# Official Journal C 107/2008

| | ISSN 1725-2423 |
| --- | --- |
| Official Journal
  of the European Union | C 107 |
| | |
| English edition | Information and Notices | Volume 5126 April 2008 |

ISSN 1725-2423

Official Journal

of the European Union

C 107

English edition

Information and Notices

Volume 5126 April 2008

---

| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES |
| | Court of Justice |
| 2008/C 107/01 | Last publication of the Court of Justice in the Official Journal of the European Union
  OJ C 92, 12.4.2008 | 1 |

Notice No

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Court of Justice

2008/C 107/01

Last publication of the Court of Justice in the Official Journal of the European Union
  OJ C 92, 12.4.2008

Official Journal of the European Union

1

| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2008/C 107/02 | Case C-398/05: Judgment of the Court (Fourth Chamber) of 28 February 2008 (Reference for a preliminary ruling from the Finanzgericht Düsseldorf (Germany)) — AGST Draht- und Biegetechnik GmbH v Hauptzollamt Aachen (Common commercial policy — Countervailing duties — Protection against subsidies — Regulation (EC) No 1599/1999 — Stainless steel wires — Injury to the Community industry — Causal link) | 2 |
| 2008/C 107/03 | Case C-263/06: Judgment of the Court (Fourth Chamber) of 28 February 2008 (reference for a preliminary ruling from the Corte suprema di cassazione, Italy) — Carboni e derivati Srl v Ministero dell'Economia e delle Finanze, Riunione Adriatica di Sicurtà SpA (Common commercial policy — Protection against dumping — Anti-dumping duty — Hematite pig iron originating in Russia — Decision No 67/94/ECSC — Determination of customs value for purposes of the application of a variable anti-dumping duty — Transaction value — Successive sales at different prices — Whether the customs authority may take into consideration the price indicated in a sale of goods effected prior to that on the basis of which the customs declaration was made) | 2 |
| 2008/C 107/04 | Joined Cases C-287/06 to C-292/06: Judgment of the Court (First Chamber) of 6 March 2008 (reference for a preliminary ruling from the Verwaltungsgericht Köln, Germany) — Deutsche Post AG (C-287/06, C-288/06 and C-291/06), Magdeburger Dienstleistungs- und Verwaltungs GmbH (MDG) (C-289/06), Marketing Service Magdeburg GmbH (C-290/06), Vedat Deniz (C-292/06) v Bundesrepublik Deutschland (Postal services — Directive 97/67/EC — Field reserved to universal postal service provider — Special tariffs for the deposit by business customers, at fixed points of the postal network, of minimum quantities of pre-sorted items — Refusal of such tariffs to intermediaries who consolidate, on a commercial basis and in their own name, postal items from various senders) | 3 |
| 2008/C 107/05 | Case C-293/06: Judgment of the Court (Fourth Chamber) of 28 February 2008 (reference for a preliminary ruling from the Finanzgericht Hamburg, Germany) — Deutsche Shell GmbH v Finanzamt für Großunternehmen in Hamburg (Freedom of establishment — Taxation of companies — Monetary effects upon the repatriation of start-up capital granted by a company established in one Member State to its permanent establishment in another Member State) | 4 |
| 2008/C 107/06 | Case C-420/06: Judgment of the Court (Grand Chamber) of 11 March 2008 (reference for a preliminary ruling from the Verwaltungsgericht Schwerin (Germany)) — Rüdiger Jager v Amt für Landwirtschaft Bützow (Common agricultural policy — Regulations (EC) No 1254/1999 and (EC) No 1782/2003 — Beef and veal — Integrated administration and control system for certain Community aid schemes — Regulations (EEC) No 3887/92, (EC) No 2419/2001 and (EC) No 796/2004 — Applications for livestock aid — Suckler cow premium — Irregularities — Non-compliance with the provisions concerning the identification and registration of unclaimed bovine animals — Regulation (EC) No 1760/2000 — Exclusion from the benefit of aid — Article 2(2) of Regulation (EC, Euratom) No 2988/95 — Principle of retroactive application of the more lenient penalty) | 4 |
| 2008/C 107/07 | Case C-446/06: Judgment of the Court (Third Chamber) of 28 February 2008 (reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven, Netherlands) — A.G. Winkel v Minister van Landbouw, Natuur en Voedselkwaliteit (Beef and veal — Common organisation of the markets — Regulation (EC) No 1254/1999 — Article 3(f) — Grant of a suckler cow premium — Conditions consistent with usual animal husbandry practice) | 5 |
| 2008/C 107/08 | Case C-2/07: Judgment of the Court (Second Chamber) of 28 February 2008 (reference for a preliminary ruling from the Cour de cassation, Belgium) — Paul Abraham, Eugène Dehalleux, Jacqueline Starck, Robert Beaujean, Patrick Descamps and Others, Régine Lecomte, Jacques Deheneffe, Mirèse Mailleux, Léon Schreiber, Marie-Paule Cornesse, Claude Farnir, Pascale Bastiaens, Marc Kriescher, Isabelle Lemaire, Jean-Luc Kriescher, Mauro Altafoglia, Charles Franckaert, Fernande Pretto v Région wallonne, Société de développement et de promotion de l'aéroport de Liège Bierset SA, T.N.T. Express Worldwide (Euro Hub) SA, Société nationale des voies aériennes-Belgocontrol, État belge, Cargo Airlines Ltd (Directive 85/337/EEC — Assessment of the effects of projects on the environment — Airport with a runway more than 2100 metres in length) | 6 |
| 2008/C 107/09 | Case C-17/07 P: Judgment of the Court (Third Chamber) of 28 February 2008 — Wineke Neirinck v Commission (Appeal — Staff cases — Temporary staff — Contract staff — Office for Infrastructure and Logistics in Brussels (OIB) — Recruitment procedure — Rejection of candidature — Action for annulment — Action for damages) | 6 |
| 2008/C 107/10 | Case C-82/07: Judgment of the Court (Second Chamber) of 6 March 2008 (reference for a preliminary ruling from the Tribunal Supremo (Spain)) — Comisión del Mercado de las Telecomunicaciones v Administración del Estado (Electronic communications — Networks and services — Articles 3(2) and 10(1) of Directive 2002/21/EC (Framework Directive) — National numbering plans — Specific regulatory authority) | 7 |
| 2008/C 107/11 | Case C-89/07: Judgment of the Court (Sixth Chamber) of 11 March 2008 — Commission of the European Communities v French Republic (Failure of a Member State to fulfil its obligations — Employment in the public service — Posts of master (captain) and officer (chief mate) on board all ships flying the flag of a Member State — Condition of nationality) | 8 |
| 2008/C 107/12 | Case C-98/07: Judgment of the Court (Fourth Chamber) of 6 March 2008 (reference for a preliminary ruling from the Højesteret (Denmark)) — Nordania Finans A/S, BG Factoring A/S v Skatteministeriet (Sixth VAT Directive — Article 19(2) — Calculation of the deductible proportion — Exclusion of amounts of turnover attributable to the supplies of capital goods used by the taxable person for the purposes of his business — Notion of capital goods used by the taxable person for the purposes of his business — Vehicles purchased by a leasing company to be leased and subsequently sold on termination of the respective leasing contracts) | 8 |
| 2008/C 107/13 | Case C-196/07: Judgment of the Court (Third Chamber) of 6 March 2008 — Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil obligations — Competition policy — Concentrations — Failure to comply with obligations imposed by the Commission — E.ON/Endesa) | 9 |
| 2008/C 107/14 | Case C-340/07: Judgment of the Court (Eighth Chamber) of 6 March 2008 — Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Directive 2002/73/EC — Equal treatment for men and women — Access to employment, vocational training and promotion — Working conditions — Failure to transpose within the prescribed period) | 9 |
| 2008/C 107/15 | Case C-22/08: Reference for a preliminary ruling from the Sozialgericht Nürnberg (Germany) lodged on 22 January 2008 — Athanasios Vatsouras v Arbeitsgemeinschaft (ARGE) Nürnberg 900 | 10 |
| 2008/C 107/16 | Case C-23/08: Reference for a preliminary ruling from the Sozialgericht Nürnberg (Germany) lodged on 22 January 2008 — Josif Koupatantze v Arbeitsgemeinschaft (ARGE) Nürnberg 900 | 10 |
| 2008/C 107/17 | Case C-38/08 P: Appeal brought on 1 February 2008 by Jörn Sack against the judgment of the Court of First Instance (Fifth Chamber) delivered on 11 December 2007 in Case T-66/05 Jörn Sack v Commission of the European Communities | 11 |
| 2008/C 107/18 | Case C-39/08: Reference for a preliminary ruling from the Bundespatentgericht (Germany) lodged on 4 February 2008 — Trade mark case: Bild.T-Online.de AG & Co. KG v President of the German Patent- und Markenamt | 12 |
| 2008/C 107/19 | Case C-43/08: Reference for a preliminary ruling from the Bundespatentgericht (Germany) lodged on 8 February 2008 — Trade mark case: ZVS Zeitungsvertrieb Stuttgart GmbH v President of the German Patent- und Markenamt | 12 |
| 2008/C 107/20 | Case C-44/08: Reference for a preliminary ruling from the Korkein oikeus (Finland) lodged on 8 February 2008 — Akavan Erityisalojen Keskusliitto AEK ry v Fujitsu Siemens Computers Oy | 13 |
| 2008/C 107/21 | Case C-45/08: Reference for a preliminary ruling from the Hof van beroep te Brussel, Belgium lodged on 8 February 2008 — Spector Photo Group NV and Chris Van Raemdonck v Commissie voor het Bank-, Financie- en Assurantiewezen (CBFA) | 14 |
| 2008/C 107/22 | Case C-52/08: Action brought on 12 February 2008 — Commission of the European Communities v Portuguese Republic | 15 |
| 2008/C 107/23 | Case C-53/08: Action brought on 12 February 2008 — Commission of the European Communities v Republic of Austria | 15 |
| 2008/C 107/24 | Case C-54/08: Action brought on 12 February 2008 — Commission of the European Communities v Federal Republic of Germany | 16 |
| 2008/C 107/25 | Case C-58/08: Reference for a preliminary ruling from High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court) (United Kingdom) made on 13 February 2008 — Vodafone Ltd, Telefónica O2 Europe plc, T-Mobile International AG, Orange Personal Communications Services Ltd v Secretary of State for Business, Enterprise and Regulatory Reform | 17 |
| 2008/C 107/26 | Case C-62/08: Reference for a preliminary ruling from the Hof van Cassatie van België lodged on 18 February 2008 — UDV North America Inc v Brandtraders NV | 18 |
| 2008/C 107/27 | Case C-65/08: Reference for a preliminary ruling from the Finanzgericht Düsseldorf (Germany) lodged on 18 February 2008 — Europol Frost-Food GmbH v Hauptzollamt Krefeld | 18 |
| 2008/C 107/28 | Case C-66/08: Reference for a preliminary ruling from the Oberlandesgericht Stuttgart (Germany) lodged on 18 February 2008 — Extradition proceedings against Szymon Kozlowski | 18 |
| 2008/C 107/29 | Case C-67/08: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 20 February 2008 — Margarete Block v Finanzamt Kaufbeuren | 19 |
| 2008/C 107/30 | Case C-69/08: Reference for a preliminary ruling from the Tribunale di Napoli, Sezione Lavoro (Italy) lodged on 20 February 2008 — Raffaello Visciano v I.N.P.S. | 19 |
| 2008/C 107/31 | Case C-75/08: Reference for a preliminary ruling from Court of Appeal (Civil Division) (United Kingdom) made on 21 February 2008 — The Queen on the application of Christopher Mellor v Secretary of State for Communities and Local Government | 20 |
| 2008/C 107/32 | Case C-94/08: Action brought on 29 February 2008 — Commission of the European Communities v Kingdom of Spain | 20 |
| 2008/C 107/33 | Case C-107/08: Action brought on 7 March 2008 — Commission of the European Communities v Republic of Austria | 21 |
| | Court of First Instance |
| 2008/C 107/34 | Case T-43/03: Judgment of the Court of First Instance of 13 March 2008 — Maison de l'Europe Avignon Méditerranée v Commission (Non-contractual liability — Info point Europe label — Statements made by an agent of the Commission about the applicant) | 22 |
| 2008/C 107/35 | Case T-332/03: Judgment of the Court of First Instance of 12 March 2008 — ESN v Commission (Public service contracts — Community tendering procedure — Provision of services for the development and provision of services in support of the Community Research and Development Service (CORDIS) — Rejection of a tender — Principles of equal treatment as between tenderers and transparency — Compliance with the award criteria set out in the tendering specifications) | 22 |
| 2008/C 107/36 | Case T-345/03: Judgment of the Court of First Instance of 12 March 2008 — Evropaïki Dynamiki v Commission (Public service contracts — Community tendering procedure — Provision of services for the development and provision of services in support of the Community Research and Development Service (CORDIS) — Rejection of a tender — Principles of equal treatment as between tenderers and transparency) | 23 |
| 2008/C 107/37 | Case T-100/04: Judgment of the Court of First Instance of 12 March 2008 — Giannini v Commission (Public service — General competition — Non-inclusion in the reserve list — Irregularities in the conduct of the tests liable to distort the result — Equal treatment — Action for annulment — Action for damages) | 23 |
| 2008/C 107/38 | Case T-332/04: Judgment of the Court of First Instance of 12 March 2008 — Sebirán v OHIM — El Coto de Rioja (Coto D'Arcis) (Community trade mark — Opposition proceedings — Application for Community figurative mark Coto D'Arcis — Earlier Community word marks EL COTO and COTO DE IMAZ — Relative ground for refusal — Likelihood of confusion — No damage to reputation — Article 8(1)(b) and (5) of Regulation (EC) No 40/94) | 23 |
| 2008/C 107/39 | Case T-301/05: Judgment of the Court of First Instance of 11 March 2008 — Guigard v Commission (Non-contractual liability — Non-renewal of a contract of employment financed by the EDF — Lack of unlawful conduct on the part of the Commission — Jurisdiction of the Court of First Instance) | 24 |
| 2008/C 107/40 | Case T-341/06: Judgment of the Court of First Instance of 12 March 2008 — Compagnie générale de diététique v OHIM (GARUM) (Community trade mark — Application for Community trade mark GARUM — Absolute ground for refusal — Relevant public — Article 7(1)(b) of Regulation (EC) No 40/94) | 24 |
| 2008/C 107/41 | Case T-107/07 P: Judgment of the Court of First Instance of 12 March 2008 — Rossi Ferreras v Commission of the European Communities (Appeal — Staff cases — Officials — Career development report — Appraisal year 2003 — Assessment of facts — Burden of proof and production of evidence — Appeal inadmissible — Appeal unfounded) | 25 |
| 2008/C 107/42 | Case T-128/07: Judgment of the Court of First Instance of 12 March 2008 — Suez v OHIM (Community trade mark — Application for Community word mark Delivering the essentials of life — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 40/94) | 25 |
| 2008/C 107/43 | Case T-82/06: Order of the Court of First Instance of 19 February 2008 — Apple Computer International v Commission (Actions for annulment — Common Customs Tariff — Classification in the Combined Nomenclature — Person not individually concerned — Inadmissibility) | 26 |
| 2008/C 107/44 | Case T-295/06: Order of the Court of First Instance of 22 February 2008 — Base v Commission (Action for annulment — Telecommunications — Article 7 of Directive 2002/21/EC — Wholesale market for voice call termination on individual mobile networks in Belgium — Significant power on the market — Commission's comments letter — Non-actionable measure — Lack of direct concern — Inadmissibility) | 26 |
| 2008/C 107/45 | Case T-40/08: Action brought on 26 January 2008 — EREF v Commission | 26 |
| 2008/C 107/46 | Case T-44/08: Action brought on 24 January 2008 — Shetland Islands Council v Commission | 27 |
| 2008/C 107/47 | Case T-49/08 P: Appeal brought on 18 January 2008 by C. Michail against the judgment of the Civil Service Tribunal delivered on 22 November 2007 in Case F-67/05 Michail v Commission | 28 |
| 2008/C 107/48 | Case T-55/08: Action brought on 5 February 2008 — UEFA v Commission | 28 |
| 2008/C 107/49 | Case T-56/08: Action brought on 5 February 2008 — IEA and Others v Commission | 29 |
| 2008/C 107/50 | Case T-67/08: Action brought on 11 February 2008 — Hedgefund Intelligence v OHIM — Hedge Invest (InvestHedge) | 30 |
| 2008/C 107/51 | Case T-68/08: Action brought on 6 February 2008 — FIFA v Commission | 30 |
| 2008/C 107/52 | Case T-70/08: Action brought on 12 February 2008 — Axis AB v OHIM — Etra Investigación y Desarollo (ETRAX) | 31 |
| 2008/C 107/53 | Case T-72/08: Action brought on 11 February 2008 — Travel Servis v OHIM — Eurowings Luftverkehrs (smartWings) | 32 |
| 2008/C 107/54 | Case T-73/08: Action brought on 11 February 2008 — Berliner Institut für Vergleichende Sozialforschung v Commission | 33 |
| 2008/C 107/55 | Case T-75/08: Action brought on 13 February 2008 — JOOP! v OHIM (!) | 33 |
| 2008/C 107/56 | Case T-78/08: Action brought on 18 February 2008 — Baldesberger v OHIM (shape of tweezers) | 33 |
| 2008/C 107/57 | Case T-80/08: Action brought on 19 February 2008 — CureVac v OHIM — Qiagen (RNAiFect) | 34 |
| 2008/C 107/58 | Case T-81/08: Action brought on 18 February 2008 — Enercon v OHIM (E-ship) | 34 |
| 2008/C 107/59 | Case T-82/08: Action brought on 12 February 2008 — Guardian Industries and Guardian Europe v Commission | 35 |
| 2008/C 107/60 | Case T-83/08: Action brought on 19 February 2008 — Denki Kagaku Kogyo and Denka Chemicals v Commission | 35 |
| 2008/C 107/61 | Case T-85/08: Action brought on 19 February 2008 — Exalation v OHIM (Vektor-Lycopin) | 36 |
| 2008/C 107/62 | Case T-96/08: Action brought on 22 February 2008 — Global Digital Disc v Commission | 37 |
| 2008/C 107/63 | Case T-97/08: Action brought on 20 February 2008 — KUKA Roboter v OHIM (colour mark orange) | 37 |
| 2008/C 107/64 | Case T-102/08 P: Appeal brought on 25 February 2008 by Asa Sundholm against the judgment of the Civil Service Tribunal delivered on 13 December 2007 in Case F-27/07 Sundholm v Commission | 38 |
| 2008/C 107/65 | Case T-104/08: Action brought on 23 February 2008 — ars Parfum Creation & Consulting v OHIM (shape of a perfume bottle) | 38 |
| 2008/C 107/66 | Case T-105/08 P: Appeal brought on 26 February 2008 by Kris Van Neyghem against the judgment of the Civil Service Tribunal delivered on 13 December 2007 in Case F-73/06, Van Neyghem v Commission | 39 |
| 2008/C 107/67 | Case T-106/08: Action brought on 27 February 2008 — CPEM v Commission | 39 |
| 2008/C 107/68 | Case T-113/08: Action brought on 29 February 2008 — Spain v Commission | 40 |
| 2008/C 107/69 | Case T-114/08 P: Appeal brought on 6 March 2008 by Luigi Marcuccio against the judgment of the Civil Service Tribunal delivered on 14 December 2007 in Case F-21/07, Marcuccio v Commission | 41 |
| 2008/C 107/70 | Case T-115/08: Action brought on 10 March 2008 — Gourmet Burger Kitchen v OHIM (GOURMET BURGER KITCHEN) | 42 |
| 2008/C 107/71 | Case T-118/08: Action brought on 13 March 2008 — Actega Terra v OHIM (TERRAEFFEKT matt & gloss) | 42 |
| 2008/C 107/72 | Case T-126/07: Order of the Court of First Instance (Fifth Chamber) of 6 March 2008 — Allos Walter Lang GmbH v Allos Walter Lang GmbH v OHIM — KOKORIKO (Coco Rico) | 43 |
| 2008/C 107/73 | Case T-266/07: Order of the Court of First Instance of 27 February 2008 — Air One SpA v Commission of the European Communities | 43 |
| 2008/C 107/74 | Case T-309/07: Order of the Court of First Instance of 3 March 2008 — Kingdom of the Netherlands v Commission of the European Communities | 43 |
| 2008/C 107/75 | Case T-318/07: Order of the Court of First Instance of 3 March 2008 — National Association of Licensed Opencast Operators v Commission | 43 |
| | European Union Civil Service Tribunal |
| 2008/C 107/76 | Case F-53/07: Action brought on 24 December 2007 — Iordanova v Commission | 44 |
| 2008/C 107/77 | Case F-132/07: Action brought on 30 November 2007 — Strack v Commission | 44 |
| 2008/C 107/78 | Case F-19/08: Action brought on 26 February 2008 — Bennet and Others v OHIM | 44 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2008/C 107/02

Case C-398/05: Judgment of the Court (Fourth Chamber) of 28 February 2008 (Reference for a preliminary ruling from the Finanzgericht Düsseldorf (Germany)) — AGST Draht- und Biegetechnik GmbH v Hauptzollamt Aachen (Common commercial policy — Countervailing duties — Protection against subsidies — Regulation (EC) No 1599/1999 — Stainless steel wires — Injury to the Community industry — Causal link)

2

2008/C 107/03

Case C-263/06: Judgment of the Court (Fourth Chamber) of 28 February 2008 (reference for a preliminary ruling from the Corte suprema di cassazione, Italy) — Carboni e derivati Srl v Ministero dell'Economia e delle Finanze, Riunione Adriatica di Sicurtà SpA (Common commercial policy — Protection against dumping — Anti-dumping duty — Hematite pig iron originating in Russia — Decision No 67/94/ECSC — Determination of customs value for purposes of the application of a variable anti-dumping duty — Transaction value — Successive sales at different prices — Whether the customs authority may take into consideration the price indicated in a sale of goods effected prior to that on the basis of which the customs declaration was made)

2

2008/C 107/04

Joined Cases C-287/06 to C-292/06: Judgment of the Court (First Chamber) of 6 March 2008 (reference for a preliminary ruling from the Verwaltungsgericht Köln, Germany) — Deutsche Post AG (C-287/06, C-288/06 and C-291/06), Magdeburger Dienstleistungs- und Verwaltungs GmbH (MDG) (C-289/06), Marketing Service Magdeburg GmbH (C-290/06), Vedat Deniz (C-292/06) v Bundesrepublik Deutschland (Postal services — Directive 97/67/EC — Field reserved to universal postal service provider — Special tariffs for the deposit by business customers, at fixed points of the postal network, of minimum quantities of pre-sorted items — Refusal of such tariffs to intermediaries who consolidate, on a commercial basis and in their own name, postal items from various senders)

3

2008/C 107/05

Case C-293/06: Judgment of the Court (Fourth Chamber) of 28 February 2008 (reference for a preliminary ruling from the Finanzgericht Hamburg, Germany) — Deutsche Shell GmbH v Finanzamt für Großunternehmen in Hamburg (Freedom of establishment — Taxation of companies — Monetary effects upon the repatriation of start-up capital granted by a company established in one Member State to its permanent establishment in another Member State)

4

2008/C 107/06

Case C-420/06: Judgment of the Court (Grand Chamber) of 11 March 2008 (reference for a preliminary ruling from the Verwaltungsgericht Schwerin (Germany)) — Rüdiger Jager v Amt für Landwirtschaft Bützow (Common agricultural policy — Regulations (EC) No 1254/1999 and (EC) No 1782/2003 — Beef and veal — Integrated administration and control system for certain Community aid schemes — Regulations (EEC) No 3887/92, (EC) No 2419/2001 and (EC) No 796/2004 — Applications for livestock aid — Suckler cow premium — Irregularities — Non-compliance with the provisions concerning the identification and registration of unclaimed bovine animals — Regulation (EC) No 1760/2000 — Exclusion from the benefit of aid — Article 2(2) of Regulation (EC, Euratom) No 2988/95 — Principle of retroactive application of the more lenient penalty)

4

2008/C 107/07

Case C-446/06: Judgment of the Court (Third Chamber) of 28 February 2008 (reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven, Netherlands) — A.G. Winkel v Minister van Landbouw, Natuur en Voedselkwaliteit (Beef and veal — Common organisation of the markets — Regulation (EC) No 1254/1999 — Article 3(f) — Grant of a suckler cow premium — Conditions consistent with usual animal husbandry practice)

5

2008/C 107/08

Case C-2/07: Judgment of the Court (Second Chamber) of 28 February 2008 (reference for a preliminary ruling from the Cour de cassation, Belgium) — Paul Abraham, Eugène Dehalleux, Jacqueline Starck, Robert Beaujean, Patrick Descamps and Others, Régine Lecomte, Jacques Deheneffe, Mirèse Mailleux, Léon Schreiber, Marie-Paule Cornesse, Claude Farnir, Pascale Bastiaens, Marc Kriescher, Isabelle Lemaire, Jean-Luc Kriescher, Mauro Altafoglia, Charles Franckaert, Fernande Pretto v Région wallonne, Société de développement et de promotion de l'aéroport de Liège Bierset SA, T.N.T. Express Worldwide (Euro Hub) SA, Société nationale des voies aériennes-Belgocontrol, État belge, Cargo Airlines Ltd (Directive 85/337/EEC — Assessment of the effects of projects on the environment — Airport with a runway more than 2100 metres in length)

