# Official Journal C 113/2009

| | ISSN 1725-2423
  doi:10.3000/17252423.C_2009.113.eng |
| --- | --- |
| Official Journal
  of the European Union | C 113 |
| | |
| English edition | Information and Notices | Volume 5216 May 2009 |

ISSN 1725-2423

doi:10.3000/17252423.C_2009.113.eng

Official Journal

of the European Union

C 113

English edition

Information and Notices

Volume 5216 May 2009

---

| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES |
| | Court of Justice |
| 2009/C 113/01 | Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 102, 1.5.2009 | 1 |

Notice No

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Court of Justice

2009/C 113/01

Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 102, 1.5.2009

Official Journal of the European Union

1

| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2009/C 113/02 | Case C-345/06: Judgment of the Court (Grand Chamber) of 10 March 2009 (reference for a preliminary ruling from the Unabhängiger Verwaltungssenat im Land Niederösterreich — Austria) — Gottfried Heinrich (Article 254(2) EC — Regulation (EC) No 1049/2001 — Article 2(3) — Regulation (EC) No 622/2003 — Aviation security — Annex — List of articles prohibited on board aircraft — Not published — Binding force) | 2 |
| 2009/C 113/03 | Case C-445/06: Judgment of the Court (Grand Chamber) of 24 March 2009 (reference for a preliminary ruling from the Bundesgerichtshof (Germany)) — Danske Slagterier v Bundesrepublik Deutschland (Measures having equivalent effect — Animal health — Intra-Community trade — Fresh meat — Veterinary checks — Non-contractual liability of a Member State — Limitation period — Determination of the loss or damage) | 2 |
| 2009/C 113/04 | Case C-489/06: Judgment of the Court (Fourth Chamber) of 19 March 2009 — Commission of the European Communities v Hellenic Republic (Failure of a Member State to fulfil obligations — Directives 93/36/EEC and 93/42/EEC — Public contracts — Procedures for the award of public supply contracts — Hospital supplies) | 3 |
| 2009/C 113/05 | Case C-510/06 P: Judgment of the Court (First Chamber) of 19 March 2009 — Archer Daniels Midland Co. v Commission of the European Communities (Appeal — Competition — Agreements, decisions and concerted practices — Sodium gluconate market — Fines — Guidelines on the method of setting fines — Community competition policy — Equal treatment — Turnover to be taken into account — Attenuating circumstances) | 3 |
| 2009/C 113/06 | Case C-113/07 P: Judgment of the Court (Second Chamber) of 26 March 2009 — Selex Sistemi Integrati SpA. v Commission of the European Communities, European Organisation for the Safety of Air Navigation (Eurocontrol) (Appeals — Competition — Article 82 EC — Concept of an undertaking — Economic activity — International organisation — Abuse of a dominant position) | 4 |
| 2009/C 113/07 | Case C-169/07: Judgment of the Court (Grand Chamber) of 10 March 2009 (reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria)) — Hartlauer Handelsgesellschaft mbH v Wiener Landesregierung, Oberösterreichische Landesregierung (Freedom of establishment — Social security — National health system financed by the State — System of benefits in kind — System of reimbursement of costs paid by the person insured — Authorisation to set up a private outpatient dental clinic — Criterion of assessment of the need to set up a health institution — Objective of maintaining a balanced high-quality medical or hospital service open to all — Objective of preventing a risk of serious harm to the financial balance of the social security system — Consistency — Proportionality) | 4 |
| 2009/C 113/08 | Case C-256/07: Judgment of the Court (Second Chamber) of 19 March 2009 (reference for a preliminary ruling from the Finanzgericht Düsseldorf (Germany)) — Mitsui & Co. Deutschland GmbH v Hauptzollamt Düsseldorf (Community Customs Code — Repayment of customs duties — Article 29(1) and (3)(a) — Value for customs purposes — Regulation (EEC) No 2454/93 — Article 145(2) and (3) — Taking into account, for customs valuation purposes, of payments made by the seller in performance of a warranty obligation provided for in the contract of sale — Temporal application — Substantive rules — Procedural rules — Retroactive application of a rule — Validity) | 5 |
| 2009/C 113/09 | Case C-270/07: Judgment of the Court (First Chamber) of 19 March 2009 — Commission of the European Communities v Federal Republic of Germany (Failure of a Member State to fulfil obligations — Common agricultural policy — Fees relating to veterinary inspections and controls — Directive 85/73/EEC — Regulation (EC) No 882/2004) | 5 |
| 2009/C 113/10 | Case C-275/07: Judgment of the Court (First Chamber) of 19 March 2009 — Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — External Community transit — TIR Carnets — Customs duties — Own resources of the Communities — Making available — Time-limits — Default interest — Accounting rules) | 6 |
| 2009/C 113/11 | Case C-309/07: Judgment of the Court (First Chamber) of 19 March 2009 (reference for a preliminary ruling from the Hessischer Verwaltungsgerichtshof (Germany)) — Firma Baumann GmbH v Land Hessen (Common agricultural policy — Fees concerning veterinary inspections and controls — Directive 85/73/EEC) | 6 |
| 2009/C 113/12 | Case C-320/07 P: Judgment of the Court (First Chamber) of 12 March 2009 — Antartica Srl v Office for Harmonisation in the Internal Market (Trade Marks and Designs), The Nasdaq Stock Market Inc. (Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 8(5) — Refusal to register — Earlier trade mark of repute NASDAQ — Figurative sign nasdaq — Use of the earlier mark for goods and services allegedly offered free of charge — Taking unfair advantage of the distinctive character or the repute of the earlier mark — Relevant public) | 7 |
| 2009/C 113/13 | Case C-326/07: Judgment of the Court (Third Chamber) of 26 March 2009 — Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Articles 43 EC and 56 EC — Articles of association of privatised undertakings — Criteria for the exercise of certain special powers held by the State) | 7 |
| 2009/C 113/14 | Case C-348/07: Judgment of the Court (First Chamber) of 26 March 2009 (reference for a preliminary ruling from the Landgericht Hamburg (Germany)) — Turgay Semen v Deutsche Tamoil GmbH (Directive 86/653/EEC — Article 17 — Self-employed commercial agents — Termination of a contract — Right to an indemnity — Determining the amount of the indemnity) | 8 |
| 2009/C 113/15 | Case C-458/07: Judgment of the Court (Fourth Chamber) of 12 March 2009 — Commission of the European Communities v Portuguese Republic (Failure of Member State to fulfil obligations — Telecommunications — Directive 2002/22/EC — Universal service — Obligation to make available to end-users a comprehensive directory and telephone directory enquiry service) | 8 |
| 2009/C 113/16 | Case C-559/07: Judgment of the Court (Third Chamber) of 26 March 2009 — Commission of the European Communities v Hellenic Republic (Failure of a Member State to fulfil obligations — Social policy — Article 141 EC — Equal pay for male and female workers — National civil and military pension regime — Different treatment with regard to retirement age and minimum required service — Justification — Absence) | 9 |
