(2) of Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs must be interpreted as meaning that the right of distribution of a copy of a computer program is exhausted if the copyright holder who has authorised, even free of charge, the downloading of that copy from the internet onto a data carrier has also conferred, in return for payment of a fee intended to enable him to obtain a remuneration corresponding to the economic value of the copy of the work of which he is the proprietor, a right to use that copy for an unlimited period.

| 2. | Articles 4(2) and 5(1) of Directive 2009/24 must be interpreted as meaning that, in the event of the resale of a user licence entailing the resale of a copy of a computer program downloaded from the copyright holder’s website, that licence having originally been granted by that rightholder to the first acquirer for an unlimited period in return for payment of a fee intended to enable the rightholder to obtain a remuneration corresponding to the economic value of that copy of his work, the second acquirer of the licence, as well as any subsequent acquirer of it, will be able to rely on the exhaustion of the distribution right under Article 4(2) of that directive, and hence be regarded as lawful acquirers of a copy of a computer program within the meaning of Article 5(1) of that directive and benefit from the right of reproduction provided for in that provision. |
| --- | --- |

2.

Articles 4(2) and 5(1) of Directive 2009/24 must be interpreted as meaning that, in the event of the resale of a user licence entailing the resale of a copy of a computer program downloaded from the copyright holder’s website, that licence having originally been granted by that rightholder to the first acquirer for an unlimited period in return for payment of a fee intended to enable the rightholder to obtain a remuneration corresponding to the economic value of that copy of his work, the second acquirer of the licence, as well as any subsequent acquirer of it, will be able to rely on the exhaustion of the distribution right under Article 4(2) of that directive, and hence be regarded as lawful acquirers of a copy of a computer program within the meaning of Article 5(1) of that directive and benefit from the right of reproduction provided for in that provision.

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(1)  OJ C 194, 2.7.2011.

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/11 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/11

---

Judgment of the Court (Third Chamber) of 12 July 2012 (reference for a preliminary ruling from the Oberster Gerichtshof — Austria) — Compass-Datenbank GmbH v Republik Österreich

(Case C-138/11) (1)

(Competition - Article 102 TFEU - Concept of ‘undertaking’ - Data of the companies register stored in a database - Activity of collection and making available of that data in return for remuneration - Refusal by the public authorities to authorise re-utilisation of that data - ‘Sui generis’ right provided for in Article 7 of Directive 96/9/EC)

2012/C 287/17

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Applicant: Compass-Datenbank GmbH

Defendant: Republik Österreich

Re:

Reference for a preliminary ruling — Oberster Gerichtshof — Interpretation of Article 102 TFEU — National rules providing for payment to be made for consultation of the companies register (Firmenbuch) and prohibiting any other commercial use of that register — Concept of economic activity — Abuse of a dominant position — Scope of the essential facilities doctrine

Operative part of the judgment

The activity of a public authority consisting in the storing, in a database, of data which undertakings are obliged to report on the basis of statutory obligations, in permitting interested persons to search for that data and/or in providing them with print-outs thereof does not constitute an economic activity, and that public authority is not, therefore, to be regarded, in the course of that activity, as an undertaking, within the meaning of Article 102 TFEU. The fact that those searches and/or that provision of print-outs are carried out in consideration for remuneration provided for by law and not determined, directly or indirectly, by the entity concerned, is not such as to alter the legal classification of that activity. In addition, when such a public authority prohibits any other use of the data thus collected and made available to the public, by relying upon the sui generis protection granted to it as maker of the database pursuant to Article 7 of Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases, or upon any other intellectual property right, it also does not exercise an economic activity and is not therefore to be regarded, in the course of that activity, as an undertaking, within the meaning of Article 102 TFEU.

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(1)  OJ C 186, 25.6.2011.

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/11 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/11

---

Judgment of the Court (Second Chamber) of 5 July 2012 (reference for a preliminary ruling from the Södertörns tingsrätt — Sweden) — Torsten Hörnfeldt v Posten Meddelande AB

(Case C-141/11) (1)

(Equal treatment in employment and occupation - Prohibition of discrimination on grounds of age - National legislation conferring on employees an unconditional right to work until the age of 67 and providing for automatic termination of the employment relationship at the end of the month in which the employee reaches that age - Account not taken of the amount of the retirement pension)

2012/C 287/18

Language of the case: Swedish

Referring court

Södertörns tingsrätt

Parties to the main proceedings

Applicant: Torsten Hörnfeldt

Defendant: Posten Meddelande AB

Re:

Reference for a preliminary ruling — Södertörns tingsrätt — Interpretation of the general principle of law on the prohibition of age discrimination and of Article 6 of Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16) — National legislation and collective agreement granting employees an unconditional right to work until the age of 67 and providing for automatic termination without notice of the employment relationship at the end of the month in which the employee turns 67, without taking account of the actual pension paid to him

Operative part of the judgment

The second subparagraph of Article 6(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as not precluding a national measure, such as that at issue in the main proceedings, which allows an employer to terminate an employee’s employment contract on the sole ground that the employee has reached the age of 67 and which does not take account of the level of the retirement pension which the person concerned will receive, as that measure is objectively and reasonably justified by a legitimate aim relating to employment policy and labour-market policy and constitutes an appropriate and necessary means by which to achieve that aim.

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(1)  OJ C 152, 21.5.2011.

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/12 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/12

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Judgment of the Court (Second Chamber) of 12 July 2012 (reference for a preliminary ruling from the Riigikohus — Estonia) — AS Pimix, in liquidation v Maksu- ja Tolliameti Lõuna maksu- ja tollikeskus, Põllumajandusministeerium

(Case C-146/11) (1)

(Accession of new Member States - Setting the charge on surplus stocks of agricultural products - Reference, in a provision of national law, to a provision of a European Union regulation not duly published in the Official Journal of the European Union in the language of the Member State in question)

2012/C 287/19

Language of the case: Estonian

Referring court

Riigikohus

Parties to the main proceedings

Applicant: AS Pimix, in liquidation

Defendants: Maksu- ja Tolliameti Lõuna maksu- ja tollikeskus, Põllumajandusministeerium

Re:

Reference for a preliminary ruling — Riigikohus — Interpretation of Articles 288(2) TFEU, 297(1) TFEU, Commission Regulation (EC) No 1972/2003 of 10 November 2003 on transitional measures to be adopted in respect of trade in agricultural products on account of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia (OJ 2003 L 293, p. 3) and the judgments of the Court of Justice in Cases C-161/06, C-560/07 and C-140/08 — Accession of new Member States — Setting the charge on surplus stocks of agricultural products — Reference, in a provision of national law, to a provision of a European Union regulation not duly published in the Official Journal of the European Union in the language of the Member State in question on the date prescribed for determination of the surplus stock — Whether regulation implemented within the meaning of the Court’s case-law

Operative part of the judgment

Article 58 of the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded must be interpreted as precluding, in Estonia, the application to individuals of provisions of Commission Regulation (EC) No 1972/2003 of 10 November 2003 on transitional measures to be adopted in respect of trade in agricultural products on account of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia, which, as at 1 May 2004, had neither been published in Estonian in the Official Journal of the European Union nor reproduced in the national law of that Member State, even though those individuals could have learned of those provisions by other means.

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(1)  OJ C 160, 25.5.2011.

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/12 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/12

---

Judgment of the Court (Fourth Chamber) of 12 July 2012 (reference for a preliminary ruling from the Oberlandesgericht Düsseldorf — Germany) — Fra.bo SpA v Deutsche Vereinigung des Gas- und Wasserfaches eV (DVGW) — Technisch-Wissenschaftlicher Verein

(Case C-171/11) (1)

(Free movement of goods - Measures having equivalent effect to a quantitative restriction - National certification procedure - Presumption of compliance with national law - Applicability of Article 28 EC to a private-law certification body)

2012/C 287/20

Language of the case: German

Referring court

Oberlandesgericht Düsseldorf

Parties to the main proceedings

Applicant: Fra.bo SpA

Defendant: Deutsche Vereinigung des Gas- und Wasserfaches eV (DVGW) — Technisch-Wissenschaftlicher Verein

Re:

Reference for a preliminary ruling — Oberlandesgericht Düsseldorf — Interpretation of Articles 34, 101 and 106(2) TFEU — Application of those provisions to the activity of a private-law association (Technisch-Wissenschaftlicher Verein), approved by a Member State as a certification body for certain products — Horizontal direct effect of Article 34 TFEU

Operative part of the judgment

Article 28 EC must be interpreted as meaning that it applies to standardisation and certification activities of a private-law body, where the national legislation considers the products certified by that body to be compliant with national law and that has the effect of restricting the marketing of products which are not certified by that body.

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(1)  OJ C 226, 30.7.2011.

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/13 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/13

---

Judgment of the Court (Fourth Chamber) of 12 July 2012 (reference for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — HIT hoteli, igralnice, turizem dd Nova Gorica and HIT LARIX, prirejanje posebnih iger na srečo in turizem dd v Bundesminister für Finanzen

(Case C-176/11) (1)

(Article 56 TFEU - Restriction on the freedom to provide services - Games of chance - Legislation of a Member State prohibiting the advertising of casinos located in other States if the level of legal protection for gamblers in those States is not equivalent to that ensured at national level - Justification - Overriding reasons in the public interest - Proportionality)

2012/C 287/21

Language of the case: German

Referring court

Verwaltungsgerichtshof

Parties to the main proceedings

Applicants: HIT hoteli, igralnice, turizem dd Nova Gorica and HIT LARIX, prirejanje posebnih iger na srečo in turizem dd

Defendant: Bundesminister für Finanzen

Re:

Reference for a preliminary ruling — Verfassungsgerichtshof — Interpretation of Article 56 TFEU et seq. — Freedom to provide services — Games of chance — Legislation of a Member State prohibiting the advertising in its territory of casinos located in other States if the level of legal protection for gamblers in those States is not considered equivalent to the level of protection ensured at national level

Operative part of the judgment

Article 56 TFEU must be interpreted as not precluding legislation of a Member State which permits the advertising in that State of casinos located in another Member State only where the legal provisions for the protection of gamblers adopted in that other Member State provide guarantees that are in essence equivalent to those of the corresponding legal provisions in force in the first Member State.

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(1)  OJ C 226, 30.7.2011.

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/13 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/13

---

Judgment of the Court (Sixth Chamber) of 12 July 2012 — Compañía Española de Tabaco en Rama, SA (Cetarsa) v European Commission

(Case C-181/11 P) (1)

(Appeal - Competition - Agreements - Spanish market for the purchase and first processing of raw tobacco - Decision finding an infringement of Article 81 EC - Price fixing and market sharing - Fines - Equal treatment - Maximum limit of 10 % of turnover - Cooperation - Distortion of evidence - Manifest error of assessment - Failure to state reasons)

2012/C 287/22

Language of the case: Spanish

Parties

Appellant: Compañía Española de Tabaco en Rama, SA (Cetarsa) (represented by: M. Araujo Boyd, J. Buendía Sierra and Á. Givaja Sanz, abogados)

Other party to the proceedings: European Commission (represented by: F. Castillo de la Torre, E. Gippini Fournier and L. Malferrari, acting as Agents)

Re:

Appeal against the judgment of the General Court (Fourth Chamber) in Case T-33/05 Cetarsa v Commission, by which that Court dismissed an application for annulment of Commission Decision C(2004) final of 20 October 2004, relating to a proceeding under Article 81(1) EC (Case COMP/C.38.238/B.2 — Raw Tobacco — Spain), and a cross-appeal by the Commission seeking to have the amount of the fine imposed on the applicant increased

Operative part of the judgment

The Court:

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

1.

Dismisses the appeal and the cross-appeal;

| 2. | Orders Compañía Española de Tabaco en Rama, SA (Cetarsa) to pay the costs of the appeal; |
| --- | --- |

2.

Orders Compañía Española de Tabaco en Rama, SA (Cetarsa) to pay the costs of the appeal;

| 3. | Orders the European Commission to pay the costs of the cross-appeal. |
| --- | --- |

3.

Orders the European Commission to pay the costs of the cross-appeal.

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(1)  OJ C 186, 25.6.2011.

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/14 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/14

---

Judgment of the Court (Sixth Chamber) of 5 July 2012 (reference for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — DTZ Zadelhoff vof v Staatssecretaris van Financiën

(Case C-259/11) (1)

(Sixth VAT Directive - Articles 5(3)(c) and 13B(d)(5) - Negotiation of a transaction involving the transfer of company shares - Transaction which also entails the transfer of the ownership of immovable property held by such companies - Exemption)

2012/C 287/23

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicant: DTZ Zadelhoff vof

Defendant: Staatssecretaris van Financiën

Re:

Reference for a preliminary ruling — Hoge Raad der Nederlanden — Interpretation of Articles 5(3)(c) and 13B(d)(5) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — Exemptions laid down in the Sixth Directive — Transactions relating to the securities referred to in Article 13B(d)(5) — Transfer of shares of companies also entailing the transfer of the ownership of immovable property belonging to those companies.

Operative part of the judgment

Article 13B(d)(5) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment must be interpreted as meaning that the exemption from value added tax in that provision covers transactions, such as those at issue in the main proceedings, which are designed to transfer shares in the companies concerned and have that effect but which, in the final analysis, concern immovable property held by those companies and the (indirect) transfer of that property. The exception to the exemption provided for in the second indent of that provision is not applicable if the Member State has not availed itself of the possibility provided by Article 5(3)(c) of the Sixth Directive of considering shares or interests equivalent to shares giving the holder thereof de jure or de facto rights of ownership or possession over immovable property to be tangible property.

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(1)  OJ C 252, 27.8.2011.

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/14 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/14

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Judgment of the Court (Second Chamber) of 12 July 2012 (reference for a preliminary ruling from the Varhoven administrativen sad — Bulgaria) — EMS-Bulgaria Transport OOD v Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ Plovdiv

(Case C-284/11) (1)

(VAT - Directive 2006/112/EC - Right to deduct - Limitation period for the exercise of the right to deduct VAT - Principle of effectiveness - Refusal of the right to deduct VAT - Principle of fiscal neutrality)

2012/C 287/24

Language of the case: Bulgarian

Referring court

Varhoven administrativen sad

Parties to the main proceedings

Applicant: EMS-Bulgaria Transport OOD

Defendant: Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ Plovdiv

Re:

Reference for a preliminary ruling — Varhoven administrativen sad — Interpretation of Articles 179, 180 and 273 of Council Directive 2006/112 of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) and of the principle of effectiveness pursuant to the judgment of the Court of Justice in Joined Cases C-95/07 and C-96/07 Ecotrade and Others — Right to deduct input VAT — National legislation making the exercise of the right to deduct input VAT subject to a limitation period of three tax periods following that in which the right to deduct arose — Refusal of the right to deduct VAT on account of failure to comply with the obligation of voluntary VAT registration as an intra-Community purchaser and of failure to exercise the right to deduct within the time-limit

Operative part of the judgment

| 1. | The first paragraph of Article 179, Article 180 and Article 273 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that they do not preclude a limitation period for the exercise of the right to deduct, such as that at issue in the main proceedings, to the extent that it does not render the exercise of that right excessively difficult or impossible in practice. It is for the national court to carry out such an assessment and it may take into account, inter alia, a subsequent considerable extension of the limitation period and the duration of a value added tax registration procedure which had to be completed within that same period for it to be possible to exercise that right to deduct. |
| --- | --- |

1.

The first paragraph of Article 179, Article 180 and Article 273 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that they do not preclude a limitation period for the exercise of the right to deduct, such as that at issue in the main proceedings, to the extent that it does not render the exercise of that right excessively difficult or impossible in practice. It is for the national court to carry out such an assessment and it may take into account, inter alia, a subsequent considerable extension of the limitation period and the duration of a value added tax registration procedure which had to be completed within that same period for it to be possible to exercise that right to deduct.

| 2. | The principle of fiscal neutrality precludes a penalty consisting in a refusal of the right to deduct if VAT is accounted for belatedly, but does not preclude the payment of default interest, provided that that penalty complies with the principle of proportionality, which it is for the national court to determine. |
| --- | --- |

2.

The principle of fiscal neutrality precludes a penalty consisting in a refusal of the right to deduct if VAT is accounted for belatedly, but does not preclude the payment of default interest, provided that that penalty complies with the principle of proportionality, which it is for the national court to determine.

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(1)  OJ C 238, 13.8.2011.

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/15 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/15

---

Judgment of the Court (Third Chamber) of 12 July 2012 (reference for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Staatssecretaris van Financiën v TNT Freight Management (Amsterdam) BV

(Case C-291/11) (1)

(Common Customs Tariff - Combined Nomenclature - Tariff headings 3002 and 3502 - Blood albumin prepared for therapeutic or prophylactic uses - Processing of the product)

2012/C 287/25

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicant: Staatssecretaris van Financiën

Defendant: TNT Freight Management (Amsterdam) BV

Re:

Reference for a preliminary ruling — Hoge Raad der Nederlanden — Combined Nomenclature — Tariff headings — Interpretation — Blood albumin prepared for therapeutic or prophylactic uses — Notion — Blood albumin which has no therapeutic effect but which is essential for, and is used exclusively for, the preparation of products which themselves do have therapeutic or prophylactic effects

Operative part of the judgment

Note 1(g) of Chapter 30 of the Combined Nomenclature in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Commission Regulation (EC) No 1789/2003 of 11 September 2003, read in conjunction with Note 1(b) of Chapter 35 thereof, must be interpreted as meaning that a blood albumin which does not itself have a therapeutic or prophylactic effect, but which was produced for the preparation of products having a prophylactic or therapeutic effect, which is essential to that preparation, and which, by its nature, may only be used for that purpose, was prepared for therapeutic or prophylactic use within the meaning of that note.