6

2008/C 107/09

Case C-17/07 P: Judgment of the Court (Third Chamber) of 28 February 2008 — Wineke Neirinck v Commission (Appeal — Staff cases — Temporary staff — Contract staff — Office for Infrastructure and Logistics in Brussels (OIB) — Recruitment procedure — Rejection of candidature — Action for annulment — Action for damages)

6

2008/C 107/10

Case C-82/07: Judgment of the Court (Second Chamber) of 6 March 2008 (reference for a preliminary ruling from the Tribunal Supremo (Spain)) — Comisión del Mercado de las Telecomunicaciones v Administración del Estado (Electronic communications — Networks and services — Articles 3(2) and 10(1) of Directive 2002/21/EC (Framework Directive) — National numbering plans — Specific regulatory authority)

7

2008/C 107/11

Case C-89/07: Judgment of the Court (Sixth Chamber) of 11 March 2008 — Commission of the European Communities v French Republic (Failure of a Member State to fulfil its obligations — Employment in the public service — Posts of master (captain) and officer (chief mate) on board all ships flying the flag of a Member State — Condition of nationality)

8

2008/C 107/12

Case C-98/07: Judgment of the Court (Fourth Chamber) of 6 March 2008 (reference for a preliminary ruling from the Højesteret (Denmark)) — Nordania Finans A/S, BG Factoring A/S v Skatteministeriet (Sixth VAT Directive — Article 19(2) — Calculation of the deductible proportion — Exclusion of amounts of turnover attributable to the supplies of capital goods used by the taxable person for the purposes of his business — Notion of capital goods used by the taxable person for the purposes of his business — Vehicles purchased by a leasing company to be leased and subsequently sold on termination of the respective leasing contracts)

8

2008/C 107/13

Case C-196/07: Judgment of the Court (Third Chamber) of 6 March 2008 — Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil obligations — Competition policy — Concentrations — Failure to comply with obligations imposed by the Commission — E.ON/Endesa)

9

2008/C 107/14

Case C-340/07: Judgment of the Court (Eighth Chamber) of 6 March 2008 — Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Directive 2002/73/EC — Equal treatment for men and women — Access to employment, vocational training and promotion — Working conditions — Failure to transpose within the prescribed period)

9

2008/C 107/15

Case C-22/08: Reference for a preliminary ruling from the Sozialgericht Nürnberg (Germany) lodged on 22 January 2008 — Athanasios Vatsouras v Arbeitsgemeinschaft (ARGE) Nürnberg 900

10

2008/C 107/16

Case C-23/08: Reference for a preliminary ruling from the Sozialgericht Nürnberg (Germany) lodged on 22 January 2008 — Josif Koupatantze v Arbeitsgemeinschaft (ARGE) Nürnberg 900

10

2008/C 107/17

Case C-38/08 P: Appeal brought on 1 February 2008 by Jörn Sack against the judgment of the Court of First Instance (Fifth Chamber) delivered on 11 December 2007 in Case T-66/05 Jörn Sack v Commission of the European Communities

11

2008/C 107/18

Case C-39/08: Reference for a preliminary ruling from the Bundespatentgericht (Germany) lodged on 4 February 2008 — Trade mark case: Bild.T-Online.de AG & Co. KG v President of the German Patent- und Markenamt

12

2008/C 107/19

Case C-43/08: Reference for a preliminary ruling from the Bundespatentgericht (Germany) lodged on 8 February 2008 — Trade mark case: ZVS Zeitungsvertrieb Stuttgart GmbH v President of the German Patent- und Markenamt

12

2008/C 107/20

Case C-44/08: Reference for a preliminary ruling from the Korkein oikeus (Finland) lodged on 8 February 2008 — Akavan Erityisalojen Keskusliitto AEK ry v Fujitsu Siemens Computers Oy

13

2008/C 107/21

Case C-45/08: Reference for a preliminary ruling from the Hof van beroep te Brussel, Belgium lodged on 8 February 2008 — Spector Photo Group NV and Chris Van Raemdonck v Commissie voor het Bank-, Financie- en Assurantiewezen (CBFA)

14

2008/C 107/22

Case C-52/08: Action brought on 12 February 2008 — Commission of the European Communities v Portuguese Republic

15

2008/C 107/23

Case C-53/08: Action brought on 12 February 2008 — Commission of the European Communities v Republic of Austria

15

2008/C 107/24

Case C-54/08: Action brought on 12 February 2008 — Commission of the European Communities v Federal Republic of Germany

16

2008/C 107/25

Case C-58/08: Reference for a preliminary ruling from High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court) (United Kingdom) made on 13 February 2008 — Vodafone Ltd, Telefónica O2 Europe plc, T-Mobile International AG, Orange Personal Communications Services Ltd v Secretary of State for Business, Enterprise and Regulatory Reform

17

2008/C 107/26

Case C-62/08: Reference for a preliminary ruling from the Hof van Cassatie van België lodged on 18 February 2008 — UDV North America Inc v Brandtraders NV

18

2008/C 107/27

Case C-65/08: Reference for a preliminary ruling from the Finanzgericht Düsseldorf (Germany) lodged on 18 February 2008 — Europol Frost-Food GmbH v Hauptzollamt Krefeld

18

2008/C 107/28

Case C-66/08: Reference for a preliminary ruling from the Oberlandesgericht Stuttgart (Germany) lodged on 18 February 2008 — Extradition proceedings against Szymon Kozlowski

18

2008/C 107/29

Case C-67/08: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 20 February 2008 — Margarete Block v Finanzamt Kaufbeuren

19

2008/C 107/30

Case C-69/08: Reference for a preliminary ruling from the Tribunale di Napoli, Sezione Lavoro (Italy) lodged on 20 February 2008 — Raffaello Visciano v I.N.P.S.

19

2008/C 107/31

Case C-75/08: Reference for a preliminary ruling from Court of Appeal (Civil Division) (United Kingdom) made on 21 February 2008 — The Queen on the application of Christopher Mellor v Secretary of State for Communities and Local Government

20

2008/C 107/32

Case C-94/08: Action brought on 29 February 2008 — Commission of the European Communities v Kingdom of Spain

20

2008/C 107/33

Case C-107/08: Action brought on 7 March 2008 — Commission of the European Communities v Republic of Austria

21

Court of First Instance

2008/C 107/34

Case T-43/03: Judgment of the Court of First Instance of 13 March 2008 — Maison de l'Europe Avignon Méditerranée v Commission (Non-contractual liability — Info point Europe label — Statements made by an agent of the Commission about the applicant)

22

2008/C 107/35

Case T-332/03: Judgment of the Court of First Instance of 12 March 2008 — ESN v Commission (Public service contracts — Community tendering procedure — Provision of services for the development and provision of services in support of the Community Research and Development Service (CORDIS) — Rejection of a tender — Principles of equal treatment as between tenderers and transparency — Compliance with the award criteria set out in the tendering specifications)

22

2008/C 107/36

Case T-345/03: Judgment of the Court of First Instance of 12 March 2008 — Evropaïki Dynamiki v Commission (Public service contracts — Community tendering procedure — Provision of services for the development and provision of services in support of the Community Research and Development Service (CORDIS) — Rejection of a tender — Principles of equal treatment as between tenderers and transparency)

23

2008/C 107/37

Case T-100/04: Judgment of the Court of First Instance of 12 March 2008 — Giannini v Commission (Public service — General competition — Non-inclusion in the reserve list — Irregularities in the conduct of the tests liable to distort the result — Equal treatment — Action for annulment — Action for damages)

23

2008/C 107/38

Case T-332/04: Judgment of the Court of First Instance of 12 March 2008 — Sebirán v OHIM — El Coto de Rioja (Coto D'Arcis) (Community trade mark — Opposition proceedings — Application for Community figurative mark Coto D'Arcis — Earlier Community word marks EL COTO and COTO DE IMAZ — Relative ground for refusal — Likelihood of confusion — No damage to reputation — Article 8(1)(b) and (5) of Regulation (EC) No 40/94)

23

2008/C 107/39

Case T-301/05: Judgment of the Court of First Instance of 11 March 2008 — Guigard v Commission (Non-contractual liability — Non-renewal of a contract of employment financed by the EDF — Lack of unlawful conduct on the part of the Commission — Jurisdiction of the Court of First Instance)

24

2008/C 107/40

Case T-341/06: Judgment of the Court of First Instance of 12 March 2008 — Compagnie générale de diététique v OHIM (GARUM) (Community trade mark — Application for Community trade mark GARUM — Absolute ground for refusal — Relevant public — Article 7(1)(b) of Regulation (EC) No 40/94)

24

2008/C 107/41

Case T-107/07 P: Judgment of the Court of First Instance of 12 March 2008 — Rossi Ferreras v Commission of the European Communities (Appeal — Staff cases — Officials — Career development report — Appraisal year 2003 — Assessment of facts — Burden of proof and production of evidence — Appeal inadmissible — Appeal unfounded)

25

2008/C 107/42

Case T-128/07: Judgment of the Court of First Instance of 12 March 2008 — Suez v OHIM (Community trade mark — Application for Community word mark Delivering the essentials of life — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 40/94)

25

2008/C 107/43

Case T-82/06: Order of the Court of First Instance of 19 February 2008 — Apple Computer International v Commission (Actions for annulment — Common Customs Tariff — Classification in the Combined Nomenclature — Person not individually concerned — Inadmissibility)

26

2008/C 107/44

Case T-295/06: Order of the Court of First Instance of 22 February 2008 — Base v Commission (Action for annulment — Telecommunications — Article 7 of Directive 2002/21/EC — Wholesale market for voice call termination on individual mobile networks in Belgium — Significant power on the market — Commission's comments letter — Non-actionable measure — Lack of direct concern — Inadmissibility)

26

2008/C 107/45

Case T-40/08: Action brought on 26 January 2008 — EREF v Commission

26

2008/C 107/46

Case T-44/08: Action brought on 24 January 2008 — Shetland Islands Council v Commission

27

2008/C 107/47

Case T-49/08 P: Appeal brought on 18 January 2008 by C. Michail against the judgment of the Civil Service Tribunal delivered on 22 November 2007 in Case F-67/05 Michail v Commission

28

2008/C 107/48

Case T-55/08: Action brought on 5 February 2008 — UEFA v Commission

28

2008/C 107/49

Case T-56/08: Action brought on 5 February 2008 — IEA and Others v Commission

29

2008/C 107/50

Case T-67/08: Action brought on 11 February 2008 — Hedgefund Intelligence v OHIM — Hedge Invest (InvestHedge)

30

2008/C 107/51

Case T-68/08: Action brought on 6 February 2008 — FIFA v Commission

30

2008/C 107/52

Case T-70/08: Action brought on 12 February 2008 — Axis AB v OHIM — Etra Investigación y Desarollo (ETRAX)

31

2008/C 107/53

Case T-72/08: Action brought on 11 February 2008 — Travel Servis v OHIM — Eurowings Luftverkehrs (smartWings)

32

2008/C 107/54

Case T-73/08: Action brought on 11 February 2008 — Berliner Institut für Vergleichende Sozialforschung v Commission

33

2008/C 107/55

Case T-75/08: Action brought on 13 February 2008 — JOOP! v OHIM (!)

33

2008/C 107/56

Case T-78/08: Action brought on 18 February 2008 — Baldesberger v OHIM (shape of tweezers)

33

2008/C 107/57

Case T-80/08: Action brought on 19 February 2008 — CureVac v OHIM — Qiagen (RNAiFect)

34

2008/C 107/58

Case T-81/08: Action brought on 18 February 2008 — Enercon v OHIM (E-ship)

34

2008/C 107/59

Case T-82/08: Action brought on 12 February 2008 — Guardian Industries and Guardian Europe v Commission

35

2008/C 107/60

Case T-83/08: Action brought on 19 February 2008 — Denki Kagaku Kogyo and Denka Chemicals v Commission

35

2008/C 107/61

Case T-85/08: Action brought on 19 February 2008 — Exalation v OHIM (Vektor-Lycopin)

36

2008/C 107/62

Case T-96/08: Action brought on 22 February 2008 — Global Digital Disc v Commission

37

2008/C 107/63

Case T-97/08: Action brought on 20 February 2008 — KUKA Roboter v OHIM (colour mark orange)

37

2008/C 107/64

Case T-102/08 P: Appeal brought on 25 February 2008 by Asa Sundholm against the judgment of the Civil Service Tribunal delivered on 13 December 2007 in Case F-27/07 Sundholm v Commission

Sundholm

Commission

38

2008/C 107/65

Case T-104/08: Action brought on 23 February 2008 — ars Parfum Creation & Consulting v OHIM (shape of a perfume bottle)

38

2008/C 107/66

Case T-105/08 P: Appeal brought on 26 February 2008 by Kris Van Neyghem against the judgment of the Civil Service Tribunal delivered on 13 December 2007 in Case F-73/06, Van Neyghem v Commission

39

2008/C 107/67

Case T-106/08: Action brought on 27 February 2008 — CPEM v Commission

39

2008/C 107/68

Case T-113/08: Action brought on 29 February 2008 — Spain v Commission

40

2008/C 107/69

Case T-114/08 P: Appeal brought on 6 March 2008 by Luigi Marcuccio against the judgment of the Civil Service Tribunal delivered on 14 December 2007 in Case F-21/07, Marcuccio v Commission

41

2008/C 107/70

Case T-115/08: Action brought on 10 March 2008 — Gourmet Burger Kitchen v OHIM (GOURMET BURGER KITCHEN)

42

2008/C 107/71

Case T-118/08: Action brought on 13 March 2008 — Actega Terra v OHIM (TERRAEFFEKT matt & gloss)

42

2008/C 107/72

Case T-126/07: Order of the Court of First Instance (Fifth Chamber) of 6 March 2008 — Allos Walter Lang GmbH v Allos Walter Lang GmbH v OHIM — KOKORIKO (Coco Rico)

43

2008/C 107/73

Case T-266/07: Order of the Court of First Instance of 27 February 2008 — Air One SpA v Commission of the European Communities

43

2008/C 107/74

Case T-309/07: Order of the Court of First Instance of 3 March 2008 — Kingdom of the Netherlands v Commission of the European Communities

43

2008/C 107/75

Case T-318/07: Order of the Court of First Instance of 3 March 2008 — National Association of Licensed Opencast Operators v Commission

43

European Union Civil Service Tribunal

2008/C 107/76

Case F-53/07: Action brought on 24 December 2007 — Iordanova v Commission

44

2008/C 107/77

Case F-132/07: Action brought on 30 November 2007 — Strack v Commission

44

2008/C 107/78

Case F-19/08: Action brought on 26 February 2008 — Bennet and Others v OHIM

44

| EN | |
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EN

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Court of Justice

| 26.4.2008 | EN | Official Journal of the European Union | C 107/1 |
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26.4.2008

EN

Official Journal of the European Union

C 107/1

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(2008/C 107/01)

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

OJ C 92, 12.4.2008

Past publications

OJ C 79, 29.3.2008

OJ C 64, 8.3.2008

OJ C 51, 23.2.2008

OJ C 37, 9.2.2008

OJ C 22, 26.1.2008

OJ C 8, 12.1.2008

These texts are available on:

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

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V Announcements

COURT PROCEEDINGS

Court of Justice

| 26.4.2008 | EN | Official Journal of the European Union | C 107/2 |
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26.4.2008

EN

Official Journal of the European Union

C 107/2

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Judgment of the Court (Fourth Chamber) of 28 February 2008 (Reference for a preliminary ruling from the Finanzgericht Düsseldorf (Germany)) — AGST Draht- und Biegetechnik GmbH v Hauptzollamt Aachen

(Case C-398/05) (1)

(Common commercial policy - Countervailing duties - Protection against subsidies - Regulation (EC) No 1599/1999 - Stainless steel wires - Injury to the Community industry - Causal link)

(2008/C 107/02)

Language of the case: German

Referring court

Finanzgericht Düsseldorf

Parties to the main proceedings

Applicant: AGST Draht- und Biegetechnik GmbH

Defendant: Hauptzollamt Aachen

Re:

Reference for preliminary ruling — Finanzgericht Düsseldorf — Validity of Council Regulation (EC) No 1599/1999 of 12 July 1999 imposing a definitive countervailing duty and collecting definitively the provisional duty imposed on stainless steel wires with a diameter of 1 mm or more originating in India and terminating the proceeding concerning imports of stainless steel wires with a diameter of 1 mm or more originating in the Republic of Korea (OJ 1999 L 189, p. 1) — Appraisal of harm caused to the Community industry, causal link with imports of subsidised goods

Operative part of the judgment

Consideration of the question referred has disclosed nothing capable of affecting the validity of Council Regulation (EC) No 1599/1999 of 12 July 1999 imposing a definitive countervailing duty and collecting definitively the provisional duty imposed on stainless steel wires with a diameter of 1 mm or more originating in India and terminating the proceeding concerning imports of stainless steel wires with a diameter of 1 mm or more originating in the Republic of Korea.

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(1)  OJ C 22, 28.1.2006.

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/2 |
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26.4.2008

EN

Official Journal of the European Union

C 107/2

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Judgment of the Court (Fourth Chamber) of 28 February 2008 (reference for a preliminary ruling from the Corte suprema di cassazione, Italy) — Carboni e derivati Srl v Ministero dell'Economia e delle Finanze, Riunione Adriatica di Sicurtà SpA

(Case C-263/06) (1)

(Common commercial policy - Protection against dumping - Anti-dumping duty - Hematite pig iron originating in Russia - Decision No 67/94/ECSC - Determination of customs value for purposes of the application of a variable anti-dumping duty - Transaction value - Successive sales at different prices - Whether the customs authority may take into consideration the price indicated in a sale of goods effected prior to that on the basis of which the customs declaration was made)

(2008/C 107/03)

Language of the case: Italian

Referring court

Corte suprema di cassazione

Parties to the main proceedings

Appellant: Carboni e derivati Srl

Respondents: Ministero dell'Economia e delle Finanze, Riunione Adriatica di Sicurtà SpA

Re:

Reference for a preliminary ruling — Corte suprema di cassazione — Interpretation of Article 147 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1993 L 253, p. 1), as amended by Regulation No 1762/95 — Basis of calculation to determine application of the anti-dumping duty — Possibility for the customs authority to take into consideration the price indicated in a sale of goods which took place prior to that on the basis of which the customs declaration took place — Hematite pig-iron originating in Russia

Operative part of the judgment

In accordance with Article 1(2) of Commission Decision No 67/94/ECSC of 12 January 1994 imposing a provisional anti-dumping duty on imports into the Community of hematite pig iron, originating in Brazil, Poland, Russia and Ukraine, the customs authorities may not determine the customs value for the purpose of applying the anti-dumping duty established by that decision on the basis of the price indicated for the goods concerned in a sale prior to that on the basis of which the customs declaration was made when the declared price corresponds to the price actually paid or payable by the importer.

If the customs authorities have reasonable doubts as to the accuracy of the declared value and their doubts are confirmed after they have asked for additional information or documents and have provided the person concerned with a reasonable opportunity to respond to the grounds for those doubts, without it being possible to determine the price actually paid or payable, they may, in accordance with Article 31 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, calculate the customs value for the purpose of applying the anti-dumping duty established by Decision No 67/94 by reference to the price agreed for the goods in question in the most recent sale prior to that on the basis of which the customs declaration was made and in regard to which the customs authorities have no objective reason to doubt its accuracy.

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(1)  OJ C 224, 16.9.2006.

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/3 |
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26.4.2008

EN

Official Journal of the European Union

C 107/3

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Judgment of the Court (First Chamber) of 6 March 2008 (reference for a preliminary ruling from the Verwaltungsgericht Köln, Germany) — Deutsche Post AG (C-287/06, C-288/06 and C-291/06), Magdeburger Dienstleistungs- und Verwaltungs GmbH (MDG) (C-289/06), Marketing Service Magdeburg GmbH (C-290/06), Vedat Deniz (C-292/06) v Bundesrepublik Deutschland

(Joined Cases C-287/06 to C-292/06) (1)

(Postal services - Directive 97/67/EC - Field reserved to universal postal service provider - Special tariffs for the deposit by business customers, at fixed points of the postal network, of minimum quantities of pre-sorted items - Refusal of such tariffs to intermediaries who consolidate, on a commercial basis and in their own name, postal items from various senders)

(2008/C 107/04)

Language of the case: German

Referring court

Verwaltungsgericht Köln

Parties to the main proceedings

Applicants: Deutsche Post AG (C-287/06, C-288/06 and C-291/06), Magdeburger Dienstleistungs- und Verwaltungs GmbH (MDG) (C-289/06), Marketing Service Magdeburg GmbH (C-290/06), Vedat Deniz (C-292/06)

Defendant: Bundesrepublik Deutschland

Intervening parties: Marketing Service Magdeburg GmbH (C-287/06), Citipost Gesellschaft für Kurier- und Postdienstleistungen mbH (C-288/06), Deutsche Post AG (C-289/06, C-290/06 and C-292/06), Magdeburger Dienstleistungs- und Verwaltungs GmbH (MDG) (C-291/06),

Re:

Reference for a preliminary ruling — Verwaltungsgericht Köln — Interpretation of Articles 47(2) EC and 95 EC and of the fifth indent of Article 12, and Article 7(1) of Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service (OJ 1998 L 15, p. 14), as amended by Directive 2002/39/EC of the European Parliament and of the Council of 10 June 2002 amending Directive 97/67/EC with regard to the further opening to competition of Community postal services (OJ 2002 L 176, p. 21) — Obligation on a universal postal service supplier also to offer special tariffs, applied to business customers who themselves transport pre-sorted postal items to the sorting offices of dispatch, to professional suppliers of postal services who collect the postal items from the senders and then, like the business customers, pre-sort and deliver them to a sorting office of dispatch

Operative part of the judgment

The fifth indent of Article 12 of Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service, as amended by Directive 2002/39/EC of the European Parliament and of the Council of 10 June 2002, must be interpreted as precluding refusal to apply to businesses which consolidate, on a commercial basis and in their own name, postal items from various senders the special tariffs which the national universal postal service provider grants, within the scope of its exclusive licence, to business customers for the deposit of minimum quantities of pre-sorted mail at its sorting offices.

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(1)  OJ C 261, 28.10.2006.

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/4 |
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26.4.2008

EN

Official Journal of the European Union

C 107/4

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Judgment of the Court (Fourth Chamber) of 28 February 2008 (reference for a preliminary ruling from the Finanzgericht Hamburg, Germany) — Deutsche Shell GmbH v Finanzamt für Großunternehmen in Hamburg

(Case C-293/06) (1)

(Freedom of establishment - Taxation of companies - Monetary effects upon the repatriation of start-up capital granted by a company established in one Member State to its permanent establishment in another Member State)

(2008/C 107/05)

Language of the case: German

Referring court

Finanzgericht Hamburg

Parties to the main proceedings

Applicant: Deutsche Shell GmbH

Defendant: Finanzamt für Großunternehmen in Hamburg

Re:

Preliminary ruling — Finanzgericht Hamburg — Interpretation of Articles 43 EC and 48 EC — Currency exchange loss incurred by a company established in one Member State at the time of repatriation of the start-up capital which it had granted to a permanent establishment set up in another Member State — Not possible to take that loss into account for purposes of taxation in the Member State in which the company is established

Operative part of the judgment

| 1) | It is contrary to Article 52 of the EC Treaty (now, after amendment Article 43 EC) in conjunction with Article 58 of the EC Treaty (now Article 48 EC) for a Member State, when determining the national basis of assessment, to exclude a currency loss suffered by a company with a registered office in that State upon the repatriation of start-up capital granted to its permanent establishment in another Member State. |
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1)

It is contrary to Article 52 of the EC Treaty (now, after amendment Article 43 EC) in conjunction with Article 58 of the EC Treaty (now Article 48 EC) for a Member State, when determining the national basis of assessment, to exclude a currency loss suffered by a company with a registered office in that State upon the repatriation of start-up capital granted to its permanent establishment in another Member State.

| 2) | It is also contrary to Article 52 of the EC Treaty (now, after amendment, Article 43 EC) in conjunction with Article 58 of the EC Treaty (now Article 48 EC) for a Member State to allow a currency loss to be deducted as operating expenditure in respect of an undertaking with a registered office in a Member State only in so far as its permanent establishment in another Member State does not make any tax-free profits. |
| --- | --- |

2)

It is also contrary to Article 52 of the EC Treaty (now, after amendment, Article 43 EC) in conjunction with Article 58 of the EC Treaty (now Article 48 EC) for a Member State to allow a currency loss to be deducted as operating expenditure in respect of an undertaking with a registered office in a Member State only in so far as its permanent establishment in another Member State does not make any tax-free profits.

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(1)  OJ C 237, 30.9.2006.