| 2009/C 113/17 | Case C-10/08: Judgment of the Court (First Chamber) of 19 March 2009 — Commission of the European Communities v Republic of Finland (Taxation in Finland of second-hand vehicles imported from other Member States — Compatibility of national legislation with the first paragraph of Article 90 EC, the Sixth VAT Directive and Directive 2006/112/EC) | 9 |
| 2009/C 113/18 | Case C-21/08 P: Judgment of the Court (Second Chamber) of 26 March 2009 — Sunplus Technology Co. Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Sun Microsystems Inc. (Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 8(1)(b) — Word and figurative mark SUNPLUS — Opposition by the proprietor of the national word marks SUN — Refusal of registration) | 10 |
| 2009/C 113/19 | Case C-77/08: Judgment of the Court (Fourth Chamber) of 19 March 2009 (reference for a preliminary ruling from the Unabhängiger Finanzsenat, Außenstelle Graz — Austria) — Dachsberger & Söhne GmbH v Zollamt Salzburg, Erstattungen (Export refund — Differentiated refund — Time of the submission of the request — Export declaration — No proof of clearance for release for consumption in the destination country — Penalty) | 10 |
| 2009/C 113/20 | Case C-143/08: Judgment of the Court (Eighth Chamber) of 19 March 2009 — Commission of the European Communities v Republic of Poland (Failure of a Member State to fulfil obligations — Directive 2006/73/EC — Failure to transpose within the period prescribed) | 11 |
| 2009/C 113/21 | Case C-184/08: Judgment of the Court (Eighth Chamber) of 24 March 2009 — Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil its obligations — Regulation (EC) No 648/2004 — Article 18 — Market for detergents and for surfactants for detergents — Sanctions) | 11 |
| 2009/C 113/22 | Case C-245/08: Judgment of the Court (Eighth Chamber) of 19 March 2009 — Commission of the European Communities v Portuguese Republic (Failure of a Member State to fulfil its obligations — Free movement of persons — Freedom to provide services — Right of establishment — Adjustments consequent on the accession of the Republic of Bulgaria and Romania) | 12 |
| 2009/C 113/23 | Case C-289/08: Judgment of the Court (Fifth Chamber) of 12 March 2009 — Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil its obligations — Directive 96/82/EC — Article 11(1)(c) — External emergency plans — Failure to transpose within the period prescribed) | 12 |
| 2009/C 113/24 | Case C-298/08: Judgment of the Court (Eighth Chamber) of 12 March 2009 — Commission of the European Communities v Hellenic Republic (Failure of a Member State to fulfil obligations — Directive 2006/22/EC — Approximation of laws — Social legislation relating to road transport activities — Failure to transpose within the period prescribed) | 12 |
| 2009/C 113/25 | Case C-331/08: Judgment of the Court (Fifth Chamber) of 24 March 2009 — Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Environmental liability — Directive 2004/35/EC — Prevention and remedying of environmental damage) | 13 |
| 2009/C 113/26 | Case C-342/08: Judgment of the Court (Sixth Chamber) of 12 March 2009 — Commission of the European Communities v Kingdom of Belgium (Failure of a Member State to fulfil obligations — Directive 96/82/EC — Article 11(1)(c) — Failure to draw up external emergency plans — Incomplete transposition) | 13 |
| 2009/C 113/27 | Case C-402/08: Judgment of the Court (Seventh Chamber) of 12 March 2009 — Commission of the European Communities v Republic of Slovenia (Failure of a Member State to fulfil obligations — Directive 2004/35/EC — Environmental liability with regard to the prevention and remedying of environmental damage — Failure to transpose within the period prescribed) | 13 |
| 2009/C 113/28 | Case C-557/07: Order of the Court (Eighth Chamber) of 19 February 2009 (reference for a preliminary ruling from the Oberster Gerichtshof (Austria)) — LSG-Gesellschaft zur Wahrnehmung von Leistungsschutzrechten GmbH v Tele2 Telecommunication GmbH (Article 104(3) of the Rules of Procedure — Information society — Copyright and related right — Retention and disclosure of certain traffic data — Protecting the confidentiality of electronic communication — Intermediaries within the meaning of Article 8(3) of Directive 2001/29/EC) | 14 |
| 2009/C 113/29 | Case C-17/08 P: Order of the Court (Eighth Chamber) of 6 February 2009 — MPDV Mikrolab GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 7(1)(c) — Refusal of registration — Word mark manufacturing score card — Descriptive character) | 15 |
| 2009/C 113/30 | Joined Cases C-39/08 and C-43/08: Order of the Court of 12 February 2009 (reference for a preliminary ruling from the Bundespatentgericht (Germany)) — Bild digital GmbH & Co. KG, formerly Bild.T-Online.de AG & Co. KG (C-39/08), ZVS Zeitungsvertrieb Stuttgart GmbH (C-43/08) v Präsident des Deutschen Patent- und Markenamts (First subparagraph of Article 103(3) of the Rules of Procedure — Directive 89/104/EEC — Applications for registration of trade marks — Examination on a case-by-case basis — Failure to take account of earlier decisions — Manifest inadmissibility) | 15 |
| 2009/C 113/31 | Case C-62/08: Order of the Court (Second Chamber) of 19 February 2009 (reference for a preliminary ruling from the Hof van Cassatie van België — Belgium) — UDV North America Inc v Brandtraders NV (Article 104(3), second subparagraph, of the Rules of Procedure — Community trade mark — Regulation (EC) No 40/94 — Article 9(1)(a) and (2)(d) — Right of the proprietor of a registered mark to prevent the use by a third party of a sign which is identical to the mark — Concept of use — Use of a sign which is identical to the mark by a trade intermediary in its business papers — Intermediary acting in its own name but on behalf of a vendor) | 16 |
| 2009/C 113/32 | Case C-119/08: Order of the Court of 5 February 2009 (reference for a preliminary ruling from the Lietuvos vyriausiasis administracinis teismas) — Mechel Nemunas UAB v Valstybinė mokesčių inspekcija prie Lietuvos respublikos finansų ministerijos (First subparagraph of Article 104(3) of the Rules of Procedure — First VAT Directive — Sixth VAT Directive — Article 33(1) — Concept of turnover taxes — Tax calculated on the basis of an undertaking’s turnover to finance the maintenance and development programme for national roads) | 16 |
| 2009/C 113/33 | Case C-131/08: Order of the Court (Fifth Chamber) of 30 January 2009 — Dorel Juvenile Group, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 7(1)(b) — Application for word mark SAFETY 1ST — Lack of distinctive character — Refusal of registration) | 17 |
| 2009/C 113/34 | Case C-183/08 P: Order of the Court of 5 March 2009 — Commission of the European Communities v Provincia di Imperia (Appeal — Article 119 of the Rules of Procedure — Conditions governing the admissibility of an action for annulment — Interest in bringing an action — Call for proposals regarding the financing of innovative actions under the European Social Fund — Dismissal — Benefit for the applicant arising from a possible annulment of the contested act) | 17 |
| 2009/C 113/35 | Case C-210/08 P: Order of the Court (Fifth Chamber) of 20 January 2009 — Sebirán S.L. v Office for Harmonisation in the Internal Market (Trade Marks and Designs), El Coto de Rioja S.A. (Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 8(1)(b) — Likelihood of confusion — Figurative mark Coto D’Arcis — Opposition by the proprietor of word marks COTO DE IMAZ and EL COTO — Partial refusal to register) | 18 |