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(1)  OJ C 252, 27.8.2011.

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/15 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/15

---

Judgment of the Court (Fifth Chamber) of 12 July 2012 — Smart Technologies ULC v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-311/11 P) (1)

(Appeals - Community trade mark - Regulation (EC) No 40/94 - Article 7(1)(b) - Word mark WIR MACHEN DAS BESONDERE EINFACH - Mark consisting of an advertising slogan - Distinctive character - Refusal to register)

2012/C 287/26

Language of the case: English

Parties

Appellant: Smart Technologies ULC (represented by: M. Edenborough QC, and T. Elias, barrister)

Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: J. Crespo Carrillo, Agent)

Re:

Appeal against the judgment of the General Court (Second Chamber) of 13 April 2011Smart Technologies v OHMI (Case T-523/09) by which that court dismissed an application for annulment of the decision R 554/2009-2 of the second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 29 September 2009, rejecting the appeal against the examiner’s decision refusing to register the word mark ‘WIR MACHEN DAS BESONDERE EINFACH’ in respect of goods in Class 9.

Operative part of the judgment

The Court:

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

1.

Dismisses the appeal.

| 2. | Orders Smart Technologies ULC to pay the costs. |
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2.

Orders Smart Technologies ULC to pay the costs.

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(1)  OJ C 269, 10.9.2011.

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/16 |
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Judgment of the Court (Fourth Chamber) of 12 July 2012 (reference for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — J.J. Komen en Zonen Beheer Heerhugowaard BV v Staatssecretaris van Financiën

(Case C-326/11) (1)

(Sixth VAT Directive - Article 13B(g), read in conjunction with Article 4(3)(a) - Supply of buildings and the land upon which they stand - Supply of a building undergoing work with the view to the creation of a new building by transformation - Continuation and completion of the work by the purchaser after the supply - Exemption from VAT)

2012/C 287/27

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicant: J.J. Komen en Zonen Beheer Heerhugowaard BV

Defendant: Staatssecretaris van Financiën

Re:

Reference for a preliminary ruling — Hoge Raad der Nederlanden — Interpretation of Articles 4(3)(a) and 13B(g) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — Exemptions provided for in the Sixth Directive — Exemption for supplies of buildings and the land on which they stand — Supply of a building on which work is being carried out with a view to the creation of a new building — Continuation and completion of the work by the purchaser after the supply

Operative part of the judgment

Article 13B(g) of the 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, read in conjunction with Article 4(3)(a) of that directive, must be interpreted as meaning that the exemption from value added tax provided for in that first provision covers a supply of immovable property consisting of a plot of land and an old building undergoing transformation into a new building, such as that in issue in the main proceedings, where, at the time of that supply, the old building had only undergone partial demolition work and was, at least in part, still used as such.

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(1)  OJ C 269, 10.9.2011.

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/16 |
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Reference for a preliminary ruling from the Amtsgericht Düsseldorf (Germany) lodged on 4 May 2012 — Helmut Butz, Christel Bachman-Butz, Frederike Butz v Société Air France SA

(Case C-212/12)

2012/C 287/28

Language of the case: German

Referring court

Amtsgericht Düsseldorf

Parties to the main proceedings

Applicant: Helmut Butz, Christel Bachman-Butz, Frederike Butz

Defendant: Société Air France SA

Question referred

Is a passenger entitled to compensation under Article 7 of Regulation (EC) No 261/2004 (1) if the first flight is delayed by a period of time which falls within the limit defined in Article 6(1) of Regulation (EC) No 261/2004, but the connecting flight is delayed by a period of time which exceeds that limit and arrives at the place of final destination at least three hours after the scheduled time of arrival?

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(1)  Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1).

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/16 |
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Reference for a preliminary ruling from the Verwaltungsgericht Hannover (Germany) lodged on 11 May 2012 — Andreas Ingemar Thiele Meneses v Region Hannover

(Case C-220/12)

2012/C 287/29

Language of the case: German

Referring court

Verwaltungsgericht Hannover

Parties to the main proceedings

Applicant: Andreas Ingemar Thiele Meneses

Defendant: Region Hannover

Question referred

Does the right to freedom of movement and freedom of residence conferred on a Union citizen by Articles 20 and 21 TFEU preclude a regulatory system in national law under which German nationals with a permanent residence outside the Federal Republic of Germany may be awarded an education grant to attend an education establishment situated in a Member State of the European Union only if the education establishment is either in the country of permanent residence or in a neighbouring state of that country and, moreover, special circumstances of the individual case justify the grant?

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/17 |
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Reference for a preliminary ruling from the Raad van State (Netherlands), lodged on 4 June 2012 — A. Adil; other party: Minister voor Immigratie, Integratie en Asiel

(Case C-278/12)

2012/C 287/30

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Appellant: A. Adil

Other party: Minister voor Immigratie, Integratie en Asiel

Questions referred

| 1. | Must Article 21 of the Schengen Borders Code (1) be interpreted in such a way as to preclude the exercise of a national power, as conferred in Article 50 of the Vreemdelingenwet 2000 (Law on Foreign Nationals 2000) and set out in greater detail in Article 4.17a of the Vreemdelingenbesluit 2000 (Decree on Foreign Nationals 2000), to carry out checks on persons in areas behind internal borders with a view to establishing whether those persons satisfy the requirements for lawful residence laid down by the Member State concerned? |
| --- | --- |

1.

Must Article 21 of the Schengen Borders Code (1) be interpreted in such a way as to preclude the exercise of a national power, as conferred in Article 50 of the Vreemdelingenwet 2000 (Law on Foreign Nationals 2000) and set out in greater detail in Article 4.17a of the Vreemdelingenbesluit 2000 (Decree on Foreign Nationals 2000), to carry out checks on persons in areas behind internal borders with a view to establishing whether those persons satisfy the requirements for lawful residence laid down by the Member State concerned?

| 2. | (a) | Does Article 21 of the Schengen Borders Code preclude national checks, such as those referred to in Article 50 of the Vreemdelingenwet 2000, from being carried out on the basis of general information and experience regarding the illegal residence of persons at the place where the check is to be carried out, as referred to in Article 4.17a(2) of the Vreemdelingenbesluit 2000, or should there be concrete indications, when such checks are carried out, that an individual on whom checks are to be carried out is illegally resident in the Member State concerned? |
| --- | --- | --- |

2.

(a)

Does Article 21 of the Schengen Borders Code preclude national checks, such as those referred to in Article 50 of the Vreemdelingenwet 2000, from being carried out on the basis of general information and experience regarding the illegal residence of persons at the place where the check is to be carried out, as referred to in Article 4.17a(2) of the Vreemdelingenbesluit 2000, or should there be concrete indications, when such checks are carried out, that an individual on whom checks are to be carried out is illegally resident in the Member State concerned?

| (b) | Does Article 21 of the Schengen Borders Code preclude such a check from being carried out with a view to obtaining the general information and experience-based data regarding illegal residence referred to in (a) above, if this occurs to a limited extent? |
| --- | --- |

(b)

Does Article 21 of the Schengen Borders Code preclude such a check from being carried out with a view to obtaining the general information and experience-based data regarding illegal residence referred to in (a) above, if this occurs to a limited extent?

| 3. | Must Article 21 of the Schengen Borders Code be interpreted in such a way that the restriction of the power to carry out checks in such a way as that described in a statutory rule such as Article 4.17a of the Vreemdelingenbesluit 2000 constitutes a sufficient safeguard for the purpose of ensuring that a check cannot in fact have the effect of a border check prohibited by Article 21 of the Schengen Borders Code? |
| --- | --- |

3.

Must Article 21 of the Schengen Borders Code be interpreted in such a way that the restriction of the power to carry out checks in such a way as that described in a statutory rule such as Article 4.17a of the Vreemdelingenbesluit 2000 constitutes a sufficient safeguard for the purpose of ensuring that a check cannot in fact have the effect of a border check prohibited by Article 21 of the Schengen Borders Code?

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(1)  Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ 2006 L 105, p. 1).

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/17 |
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Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 20 June 2012 — Finanzamt Düsseldorf-Mitte v Ibero Tours GmbH

(Case C-300/12)

2012/C 287/31

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: Finanzamt Düsseldorf-Mitte

Defendant: Ibero Tours GmbH

Questions referred

| 1. | According to the principles of the judgment of the Court of Justice of the European Union in Case C-317/94 Elida Gibbs [1996] ECR I-5339, does it also result in a reduction of the taxable amount within the context of a distribution chain if an intermediary (here: a travel agent) refunds to the customer (here: a travel client) in the transaction arranged by him (here: services of the tour operator provided to the travel client) part of the price for the transaction arranged? |
| --- | --- |

1.

According to the principles of the judgment of the Court of Justice of the European Union in Case C-317/94 Elida Gibbs [1996] ECR I-5339, does it also result in a reduction of the taxable amount within the context of a distribution chain if an intermediary (here: a travel agent) refunds to the customer (here: a travel client) in the transaction arranged by him (here: services of the tour operator provided to the travel client) part of the price for the transaction arranged?

| 2. | In the event that Question 1 is answered in the affirmative: must the principles of the judgment of the Court of Justice of the European Union in Case C-317/94 Elida Gibbs [1996] ECR I-5339 also be applied if the tour operator’s transaction which has been arranged by the intermediary falls within the special scheme under Article 26 of the Sixth Council Directive of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes (77/388/EEC (1)) but the intermediary services of the travel agent do not fall within that provision? |
| --- | --- |

2.

In the event that Question 1 is answered in the affirmative: must the principles of the judgment of the Court of Justice of the European Union in Case C-317/94 Elida Gibbs [1996] ECR I-5339 also be applied if the tour operator’s transaction which has been arranged by the intermediary falls within the special scheme under Article 26 of the Sixth Council Directive of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes (77/388/EEC (1)) but the intermediary services of the travel agent do not fall within that provision?

| 3. | In the event that Question 2 is also answered in the affirmative: in the event of the exemption of the services arranged by the intermediary, is a Member State which has correctly transposed Article 11(C)(1) of the Sixth Council Directive of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes (77/388/EEC) authorised to refuse a reduction of the taxable amount only if in exercising the authority included in that provision it has provided for additional conditions on the refusal of the reduction? |
| --- | --- |

3.

In the event that Question 2 is also answered in the affirmative: in the event of the exemption of the services arranged by the intermediary, is a Member State which has correctly transposed Article 11(C)(1) of the Sixth Council Directive of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes (77/388/EEC) authorised to refuse a reduction of the taxable amount only if in exercising the authority included in that provision it has provided for additional conditions on the refusal of the reduction?

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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 L 145, 13.6.1977, p. 1).

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/18 |
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Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 20 June 2012 — X; other party: Minister van Financiën

(Case C-302/12)

2012/C 287/32

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Appellant: X

Other party: Minister van Financiën

Questions referred

| 1. | Is the exercise of powers of taxation by two Member States, in particular the imposition of a registration tax on a motor vehicle, unlimited in circumstances in which a citizen of the European Union lives, according to national laws, in two Member States, and in which that citizen actually uses — in both Member States and on a permanent basis — a motor vehicle that belongs to her? |
| --- | --- |

1.

Is the exercise of powers of taxation by two Member States, in particular the imposition of a registration tax on a motor vehicle, unlimited in circumstances in which a citizen of the European Union lives, according to national laws, in two Member States, and in which that citizen actually uses — in both Member States and on a permanent basis — a motor vehicle that belongs to her?

| 2. | If the first question is answered in the negative, can the principle of proportionality in the context of the imposition of a registration tax in a case such as this have a corrective effect, and, if so, does that principle then have the effect that one or both of the Member States is/are required to restrict the exercise of their powers of taxation, and how should any such restriction be manifested? |
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2.

If the first question is answered in the negative, can the principle of proportionality in the context of the imposition of a registration tax in a case such as this have a corrective effect, and, if so, does that principle then have the effect that one or both of the Member States is/are required to restrict the exercise of their powers of taxation, and how should any such restriction be manifested?

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/18 |
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Reference for a preliminary ruling from the Tribunal de première instance de Liège (Belgium) lodged on 21 June 2012 — Guido Imfeld, Nathalie Garcet v État belge

(Case C-303/12)

2012/C 287/33

Language of the case: French

Referring court

Tribunal de première instance de Liège (Belgium)

Parties to the main proceedings

Applicants: Guido Imfeld, Nathalie Garcet

Defendant: État belge

Question referred

Is it contrary to Article 39 [EC] that, as a result of the provision made under the Belgian tax system, specifically under Article 155 of the 1992 Income Tax Code and the second subparagraph of Article 134(1) of that Code, and regardless of whether Circular No Ci.RH.331/575.420 of 12 March 2008 is applied, the income earned in Germany by the first applicant — which is exempt from tax [in Belgium] pursuant to Article 17 of the Convention concluded between Germany and Belgium for the avoidance of double taxation — is taken into account for the purposes of calculating the tax payable in Belgium and is used as the basis of assessment for the grant of tax advantages provided for under the 1992 Income Tax Code, and those advantages, such as the tax-free allowance because of the first applicant’s family circumstances, are reduced or granted to a lesser extent than if the income of both applicants were earned in Belgium and if the higher income were that earned by the second applicant, rather than by the first applicant, whereas, in Germany, the income of the first applicant is taxed as though he were a single person and he is accordingly not entitled to all the tax advantages linked to his personal and family circumstances, of which the German tax authorities take account only in part?

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/18 |
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Reference for a preliminary ruling from the Landgericht Saarbrücken (Germany) lodged on 26 June 2012 — Spedition Welter GmbH v Avanssur S.A.

(Case C-306/12)

2012/C 287/34

Language of the case: German

Referring court

Landgericht Saarbrücken

Parties to the main proceedings

Applicant: Spedition Welter GmbH

Defendant: Avanssur S.A.

Questions referred

| 1. | Is Article 21(5) of Directive 2009/103/EC of the European Parliament and of the Council of 16 September 2009 relating to insurance against civil liability in respect of the use of motor vehicles, (1) and the enforcement of the obligation to insure against such liability (OJ 2009 L 263, p. 11-31;‘Directive 2009/103/EC’) to be interpreted to the effect that the powers of the claims representative include the authority to accept service for the insurance undertaking, with the result that, in an action for compensation for accidental damage brought by an injured party against the insurance undertaking, service by the court on the claims representative appointed by the insurance undertaking is effective against the insurance undertaking?
  If the first question is answered in the affirmative: |
| --- | --- |

1.

Is Article 21(5) of Directive 2009/103/EC of the European Parliament and of the Council of 16 September 2009 relating to insurance against civil liability in respect of the use of motor vehicles, (1) and the enforcement of the obligation to insure against such liability (OJ 2009 L 263, p. 11-31;‘Directive 2009/103/EC’) to be interpreted to the effect that the powers of the claims representative include the authority to accept service for the insurance undertaking, with the result that, in an action for compensation for accidental damage brought by an injured party against the insurance undertaking, service by the court on the claims representative appointed by the insurance undertaking is effective against the insurance undertaking?

If the first question is answered in the affirmative:

| 2. | Does Article 21(5) of Directive 2009/103/EC have direct effect in such a way that the injured party may rely on it before the national court, with the result that the national court must consider service on the insurance undertaking to be effective where service has been effected on the claims representative as the insurance undertaking’s ‘representative’, even though authority to accept service has not been granted by formal act and national law does not establish a statutory authority to accept service for such a case, but the service otherwise satisfies all the conditions laid down by national law? |
| --- | --- |

2.

Does Article 21(5) of Directive 2009/103/EC have direct effect in such a way that the injured party may rely on it before the national court, with the result that the national court must consider service on the insurance undertaking to be effective where service has been effected on the claims representative as the insurance undertaking’s ‘representative’, even though authority to accept service has not been granted by formal act and national law does not establish a statutory authority to accept service for such a case, but the service otherwise satisfies all the conditions laid down by national law?

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(1)  OJ 2009 L 263, p. 11.

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Reference for a preliminary ruling from the Tribunal Central Administrativo Norte (Portugal) lodged on 27 June 2012 — Maria Albertina Gomes Viana Novo and Others v Fundo de Garantia Salarial, IP

(Case C-309/12)

2012/C 287/35

Language of the case: Portuguese

Referring court

Tribunal Central Administrativo Norte

Parties to the main proceedings

Appellants: Maria Albertina Gomes Viana Novo, Ezequiel Martins Dias, Gabriel Inácio da Silva Fontes, Marcelino Jorge dos Santos Simões, Manuel Dourado Eusébio, Alberto Martins Mineiro, Armindo Gomes de Faria, José Fontes Cambas, Alberto Martins do Alto, José Manuel Silva Correia, Marilde Marisa Moreira Marques Moita, José Rodrigues Salgado Almeida, Carlos Manuel Sousa Oliveira, Manuel da Costa Moreira, Paulo da Costa Moreira, José Manuel Serra da Fonseca, Ademar Daniel Lourenço Dias, Ana Mafalda Azevedo Martins Ferreira

Respondent: Fundo de Garantia Salarial, IP

Question referred

Is European Union law in the specific context of guarantees covering wage claims in the event of the employer’s insolvency, in particular Articles 4 and 10 of Directive 80/987/EEC, (1) to be interpreted as precluding provisions of national law which guarantee only claims falling due in the six months preceding the initiation of insolvency proceedings against the employer, even where the employees have brought an action against their employer before the Tribunal do Trabalho (Labour Court) with a view to obtaining a judicial determination of the amount outstanding and an enforcement order to recover those sums?