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/4 |
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26.4.2008

EN

Official Journal of the European Union

C 107/4

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Judgment of the Court (Grand Chamber) of 11 March 2008 (reference for a preliminary ruling from the Verwaltungsgericht Schwerin (Germany)) — Rüdiger Jager v Amt für Landwirtschaft Bützow

(Case C-420/06) (1)

(Common agricultural policy - Regulations (EC) No 1254/1999 and (EC) No 1782/2003 - Beef and veal - Integrated administration and control system for certain Community aid schemes - Regulations (EEC) No 3887/92, (EC) No 2419/2001 and (EC) No 796/2004 - Applications for ‘livestock’ aid - Suckler cow premium - Irregularities - Non-compliance with the provisions concerning the identification and registration of unclaimed bovine animals - Regulation (EC) No 1760/2000 - Exclusion from the benefit of aid - Article 2(2) of Regulation (EC, Euratom) No 2988/95 - Principle of retroactive application of the more lenient penalty)

(2008/C 107/06)

Language of the case: German

Referring court

Verwaltungsgericht Schwerin

Parties to the main proceedings

Applicant: Rüdiger Jager

Defendant: Amt für Landwirtschaft Bützow

Re:

Reference for a preliminary ruling — Verwaltungsgericht Schwerin — Interpretation of Article 2(2) of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities' financial interests (OJ 1995 L 312, p. 1) — Refusal of an application for livestock aid on account of a discrepancy of more than 20 % found between the number of animals declared and the number established during a check — Retroactive application of subsequent less severe administrative penalties concerning livestock aid which applied only after the abolition of the livestock aid scheme in the Member State concerned

Operative part of the judgment

The second sentence of Article 2(2) of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities' financial interests is to be interpreted as meaning that the provisions laid down by Articles 66 and 67 of Commission Regulation (EC) No 796/2004 of 21 April 2004 laying down detailed rules for the implementation of cross compliance, modulation and the integrated administration and control system provided for in Council Regulation (EC) No 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers, as amended and corrected by Commission Regulation (EC) No 239/2005 of 11 February 2005, may not be applied retroactively to an application for ‘livestock’ aid falling within the scope ratione temporis of Commission Regulation (EEC) No 3887/92 of 23 December 1992 laying down detailed rules for applying the integrated administration and control system for certain Community aid schemes, as amended by Commission Regulation (EC) No 2801/1999 of 21 December 1999, which gave rise to an exclusion from the benefit of aid under Article 10c of that regulation.

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(1)  OJ C 326, 30.12.2006.

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/5 |
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26.4.2008

EN

Official Journal of the European Union

C 107/5

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Judgment of the Court (Third Chamber) of 28 February 2008 (reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven, Netherlands) — A.G. Winkel v Minister van Landbouw, Natuur en Voedselkwaliteit

(Case C-446/06) (1)

(Beef and veal - Common organisation of the markets - Regulation (EC) No 1254/1999 - Article 3(f) - Grant of a suckler cow premium - Conditions consistent with usual animal husbandry practice)

(2008/C 107/07)

Language of the case: Dutch

Referring court

College van Beroep voor het bedrijfsleven

Parties to the main proceedings

Applicant: A.G. Winkel

Defendants: Minister van Landbouw, Natuur en Voedselkwaliteit

Re:

Reference for a preliminary ruling — College van Beroep voor het bedrijfsleven — Interpretation of Article 3(f) of Council Regulation (EC) No 1254 of 17 May 1999 on the common organisation of the market in beef and veal (OJ L 1999 L 160, p. 21) — Compatibility of national legislation which makes the award of a suckler-cow premium subject to conditions corresponding to a usual animal husbandry practice

Operative part of the judgment

Article 3(f) of Council Regulation (EC) No 1254/1999 of 17 May 1999 on the common organisation of the market in beef and veal, as amended by Council Regulation (EC) No 1512/2001 of 23 July 2001, does not preclude national rules which make the right to a suckler cow premium subject to conditions consistent with usual animal husbandry practice that require, first, a certain frequency of calving and secondly, that the calf should have been suckled by its mother for a period of four months after its birth.

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(1)  OJ C 326, 30.12.2006.

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/6 |
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26.4.2008

EN

Official Journal of the European Union

C 107/6

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Judgment of the Court (Second Chamber) of 28 February 2008 (reference for a preliminary ruling from the Cour de cassation, Belgium) — Paul Abraham, Eugène Dehalleux, Jacqueline Starck, Robert Beaujean, Patrick Descamps and Others, Régine Lecomte, Jacques Deheneffe, Mirèse Mailleux, Léon Schreiber, Marie-Paule Cornesse, Claude Farnir, Pascale Bastiaens, Marc Kriescher, Isabelle Lemaire, Jean-Luc Kriescher, Mauro Altafoglia, Charles Franckaert, Fernande Pretto v Région wallonne, Société de développement et de promotion de l'aéroport de Liège Bierset SA, T.N.T. Express Worldwide (Euro Hub) SA, Société nationale des voies aériennes-Belgocontrol, État belge, Cargo Airlines Ltd

(Case C-2/07) (1)

(Directive 85/337/EEC - Assessment of the effects of projects on the environment - Airport with a runway more than 2 100 metres in length)

(2008/C 107/08)

Language of the case: French

Referring court

Cour de cassation

Parties to the main proceedings

Applicants: Paul Abraham, Eugène Dehalleux, Jacqueline Starck, Robert Beaujean, Patrick Descamps and Others., Régine Lecomte, Jacques Deheneffe, Mirèse Mailleux, Léon Schreiber, Marie-Paule Cornesse, Claude Farnir, Pascale Bastiaens, Marc Kriescher, Isabelle Lemaire, Jean-Luc Kriescher, Mauro Altafoglia, Charles Franckaert, Fernande Pretto

Defendants: Région wallonne, Société de développement et de promotion de l'aéroport de Liège Bierset SA, T.N.T. Express Worldwide (Euro Hub) SA, Société nationale des voies aériennes-Belgocontrol, État belge, Cargo Airlines Ltd

Re:

Reference for a preliminary ruling — Cour de cassation — Interpretation of Articles 1, 2 and 4 of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40) — Notion of ‘project liable to have significant effects on the environment’ — Airport with a runway of more than 2 100 metres in length — Work on infrastructures and work to restructure an existing airport without extension of the runway — Requirement for an impact assessment

Operative part of the judgment

| 1) | While an agreement such as the one at issue in the main proceedings is not a project within the meaning of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, it is for the national court to determine, on the basis of the applicable national legislation, whether such an agreement constitutes a development consent within the meaning of Article 1(2) of Directive 85/337. It is necessary, in that context, to consider whether that consent forms part of a procedure carried out in several stages involving a principal decision and implementing decisions and whether account is to be taken of the cumulative effect of several projects whose impact on the environment must be assessed globally. |
| --- | --- |

1)

While an agreement such as the one at issue in the main proceedings is not a project within the meaning of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, it is for the national court to determine, on the basis of the applicable national legislation, whether such an agreement constitutes a development consent within the meaning of Article 1(2) of Directive 85/337. It is necessary, in that context, to consider whether that consent forms part of a procedure carried out in several stages involving a principal decision and implementing decisions and whether account is to be taken of the cumulative effect of several projects whose impact on the environment must be assessed globally.

| 2) | Point 12 of Annex II, read in conjunction with point 7 of Annex I, to Directive 85/337, in their original version, also encompasses works to modify the infrastructure of an existing airport, without extension of the runway, where they may be regarded, in particular because of their nature, extent and characteristics, as a modification of the airport itself. That is the case in particular for works aimed at significantly increasing the activity of the airport and air traffic. It is for the national court to establish that the competent authorities correctly assessed whether the works at issue in the main proceedings were to be subject to an environmental impact assessment. |
| --- | --- |

2)

Point 12 of Annex II, read in conjunction with point 7 of Annex I, to Directive 85/337, in their original version, also encompasses works to modify the infrastructure of an existing airport, without extension of the runway, where they may be regarded, in particular because of their nature, extent and characteristics, as a modification of the airport itself. That is the case in particular for works aimed at significantly increasing the activity of the airport and air traffic. It is for the national court to establish that the competent authorities correctly assessed whether the works at issue in the main proceedings were to be subject to an environmental impact assessment.

| 3) | The competent authorities have to take account of the projected increase in the activity of an airport when examining the environmental effect of modifications made to its infrastructure with a view to accommodating that increase in activity. |
| --- | --- |

3)

The competent authorities have to take account of the projected increase in the activity of an airport when examining the environmental effect of modifications made to its infrastructure with a view to accommodating that increase in activity.

---

(1)  OJ C 69, 24.3.2007.

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/6 |
| --- | --- | --- | --- |

26.4.2008

EN

Official Journal of the European Union

C 107/6

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Judgment of the Court (Third Chamber) of 28 February 2008 — Wineke Neirinck v Commission

(Case C-17/07 P) (1)

(Appeal - Staff cases - Temporary staff - Contract staff - Office for Infrastructure and Logistics in Brussels (OIB) - Recruitment procedure - Rejection of candidature - Action for annulment - Action for damages)

(2008/C 107/09)

Language of the case: French

Parties

Appellant: Wineke Neirinck (represented by: G. Vandersanden and L. Levi, avocats)

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

Re:

Appeal against the judgment of the Court of First Instance (Second Chamber) of 14 November 2006 in Case T-494/04 Neirinck v Commission dismissing the application of the appellant seeking (i) annulment of the Commission's decisions rejecting her candidature for the post of lawyer in the Buildings Policy sector of the Office for Infrastructure and Logistics in Brussels (OIB) and appointing another applicant to that post and (ii) award of damages — Concept of interest in bringing proceedings — Obligation to state reasons — Distortion of the clear sense of the evidence — Misuse of powers — Interests of the service, principle of the administration's duty to have regard for the interests of officials and principle of proper administration.

Operative part of the judgment

The Court:

| 1. | annuls the judgment of the Court of First Instance (Second Chamber) of 14 November 2006 in Case T-494/04 Neirinck v Commission in so far as the Court dismissed the plea in law alleging that an infringement of the obligation to state reasons vitiated the decision of the Commission of the European Communities of 27 April 2004 informing Mrs Neirinck that she had failed the oral examination within the recruitment procedure for the post of lawyer in the Buildings Policy sector of the Office for Infrastructure and Logistics in Brussels, as a member of contract staff; |
| --- | --- |

1.

annuls the judgment of the Court of First Instance (Second Chamber) of 14 November 2006 in Case T-494/04 Neirinck v Commission in so far as the Court dismissed the plea in law alleging that an infringement of the obligation to state reasons vitiated the decision of the Commission of the European Communities of 27 April 2004 informing Mrs Neirinck that she had failed the oral examination within the recruitment procedure for the post of lawyer in the Buildings Policy sector of the Office for Infrastructure and Logistics in Brussels, as a member of contract staff;

| 2. | dismisses the appeal for the remainder; |
| --- | --- |

2.

dismisses the appeal for the remainder;

| 3. | annuls the decision of the Commission of the European Communities of 27 April 2004 informing Mrs Neirinck that she had failed the oral examination within the recruitment procedure for the post of lawyer in the Buildings Policy sector of the Office for Infrastructure and Logistics in Brussels, as a member of contract staff; |
| --- | --- |

3.

annuls the decision of the Commission of the European Communities of 27 April 2004 informing Mrs Neirinck that she had failed the oral examination within the recruitment procedure for the post of lawyer in the Buildings Policy sector of the Office for Infrastructure and Logistics in Brussels, as a member of contract staff;

| 4. | dismisses the action for the remainder; |
| --- | --- |

4.

dismisses the action for the remainder;

| 5. | orders the Commission of the European Communities to pay, in addition to its own costs, the entire costs of Mrs Neirinck before the Court of Justice of the European Communities and before the Court of First Instance of the European Communities. |
| --- | --- |

5.

orders the Commission of the European Communities to pay, in addition to its own costs, the entire costs of Mrs Neirinck before the Court of Justice of the European Communities and before the Court of First Instance of the European Communities.

---

(1)  OJ C 95, 28.4.2007.

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/7 |
| --- | --- | --- | --- |

26.4.2008

EN

Official Journal of the European Union

C 107/7

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Judgment of the Court (Second Chamber) of 6 March 2008 (reference for a preliminary ruling from the Tribunal Supremo (Spain)) — Comisión del Mercado de las Telecomunicaciones v Administración del Estado

(Case C-82/07) (1)

(Electronic communications - Networks and services - Articles 3(2) and 10(1) of Directive 2002/21/EC (Framework Directive) - National numbering plans - Specific regulatory authority)

(2008/C 107/10)

Language of the case: Spanish

Referring court

Tribunal Supremo (Spain)

Parties to the main proceedings

Applicant: Comisión del Mercado de las Telecomunicaciones

Defendant: Administración del Estado

Re:

Interpretation of Articles 3(1), (2) and (4) and 10(1) of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (‘Framework Directive’) (OJ 2000 L 108, p. 33) — Allocation of national numbering resources and management of national numbering plans — Regulatory and operational tasks entrusted to a specific authority

Operative part of the judgment

| 1. | Articles 3(2), 3(4) and 10(1) of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive), read in conjunction with Recital (11) in the preamble to that directive, must be interpreted as meaning that the assignment of the national numbering resources and the management of the national numbering plans must be regarded as regulatory functions. Member States are not required to allocate those different functions to separate regulatory authorities. |
| --- | --- |

1.

Articles 3(2), 3(4) and 10(1) of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive), read in conjunction with Recital (11) in the preamble to that directive, must be interpreted as meaning that the assignment of the national numbering resources and the management of the national numbering plans must be regarded as regulatory functions. Member States are not required to allocate those different functions to separate regulatory authorities.

| 2. | Article 10(1) and Article 3(2), (4) and (6) of Directive 2002/21 must be interpreted as not precluding the functions of assigning national numbering resources or of managing national numbering plans from being shared by a number of independent regulatory authorities, provided that the allocation of the tasks is made public and easily accessible, and notified to the Commission of the European Communities. |
| --- | --- |

2.

Article 10(1) and Article 3(2), (4) and (6) of Directive 2002/21 must be interpreted as not precluding the functions of assigning national numbering resources or of managing national numbering plans from being shared by a number of independent regulatory authorities, provided that the allocation of the tasks is made public and easily accessible, and notified to the Commission of the European Communities.

---

(1)  OJ C 82, 14.4.2007.

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/8 |
| --- | --- | --- | --- |

26.4.2008

EN

Official Journal of the European Union

C 107/8

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Judgment of the Court (Sixth Chamber) of 11 March 2008 — Commission of the European Communities v French Republic

(Case C-89/07) (1)

(Failure of a Member State to fulfil its obligations - Employment in the public service - Posts of master (captain) and officer (chief mate) on board all ships flying the flag of a Member State - Condition of nationality)

(2008/C 107/11)

Language of the case: French

Parties

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

Defendant: French Republic (represented by: G. de Bergues and O. Christmann, acting as Agents)

Re:

Failure of a Member State to fulfil its obligations — Article 39(4) EC — Free movement of workers — Exercise of public power — Requirement of French nationality for the pursuit of employment as master (captain) and officer (chief mate) on all vessels flying the French flag — Incompatible with Community law

Operative part of the judgment

The Court:

| 1. | Declares that, by maintaining in its legislation a requirement of French nationality for access to the posts of master (captain) and officer (chief mate) on all vessels flying the French flag, the French Republic has failed to fulfil its obligations under Article 39 EC. |
| --- | --- |

1.

Declares that, by maintaining in its legislation a requirement of French nationality for access to the posts of master (captain) and officer (chief mate) on all vessels flying the French flag, the French Republic has failed to fulfil its obligations under Article 39 EC.

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

2.

Orders the French Republic to pay the costs.

---

(1)  OJ C 95, 28.4.2007.

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/8 |
| --- | --- | --- | --- |

26.4.2008

EN

Official Journal of the European Union

C 107/8

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Judgment of the Court (Fourth Chamber) of 6 March 2008 (reference for a preliminary ruling from the Højesteret (Denmark)) — Nordania Finans A/S, BG Factoring A/S v Skatteministeriet

(Case C-98/07) (1)

(Sixth VAT Directive - Article 19(2) - Calculation of the deductible proportion - Exclusion of amounts of turnover attributable to the supplies of capital goods used by the taxable person for the purposes of his business - Notion of ‘capital goods used by the taxable person for the purposes of his business’ - Vehicles purchased by a leasing company to be leased and subsequently sold on termination of the respective leasing contracts)

(2008/C 107/12)

Language of the case: Danish

Referring court

Højesteret

Parties to the main proceedings

Applicants: Nordania Finans A/S, BG Factoring A/S

Defendant: Skatteministeriet

Re:

Reference for a preliminary ruling — Højesteret — Interpretation of Article 19 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) — Calculation of the deductible proportion — Inclusion or not of the amount of the turnover from the sale of vehicles of a vehicle leasing company at the end of the leasing contracts

Operative part of the judgment

Article 19(2) 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, is to be interpreted as meaning that the notion of ‘capital goods used by the taxable person for the purposes of his business’ does not include vehicles which a leasing undertaking purchases with a view, as in the case in the main proceedings, to leasing them and subsequently selling them upon termination of the respective leasing contracts, as the sale of such vehicles at the end of those contracts is an integral part of the usual business activities of that undertaking.

---

(1)  OJ C 95, 28.4.2007.

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/9 |
| --- | --- | --- | --- |

26.4.2008

EN

Official Journal of the European Union

C 107/9

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Judgment of the Court (Third Chamber) of 6 March 2008 — Commission of the European Communities v Kingdom of Spain

(Case C-196/07) (1)

(Failure of a Member State to fulfil obligations - Competition policy - Concentrations - Failure to comply with obligations imposed by the Commission - E.ON/Endesa)

(2008/C 107/13)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (represented by: V Di Bucci and E. Gippini Fournier, agents)

Defendant: Kingdom of Spain (represented by: N. Diaz Abad, agent)

Re:

Failure of a Member State to fulfil obligations — Failure to comply with Article 2 of the Commission Decision of 26 September 2006 (Case No COMP/M.4197 — E.ON/Endesa — C(2006) 4279 final) and Article 2 of the Commission Decision of 20 December 2006 (Case No COMP/M.4197 — E.ON/Endesa — C(2006) 7039 final)

Operative part of the judgment

The Court:

| 1. | declares that by not withdrawing:






  — | the conditions 1 to 6, 8 and 17 imposed by the decision of the National Energy Committee which were declared incompatible with Community law by Article 1 of the Commission Decision of 26 September 2006 (Case No COMP/M.4197 — E.ON/Endesa — C(2006) 4279 final), and |
| --- | --- | --- |

1.

declares that by not withdrawing:

—

the conditions 1 to 6, 8 and 17 imposed by the decision of the National Energy Committee which were declared incompatible with Community law by Article 1 of the Commission Decision of 26 September 2006 (Case No COMP/M.4197 — E.ON/Endesa — C(2006) 4279 final), and

| — | the conditions 1, 10, 11 and 15, as amended, imposed by decision of the Ministry of Industry, Tourism and Trade which were declared incompatible with Community law by Article 1 of the Commission Decision of 20 December 2006 (Case No COMP/M.4197 — E.ON/Endesa — C(2006) 7039 final), |
| --- | --- |

—

the conditions 1, 10, 11 and 15, as amended, imposed by decision of the Ministry of Industry, Tourism and Trade which were declared incompatible with Community law by Article 1 of the Commission Decision of 20 December 2006 (Case No COMP/M.4197 — E.ON/Endesa — C(2006) 7039 final),

the Kingdom of Spain has failed to fulfil its obligations under Article 2 of each of those decisions;

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

2.

orders the Kingdom of Spain to pay the costs.

---

(1)  OJ C 155, 7.7.2007.

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/9 |
| --- | --- | --- | --- |

26.4.2008

EN

Official Journal of the European Union

C 107/9

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Judgment of the Court (Eighth Chamber) of 6 March 2008 — Commission of the European Communities v Grand Duchy of Luxembourg

(Case C-340/07) (1)

(Failure of a Member State to fulfil obligations - Directive 2002/73/EC - Equal treatment for men and women - Access to employment, vocational training and promotion - Working conditions - Failure to transpose within the prescribed period)

(2008/C 107/14)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: G.Rozet and M. van Beek. acting as agents)

Defendant: Grand Duchy of Luxembourg (represented by: C. Schiltz, agent)

Re:

Failure of a Member State to fulfil obligations — Failure to take, within the prescribed period, all the measures necessary to comply with Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (OJ 2002 L 269, p. 1)

Operative part of the judgment

The Court:

| 1. | declares that, by not having adopted within the prescribed period, all the laws, regulations and administrative provisions necessary to comply with Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, the Grand Duchy of Luxembourg has failed to fulfil its obligations under the first paragraph of Article 2(1) of that directive. |
| --- | --- |

1.

declares that, by not having adopted within the prescribed period, all the laws, regulations and administrative provisions necessary to comply with Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, the Grand Duchy of Luxembourg has failed to fulfil its obligations under the first paragraph of Article 2(1) of that directive.

| 2. | orders the Grand Duchy of Luxembourg to pay the costs. |
| --- | --- |

2.

orders the Grand Duchy of Luxembourg to pay the costs.

---

(1)  OJ C 211, 8.9.2007.

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/10 |
| --- | --- | --- | --- |

26.4.2008

EN

Official Journal of the European Union

C 107/10

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Reference for a preliminary ruling from the Sozialgericht Nürnberg (Germany) lodged on 22 January 2008 — Athanasios Vatsouras v Arbeitsgemeinschaft (ARGE) Nürnberg 900

(Case C-22/08)

(2008/C 107/15)

Language of the case: German

Referring court

Sozialgericht Nürnberg

Parties to the main proceedings

Applicant: Athanasios Vatsouras

Defendant: Arbeitsgemeinschaft (ARGE) Nürnberg 900

Questions referred

| 1. | Is Article 24(2) of Directive 2004/38 of the European Parliament and of the Council of 29 April 2004 (1) compatible with Article 12 EC in conjunction with Article 39 EC? |
| --- | --- |

1.

Is Article 24(2) of Directive 2004/38 of the European Parliament and of the Council of 29 April 2004 (1) compatible with Article 12 EC in conjunction with Article 39 EC?

| 2. | If the answer to question 1 is in the negative, does Article 12 EC in conjunction with Article 39 EC preclude national rules which exclude Union citizens from receipt of social assistance if the maximum period of residence permitted under Article 6 of Directive 2004/38 of the European Parliament and of the Council of 29 April 2004 has been exceeded and there is no right of residence under other provisions? |
| --- | --- |

2.

If the answer to question 1 is in the negative, does Article 12 EC in conjunction with Article 39 EC preclude national rules which exclude Union citizens from receipt of social assistance if the maximum period of residence permitted under Article 6 of Directive 2004/38 of the European Parliament and of the Council of 29 April 2004 has been exceeded and there is no right of residence under other provisions?

| 3. | If the answer to question 1 is in the affirmative, does Article 12 EC preclude national rules which exclude nationals of Member States of the European Union even from receipt of the social assistance benefits which are granted to illegal immigrants? |
| --- | --- |

3.

If the answer to question 1 is in the affirmative, does Article 12 EC preclude national rules which exclude nationals of Member States of the European Union even from receipt of the social assistance benefits which are granted to illegal immigrants?

---

(1)  OJ 2004 L 158, p. 77.

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/10 |
| --- | --- | --- | --- |

26.4.2008

EN

Official Journal of the European Union

C 107/10

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Reference for a preliminary ruling from the Sozialgericht Nürnberg (Germany) lodged on 22 January 2008 — Josif Koupatantze v Arbeitsgemeinschaft (ARGE) Nürnberg 900

(Case C-23/08)

(2008/C 107/16)

Language of the case: German

Referring court

Sozialgericht Nürnberg

Parties to the main proceedings

Applicant: Josif Koupatantze

Defendant: Arbeitsgemeinschaft (ARGE) Nürnberg 900

Questions referred

| 1. | Is Article 24(2) of Directive 2004/38 of the European Parliament and of the Council of 29 April 2004 (1) compatible with Article 12 EC in conjunction with Article 39 EC? |
| --- | --- |

1.

Is Article 24(2) of Directive 2004/38 of the European Parliament and of the Council of 29 April 2004 (1) compatible with Article 12 EC in conjunction with Article 39 EC?

| 2. | If the answer to question 1 is in the negative, does Article 12 EC in conjunction with Article 39 EC preclude national rules which exclude Union citizens from receipt of social assistance if the maximum period of residence permitted under Article 6 of Directive 2004/38 of the European Parliament and of the Council of 29 April 2004 has been exceeded and there is no right of residence under other provisions? |
| --- | --- |

2.

If the answer to question 1 is in the negative, does Article 12 EC in conjunction with Article 39 EC preclude national rules which exclude Union citizens from receipt of social assistance if the maximum period of residence permitted under Article 6 of Directive 2004/38 of the European Parliament and of the Council of 29 April 2004 has been exceeded and there is no right of residence under other provisions?

| 3. | If the answer to question 1 is in the affirmative, does Article 12 EC preclude national rules which exclude nationals of Member States of the European Union even from receipt of the social assistance benefits which are granted to illegal immigrants? |
| --- | --- |

3.

If the answer to question 1 is in the affirmative, does Article 12 EC preclude national rules which exclude nationals of Member States of the European Union even from receipt of the social assistance benefits which are granted to illegal immigrants?

---

(1)  OJ 2004 L 158, p. 77.