| 2009/C 113/36 | Case C-231/08 P: Order of the Court of 3 February 2009 — Massimo Giannini v Commission of the European Communities (Appeal — Community civil service — Right to a fair hearing — Infringement of Articles 4, 27 and 29 of the Staff Regulations — Principle of non-discrimination — Interest of the service and duty of care — Distortion of the evidence and rules on evidence — Appeal manifestly inadmissible in part and manifestly unfounded in part) | 18 |
| 2009/C 113/37 | Case C-268/08 P: Order of the Court of 3 March 2009 — Christos Michail v Commission of the European Communities (Appeal — Staff case — Articles 12a and 24 of the Staff Regulations — Psychological harassment — Duty to provide assistance — Distortion of facts — Errors in the legal assessment of the facts) | 19 |
| 2009/C 113/38 | Case C-497/08: Reference for a preliminary ruling from the Amtsgericht Charlottenburg (Germany) lodged on 17 November 2008 — Amiraike Berlin GmbH Aero and Campus Cottbus Ltd. | 19 |
| 2009/C 113/39 | Case C-58/09: Reference for a preliminary ruling from the Bundesfinanzhof (Germany), lodged on 11 February 2009 — Leo-Libera GmbH v Finanzamt Buchholz in der Nordheide | 19 |
| 2009/C 113/40 | Case C-61/09: Reference for a preliminary ruling from the Oberverwaltungsgericht Rheinland-Pfalz (Germany) lodged on 11 February 2009 — Landkreis Bad Dürkheim v Aufsichts- und Dienstleistungsdirektion, interested party: Frau Astrid Niedermair-Schiemann | 20 |
| 2009/C 113/41 | Case C-71/09 P: Appeal brought on 17 February 2009 by the Comitato Venezia vuole vivere against the judgment delivered on 28 November 2008 in Joined Cases T-254/00, T-270/00 and T-277/00 Hotel Cipriani SpA and Others v Commission | 20 |
| 2009/C 113/42 | Case C-73/09 P: Appeal brought on 16 February 2009 by Hotel Cipriani SpA against the judgment delivered on 28 November 2008 in Joined Cases T-254/00, T-270/00 and T-277/00 Hotel Cipriani SpA and Others v Commission | 21 |
| 2009/C 113/43 | Case C-76/09 P: Appeal brought on 19 February 2009 by Società Italiana per il gas SpA (Italgas) against the judgment delivered on 28 November 2008 in Joined Cases T-254/00, T-270/00 and T-277/00 Hotel Cipriani and Others v Commission | 22 |
| 2009/C 113/44 | Case C-88/09: Reference for a preliminary ruling from the Conseil d'État (France) lodged on 2 March 2009 — Graphic Procédé v Ministère du budget, des comptes publics et de la fonction publique | 23 |
| 2009/C 113/45 | Case C-89/09: Action brought on 2 March 2009 — Commission of the European Communities v French Republic | 23 |
| 2009/C 113/46 | Case C-93/09: Reference for a preliminary ruling from the Verwaltungsgericht Wiesbaden (Germany) lodged on 6 March 2009 — Hartmut Eifert v Land Hessen, interested party: Bundesanstalt für Landwirtschaft und Ernährung | 24 |
| 2009/C 113/47 | Case C-94/09: Action brought on 6 March 2009 — Commission of the European Communities v French Republic | 25 |
| 2009/C 113/48 | Case C-95/09: Action brought on 6 March 2009 — Commission of the European Communities v Ireland | 25 |
| 2009/C 113/49 | Case C-96/09 P: Appeal brought on 10 March 2009 by Anheuser-Busch, Inc. against the judgment of the Court of First Instance (First Chamber) delivered on 16 December 2008 in Joined Cases T-225/06, T-255/06, T-257/06 and T-309/06: Budějovický Budvar, národní podnik v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Anheuser-Busch, Inc | 26 |
| 2009/C 113/50 | Case C-100/09: Action brought on 11 March 2009 — Commission of the European Communities v Czech Republic | 27 |
| 2009/C 113/51 | Case C-114/09: Action brought on 25 March 2009 — Commission of the European Communities v Kingdom of Spain | 28 |
| 2009/C 113/52 | Case C-408/07: Order of the President of the Grand Chamber of the Court of 2 February 2009 (reference for a preliminary ruling from the Landgericht Frankfurt am Main — Germany) — Brigitte Ruf, née Elsässer, Gertrud Elsässer, née Sommer v European Central Bank (ECB), Coop Himmelblau Prix, Dreibholz & Partner ZT GmbH; intervener: the City of Frankfurt am Main | 28 |
| 2009/C 113/53 | Case C-92/08: Order of the President of the Court of 19 February 2009 — Commission of the European Communities v Kingdom of Belgium | 28 |
| 2009/C 113/54 | Case C-98/08: Order of the President of the Fourth Chamber of the Court of 21 January 2009 (reference for a preliminary ruling from the Juzgado de lo Mercantil de Madrid — Spain) — Asociación de Gestión de Derechos Intelectuales (AGEDI), Asociación de Artistas Intérpretes o Ejecutantes — Sociedad de Gestión de España (AIE) v Sogecable, SA, Canal Satélite Digital SL | 28 |
| 2009/C 113/55 | Case C-257/08: Order of the President of the Court of 20 January 2009 — Commission of the European Communities v Italian Republic | 28 |
| 2009/C 113/56 | Case C-291/08: Order of the President of the Court of 30 January 2009 — Commission of the European Communities v Republic of Austria | 29 |
| 2009/C 113/57 | Case C-329/08: Order of the President of the Court of 6 March 2009 — Commission of the European Communities v Kingdom of Belgium | 29 |
| 2009/C 113/58 | Case C-332/08: Order of the President of the Court of 19 February 2009 — Commission of the European Communities v French Republic | 29 |
| 2009/C 113/59 | Case C-354/08: Order of the President of the Court of 26 February 2009 — Commission of the European Communities v French Republic | 29 |
| | Court of First Instance |
| 2009/C 113/60 | Case T-385/04: Judgment of the Court of First Instance of 1 April 2009 — Valero Jordana v Commission (Staff case — Officials — Action for annulment — Action for Damages — Promotion — Award of priority points) | 30 |
| 2009/C 113/61 | Case T-299/05: Judgment of the Court of First Instance of 18 March 2009 — Shanghai Excell M&E Enterprise and Shanghai Adeptech Precision v Council (Dumping — Imports of certain electronic weighing scales originating in China — Market economy status — Article 2(7)(a) and (c), Article 2(10), and Article 11(9) of Regulation (EC) No 384/96) | 30 |
| 2009/C 113/62 | Case T-354/05: Judgment of the Court of First Instance of 11 March 2009 — TF1 v Commission (State aid — Financing of France Télévisions by the audiovisual licence fee — Constant review of existing aid — Recommendation for the adoption of appropriate measures — Member State’s commitments accepted by the Commission — Decision declaring the aid compatible with the common market — Action for annulment — Period allowed for commencing proceedings — Nature of the contested measure — Interest in bringing proceedings — Admissibility — Rights of the defence — Obligation to state the reasons on which the decision is based — Altmark judgment) | 31 |
| 2009/C 113/63 | Case T-171/06: Judgment of the Court of First Instance of 17 March 2009 — Laytoncrest v OHIM — Erico (TRENTON) (Community trade mark — Opposition proceedings — Application for the Community word mark TRENTON — Earlier Community word mark LENTON — Right to be heard — Article 73 of Regulation (EC) No 40/94 and Rule 54 of Regulation (EC) No 2868/95 — No withdrawal of the trade mark application — Article 44(1) of Regulation No 40/94 — Obligation to rule on the basis of the available evidence — Rule 20(3) and Rule 50(1) of Regulation No 2868/95) | 31 |
| 2009/C 113/64 | Joined Cases T-318/06 to T-321/06: Judgment of the Court of First Instance of 24 March 2009 — Moreira da Fonseca v OHIM — General Óptica (GENERAL OPTICA) (Community trade mark — Invalidity proceedings — Multi-coloured Community figurative marks GENERAL OPTICA — Earlier business name Generalóptica — Relative ground for refusal — Local significance of the earlier sign — Articles 8(4) and 52(1)(c) of Regulation (EC) No 40/94) | 32 |