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(1)  Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer (OJ 1980 L 283, p. 23).

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/19 |
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Reference for a preliminary ruling from the Arbeitsgericht Nienburg (Germany) lodged on 27 June 2012 — Heinz Kassner v Mittelweser-Tiefbau GmbH & Co

(Case C-311/12)

2012/C 287/36

Language of the case: German

Referring court

Arbeitsgericht Nienburg

Parties to the main proceedings

Applicant: Heinz Kassner

Defendant: Mittelweser-Tiefbau GmbH & Co

Questions referred

| 1. | Are Article 31 of the Charter of Fundamental Rights and Article 7(1) of Directive 2003/88/EC (1) of 4 November 2003 concerning certain aspects of the organisation of working time to be interpreted as precluding national legislation under which, in certain sectors, the length of the period of annual leave of at least four weeks may be reduced by way of collective agreement? |
| --- | --- |

1.

Are Article 31 of the Charter of Fundamental Rights and Article 7(1) of Directive 2003/88/EC (1) of 4 November 2003 concerning certain aspects of the organisation of working time to be interpreted as precluding national legislation under which, in certain sectors, the length of the period of annual leave of at least four weeks may be reduced by way of collective agreement?

| 2. | Are Article 31 of the Charter of Fundamental Rights and Article 7(1) of Directive 2003/88/EC of 4 November 2003 concerning certain aspects of the organisation of working time to be interpreted as precluding national legislation under which it may be provided in collective agreements that reductions in earnings occurring in the period of calculation as a result of short-time work, loss of working hours or non-culpable absence from work affect the calculation of the payment for annual leave with the result that the worker does not receive any payment for annual leave for the duration of the period of annual leave of at least four weeks, or does not receive any allowance in lieu of leave after the employment relationship has ended? |
| --- | --- |

2.

Are Article 31 of the Charter of Fundamental Rights and Article 7(1) of Directive 2003/88/EC of 4 November 2003 concerning certain aspects of the organisation of working time to be interpreted as precluding national legislation under which it may be provided in collective agreements that reductions in earnings occurring in the period of calculation as a result of short-time work, loss of working hours or non-culpable absence from work affect the calculation of the payment for annual leave with the result that the worker does not receive any payment for annual leave for the duration of the period of annual leave of at least four weeks, or does not receive any allowance in lieu of leave after the employment relationship has ended?

| 3. | If Question 2 is answered in the affirmative: Are Article 31 of the Charter of Fundamental Rights and Article 7(1) of Directive 2003/88/EC of 4 November 2003 concerning certain aspects of the organisation of working time to be interpreted as precluding national legislation under which it may be provided in collective agreements that reductions in earnings occurring in the period of calculation as a result of short-time work, loss of working hours or non-culpable absence from work affect the calculation of the payment for annual leave with the result that the worker receives a lower payment for annual leave for the duration of the period of annual leave of at least four weeks, or receives a lower allowance in lieu of leave after the employment relationship has ended, than he would receive if the calculation of the payment for annual leave were based on the average earnings which the worker would have received in the period of calculation without such reductions in earnings? If so, what is the maximum percentage, with reference to the worker’s full average earnings, that a collectively agreed reduction, permitted by national legislation, of the payment for annual leave as a result of short-time work, loss of working hours or non-culpable absence from work may have in the period of calculation in order for the interpretation of that national legislation to be regarded as in conformity with EU law? |
| --- | --- |

3.

If Question 2 is answered in the affirmative: Are Article 31 of the Charter of Fundamental Rights and Article 7(1) of Directive 2003/88/EC of 4 November 2003 concerning certain aspects of the organisation of working time to be interpreted as precluding national legislation under which it may be provided in collective agreements that reductions in earnings occurring in the period of calculation as a result of short-time work, loss of working hours or non-culpable absence from work affect the calculation of the payment for annual leave with the result that the worker receives a lower payment for annual leave for the duration of the period of annual leave of at least four weeks, or receives a lower allowance in lieu of leave after the employment relationship has ended, than he would receive if the calculation of the payment for annual leave were based on the average earnings which the worker would have received in the period of calculation without such reductions in earnings? If so, what is the maximum percentage, with reference to the worker’s full average earnings, that a collectively agreed reduction, permitted by national legislation, of the payment for annual leave as a result of short-time work, loss of working hours or non-culpable absence from work may have in the period of calculation in order for the interpretation of that national legislation to be regarded as in conformity with EU law?

| 4. | Are Article 31 of the Charter of Fundamental Rights and Article 7(1) of Directive 2003/88/EC of 4 November 2003 concerning certain aspects of the organisation of working time to be interpreted as precluding a provision in a national collective agreement under which a leave entitlement does not accrue for periods of the year in which a worker who is unfit for work due to sickness has not received remuneration, sick pay or injury benefit, in so far as, consequently, the worker has an entitlement to less than four weeks’ annual leave? |
| --- | --- |

4.

Are Article 31 of the Charter of Fundamental Rights and Article 7(1) of Directive 2003/88/EC of 4 November 2003 concerning certain aspects of the organisation of working time to be interpreted as precluding a provision in a national collective agreement under which a leave entitlement does not accrue for periods of the year in which a worker who is unfit for work due to sickness has not received remuneration, sick pay or injury benefit, in so far as, consequently, the worker has an entitlement to less than four weeks’ annual leave?

| 5. | Are Article 31 of the Charter of Fundamental Rights and Article 7(1) of Directive 2003/88/EC of 4 November 2003 concerning certain aspects of the organisation of working time to be interpreted as precluding a provision in a national collective agreement under which a paid annual leave entitlement — or after the employment relationship has ended an entitlement to an allowance in lieu of leave — does not accrue in years in which, as a result of loss of working hours or non-culpable absence from work, in particular due to sickness, no gross wage is earned? |
| --- | --- |

5.

Are Article 31 of the Charter of Fundamental Rights and Article 7(1) of Directive 2003/88/EC of 4 November 2003 concerning certain aspects of the organisation of working time to be interpreted as precluding a provision in a national collective agreement under which a paid annual leave entitlement — or after the employment relationship has ended an entitlement to an allowance in lieu of leave — does not accrue in years in which, as a result of loss of working hours or non-culpable absence from work, in particular due to sickness, no gross wage is earned?

| 6. | Are Article 31 of the Charter of Fundamental Rights and Article 7(1) of Directive 2003/88/EC of 4 November 2003 concerning certain aspects of the organisation of working time to be interpreted as precluding a provision in a national collective agreement under which entitlements to leave and to an allowance in lieu of leave expire at the end of the calendar year following the year in which the leave entitlements accrued, thereby limiting the possibility for a worker who is unfit for work for several consecutive reference periods to accumulate entitlements to paid annual leave? If so, is EU law applied better and more effectively in national law if such a collectively agreed rule is disapplied entirely, or if the rule is developed in conformity with EU law in such a way that, rather than the annual period, a certain longer period applies? |
| --- | --- |

6.

Are Article 31 of the Charter of Fundamental Rights and Article 7(1) of Directive 2003/88/EC of 4 November 2003 concerning certain aspects of the organisation of working time to be interpreted as precluding a provision in a national collective agreement under which entitlements to leave and to an allowance in lieu of leave expire at the end of the calendar year following the year in which the leave entitlements accrued, thereby limiting the possibility for a worker who is unfit for work for several consecutive reference periods to accumulate entitlements to paid annual leave? If so, is EU law applied better and more effectively in national law if such a collectively agreed rule is disapplied entirely, or if the rule is developed in conformity with EU law in such a way that, rather than the annual period, a certain longer period applies?

| 7. | If one or more of Questions 1 to 5 are answered in the affirmative: Do the general principle of legal certainty laid down by EU law and the principle of non-retroactivity allow the possibility of relying on the Court’s interpretation of Article 31 of the Charter of Fundamental Rights and Article 7(1) of Directive 2003/88/EC of 4 November 2003 concerning certain aspects of the organisation of working time in the preliminary ruling to be given in the present case to be limited in time, with effect for all parties, because the highest national courts have previously ruled that the relevant national legislation and collectively agreed rules are not amenable to an interpretation in conformity with EU law? If the Court answers this question in the negative: Is it compatible with EU law if, on the basis of national law, the national courts grant protection of legitimate expectations to employers, who have relied on the continued application of the case-law developed by the highest national courts, or is the grant of protection of legitimate expectations reserved for the Court of Justice of the European Union? |
| --- | --- |

7.

If one or more of Questions 1 to 5 are answered in the affirmative: Do the general principle of legal certainty laid down by EU law and the principle of non-retroactivity allow the possibility of relying on the Court’s interpretation of Article 31 of the Charter of Fundamental Rights and Article 7(1) of Directive 2003/88/EC of 4 November 2003 concerning certain aspects of the organisation of working time in the preliminary ruling to be given in the present case to be limited in time, with effect for all parties, because the highest national courts have previously ruled that the relevant national legislation and collectively agreed rules are not amenable to an interpretation in conformity with EU law? If the Court answers this question in the negative: Is it compatible with EU law if, on the basis of national law, the national courts grant protection of legitimate expectations to employers, who have relied on the continued application of the case-law developed by the highest national courts, or is the grant of protection of legitimate expectations reserved for the Court of Justice of the European Union?

---

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

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/20 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/20

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Reference for a preliminary ruling from the Tribunal du travail de Huy (Belgium) lodged on 28 June 2012 — Agim Ajdini v État belge, Service des Allocations aux Handicapés

(Case C-312/12)

2012/C 287/37

Language of the case: French

Referring court

Tribunal du travail de Huy

Parties to the main proceedings

Applicant: Agim Ajdini

Defendant: État belge, Service des Allocations aux Handicapés

Questions referred

| 1. | Is Article 4 of the Law of 27 February 1987 on Disability Benefits compatible with European Union Law, and in particular with the Charter of Fundamental Rights of the European Union (200/C 364/01), inter alia Articles 20, 21 and 26 thereof, in so far as it excludes from entitlement to disability benefits, solely on grounds of nationality, a foreign national who is lawfully resident in Belgium, is entered in the Aliens Register and has strong and long-standing links with Belgium, having lived there with his family for 12 years, with the particular circumstance that that foreign person is a national of a third country which is an official candidate for accession to the European Union? |
| --- | --- |

1.

Is Article 4 of the Law of 27 February 1987 on Disability Benefits compatible with European Union Law, and in particular with the Charter of Fundamental Rights of the European Union (200/C 364/01), inter alia Articles 20, 21 and 26 thereof, in so far as it excludes from entitlement to disability benefits, solely on grounds of nationality, a foreign national who is lawfully resident in Belgium, is entered in the Aliens Register and has strong and long-standing links with Belgium, having lived there with his family for 12 years, with the particular circumstance that that foreign person is a national of a third country which is an official candidate for accession to the European Union?

| 2. | Is Article 26(4) of the Special Law of 6 January 1989 on the Court of Arbitration compatible with European law, and in particular with Article 234 of the Treaty establishing the European Community? |
| --- | --- |

2.

Is Article 26(4) of the Special Law of 6 January 1989 on the Court of Arbitration compatible with European law, and in particular with Article 234 of the Treaty establishing the European Community?

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/21 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/21

---

Reference for a preliminary ruling from the Naczelny Sąd Administracyjny (Poland) lodged on 2 July 2012 — Minister of Finance v MDDP Sp. z o.o., Akademia Biznesu, Sp. komandytowa

(Case C-319/12)

2012/C 287/38

Language of the case: Polish

Referring court

Naczelny Sąd Administracyjny

Parties to the main proceedings

Applicant: Minister of Finance

Defendant: MDDP Sp. z o.o., Akademia Biznesu, Sp. komandytowa

Questions referred

| 1. | Should point (i) of Article 132(1), Article 133 and Article 134 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, (1) as amended, ‘Directive 2006/112’, be interpreted as precluding exemption from value added tax of educational services provided for commercial purposes by bodies not governed by public law which follows from Article 43(1)(1) of the Ustawa z dnia 11 marca 2004 r. o podatku od towarów und usług (Law of 11 March 2004 on taxation of goods and services) (Dz. U. No 54, 535, as amended) in conjunction with Item 7 of Annex 4 to that Law, in the version in force in 2010? |
| --- | --- |

1.

Should point (i) of Article 132(1), Article 133 and Article 134 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, (1) as amended, ‘Directive 2006/112’, be interpreted as precluding exemption from value added tax of educational services provided for commercial purposes by bodies not governed by public law which follows from Article 43(1)(1) of the Ustawa z dnia 11 marca 2004 r. o podatku od towarów und usług (Law of 11 March 2004 on taxation of goods and services) (Dz. U. No 54, 535, as amended) in conjunction with Item 7 of Annex 4 to that Law, in the version in force in 2010?

| 2. | If the answer to the first question is in the affirmative, does this mean that due to the incompatibility of the exemption with the provisions of Directive 2006/112, Article 168 of the directive grants taxpayers both the right to apply the tax exemption and to deduct input VAT? |
| --- | --- |

2.

If the answer to the first question is in the affirmative, does this mean that due to the incompatibility of the exemption with the provisions of Directive 2006/112, Article 168 of the directive grants taxpayers both the right to apply the tax exemption and to deduct input VAT?

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

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/21 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/21

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Reference for a preliminary ruling from the Centrale Raad van Beroep (Netherlands), lodged on 2 July 2012 — F. van der Helder, D. Farrington v College voor zorgverzekeringen (Cvz)

(Case C-321/12)

2012/C 287/39

Language of the case: Dutch

Referring court

Centrale Raad van Beroep

Parties to the main proceedings

Appellants: F. van der Helder, D. Farrington

Respondent: College voor zorgverzekeringen (Cvz)

Question referred

Does the phrase ‘legislation [to which] the pensioner has been subject for the longest period of time’ in Article 28(2)(b) of Regulation (EEC) No 1408/71 (1) refer to legislation concerning benefits in respect of sickness and maternity, to legislation concerning cash benefits in respect of old age, or to all legislation concerning the branches of social security mentioned in Article 4 of Regulation No 1408/71 which were applicable pursuant to Title II of that regulation?

---

(1)  Council Regulation of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (OJ, English Special Edition 1971 (II), p. 416).

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/22 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/22

---

Reference for a preliminary ruling from the Cour de cassation (Belgium) lodged on 4 July 2012 — État belge — SPF Finances v GIMLE SA

(Case C-322/12)

2012/C 287/40

Language of the case: French

Referring court

Cour de cassation

Parties to the main proceedings

Applicant: État belge — SPF Finances

Defendant: GIMLE SA

Question referred

Must Article 2(3), (4) and (5) of Fourth Council Directive 78/660/EEC of 25 July 1978 based on Article 54(3)(g) of the Treaty on the annual accounts of certain types of companies (1) be interpreted as not only providing that additional information must be provided in the notes on the annual accounts but also requiring that — where the acquisition cost clearly does not reflect the real value of the assets concerned, thus giving a distorted view of the undertaking’s assets, liabilities, financial position and profit or loss — the rule that assets are to be entered in the accounts at their acquisition cost must be departed from and such assets immediately recognised as having their resale value, if that appears to be the real value?

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(1)  OJ 1978 L 222, p. 11.

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/22 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/22

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Action brought on 10 July 2012 — European Commission v Portuguese Republic

(Case C-325/12)

2012/C 287/41

Language of the case: Portuguese

Parties

Applicant: European Commission (represented by: P. Hetsch, P. Guerra e Andrade and L. Nicolae, acting as Agents)

Defendant: Portuguese Republic

Form of order sought

The applicant claims that the Court should:

| — | declare that, by not adopting all the laws, regulations and administrative provisions necessary to comply with Directive 2009/136/EC (1) of the European Parliament and of the Council of 25 November 2009 amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services, Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector and Regulation (EC) No 2006/2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws, or, in any event, by not notifying those provisions to the Commission, the Portuguese Republic has failed to fulfil its obligations under Article 4 of Directive 2009/136/EC; |
| --- | --- |

—

declare that, by not adopting all the laws, regulations and administrative provisions necessary to comply with Directive 2009/136/EC (1) of the European Parliament and of the Council of 25 November 2009 amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services, Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector and Regulation (EC) No 2006/2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws, or, in any event, by not notifying those provisions to the Commission, the Portuguese Republic has failed to fulfil its obligations under Article 4 of Directive 2009/136/EC;

| — | in accordance with Article 260(3) TFEU, order the Portuguese Republic to pay a penalty in the amount of EUR 22 014,72 per day, starting from the day the Court delivers its judgment, for having failed to communicate all the measures adopted to transpose Directive 2009/136/EC; |
| --- | --- |

—

in accordance with Article 260(3) TFEU, order the Portuguese Republic to pay a penalty in the amount of EUR 22 014,72 per day, starting from the day the Court delivers its judgment, for having failed to communicate all the measures adopted to transpose Directive 2009/136/EC;

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

—

order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

The Portuguese State has failed to adopt all the measures necessary to transpose Directive 2009/136/EC or, in any event, to communicate such measures to the Commission.