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/11 |
| --- | --- | --- | --- |

26.4.2008

EN

Official Journal of the European Union

C 107/11

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Appeal brought on 1 February 2008 by Jörn Sack against the judgment of the Court of First Instance (Fifth Chamber) delivered on 11 December 2007 in Case T-66/05 Jörn Sack v Commission of the European Communities

(Case C-38/08 P)

(2008/C 107/17)

Language of the case: German

Parties

Appellant: Jörn Sack (represented by: U. Lehmann-Brauns and D. Mahlo, Rechtsanwälte)

Other party to the proceedings: Commission of the European Communities

Form of order sought

| — | set aside the judgment of the Court of First Instance of 11 December 2007 in Case T-66/05 and (while the Court of Justice will itself rule on the legal questions wrongly left open on the basis of the principle of equal treatment) allow the application in so far as the decision of the Commission on the fixing of the applicant's monthly salary for May 2004 is set aside. |
| --- | --- |

—

set aside the judgment of the Court of First Instance of 11 December 2007 in Case T-66/05 and (while the Court of Justice will itself rule on the legal questions wrongly left open on the basis of the principle of equal treatment) allow the application in so far as the decision of the Commission on the fixing of the applicant's monthly salary for May 2004 is set aside.

| — | in the alternative, to set aside the judgment and refer the case back to the Court of First Instance for judgment and for that Court to give a ruling on the question of the infringement of the principle of equal treatment by reason of the failure to take the applicant to account in awarding the increment provided for in the second paragraph of Article 44 of the Staff Regulations. |
| --- | --- |

—

in the alternative, to set aside the judgment and refer the case back to the Court of First Instance for judgment and for that Court to give a ruling on the question of the infringement of the principle of equal treatment by reason of the failure to take the applicant to account in awarding the increment provided for in the second paragraph of Article 44 of the Staff Regulations.

Pleas in law and main arguments

The appeal against the judgment of the Court of First Instance, which held that appellant was not entitled, in his capacity as coordinator for all legal questions relating to the enlargement of the European Union in the relevant section of the Commission's Legal Service, to the increment for heads of unit, is based on the following grounds.

The first plea in law: the Court of First Instance misconstrued the meaning and scope of the general principle of equal treatment under Community law and in so doing infringed that principle.

The principle of equal treatment is enshrined both in its general form as in its particular expression as a prohibition of discrimination in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union and has been recognised in the case-law of the Court of Justice for a considerable period as a higher-ranking principle of Community law. The obligation to comply with the requirement of equal treatment represents, under Community law, not merely a duty imposed on each of the institutions but also a subjective right to the equal treatment of individuals affected by a measure of the institutions. Since, that principle takes priority over Community secondary law, as the Court of Justice has long recognised in the abovementioned case-law, the importance of that right as a fundamental right must be properly taken into account in the interpretation and application of Community law. The Court of Justice must also respect the principle of equal treatment in the context of the rules of procedure and the different forms of procedure.

Throughout his arguments, the applicant relied on the principle of equal treatment at all times, and not on the Staff Regulations, and he invoked the fact that he had carried out duties that were not only equivalent to those of a head of unit, but should also be considered to be of greater value by comparison with the duties of many heads of unit in the context of the tasks involved at middle-management level. By failing in any way to undertake any comparative examination of the applicant's situation with that of other categories of official who benefited from the payment, the Court of First Instance deprived him completely of the protection against arbitrary treatment conferred on him by the fundamental rights and in so doing infringed the principle of equal treatment.

The second plea in law: the Court of First Instance infringed the rules of legal logic

Where arbitrary treatment among several parties is alleged, the principles of equal treatment and legal certainty can be complied with only if the court makes a finding that the comparable situation relied on does not exist or determines that the parties in that comparable situation have wrongly been given the benefit of an advantage and, accordingly, that the applicant should also not be entitled to it. If those rules of legal logic are applied, it is clear that it was necessary to examine at least one of the two following questions and to answer it in the negative in relation to the applicant, if the action was to be dismissed. First, the Court of First Instance had to rule on the question whether the duties undertaken by the officials who the Commission assimilated to heads of unit were equivalent to those undertaken by the applicant and, secondly, whether the Commission was right to award them the payment.

Since those two questions were not the subject of any ruling, it must be presumed, if they are to be considered as having no relevance from a legal point of view, that the action would also have been dismissed if those questions had been answered in the manner proposed by the applicant in his pleadings. However, such a conclusion cannot be reached. Since the Court of First Instance did not examine the lawfulness of the inclusion by the Commission of other categories of officials to the requisite legal standard, that is to say, by giving the principle of equal treatment priority over Community secondary law, it must be assumed that such an examination would have led to the conclusion that, by extending the benefit of the payment to other categories of officials, the Commission acted lawfully. Contrary to what the Court of First Instance stated in that regard, the applicant does not seek equal treatment against the law, but equal treatment under the law.

The third plea in law: the Court of First Instance infringed the basic principles of proper procedure

The refusal to verify the existence of an alleged infringement of a fundamental right in any way constitutes an infringement of that right of a considerably more serious kind than an error of law relating to the question whether that right has in fact been infringed, since the party concerned is deprived of the protection afforded by the fundamental right. Only where the applicant's assertion that the fundamental right has been infringed is wholly without merit or where the facts relied on in comparing the situations plainly form no basis for the assertion, can a substantive examination of the infringement of the fundamental right be dispensed with. But that does not apply in this case. The Court of First Instance thus infringed the basis principles of proper procedure. The judgment, and its underlying reasoning, cannot be maintained for that reason.

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/12 |
| --- | --- | --- | --- |

26.4.2008

EN

Official Journal of the European Union

C 107/12

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Reference for a preliminary ruling from the Bundespatentgericht (Germany) lodged on 4 February 2008 — Trade mark case: Bild.T-Online.de AG & Co. KG v President of the German Patent- und Markenamt

(Case C-39/08)

(2008/C 107/18)

Language of the case: German

Referring court

Bundespatentgericht

Parties to the main proceedings

Bild.T-Online.de AG & Co. KG v President of the German Patent- und Markenamt

Questions referred

| 1. | Does Article 3 of Directive 89/104/EEC of 21 December 1988 (1), which seeks to secure equality of opportunity in matters of competition, require that identical or similar applications be treated in the same way? |
| --- | --- |

1.

Does Article 3 of Directive 89/104/EEC of 21 December 1988 (1), which seeks to secure equality of opportunity in matters of competition, require that identical or similar applications be treated in the same way?

| 2. | If the answer is ‘yes’, is the national court required to investigate specific indications of unequal treatment which distorts competition and, in so doing, to take account, in its analysis, of earlier decisions of the competent authority in similar cases? |
| --- | --- |

2.

If the answer is ‘yes’, is the national court required to investigate specific indications of unequal treatment which distorts competition and, in so doing, to take account, in its analysis, of earlier decisions of the competent authority in similar cases?

| 3. | If the answer is ‘yes’, is the national court required to take account of the prohibition of discrimination having the effect of distorting competition when interpreting and applying Article 3 of Directive 89/104 if it has established discrimination of that nature? |
| --- | --- |

3.

If the answer is ‘yes’, is the national court required to take account of the prohibition of discrimination having the effect of distorting competition when interpreting and applying Article 3 of Directive 89/104 if it has established discrimination of that nature?

| 4. | If Questions 1 to 3 are answered in the negative, in order to prevent distortion of competition, must it be possible under national legislation for the national authority to be placed under an obligation to initiate, of its own motion, an action for the annulment of trade marks which have previously been wrongly registered? |
| --- | --- |

4.

If Questions 1 to 3 are answered in the negative, in order to prevent distortion of competition, must it be possible under national legislation for the national authority to be placed under an obligation to initiate, of its own motion, an action for the annulment of trade marks which have previously been wrongly registered?

---

(1)  OJ 1989 L 40, p. 1.

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/12 |
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Reference for a preliminary ruling from the Bundespatentgericht (Germany) lodged on 8 February 2008 — Trade mark case: ZVS Zeitungsvertrieb Stuttgart GmbH v President of the German Patent- und Markenamt

(Case C-43/08)

(2008/C 107/19)

Language of the case: German

Referring court

Bundespatentgericht

Parties to the main proceedings

ZVS Zeitungsvertrieb Stuttgart GmbH and President of the German Patent- und Markenamt

Questions referred

| 1. | Does Article 3 of Directive 89/104/EEC of 21 December 1988 (1) require equal treatment, with regard to the registration of trade marks, of applicants in competition with one another in order to safeguard equality of opportunity in matters of competition? |
| --- | --- |

1.

Does Article 3 of Directive 89/104/EEC of 21 December 1988 (1) require equal treatment, with regard to the registration of trade marks, of applicants in competition with one another in order to safeguard equality of opportunity in matters of competition?

| 2. | If the answer is ‘yes’, is the national court required to investigate specific indications of unequal treatment which distorts competition and, in so doing, to take account, in its analysis, of earlier decisions of the competent authority in similar cases? |
| --- | --- |

2.

If the answer is ‘yes’, is the national court required to investigate specific indications of unequal treatment which distorts competition and, in so doing, to take account, in its analysis, of earlier decisions of the competent authority in similar cases?

| 3. | If the answer is ‘yes’, is the national court required to take account of the prohibition of discrimination having the effect of distorting competition when interpreting and applying Article 3 of Directive 89/104 if it has established discrimination of that nature? |
| --- | --- |

3.

If the answer is ‘yes’, is the national court required to take account of the prohibition of discrimination having the effect of distorting competition when interpreting and applying Article 3 of Directive 89/104 if it has established discrimination of that nature?

| 4. | If Questions 1 to 3 are answered in the negative, in order to prevent distortion of competition, must it be possible under national legislation for the national authority to be placed under an obligation to initiate, of its own motion, an action for the annulment of trade marks which have previously been wrongly registered? |
| --- | --- |

4.

If Questions 1 to 3 are answered in the negative, in order to prevent distortion of competition, must it be possible under national legislation for the national authority to be placed under an obligation to initiate, of its own motion, an action for the annulment of trade marks which have previously been wrongly registered?

---

(1)  OJ 1989 L 40, p. 1.

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/13 |
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Reference for a preliminary ruling from the Korkein oikeus (Finland) lodged on 8 February 2008 — Akavan Erityisalojen Keskusliitto AEK ry v Fujitsu Siemens Computers Oy

(Case C-44/08)

(2008/C 107/20)

Language of the case: Finnish

Referring court

Korkein oikeus

Parties to the main proceedings

Applicants: Akavan Erityisalojen Keskusliitto AEK ry, Erityisalojen Toimihenkilöliitto ERTO ry, Uusi Insinööriliitto UIL ry (formerly Insinööriliitto IL ry), Metallityöväen Liitto ry, Palvelualojen Ammattiliitto PAM ry, Suomen Ekonomiliitto — Finlands Ekonomförbund SEFE ry, Ammattiliitto SUORA ry Suomen Valtiotieteilijöitten Liitto SVAL ry — Statsvetarnas Förbund i Finland rf, Sähköalojen Ammattiliitto ry, Tekniikan Akateemisten Liitto TEK ry, Toimihenkilöunioni TU ry

Defendant: Fujitsu Siemens Computers Oy

Questions referred

| 1. | Is Article 2(1) of Directive 98/59/EC (1) to be interpreted as meaning that the obligation under that provision to embark on consultations when ‘contemplating collective redundancies’ of employees and ‘in good time’ requires consultations to be started when it is established from strategic decisions or changes that have been made relating to the activity that a need for collective redundancies of employees follows? Or is the provision in question to be interpreted as meaning that the obligation to start consultations already arises on the basis of the employer contemplating measures or changes affecting the activity, such as a change in production capacity or a concentration of production, as a consequence of which a need for collective redundancies is to be expected? |
| --- | --- |

1.

Is Article 2(1) of Directive 98/59/EC (1) to be interpreted as meaning that the obligation under that provision to embark on consultations when ‘contemplating collective redundancies’ of employees and ‘in good time’ requires consultations to be started when it is established from strategic decisions or changes that have been made relating to the activity that a need for collective redundancies of employees follows? Or is the provision in question to be interpreted as meaning that the obligation to start consultations already arises on the basis of the employer contemplating measures or changes affecting the activity, such as a change in production capacity or a concentration of production, as a consequence of which a need for collective redundancies is to be expected?

| 2. | Having regard to the fact that the first subparagraph of Article 2(3) of the directive refers to the supply of information in good time during the course of the consultations, is Article 2(1) of the directive to be interpreted as meaning that the obligation under that provision to start consultations when ‘contemplating’ collective redundancies and ‘in good time’ requires consultations to be started already before the employer's intentions have reached the stage at which the employer is required to identify and supply to the employees the information specified in Article 2(3)(b)? |
| --- | --- |

2.

Having regard to the fact that the first subparagraph of Article 2(3) of the directive refers to the supply of information in good time during the course of the consultations, is Article 2(1) of the directive to be interpreted as meaning that the obligation under that provision to start consultations when ‘contemplating’ collective redundancies and ‘in good time’ requires consultations to be started already before the employer's intentions have reached the stage at which the employer is required to identify and supply to the employees the information specified in Article 2(3)(b)?

| 3. | Is Article 2(1) in conjunction with Article 2(4) of the directive to be interpreted as meaning that, in a situation in which the employer is controlled by another undertaking, the employer's obligation to start consultations with the representatives of the employees originates when either the employer or the parent company controlling the employer contemplates action for collective redundancies of employees in the employer's service? |
| --- | --- |

3.

Is Article 2(1) in conjunction with Article 2(4) of the directive to be interpreted as meaning that, in a situation in which the employer is controlled by another undertaking, the employer's obligation to start consultations with the representatives of the employees originates when either the employer or the parent company controlling the employer contemplates action for collective redundancies of employees in the employer's service?

| 4. | In the case of consultations to be carried on in a subsidiary belonging to a group, and in assessing in the light of the provisions of Article 2(4) of the directive the obligation under Article 2(1) to enter into consultations when ‘contemplating’ collective redundancies and ‘in good time’, does the obligation to start consultations already arise when the management of the group or the parent company contemplates collective redundancies but that intention has not yet taken concrete form as concerning the employees in the service of a particular subsidiary under its control, or does the obligation to embark on consultations within the subsidiary arise only at the stage when the management of the group or the parent company contemplates collective redundancies specifically in that subsidiary company? |
| --- | --- |

4.

In the case of consultations to be carried on in a subsidiary belonging to a group, and in assessing in the light of the provisions of Article 2(4) of the directive the obligation under Article 2(1) to enter into consultations when ‘contemplating’ collective redundancies and ‘in good time’, does the obligation to start consultations already arise when the management of the group or the parent company contemplates collective redundancies but that intention has not yet taken concrete form as concerning the employees in the service of a particular subsidiary under its control, or does the obligation to embark on consultations within the subsidiary arise only at the stage when the management of the group or the parent company contemplates collective redundancies specifically in that subsidiary company?

| 5. | If the employer is an undertaking (a subsidiary belonging to a group) controlled within the meaning of Article 2(4) of the directive by another undertaking (parent company or group management), is Article 2 of the directive to be interpreted as meaning that the consultation procedure referred to there must be concluded before the decision on collective redundancies to be implemented in the subsidiary company is taken within the parent company or the group management? |
| --- | --- |

5.

If the employer is an undertaking (a subsidiary belonging to a group) controlled within the meaning of Article 2(4) of the directive by another undertaking (parent company or group management), is Article 2 of the directive to be interpreted as meaning that the consultation procedure referred to there must be concluded before the decision on collective redundancies to be implemented in the subsidiary company is taken within the parent company or the group management?

| 6. | If the directive is to be interpreted in such a way that the consultation procedure to be carried on within the subsidiary company must be concluded before the decision giving rise to collective redundancies of employees is taken within the parent company or group management, is it only a decision whose direct consequence is the implementation of collective redundancies in the subsidiary company that is relevant in that connection, or must the consultation procedure be brought to a conclusion already before a commercial or strategic decision is taken within the parent company or the group management on the basis of which collective redundancies in the subsidiary company are probable but not yet finally certain? |
| --- | --- |

6.

If the directive is to be interpreted in such a way that the consultation procedure to be carried on within the subsidiary company must be concluded before the decision giving rise to collective redundancies of employees is taken within the parent company or group management, is it only a decision whose direct consequence is the implementation of collective redundancies in the subsidiary company that is relevant in that connection, or must the consultation procedure be brought to a conclusion already before a commercial or strategic decision is taken within the parent company or the group management on the basis of which collective redundancies in the subsidiary company are probable but not yet finally certain?

---

(1)  Council directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies (OJ 1998 L 225, p. 16).

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/14 |
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Reference for a preliminary ruling from the Hof van beroep te Brussel, Belgium lodged on 8 February 2008 — Spector Photo Group NV and Chris Van Raemdonck v Commissie voor het Bank-, Financie- en Assurantiewezen (CBFA)

(Case C-45/08)

(2008/C 107/21)

Language of the case: Dutch

Referring court

Hof van beroep te Brussel, Belgium

Parties to the main proceedings

Applicants: Spector Photo Group NV and Chris Van Raemdonck

Defendant: Commissie voor het Bank-, Financie- en Assurantiewezen (CBFA)

Questions referred

| 1. | Do the provisions of the Market Abuse Directive (1), and especially Article 2 thereof, call for full harmonisation, with the exception of those provisions which explicitly permit the Member States to interpret measures as they wish, or do they, in their entirety, concern a minimum of harmonisation? |
| --- | --- |

1.

Do the provisions of the Market Abuse Directive (1), and especially Article 2 thereof, call for full harmonisation, with the exception of those provisions which explicitly permit the Member States to interpret measures as they wish, or do they, in their entirety, concern a minimum of harmonisation?

| 2. | Should Article 2(1) of the Market Abuse Directive be interpreted as meaning that the mere fact that a person as referred to in Article 2(1) of that directive possesses inside information and acquires or disposes of, or tries to acquire or dispose of, for his own account or for the account of a third party, financial instruments to which that inside information relates, signifies in itself that he makes use of his inside information? |
| --- | --- |

2.

Should Article 2(1) of the Market Abuse Directive be interpreted as meaning that the mere fact that a person as referred to in Article 2(1) of that directive possesses inside information and acquires or disposes of, or tries to acquire or dispose of, for his own account or for the account of a third party, financial instruments to which that inside information relates, signifies in itself that he makes use of his inside information?

| 3. | If the answer to the second question is negative, must it then be assumed that the application of Article 2 of the Market Abuse Directive presupposes that a deliberate decision has been taken to use inside information?
  If such a decision may also be unwritten, is it then required that the decision to use inside information is evident from circumstances susceptible to no other interpretation, or is it sufficient that those circumstances could be so interpreted? |
| --- | --- |

3.

If the answer to the second question is negative, must it then be assumed that the application of Article 2 of the Market Abuse Directive presupposes that a deliberate decision has been taken to use inside information?

If such a decision may also be unwritten, is it then required that the decision to use inside information is evident from circumstances susceptible to no other interpretation, or is it sufficient that those circumstances could be so interpreted?

| 4. | If in the determination of the proportionate nature of an administrative sanction, as referred to in Article 14 of the Market Abuse Directive, account must be taken of the gains realised, should it be assumed that the publication of information to be designated as inside information has indeed had a significant effect on the price of the financial instrument?
  If so, what minimum level of price movement must have occurred for it to be possible to regard it as significant? |
| --- | --- |

4.

If in the determination of the proportionate nature of an administrative sanction, as referred to in Article 14 of the Market Abuse Directive, account must be taken of the gains realised, should it be assumed that the publication of information to be designated as inside information has indeed had a significant effect on the price of the financial instrument?

If so, what minimum level of price movement must have occurred for it to be possible to regard it as significant?

| 5. | Whether or not the price movement after the publication of information must be significant, what period should be taken into account after the publication of the information for the determination of the scale of the price movement, and what date should be taken as the basis for gauging the financial advantage gained in the determination of the appropriate sanction? |
| --- | --- |

5.

Whether or not the price movement after the publication of information must be significant, what period should be taken into account after the publication of the information for the determination of the scale of the price movement, and what date should be taken as the basis for gauging the financial advantage gained in the determination of the appropriate sanction?

| 6. | In the light of the determination of the proportionate nature of the sanction, should Article 14 of the Market Abuse Directive be interpreted as meaning that, if a Member State has introduced the option of a criminal sanction, combined with an administrative sanction, account must be taken of the option and level of a criminal financial penalty in the consideration of its proportionality? |
| --- | --- |

6.

In the light of the determination of the proportionate nature of the sanction, should Article 14 of the Market Abuse Directive be interpreted as meaning that, if a Member State has introduced the option of a criminal sanction, combined with an administrative sanction, account must be taken of the option and level of a criminal financial penalty in the consideration of its proportionality?

---

(1)  Directive 2003/6/EC of the European Parliament and of the Council of 28 January 2003 on insider dealing and market manipulation (market abuse) (OJ 2003 L 96, p. 16).

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/15 |
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Action brought on 12 February 2008 — Commission of the European Communities v Portuguese Republic

(Case C-52/08)

(2008/C 107/22)

Language of the case: Portuguese

Parties

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

Defendant: Portuguese Republic

Form of order sought

| — | Declare that, by failing to transpose, with regard to access to the profession of notary, Directive 2005/36/EC (1), which repealed and replaced Directive 89/48/EEC (2), the Portuguese Republic has failed to fulfil its obligation under Directive 2005/36/EC. |
| --- | --- |

—

Declare that, by failing to transpose, with regard to access to the profession of notary, Directive 2005/36/EC (1), which repealed and replaced Directive 89/48/EEC (2), the Portuguese Republic has failed to fulfil its obligation under Directive 2005/36/EC.

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

—

order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

The Commission considers that, by failing to permit notaries from other Member States to exercise their profession in Portugal although they have the right to exercise that profession in a Member State in which it is a regulated profession or where they have exercised that profession in accordance with the applicable rules in a Member State in which it is not a regulated profession, the Portuguese State has failed to fulfil its obligations under Article 13 of Directive 2005/36.

In any event, by requiring those intending to practise as notaries to have a degree in law from a Portuguese university or an academic qualification equivalent to that required under the Portuguese law, Portugal has also failed to fulfil its obligations under Articles 13 and 14 of that directive.

Moreover, by requiring that, before commencing their training, those intending to practise as notaries should pass public examinations intended to test their general knowledge of law, the Portuguese State has also failed to fulfil its obligations under Article 14(3) and 14(3)(h) of Directive 2005/36.

The Commission therefore considers that the Portuguese State has failed to transpose into its domestic law Directive 2005/36 so far as concerns the profession of notary.

---

(1)  Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (OJ 2005 L 255, p. 22).

(2)  OJ 1989 L 19, p. 16.

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/15 |
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Action brought on 12 February 2008 — Commission of the European Communities v Republic of Austria

(Case C-53/08)

(2008/C 107/23)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: G. Braun und H. Støvlbæk, Agents)

Defendant: Republic of Austria

Form of order sought

| — | declare that, by making access to the profession of notary conditional on possession of Austrian nationality, in Paragraph 6(1) of the Notariatsordnung (Code on notaries), the Republic of Austria has infringed Articles 43 and 45 EC; |
| --- | --- |

—

declare that, by making access to the profession of notary conditional on possession of Austrian nationality, in Paragraph 6(1) of the Notariatsordnung (Code on notaries), the Republic of Austria has infringed Articles 43 and 45 EC;

| — | declare that, by failing to transpose Directive 89/48/EC (or Directive 2005/36/EC) in respect of the profession of notary, the Republic of Austria has infringed that directive and Articles 43 and 45 EC; |
| --- | --- |

—

declare that, by failing to transpose Directive 89/48/EC (or Directive 2005/36/EC) in respect of the profession of notary, the Republic of Austria has infringed that directive and Articles 43 and 45 EC;

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

—

order the Republic of Austria to pay the costs.

Pleas in law and main arguments

Article 43 EC prohibits any discrimination based on nationality which results from legislation in the form of restrictions on freedom of establishment. Pursuant to the first paragraph of Article 45 EC, the chapter on the right of establishment does not apply to activities which in a Member State are connected, even occasionally, with the exercise of official authority.

Pursuant to the Notariatsordnung only Austrian nationals may be appointed notaries in Austria. The provision in question therefore discriminates on the basis of nationality and infringes the freedom of establishment of nationals of other Member States, by preventing them from exercising the profession of notary.

The Commission takes the view that the activities of notaries do not fall within the exception of Article 45 EC so that freedom of establishment is applicable to that profession.

In order to reply to the question of what ‘official authority’ means for the purposes of Article 45 EC, reference should be made, first, to the interpretation at national level. Activities which, in one Member State, do not fall within the sphere of official authority cannot be relied upon for the purposes of the exception, even if the same activities fall within the sphere of official authority in other Member States. Second, for the interpretation within the meaning of Article 45 EC, the concept and scope of official authority must be determined from the point of view of Community law and its meaning must be interpreted by the Court in an independent and uniform manner. The fact that the Austrian legislature and the Austrian courts regard activities of notaries in principle as participation in national official authority does not mean that those activities may therefore be excluded from freedom of establishment according to the stricter Community law assessment. As an exception to a fundamental freedom, the first paragraph of Article 45 EC must be interpreted restrictively.