| 2009/C 113/65 | Case T-332/06: Judgment of the Court of First Instance of 25 March 2009 — Alcoa Trasformazioni v Commission (State aid — Electricity — Preferential tariff — Decision initiating the procedure under Article 88(2) EC — Admissibility — Notion of State aid — New aid or existing aid — Advantage — Statement of reasons — Legitimate expectations — Legal certainty) | 32 |
| 2009/C 113/66 | Case T-405/06: Judgment of the Court of First Instance of 31 March 2009 — ArcelorMittal Luxembourg and Others v Commission (Competition — Agreements, decisions and concerted practices — Community market in beams — Decision establishing an infringement of Article 65 CS, after expiry of the ECSC Treaty on the basis of Regulation (EC) No 1/2003 — Competence of the Commission — Liability for the infringement — Limitation — Rights of the defence) | 33 |
| 2009/C 113/67 | Case T-21/07: Judgment of the Court of First Instance of 25 March 2009 — L’Oréal v OHIM — Spa Monopole (SPALINE) (Community trade mark — Opposition proceedings — Application for the Community word mark SPALINE — Earlier national word mark SPA — Relative ground for refusal — Damage to reputation — Unfair advantage derived from the reputation of the earlier mark — Use of the mark applied for without due cause — Article 8(5) of Regulation (EC) No 40/94) | 33 |
| 2009/C 113/68 | Case T-109/07: Judgment of the Court of First Instance of 25 March 2009 — L’Oréal v OHIM — Spa Monopole (SPA THERAPY) (Community trade mark — Opposition proceedings — Application for the Community word mark SPA THERAPY — Earlier national word mark SPA — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94) | 33 |
| 2009/C 113/69 | Case T-191/07: Judgment of the Court of First Instance of 25 March 2009 — Anheuser-Busch v OHIM — Budějovický Budvar (BUDWEISER) (Community trade mark — Opposition proceedings — Application for Community word mark BUDWEISER — Earlier international word and figurative marks BUDWEISER and Budweiser Budvar — Relative grounds for refusal — Article 8(1)(a) and (b) of Regulation (EC) No 40/94 — Genuine use of the earlier trade mark — Article 43(2) and (3) of Regulation No 40/94 — Infringement of rights of defence — Statement of reasons — Article 73 of Regulation No 40/94 — Late submission of documents — Discretion granted by Article 74(2) of Regulation No 40/94) | 34 |
| 2009/C 113/70 | Case T-343/07: Judgment of the Court of First Instance of 25 March 2009 — allsafe Jungfalk v OHIM (ALLSAFE) (Community trade mark — Application for the Community word mark ALLSAFE — Absolute grounds for refusal of registration — Absence of distinctive character — Descriptive character — Article 7(1)(b) and (c) of Regulation (EC) No 40/94) | 34 |
| 2009/C 113/71 | Case T-402/07: Judgment of the Court of First Instance of 25 March 2009 — Kaul v OHIM — Bayer (ARCOL) (Community trade mark — Opposition proceedings — Application for the Community word mark ARCOL — Earlier Community word mark CAPOL — Implementation by OHIM of a judgment annulling a decision of one of its Boards of Appeal — Relative ground for refusal — No likelihood of confusion — Rights of the defence — Article 8(1)(b), Article 61(2), Article 63(6), Article 73, second sentence, and Article 74(2) of Regulation (EC) No 40/94) | 35 |
| 2009/C 113/72 | Order of the Court of First Instance of 19 March 2009 — Telecom Italia Media v Commission Case T-96/07 (State aid — Subsidies for the purchase of digital decoders — Telecommunications — Commission decision finding aid to be incompatible with the common market — Decision of the Member State, adopted during the proceedings, not to recover the aid from the undertaking which brought the action for annulment against the Commission decision — No longer any legal interest in bringing proceedings — No need to adjudicate) | 35 |
| 2009/C 113/73 | Case T-59/09: Action brought on 11 February 2009 — Germany v Commission | 35 |
| 2009/C 113/74 | Case T-71/09: Action brought on 20 February 2009 — Química Atlântica v Commission | 36 |
| 2009/C 113/75 | Case T-79/09: Action brought on 20 February 2009 — France v Commission | 37 |
| 2009/C 113/76 | Case T-86/09: Action brought on 19 February 2009 — Evropaïki Dynamiki v Commission | 38 |
| 2009/C 113/77 | Case T-87/09: Action brought on 25 February 2009 — Gråhundbus v/Jørgen Andersen v Commission | 38 |
| 2009/C 113/78 | Case T-92/09: Action brought on 2 March 2009 — Strategi Group v OHIM — Reed Business Information (STRATEGI) | 39 |
| 2009/C 113/79 | Case T-103/09: Action brought on 11 March 2009 — von Oppeln-Bronikowski and von Oppeln-Bronikowski v OHIM — Pomodoro Clothing (promodoro) | 39 |
| 2009/C 113/80 | Case T-106/09: Action brought on 13 March 2009 — adp Gauselmann v OHIM — Maclean (Archer Maclean’s Mercury) | 40 |
| 2009/C 113/81 | Case T-107/09: Action brought on 12 March 2009 — United Kingdom v Commission | 40 |
| 2009/C 113/82 | Case T-109/09: Action brought on 17 March 2009 — Rintisch v OHIM — Valfeuri Pates Alimentaires (PROTIVITAL) | 41 |
| 2009/C 113/83 | Case T-112/09: Action brought on 19 March 2009 — Icebreaker v OHIM — Gilmar (ICEBREAKER) | 41 |
| 2009/C 113/84 | Case T-115/09: Action brought on 24 March 2009 — Electrolux v Commission | 42 |
| 2009/C 113/85 | Case T-116/09: Action brought on 24 March 2009 — Whirlpool Europe v Commission | 42 |
| 2009/C 113/86 | Case T-119/09: Action brought on 23 March 2009 — Protege International v Commission | 43 |
| 2009/C 113/87 | Case T-121/09: Action brought on 27 March 2009 — Al Shanfari v Council and Commission | 43 |
| 2009/C 113/88 | Case T-273/07: Order of the Court of First Instance of 13 March 2009 — Torres v OHIM — Vinícola de Tomelloso (TORREGAZATE) | 44 |
| 2009/C 113/89 | Case T-349/07 and T-350/07: Order of the Court of First Instance of 19 March 2009 — FMC Chemical and Others v Commission | 44 |
| 2009/C 113/90 | Case T-342/08: Order of the Court of First Instance (Seventh Chamber) of 11 March 2009 — Batchelor v Commission | 44 |
| 2009/C 113/91 | Case T-378/08: Order of the Court of First Instance of 5 March 2009 — Portugal v Commission | 44 |
| 2009/C 113/92 | Case T-457/08: Order of the Court of First Instance of 24 March 2009 — Intel v Commission | 44 |
| | European Union Civil Service Tribunal |
| 2009/C 113/93 | Case F-5/09: Action brought on 26 January 2009 — Soerensen Ferraresi v Commission | 45 |
| 2009/C 113/94 | Case F-12/09: Action brought on 18 February 2009 — A v Commission | 45 |
| 2009/C 113/95 | Case F-17/09: Action brought on 27 February 2009 — Meister v OHIM | 46 |
| 2009/C 113/96 | Case F-18/09: Action brought on 2 March 2009 — Merhzaoui v Council | 46 |
| 2009/C 113/97 | Case F-19/09: Action brought on 6 March 2009 — Lopez Sanchez v Council | 46 |
| 2009/C 113/98 | Case F-20/09: Action brought on 9 March 2009 — Juvyns v Council | 46 |
| 2009/C 113/99 | Case F-21/09: Action brought on 9 March 2009 — De Benedetti-Dagnoni v Council | 47 |
| 2009/C 113/00 | Case F-22/09: Action brought on 9 March 2009 — Marie-Hélène Willigens v Council | 47 |
| 2009/C 113/01 | Case F-24/09: Action brought on 16 March 2009 — Wagner-Leclercq v Council | 47 |
| 2009/C 113/02 | Case F-25/09: Action brought on 16 March 2009 — Van Neyghem v Council | 48 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2009/C 113/02