The Portuguese State attempted to transpose Directive 2009/136/EC into national law only in so far as it amends Directive 2002/22/EC. The part of Directive 2009/136/EC which amended Directive 2002/58/EC (Privacy and Electronic Communications) still needed transposing.

Pursuant to Article 260(3) TFEU, the Commission may request the Court, when bringing an action for failure to act under Article 258 TFEU, to order, in its judgment finding that the Member State has failed to comply with its obligation to notify the Commission of measures transposing a directive adopted under a legislative procedure, the Member State at issue to pay a lump sum or a penalty payment

Pursuant to the Communication from the Commission on the implementation of Article 260(3) TFEU, (2) a periodic penalty payment proposed by the Commission is calculated in accordance with the method set out in the Communication regarding reform of the implementation of Article 228 of the EC Treaty.

Consequently, the calculation of the fine is based on the severity of the infringement, the duration of the infringement and the need to ensure the deterrent effect of the sanction.

The Commission proposes that the coefficient for severity be set at 8, taking account of the importance of the provisions of European Union law which have been infringed and the consequences of the infringement in terms of general and particular interests.

---

(1)  OJ 2009 L 337, p. 11.

(2)  OJ 2011 C 12, p. 1.

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/23 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/23

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Action brought on 11 July 2012 — European Commission v Federal Republic of Germany

(Case C-329/12)

2012/C 287/42

Language of the case: German

Parties

Applicant: European Commission (represented by: P. Hetsch und B. Schima, Agents)

Defendant: Federal Republic of Germany

Form of order sought

The applicant claims that the Court should:

| — | rule that, by failing to enact in full the laws, regulations and administrative provisions necessary to ensure transposition of Directive 2006/24/EC (1) of the European Parliament and 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 and, in any event, by not notifying those provisions in full to the Commission, the Federal Republic of Germany has failed to fulfil its obligations under that directive; |
| --- | --- |

—

rule that, by failing to enact in full the laws, regulations and administrative provisions necessary to ensure transposition of Directive 2006/24/EC (1) of the European Parliament and 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 and, in any event, by not notifying those provisions in full to the Commission, the Federal Republic of Germany has failed to fulfil its obligations under that directive;

| — | impose, under Article 260(3) TFEU, by reason of the infringement of the obligation to notify transposition measures, a penalty payment in the amount of EUR 315 036,54 per day on the Federal Republic of Germany, payable to the own resources account of the European Union; |
| --- | --- |

—

impose, under Article 260(3) TFEU, by reason of the infringement of the obligation to notify transposition measures, a penalty payment in the amount of EUR 315 036,54 per day on the Federal Republic of Germany, payable to the own resources account of the European Union;

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

—

order the Federal Republic of Germany to pay the costs of the proceedings.

Pleas in law and main arguments

The period within which the directive at issue had to be transposed expired on 15 September 2007.

By a judgement of 2 March 2010, the Bundesverfassungsgericht (German Federal Constitutional Court) ruled that the transposition measures adopted by the Federal Republic of Germany were unconstitutional and void. As a result, the German Government first informed the Commission that the directive had been partially transposed through legislation in force. Subsequently the German Government notified the draft version of a Law transposing the remaining provisions of the directive.

Since the draft concerned has not, as yet, been adopted, it is, according to the Commission, not open to dispute that the Federal Republic of Germany has failed to meet its obligation to transpose the directive in full. The abovementioned partial transposition is, in the Commission’s view, insufficient to attain the objectives of the directive under Article 1. Finally, the Commission points out that, in its opinion, the draft Law notified to it by Germany is insufficient for purposes of full implementation of the directive.

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(1)  OJ 2006 L 105, p. 54.

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/23 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/23

---

Action brought on 9 July 2012 — European Commission v Republic of Poland

(Case C-330/12)

2012/C 287/43

Language of the case: Polish

Parties

Applicant: European Commission (represented by: P. Hetsch, L. Nicolae and J. Hottiaux, acting as Agents)

Defendant: Republic of Poland

Form of order sought

| — | declare that, by not adopting the laws, regulations and administrative provisions necessary to give effect to Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009 amending Directives 2002/21/EC on a common regulatory framework for electronic communications networks and services, 2002/19/EC on access to, and interconnection of, electronic communications networks and associated facilities, and 2002/20/EC on the authorisation of electronic communications networks and services, (1) and in any event by not informing the Commission of those provisions, the Republic of Poland has failed to fulfil its obligations under Article 5 of that directive; |
| --- | --- |

—

declare that, by not adopting the laws, regulations and administrative provisions necessary to give effect to Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009 amending Directives 2002/21/EC on a common regulatory framework for electronic communications networks and services, 2002/19/EC on access to, and interconnection of, electronic communications networks and associated facilities, and 2002/20/EC on the authorisation of electronic communications networks and services, (1) and in any event by not informing the Commission of those provisions, the Republic of Poland has failed to fulfil its obligations under Article 5 of that directive;

| — | impose on the Republic of Poland, in accordance with Article 260(3) TFEU, a periodic penalty payment for failure to comply with its obligation to notify the Commission of the measures for transposing Directive 2009/140, at a daily rate of EUR 56 095,2, payable from the date on which judgment is delivered in the present case; |
| --- | --- |

—

impose on the Republic of Poland, in accordance with Article 260(3) TFEU, a periodic penalty payment for failure to comply with its obligation to notify the Commission of the measures for transposing Directive 2009/140, at a daily rate of EUR 56 095,2, payable from the date on which judgment is delivered in the present case;

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

—

order the Republic of Poland to pay the costs.

Pleas in law and main arguments

The period within which Directive 2009/140 had to be transposed expired on 25 May 2011.

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(1)  OJ 2009 L 337, p. 37.

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/24 |
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22.9.2012

EN

Official Journal of the European Union

C 287/24

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Action brought on 9 July 2012 — European Commission v Republic of Poland

(Case C-331/12)

2012/C 287/44

Language of the case: Polish

Parties

Applicant: European Commission (represented by: P. Hetsch, L. Nicolae and J. Hottiaux, acting as Agents)

Defendant: Republic of Poland

Form of order sought

| — | declare that, by not adopting the laws, regulations and administrative provisions necessary to give effect to Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009 amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services, Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector and Regulation (EC) No 2006/2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws, (1) and in any event by not informing the Commission of those provisions, the Republic of Poland has failed to fulfil its obligations under Article 4 of that directive; |
| --- | --- |

—

declare that, by not adopting the laws, regulations and administrative provisions necessary to give effect to Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009 amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services, Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector and Regulation (EC) No 2006/2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws, (1) and in any event by not informing the Commission of those provisions, the Republic of Poland has failed to fulfil its obligations under Article 4 of that directive;

| — | impose on the Republic of Poland, in accordance with Article 260(3) TFEU, a periodic penalty payment for failure to comply with its obligation to notify the Commission of the measures for transposing Directive 2009/136, at a daily rate of EUR 56 095,2, payable from the date on which judgment is delivered in the present case; |
| --- | --- |

—

impose on the Republic of Poland, in accordance with Article 260(3) TFEU, a periodic penalty payment for failure to comply with its obligation to notify the Commission of the measures for transposing Directive 2009/136, at a daily rate of EUR 56 095,2, payable from the date on which judgment is delivered in the present case;

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

—

order the Republic of Poland to pay the costs.

Pleas in law and main arguments

The period within which Directive 2009/136 had to be transposed expired on 25 May 2011.

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(1)  OJ 2009 L 337, p. 11.

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/24 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/24

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Action brought on 10 July 2012 — European Commission v Republic of Poland

(Case C-332/12)

2012/C 287/45

Language of the case: Polish

Parties

Applicant: European Commission (represented by: P. Hetsch, L. Nicolae and J. Hottiaux, acting as Agents)

Defendant: Republic of Poland

Form of order sought

| — | declare that, by not adopting the laws, regulations and administrative provisions necessary to comply with Directive 2009/18/EC of the European Parliament and of the Council of 23 April 2009 establishing the fundamental principles governing the investigation of accidents in the maritime transport sector and amending Council Directive 1999/35/EC and Directive 2002/59/EC of the European Parliament and of the Council, (1) and in any event by not informing the Commission of such provisions, the Republic of Poland has failed to fulfil its obligations under Article 25 of that directive; |
| --- | --- |

—

declare that, by not adopting the laws, regulations and administrative provisions necessary to comply with Directive 2009/18/EC of the European Parliament and of the Council of 23 April 2009 establishing the fundamental principles governing the investigation of accidents in the maritime transport sector and amending Council Directive 1999/35/EC and Directive 2002/59/EC of the European Parliament and of the Council, (1) and in any event by not informing the Commission of such provisions, the Republic of Poland has failed to fulfil its obligations under Article 25 of that directive;

| — | impose on the Republic of Poland, in accordance with Article 260(3) TFEU, a penalty payment for failure to comply with the obligation to notify measures transposing Directive 2009/18, at a daily rate of EUR 56 095,20 and payable from the date on which judgment is delivered in the present case; |
| --- | --- |

—

impose on the Republic of Poland, in accordance with Article 260(3) TFEU, a penalty payment for failure to comply with the obligation to notify measures transposing Directive 2009/18, at a daily rate of EUR 56 095,20 and payable from the date on which judgment is delivered in the present case;

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

—

order the Republic of Poland to pay the costs.

Pleas in law and main arguments

The period for transposition of the directive expired on 17 June 2011.

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(1)  OJ 2009 L 131, p. 114.

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/24 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/24

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Action brought on 11 July 2012 — European Commission v Republic of Poland

(Case C-333/12)

2012/C 287/46

Language of the case: Polish

Parties

Applicant: European Commission (represented by: P. Hetsch, C. Vrignon and J. Hottiaux, acting as Agents)

Defendant: Republic of Poland

Form of order sought

| — | declare that, by not adopting all the laws, regulations and administrative provisions necessary to comply with Directive 2007/65/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities, (1) and in any event by not informing the Commission of such provisions, the Republic of Poland has failed to fulfil its obligations under Article 3 of that directive; |
| --- | --- |

—

declare that, by not adopting all the laws, regulations and administrative provisions necessary to comply with Directive 2007/65/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities, (1) and in any event by not informing the Commission of such provisions, the Republic of Poland has failed to fulfil its obligations under Article 3 of that directive;

| — | impose on the Republic of Poland, in accordance with Article 260(3) TFEU, a penalty payment for failure to comply with the obligation to notify measures transposing Directive 2007/65, at a daily rate of EUR 112 190,40 and payable from the date on which judgment is delivered in the present case; |
| --- | --- |

—

impose on the Republic of Poland, in accordance with Article 260(3) TFEU, a penalty payment for failure to comply with the obligation to notify measures transposing Directive 2007/65, at a daily rate of EUR 112 190,40 and payable from the date on which judgment is delivered in the present case;

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

—

order the Republic of Poland to pay the costs.

Pleas in law and main arguments

The period for transposition of the directive expired on 19 December 2011.

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(1)  OJ 2007 L 332, p. 27.

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/25 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/25

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Reference for a preliminary ruling from the Østre Landsret lodged on 16 July 2012 — Ministeriet for Forskning, Innovation og Videregående Uddannelser v Manova A/S

(Case C-336/12)

2012/C 287/47

Language of the case: Danish

Referring court

Østre Landsret

Parties to the main proceedings

Applicant: Ministeriet for Forskning, Innovation og Videregående Uddannelser

Defendant: Manova A/S

Question referred

Does the EU law principle of equal treatment mean that a contracting authority, following expiry of the time-limit for applying to take part in a tendering procedure, may not obtain information required in the call for tenders concerning a tenderer’s most recent published balance sheet, when the tenderer in question did not provide such a balance sheet in its application for pre-qualification?

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/25 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/25

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Appeal brought on 17 July 2012 by Mizuno KK against the judgment of the General Court (Fourth Chamber) of 8 May 2012 in Case T-101/11 Mizuno KK v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-341/12 P)

2012/C 287/48

Language of the case: German

Parties to the proceedings

Appellant: Mizuno KK (represented by: T. Wessing, T. Raab and H. Lauf, Rechtsanwälte)

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

Form of order sought

The appellant claims that the Court should:

| — | set aside the judgment of the General Court of 8 May 2012 in Case T-101/11 and the decision of the First Board of Appeal of OHIM of 15 December 2010 — Case R 0821/2010-1; |
| --- | --- |

—

set aside the judgment of the General Court of 8 May 2012 in Case T-101/11 and the decision of the First Board of Appeal of OHIM of 15 December 2010 — Case R 0821/2010-1;

| — | order the other party to the proceedings to pay the costs incurred both at first instance and in the present proceedings. |
| --- | --- |

—

order the other party to the proceedings to pay the costs incurred both at first instance and in the present proceedings.

Grounds of appeal and main arguments

The present appeal challenges the General Court’s judgment of 8 May 2012 in Case T-101/11, whereby the General Court dismissed the appellant’s action against the decision of the First Board of Appeal of OHIM of 15 December 2010 (Case R 821/2010-1) relating to opposition proceedings between Golfino AG and Mizuno KK.

The appellant bases its appeal essentially on the following grounds:

| | The General Court erred in law in its assessment of the scope of protection and the distinctiveness of an existing figurative mark comprising the letter ‘G’ and the symbol ‘+’. The General Court wrongly proceeded on the basis that the combination of both those elements was of no importance. |
| --- | --- |

The General Court erred in law in its assessment of the scope of protection and the distinctiveness of an existing figurative mark comprising the letter ‘G’ and the symbol ‘+’. The General Court wrongly proceeded on the basis that the combination of both those elements was of no importance.

| | Hence, the General Court wrongly found that there was a likelihood of confusion between the earlier figurative mark and the mark applied for by the appellant, comprising the letter ‘G’, the symbol ‘+’, and an arrow symbol, inasmuch as, in the assessment of the similarity of the signs, the General Court did not focus on the overall impression of the two marks, but rather on their individual details. |
| --- | --- |

Hence, the General Court wrongly found that there was a likelihood of confusion between the earlier figurative mark and the mark applied for by the appellant, comprising the letter ‘G’, the symbol ‘+’, and an arrow symbol, inasmuch as, in the assessment of the similarity of the signs, the General Court did not focus on the overall impression of the two marks, but rather on their individual details.

| | In doing so, the General Court incorrectly assumed that the similarity of the letter ‘G’ in both figurative marks was of greater importance than their other, different, elements. In order properly to assess the marks, the General Court ought, however, to have examined only the overall symbols, and not focused on the letters ‘G’ in isolation. |
| --- | --- |

In doing so, the General Court incorrectly assumed that the similarity of the letter ‘G’ in both figurative marks was of greater importance than their other, different, elements. In order properly to assess the marks, the General Court ought, however, to have examined only the overall symbols, and not focused on the letters ‘G’ in isolation.

| | Although it is true that both of the marks at issue consist in the phoneme/g/, the focal point of the marks clearly lies in their graphic design and not in their phonetic arrangement. Consequently, the existence of a likelihood of confusion between the two marks has not been shown. |
| --- | --- |

Although it is true that both of the marks at issue consist in the phoneme/g/, the focal point of the marks clearly lies in their graphic design and not in their phonetic arrangement. Consequently, the existence of a likelihood of confusion between the two marks has not been shown.

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/26 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/26

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Action brought on 18 July 2012 — European Commission v Italian Republic

(Case C-344/12)

2012/C 287/49

Language of the case: Italian

Parties

Applicant: European Commission (represented by: D. Grespan and G. Conte, acting as Agents)

Defendant: Italian Republic

Form of order sought

| — | Declare that, by having failed to adopt, within the periods prescribed, all the measures necessary to implement Decision C(2009) 8112 of 19 November 2009 concerning State aids Nos C 38/A/2004 (ex NN 58/2004) and C 36/B/2006 (ex NN 38/2006) granted by Italy to Alcoa Trasformazioni, the Italian Republic has failed to fulfil its obligations under Articles 2, 3 and 4 of that decision and under Article 288 TFEU; |
| --- | --- |

—

Declare that, by having failed to adopt, within the periods prescribed, all the measures necessary to implement Decision C(2009) 8112 of 19 November 2009 concerning State aids Nos C 38/A/2004 (ex NN 58/2004) and C 36/B/2006 (ex NN 38/2006) granted by Italy to Alcoa Trasformazioni, the Italian Republic has failed to fulfil its obligations under Articles 2, 3 and 4 of that decision and under Article 288 TFEU;

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

—

order the Italian Republic to pay the costs.

Pleas in law and main arguments

The subject-matter of the Commission’s action is the failure by the Italian Republic to give effect to the Commission’s decision relating to unlawful State aid granted to the company Alcoa.

First, pursuant to Article 4 of the decision in question, Italy was required to notify the Commission, by 20 January 2010, of the total amount of the aid to be recovered, of the measures adopted and envisaged for the purpose of complying with the decision and of the documents showing that the beneficiary had been required to repay the aid. Second, in accordance with Article 2, in conjunction with Article 3, of the decision, Italy was required to recover the aid from the beneficiary by 20 March 2010.

As at the date of commencement of this action, the defendant had not yet adopted all the measures necessary to comply with those obligations.