In the current state of integration, it is extremely difficult to find a substantive justification for the nationality condition in relation to the activities of notaries. None of those activities, even if they are of a sovereign nature, requires the relationship of a particular connection with the State, as in the case of nationality. In addition, none of those activities risks, through the exercise of sovereign authority and the deployment of State powers, creating conflicts with nationals.

The activities put forward by the Republic of Austria for the justification of the nationality requirement — authentication of legal transactions and agreements, the insertion of an enforcement clause, legal advice and the activity of the ‘Gerichtskommissar’ (notary appointed by the court to carry out certain procedural acts) — are not sufficient to justify the application of Article 45 EC. In so far as those activities actually participate in the exercise of official authority, they do so only in an indirect manner. The exercise of official authority should moreover not be confused with activities in the public interest. Public benefit does not necessarily form part of official authority; activities which seek to promote the general interest and not the interest of individuals do not necessarily presuppose the transfer of official authority. Whilst the actual exercise of official authority may continue to be reserved for a Member State's own nationals, the exercise of a given activity in the general interest which, for example, is the case in respect of the administration of justice for preventive purposes may also be guaranteed by making access to the profession and the professional duties subject to specific rules and control.

The Commission therefore takes the view that none of the activities, considered separately or altogether, with which notaries in Austria are concerned, constitutes direct and specific participation in the exercise of official authority within the meaning of the case-law.

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/16 |
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Action brought on 12 February 2008 — Commission of the European Communities v Federal Republic of Germany

(Case C-54/08)

(2008/C 107/24)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: H. Støvlbæk and G. Braun, Agents)

Defendant: Federal Republic of Germany

Form of order sought

| — | declare that, by making access to the profession of notary conditional on possession of German nationality, in Paragraph 5 of the Bundesnotarordnung (Federal code on notaries), the Federal Republic of Germany has infringed Articles 43 and 45 EC; |
| --- | --- |

—

declare that, by making access to the profession of notary conditional on possession of German nationality, in Paragraph 5 of the Bundesnotarordnung (Federal code on notaries), the Federal Republic of Germany has infringed Articles 43 and 45 EC;

| — | declare that, by failing to transpose Directive 89/48/EC (or Directive 2005/36/EC) in respect of the profession of notary, the Federal Republic of Germany has infringed that directive and Articles 43 and 45 EC; |
| --- | --- |

—

declare that, by failing to transpose Directive 89/48/EC (or Directive 2005/36/EC) in respect of the profession of notary, the Federal Republic of Germany has infringed that directive and Articles 43 and 45 EC;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

Article 43 EC prohibits any discrimination based on nationality which results from legislation in the form of restrictions on freedom of establishment. Pursuant to the first paragraph of Article 45 EC, the chapter on the right of establishment does not apply to activities which in a Member State are connected, even occasionally, with the exercise of official authority.

Pursuant to the Bundesnotarordnung only German nationals may be appointed notaries in Germany. The provision in question therefore discriminates on the basis of nationality and infringes the freedom of establishment of nationals of other Member States, by preventing them from exercising the profession of notary.

The Commission takes the view that the activities of notaries do not fall within the exception of Article 45 EC so that freedom of establishment is applicable to that profession.

In order to reply to the question of what ‘official authority’ means for the purposes of Article 45 EC, reference should be made, first, to the interpretation at national level. Activities which, in one Member State, do not fall within the sphere of official authority cannot be relied upon for the purposes of the exception, even if the same activities fall within the sphere of official authority in other Member States. Second, for the interpretation within the meaning of Article 45 EC, the concept and scope of official authority must be determined from the point of view of Community law and its meaning must be interpreted by the Court in an independent and uniform manner. The fact that the German legislature and the German courts regard activities of notaries in principle as participation in national official authority does not mean that those activities may therefore be excluded from freedom of establishment according to the stricter Community law assessment. As an exception to a fundamental freedom, the first paragraph of Article 45 EC must be interpreted restrictively.

In the current state of integration, it is extremely difficult to find a substantive justification for the nationality condition in relation to the activities of notaries. None of those activities, even if they are of a sovereign nature, requires the relationship of a particular connection with the State, as in the case of nationality. In addition, none of those activities risks, through the exercise of sovereign authority and the deployment of State powers, creating conflicts with nationals.

The activities put forward by the Federal Republic of Germany for the justification of the nationality requirement — authentication of legal transactions and agreements, the probative value of such documents, the insertion of an enforcement clause and the legal advice connected with the authentication — are not sufficient to justify the application of Article 45 EC. In so far as those activities actually participate in the exercise of official authority, they do so only in an indirect manner. The exercise of official authority should moreover not be confused with activities in the public interest. Public benefit does not necessarily form part of official authority; activities which seek to promote the general interest and not the interest of individuals do not necessarily presuppose the transfer of official authority. Whilst the actual exercise of official authority may continue to be reserved for a Member State's own nationals, the exercise of a given activity in the general interest which, for example, is the case in respect of the administration of justice for preventive purposes may also be guaranteed by making access to the profession and the professional duties subject to specific rules and control.

The Commission therefore takes the view that none of the activities, considered separately or altogether, with which notaries in Germany are concerned, constitutes direct and specific participation in the exercise of official authority within the meaning of the case-law.

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/17 |
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Reference for a preliminary ruling from High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court) (United Kingdom) made on 13 February 2008 — Vodafone Ltd, Telefónica O2 Europe plc, T-Mobile International AG, Orange Personal Communications Services Ltd v Secretary of State for Business, Enterprise and Regulatory Reform

(Case C-58/08)

(2008/C 107/25)

Language of the case: English

Referring court

High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court)

Parties to the main proceedings

Applicants: Vodafone Ltd, Telefónica O2 Europe plc, T-Mobile International AG, Orange Personal Communications Services Ltd

Defendants: Secretary of State for Business, Enterprise and Regulatory Reform

Interested parties: Office of Communications, Hutchison 3G (UK) Limited

Intervener: GSM Association

Questions referred

| 1. | Is Regulation (EC) No 717/2007 (1) invalid, in whole or in part, by reason of the inadequacy of Article 95 EC as a legal basis? |
| --- | --- |

1.

Is Regulation (EC) No 717/2007 (1) invalid, in whole or in part, by reason of the inadequacy of Article 95 EC as a legal basis?

| 2. | Is Article 4 of Regulation (EC) No 717/2007 (together with Articles 2(a) and 6(3) insofar as they refer to the Eurotariff and obligations relating to the Eurotariff) invalid on the grounds that the imposition of a price ceiling in respect of retail roaming charges infringes the principle of proportionality and/or subsidiarity? |
| --- | --- |

2.

Is Article 4 of Regulation (EC) No 717/2007 (together with Articles 2(a) and 6(3) insofar as they refer to the Eurotariff and obligations relating to the Eurotariff) invalid on the grounds that the imposition of a price ceiling in respect of retail roaming charges infringes the principle of proportionality and/or subsidiarity?

---

(1)  Regulation (EC) No 717/2007 of the European Parliament and of the Council of 27 June 2007 on roaming on public mobile telephone networks within the Community and amending Directive 2002/21/EC (OJ L 171, p. 32).

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/18 |
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Reference for a preliminary ruling from the Hof van Cassatie van België lodged on 18 February 2008 — UDV North America Inc v Brandtraders NV

(Case C-62/08)

(2008/C 107/26)

Language of the case: Dutch

Referring court

Hof van Cassatie van België

Parties to the main proceedings

Appellant: UDV North America Inc

Respondent: Brandtraders NV

Questions referred

| (1) | For there to be use of the sign within the meaning of Article 9(1)(a) and (2)(d) of Council Regulation 40/94 (1) of 20 December 1993 on the Community trade mark, is it necessary that a third party, within the meaning of Article 9(1)(a) of the Regulation:






  (a) | uses the sign on his own behalf? |
| --- | --- | --- |

(1)

For there to be use of the sign within the meaning of Article 9(1)(a) and (2)(d) of Council Regulation 40/94 (1) of 20 December 1993 on the Community trade mark, is it necessary that a third party, within the meaning of Article 9(1)(a) of the Regulation:

(a)

uses the sign on his own behalf?

| (b) | uses the sign as an interested party in relation to trade in goods in which he is himself a contractual party? |
| --- | --- |

(b)

uses the sign as an interested party in relation to trade in goods in which he is himself a contractual party?

| (2) | Can a trade intermediary who acts in his own name, but not on his own behalf, be regarded as a third party who uses the sign within the meaning of Article 9(1)(a) and (2)(d)? |
| --- | --- |

(2)

Can a trade intermediary who acts in his own name, but not on his own behalf, be regarded as a third party who uses the sign within the meaning of Article 9(1)(a) and (2)(d)?

---

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

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/18 |
| --- | --- | --- | --- |

26.4.2008

EN

Official Journal of the European Union

C 107/18

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Reference for a preliminary ruling from the Finanzgericht Düsseldorf (Germany) lodged on 18 February 2008 — Europol Frost-Food GmbH v Hauptzollamt Krefeld

(Case C-65/08)

(2008/C 107/27)

Language of the case: German

Referring court

Finanzgericht Düsseldorf

Parties to the main proceedings

Applicant: Europol Frost-Food GmbH

Defendant: Hauptzollamt Krefeld

Question referred

Is additional note 5(b) to Chapter 20 of the Combined Nomenclature in the version of Regulations (EC) Nos 2388/2000 (1) and 2031/2001 (2) valid?

---

(1)  Commission Regulation (EC) No 2388/2000 of 13 October 2000 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 2000 L 264, p. 1, and OJ 2000 L 276, p. 92).

(2)  Commission Regulation (EC) No 2031/2001 of 6 August 2001 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 2001 L 279, p. 1).

---

| 26.4.2008 | EN | Official Journal of the European Union | C 107/18 |
| --- | --- | --- | --- |

26.4.2008

EN

Official Journal of the European Union

C 107/18

---

Reference for a preliminary ruling from the Oberlandesgericht Stuttgart (Germany) lodged on 18 February 2008 — Extradition proceedings against Szymon Kozlowski

(Case C-66/08)

(2008/C 107/28)

Language of the case: German

Referring court

Oberlandesgericht Stuttgart

Party to the main proceedings

Szymon Kozlowski

Questions referred

| 1. | Do the following facts preclude the assumption that a person is a ‘resident’ of or is ‘staying’ in a Member State in the sense of Article 4(6) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (1):






  (a) | his stay in the Member State concerned has not been uninterrupted; |
| --- | --- | --- |

1.

Do the following facts preclude the assumption that a person is a ‘resident’ of or is ‘staying’ in a Member State in the sense of Article 4(6) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (1):

(a)

his stay in the Member State concerned has not been uninterrupted;

| (b) | his stay there does not comply with the law on residence; |
| --- | --- |

(b)

his stay there does not comply with the law on residence;

| (c) | he commits crimes there systematically for financial gain; and/or |
| --- | --- |

(c)

he commits crimes there systematically for financial gain; and/or

| (d) | he is in custody serving a criminal sentence there? |
| --- | --- |

(d)

he is in custody serving a criminal sentence there?

| 2. | Is transposition of Article 4(6) of Council Framework Decision 2002/584/JHA in such a way that the extradition of a State's own nationals against their will for the purpose of execution of sentence is always impermissible, whereas extradition of nationals of other Member States against their will can be authorised at the discretion of the authorities, compatible with Union law, in particular with the principles of non-discrimination and Union citizenship under Article 6(1) of the Treaty on European Union (EU) in conjunction with Articles 12 and 17 et seq. of the EC Treaty (EC) and, if so, are those principles at least to be taken into account in the exercise of that discretion? |
| --- | --- |

2.

Is transposition of Article 4(6) of Council Framework Decision 2002/584/JHA in such a way that the extradition of a State's own nationals against their will for the purpose of execution of sentence is always impermissible, whereas extradition of nationals of other Member States against their will can be authorised at the discretion of the authorities, compatible with Union law, in particular with the principles of non-discrimination and Union citizenship under Article 6(1) of the Treaty on European Union (EU) in conjunction with Articles 12 and 17 et seq. of the EC Treaty (EC) and, if so, are those principles at least to be taken into account in the exercise of that discretion?

---

(1)  OJ 2002 L 190, p. 1.

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/19 |
| --- | --- | --- | --- |

26.4.2008

EN

Official Journal of the European Union

C 107/19

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Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 20 February 2008 — Margarete Block v Finanzamt Kaufbeuren

(Case C-67/08)

(2008/C 107/29)

Language of the case: German

Referring court

Bundesfinanzhof (Germany)

Parties to the main proceedings

Applicant: Margarete Block

Defendant: Finanzamt Kaufbeuren

Questions referred

| 1. | Do the provisions of Article 73d(1)(a) and (3) of the EC Treaty (now Article 58(1)(a) and (3) EC) allow the crediting of Spanish inheritance tax against German inheritance tax to be precluded under Paragraph 21(1) and (2)(1) of the Erbschaftsteuer- und Schenkungsteuergesetz (Law on inheritance and gift tax) in conjunction with Paragraph 121 of the Bewertungsgesetz (Valuation Law) (category restriction) even in the case of deaths which occurred in 1999? |
| --- | --- |

1.

Do the provisions of Article 73d(1)(a) and (3) of the EC Treaty (now Article 58(1)(a) and (3) EC) allow the crediting of Spanish inheritance tax against German inheritance tax to be precluded under Paragraph 21(1) and (2)(1) of the Erbschaftsteuer- und Schenkungsteuergesetz (Law on inheritance and gift tax) in conjunction with Paragraph 121 of the Bewertungsgesetz (Valuation Law) (category restriction) even in the case of deaths which occurred in 1999?

| 2. | Is Article 73b(1) of the EC Treaty (now Article 56(1) EC) to be interpreted as meaning that the inheritance tax which another European Union Member State levies in respect of the acquisition, by an heir resident in Germany, of the capital claims of a testator last resident in Germany against credit institutions in that other Member State must be credited against German inheritance tax? |
| --- | --- |

2.

Is Article 73b(1) of the EC Treaty (now Article 56(1) EC) to be interpreted as meaning that the inheritance tax which another European Union Member State levies in respect of the acquisition, by an heir resident in Germany, of the capital claims of a testator last resident in Germany against credit institutions in that other Member State must be credited against German inheritance tax?

| 3. | In deciding which of the States involved has to avoid double taxation is the justification for the different connecting factors in the national tax law systems relevant and, if so, is the connection to the residence of the creditor more justified than the connection to the registered office of the debtor? |
| --- | --- |

3.

In deciding which of the States involved has to avoid double taxation is the justification for the different connecting factors in the national tax law systems relevant and, if so, is the connection to the residence of the creditor more justified than the connection to the registered office of the debtor?

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/19 |
| --- | --- | --- | --- |

26.4.2008

EN

Official Journal of the European Union

C 107/19

---

Reference for a preliminary ruling from the Tribunale di Napoli, Sezione Lavoro (Italy) lodged on 20 February 2008 — Raffaello Visciano v I.N.P.S.

(Case C-69/08)

(2008/C 107/30)

Language of the case: Italian

Referring court

Tribunale di Napoli, Sezione Lavoro

Parties to the main proceedings

Applicant: Raffaello Visciano

Defendant: I.N.P.S.

Questions referred

| 1. | Do Articles 3 and 4 of Directive 80/987 (1) of 20 October 1980 — where they provide for the payment of workers' outstanding claims relating to pay — allow such claims, when they come to be enforced against the guarantee institution, to be deprived of their initial nature as claims relating to pay and to be reclassified as social security claims merely because the payment of them has been entrusted by the Member State to a social security institution, and therefore allow the term ‘pay’ to be replaced in national law by the term ‘social security benefit’? |
| --- | --- |

1.

Do Articles 3 and 4 of Directive 80/987 (1) of 20 October 1980 — where they provide for the payment of workers' outstanding claims relating to pay — allow such claims, when they come to be enforced against the guarantee institution, to be deprived of their initial nature as claims relating to pay and to be reclassified as social security claims merely because the payment of them has been entrusted by the Member State to a social security institution, and therefore allow the term ‘pay’ to be replaced in national law by the term ‘social security benefit’?

| 2. | As regards the social purpose of the directive, is it sufficient for the national legislation to use the employee's initial claim relating to pay merely as a basis of comparison against which to determine per relationem the benefit to be guaranteed through the intervention of the guarantee institution or is it a requirement that the worker's claim relating to pay against the insolvent employer be protected, through the intervention of the guarantee institution, by ensuring that its scope, guarantees and time-limits and the procedures for its exercise are the same as those available for any other employment claim under the same legal order? |
| --- | --- |

2.

As regards the social purpose of the directive, is it sufficient for the national legislation to use the employee's initial claim relating to pay merely as a basis of comparison against which to determine per relationem the benefit to be guaranteed through the intervention of the guarantee institution or is it a requirement that the worker's claim relating to pay against the insolvent employer be protected, through the intervention of the guarantee institution, by ensuring that its scope, guarantees and time-limits and the procedures for its exercise are the same as those available for any other employment claim under the same legal order?

| 3. | Do the principles inferable from Community legislation, and in particular the principles of equivalence and effectiveness, allow the application to employees' outstanding claims relating to pay, for the period determined in accordance with Article 4 of Directive 80/987, of limitation rules that are less favourable than those applied to claims of a similar nature? |
| --- | --- |

3.

Do the principles inferable from Community legislation, and in particular the principles of equivalence and effectiveness, allow the application to employees' outstanding claims relating to pay, for the period determined in accordance with Article 4 of Directive 80/987, of limitation rules that are less favourable than those applied to claims of a similar nature?

---

(1)  OJ L 283, p. 23.

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/20 |
| --- | --- | --- | --- |

26.4.2008

EN

Official Journal of the European Union

C 107/20

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Reference for a preliminary ruling from Court of Appeal (Civil Division) (United Kingdom) made on 21 February 2008 — The Queen on the application of Christopher Mellor v Secretary of State for Communities and Local Government

(Case C-75/08)

(2008/C 107/31)

Language of the case: English

Referring court

Court of Appeal (Civil Division)

Parties to the main proceedings

Applicant: Christopher Mellor

Defendant: Secretary of State for Communities and Local Government

Questions referred

| 1. | Whether under Article 4 of Council Directive 85/337/EEC (1) as amended by directives 97/11/EC (2) and 2003/35/EC (3) (‘the Directive’) Member States must make available to the public reasons for a determination that in respect of an Annex II project there is no requirement to subject the project to assessment in accordance with Articles 5 to 10 of the Directive? |
| --- | --- |

1.

Whether under Article 4 of Council Directive 85/337/EEC (1) as amended by directives 97/11/EC (2) and 2003/35/EC (3) (‘the Directive’) Member States must make available to the public reasons for a determination that in respect of an Annex II project there is no requirement to subject the project to assessment in accordance with Articles 5 to 10 of the Directive?

| 2. | If the answer to Question 1 is in the affirmative whether that requirement was satisfied by the content of the letter dated 4 December 2006 from the Secretary of State? |
| --- | --- |

2.

If the answer to Question 1 is in the affirmative whether that requirement was satisfied by the content of the letter dated 4 December 2006 from the Secretary of State?

| 3. | If the answer to Question 2 is in the negative, what is the extent of the requirement to give reasons in this context? |
| --- | --- |

3.

If the answer to Question 2 is in the negative, what is the extent of the requirement to give reasons in this context?

---

(1)  Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ L 175, p. 40).

(2)  OJ L 73, p. 5.

(3)  Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC (OJ L 156, p. 17).

---

| 26.4.2008 | EN | Official Journal of the European Union | C 107/20 |
| --- | --- | --- | --- |

26.4.2008

EN

Official Journal of the European Union

C 107/20

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Action brought on 29 February 2008 — Commission of the European Communities v Kingdom of Spain

(Case C-94/08)

(2008/C 107/32)

Language of the case: Spanish

Parties

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

Defendant: Kingdom of Spain

Form of order sought

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

—

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

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

—

order Kingdom of Spain to pay the costs.

Pleas in law and main arguments

In accordance with the Spanish legislation, the posts of captain and chief mate of all merchant ships flying the Spanish flag other than merchant ships with a gross tonnage less than 100 GT, which carry cargo or fewer than 100 passengers and operate exclusively between ports or points situated in areas in which Spain has sovereignty, sovereign rights or jurisdiction, must be occupied by Spanish citizens.

The Commission considers that the requirement, as a general rule, that those posts be occupied by persons of Spanish nationality infringes Article 39 EC and cannot be justified by the derogation of Article 39(4). The Commission's interpretation is supported in particular by Case C-405/01 (1), in which the Court ruled that the scope of that derogation must be limited to what is strictly necessary for safeguarding the general interests of the Member State concerned, and in respect of the posts concerned, those interests cannot be imperilled if the relevant rights under powers conferred by public law are exercised only sporadically, even exceptionally, by nationals of other Member States. The Kingdom of Spain has not amended the legislation in the way recommended by the Commission, although it undertook to make the necessary amendments in its response to the reasoned opinion.

---

(1)  Colegio de Oficiales de la Marina Mercante Española [2003] ECR I-10391.

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/21 |
| --- | --- | --- | --- |

26.4.2008

EN

Official Journal of the European Union

C 107/21

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Action brought on 7 March 2008 — Commission of the European Communities v Republic of Austria

(Case C-107/08)

(2008/C 107/33)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: B. Schima and A. Alcover San Pedro, acting as Agents)

Defendant: Republic of Austria

Form of order sought

| — | The Republic of Austria has infringed its obligations under Article 2 of Directive 2005/33/EC of the European Parliament and of the Council of 6 July 2005 amending Directive 1999/32/EC as regards the sulphur content of marine fuels (1) by failing to adopt the regulations and administrative provisions necessary to implement the Directive or by failing to inform the Commission of their adoption. |
| --- | --- |

—

The Republic of Austria has infringed its obligations under Article 2 of Directive 2005/33/EC of the European Parliament and of the Council of 6 July 2005 amending Directive 1999/32/EC as regards the sulphur content of marine fuels (1) by failing to adopt the regulations and administrative provisions necessary to implement the Directive or by failing to inform the Commission of their adoption.

| — | Order the Republic of Austria to pay the costs. |
| --- | --- |

—

Order the Republic of Austria to pay the costs.

Pleas in law and main arguments

The time-limit for implementation of the Directive expired on 11 August 2006.

---

(1)  OJ 2005 L 191, p. 59.

---

Court of First Instance

| 26.4.2008 | EN | Official Journal of the European Union | C 107/22 |
| --- | --- | --- | --- |

26.4.2008

EN

Official Journal of the European Union

C 107/22

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Judgment of the Court of First Instance of 13 March 2008 — Maison de l'Europe Avignon Méditerranée v Commission

(Case T-43/03) (1)

(Non-contractual liability - ‘Info point Europe’ label - Statements made by an agent of the Commission about the applicant)

(2008/C 107/34)

Language of the case: French

Parties

Applicant: Maison de l'Europe Avignon Méditerranée (Avignon, France) (represented by: F. Martineau and N. Benoît, lawyers)

Defendant: Commission of the European Communities (represented by: J.-F. Pasquier, agent)

Re:

Application for damages for harm allegedly suffered by the applicant as a result of the statements made by the Commission's agent in Marseille at the meeting on 23 January 2003.

Operative part of the judgment

The Court:

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

1.

Dismisses the application.

| 2. | Orders the Maison de l'Europe Avignon Méditerranée to bear its own costs and to pay those incurred by the Commission. |
| --- | --- |

2.

Orders the Maison de l'Europe Avignon Méditerranée to bear its own costs and to pay those incurred by the Commission.

---

(1)  OJ C 101, 26.4.2003.

---

| 26.4.2008 | EN | Official Journal of the European Union | C 107/22 |
| --- | --- | --- | --- |

26.4.2008

EN

Official Journal of the European Union

C 107/22

---

Judgment of the Court of First Instance of 12 March 2008 — ESN v Commission

(Case T-332/03) (1)

(Public service contracts - Community tendering procedure - Provision of services for the development and provision of services in support of the Community Research and Development Service (CORDIS) - Rejection of a tender - Principles of equal treatment as between tenderers and transparency - Compliance with the award criteria set out in the tendering specifications)

(2008/C 107/35)

Language of the case: French

Parties

Applicant: European Service Network (Brussels, Belgium) (represented by: R. Steichen and P.-E Partsch, lawyers)

Defendant: Commission of the European Communities (represented by: L. Parpala and E. Manhaeve, agents)

Re:

Application for the annulment of the decision to award the contract which is the subject of the Commission's call for tenders ENTR/02/55 — CORDIS Lot 1 for the development and provision of services in support of the Community Research and Development Service (CORDIS).

Operative part of the judgment

The Court:

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

1.

Dismisses the application.

| 2. | Orders European Service Network (ESN) to pay the costs. |
| --- | --- |

2.

Orders European Service Network (ESN) to pay the costs.

---

(1)  OJ C 289, 29.11.2003.