Case C-345/06: Judgment of the Court (Grand Chamber) of 10 March 2009 (reference for a preliminary ruling from the Unabhängiger Verwaltungssenat im Land Niederösterreich — Austria) — Gottfried Heinrich (Article 254(2) EC — Regulation (EC) No 1049/2001 — Article 2(3) — Regulation (EC) No 622/2003 — Aviation security — Annex — List of articles prohibited on board aircraft — Not published — Binding force)

2

2009/C 113/03

Case C-445/06: Judgment of the Court (Grand Chamber) of 24 March 2009 (reference for a preliminary ruling from the Bundesgerichtshof (Germany)) — Danske Slagterier v Bundesrepublik Deutschland (Measures having equivalent effect — Animal health — Intra-Community trade — Fresh meat — Veterinary checks — Non-contractual liability of a Member State — Limitation period — Determination of the loss or damage)

2

2009/C 113/04

Case C-489/06: Judgment of the Court (Fourth Chamber) of 19 March 2009 — Commission of the European Communities v Hellenic Republic (Failure of a Member State to fulfil obligations — Directives 93/36/EEC and 93/42/EEC — Public contracts — Procedures for the award of public supply contracts — Hospital supplies)

3

2009/C 113/05

Case C-510/06 P: Judgment of the Court (First Chamber) of 19 March 2009 — Archer Daniels Midland Co. v Commission of the European Communities (Appeal — Competition — Agreements, decisions and concerted practices — Sodium gluconate market — Fines — Guidelines on the method of setting fines — Community competition policy — Equal treatment — Turnover to be taken into account — Attenuating circumstances)

3

2009/C 113/06

Case C-113/07 P: Judgment of the Court (Second Chamber) of 26 March 2009 — Selex Sistemi Integrati SpA. v Commission of the European Communities, European Organisation for the Safety of Air Navigation (Eurocontrol) (Appeals — Competition — Article 82 EC — Concept of an undertaking — Economic activity — International organisation — Abuse of a dominant position)

4

2009/C 113/07

Case C-169/07: Judgment of the Court (Grand Chamber) of 10 March 2009 (reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria)) — Hartlauer Handelsgesellschaft mbH v Wiener Landesregierung, Oberösterreichische Landesregierung (Freedom of establishment — Social security — National health system financed by the State — System of benefits in kind — System of reimbursement of costs paid by the person insured — Authorisation to set up a private outpatient dental clinic — Criterion of assessment of the need to set up a health institution — Objective of maintaining a balanced high-quality medical or hospital service open to all — Objective of preventing a risk of serious harm to the financial balance of the social security system — Consistency — Proportionality)

4

2009/C 113/08

Case C-256/07: Judgment of the Court (Second Chamber) of 19 March 2009 (reference for a preliminary ruling from the Finanzgericht Düsseldorf (Germany)) — Mitsui & Co. Deutschland GmbH v Hauptzollamt Düsseldorf (Community Customs Code — Repayment of customs duties — Article 29(1) and (3)(a) — Value for customs purposes — Regulation (EEC) No 2454/93 — Article 145(2) and (3) — Taking into account, for customs valuation purposes, of payments made by the seller in performance of a warranty obligation provided for in the contract of sale — Temporal application — Substantive rules — Procedural rules — Retroactive application of a rule — Validity)

5

2009/C 113/09

Case C-270/07: Judgment of the Court (First Chamber) of 19 March 2009 — Commission of the European Communities v Federal Republic of Germany (Failure of a Member State to fulfil obligations — Common agricultural policy — Fees relating to veterinary inspections and controls — Directive 85/73/EEC — Regulation (EC) No 882/2004)

5

2009/C 113/10

Case C-275/07: Judgment of the Court (First Chamber) of 19 March 2009 — Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — External Community transit — TIR Carnets — Customs duties — Own resources of the Communities — Making available — Time-limits — Default interest — Accounting rules)

6

2009/C 113/11

Case C-309/07: Judgment of the Court (First Chamber) of 19 March 2009 (reference for a preliminary ruling from the Hessischer Verwaltungsgerichtshof (Germany)) — Firma Baumann GmbH v Land Hessen (Common agricultural policy — Fees concerning veterinary inspections and controls — Directive 85/73/EEC)

6

2009/C 113/12

Case C-320/07 P: Judgment of the Court (First Chamber) of 12 March 2009 — Antartica Srl v Office for Harmonisation in the Internal Market (Trade Marks and Designs), The Nasdaq Stock Market Inc. (Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 8(5) — Refusal to register — Earlier trade mark of repute NASDAQ — Figurative sign nasdaq — Use of the earlier mark for goods and services allegedly offered free of charge — Taking unfair advantage of the distinctive character or the repute of the earlier mark — Relevant public)

7

2009/C 113/13

Case C-326/07: Judgment of the Court (Third Chamber) of 26 March 2009 — Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Articles 43 EC and 56 EC — Articles of association of privatised undertakings — Criteria for the exercise of certain special powers held by the State)

7

2009/C 113/14

Case C-348/07: Judgment of the Court (First Chamber) of 26 March 2009 (reference for a preliminary ruling from the Landgericht Hamburg (Germany)) — Turgay Semen v Deutsche Tamoil GmbH (Directive 86/653/EEC — Article 17 — Self-employed commercial agents — Termination of a contract — Right to an indemnity — Determining the amount of the indemnity)

8

2009/C 113/15

Case C-458/07: Judgment of the Court (Fourth Chamber) of 12 March 2009 — Commission of the European Communities v Portuguese Republic (Failure of Member State to fulfil obligations — Telecommunications — Directive 2002/22/EC — Universal service — Obligation to make available to end-users a comprehensive directory and telephone directory enquiry service)

8

2009/C 113/16

Case C-559/07: Judgment of the Court (Third Chamber) of 26 March 2009 — Commission of the European Communities v Hellenic Republic (Failure of a Member State to fulfil obligations — Social policy — Article 141 EC — Equal pay for male and female workers — National civil and military pension regime — Different treatment with regard to retirement age and minimum required service — Justification — Absence)