---

| 22.9.2012 | EN | Official Journal of the European Union | C 287/26 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/26

---

Action brought on 19 July 2012 — European Commission v Italian Republic

(Case C-345/12)

2012/C 287/50

Language of the case: Italian

Parties

Applicant: European Commission (represented by: E. Montaguti and K. Hermann, acting as Agents)

Defendant: Italian Republic

Form of order sought

| — | Declare that, by failing to lay down an obligation to make available, when buildings are sold or rented out, an energy performance certificate, in accordance with the provisions, and on the conditions, laid down in Articles 7 and 10 of Directive 2002/91/EC of the European Parliament and of the Council of 16 December 2002 on the energy performance of buildings, (1) the Italian Republic has failed to fulfil its obligations under Article 7(1) and (2) and Article 10 of that directive, in conjunction with Article 29 of Directive 2010/31/EU of the European Parliament and of the Council of 19 May 2010 on the energy performance of buildings; (2) |
| --- | --- |

—

Declare that, by failing to lay down an obligation to make available, when buildings are sold or rented out, an energy performance certificate, in accordance with the provisions, and on the conditions, laid down in Articles 7 and 10 of Directive 2002/91/EC of the European Parliament and of the Council of 16 December 2002 on the energy performance of buildings, (1) the Italian Republic has failed to fulfil its obligations under Article 7(1) and (2) and Article 10 of that directive, in conjunction with Article 29 of Directive 2010/31/EU of the European Parliament and of the Council of 19 May 2010 on the energy performance of buildings; (2)

| — | declare that, by having failed to notify all the measures transposing Article 9 of Directive 2002/91/EC, the Italian Republic has failed to fulfil its obligations under Article 15(1) of that directive, in conjunction with Article 29 of Directive 2010/31/EU of the European Parliament and of the Council of 19 May 2010 on the energy performance of buildings; |
| --- | --- |

—

declare that, by having failed to notify all the measures transposing Article 9 of Directive 2002/91/EC, the Italian Republic has failed to fulfil its obligations under Article 15(1) of that directive, in conjunction with Article 29 of Directive 2010/31/EU of the European Parliament and of the Council of 19 May 2010 on the energy performance of buildings;

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

—

order the Italian Republic to pay the costs.

Pleas in law and main arguments

The period for transposing Directive 2002/91/EC expired on 4 January 2006. The period for transposing Articles 7 to 9 of that directive expired on 4 January 2009 and, in the Commission’s submission, Article 28 of Directive 2010/31/EU, which allows Member States to defer the application of the requirement to make energy performance certificates available, does not cover certificates already issued or to be issued on the basis of Article 7(1) of Directive 2002/91/EC.

At the date of commencement of this action, the defendant had not yet adopted all the measures necessary to implement the directive.

---

(1)  OJ 2003 L 65, p. 1.

(2)  OJ 2010 L 153, p. 13.

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/26 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/26

---

Appeal brought on 19 July 2012 by DMK Deutsches Milchkontor GmbH (formerly Nordmilch AG) against the judgment of the General Court (Fourth Chamber) delivered on 22 May 2012 in Case T-546/10 Nordmilch AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-346/12 P)

2012/C 287/51

Language of the case: German

Parties

Appellant: DMK Deutsches Milchkontor GmbH (formerly Nordmilch AG) (represented by: W. Berlit, Rechtsanwalt)

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

Form of order sought

| — | Set aside points 1 and 2 of the operative part of the judgment of the General Court of 22 May 2012 (Case T-546/10); |
| --- | --- |

—

Set aside points 1 and 2 of the operative part of the judgment of the General Court of 22 May 2012 (Case T-546/10);

| — | grant in full the applications made at first instance; |
| --- | --- |

—

grant in full the applications made at first instance;

| — | order Lactimilk, SA to pay the costs incurred by the appellant in the entire proceedings. |
| --- | --- |

—

order Lactimilk, SA to pay the costs incurred by the appellant in the entire proceedings.

Pleas in law and main arguments

The appellant submits that the contested decision of the General Court should be set aside because the General Court wrongly found a similarity between the trade mark applied for by the appellant and the trade marks of Lactimilk SA, and thus, in concluding that there is a likelihood of confusion, incorrectly applied Article 8(1)(b) of Regulation No 40/94. The General Court erred in failing to compare the marks actually at issue as written in the manner in which they were applied for or registered (that is in capital letters), instead examining the likelihood of confusion on the basis of both marks written differently. In so doing the General Court distorted the facts. Moreover, the General Court wrongly assumed that the stress in the trade mark applied for falls on the second syllable, notwithstanding the fact that the trade mark applied for is written in capital letters so that, on the basis of the way in which it would be understood in Spanish also, there can be no question of the stress in the trade mark applied for falling only on the second syllable.

---

| 22.9.2012 | EN | Official Journal of the European Union | C 287/27 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/27

---

Reference for a preliminary ruling from the Cour de cassation du Grand-Duché de Luxembourg (Luxembourg), lodged on 20 July 2012 — Caisse nationale des prestations familiales v Ulrike Wiering, Markus Wiering

(Case C-347/12)

2012/C 287/52

Language of the case: French

Referring court

Cour de cassation du Grand-Duché de Luxembourg

Parties to the main proceedings

Appellant: Caisse nationale des prestations familiales

Respondents: Ulrike Wiering, Markus Wiering

Question referred

For the calculation of any differential allowance that may be due, in accordance with Articles 1(u)(i), 4(1)(h) and 76 of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, (1) as amended, and with Article 10[(1)](b)(i) of Council Regulation (EEC) No 574/72 of 21 March 1972 fixing the procedure for implementing Regulation (EEC) No 1408/71, (2) by the competent institution of the State of the place of work, is it necessary to take into account, as family benefits of the same kind, all of the benefits received by the family of the migrant worker in the State of residence, in the present case the ‘Elterngeld’ and ‘Kindergeld’ provided for by German legislation?

---

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

(2)  OJ, English Special Edition 1972(I), p. 160.

---

| 22.9.2012 | EN | Official Journal of the European Union | C 287/27 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/27

---

Appeal brought on 16 July 2012 by Council of the European Union against the judgment of the General Court (Fourth Chamber) delivered on 25 April 2012 in Case T-509/10 Manufacturing Support & Procurement Kala Naft v Council

(Case C-348/12 P)

2012/C 287/53

Language of the case: French

Parties

Appellant: Council of the European Union (represented by: M. Bishop and R. Liudvinaviciute-Cordeiro, acting as Agents)

Other parties to the proceedings: Manufacturing Support & Procurement Kala Naft Co., Tehran; European Commission

Form of order sought

| — | Set aside the judgment delivered on 25 April 2012 by the General Court (Fourth Chamber) in Case T-509/10; |
| --- | --- |

—

Set aside the judgment delivered on 25 April 2012 by the General Court (Fourth Chamber) in Case T-509/10;

| — | Give a final ruling in the dispute and dismiss as inadmissible the action brought by Kala Naft against the acts of the Council at issue or, in the alternative, dismiss the action as unfounded; |
| --- | --- |

—

Give a final ruling in the dispute and dismiss as inadmissible the action brought by Kala Naft against the acts of the Council at issue or, in the alternative, dismiss the action as unfounded;

| — | Order Kala Naft to pay the costs incurred by the Court at first instance and on appeal. |
| --- | --- |

—

Order Kala Naft to pay the costs incurred by the Court at first instance and on appeal.

Pleas in law and main arguments

The Council submits that the judgment of the General Court in the abovementioned case is vitiated by two errors and that, in consequence, the judgment should be set aside.

Firstly, the Council is of the opinion that the General Court erred in law by failing to dismiss the action brought by Kala Naft as inadmissible, given that, in the Council’s submission, that undertaking is an entity of the Iranian Government.

Secondly, the Council argues that the General Court erred in law in holding that one of the grounds justifying the imposition of restrictive measures against Kala Naft was not sufficient to satisfy the duty to state reasons and that the Council was required to adduce evidence to support another of those grounds. The Council also submits that the General Court erred in law by holding that the fact that Kala Naft markets equipment for the oil and gas sectors which is liable to be used in the Iranian nuclear programme cannot be regarded as ‘supporting’ nuclear proliferation, without placing that fact in context with the other justifying grounds.

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/28 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/28

---

Action brought on 25 July 2012 — European Commission v Italian Republic

(Case C-353/12)

2012/C 287/54

Language of the case: Italian

Parties

Applicant: European Commission (represented by: S. Thomas, D. Grespan and B. Stromsky, acting as Agents)

Defendant: Italian Republic

Form of order sought

The Commission claims that the Court should:

| — | declare that, by failing to take, within the prescribed period, all the measures necessary to recover the State aid considered unlawful and incompatible with the internal market by Commission Decision C(2009) 8123 of 28 October 2009 on State aid C 59/07 (ex N 127/06 and NN 13/06) implemented by Italy for Ixfin SpA (notified on 29 October 2009 and published in OJ 2010 L 167, p. 39), the Italian Republic has failed to fulfil its obligations under Articles 2, 3 and 4 of that decision and under the Treaty on the Functioning of the European Union; |
| --- | --- |

—

declare that, by failing to take, within the prescribed period, all the measures necessary to recover the State aid considered unlawful and incompatible with the internal market by Commission Decision C(2009) 8123 of 28 October 2009 on State aid C 59/07 (ex N 127/06 and NN 13/06) implemented by Italy for Ixfin SpA (notified on 29 October 2009 and published in OJ 2010 L 167, p. 39), the Italian Republic has failed to fulfil its obligations under Articles 2, 3 and 4 of that decision and under the Treaty on the Functioning of the European Union;

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

—

order the Italian Republic to pay the costs.

Pleas in law and main arguments

The subject of the Commission’s action is the non-implementation by the Italian Republic of the Commission’s decision on State aid in the form of a guarantee provided by the Ministry of Economic Development for a loan taken out by Ixfin with Banca Apulia SpA.

The Commission points out that the Italian Republic should have ensured fulfilment of its obligation to recover the aid by 1 March 2010 and, in addition, should have informed the Commission by 29 December 2009 of the measures taken to implement the decision.

At the time the present action was brought, the Italian Republic had not yet taken all the measures necessary for discharging those obligations.

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/28 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/28

---

Appeal brought on 27 July 2012 by Harald Wohlfahrt against the judgment of the General Court (Fifth Chamber) delivered on 16 May 2012 in Case T-580/10 Harald Wohlfahrt v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-357/12 P)

2012/C 287/55

Language of the case: German

Parties

Appellant: Harald Wohlfahrt (represented by: M. Loschelder and V. Schoene, Rechtsanwälte)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (OHIM) (Trade Marks and Designs), Ferrero SpA

Form of order sought

The appellant claims that the Court should:

| — | set aside the judgment of the General Court (Fifth Chamber) of 16 May 2012 in Case T-580/10 and deliver judgment in line with the form of order sought by the appellant before the General Court, which is reproduced on page 4 of the judgment; |
| --- | --- |

—

set aside the judgment of the General Court (Fifth Chamber) of 16 May 2012 in Case T-580/10 and deliver judgment in line with the form of order sought by the appellant before the General Court, which is reproduced on page 4 of the judgment;

| — | order OHIM to pay the necessary costs incurred by the appellant. |
| --- | --- |

—

order OHIM to pay the necessary costs incurred by the appellant.

Pleas in law and main arguments

OHIM and the General Court refused the registration by the appellant (applicant before the General Court) of the mark ‘Kindertraum’ for goods in Classes 16 and 28, since the intervener in support of the defendant, proprietor of the earlier Italian word mark ‘kinder’, inter alia, for goods in those classes, filed an opposition against such registration.

The appellant raises three grounds of appeal.

First ground of appeal: infringement of Article 42(2) of Regulation No 207/2009
   (1)

The General Court took the view that it was not decisive whether the opposing trade mark which had already been registered for eight years was in use or not at the time of the opposition decision. Under Article 42(3) in conjunction with Article 42(2) of Regulation No 207/2009, use of the opposing trade mark must be proven only if it was registered during the period of five years preceding the date of publication of the Community trade mark application. The appellant sees in that approach a contradiction with the purpose of compulsory usage, which aims to ensure that, after the five-year grace period has expired, no rights can be based on an unused earlier mark. Contrary to the view of the General Court, the loophole in Article 42 of Regulation No 207/2009 must be closed by a teleological interpretation, taking account of German or Italian national trade mark law. Moreover, in relation to Article 42 of Regulation No 207/2009, the situation in relation to use at the time of closure of the opposition proceedings is decisive.

Second ground of appeal: infringement of Article 75(1) of Regulation No 207/2009, misuse of trade mark law by the opposing trade mark

The Board of Appeal did not address the appellant’s complaint that the registration of the Italian trade mark relied on in opposition constitutes a misuse of law. The appellant accuses the General Court of wrongly having failed to allow that complaint. That complaint is part of Community law and thus also part of Community trade mark law. The appellant submits that, in the present case, the conduct of the opponent as regards registration is aimed at using unused marks, and in defence of no economic interests worthy of protection, to bring about a comprehensive blockage of use of the word ‘kinder’.

Third ground of appeal: misapplication of Article 8(1)(b) of Regulation No 207/2009

The General Court was wrong to conclude that there was a likelihood of confusion between the intervener’s opposing trade mark and the mark applied for. First of all, the General Court wrongly assessed the appellant’s submission and wrongly assumed that the appellant had not disputed the Board of Appeal’s finding that the conflicting marks were similar. In reality, he did dispute that finding. The marks are not similar, since the component ‘kinder’ in the opposing trade mark is less distinctive, at the most.

---

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

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/29 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/29

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Appeal brought on 31 July 2012 by the European Commission against the judgment of the General Court (Fourth Chamber) delivered on 22 May 2012 in Case T-344/08 EnBW Energie Baden-Württemberg AG v European Commission

(Case C-365/12 P)

2012/C 287/56

Language of the case: German

Parties

Appellant: European Commission (represented by: B. Smulders, P. Costa de Oliveira and A. Antoniadis, Agents)

Other parties to the proceedings: EnBW Energie Baden-Württemberg AG, Kingdom of Sweden, Siemens AG, ABB Ltd

Form of order sought

| 1. | Set aside point 1 of the operative part of the judgment of the General Court of 22 May 2012 in Case T-344/08; |
| --- | --- |

1.

Set aside point 1 of the operative part of the judgment of the General Court of 22 May 2012 in Case T-344/08;

| 2. | dismiss the application in Case T-344/08; |
| --- | --- |

2.

dismiss the application in Case T-344/08;

| 3. | order the respondent and the applicant to pay the costs of the appeal and of the proceedings at first instance. |
| --- | --- |

3.

order the respondent and the applicant to pay the costs of the appeal and of the proceedings at first instance.

Pleas in law and main arguments

According to the appellant, the General Court failed to have regard to the need for the harmonious interpretation of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (‘Transparency Regulation’), (1) as established in the landmark rulings in Technische Glaswerke Ilmenau, (2)
  API, (3) and Bavarian Lager, (4) and recently confirmed in Agrofert
   (5) and Odile Jacob, (6) and instead gave priority to the right of access under the Transparency Regulation, thereby erring in law. The General Court’s interpretation of the right of access under the Transparency Regulation, or of the relevant exceptions, undermines the system of consultation of the file that exists under cartel law, and the balancing of interests to be found therein, that is the balance between the Commission’s interest in the effective implementation of the task conferred on it under Article 108 TFEU, on the one hand, and the interest of undertakings in the effective protection of information submitted by them in the context of cartel proceedings, on the other.

The General Court wrongly declined to apply to the present case the general presumption — established in particular in Technische Glaswerke Ilmenau and confirmed in Odile Jacob — that documents in the administrative file merit protection. In so doing, the General Court failed to have regard to the fact that such a general presumption is justified by the system of consultation of the file that exists under cartel law, but also by the restriction under cartel law on the use of documents obtained in the course of an investigation.

The General Court erred in law in its interpretation of the exception designed to protect the purpose of investigations, under the third indent of Article 4(2) of the Transparency Regulation. It wrongly limited the scope of application of that exception to the completion of specific inspections. It failed to have regard to the fact that the purpose of investigations extends not only to the effectiveness of individual inspections (at any rate until the decision closing the particular proceedings becomes final), but also to the effectiveness of the Commission’s enforcement powers in the field of cartel law generally (including the safeguards associated with the rule of law that are applicable here).

The General Court erred in law in its interpretation of the exception designed to protect commercial interests, under the first indent of Article 4(2) of the Transparency Regulation. It wrongly limited the scope of application essentially to the protection of business secrets. It failed to have regard to the fact that such protection extends also to confidential information submitted to the Commission solely in the context of investigations of particular undertakings and which would not otherwise have been made available to third parties.

The General Court erred in law in its interpretation and application of the exception designed to protect the Commission’s decision-making process, under the second subparagraph of Article 4(3) of the Transparency Regulation. It failed to have regard to the fact that the Commission is empowered to refuse to grant access to internal documents containing opinions for internal use as part of deliberations and preliminary consultations on the ground that their publication might restrict the Commission’s scope for taking decisions in the event of a resumption of the proceedings. In finding that the Commission should not have refused access to internal documents, the General Court also failed to have regard to the fact that internal documents are in any event also covered by the exceptions in Article 4 of the Transparency Regulation, and by the presumption — which to that extent is recognised by the General Court — that they merit protection.