---

| 26.4.2008 | EN | Official Journal of the European Union | C 107/23 |
| --- | --- | --- | --- |

26.4.2008

EN

Official Journal of the European Union

C 107/23

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

(Case T-345/03) (1)

(Public service contracts - Community tendering procedure - Provision of services for the development and provision of services in support of the Community Research and Development Service (CORDIS) - Rejection of a tender - Principles of equal treatment as between tenderers and transparency)

(2008/C 107/36)

Language of the case: English

Parties

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

Defendant: Commission of the European Communities (represented by: C. O'Reilly and L. Parpala, agents)

Re:

Application for the annulment of the decision to award the contract which is the subject of the Commission's call for tenders ENTR/02/055 — CORDIS Lot 2 for the development and provision of services for in support of the Community Research and Development Service (CORDIS)

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the Commission of 16 July 2003 to award the contract which is the subject of the call for tenders ENTR/02/55 — CORDIS Lot 2. |
| --- | --- |

1.

Annuls the decision of the Commission of 16 July 2003 to award the contract which is the subject of the call for tenders ENTR/02/55 — CORDIS Lot 2.

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

2.

Orders the Commission to pay the costs.

---

(1)  OJ C 289, 29.11.2003.

---

| 26.4.2008 | EN | Official Journal of the European Union | C 107/23 |
| --- | --- | --- | --- |

26.4.2008

EN

Official Journal of the European Union

C 107/23

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Judgment of the Court of First Instance of 12 March 2008 — Giannini v Commission

(Case T-100/04) (1)

(Public service - General competition - Non-inclusion in the reserve list - Irregularities in the conduct of the tests liable to distort the result - Equal treatment - Action for annulment - Action for damages)

(2008/C 107/37)

Language of the case: French

Parties

Applicant: Massimo Giannini (Brussels, Belgium) (represented by: G. Vandersanden and L. Levi, lawyers)

Defendant: Commission of the European Communities (represented by: initially, L. Lozano Palacios and M. Velardo, acting as Agents, and subsequently, G. Berscheid, acting as Agent, and M. Genton, lawyer)

Re:

Application for annulment of the decision of the selection board in Competition COM/A/9/01 with a view to constituting a reserve list for the recruitment of administrators (A7/A6) in the fields of economics and statistics (OJ 2001 C 240 A, p. 12) not to include his name on the competition reserve list, and an application for damages.

Operative part of the judgment

The Court:

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

1.

dismisses the action;

| 2. | orders the Commission to pay its own costs and three quarters of the costs of the applicant; |
| --- | --- |

2.

orders the Commission to pay its own costs and three quarters of the costs of the applicant;

| 3. | orders the applicant to pay one quarter of its own costs. |
| --- | --- |

3.

orders the applicant to pay one quarter of its own costs.

---

(1)  OJ C 106, 30.4.2004.

---

| 26.4.2008 | EN | Official Journal of the European Union | C 107/23 |
| --- | --- | --- | --- |

26.4.2008

EN

Official Journal of the European Union

C 107/23

---

Judgment of the Court of First Instance of 12 March 2008 — Sebirán v OHIM — El Coto de Rioja (Coto D'Arcis)

(Case T-332/04) (1)

(Community trade mark - Opposition proceedings - Application for Community figurative mark Coto D'Arcis - Earlier Community word marks EL COTO and COTO DE IMAZ - Relative ground for refusal - Likelihood of confusion - No damage to reputation - Article 8(1)(b) and (5) of Regulation (EC) No 40/94)

(2008/C 107/38)

Language of the case: Spanish

Parties

Applicant: Sebirán SL (Requena, Spain) (represented by: A. Calderón Chavero and T. Villate Consonni, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the Court of First Instance: El Coto de Rioja SA (Oyón, Spain) (represented initially by M.E. López Camba, then by M.E. López Camba and J. Grimau Muñoz, lawyers)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 15 June 2004 (Case R 550/2003-2) concerning opposition proceedings between El Coto de Rioja SA and Sebirán SL.

Operative part of the judgment

The Court:

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

1.

dismisses the action;

| 2. | dismisses the application of El Coto de Rioja SA for the partial annulment of the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs)(OHIM) of 15 June 2004 (Case R 550/2003-2); |
| --- | --- |

2.

dismisses the application of El Coto de Rioja SA for the partial annulment of the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs)(OHIM) of 15 June 2004 (Case R 550/2003-2);

| 3. | orders Sebirán SL to pay its own costs and those of OHIM and one half of the costs of El Coto de Rioja SA; |
| --- | --- |

3.

orders Sebirán SL to pay its own costs and those of OHIM and one half of the costs of El Coto de Rioja SA;

| 4. | orders El Coto de Rioja SA to bear one half of its own costs. |
| --- | --- |

4.

orders El Coto de Rioja SA to bear one half of its own costs.

---

(1)  OJ C 284, 20.11.2004.

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/24 |
| --- | --- | --- | --- |

26.4.2008

EN

Official Journal of the European Union

C 107/24

---

Judgment of the Court of First Instance of 11 March 2008 — Guigard v Commission

(Case T-301/05) (1)

(Non-contractual liability - Non-renewal of a contract of employment financed by the EDF - Lack of unlawful conduct on the part of the Commission - Jurisdiction of the Court of First Instance)

(2008/C 107/39)

Language of the case: French

Parties

Applicant: Philippe Guigard (Paris, France) (represented initially by: S. Rodrigues and A. Jaume, later by: S. Rodrigues and C. Bernard-Glantz, lawyers)

Defendant: Commission of the European Communities (represented initially by: D. Martin and K. Herrmann, later by: F. Dintilhac and G. Boudot, Agents)

Re:

Action for damages for the loss allegedly suffered by the applicant by reason of the allegedly wrongful conduct of the Commission in regard to the non-renewal of his contract of employment concluded in the framework of technical co-operation between the Community and the Republic of Niger financed by the European Development Fund (EDF).

Operative part of the judgment

The Court:

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

1.

Dismisses the application;

| 2. | Orders Mr Philippe Guigard to pay the costs. |
| --- | --- |

2.

Orders Mr Philippe Guigard to pay the costs.

---

(1)  OJ C 271, 29.10.2005.

---

| 26.4.2008 | EN | Official Journal of the European Union | C 107/24 |
| --- | --- | --- | --- |

26.4.2008

EN

Official Journal of the European Union

C 107/24

---

Judgment of the Court of First Instance of 12 March 2008 — Compagnie générale de diététique v OHIM (GARUM)

(Case T-341/06) (1)

(Community trade mark - Application for Community trade mark GARUM - Absolute ground for refusal - Relevant public - Article 7(1)(b) of Regulation (EC) No 40/94)

(2008/C 107/40)

Language of the case: French

Parties

Applicant: Compagnie générale de diététique SAS (Caen, France) (represented by: J.-J Evrard and T. de Haan, lawyers)

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

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 7 September 2006 (Case R 1401/2005-1) concerning application for registration of the word sign GARUM as a Community trade mark.

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 7 September 2006 (Case R 1401/2005-1). |
| --- | --- |

1.

Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 7 September 2006 (Case R 1401/2005-1).

| 2. | Orders OHIM to pay its own costs and the costs of Compagnie générale de diététique SAS. |
| --- | --- |

2.

Orders OHIM to pay its own costs and the costs of Compagnie générale de diététique SAS.

---

(1)  OJ C 326, 30.12.2006.

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/25 |
| --- | --- | --- | --- |

26.4.2008

EN

Official Journal of the European Union

C 107/25

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Judgment of the Court of First Instance of 12 March 2008 — Rossi Ferreras v Commission of the European Communities

(Case T-107/07 P) (1)

(Appeal - Staff cases - Officials - Career development report - Appraisal year 2003 - Assessment of facts - Burden of proof and production of evidence - Appeal inadmissible - Appeal unfounded)

(2008/C 107/41)

Language of the case: French

Parties

Appellant: Francisco Rossi Ferreras (Luxembourg, Luxembourg) (represented by: F. Frabetti and S. Martin. lawyers)

Other party to the proceedings: Commission of the European Communities (represented by: V. Joris and K. Herrmann, agents)

Re:

Appeal against judgment of the European Union Civil Service Tribunal (Second Chamber) of 1 February 2007 in Case F-42/05 Rossi Ferreras v Commission, not yet published in ECR, for the annulment of that judgment.

Operative part of the judgment

The Court:

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

1.

dismisses the appeal;

| 2. | orders Mr Francisco Rossi Ferreras to bear his own costs and to pay the costs of the Commission. |
| --- | --- |

2.

orders Mr Francisco Rossi Ferreras to bear his own costs and to pay the costs of the Commission.

---

(1)  OJ C 129, 9.6.2007.

---

| 26.4.2008 | EN | Official Journal of the European Union | C 107/25 |
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26.4.2008

EN

Official Journal of the European Union

C 107/25

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Judgment of the Court of First Instance of 12 March 2008 — Suez v OHIM

(Case T-128/07) (1)

(Community trade mark - Application for Community word mark Delivering the essentials of life - Absolute ground for refusal - Lack of distinctive character - Article 7(1)(b) of Regulation (EC) No 40/94)

(2008/C 107/42)

Language of the case: French

Parties

Applicant: Suez (Paris, France) (represented by: P. Combeau and D. Régnier, lawyers)

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

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 2 February 2007 (Case R 811/2006-1) concerning an application for registration of the mark Delivering the essentials of life as a Community trade mark.

Operative part of the judgment

The Court:

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

1.

dismisses the action;

| 2. | orders Suez to pay the costs. |
| --- | --- |

2.

orders Suez to pay the costs.

---

(1)  OJ C 140, 23.6.2007.

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/26 |
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26.4.2008

EN

Official Journal of the European Union

C 107/26

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Order of the Court of First Instance of 19 February 2008 — Apple Computer International v Commission

(Case T-82/06) (1)

(Actions for annulment - Common Customs Tariff - Classification in the Combined Nomenclature - Person not individually concerned - Inadmissibility)

(2008/C 107/43)

Language of the case: English

Parties

Applicant: Apple Computer International (Cork, Ireland) (represented by: G. Breen, Solicitor, P. Sreenan SC, and B. Quigley, Barrister)

Defendant: Commission of the European Communities (represented by: X. Lewis and J. Hottiaux, Agents)

Re:

APPLICATION for annulment of Commission Regulation (EC) No 2171/2005 of 23 December 2005 concerning the classification of certain goods in the Combined Nomenclature (OJ 2005 L 346, p. 7)

Operative part of the order

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

1.

The action is dismissed as inadmissible.

| 2. | Apple Computer International shall pay the costs. |
| --- | --- |

2.

Apple Computer International shall pay the costs.

---

(1)  OJ C 108, 6.5.2006.

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/26 |
| --- | --- | --- | --- |

26.4.2008

EN

Official Journal of the European Union

C 107/26

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Order of the Court of First Instance of 22 February 2008 — Base v Commission

(Case T-295/06) (1)

(Action for annulment - Telecommunications - Article 7 of Directive 2002/21/EC - Wholesale market for voice call termination on individual mobile networks in Belgium - Significant power on the market - Commission's comments letter - Non-actionable measure - Lack of direct concern - Inadmissibility)

(2008/C 107/44)

Language of the case: French

Parties

Applicant: Base NV (Brussels, Belgium) (represented by: A. Verheyden, Y. Desmedt and F. Bimont, lawyers)

Defendant: Commission of the European Communities (represented by: É. Gippini Fournier, M. Shotter and K. Mojzesowicz, Agents)

Re:

Application for annulment of the decision allegedly contained in the letter of the Commission of 4 August 2006, addressed to the Institut belge des services postaux et des telecommunications (Belgian Institute of Post and Telecommunications Services) containing comments, pursuant to Article 7 of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ 2002 L 108, p. 33), concerning a draft decision notified by that institute (Case BE/2006/0433).

Operative part of the order

The Court:

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

1.

dismisses the action as inadmissible;

| 2. | orders the applicant to pay its own costs and the costs of the Commission; |
| --- | --- |

2.

orders the applicant to pay its own costs and the costs of the Commission;

| 3. | orders Mobistar SA and the Kingdom of the Netherlands to pay their own costs. |
| --- | --- |

3.

orders Mobistar SA and the Kingdom of the Netherlands to pay their own costs.

---

(1)  OJ C 310, 16.12.2006.

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/26 |
| --- | --- | --- | --- |

26.4.2008

EN

Official Journal of the European Union

C 107/26

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Action brought on 26 January 2008 — EREF v Commission

(Case T-40/08)

(2008/C 107/45)

Language of the case: English

Parties

Applicant: European Renewable Energies Federation ASBL (EREF) (Brussels, Belgium) (represented by: D. Fouquet, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | The Decision C(2007) 4323 final of the European Commission of 25 September 2007 is declared null and void; |
| --- | --- |

—

The Decision C(2007) 4323 final of the European Commission of 25 September 2007 is declared null and void;

| — | the financial vehicle in question in its present shape and structure is declared unlawful state aid; |
| --- | --- |

—

the financial vehicle in question in its present shape and structure is declared unlawful state aid;

| — | the European Commission is ordered to pay all procedural costs, including the costs of the claimant. |
| --- | --- |

—

the European Commission is ordered to pay all procedural costs, including the costs of the claimant.

Pleas in law and main arguments

In 2004 the applicant filed a complaint with the Commission claiming that different aspects of the financing of a new power plant under construction in Finland amounted to state aid that had not been notified. The state aid aspects of the complaint were registered by the Commission under case number CP 238/04 and in 2006 the Commission decided to split the file into two separate cases numbered NN 62/A/2006 and NN 62/B/2006.

In the present case, the applicant seeks annulment of Commission Decision C(2007) 4323 final of 25 September 2007 concerning case NN 62/A/2006, notified to it on 14 November 2007, by which the Commission concluded that the export guarantee provided by the French export credit agency (‘COFACE’) granting a credit for the financing of the new power plant unit ‘Olkiluoto 3’ purchased by the Finnish electricity generation company Teollisuuden Voima Oy (‘TVO’) did not constitute illegal state aid and thus, decided to close the investigation.

The applicant claims that the export guarantee or credit insurance of EUR 570 000 provided by COFACE to TVO constitutes illegal intercommunity aid due to its financial impact on the overall financing package of the project concerned. The applicant contends that the guarantee constituted unlawful state aid in so far as it was provided by COFACE acting as a public agency on the account of France which undertook responsibility to cover repayment of the credit to the bank consortium in case TVO was unable to pay and in so far as it conferred an unfair economic advantage to TVO, facilitating its access to the market and securing its future financing potential. In addition, the applicant submits that such a secured loan will enable TVO to produce electricity at a considerably lower cost.

Further, it asserts that the splitting of the file into two separate cases violates essential procedural rules and leads to incorrect assessments.

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/27 |
| --- | --- | --- | --- |

26.4.2008

EN

Official Journal of the European Union

C 107/27

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Action brought on 24 January 2008 — Shetland Islands Council v Commission

(Case T-44/08)

(2008/C 107/46)

Language of the case: English

Parties

Applicant: Shetland Islands Council (Lerwick, United Kingdom) (represented by: E. Whiteford, Barrister, R. Murray, Solicitor, and R. Thompson QC)

Defendant: Commission of the European Communities

Form of order sought

| — | Annulment of Articles 1(2), 3, 4 and 5 of the decision; and |
| --- | --- |

—

Annulment of Articles 1(2), 3, 4 and 5 of the decision; and

| — | the costs of this application. |
| --- | --- |

—

the costs of this application.

Pleas in law and main arguments

The applicant is a public authority that made payments to the fisheries sector under the scope of two general aid measures, named ‘Aid to the Fish Catching and Processing Industry’ and ‘Aid to the Fish Farming Industry’, consisting of different types of aid schemes. One of these schemes was the First Time Shareholders Scheme. The Commission found that the aid which the United Kingdom implemented on the basis of this scheme was incompatible with the common market, in so far as it concerned aid granted for the first time acquisition of a share in a second-hand fishing vessel.

By means of its application, the applicant seeks partial annulment pursuant to Article 230 EC of Commission Decision C 39/2006 (ex NN 94/2005) of 13 November 2007 concerning the First Time Shareholders Scheme implemented in the United Kingdom. In particular, the applicant seeks annulment of Article 1(2), 3, 4, and 5 of the contested decision on the following grounds:

| (1) | The Commission erred in law in finding that all payments made for the first time acquisition of a share in a second-hand fishing vessel were incompatible with the common market and had to be paid back; |
| --- | --- |

(1)

The Commission erred in law in finding that all payments made for the first time acquisition of a share in a second-hand fishing vessel were incompatible with the common market and had to be paid back;

| (2) | The Commission erred in law in finding that recovery of these payments would be compatible with:






  (a) | Article 14(1) of Council Regulation (EC) No 659/1999 (1); and |
| --- | --- | --- |

(2)

The Commission erred in law in finding that recovery of these payments would be compatible with:

(a)

Article 14(1) of Council Regulation (EC) No 659/1999 (1); and

| (b) | the general principles of legal certainty and the protection of legitimate expectations and of equality of treatment. |
| --- | --- |

(b)

the general principles of legal certainty and the protection of legitimate expectations and of equality of treatment.

---

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

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/28 |
| --- | --- | --- | --- |

26.4.2008

EN

Official Journal of the European Union

C 107/28

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Appeal brought on 18 January 2008 by C. Michail against the judgment of the Civil Service Tribunal delivered on 22 November 2007 in Case F-67/05 Michail v Commission

(Case T-49/08 P)

(2008/C 107/47)

Language of the case: Greek

Parties

Appellant: Christos Michail (represented by C. Meïdanis, lawyer)

Other party to the proceedings: Commission of the European Communities

Form of order sought by the appellant

| — | set aside the judgment of the Civil Service Tribunal in Case F-67/05 in so far as it does not rule upon financial compensation for the non-material harm which he suffered as a result of acts and omissions of the administrative authority; |
| --- | --- |

—

set aside the judgment of the Civil Service Tribunal in Case F-67/05 in so far as it does not rule upon financial compensation for the non-material harm which he suffered as a result of acts and omissions of the administrative authority;

| — | determine the financial compensation for the non-material harm to the appellant, which amounts to EUR 120 000; |
| --- | --- |

—

determine the financial compensation for the non-material harm to the appellant, which amounts to EUR 120 000;

| — | make an order as to costs as laid down by law. |
| --- | --- |

—

make an order as to costs as laid down by law.

Pleas in law and main arguments

The appellant submits that, in the contested judgment, the Civil Service Tribunal erred in ruling upon his application for annulment of his career development report for 2003 and of the decision of the appointing authority rejecting the complaints submitted by him under Article 90(2) of the Staff Regulations.

More specifically, the appellant contends that the Civil Service Tribunal wrongly refused to grant financial compensation for the non-material harm which he suffered as a result of his being assigned to the Directorate-General for Agriculture (DG AGRI) after the Directorate-General for Financial Control, within which he fell, was abolished. In the appellant's submission, the Civil Service Tribunal applied Community law incorrectly as a result of misappraisal of the evidence and contradictory reasoning.

The appellant also submits that the Civil Service Tribunal erred in refusing to rule upon a particular claim or otherwise that its judgment displays inadequate reasoning and therefore infringes fundamental procedural rights enjoyed by the appellant and breaches Community law.

---

| 26.4.2008 | EN | Official Journal of the European Union | C 107/28 |
| --- | --- | --- | --- |

26.4.2008

EN

Official Journal of the European Union

C 107/28

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Action brought on 5 February 2008 — UEFA v Commission

(Case T-55/08)

(2008/C 107/48)

Language of the case: English

Parties

Applicant: Union des associations européennes de football (UEFA) (Nyon, Switzerland) (represented by: A. Bell and K. Learoyd, Solicitors)

Defendant: Commission of the European Communities

Form of order sought

| — | Annulment of the contested decision insofar as it approves, as a matter of Community law, the listing in the United Kingdom of the entire EURO; and |
| --- | --- |

—

Annulment of the contested decision insofar as it approves, as a matter of Community law, the listing in the United Kingdom of the entire EURO; and

| — | an order that the Commission pay its own costs and UEFA's costs in relation to these proceedings. |
| --- | --- |

—

an order that the Commission pay its own costs and UEFA's costs in relation to these proceedings.

Pleas in law and main arguments

Under Article 3a of Council Directive 89/552/EEC (1) a Member State may draw up a list of sporting or other events that are considered to be events of ‘major importance to society’. The events on the list cannot be the subject of exclusive broadcasting rights which prevent a substantial proportion of the public in that Member State from watching the event via live coverage or deferred coverage on free television.

The applicant seeks the annulment of Commission Decision 2007/730/EC of 16 October 2007 (2) by which the Commission declared that the list drawn up by the United Kingdom pursuant to Article 3a(1) of Council Directive 89/552/EEC, listing the entire UEFA European Football Championship final tournament — the EURO, was compatible with Community law.

In support of its application, the applicant submits that the Commission's decision:

| — | is not adopted following a clear and transparent procedure as required under Article 3a(1) of Directive 89/552/EEC; |
| --- | --- |

—

is not adopted following a clear and transparent procedure as required under Article 3a(1) of Directive 89/552/EEC;

| — | does not set out an adequate statement of reasons; |
| --- | --- |

—

does not set out an adequate statement of reasons;

| — | is based on a manifest error of appreciation, as the Commission concluded that matches not involving any home nation team in the EURO could be considered as events of major importance for the UK society; |
| --- | --- |

—

is based on a manifest error of appreciation, as the Commission concluded that matches not involving any home nation team in the EURO could be considered as events of major importance for the UK society;

| — | contains no proper analysis of competition law or of the free movement of services and leads to a disproportionate and unjustified distortion of competition on the relevant market and restriction of the free provision of broadcasting services; |
| --- | --- |

—

contains no proper analysis of competition law or of the free movement of services and leads to a disproportionate and unjustified distortion of competition on the relevant market and restriction of the free provision of broadcasting services;

| — | infringes the applicant's property rights, as it results in a restriction of the way in which the applicant may market the television rights to the EURO; |
| --- | --- |

—

infringes the applicant's property rights, as it results in a restriction of the way in which the applicant may market the television rights to the EURO;

| — | infringes the principle of proportionality, as it is neither suitable nor necessary for the objectives it purports to achieve; and |
| --- | --- |

—

infringes the principle of proportionality, as it is neither suitable nor necessary for the objectives it purports to achieve; and

| — | infringes the principle of equal treatment, as it gives the applicant a disadvantage compared to other right holders. |
| --- | --- |

—

infringes the principle of equal treatment, as it gives the applicant a disadvantage compared to other right holders.

---

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

(2)  Commission Decision 2007/730/EC of 16 October 2007 on the compatibility with Community law of measures taken by the United Kingdom pursuant to Article 3a(1) of Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (OJ 2007 L 295, p. 12).

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/29 |
| --- | --- | --- | --- |

26.4.2008

EN

Official Journal of the European Union

C 107/29

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Action brought on 5 February 2008 — IEA and Others v Commission

(Case T-56/08)

(2008/C 107/49)

Language of the case: English

Parties

Applicant: Stichting IEA Secretariaat Nederland (IEA) (Amsterdam, Netherlands), Educational Testing Service Global BV (ETS-Europe) (Amsterdam, Netherlands), Deutsches Institut für Internationale Pädagogische Forschung (DIPF) (Frankfurt am Main, Germany), Institut zur Qualitätsentwicklung im Bildungswesen (IQB) (Berlin, Germany) (represented by: E. Morgan de Rivery and S. Thibault-Liger, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul in its entirety the decision of the Commission of 23 November 2007 rejecting the tender from the applicant in response to the call for tender No EAC/21/2007 ‘European survey on language competences’, in so far as it infringes EU law and is based on manifest errors of assessment; |
| --- | --- |

—

Annul in its entirety the decision of the Commission of 23 November 2007 rejecting the tender from the applicant in response to the call for tender No EAC/21/2007 ‘European survey on language competences’, in so far as it infringes EU law and is based on manifest errors of assessment;

| — | annul in its entirety the decision of the Commission awarding the contract related to this call for tender to the SurveyLang Consortium, in so far as it infringes EU law and is based on manifest errors of assessment; and |
| --- | --- |

—

annul in its entirety the decision of the Commission awarding the contract related to this call for tender to the SurveyLang Consortium, in so far as it infringes EU law and is based on manifest errors of assessment; and

| — | order, pursuant to Article 87(2) of the Rules of Procedure of the CFI, the Commission to pay the costs of the applicant. |
| --- | --- |

—

order, pursuant to Article 87(2) of the Rules of Procedure of the CFI, the Commission to pay the costs of the applicant.

Pleas in law and main arguments

The applicants submitted a bid in response to the defendant's call for tender concerning the ‘European survey on language competences’ (OJ 2007/S 61-074161), as rectified (OJ 2007/S 109-133727). The applicants contest the defendant's decision of 23 November 2007 to reject their bid and to award the contract to another tenderer.

In support of their application, the applicants submit that the contested decision violates the principle of equal treatment, Article 100(1) of the financial regulation (1) and the tender specifications.

Furthermore, the applicants claim that the Commission committed a manifest error of assessment of the qualitative criteria laid down in the tender specifications, which in turn led to a manifest error of assessment in the setting of the bidders' respective scores.

Finally, the applicants allege that the Commission breached the principle of good administration by failing to exercise due care during the tender procedure.

---

(1)  Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1), as rectified (OJ 2003 L 25, p. 43).