9

2009/C 113/17

Case C-10/08: Judgment of the Court (First Chamber) of 19 March 2009 — Commission of the European Communities v Republic of Finland (Taxation in Finland of second-hand vehicles imported from other Member States — Compatibility of national legislation with the first paragraph of Article 90 EC, the Sixth VAT Directive and Directive 2006/112/EC)

9

2009/C 113/18

Case C-21/08 P: Judgment of the Court (Second Chamber) of 26 March 2009 — Sunplus Technology Co. Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Sun Microsystems Inc. (Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 8(1)(b) — Word and figurative mark SUNPLUS — Opposition by the proprietor of the national word marks SUN — Refusal of registration)

10

2009/C 113/19

Case C-77/08: Judgment of the Court (Fourth Chamber) of 19 March 2009 (reference for a preliminary ruling from the Unabhängiger Finanzsenat, Außenstelle Graz — Austria) — Dachsberger & Söhne GmbH v Zollamt Salzburg, Erstattungen (Export refund — Differentiated refund — Time of the submission of the request — Export declaration — No proof of clearance for release for consumption in the destination country — Penalty)

10

2009/C 113/20

Case C-143/08: Judgment of the Court (Eighth Chamber) of 19 March 2009 — Commission of the European Communities v Republic of Poland (Failure of a Member State to fulfil obligations — Directive 2006/73/EC — Failure to transpose within the period prescribed)

11

2009/C 113/21

Case C-184/08: Judgment of the Court (Eighth Chamber) of 24 March 2009 — Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil its obligations — Regulation (EC) No 648/2004 — Article 18 — Market for detergents and for surfactants for detergents — Sanctions)

11

2009/C 113/22

Case C-245/08: Judgment of the Court (Eighth Chamber) of 19 March 2009 — Commission of the European Communities v Portuguese Republic (Failure of a Member State to fulfil its obligations — Free movement of persons — Freedom to provide services — Right of establishment — Adjustments consequent on the accession of the Republic of Bulgaria and Romania)

12

2009/C 113/23

Case C-289/08: Judgment of the Court (Fifth Chamber) of 12 March 2009 — Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil its obligations — Directive 96/82/EC — Article 11(1)(c) — External emergency plans — Failure to transpose within the period prescribed)

12

2009/C 113/24

Case C-298/08: Judgment of the Court (Eighth Chamber) of 12 March 2009 — Commission of the European Communities v Hellenic Republic (Failure of a Member State to fulfil obligations — Directive 2006/22/EC — Approximation of laws — Social legislation relating to road transport activities — Failure to transpose within the period prescribed)

12

2009/C 113/25

Case C-331/08: Judgment of the Court (Fifth Chamber) of 24 March 2009 — Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Environmental liability — Directive 2004/35/EC — Prevention and remedying of environmental damage)

13

2009/C 113/26

Case C-342/08: Judgment of the Court (Sixth Chamber) of 12 March 2009 — Commission of the European Communities v Kingdom of Belgium (Failure of a Member State to fulfil obligations — Directive 96/82/EC — Article 11(1)(c) — Failure to draw up external emergency plans — Incomplete transposition)

13

2009/C 113/27

Case C-402/08: Judgment of the Court (Seventh Chamber) of 12 March 2009 — Commission of the European Communities v Republic of Slovenia (Failure of a Member State to fulfil obligations — Directive 2004/35/EC — Environmental liability with regard to the prevention and remedying of environmental damage — Failure to transpose within the period prescribed)

13

2009/C 113/28

Case C-557/07: Order of the Court (Eighth Chamber) of 19 February 2009 (reference for a preliminary ruling from the Oberster Gerichtshof (Austria)) — LSG-Gesellschaft zur Wahrnehmung von Leistungsschutzrechten GmbH v Tele2 Telecommunication GmbH (Article 104(3) of the Rules of Procedure — Information society — Copyright and related right — Retention and disclosure of certain traffic data — Protecting the confidentiality of electronic communication — Intermediaries within the meaning of Article 8(3) of Directive 2001/29/EC)

14

2009/C 113/29

Case C-17/08 P: Order of the Court (Eighth Chamber) of 6 February 2009 — MPDV Mikrolab GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 7(1)(c) — Refusal of registration — Word mark manufacturing score card — Descriptive character)

15

2009/C 113/30

Joined Cases C-39/08 and C-43/08: Order of the Court of 12 February 2009 (reference for a preliminary ruling from the Bundespatentgericht (Germany)) — Bild digital GmbH & Co. KG, formerly Bild.T-Online.de AG & Co. KG (C-39/08), ZVS Zeitungsvertrieb Stuttgart GmbH (C-43/08) v Präsident des Deutschen Patent- und Markenamts (First subparagraph of Article 103(3) of the Rules of Procedure — Directive 89/104/EEC — Applications for registration of trade marks — Examination on a case-by-case basis — Failure to take account of earlier decisions — Manifest inadmissibility)

15

2009/C 113/31

Case C-62/08: Order of the Court (Second Chamber) of 19 February 2009 (reference for a preliminary ruling from the Hof van Cassatie van België — Belgium) — UDV North America Inc v Brandtraders NV (Article 104(3), second subparagraph, of the Rules of Procedure — Community trade mark — Regulation (EC) No 40/94 — Article 9(1)(a) and (2)(d) — Right of the proprietor of a registered mark to prevent the use by a third party of a sign which is identical to the mark — Concept of use — Use of a sign which is identical to the mark by a trade intermediary in its business papers — Intermediary acting in its own name but on behalf of a vendor)

16

2009/C 113/32

Case C-119/08: Order of the Court of 5 February 2009 (reference for a preliminary ruling from the Lietuvos vyriausiasis administracinis teismas) — Mechel Nemunas UAB v Valstybinė mokesčių inspekcija prie Lietuvos respublikos finansų ministerijos (First subparagraph of Article 104(3) of the Rules of Procedure — First VAT Directive — Sixth VAT Directive — Article 33(1) — Concept of turnover taxes — Tax calculated on the basis of an undertaking’s turnover to finance the maintenance and development programme for national roads)

16

2009/C 113/33

Case C-131/08: Order of the Court (Fifth Chamber) of 30 January 2009 — Dorel Juvenile Group, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 7(1)(b) — Application for word mark SAFETY 1ST — Lack of distinctive character — Refusal of registration)

17

2009/C 113/34

Case C-183/08 P: Order of the Court of 5 March 2009 — Commission of the European Communities v Provincia di Imperia (Appeal — Article 119 of the Rules of Procedure — Conditions governing the admissibility of an action for annulment — Interest in bringing an action — Call for proposals regarding the financing of innovative actions under the European Social Fund — Dismissal — Benefit for the applicant arising from a possible annulment of the contested act)

17

2009/C 113/35

Case C-210/08 P: Order of the Court (Fifth Chamber) of 20 January 2009 — Sebirán S.L. v Office for Harmonisation in the Internal Market (Trade Marks and Designs), El Coto de Rioja S.A. (Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 8(1)(b) — Likelihood of confusion — Figurative mark Coto D’Arcis — Opposition by the proprietor of word marks COTO DE IMAZ and EL COTO — Partial refusal to register)

18

2009/C 113/36

Case C-231/08 P: Order of the Court of 3 February 2009 — Massimo Giannini v Commission of the European Communities (Appeal — Community civil service — Right to a fair hearing — Infringement of Articles 4, 27 and 29 of the Staff Regulations — Principle of non-discrimination — Interest of the service and duty of care — Distortion of the evidence and rules on evidence — Appeal manifestly inadmissible in part and manifestly unfounded in part)

18

2009/C 113/37

Case C-268/08 P: Order of the Court of 3 March 2009 — Christos Michail v Commission of the European Communities (Appeal — Staff case — Articles 12a and 24 of the Staff Regulations — Psychological harassment — Duty to provide assistance — Distortion of facts — Errors in the legal assessment of the facts)

19

2009/C 113/38

Case C-497/08: Reference for a preliminary ruling from the Amtsgericht Charlottenburg (Germany) lodged on 17 November 2008 — Amiraike Berlin GmbH Aero and Campus Cottbus Ltd.