---

(1)  OJ 2001 L 145, p. 43.

(2)  Case C-139/07 P Commission v Technische Glaswerke Ilmenau [2010] ECR I-5885.

(3)  Joined Cases C-514/07 P, C-528/07 P and C-532/07 P Sweden and Others v API and Commission [2010] ECR I-8533.

(4)  Case C-28/08 P Commission v Bavarian Lager [2010] ECR I-6055.

(5)  Judgment of the Court of Justice of 28 June 2012 in Case C-477/10 P Agrofert Holding v Commission.

(6)  Judgment of the Court of Justice of 28 June 2012 in Case C-404/10 P Commission v Éditions Odile Jacob.

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General Court

| 22.9.2012 | EN | Official Journal of the European Union | C 287/31 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/31

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Order of the General Court of 17 July 2012 — L’Oréal v OHIM — United Global Media Group (MyBeauty TV)

(Case T-240/11) (1)

(Community trade mark - Opposition proceedings - Costs recoverable before OHIM - Costs of being represented by an employee - Article 85(1) of Regulation (EC) No 207/2009 - Action manifestly devoid of any basis in law)

2012/C 287/57

Language of the case: English

Parties

Applicant: L’Oréal (Paris, France) (represented by: A. von Mühlendahl and S. Abel, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: United Global Media Group, Inc. (El Segundo, California, United States)

Re:

Action against the decision of the First Board of Appeal of OHIM of 3 February 2011 (Case R 898/2010-1) concerning opposition proceedings between United Global Media Group, Inc. and L’Oréal.

Operative part of the order

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

1.

The action is dismissed.

| 2. | L’Oréal SA is ordered to pay the costs. |
| --- | --- |

2.

L’Oréal SA is ordered to pay the costs.

---

(1)  OJ C 204, 9.7.2011.

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/31 |
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22.9.2012

EN

Official Journal of the European Union

C 287/31

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Order of the General Court of 17 July 2012 — United States Polo Association v OHIM — Polo/Lauren (Representation of two polo players)

(Case T-517/11) (1)

(Community trade mark - Partial refusal of registration - Withdrawal of the application for registration - No need to adjudicate)

2012/C 287/58

Language of the case: English

Parties

Applicant: United States Polo Association (Lexington, Kentucky, United States) (represented by: P. Goldenbaum, I. Rohr and T. Melchert, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM intervening before the General Court: The Polo/Lauren Company, LP (New York, New York, United States) (represented by: M. Granado Carpenter and M. Polo Carreño, lawyers)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 17 June 2011 (Case R 1170/2010-2), concerning opposition proceedings between United States Polo Association and The Polo/Lauren Company, LP.

Operative part of the order

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

1.

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

| 2. | The applicant is ordered to bear its own costs and to pay the costs of the defendant and the intervener. |
| --- | --- |

2.

The applicant is ordered to bear its own costs and to pay the costs of the defendant and the intervener.

---

(1)  OJ C 355, 3.12.2011.

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/31 |
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22.9.2012

EN

Official Journal of the European Union

C 287/31

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Action brought on 11 July 2012 — Holcim (Romania) v European Commission

(Case T-317/12)

2012/C 287/59

Language of the case: English

Parties

Applicant: Holcim (Romania) SA (Bucharest, Romania) (represented by: L. Arnauts, lawyer)

Defendant: European Commission

Form of order sought

| — | Order the defendant to pay the applicant the market value of the allegedly stolen European Emission Allowances that would not be recovered by the day of the judgment, at their market price, plus interest rate of 8 % per annum as from 16 November 2010; |
| --- | --- |

—

Order the defendant to pay the applicant the market value of the allegedly stolen European Emission Allowances that would not be recovered by the day of the judgment, at their market price, plus interest rate of 8 % per annum as from 16 November 2010;

| — | Order the defendant to pay the costs of he proceedings; and |
| --- | --- |

—

Order the defendant to pay the costs of he proceedings; and

| — | Declare the judgment enforceable. |
| --- | --- |

—

Declare the judgment enforceable.

Pleas in law and main arguments

In support of the action, the applicant relies on one main plea in law, alleging:

| — | the European Union’s liability for unlawful decisions of the European Commission consisting in:






  (a) | misinterpretation of Article 10(1) of Commission Regulation (EC) No 2216/2004 of 21 December 2004 for a standardised and secured system of registries pursuant to Directive 2003/87/EC of the European Parliament and of the Council and Decision No 280/2004/EC of the European Parliament and of the Council (OJ L 386, p. 1); |
| --- | --- | --- |

—

the European Union’s liability for unlawful decisions of the European Commission consisting in:

(a)

misinterpretation of Article 10(1) of Commission Regulation (EC) No 2216/2004 of 21 December 2004 for a standardised and secured system of registries pursuant to Directive 2003/87/EC of the European Parliament and of the Council and Decision No 280/2004/EC of the European Parliament and of the Council (OJ L 386, p. 1);

| (b) | a breach of Article 20 of Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ L 275, p. 32); |
| --- | --- |

(b)

a breach of Article 20 of Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ L 275, p. 32);

| (c) | breaches of several general principles of law (principles of proportionality and of protection of legitimate expectations, duty of care, right to an effective judicial protection in respect of property rights), when deciding not to disclose or allow disclosure of the location of stolen European Emission Allowances in the framework of the European Union Emissions Trading Scheme. |
| --- | --- |

(c)

breaches of several general principles of law (principles of proportionality and of protection of legitimate expectations, duty of care, right to an effective judicial protection in respect of property rights), when deciding not to disclose or allow disclosure of the location of stolen European Emission Allowances in the framework of the European Union Emissions Trading Scheme.

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/32 |
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22.9.2012

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Official Journal of the European Union

C 287/32

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Action brought on 19 July 2012 — Spain v Commission

(Case T-319/12)

2012/C 287/60

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by: A. Rubio González)

Defendant: European Commission

Form of order sought

| — | Annul European Commission Decision C(2012) of 8 May 2012 concerning State Aid SA 22668 (C 8/2008 — ex NN 4/2008), granted by Spain to ‘Ciudad de la Luz SA’; |
| --- | --- |

—

Annul European Commission Decision C(2012) of 8 May 2012 concerning State Aid SA 22668 (C 8/2008 — ex NN 4/2008), granted by Spain to ‘Ciudad de la Luz SA’;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on five pleas in law:

| 1. | Incorrect application of the private investor test, since the Commission went beyond the bounds of its margin of assessment when carrying out its analysis. |
| --- | --- |

1.

Incorrect application of the private investor test, since the Commission went beyond the bounds of its margin of assessment when carrying out its analysis.

| 2. | Error in the assessment of the State aid on account of a failure to take into account actions in the tertiary part of the complex. |
| --- | --- |

2.

Error in the assessment of the State aid on account of a failure to take into account actions in the tertiary part of the complex.

| 3. | Failure of the contested decision to state reasons in so far as the Commission requires recovery of the aid granted to film producers and in so far as its analysis makes no mention of that alleged aid. |
| --- | --- |

3.

Failure of the contested decision to state reasons in so far as the Commission requires recovery of the aid granted to film producers and in so far as its analysis makes no mention of that alleged aid.

| 4. | In the alternative, error in the analysis of the compatibility of the investment with the Guidelines on National Regional aid, since the Commission failed to consider whether the remaining aid complied with the private investor principle. |
| --- | --- |

4.

In the alternative, error in the analysis of the compatibility of the investment with the Guidelines on National Regional aid, since the Commission failed to consider whether the remaining aid complied with the private investor principle.

| 5. | In the alternative, failure to state reasons and error in the analysis of the compatibility of the aid, in the light of the rules applicable to aid in the audiovisual sector, since the Commission failed to consider why the alleged aid was not intended for cultural purposes. |
| --- | --- |

5.

In the alternative, failure to state reasons and error in the analysis of the compatibility of the aid, in the light of the rules applicable to aid in the audiovisual sector, since the Commission failed to consider why the alleged aid was not intended for cultural purposes.

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/32 |
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22.9.2012

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Official Journal of the European Union

C 287/32

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Action brought on 20 July 2012 — Ciudad de la Luz and Sociedad Proyectos Temáticos de la Comunidad Valenciana v Commission

(Case T-321/12)

2012/C 287/61

Language of the case: Spanish

Parties

Applicants: Ciudad de la Luz, SA (Alicante, Spain) and Sociedad Proyectos Temáticos de la Comunidad Valenciana, SA (Alicante) (represented by: J. Buendía Sierra, N. Ruiz García and J. Belenguer Mula, lawyers, and M. Muñoz de Juan, lawyer)

Defendant: European Commission

Form of order sought

The applicants claim that the General Court should:

| — | admit and uphold the grounds for annulment set out in their application; |
| --- | --- |

—

admit and uphold the grounds for annulment set out in their application;

| — | annul European Commission Decision C(2012) 3025 final of 8 May 2012 concerning State Aid SA. 22668 (C 8/2008 — ex NN 4/2008) granted by Spain to ‘Ciudad de la Luz SA’ (‘CDL’) and, in particular, Article 1(1) thereof in so far as it declares that the investment in CDL comprises elements of incompatible State aid, requiring its recovery; |
| --- | --- |

—

annul European Commission Decision C(2012) 3025 final of 8 May 2012 concerning State Aid SA. 22668 (C 8/2008 — ex NN 4/2008) granted by Spain to ‘Ciudad de la Luz SA’ (‘CDL’) and, in particular, Article 1(1) thereof in so far as it declares that the investment in CDL comprises elements of incompatible State aid, requiring its recovery;

| — | declare that the contested decision is non-existent or, alternatively, void, in particular Article 1(1) thereof in so far as it declares that certain producers which have filmed at CDL have received incompatible aid; |
| --- | --- |

—

declare that the contested decision is non-existent or, alternatively, void, in particular Article 1(1) thereof in so far as it declares that certain producers which have filmed at CDL have received incompatible aid;

| — | consequently, annul the orders for recovery ordered by Article 2 of the contested decision; |
| --- | --- |

—

consequently, annul the orders for recovery ordered by Article 2 of the contested decision;

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

—

order the Commission to pay the costs of these proceedings.

Pleas in law and main arguments

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

| 1. | Error of law in concluding that there was State aid in favour of CDL (misapplication of the private investor principle). Infringement of Articles 107(1) TFEU and 345 TFEU
  The applicants submit that the Commission incorrectly analyses the private investor principle and is mistaken in its conclusion concerning the existence of State aid. The Generalitat Valenciana’s investments in CDL occurred on two separate occasions — in 2000 and 2004 — and both investment decisions were adopted after the respective business plans, which established that the project was expected to be profitable, had been produced. In applying the private investor principle in this case, the Commission compares that project with the profitability of projects and operators which are not comparable due to their size, thereby emptying that principle of its content in breach of Articles 107(1) and 345 TFEU.
  Similarly, the Commission refuses to take into account in its legal and economic analysis the existence, in addition to the film studio project, of the project to develop a commercial, leisure and hotel area on neighbouring land of the Sociedad Proyectos Temáticos de la Comunidad Valenciana (‘SPTCV’). If both projects are taken into account, the profitability of the investment in CDL is even greater. |
| --- | --- |

1.

Error of law in concluding that there was State aid in favour of CDL (misapplication of the private investor principle). Infringement of Articles 107(1) TFEU and 345 TFEU

The applicants submit that the Commission incorrectly analyses the private investor principle and is mistaken in its conclusion concerning the existence of State aid. The Generalitat Valenciana’s investments in CDL occurred on two separate occasions — in 2000 and 2004 — and both investment decisions were adopted after the respective business plans, which established that the project was expected to be profitable, had been produced. In applying the private investor principle in this case, the Commission compares that project with the profitability of projects and operators which are not comparable due to their size, thereby emptying that principle of its content in breach of Articles 107(1) and 345 TFEU.

Similarly, the Commission refuses to take into account in its legal and economic analysis the existence, in addition to the film studio project, of the project to develop a commercial, leisure and hotel area on neighbouring land of the Sociedad Proyectos Temáticos de la Comunidad Valenciana (‘SPTCV’). If both projects are taken into account, the profitability of the investment in CDL is even greater.

| 2. | Error of law in the analysis of the compatibility of the CDL project and failure to state reasons
  The applicants submit that the Commission refuses to take into consideration that because CDL is located in Alicante, the project was eligible for regional aid. Since that project is a large investment project, the Spanish authorities take the view that CDL was entitled to apply for regional aid with an intensity of approximately 36 %, which has not be contested by the Commission. Notwithstanding this, the Commission refuses to concede that when the private investor principle is applied to 64 % of the investment, the project is even more profitable.
  In the alternative, the applicants submit that the investment by the Valencian authorities in the CDL film studio complex should be declared compatible, either in whole or in part, in accordance with Article 107(3)(d) TFEU.
  The Commission does not give reasons for its conclusions that the aid for the construction of the CDL film studios is not necessary, proportionate and adequate, and, in its view, such aid cannot benefit — even in part — from the cultural compatibility exemption. |
| --- | --- |

2.

Error of law in the analysis of the compatibility of the CDL project and failure to state reasons

The applicants submit that the Commission refuses to take into consideration that because CDL is located in Alicante, the project was eligible for regional aid. Since that project is a large investment project, the Spanish authorities take the view that CDL was entitled to apply for regional aid with an intensity of approximately 36 %, which has not be contested by the Commission. Notwithstanding this, the Commission refuses to concede that when the private investor principle is applied to 64 % of the investment, the project is even more profitable.

In the alternative, the applicants submit that the investment by the Valencian authorities in the CDL film studio complex should be declared compatible, either in whole or in part, in accordance with Article 107(3)(d) TFEU.

The Commission does not give reasons for its conclusions that the aid for the construction of the CDL film studios is not necessary, proportionate and adequate, and, in its view, such aid cannot benefit — even in part — from the cultural compatibility exemption.

| 3. | Error of law due to the absence of a decision and, in any event, a total absence of reasoning in relation to the incentives to film productions
  In addition to finding that the investment in CDL constitutes incompatible aid, the Commission categorises any incentive awarded to film producers on condition that filming takes place at CDL as incompatible.
  The contested decision devotes only a single paragraph to such alleged aid in which it simply declares that the latter is incompatible. The decision fails to (i) detail the measure at issue referred to, (ii) mention the information supplied to that effect by the Member State, (iii) examine whether or not the elements of aid are present, (iv) analyse the compatibility criteria, and (v) consider whether legitimate expectations arise.
  The applicants submit, therefore, that the contested decision is non-existent or void on the ground of the failure to state reasons. In addition, since those incentives satisfied the conditions laid down in the 2001 Commission communication on aid to cinema, they ought to have been found compatible with Article 107(3)(d) TFEU. |
| --- | --- |

3.

Error of law due to the absence of a decision and, in any event, a total absence of reasoning in relation to the incentives to film productions

In addition to finding that the investment in CDL constitutes incompatible aid, the Commission categorises any incentive awarded to film producers on condition that filming takes place at CDL as incompatible.

The contested decision devotes only a single paragraph to such alleged aid in which it simply declares that the latter is incompatible. The decision fails to (i) detail the measure at issue referred to, (ii) mention the information supplied to that effect by the Member State, (iii) examine whether or not the elements of aid are present, (iv) analyse the compatibility criteria, and (v) consider whether legitimate expectations arise.

The applicants submit, therefore, that the contested decision is non-existent or void on the ground of the failure to state reasons. In addition, since those incentives satisfied the conditions laid down in the 2001 Commission communication on aid to cinema, they ought to have been found compatible with Article 107(3)(d) TFEU.

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/33 |
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Official Journal of the European Union

C 287/33

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Action brought on 16 July 2012 — Simca Europe v OHIM — PSA Peugeot Citroën (Simca)

(Case T-327/12)

2012/C 287/62

Language in which the application was lodged: German

Parties

Applicant: Simca Europe Ltd (Birmingham, United Kingdom) (represented by: N. Haberkamm, lawyer)

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

Other party to the proceedings before the Board of Appeal: PSA Peugeot Citroën GIE (Paris, France)

Form of order sought

The applicant claims that the Court should:

| — | annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 12 April 2012 in Case R 645/2011-1; |
| --- | --- |

—

annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 12 April 2012 in Case R 645/2011-1;

| — | order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs, including the costs for the applicant’s counsel. |
| --- | --- |

—

order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs, including the costs for the applicant’s counsel.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: the word mark ‘Simca’ for goods in Class 12 — Community trade mark No 6 489 371

Proprietor of the Community trade mark: the applicant

Applicant for the declaration of invalidity of the Community trade mark: PSA Peugeot Citroën GIE

Grounds for the application for a declaration of invalidity: the applicant was acting in bad faith at the time when it filed the application

Decision of the Cancellation Division: the application for a declaration of invalidity was rejected

Decision of the Board of Appeal: the appeal was upheld and the mark was declared invalid

Pleas in law: Infringement of Article 52 of Regulation (EC) No 207/2009

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/34 |
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22.9.2012

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Official Journal of the European Union

C 287/34

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Action brought on 24 July 2012 — Mundipharma v OHIM — AFP Pharmaceuticals (Maxigesic)

(Case T-328/12)

2012/C 287/63

Language in which the application was lodged: German

Parties

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

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

Other party to the proceedings before the Board of Appeal: AFP Pharmaceuticals Ltd (Takapuna, New Zealand)

Form of order sought

The applicant claims that the Court should:

| — | annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 23 May 2012 in Case R 1788/2010-4; |
| --- | --- |

—

annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 23 May 2012 in Case R 1788/2010-4;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: AFP Pharmaceuticals Ltd

Community trade mark concerned: the word mark ‘Maxigesic’ for goods in Class 5 — Community trade mark application No 7 056 104

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

Mark or sign cited in opposition: the word mark ‘OXYGESIC’ for goods in Class 5

Decision of the Opposition Division: the opposition was upheld

Decision of the Board of Appeal: the appeal was upheld and the opposition was rejected

Pleas in law: infringement of Article 8(1)(b) of Regulation (EC) No 207/2009

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/34 |
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22.9.2012

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Official Journal of the European Union

C 287/34

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Action brought on 27 July 2012 — Sartorius Weighing Technology v OHIM (Representation of a yellow curve)

(Case T-331/12)

2012/C 287/64

Language of the case: German

Parties

Applicant: Sartorius Weighing Technology GmbH (Göttingen, Germany) (represented by K. Welkerling, lawyer)

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

Form of order sought

The applicant claims that the Court should:

| — | annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 3 May 2012 in Case R 1783/2011-1; |
| --- | --- |

—

annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 3 May 2012 in Case R 1783/2011-1;

| — | order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs, including the costs incurred in the course of the appeal proceedings. |
| --- | --- |

—

order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs, including the costs incurred in the course of the appeal proceedings.