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/30 |
| --- | --- | --- | --- |

26.4.2008

EN

Official Journal of the European Union

C 107/30

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Action brought on 11 February 2008 — Hedgefund Intelligence v OHIM — Hedge Invest (InvestHedge)

(Case T-67/08)

(2008/C 107/50)

Language in which the application was lodged: English

Parties

Applicant: Hedgefund Intelligence Ltd (London, United Kingdom) (represented by: J. Reed, Barrister, and G. Crofton Martin, Solicitor)

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

Other party to the proceedings before the Board of Appeal: Hedge Invest SGR P.A. (Milan, Italy)

Form of order sought

| — | The decision of the Second Board of Appeal dated 28 November 2007 in Case R 148/2007-2 dismissing the appeal shall be annulled; |
| --- | --- |

—

The decision of the Second Board of Appeal dated 28 November 2007 in Case R 148/2007-2 dismissing the appeal shall be annulled;

| — | the Opponent's opposition be dismissed; |
| --- | --- |

—

the Opponent's opposition be dismissed;

| — | the Office and the other party shall bear their own costs, and the other party shall pay those of the applicant before the Opposition Division, the Board of Appeal and this Court. |
| --- | --- |

—

the Office and the other party shall bear their own costs, and the other party shall pay those of the applicant before the Opposition Division, the Board of Appeal and this Court.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘InvestHedge’ for goods and services in classes 9, 16, 36 and 41 — application No 3 081 081

Proprietor of the mark or sign cited in the opposition proceedings: Hedge Invest SGR P.A.

Mark or sign cited: The Community figurative mark ‘HEDGE INVEST’ for services in class 36

Decision of the Opposition Division: Opposition upheld for all the contested services in classes 36 and 41; the trade mark application allowed to proceed for the non-contested goods in classes 9 and 16

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: The applicant submits that when determining the visual similarity of the respective marks in the eyes of non-English speaking consumers, the Board of Appeal was wrong to take account of the ‘commercial impression’ and to consider that the commercial impression of the conflicting trade marks was the same.

When assessing the aural similarity of the conflicting trade marks to the ears of non-English speaking consumers, the Board of Appeal improperly put the burden of proof on the applicant.

Finally, the Board of Appeal failed to apply, at the relevant stage, the uncontested finding that there was only a very limited and/or remote degree of similarity between the services in classes 36 and 41.

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/30 |
| --- | --- | --- | --- |

26.4.2008

EN

Official Journal of the European Union

C 107/30

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Action brought on 6 February 2008 — FIFA v Commission

(Case T-68/08)

(2008/C 107/51)

Language of the case: English

Parties

Applicant: Fédération Internationale de Football Association (FIFA) (Zurich, Switzerland) (represented by: E. Batchelor, F. Young, Solicitors, and A. Barav, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | Annulment, in whole or in part, of the Commission Decision 2007/730/EC of 16 October 2007 on the compatibility with Community law of measures taken by the United Kingdom pursuant to Article 3a(1) of 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, in particular Articles 1-3 thereof in so far as it concerns the FIFA World CupTM; |
| --- | --- |

—

Annulment, in whole or in part, of the Commission Decision 2007/730/EC of 16 October 2007 on the compatibility with Community law of measures taken by the United Kingdom pursuant to Article 3a(1) of 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, in particular Articles 1-3 thereof in so far as it concerns the FIFA World CupTM;

| — | an order that the Commission pay its own costs and FIFA's costs in connection with these proceedings. |
| --- | --- |

—

an order that the Commission pay its own costs and FIFA's costs in connection with these proceedings.

Pleas in law and main arguments

Under Article 3a of Council Directive 89/552/EEC (1) a Member State may draw up a list of sporting or other events that are considered to be events of ‘major importance to society’. The events on the list cannot be the subject of exclusive broadcasting rights which prevent a substantial proportion of the public in that Member State from watching the event via live coverage or deferred coverage on free television.

The applicant seeks the annulment of Commission Decision 2007/730/EC of 16 October 2007 (2) by which the Commission declared that the list drawn up by the United Kingdom pursuant to Article 3a(1) of Council Directive 89/552/EEC, listing all 64 FIFA World Cup matches, was compatible with Community law. This prevents FIFA from granting exclusive licenses to broadcasters in respect of live broadcasting in the United Kingdom of any of the FIFA World Cup matches.

In support of its application, the applicant submits that the Commission's decision is vitiated by an infringement of an essential procedural requirement by failing to state reasons for approving the inclusion of all 64 matches in the FIFA World Cup on the list of the United Kingdom.

Furthermore, the applicant contends that the contested decision infringes Directive 89/552/EEC, as the procedure followed by the British authorities for the adoption of the measure was not clear and transparent, and as all the matches played within the framework of the FIFA World Cup were not of major importance for the British society.

The applicant moreover alleges that the contested decision infringes the applicant's property rights by preventing it from granting exclusive licenses in respect of live broadcasting in the United Kingdom for any of the matches played within the framework of the FIFA World Cup.

The applicant further claims that the contested decision infringes the provisions of the EC Treaty on freedom to provide services by depriving the applicant from licensing and broadcasters from acquiring live exclusive rights to any of the FIFA World Cup matches broadcasted in the United Kingdom.

The applicant also claims that the contested decision infringes the provisions of the EC Treaty on competition by permitting an abusive behaviour of a joint dominant position and/or anti-competitive agreement for the acquisition of live broadcasting rights to international football matches in the United Kingdom and by restricting competition on related free-to-air television, advertising and premium sports pay-television markets.

Finally, the applicant alleges that the contested decision infringes the provisions of the EC Treaty on the right of establishment by restricting access to live exclusive broadcasting rights in the United Kingdom to any of the matches played within the framework of the FIFA World Cup by entrants or potential entrants into the relevant British market.

---

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

(2)  Commission Decision 2007/730/EC of 16 October 2007 on the compatibility with Community law of measures taken by the United Kingdom pursuant to Article 3a(1) of Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (OJ 2007 L 295, p. 12).

---

| 26.4.2008 | EN | Official Journal of the European Union | C 107/31 |
| --- | --- | --- | --- |

26.4.2008

EN

Official Journal of the European Union

C 107/31

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Action brought on 12 February 2008 — Axis AB v OHIM — Etra Investigación y Desarollo (ETRAX)

(Case T-70/08)

(2008/C 107/52)

Language in which the application was lodged: English

Parties

Applicant: Axis AB (Lund, Sweden) (represented by: J. Norderyd, lawyer)

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

Other party to the proceedings before the Board of Appeal: Etra Investigación y Desarollo SA (Valencia, Spain)

Form of order sought

| — | Annul the decision of the Second Board of Appeal of 27 November 2007 in Case R 334/2007-2; |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of 27 November 2007 in Case R 334/2007-2;

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

—

order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The Community word mark ‘ETRAX’ for goods and services in classes 9 and 42 — Application No 3 890 291

Proprietor of the mark or sign cited in the opposition proceedings: Etra Investigacion y Desarollo SA

Mark or sign cited: The national figurative marks containing the word element ‘ETRA’ and the letters ‘I’ and ‘D’ joined by the sign ‘+’ for goods and services in classes 9 and 42

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Upheld the appeal and annulled the contested decision

Pleas in law: Infringement of Rule 49 of Commission Regulation (EC) No 2868/95 (1) (‘CTMIR’) and Article 8(1)(b) of Council Regulation (EC) No 40/94 (‘CTMR’).

The applicant claims that the Board of Appeal erred in finding that the appeal was filed in accordance with Rule 49(1) CTMIR which states that the Board of Appeal must reject an appeal as inadmissible if it doesn't comply with Articles 57, 58 and 59 CTMR and Rule 48(1)(c) CTMIR. Further, the applicant contends that since the language deficiency was not remedied by the opponent before the expiry of the time-limit set to lodge an appeal, namely, 12 February 2007, the Board of Appeal allegedly infringed Rule 49(1) and (2) CTMIR.

---

(1)  Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ L 303, p. 1).

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/32 |
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26.4.2008

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Official Journal of the European Union

C 107/32

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Action brought on 11 February 2008 — Travel Servis v OHIM — Eurowings Luftverkehrs (smartWings)

(Case T-72/08)

(2008/C 107/53)

Language in which the application was lodged: English

Parties

Applicant: Travel Service a.s. (Prague, Czech Republic) (represented by: S. Hejdová)

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

Other party to the proceedings before the Board of Appeal: Eurowings Luftverkehrs AG (Dortmund, Germany)

Form of order sought

| — | Alter the contested decision of the Second Board of Appeal in Case R 1515/2006-2 as follows:






  — | annul the Opposition Division decision relating to opposition proceedings No B 782 351 of 29 September 2006 in its entirety; |
| --- | --- | --- |

—

Alter the contested decision of the Second Board of Appeal in Case R 1515/2006-2 as follows:

—

annul the Opposition Division decision relating to opposition proceedings No B 782 351 of 29 September 2006 in its entirety;

| — | order the opponent to bear the costs incurred by the applicant with respect to the opposition and the appeal proceedings before the OHIM. |
| --- | --- |

—

order the opponent to bear the costs incurred by the applicant with respect to the opposition and the appeal proceedings before the OHIM.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The figurative Community trade mark ‘smartWings’ for goods and services in classes 16, 21, 37, 39, 41 and 43 — Application No 3 650 595

Proprietor of the mark or sign cited in the opposition proceedings: Eurowings Luftverkehrs AG

Mark or sign cited: The national and international word mark ‘EuroWings’ for goods and services in classes 16 and 41, the national and international word mark ‘EUROWINGS’ for goods and services in classes 39 and 42 and the national word mark ‘WINGSGLASS’ for goods and services in classes 16, 39, 41 and 42

Decision of the Opposition Division: Upheld the opposition in part

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation (EC) No 40/94 and of essential procedural requirements enshrined in Articles 73 and 79 CTMR.

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/33 |
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26.4.2008

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Official Journal of the European Union

C 107/33

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Action brought on 11 February 2008 — Berliner Institut für Vergleichende Sozialforschung v Commission

(Case T-73/08)

(2008/C 107/54)

Language of the case: German

Parties

Applicant: Berliner Institut für Vergleichende Sozialforschung eV (Berlin, Germany) (represented by: B. Henning, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul the Commission's decision of 26 November 2007 claiming repayment of the sum of EUR 23 228,07 in connection with the ‘Daphne Grant Agreement JLS/DAP/2004-1/080/YC’; |
| --- | --- |

—

Annul the Commission's decision of 26 November 2007 claiming repayment of the sum of EUR 23 228,07 in connection with the ‘Daphne Grant Agreement JLS/DAP/2004-1/080/YC’;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

In May 2005, the applicant and the Commission signed an agreement on support for a project in connection with the Daphne II programme (1). By debit note of 26 November 2007, the defendant reclaimed from the applicant part of the payment made in connection with this agreement. The applicant brought the present action against that decision.

The applicant claims in support of its action, first, that the contested decision is in breach of the obligation to state reasons. Second, the principle of a fair hearing has been infringed, as the applicant was not allowed an appropriate period of time to comment and to submit additional documents. Finally, the applicant complains that the contested decision is based on an erroneous assessment of the facts.

---

(1)  Decision No 803/2004/EC of the European Parliament and of the Council of 21 April 2004 adopting a programme of Community action (2004 to 2008) to prevent and combat violence against children, young people and women and to protect victims and groups at risk (the Daphne II programme) (OJ 2004 L 143, p. 1).

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/33 |
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26.4.2008

EN

Official Journal of the European Union

C 107/33

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Action brought on 13 February 2008 — JOOP! v OHIM (!)

(Case T-75/08)

(2008/C 107/55)

Language in which the application was lodged: German

Parties

Applicant: JOOP! GmbH (Hamburg, Germany) (represented by H. Schmidt-Hollburg and W. Möllering, lawyers)

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

Form of order sought

| — | Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 26 November 2007 in Case R 1134/2007-1; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 26 November 2007 in Case R 1134/2007-1;

| — | Order the Office for Harmonisation in the Internal Market to pay the costs including those incurred during the appeal proceedings |
| --- | --- |

—

Order the Office for Harmonisation in the Internal Market to pay the costs including those incurred during the appeal proceedings

Pleas in law and main arguments

Community trade mark concerned: The figurative mark ‘!’ for goods in Classes 14, 18 and 25 (application No 5 332 184)

Decision of the Examiner: Rejection of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation (EC) No 40/94 (1), as the mark applied for has distinctive character and its availability does not have to be preserved.

---

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

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/33 |
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26.4.2008

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Official Journal of the European Union

C 107/33

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Action brought on 18 February 2008 — Baldesberger v OHIM (shape of tweezers)

(Case T-78/08)

(2008/C 107/56)

Language in which the application was lodged: German

Parties

Applicant: Fides B. Baldesberger (Lugano, Switzerland) (represented by F. Nielsen, lawyer)

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

Form of order sought

| — | Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 12 December 2007 (Case R 1405/2007-4); |
| --- | --- |

—

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 12 December 2007 (Case R 1405/2007-4);

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Three-dimensional mark depicting tweezers, for goods in class 8 (application No 5 480 108).

Decision of the Examiner: Registration refused.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Article 7(1)(b) of Regulation (EC) No 40/94 (1), as the mark applied for has the requisite distinctive character.

---

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

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/34 |
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26.4.2008

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Official Journal of the European Union

C 107/34

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Action brought on 19 February 2008 — CureVac v OHIM — Qiagen (RNAiFect)

(Case T-80/08)

(2008/C 107/57)

Language in which the application was lodged: German

Parties

Applicant: CureVac GmbH (Tübingen, Germany) (represented by: F. von Stosch, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Qiagen GmbH (Hilden, Germany)

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 (OHIM) of 11 December 2007 in Case R 1219/2006-1 relating to Opposition No B 771 495; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 11 December 2007 in Case R 1219/2006-1 relating to Opposition No B 771 495;

| — | Refuse registration of Community trade mark No 3 304 813 |
| --- | --- |

—

Refuse registration of Community trade mark No 3 304 813

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

—

Order OHIM to pay the costs

Pleas in law and main arguments

Applicant for a Community trade mark: Qiagen GmbH

Community trade mark concerned: The word mark ‘RNAiFect’ for goods in Classes 1, 5 and 9 (Application No 3 304 813)

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

Mark or sign cited in opposition: the word mark ‘RNActive’ for goods in Classes 1 and 5 (Community trade mark No 2 953 768), albeit that the opposition was brought against registration in respect of certain goods in Classes 1 and 5

Decision of the Opposition Division: Rejection of the opposition

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 40/94 (1) as there is a likelihood of confusion between the opposing marks due to the identity of the goods and the similarity of the marks.

---

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

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/34 |
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26.4.2008

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C 107/34

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Action brought on 18 February 2008 — Enercon v OHIM (E-ship)

(Case T-81/08)

(2008/C 107/58)

Language in which the application was lodged: German

Parties

Applicant: Enercon GmbH (Aurich, Germany) (represented by R. Böhm, lawyer)

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

Form of order sought

| — | Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 4 December 2007 (Case R 319/2007-1); |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 4 December 2007 (Case R 319/2007-1);

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘E-ship’ for goods and services in classes 7, 9, 12 and 39 (application No 5 050 539).

Decision of the Examiner: Registration refused.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation (EC) No 40/94 (1) on account of an incorrect assessment of the need for availability and of the distinctive character of the mark applied for.

---

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

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/35 |
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26.4.2008

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Official Journal of the European Union

C 107/35

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Action brought on 12 February 2008 — Guardian Industries and Guardian Europe v Commission

(Case T-82/08)

(2008/C 107/59)

Language of the case: English

Parties

Applicants: Guardian Industries Corp. (Auburn Hills, United States) and Guardian Europe Sàrl (Dudelange, Luxembourg) (represented by: S. Völcker, F. Louis, A. Vallery. C. Eggers and H.-G. Kamann, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Partially annul Article 1 of the contested decision in accordance with the pleas outlined in Sections A.1 and A.2; |
| --- | --- |

—

Partially annul Article 1 of the contested decision in accordance with the pleas outlined in Sections A.1 and A.2;

| — | reduce the amount of the fine imposed on the applicants; and |
| --- | --- |

—

reduce the amount of the fine imposed on the applicants; and

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

—

order the Commission to bear the costs.

Pleas in law and main arguments

The applicants seek partial annulment of Commission Decision No C(2007) 5791 final (Case COMP/39.165 — Flat glass), of 28 November 2007, as notified to them on 3 December 2007, by which the Commission found that the applicants, among other undertakings, had infringed Article 81 EC and Article 53 EEA by participating, from 20 April 2004 to 22 February 2005 in a complex set of agreements and/or concerted practices coveting the whole of the EEA.

According to the applicants, the contested decision should be annulled and the fine imposed on them adjusted accordingly, since it is vitiated by the following grave errors:

| (i) | the Commission's failure to adduce precise and consistent evidence that the applicants participated in the cartel operated by three incumbent glass producers before the 11 February 2005 meeting; |
| --- | --- |

(i)

the Commission's failure to adduce precise and consistent evidence that the applicants participated in the cartel operated by three incumbent glass producers before the 11 February 2005 meeting;

| (ii) | the Commission's unsubstantiated assertion that, at that meeting, the applicants entered into agreements that extended across the EEA. |
| --- | --- |

(ii)

the Commission's unsubstantiated assertion that, at that meeting, the applicants entered into agreements that extended across the EEA.

In addition, the applicants ask the Court to exercise its unlimited jurisdiction to further reduce their fine. On this basis they claim, first, that without reasoning, in a departure from its own consistent position and in a clear violation of the Court's established case-law, the Commission allegedly excluded one billion euros of captive sales from the calculation of the other addressees' fines, thereby vastly overstating the applicants' market position and, second, that the Commission ignored the applicants' substantially limited passive role in the infringement compared to the other participants' long-lasting efforts to cartelise flat glass sales in Europe, and their attempts to enlist the applicants in those efforts.

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/35 |
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Official Journal of the European Union

C 107/35

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Action brought on 19 February 2008 — Denki Kagaku Kogyo and Denka Chemicals v Commission

(Case T-83/08)

(2008/C 107/60)

Language of the case: English

Parties

Applicants: Denki Kagaku Kogyo K.K. (Tokyo, Japan) and Denka Chemicals GmbH (Düsseldorf, Germany) (represented by: G. Van Gerven, T. Franchoo and D. Fessenko, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | To annul Articles 1, 2 and 3 of Commission Decision C(2007) 5910 final of 5 December 2007 in Case COMP/F/38.629 — Chloroprene Rubber; |
| --- | --- |

—

To annul Articles 1, 2 and 3 of Commission Decision C(2007) 5910 final of 5 December 2007 in Case COMP/F/38.629 — Chloroprene Rubber;

| — | alternatively, to substantially reduce the fine imposed on the applicants pursuant to Article 2 of that decision; |
| --- | --- |

—

alternatively, to substantially reduce the fine imposed on the applicants pursuant to Article 2 of that decision;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

By means of their application the applicants seek the annulment of Commission Decision C(2007) 5910 final of 5 December 2007 (Case COMP/F/38.629 — Chloroprene Rubber) relating to a proceeding under Article 81 EC and Article 53 EEA insofar as the Commission found that the applicants infringed Article 81 EC and that it imposed a fine on them requesting them to bring the alleged infringement to an end immediately.

In support of their claims, the applicants put forward six pleas in law:

On the basis of their first and second pleas, the applicants submit, first, that the Commission has made a manifest error of assessment in finding that the applicants participated in an infringement of Article 81 EC, since it has neither proved that the applicants shared a common objective with the other chloroprene producers in order to form a cartel, nor did it prove that the applicants participated in a concerted practice.

Second, the applicants claim that the Commission infringed their rights of defence and violated Article 253 EC and the principle of sound administration in that it did not provide access to Bayer's pleadings made during the in camera hearing.

On the basis of their third, fourth, fifth and sixth pleas, the applicants request the Court to reduce significantly the fine imposed by the Commission on the basis of Article 2 of the contested decision.

Namely, by their third plea, the applicants submit that the Commission has violated principles of legal certainty and non-retroactivity by calculating the fine on the basis of the 2006 Fining Guidelines instead of applying the 1998 Fining Guidelines.

By their fourth plea, the applicants contend that the Commission made a manifest error of assessment in relation to the calculation of the value of sales in determining the basic amount of the fine. Further, according to the applicants, the Commission allegedly breached the principle of proportionality in that the applicants were punished twice.

By their fifth plea, the applicants claim that the Commission made a manifest error of assessment regarding the duration of the cartel.

Finally, by the sixth plea, it is submitted that the Commission committed a manifest error of assessment and violated Article 253 EC and the principles of proportionality and equal treatment in that it failed to reduce the fine imposed on the applicants on account of mitigating circumstances.

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/36 |
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26.4.2008

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Official Journal of the European Union

C 107/36

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Action brought on 19 February 2008 — Exalation v OHIM (Vektor-Lycopin)

(Case T-85/08)

(2008/C 107/61)

Language in which the application was lodged: German

Parties

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

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

Form of order sought

The applicant claims that the Court should:

| — | Annul the decision of the Fourth Board of Appeal of OHIM of 17 December 2007 in Case R 1037/2007-4 and OHIM's decision of 4 May 2007 and order OHIM to register the mark ‘Vektor-Lycopin’ applied for by the applicant as a Community trade mark in the Community Trade Mark Register; |
| --- | --- |

—

Annul the decision of the Fourth Board of Appeal of OHIM of 17 December 2007 in Case R 1037/2007-4 and OHIM's decision of 4 May 2007 and order OHIM to register the mark ‘Vektor-Lycopin’ applied for by the applicant as a Community trade mark in the Community Trade Mark Register;

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘Vektor-Lycopin’ for goods in Classes 5, 29 and 30 (Application No 4 838 983)

Decision of the Examiner: Partial rejection of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation (EC) No 40/94 (1), as the mark applied for has sufficient distinctive character and is not descriptive.

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

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/37 |
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26.4.2008

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C 107/37

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Action brought on 22 February 2008 — Global Digital Disc v Commission

(Case T-96/08)

(2008/C 107/62)

Language of the case: German

Parties

Applicant: Global Digital Disc GmBH & Co. KG (Dresden, Germany) (represented by: E. Stein, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul Commission decision COMP/C-3/38.803 of 7 December 2007 — Global Digital Disc (GDD) v Philips; |
| --- | --- |

—

Annul Commission decision COMP/C-3/38.803 of 7 December 2007 — Global Digital Disc (GDD) v Philips;

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

The applicant contests Commission decision COMP/C-3/38.803 of 7 December 2007 — Global Digital Disc (GDD) v Philips. In that decision the Commission dismissed the applicant's complaint, in which it pleaded several infringements of Article 82 EC by the party complained of in connection with that party's licensing practice in the CD-R field, pursuant to Article 7(2) of Regulation (EC) No 773/2004 (1).

In its grounds of complaint the applicant contends first that the Commission failed to fulfil its obligation to give reasons. Furthermore the defendant infringed the applicant's rights of defence. Finally the applicant complains that the Commission's arguments for rejecting the Community-wide importance of the subject-matter of the complaint are misjudged.

---

(1)  Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty (OJ 2004 L 123, p. 18).

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/37 |
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C 107/37

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Action brought on 20 February 2008 — KUKA Roboter v OHIM (colour mark orange)

(Case T-97/08)

(2008/C 107/63)

Language in which the application was lodged: German

Parties

Applicant: KUKA Roboter GmbH (Augsburg, Germany) (represented by A. Kohn, 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 Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 14 December 2007 in Case R 1572/2007-4; |
| --- | --- |

—

annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 14 December 2007 in Case R 1572/2007-4;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The contourless colour mark orange for goods in Class 7 (Application No 4 607 801)

Decision of the Examiner: Rejection of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law:

| — | Infringement of Article 28 EC as the contested decision constitutes a measure having equivalent effect to a quantitative restriction on imports |
| --- | --- |

—

Infringement of Article 28 EC as the contested decision constitutes a measure having equivalent effect to a quantitative restriction on imports

| — | Infringement of Article 7(1)(b) of Regulation (EC) No 40/94 (1), as the mark applied for has distinctive character |
| --- | --- |

—

Infringement of Article 7(1)(b) of Regulation (EC) No 40/94 (1), as the mark applied for has distinctive character

| — | Infringement of Articles 73 and 74 of Regulation No 40/94 as there is no or an insufficient statement of reasons for the contested decision and the facts have not been examined sufficiently |
| --- | --- |

—

Infringement of Articles 73 and 74 of Regulation No 40/94 as there is no or an insufficient statement of reasons for the contested decision and the facts have not been examined sufficiently

| — | Misuse of powers as the defendant took extraneous considerations into account in its statement of reasons for the contested decision in respect of the requirement of availability. |
| --- | --- |

—

Misuse of powers as the defendant took extraneous considerations into account in its statement of reasons for the contested decision in respect of the requirement of availability.