19

2009/C 113/39

Case C-58/09: Reference for a preliminary ruling from the Bundesfinanzhof (Germany), lodged on 11 February 2009 — Leo-Libera GmbH v Finanzamt Buchholz in der Nordheide

19

2009/C 113/40

Case C-61/09: Reference for a preliminary ruling from the Oberverwaltungsgericht Rheinland-Pfalz (Germany) lodged on 11 February 2009 — Landkreis Bad Dürkheim v Aufsichts- und Dienstleistungsdirektion, interested party: Frau Astrid Niedermair-Schiemann

20

2009/C 113/41

Case C-71/09 P: Appeal brought on 17 February 2009 by the Comitato Venezia vuole vivere against the judgment delivered on 28 November 2008 in Joined Cases T-254/00, T-270/00 and T-277/00 Hotel Cipriani SpA and Others v Commission

20

2009/C 113/42

Case C-73/09 P: Appeal brought on 16 February 2009 by Hotel Cipriani SpA against the judgment delivered on 28 November 2008 in Joined Cases T-254/00, T-270/00 and T-277/00 Hotel Cipriani SpA and Others v Commission

21

2009/C 113/43

Case C-76/09 P: Appeal brought on 19 February 2009 by Società Italiana per il gas SpA (Italgas) against the judgment delivered on 28 November 2008 in Joined Cases T-254/00, T-270/00 and T-277/00 Hotel Cipriani and Others v Commission

22

2009/C 113/44

Case C-88/09: Reference for a preliminary ruling from the Conseil d'État (France) lodged on 2 March 2009 — Graphic Procédé v Ministère du budget, des comptes publics et de la fonction publique

23

2009/C 113/45

Case C-89/09: Action brought on 2 March 2009 — Commission of the European Communities v French Republic

23

2009/C 113/46

Case C-93/09: Reference for a preliminary ruling from the Verwaltungsgericht Wiesbaden (Germany) lodged on 6 March 2009 — Hartmut Eifert v Land Hessen, interested party: Bundesanstalt für Landwirtschaft und Ernährung

24

2009/C 113/47

Case C-94/09: Action brought on 6 March 2009 — Commission of the European Communities v French Republic

25

2009/C 113/48

Case C-95/09: Action brought on 6 March 2009 — Commission of the European Communities v Ireland

25

2009/C 113/49

Case C-96/09 P: Appeal brought on 10 March 2009 by Anheuser-Busch, Inc. against the judgment of the Court of First Instance (First Chamber) delivered on 16 December 2008 in Joined Cases T-225/06, T-255/06, T-257/06 and T-309/06: Budějovický Budvar, národní podnik v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Anheuser-Busch, Inc

26

2009/C 113/50

Case C-100/09: Action brought on 11 March 2009 — Commission of the European Communities v Czech Republic

27

2009/C 113/51

Case C-114/09: Action brought on 25 March 2009 — Commission of the European Communities v Kingdom of Spain

28

2009/C 113/52

Case C-408/07: Order of the President of the Grand Chamber of the Court of 2 February 2009 (reference for a preliminary ruling from the Landgericht Frankfurt am Main — Germany) — Brigitte Ruf, née Elsässer, Gertrud Elsässer, née Sommer v European Central Bank (ECB), Coop Himmelblau Prix, Dreibholz & Partner ZT GmbH; intervener: the City of Frankfurt am Main

28

2009/C 113/53

Case C-92/08: Order of the President of the Court of 19 February 2009 — Commission of the European Communities v Kingdom of Belgium

28

2009/C 113/54

Case C-98/08: Order of the President of the Fourth Chamber of the Court of 21 January 2009 (reference for a preliminary ruling from the Juzgado de lo Mercantil de Madrid — Spain) — Asociación de Gestión de Derechos Intelectuales (AGEDI), Asociación de Artistas Intérpretes o Ejecutantes — Sociedad de Gestión de España (AIE) v Sogecable, SA, Canal Satélite Digital SL

28

2009/C 113/55

Case C-257/08: Order of the President of the Court of 20 January 2009 — Commission of the European Communities v Italian Republic

28

2009/C 113/56

Case C-291/08: Order of the President of the Court of 30 January 2009 — Commission of the European Communities v Republic of Austria

29

2009/C 113/57

Case C-329/08: Order of the President of the Court of 6 March 2009 — Commission of the European Communities v Kingdom of Belgium

29

2009/C 113/58

Case C-332/08: Order of the President of the Court of 19 February 2009 — Commission of the European Communities v French Republic

29

2009/C 113/59

Case C-354/08: Order of the President of the Court of 26 February 2009 — Commission of the European Communities v French Republic

29

Court of First Instance

2009/C 113/60

Case T-385/04: Judgment of the Court of First Instance of 1 April 2009 — Valero Jordana v Commission (Staff case — Officials — Action for annulment — Action for Damages — Promotion — Award of priority points)

30

2009/C 113/61

Case T-299/05: Judgment of the Court of First Instance of 18 March 2009 — Shanghai Excell M&E Enterprise and Shanghai Adeptech Precision v Council (Dumping — Imports of certain electronic weighing scales originating in China — Market economy status — Article 2(7)(a) and (c), Article 2(10), and Article 11(9) of Regulation (EC) No 384/96)

30

2009/C 113/62

Case T-354/05: Judgment of the Court of First Instance of 11 March 2009 — TF1 v Commission (State aid — Financing of France Télévisions by the audiovisual licence fee — Constant review of existing aid — Recommendation for the adoption of appropriate measures — Member State’s commitments accepted by the Commission — Decision declaring the aid compatible with the common market — Action for annulment — Period allowed for commencing proceedings — Nature of the contested measure — Interest in bringing proceedings — Admissibility — Rights of the defence — Obligation to state the reasons on which the decision is based — Altmark judgment)

31

2009/C 113/63

Case T-171/06: Judgment of the Court of First Instance of 17 March 2009 — Laytoncrest v OHIM — Erico (TRENTON) (Community trade mark — Opposition proceedings — Application for the Community word mark TRENTON — Earlier Community word mark LENTON — Right to be heard — Article 73 of Regulation (EC) No 40/94 and Rule 54 of Regulation (EC) No 2868/95 — No withdrawal of the trade mark application — Article 44(1) of Regulation No 40/94 — Obligation to rule on the basis of the available evidence — Rule 20(3) and Rule 50(1) of Regulation No 2868/95)

31

2009/C 113/64

Joined Cases T-318/06 to T-321/06: Judgment of the Court of First Instance of 24 March 2009 — Moreira da Fonseca v OHIM — General Óptica (GENERAL OPTICA) (Community trade mark — Invalidity proceedings — Multi-coloured Community figurative marks GENERAL OPTICA — Earlier business name Generalóptica — Relative ground for refusal — Local significance of the earlier sign — Articles 8(4) and 52(1)(c) of Regulation (EC) No 40/94)