Pleas in law and main arguments

Community trade mark concerned: other mark, which represents a yellow curve at the bottom edge of an electronic display unit, for goods in Classes 7, 9, 10 and 11

Decision of the Examiner: the application was rejected

Decision of the Board of Appeal: the appeal was dismissed

Pleas in law: Infringement of Article 7(1)(b) of Regulation (EC) No 207/2009

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/35 |
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22.9.2012

EN

Official Journal of the European Union

C 287/35

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Action brought on 23 July 2012 — ING Groep v Commission

(Case T-332/12)

2012/C 287/65

Language of the case: English

Parties

Applicant: ING Groep NV (Amsterdam, The Netherlands) (represented by: O. Brouwer, J. Blockx and N. Lorjé, lawyers)

Defendant: European Commission

Form of order sought

| — | Annul the decision of the European Commission of 11 May 2012 C(2012)3150 final, State aid SA.28855 (N 373/2009) (ex C 10/2009 and ex N 528/2008)-The Netherlands ING — restructuring aid; and |
| --- | --- |

—

Annul the decision of the European Commission of 11 May 2012 C(2012)3150 final, State aid SA.28855 (N 373/2009) (ex C 10/2009 and ex N 528/2008)-The Netherlands ING — restructuring aid; and

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

—

Order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging that the defendant breached the principle of sound administration and the right to be heard by not consulting the Dutch State and ING with respect to facts and its views and assumptions that were pertinent for its conclusion that the amendment to the terms of the core-tier-1 capital injection constituted aid under Article 107(1) TFEU. |
| --- | --- |

1.

First plea in law, alleging that the defendant breached the principle of sound administration and the right to be heard by not consulting the Dutch State and ING with respect to facts and its views and assumptions that were pertinent for its conclusion that the amendment to the terms of the core-tier-1 capital injection constituted aid under Article 107(1) TFEU.

| 2. | Second plea in law, alleging that the defendant erred in law and committed a manifest error of assessment in applying the market economy investor principle (‘MEIP’) test and failed to provide adequate reasoning when qualifying the amendment to the core-tier-1 capital injection as State aid and an aggravating factor in its assessment of the compensatory measures. |
| --- | --- |

2.

Second plea in law, alleging that the defendant erred in law and committed a manifest error of assessment in applying the market economy investor principle (‘MEIP’) test and failed to provide adequate reasoning when qualifying the amendment to the core-tier-1 capital injection as State aid and an aggravating factor in its assessment of the compensatory measures.

| 3. | Third plea in law, alleging that the defendant breached Article 107(3)(b) TFEU and the principles of sound administration, proportionality, legal certainty, equal treatment and the duty to state reasons by failing to take into account the amount of aid when assessing the compensatory measures, and by wrongly calculating the relative amount of the aid and the circumstances under which the aid was granted when assessing the compensatory measures. |
| --- | --- |

3.

Third plea in law, alleging that the defendant breached Article 107(3)(b) TFEU and the principles of sound administration, proportionality, legal certainty, equal treatment and the duty to state reasons by failing to take into account the amount of aid when assessing the compensatory measures, and by wrongly calculating the relative amount of the aid and the circumstances under which the aid was granted when assessing the compensatory measures.

| 4. | Fourth plea in law, alleging that the defendant breached Article 107(3)(b) TFEU, the principle of sound administration, proportionality and the duty to state reasons when making the price leadership bans legally binding on ING. |
| --- | --- |

4.

Fourth plea in law, alleging that the defendant breached Article 107(3)(b) TFEU, the principle of sound administration, proportionality and the duty to state reasons when making the price leadership bans legally binding on ING.

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/35 |
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22.9.2012

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Official Journal of the European Union

C 287/35

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Action brought on 19 July 2012 — T&L Sugars and Sidul Açúcares v Commission

(Case T-335/12)

2012/C 287/66

Language of the case: English

Parties

Applicants: T&L Sugars Ltd (London, United Kingdom) and Sidul Açúcares, Unipessoal Lda (Santa Iria de Azóia, Portugal) (represented by: D. Waelbroeck, lawyer, and D. Slater, Solicitor)

Defendants: European Commission and the European Union, represented by the European Commission

Form of order sought

| — | Declare the present application for annulment under Article 263(4) TFEU and/or plea of illegality under Article 277 TFEU against Regulation 367/2012, Regulation 397/2012, Regulation 356/2012, Regulation 382/2012, Regulation 444/2011 and Regulation 485/2012 admissible and well founded; |
| --- | --- |

—

Declare the present application for annulment under Article 263(4) TFEU and/or plea of illegality under Article 277 TFEU against Regulation 367/2012, Regulation 397/2012, Regulation 356/2012, Regulation 382/2012, Regulation 444/2011 and Regulation 485/2012 admissible and well founded;

| — | Annulment of Commission Implementing Regulation (EU) No 367/2012 of 27 April 2012 laying down necessary measures as regards the release of additional quantities of out-of-quota sugar and isoglucose on the Union market at reduced surplus levy during marketing year 2011/2012 (OJ 2012 L 116, p. 12); |
| --- | --- |

—

Annulment of Commission Implementing Regulation (EU) No 367/2012 of 27 April 2012 laying down necessary measures as regards the release of additional quantities of out-of-quota sugar and isoglucose on the Union market at reduced surplus levy during marketing year 2011/2012 (OJ 2012 L 116, p. 12);

| — | Annulment of Commission Implementing Regulation (EU) No 397/2012 of 8 May 2012 fixing allocation coefficient, rejecting further applications and closing the period for submitting applications for available additional quantities of out-of-quota sugar to be sold on the Union market at reduced surplus levy during marketing year 2011/2012 (OJ 2012 L 123, p. 35); |
| --- | --- |

—

Annulment of Commission Implementing Regulation (EU) No 397/2012 of 8 May 2012 fixing allocation coefficient, rejecting further applications and closing the period for submitting applications for available additional quantities of out-of-quota sugar to be sold on the Union market at reduced surplus levy during marketing year 2011/2012 (OJ 2012 L 123, p. 35);

| — | Annulment of Implementing Regulation (EU) No 1239/2011 (OJ 2011 L 318, p. 4), as amended by Commission Implementing Regulation (EU) No 356/2012, as regards the periods during which tenders may be submitted in response to the second and subsequent partial invitations to tender for the 2011/2012 marketing year for imports of sugar at a reduced customs duty (OJ 2012 L 113, p. 4); |
| --- | --- |

—

Annulment of Implementing Regulation (EU) No 1239/2011 (OJ 2011 L 318, p. 4), as amended by Commission Implementing Regulation (EU) No 356/2012, as regards the periods during which tenders may be submitted in response to the second and subsequent partial invitations to tender for the 2011/2012 marketing year for imports of sugar at a reduced customs duty (OJ 2012 L 113, p. 4);

| — | Annulment of Commission Implementing Regulation (EU) No 382/2012 of 3 May 2012 on the minimum customs duty for sugar to be fixed in response to the fifth partial invitation to tender within the tendering procedure opened by Implementing Regulation (EU) No 1239/2011 (OJ 2012 L 119, p. 41); |
| --- | --- |

—

Annulment of Commission Implementing Regulation (EU) No 382/2012 of 3 May 2012 on the minimum customs duty for sugar to be fixed in response to the fifth partial invitation to tender within the tendering procedure opened by Implementing Regulation (EU) No 1239/2011 (OJ 2012 L 119, p. 41);

| — | Annulment of Commission Implementing Regulation (EU) No 444/2012 of 24 May 2012 on the minimum customs duty for sugar to be fixed in response to the sixth partial invitation to tender within the tendering procedure opened by Implementing Regulation (EU) No 1239/2011 (OJ 2012 L 135, p. 61); |
| --- | --- |

—

Annulment of Commission Implementing Regulation (EU) No 444/2012 of 24 May 2012 on the minimum customs duty for sugar to be fixed in response to the sixth partial invitation to tender within the tendering procedure opened by Implementing Regulation (EU) No 1239/2011 (OJ 2012 L 135, p. 61);

| — | Annulment of Commission Implementing Regulation (EU) No 485/2012 of 7 June 2012 on the minimum customs duty for sugar to be fixed in response to the seventh partial invitation to tender within the tendering procedure opened by Implementing Regulation (EU) No 1239/2011 (OJ 2012 L 148, p. 24); |
| --- | --- |

—

Annulment of Commission Implementing Regulation (EU) No 485/2012 of 7 June 2012 on the minimum customs duty for sugar to be fixed in response to the seventh partial invitation to tender within the tendering procedure opened by Implementing Regulation (EU) No 1239/2011 (OJ 2012 L 148, p. 24);

| — | In the alternative, (i) declare the plea of illegality against Articles 186(a) and 187 of Regulation 1234/2007 (1) admissible and well founded and declare those provisions illegal, as well as annul the contested regulations, which are directly or indirectly based on those provisions; and (ii) declare the plea of illegality against Regulation 367/2012 and Regulation 1239/2011, as amended by Regulation 356/2012, admissible and well founded; |
| --- | --- |

—

In the alternative, (i) declare the plea of illegality against Articles 186(a) and 187 of Regulation 1234/2007 (1) admissible and well founded and declare those provisions illegal, as well as annul the contested regulations, which are directly or indirectly based on those provisions; and (ii) declare the plea of illegality against Regulation 367/2012 and Regulation 1239/2011, as amended by Regulation 356/2012, admissible and well founded;

| — | Condemn the EU as represented by the Commission to repair any damage suffered by the applicants as a result of the Commission’s breach of its legal obligations and to set the amount of this compensation for the damage suffered by the applicants during the period 30 January 2012 to 24 June 2012 at 75 051 236 EUR plus any ongoing losses suffered by the applicants after that date or any other amount reflecting the damage suffered or to be suffered by the applicants as further established by them in the course of this procedure especially to take due account of future damage; |
| --- | --- |

—

Condemn the EU as represented by the Commission to repair any damage suffered by the applicants as a result of the Commission’s breach of its legal obligations and to set the amount of this compensation for the damage suffered by the applicants during the period 30 January 2012 to 24 June 2012 at 75 051 236 EUR plus any ongoing losses suffered by the applicants after that date or any other amount reflecting the damage suffered or to be suffered by the applicants as further established by them in the course of this procedure especially to take due account of future damage;

| — | Order an interest at the rate set at the time by the European Central bank for main refinancing operations, plus two percentage points, or any other appropriate rate to be determined by your Court, be paid on the amount payable as from the date of your Court’s judgement until actual payment; |
| --- | --- |

—

Order an interest at the rate set at the time by the European Central bank for main refinancing operations, plus two percentage points, or any other appropriate rate to be determined by your Court, be paid on the amount payable as from the date of your Court’s judgement until actual payment;

| — | Order the Commission to pay all costs and expenses in these proceedings. |
| --- | --- |

—

Order the Commission to pay all costs and expenses in these proceedings.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging violation of the principle of non-discrimination as, on the one hand, Regulation 367/2012 provides for a fixed, generally applicable 211 EUR per tonne surplus levy — i.e. less than half to the usual 500 EUR per tonne — applying to a specific quantity (250 000 tonnes) of sugar, divided equally only between beet processors applicants. On the other hand, Regulation 1239/2011 as amended by Regulation 356/2012, provides for an unknown, unpredictable customs duty, applicable only to auction winners (who can be cane refiners, beet processors, or any other third party) and for an unspecified total amount. The customs duty was most recently fixed at 312,60 EUR per tonne, i.e. nearly 50 % higher than the surplus levy for beet processors. The contrast between the two measures could not be starker. Indeed, every element of the measures discriminates against the cane sugar refiners and in favour of beet processors. |
| --- | --- |

1.

First plea in law, alleging violation of the principle of non-discrimination as, on the one hand, Regulation 367/2012 provides for a fixed, generally applicable 211 EUR per tonne surplus levy — i.e. less than half to the usual 500 EUR per tonne — applying to a specific quantity (250 000 tonnes) of sugar, divided equally only between beet processors applicants. On the other hand, Regulation 1239/2011 as amended by Regulation 356/2012, provides for an unknown, unpredictable customs duty, applicable only to auction winners (who can be cane refiners, beet processors, or any other third party) and for an unspecified total amount. The customs duty was most recently fixed at 312,60 EUR per tonne, i.e. nearly 50 % higher than the surplus levy for beet processors. The contrast between the two measures could not be starker. Indeed, every element of the measures discriminates against the cane sugar refiners and in favour of beet processors.

| 2. | Second plea in law, alleging a violation of the Regulation 1234/2007 and absence of an appropriate legal basis as, with regard to Regulation 367/2012, the Commission has no power whatsoever to increase quotas and is on the contrary required to impose high, dissuasive levies on the release of out-of-quota sugar on the EU market. As regards the tax auctions, the Commission clearly has no mandate or power to adopt this kind of measure, which was never envisaged in the basic legislation. |
| --- | --- |

2.

Second plea in law, alleging a violation of the Regulation 1234/2007 and absence of an appropriate legal basis as, with regard to Regulation 367/2012, the Commission has no power whatsoever to increase quotas and is on the contrary required to impose high, dissuasive levies on the release of out-of-quota sugar on the EU market. As regards the tax auctions, the Commission clearly has no mandate or power to adopt this kind of measure, which was never envisaged in the basic legislation.

| 3. | Third plea in law, alleging a violation of the principle of legal certainty, as the Commission created a system whereby customs duties are not predictable and fixed through the application of consistent, objective criteria, but are rather determined by subjective willingness to pay (moreover of actors that are subject to very different pressures and incentives in this regard) with no actual link with the actual products being imported. |
| --- | --- |

3.

Third plea in law, alleging a violation of the principle of legal certainty, as the Commission created a system whereby customs duties are not predictable and fixed through the application of consistent, objective criteria, but are rather determined by subjective willingness to pay (moreover of actors that are subject to very different pressures and incentives in this regard) with no actual link with the actual products being imported.

| 4. | Fourth plea in law, alleging a violation of the principle of proportionality in so far as the Commission could easily have adopted less restrictive measures to tackle the supply shortage, which would have not been taken exclusively to the detriment of importing refiners. |
| --- | --- |

4.

Fourth plea in law, alleging a violation of the principle of proportionality in so far as the Commission could easily have adopted less restrictive measures to tackle the supply shortage, which would have not been taken exclusively to the detriment of importing refiners.

| 5. | Fifth plea in law, alleging a violation of legitimate expectations, as the applicants were legitimately led to expect that the Commission would use the tools available in Regulation 1234/2007 to restore the availability of supply of raw cane sugar for refining. The applicants were also legitimately led to expect that the Commission would preserve the balance between importing refiners and domestic sugar producers. |
| --- | --- |

5.

Fifth plea in law, alleging a violation of legitimate expectations, as the applicants were legitimately led to expect that the Commission would use the tools available in Regulation 1234/2007 to restore the availability of supply of raw cane sugar for refining. The applicants were also legitimately led to expect that the Commission would preserve the balance between importing refiners and domestic sugar producers.

| 6. | Sixth plea in law, alleging a violation of the principle of diligence, care and good administration, as the actions taken by the Commission were manifestly inappropriate in light of the supply shortage. The Commission should have eased import restrictions for cane refiners. Instead, the Commission increased domestic production and subjected access to extra imports to punitive and unpredictable taxes. |
| --- | --- |

6.

Sixth plea in law, alleging a violation of the principle of diligence, care and good administration, as the actions taken by the Commission were manifestly inappropriate in light of the supply shortage. The Commission should have eased import restrictions for cane refiners. Instead, the Commission increased domestic production and subjected access to extra imports to punitive and unpredictable taxes.

| 7. | Seventh plea in law, alleging a violation of Article 39 TFEU since the Commission failed to achieve two of the objectives set out in this Treaty provision. |
| --- | --- |

7.