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

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/38 |
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Appeal brought on 25 February 2008 by Asa Sundholm against the judgment of the Civil Service Tribunal delivered on 13 December 2007 in Case F-27/07 Sundholm v Commission

(Case T-102/08 P)

(2008/C 107/64)

Language of the case: French

Parties

Appellant: Asa Sundholm (Brussels, Belgium) (represented by S. Orlandi, A. Coolen, J.-N. Louis, E. Marchal, lawyers)

Other party to the proceedings: Commission of the European Communities

Form of order sought by the appellant

| — | quash the judgment of the Civil Service Tribunal (Second Chamber) of 13 December 2007 in Case F-27/07; |
| --- | --- |

—

quash the judgment of the Civil Service Tribunal (Second Chamber) of 13 December 2007 in Case F-27/07;

| — | give judgment again and do what the first court ought to have done: annul the decision drawing up the applicant's Career Development Report for the period from 1 July 2001 to 31 December 2002, adopted pursuant to the judgment of the Court of First Instance of 20 April 2005; |
| --- | --- |

—

give judgment again and do what the first court ought to have done: annul the decision drawing up the applicant's Career Development Report for the period from 1 July 2001 to 31 December 2002, adopted pursuant to the judgment of the Court of First Instance of 20 April 2005;

| — | order the defendant to pay the costs at first instance and on appeal. |
| --- | --- |

—

order the defendant to pay the costs at first instance and on appeal.

Pleas in law and main arguments

In her appeal, the appellant seeks the setting aside of the judgment of the Civil Service Tribunal (CST) dismissing the action by which she sought the annulment of the Commission's decision drawing up her Career Development Report for the period from 1 July 2001 to 31 December 2002, since the first report for that period was annulled by the judgment of the Court of First Instance of 20 April 2005 (1).

In support of her appeal the appellant puts forward a single plea in law alleging an error of law, infringement of Article 233 EC and failure to comply with Community law in relation to the special obligation to state reasons.

She claims that the CST erred in law by disregarding the scope of the judgment of the Court of First Instance of 20 April 2005 and of Article 233 EC in holding that the Appointing Authority was not required, when taking the necessary measures to comply with the judgment and in taking account of its grounds and the time lapse between the annulled decision and that adopted pursuant to that judgment, to provide a more extensive statement of reasons in respect of the obligation on the administration to state reasons in a specific manner for a Development Report drawn up pursuant to a judgment of the Court of First Instance and, according to the appellant, out of time.

In addition, she submits that the CST disregarded the force of res judicata with absolute effect of a judgment of the Court of First Instance by accepting that the mere deletion of the comments unlawfully taken into consideration constitutes a fair rectification of the evaluation of the appellant.

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(1)  Case T-86/04 Sundholm v Commission, not published in the ECR.

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/38 |
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Action brought on 23 February 2008 — ars Parfum Creation & Consulting v OHIM (shape of a perfume bottle)

(Case T-104/08)

(2008/C 107/65)

Language in which the application was lodged: German

Parties

Applicant: ars Parfum Creation & Consulting GmbH (Cologne, Germany) (represented by: A. Späth and G. Hasselblatt, lawyers)

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

Form of order sought

| — | Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 8 November 2007 (Case No R 1656/2006-1); |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 8 November 2007 (Case No R 1656/2006-1);

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: the three-dimensional trade mark in the shape of a perfume bottle for goods in class 3 (Application No 4 995 361).

Decision of the Examiner: Dismissal of the application.

Decision of the Board of Appeal: Rejection of the appeal.

Pleas in law: Infringement of Article 7(1)(b) of Regulation (EC) No 40/94 (1), because the trade mark applied for has a distinctive character.

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

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/39 |
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Official Journal of the European Union

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Appeal brought on 26 February 2008 by Kris Van Neyghem against the judgment of the Civil Service Tribunal delivered on 13 December 2007 in Case F-73/06, Van Neyghem v Commission

(Case T-105/08 P)

(2008/C 107/66)

Language of the case: French

Parties

Appellant: Kris Van Neyghem (Vissenken, Belgium) (represented by S. Rodrigues and C. Bernard-Glanz, lawyers)

Other party to the proceedings: Commission of the European Communities

Form of order sought by the appellant

| — | declare the present appeal admissible; |
| --- | --- |

—

declare the present appeal admissible;

| — | annul the judgment of the Civil Service Tribunal (Second Chamber) delivered on 13 December 2007 in Case F-73/06; |
| --- | --- |

—

annul the judgment of the Civil Service Tribunal (Second Chamber) delivered on 13 December 2007 in Case F-73/06;

| — | uphold the claims for annulment and for compensation submitted by the appellant to the Civil Service Tribunal; |
| --- | --- |

—

uphold the claims for annulment and for compensation submitted by the appellant to the Civil Service Tribunal;

| — | order the Commission to pay the costs of both instances. |
| --- | --- |

—

order the Commission to pay the costs of both instances.

Pleas in law and main arguments

In his appeal, the appellant is seeking the annulment of the judgment of the Civil Service Tribunal (the ‘Tribunal’) dismissing his application, on the one hand, for the annulment of the decision of the selection board in general competition EPSO/A/19/04 not to admit the applicant to the oral test in that competition and, on the other, for damages for the material and non-material damage which he allegedly suffered.

In support of his appeal, the appellant pleads a misunderstanding of evidence produced before the Tribunal, namely, a copy of the written test.

The applicant pleads, in addition, an error in the Tribunal's reasoning concerning the absence of a manifest error of assessment on the part of the president of the selection board in the comparison between the mark given to the applicant and the literal assessment in the evaluation sheet.

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/39 |
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Action brought on 27 February 2008 — CPEM v Commission

(Case T-106/08)

(2008/C 107/67)

Language of the case: French

Parties

Applicant: Centre de promotion de l'emploi par la micro-entreprise (CPEM) (Marseille, France) (represented by: C. Bonnefoi, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | annulment of the debit note; |
| --- | --- |

—

annulment of the debit note;

| — | recognise a right to damages for public detriment to the reputation of a body acting in the context of a task of general interest (estimated at EUR 100 000); |
| --- | --- |

—

recognise a right to damages for public detriment to the reputation of a body acting in the context of a task of general interest (estimated at EUR 100 000);

| — | repayment of lawyers' fees and the costs of legal assistance made necessary, proof of which can be provided. |
| --- | --- |

—

repayment of lawyers' fees and the costs of legal assistance made necessary, proof of which can be provided.

Pleas in law and main arguments

By this action, the applicant seeks annulment of the Commission decision contained in debit note No 3240912189 of 17 December 2007 relating to Commission Decision C(2007) 4645 of 4 October 2007, cancelling, following an OLAF report, the assistance granted by the European Social Fund to finance, by way of a global subsidy, a pilot project carried out by the applicant (1) the annulment of which is sought by the applicant in Case T-444/07 CPME v Commission
   (2).

In support of its application, the applicant submits, principally, that the Commission has erred in law and exceeded its powers in so far as the contested debit note was not addressed to the actual debtor. By relying on infringement of Article 135 of the Financial Regulation No 1605/2002 (3), it submits that the debit note should have been addressed to the body which played a financially responsible role in the project concerned, which actually received the grant from the European Social Fund.

Moreover, the applicant submits that the fact that the debit note was addressed to it damages its image and its credibility with respect to its financial partners given the general interest task it performs.

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(1)  Commission Decision C(1999) 2645 of 17 August 1999, amended by Decision No C(2001) 2144 of 18 September 2001.

(2)  OJ 2008 C 37, p. 29.

(3)  Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1).

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/40 |
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Action brought on 29 February 2008 — Spain v Commission

(Case T-113/08)

(2008/C 107/68)

Language of the case: Spanish

Parties

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

Defendant: Commission of the European Communities

Form of order sought

| — | Annul Commission Decision 2008/68/EC of 20 December 2007 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), to the extent it relates to the subject matter of this action, and |
| --- | --- |

—

Annul Commission Decision 2008/68/EC of 20 December 2007 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), to the extent it relates to the subject matter of this action, and

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

—

Order the Commission to pay the costs.

Pleas in law and main arguments

The effect of the contested decision is to exclude from Community financing certain corrective measures, among which, for the purposes of this action, are included those concerning aid to olive oil production in the seasons 1998/1999, 1999/2000 and 1999/2001, to a total sum of EUR 183 965 185,54; and direct aid payments, aid for arable crop areas, applied for in the years 2003 and 2004, to a total sum of EUR 16 591 528,35.

In particular, this action relates to the corrective financial measures adopted in relation to aid to olive oil production, excluding the proportion relating to the season 1999/2000 in Andalusia, and that adopted in relation to aid to arable crops areas applied for in the years 2003 and 2004.

In support of its claims, the applicant alleges:

| — | As regards aid to olive oil production:






  — | Infringement of Article 8 of Regulation No 1663/95 (1), in that the financial corrective measures were not based on observations made by the Commission on verifications made as a result of the investigation, but on extrapolations from observations relating to other investigations. |
| --- | --- | --- |

—

As regards aid to olive oil production:

—

Infringement of Article 8 of Regulation No 1663/95 (1), in that the financial corrective measures were not based on observations made by the Commission on verifications made as a result of the investigation, but on extrapolations from observations relating to other investigations.

| — | Infringement of Articles 2 and 3 of Regulation No 729/70 (2) and of Article 2 of Regulation No 1258/1999 (3), since the contested decision applies them in inappropriate circumstances, given that the theoretical irregularities relied on by the Commission to justify the financial corrective measures decided upon are insufficient. |
| --- | --- |

—

Infringement of Articles 2 and 3 of Regulation No 729/70 (2) and of Article 2 of Regulation No 1258/1999 (3), since the contested decision applies them in inappropriate circumstances, given that the theoretical irregularities relied on by the Commission to justify the financial corrective measures decided upon are insufficient.

| — | Failure to observe the period of 24 months prior to written communication of the results of the verifications, laid down in Article 7(4) of Regulation No 1258/99. |
| --- | --- |

—

Failure to observe the period of 24 months prior to written communication of the results of the verifications, laid down in Article 7(4) of Regulation No 1258/99.

| — | As regards the aid to arable crops areas:






  — | Infringement of the procedure laid down in Article 8(1) of Regulation No 1663/95, since there was no statement of the reasons justifying the financial corrective measures in the document in which the results of the verifications were notified to the Member State, and alternatively, failure to observe the period of 24 months laid down in Article 7(4) of Regulation No 1258/1999. |
| --- | --- | --- |

—

As regards the aid to arable crops areas:

—

Infringement of the procedure laid down in Article 8(1) of Regulation No 1663/95, since there was no statement of the reasons justifying the financial corrective measures in the document in which the results of the verifications were notified to the Member State, and alternatively, failure to observe the period of 24 months laid down in Article 7(4) of Regulation No 1258/1999.

| — | Infringement of Article 2 of Regulation No 1258/1999, since the contested decision is applied in inappropriate circumstances, given that the irregularities assessed by the Commission are insufficient. |
| --- | --- |

—

Infringement of Article 2 of Regulation No 1258/1999, since the contested decision is applied in inappropriate circumstances, given that the irregularities assessed by the Commission are insufficient.

| — | Infringement of the provisions of Article 2 of that regulation, and of the Guidelines for the calculation of the financial consequences on preparing the Decision on the clearance of accounts of the EAGGF Guarantee Section. |
| --- | --- |

—

Infringement of the provisions of Article 2 of that regulation, and of the Guidelines for the calculation of the financial consequences on preparing the Decision on the clearance of accounts of the EAGGF Guarantee Section.

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(1)  Commission Regulation (EC) No 1663/95 of 7 July 1995 laying down detailed rules for the application of Council Regulation (EEC) No 729/70 regarding the procedure for the clearance of the accounts of the EAGGF Guarantee Section (OJ L 158, 8.7.1995, p. 6).

(2)  Regulation (EEC) No 729/70 of the Council of 21 April 1970 on the financing of the common agricultural policy (OJ L 94, 28.4.1970, p. 13).

(3)  Council Regulation (EC) No 1258/1999 of 17 May 1999 on the financing of the common agricultural policy (OJ L 160, 26.6.1999, p. 103).

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/41 |
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Appeal brought on 6 March 2008 by Luigi Marcuccio against the judgment of the Civil Service Tribunal delivered on 14 December 2007 in Case F-21/07, Marcuccio v Commission

(Case T-114/08 P)

(2008/C 107/69)

Language of the case: Italian

Parties

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

Other party to the proceedings: Commission of the European Communities

Form of order sought by the appellant

In any event:

| — | Annul the judgment under appeal fully and unconditionally; |
| --- | --- |

—

Annul the judgment under appeal fully and unconditionally;

| — | declare that the action at first instance was brought by the appellant intra dies; |
| --- | --- |

—

declare that the action at first instance was brought by the appellant intra dies;

| — | declare that the action at first instance was wholly admissible. |
| --- | --- |

—

declare that the action at first instance was wholly admissible.

Primarily:

| — | Grant the claims set out in the action at first instance fully and unconditionally; |
| --- | --- |

—

Grant the claims set out in the action at first instance fully and unconditionally;

| — | order the respondent to make reimbursement to the appellant of all the costs, disbursement and fees incurred by him in relation to both the proceedings at first instance and the instant appeal proceedings. |
| --- | --- |

—

order the respondent to make reimbursement to the appellant of all the costs, disbursement and fees incurred by him in relation to both the proceedings at first instance and the instant appeal proceedings.

In the alternative:

| — | Refer the case back to the Civil Service Tribunal, with a different composition, for a fresh decision. |
| --- | --- |

—

Refer the case back to the Civil Service Tribunal, with a different composition, for a fresh decision.

Pleas in law and main arguments

The appellant relies on the following grounds of appeal:

| 1. | Absolute failure to state reasons, given the failure to dispel the confusion between the concept of damage and the concept of the occurrence of an event giving rise to the kind of damage referred to in the second paragraph of Article 288 (formerly 215) EC. |
| --- | --- |

1.

Absolute failure to state reasons, given the failure to dispel the confusion between the concept of damage and the concept of the occurrence of an event giving rise to the kind of damage referred to in the second paragraph of Article 288 (formerly 215) EC.

| 2. | Infringement of Article 288 EC, the first paragraph of Article 46 of the Statue of the Court of Justice, Article 90 of the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’), the principles of legal certainty, the right to judicial protection and the right to a fair trial. |
| --- | --- |

2.

Infringement of Article 288 EC, the first paragraph of Article 46 of the Statue of the Court of Justice, Article 90 of the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’), the principles of legal certainty, the right to judicial protection and the right to a fair trial.

| 3. | Incorrect and unreasonable interpretation and application of the concept of starting date or dies a quo for the purpose of determining a reasonable period within which to bring an action under Article 288 EC. |
| --- | --- |

3.

Incorrect and unreasonable interpretation and application of the concept of starting date or dies a quo for the purpose of determining a reasonable period within which to bring an action under Article 288 EC.

| 4. | Absolute failure to state grounds by reason, inter alia, of a total failure to make preliminary inquiries, and infringement of Article 90 of the Staff Regulations and of the relevant general principles of law in the analysis of the date from which the limitation period for bringing an action under Article 288 EC begins to run. |
| --- | --- |

4.

Absolute failure to state grounds by reason, inter alia, of a total failure to make preliminary inquiries, and infringement of Article 90 of the Staff Regulations and of the relevant general principles of law in the analysis of the date from which the limitation period for bringing an action under Article 288 EC begins to run.

| 5. | Absolute failure to state grounds in relation to the appellant's alleged delay in bringing an action under Article 288 EC. |
| --- | --- |

5.

Absolute failure to state grounds in relation to the appellant's alleged delay in bringing an action under Article 288 EC.

| 6. | Infringement of Articles 235 and 288 EC relating to the jurisdiction of the Community court in actions for compensation for damage and unconsidered, arbitrary and illogical failure properly to apply the relevant case-law. |
| --- | --- |

6.

Infringement of Articles 235 and 288 EC relating to the jurisdiction of the Community court in actions for compensation for damage and unconsidered, arbitrary and illogical failure properly to apply the relevant case-law.

| 7. | Infringement of the standards for fair trials, with reference in particular to the standards laid down by the European Convention for the Protection of Human Rights and Fundamental Freedoms. |
| --- | --- |

7.

Infringement of the standards for fair trials, with reference in particular to the standards laid down by the European Convention for the Protection of Human Rights and Fundamental Freedoms.

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/42 |
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Action brought on 10 March 2008 — Gourmet Burger Kitchen v OHIM (GOURMET BURGER KITCHEN)

(Case T-115/08)

(2008/C 107/70)

Language in which the application was lodged: English

Parties

Applicant: Gourmet Burger Kitchen Ltd (London, United Kingdom) (represented by C. Sawdy, Solicitor)

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

Form of order sought

| — | Annul the Decision of the Second Board of Appeal of 5 December 2007 in case R 1215/2007-2; and |
| --- | --- |

—

Annul the Decision of the Second Board of Appeal of 5 December 2007 in case R 1215/2007-2; and

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

—

order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: A word mark consisting of the words GOURMET BURGER KITCHEN for various goods and services in classes 29, 30, 31, 32, 33 and 43 — application No 4 615 341

Decision of the examiner: Partial refusal of the application for services in class 43

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) and (c) of Council Regulation No 40/94 as the trade mark has acquired distinctiveness through use in the United Kingdom and Ireland.

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/42 |
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Action brought on 13 March 2008 — Actega Terra v OHIM (TERRAEFFEKT matt & gloss)

(Case T-118/08)

(2008/C 107/71)

Language in which the application was lodged: German

Parties

Applicant: Actega Terra GmbH (Lehrte, Germany) (represented by A. Andorfer-Erhard, lawyer)

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

Form of order sought

| — | Annul Decision R 1467/2007-1 of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 7 January 2008; |
| --- | --- |

—

Annul Decision R 1467/2007-1 of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 7 January 2008;

| — | Declare that Article 7(1)(b) and (c) of Regulation (EC) No 40/94 do not preclude registration of the Community trade mark applied for No 5 454 517, TERRAEFFEKT matt & gloss, for goods in Class 2 ‘Lacquer, in particular for the graphic industry; all goods previously mentioned not for use in the building industry’; |
| --- | --- |

—

Declare that Article 7(1)(b) and (c) of Regulation (EC) No 40/94 do not preclude registration of the Community trade mark applied for No 5 454 517, TERRAEFFEKT matt & gloss, for goods in Class 2 ‘Lacquer, in particular for the graphic industry; all goods previously mentioned not for use in the building industry’;

| — | In the alternative, limit the description of the goods in Community trade mark application No 5 454 517 as follows: |
| --- | --- |

—

In the alternative, limit the description of the goods in Community trade mark application No 5 454 517 as follows:

‘Class 2: Lacquer, in particular for the graphic industry, with the characteristic that when applied to an undercoat it produces either a matt or a glossy surface depending on the nature of the undercoat; all goods previously mentioned not for use in the building industry’

and to declare that to that extent Article 7(1)(b) and (c) of Regulation (EC) No 40/94 do not preclude the possibility of registering the trade mark applied for;

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

—

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

Pleas in law and main arguments

Community trade mark concerned: the word mark ‘TERRAEFFEKT matt & gloss’ for goods in Class 2 (Application No 5 454 517).

Decision of the Examiner: Reject the application.

Decision of the Board of Appeal: Dismiss the appeal.

Pleas in law: Infringement of Article 7 (1)(b) of Regulation (EC) No 40/94 (1) because the trade mark applied for displays the required distinctive character and is not exclusively descriptive.

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

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/43 |
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Order of the Court of First Instance (Fifth Chamber) of 6 March 2008 — Allos Walter Lang GmbH v Allos Walter Lang GmbH v OHIM — KOKORIKO (Coco Rico)

(Case T-126/07) (1)

(2008/C 107/72)

Language of the case: English

The President of the Court of First Instance (Fifth Chamber) has ordered that the case be removed from the register.

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(1)  OJ C 140, 23.6.2007.

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/43 |
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Order of the Court of First Instance of 27 February 2008 — Air One SpA v Commission of the European Communities

(Case T-266/07) (1)

(2008/C 107/73)

Language of the case: Italian

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

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(1)  OJ C 211, 8.9.2007.

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Order of the Court of First Instance of 3 March 2008 — Kingdom of the Netherlands v Commission of the European Communities

(Case T-309/07) (1)

(2008/C 107/74)

Language of the case: Dutch

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

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(1)  OJ C 235, 6.10.2007.

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Order of the Court of First Instance of 3 March 2008 — National Association of Licensed Opencast Operators v Commission

(Case T-318/07) (1)

(2008/C 107/75)

Language of the case: English

The President of the Court of First Instance (Sixth Chamber) has ordered that the case be removed from the register.

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(1)  OJ C 247, 20.10.2007.

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European Union Civil Service Tribunal

| 26.4.2008 | EN | Official Journal of the European Union | C 107/44 |
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Action brought on 24 December 2007 — Iordanova v Commission

(Case F-53/07)

(2008/C 107/76)

Language of the case: English

Parties

Applicant: Ivanka Iordanova (Varna, Bulgaria) (represented by: G. Kerelov, lawyer)

Defendant: Commission of the European Communities

Subject-matter and description of the proceedings

Annulment of the decision of the selection board in competition EPSO/AST/14/06 of 3 April 2007 refusing to admit the applicant to that competition and damages for material and non-material loss.

Form of order sought

| — | Annul the decision of the selection board in competition EPSO/AST/14/06 of 3 April 2007 refusing to admit the applicant to that competition; |
| --- | --- |

—

Annul the decision of the selection board in competition EPSO/AST/14/06 of 3 April 2007 refusing to admit the applicant to that competition;

| — | Order the defendant to pay to the applicant damages fixed in accordance with the principles of equity at EUR 28 718 for the material and non-material loss suffered as a result of the unlawful decision of the selection board, plus interest from the date of lodging the application; |
| --- | --- |

—

Order the defendant to pay to the applicant damages fixed in accordance with the principles of equity at EUR 28 718 for the material and non-material loss suffered as a result of the unlawful decision of the selection board, plus interest from the date of lodging the application;

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

—

Order the Commission of the European Communities to pay the costs.

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/44 |
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Action brought on 30 November 2007 — Strack v Commission

(Case F-132/07)

(2008/C 107/77)

Language of the case: German

Parties

Applicant: Guido Strack (Cologne, Germany) (represented by: H. Tettenborn, lawyer)

Defendant: Commission of the European Communities

The subject-matter and description of the proceedings

Annulment of the Commission's decision of 23 July 2007 together with the implied decisions of 9 August 2007 and 11 September 2007 supplementary thereto and the decision of 9 November 2007 in so far as they reject the applicant's requests of 9 April 2007, 11 May 2007 and 11 October 2007 for authorisation to (i) publish documents (in the light of all legal considerations, in particular Articles 17, 17a, 19 and 24 of the Staff Regulations and any copyright and data protection provisions) and (ii) report (ex-)Commissioners and Commission officials to the prosecuting authorities; and damages in the sum of at least EUR 10 000.

Form of order sought

| — | Annul the Commission's decision of 23 July 2007 together with the implied decisions of 9 August 2007 and 11 September 2007 supplementary thereto and the decision of 9 November 2007 in so far as they reject the applicant's requests of 9 April 2007, 11 May 2007 and 11 October 2007 for authorisation to (i) publish documents (in the light of all legal considerations, in particular Articles 17, 17a, 19 and 24 of the Staff Regulations and any copyright and data protection provisions) and (ii) report (ex-)Commissioners and Commission officials to the prosecuting authorities; |
| --- | --- |

—

Annul the Commission's decision of 23 July 2007 together with the implied decisions of 9 August 2007 and 11 September 2007 supplementary thereto and the decision of 9 November 2007 in so far as they reject the applicant's requests of 9 April 2007, 11 May 2007 and 11 October 2007 for authorisation to (i) publish documents (in the light of all legal considerations, in particular Articles 17, 17a, 19 and 24 of the Staff Regulations and any copyright and data protection provisions) and (ii) report (ex-)Commissioners and Commission officials to the prosecuting authorities;

| — | order the defendant to pay the applicant damages in the sum of at least EUR 10 000 for the non-material damage and damage to health caused to the applicant by the decisions which are to be annulled; |
| --- | --- |

—

order the defendant to pay the applicant damages in the sum of at least EUR 10 000 for the non-material damage and damage to health caused to the applicant by the decisions which are to be annulled;

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

—

order the European Commission to pay the costs.

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| 26.4.2008 | EN | Official Journal of the European Union | C 107/44 |
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Action brought on 26 February 2008 — Bennet and Others v OHIM

(Case F-19/08)

(2008/C 107/78)

Language of the case: French

Parties

Applicants: Kelly-Marie Bennet (Mutxamel, Spain) and Others (represented by: G. Vandersanden, lawyer)

Defendant: Office for Harmonisation in the Internal Market (OHIM)

Subject-matter and description of the proceedings

First, annulment of the notices of open competitions OHIM/AD/02/07 and OHIM/AST/02/07, in so far as those notices have the effect of taking away from the applicants any possibility of their names appearing on the reserve list, the applicants being obliged to participate as a result of the termination clause unlawfully inserted to that end in their contracts for an indefinite period. Second, damages for the non-material loss suffered by the applicants.

Form of order sought

| — | Annul the notices of open competitions OHIM/AD/02/07 and OHIM/AST/02/07; |
| --- | --- |

—

Annul the notices of open competitions OHIM/AD/02/07 and OHIM/AST/02/07;

| — | Order the defendant to make good the non-material loss suffered by the applicants, assessed on a equitable basis and subject to a minimum of EUR 25 000 per applicant; |
| --- | --- |

—

Order the defendant to make good the non-material loss suffered by the applicants, assessed on a equitable basis and subject to a minimum of EUR 25 000 per applicant;

| — | Order the Office for Harmonisation in the Internal Market to pay the costs. |
| --- | --- |

—

Order the Office for Harmonisation in the Internal Market to pay the costs.

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