Seventh plea in law, alleging a violation of Article 39 TFEU since the Commission failed to achieve two of the objectives set out in this Treaty provision.

| 8. | Eighth plea in law, alleging a violation of Comission Regulation 1006/2011 (2), as the duties applied to white sugar are indeed only fractionally higher than for raw sugar, the difference being around 30 EUR per tonne. This contrasts sharply with the 80 EUR difference between the standard import duty for refined sugar (419 EUR) and raw sugar for refining (339 EUR) which are set out in Comission Regulation 1006/2011. |
| --- | --- |

8.

Eighth plea in law, alleging a violation of Comission Regulation 1006/2011 (2), as the duties applied to white sugar are indeed only fractionally higher than for raw sugar, the difference being around 30 EUR per tonne. This contrasts sharply with the 80 EUR difference between the standard import duty for refined sugar (419 EUR) and raw sugar for refining (339 EUR) which are set out in Comission Regulation 1006/2011.

In addition, in support of the action for damages, the applicants allege that the Commission exceeded gravely and manifestly the margin of discretion conferred to it by the Regulation 1234/2007, through its passivity and inappropriateness of action. Furthermore, the Commission failure to adopt adequate measures constitutes a manifest infringement of a rule of law ‘intended to confer rights on individuals’. The Commission violated in particular the EU general principles of legal certainty, non-discrimination, proportionality, legitimate expectations and the duty of diligence, care and good administration.

---

(1)  Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (OJ 2007 L 299, p. 1).

(2)  Commission Regulation (EU) No 1006/2011 of 27 September 2011 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 2011 L 282, p. 1).

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/37 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/37

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Action brought on 1 August 2012 — Klizli v Council

(Case T-336/12)

2012/C 287/67

Language of the case: English

Parties

Applicant: Yousef Klizli (Damascus, Syria) (represented by: Z. Garkova-Lyutskanova, lawyer)

Defendant: Council of the European Union

Form of order sought

| — | Annul Council implementing Decision 2012/256/CFSP of 14 May 2012 implementing Council Decision 2011/782/CFSP concerning restrictive measures against Syria (OJ L 126, p. 9), insofar as it concerns the applicant; |
| --- | --- |

—

Annul Council implementing Decision 2012/256/CFSP of 14 May 2012 implementing Council Decision 2011/782/CFSP concerning restrictive measures against Syria (OJ L 126, p. 9), insofar as it concerns the applicant;

| — | Annul Council implementing Regulation (EU) No 410/2012 of 14 May 2012 implementing Article 32(1) of Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria (JO L 126, p. 3), insofar as it concerns the applicant; and |
| --- | --- |

—

Annul Council implementing Regulation (EU) No 410/2012 of 14 May 2012 implementing Article 32(1) of Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria (JO L 126, p. 3), insofar as it concerns the applicant; and

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

—

Order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging






  — | that the applicant was wrongfully enlisted as a person who provides financial support to the regime. |
| --- | --- | --- |

1.

First plea in law, alleging

—

that the applicant was wrongfully enlisted as a person who provides financial support to the regime.

| 2. | Second plea in law, alleging






  — | that the contested Council’s acts were issued in the absence of any legal basis and infringe the duty to state reasons, the right to a fair hearing, the right to an effective judicial protection and the right to property; further they are in breach of the principle of proportionality and violate the applicant’s good name. |
| --- | --- | --- |

2.

Second plea in law, alleging

—

that the contested Council’s acts were issued in the absence of any legal basis and infringe the duty to state reasons, the right to a fair hearing, the right to an effective judicial protection and the right to property; further they are in breach of the principle of proportionality and violate the applicant’s good name.

---

| 22.9.2012 | EN | Official Journal of the European Union | C 287/38 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/38

---

Action brought on 30 July 2012 — El Hogar Perfecto del Siglo XXI v OHIM — Wenf International Advisers (Corkscrews)

(Case T-337/12)

2012/C 287/68

Language in which the application was lodged: Spanish

Parties

Applicant: El Hogar Perfecto del Siglo XXI, SL (Madrid, Spain) (represented by: C. Ruiz Gallegos and E. Veiga Conde, lawyers)

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

Other party to the proceedings before the Board of Appeal: Wenf International Advisers Ltd (Tortola, Virgin Islands)

Form of order sought

| — | Annul the decision of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 1 June 2012 in Appeal R 89/2011-3; |
| --- | --- |

—

Annul the decision of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 1 June 2012 in Appeal R 89/2011-3;

| — | order OHIM and the intervener to pay the costs |
| --- | --- |

—

order OHIM and the intervener to pay the costs

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: Design for corkscrews — Community design 00083 0831-0001

Proprietor of the Community design: The applicant

Applicant for the declaration of invalidity of the Community design: Wenf International Advisers Ltd

Grounds for the application for a declaration of invalidity: National design for bottle openers

Decision of the Cancellation Division: Application upheld

Decision of the Board of Appeal: Appeal dismissed

Pleas in law:

| — | Infringement of Articles 4 and 6(1) of Regulation (EC) No 6/2002 |
| --- | --- |

—

Infringement of Articles 4 and 6(1) of Regulation (EC) No 6/2002

| — | Infringement of Articles 4 and 6(2) of Regulation (EC) No 6/2002 |
| --- | --- |

—

Infringement of Articles 4 and 6(2) of Regulation (EC) No 6/2002

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/38 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/38

---

Action brought on 30 July 2012 — Grupo T Diffusión v OHIM — ABR Producción Contemporánea (Lamps)

(Case T-343/12)

2012/C 287/69

Language in which the application was lodged: Spanish

Parties

Applicant: Grupo T Diffusión (El Prat de Llobregat, Spain) (represented by: A. Lasala Grimalt, lawyer)

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

Other party to the proceedings before the Board of Appeal: ABR Producción Contemporánea, SL (Barcelona, Spain)

Form of order sought

| — | Annul the decision of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 1 June 2012 in Case R 1622/2010-3 concerning invalidity proceedings in respect of Community design No 000 42 7448-0001 and declare that design to be fully effective and valid, with no order for costs against Grupo T Diffusión, SA in respect of the costs of ABR and OHIM |
| --- | --- |

—

Annul the decision of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 1 June 2012 in Case R 1622/2010-3 concerning invalidity proceedings in respect of Community design No 000 42 7448-0001 and declare that design to be fully effective and valid, with no order for costs against Grupo T Diffusión, SA in respect of the costs of ABR and OHIM

Pleas in law and main arguments

Registered Community design in respect of which a declaration of invalidity has been sought: Design for a lamp — Registered Community Design No 000 42 7448-0001

Proprietor of the Community design: The applicant

Applicant for the declaration of invalidity of the Community design: ABR Producción Contemporánea, SL

Grounds for the application for a declaration of invalidity: Prior design of a ‘Cypress’ standard lamp

Decision of the Cancellation Division: Application for a declaration of invalidity upheld

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: Infringement of Articles 6 and 7 of Regulation (EC) No 6/2002

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/39 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/39

---

Action brought on 1 August 2012 — Leiner v OHIM — Recaro (REVARO)

(Case T-349/12)

2012/C 287/70

Language in which the application was lodged: German

Parties

Applicant: Rudolf Leiner GmbH (Sankt Pölten, Austria) (represented by: W. Emberger, I. Rudnay and L. Emberger, lawyers)

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

Other party to the proceedings before the Board of Appeal: Recaro Beteiligungs-GmbH (Kaiserslautern, Germany)

Form of order sought

| — | Alter the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 16 May 2012 in Case R 482/2011-1 so as to allow the appeal or, alternatively, annul the decision; |
| --- | --- |

—

Alter the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 16 May 2012 in Case R 482/2011-1 so as to allow the appeal or, alternatively, annul the decision;

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

—

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

Pleas in law and main arguments

Applicant for a Community trade mark: Rudolf Leiner GmbH

Community trade mark concerned: Figurative mark containing the word element ‘REVARO’, for goods in Classes 11, 20 and 24

Proprietor of the mark or sign cited in the opposition proceedings: Recaro Beteiligungs-GmbH

Mark or sign cited in opposition: International registration ‘RECARO’ for goods in Classes 10, 12, 14, 20, 25 and 28

Decision of the Opposition Division: Opposition allowed

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/39 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/39

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Order of the General Court of 11 July 2012 — Formica v OHIM — Silicalia (CompacTop)

(Case T-82/11) (1)

2012/C 287/71

Language of the case: Spanish

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

---

(1)  OJ C 113, 9.4.2011.

---

European Union Civil Service Tribunal

| 22.9.2012 | EN | Official Journal of the European Union | C 287/40 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/40

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Judgment of the Civil Service Tribunal (First Chamber) of 10 July 2012 — AV v Commission

(Case F-4/11) (1)

(Civil service - Temporary agent - Recruitment - Medical cover deferment - Retroactive application of medical cover deferment - Opinion of invalidity committee)

2012/C 287/72

Language of the case: French

Parties

Applicant: AV (Cadrezzate, Italy) (represented by: A. Coolen, J.-N. Louis and É. Marchal, lawyers)

Defendant: European Commission (represented by: J. Currall and D. Martin, agents)

Re:

Annulment of decisions to defer medical cover in respect of the applicant as provided for by Article 32 of the Conditions of employment of other servants of the European Union and not to grant him entitlement to the invalidity allowance.

Operative part of the judgment

The Tribunal:

| 1. | annuls the decision of 12 April 2010 whereby the European Commission deferred medical cover in respect of AV as provided for by Article 32 of the Conditions of employment of other servants of the European Union; |
| --- | --- |

1.

annuls the decision of 12 April 2010 whereby the European Commission deferred medical cover in respect of AV as provided for by Article 32 of the Conditions of employment of other servants of the European Union;

| 2. | annuls the decision of the European Commission of 16 April 2010 in so far as it denied AV entitlement to the invalidity allowance; |
| --- | --- |

2.

annuls the decision of the European Commission of 16 April 2010 in so far as it denied AV entitlement to the invalidity allowance;

| 3. | orders the European Commission to bear its own costs and to pay the costs incurred by AV. |
| --- | --- |

3.

orders the European Commission to bear its own costs and to pay the costs incurred by AV.

---

(1)  OJ C 179 18.6.2011, p. 21.

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/40 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/40

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Judgment of the Civil Service Tribunal (Third Chamber) of 20 June 2012 — Cristina v Commission

(Case F-66/11) (1)

(Civil service - Open competition - Decision of the selection board in the competition not to admit the applicant to the tests - Remedies - Court action brought without waiting for a decision on the administrative complaint - Admissibility - Specific conditions for entry to the competition - Professional experience required)

2012/C 287/73

Language of the case: French

Parties

Applicant: Alma Yael Cristina (Brussels, Belgium) (represented by: S. Rodrigues, A. Blot and C. Bernard-Glanz, lawyers)

Defendant: European Commission (represented by: B. Eggers and P. Pecho, and subsequently B. Eggers, agents)

Re:

Application for annulment of the decision of the chairman of the selection board in competition EPSO/AST/111/10 — Assistants (AST 1) not to admit the applicant to the tests.

Operative part of the judgment

The Tribunal:

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

1.

Dismisses the application;

| 2. | Orders Mrs Cristina to bear her own costs and to pay the costs incurred by the European Commission. |
| --- | --- |

2.

Orders Mrs Cristina to bear her own costs and to pay the costs incurred by the European Commission.

---

(1)  OJ C 282, 24.9.2011, p. 51.

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/40 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/40

---

Judgment of the Civil Service Tribunal (Third Chamber) of 20 June 2012 — Cristina v Commission

(Case F-83/11) (1)

(Civil service - Open competition - Decision of the selection board in the competition not to admit the applicant to the tests - Remedies - Court action brought without waiting for a decision on the administrative complaint - Admissibility - Specific conditions for entry to the competition - Professional experience related to the nature of the duties)

2012/C 287/74

Language of the case: French

Parties

Applicant: Alma Yael Cristina (Brussels, Belgium) (represented by: S. Rodrigues, A. Blot and C. Bernard-Glanz, lawyers)

Defendant: European Commission (represented by: J. Currall and B. Eggers, agents)

Re:

Application for annulment of the decision of the chairman of the selection board in competition EPSO/AST/112/10 — Assistants (AST 3) not to admit the applicant to the tests.

Operative part of the judgment

The Tribunal:

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

1.

Dismisses the application;

| 2. | Orders Mrs Cristina to bear her own costs and to pay the costs incurred by the European Commission. |
| --- | --- |

2.

Orders Mrs Cristina to bear her own costs and to pay the costs incurred by the European Commission.

---

(1)  OJ C 340, 19.11.2011, p. 41.

---

| 22.9.2012 | EN | Official Journal of the European Union | C 287/41 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/41

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Order of the Civil Service Tribunal (First Chamber) of 12 July 2012 — Conticchio v Commission

(Case F-22/11) (1)

(Civil service - Officials - Pensions - Calculation of pension rights - Classification by step - Preliminary plea of illegality - Whether admissible)

2012/C 287/75

Language of the case: Italian

Parties

Applicant: Rosella Conticchio (Rome, Italy) (represented by: R. Giuffrida and A. Tortora, lawyers)

Defendant: European Commission (represented by: J. Currall and D. Martin, Agents, and A. Dal Ferro, lawyer)

Re:

Application by Ms Conticchio for annulment of the decision relating to the grant and payment of her pension rights.

Operative part of the order

| 1. | The action brought by Ms Conticchio is dismissed as being in part manifestly inadmissible and in part manifestly unfounded. |
| --- | --- |

1.

The action brought by Ms Conticchio is dismissed as being in part manifestly inadmissible and in part manifestly unfounded.

| 2. | Each party shall bear its own costs. |
| --- | --- |

2.

Each party shall bear its own costs.

---

(1)  OJ C 139, 7.5.2011, p. 31.

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/41 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/41

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Action brought on 20 July 2012 — ZZ and ZZ v Commission

(Case F-75/12)

2012/C 287/76

Language of the case: French

Parties

Applicants: ZZ and ZZ (represented by: D. Abreu Caldas, A. Coolen, J.-N. Louis, E. Marchal and S. Orlandi, lawyers)

Defendant: European Commission

Subject-matter and description of the proceedings

Action for annulment of the decisions calculating the entitlement to pension rights, acquired before entry into service with the European Commission, to be credited and, if necessary, the decisions rejecting the complaints submitted by the applicants

Form of order sought

The applicants claim that the Civil Service Tribunal should:

| — | annul the decisions calculating the entitlement to pension rights, acquired before entry into service with the European Commission, to be credited to them; |
| --- | --- |

—

annul the decisions calculating the entitlement to pension rights, acquired before entry into service with the European Commission, to be credited to them;

| — | if necessary, annul the decisions rejecting their complaints and requiring application of the GIP and the actuarial rates in force at the time when they applied to have their pension rights transferred; |
| --- | --- |

—

if necessary, annul the decisions rejecting their complaints and requiring application of the GIP and the actuarial rates in force at the time when they applied to have their pension rights transferred;

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

—

order the European Commission to pay the costs.

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/41 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/41

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Action brought on 20 July 2012 — ZZ v Commission

(Case F-76/12)

2012/C 287/77

Language of the case: French

Parties

Applicant: ZZ (represented by: S. Rodrigues and A. Blot, lawyers)

Defendant: European Commission

Subject-matter and description of the proceedings

Annulment of the decision of the Commission converting merit points acquired in another institution and of the Administrative Notice publishing the list of officials promoted in the 2011 promotion exercise.

Form of order sought

| — | Annul the decision of the European Commission of 13 October 2011 concerning the conversion of merit points acquired by the applicant in another institution, together with Administrative Notice No 48/2011 of 27 October 2011 publishing the list of officials promoted in the 2011 appraisal and promotion exercise, which does not include the name of the applicant; |
| --- | --- |

—

Annul the decision of the European Commission of 13 October 2011 concerning the conversion of merit points acquired by the applicant in another institution, together with Administrative Notice No 48/2011 of 27 October 2011 publishing the list of officials promoted in the 2011 appraisal and promotion exercise, which does not include the name of the applicant;

| — | As far as necessary, annul the decision adopted by the appointing authority rejecting the applicant’s complaint; |
| --- | --- |

—

As far as necessary, annul the decision adopted by the appointing authority rejecting the applicant’s complaint;

| — | Order the European Commission to pay damages assessed ex aequo et bono at EUR 20 000 to make good the material damage suffered; |
| --- | --- |

—

Order the European Commission to pay damages assessed ex aequo et bono at EUR 20 000 to make good the material damage suffered;

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

—

Order the European Commission to pay the costs.

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/42 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/42

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Order of the Civil Service Tribunal of 28 June 2012 — BH v Commission

(Case F-129/11) (1)

2012/C 287/78

Language of the case: French

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

---

(1)  OJ C 25, 28.1.2012, p. 73.

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/42 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/42

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Order of the Civil Service Tribunal of 28 June 2012 — BJ v Commission

(Case F-139/11) (1)

2012/C 287/79

Language of the case: French

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

---

(1)  OJ C 65, 3.3.12, p. 25.

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| 22.9.2012 | EN | Official Journal of the European Union | C 287/42 |
| --- | --- | --- | --- |

22.9.2012

EN

Official Journal of the European Union

C 287/42

---

Order of the Civil Service Tribunal of 28 June 2012 — BK v Commission

(Case F-140/11) (1)

2012/C 287/80

Language of the case: French

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

---

(1)  OJ C 65, 3.3.12, p. 25.

---