32

2009/C 113/65

Case T-332/06: Judgment of the Court of First Instance of 25 March 2009 — Alcoa Trasformazioni v Commission (State aid — Electricity — Preferential tariff — Decision initiating the procedure under Article 88(2) EC — Admissibility — Notion of State aid — New aid or existing aid — Advantage — Statement of reasons — Legitimate expectations — Legal certainty)

32

2009/C 113/66

Case T-405/06: Judgment of the Court of First Instance of 31 March 2009 — ArcelorMittal Luxembourg and Others v Commission (Competition — Agreements, decisions and concerted practices — Community market in beams — Decision establishing an infringement of Article 65 CS, after expiry of the ECSC Treaty on the basis of Regulation (EC) No 1/2003 — Competence of the Commission — Liability for the infringement — Limitation — Rights of the defence)

33

2009/C 113/67

Case T-21/07: Judgment of the Court of First Instance of 25 March 2009 — L’Oréal v OHIM — Spa Monopole (SPALINE) (Community trade mark — Opposition proceedings — Application for the Community word mark SPALINE — Earlier national word mark SPA — Relative ground for refusal — Damage to reputation — Unfair advantage derived from the reputation of the earlier mark — Use of the mark applied for without due cause — Article 8(5) of Regulation (EC) No 40/94)

33

2009/C 113/68

Case T-109/07: Judgment of the Court of First Instance of 25 March 2009 — L’Oréal v OHIM — Spa Monopole (SPA THERAPY) (Community trade mark — Opposition proceedings — Application for the Community word mark SPA THERAPY — Earlier national word mark SPA — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94)

33

2009/C 113/69

Case T-191/07: Judgment of the Court of First Instance of 25 March 2009 — Anheuser-Busch v OHIM — Budějovický Budvar (BUDWEISER) (Community trade mark — Opposition proceedings — Application for Community word mark BUDWEISER — Earlier international word and figurative marks BUDWEISER and Budweiser Budvar — Relative grounds for refusal — Article 8(1)(a) and (b) of Regulation (EC) No 40/94 — Genuine use of the earlier trade mark — Article 43(2) and (3) of Regulation No 40/94 — Infringement of rights of defence — Statement of reasons — Article 73 of Regulation No 40/94 — Late submission of documents — Discretion granted by Article 74(2) of Regulation No 40/94)

34

2009/C 113/70

Case T-343/07: Judgment of the Court of First Instance of 25 March 2009 — allsafe Jungfalk v OHIM (ALLSAFE) (Community trade mark — Application for the Community word mark ALLSAFE — Absolute grounds for refusal of registration — Absence of distinctive character — Descriptive character — Article 7(1)(b) and (c) of Regulation (EC) No 40/94)

34

2009/C 113/71

Case T-402/07: Judgment of the Court of First Instance of 25 March 2009 — Kaul v OHIM — Bayer (ARCOL) (Community trade mark — Opposition proceedings — Application for the Community word mark ARCOL — Earlier Community word mark CAPOL — Implementation by OHIM of a judgment annulling a decision of one of its Boards of Appeal — Relative ground for refusal — No likelihood of confusion — Rights of the defence — Article 8(1)(b), Article 61(2), Article 63(6), Article 73, second sentence, and Article 74(2) of Regulation (EC) No 40/94)

35

2009/C 113/72

Order of the Court of First Instance of 19 March 2009 — Telecom Italia Media v Commission Case T-96/07 (State aid — Subsidies for the purchase of digital decoders — Telecommunications — Commission decision finding aid to be incompatible with the common market — Decision of the Member State, adopted during the proceedings, not to recover the aid from the undertaking which brought the action for annulment against the Commission decision — No longer any legal interest in bringing proceedings — No need to adjudicate)

35

2009/C 113/73

Case T-59/09: Action brought on 11 February 2009 — Germany v Commission

35

2009/C 113/74

Case T-71/09: Action brought on 20 February 2009 — Química Atlântica v Commission

36

2009/C 113/75

Case T-79/09: Action brought on 20 February 2009 — France v Commission

37

2009/C 113/76

Case T-86/09: Action brought on 19 February 2009 — Evropaïki Dynamiki v Commission

38

2009/C 113/77

Case T-87/09: Action brought on 25 February 2009 — Gråhundbus v/Jørgen Andersen v Commission

38

2009/C 113/78

Case T-92/09: Action brought on 2 March 2009 — Strategi Group v OHIM — Reed Business Information (STRATEGI)

39

2009/C 113/79

Case T-103/09: Action brought on 11 March 2009 — von Oppeln-Bronikowski and von Oppeln-Bronikowski v OHIM — Pomodoro Clothing (promodoro)

39

2009/C 113/80

Case T-106/09: Action brought on 13 March 2009 — adp Gauselmann v OHIM — Maclean (Archer Maclean’s Mercury)

40

2009/C 113/81

Case T-107/09: Action brought on 12 March 2009 — United Kingdom v Commission

40

2009/C 113/82

Case T-109/09: Action brought on 17 March 2009 — Rintisch v OHIM — Valfeuri Pates Alimentaires (PROTIVITAL)

41

2009/C 113/83

Case T-112/09: Action brought on 19 March 2009 — Icebreaker v OHIM — Gilmar (ICEBREAKER)

41

2009/C 113/84

Case T-115/09: Action brought on 24 March 2009 — Electrolux v Commission

42

2009/C 113/85

Case T-116/09: Action brought on 24 March 2009 — Whirlpool Europe v Commission

42

2009/C 113/86

Case T-119/09: Action brought on 23 March 2009 — Protege International v Commission

43

2009/C 113/87

Case T-121/09: Action brought on 27 March 2009 — Al Shanfari v Council and Commission

43

2009/C 113/88

Case T-273/07: Order of the Court of First Instance of 13 March 2009 — Torres v OHIM — Vinícola de Tomelloso (TORREGAZATE)

44

2009/C 113/89

Case T-349/07 and T-350/07: Order of the Court of First Instance of 19 March 2009 — FMC Chemical and Others v Commission

44

2009/C 113/90

Case T-342/08: Order of the Court of First Instance (Seventh Chamber) of 11 March 2009 — Batchelor v Commission

44

2009/C 113/91

Case T-378/08: Order of the Court of First Instance of 5 March 2009 — Portugal v Commission

44

2009/C 113/92

Case T-457/08: Order of the Court of First Instance of 24 March 2009 — Intel v Commission

44

European Union Civil Service Tribunal

2009/C 113/93

Case F-5/09: Action brought on 26 January 2009 — Soerensen Ferraresi v Commission

45

2009/C 113/94

Case F-12/09: Action brought on 18 February 2009 — A v Commission

45

2009/C 113/95

Case F-17/09: Action brought on 27 February 2009 — Meister v OHIM

46

2009/C 113/96

Case F-18/09: Action brought on 2 March 2009 — Merhzaoui v Council

46

2009/C 113/97

Case F-19/09: Action brought on 6 March 2009 — Lopez Sanchez v Council

46

2009/C 113/98

Case F-20/09: Action brought on 9 March 2009 — Juvyns v Council

46

2009/C 113/99

Case F-21/09: Action brought on 9 March 2009 — De Benedetti-Dagnoni v Council

47

2009/C 113/00

Case F-22/09: Action brought on 9 March 2009 — Marie-Hélène Willigens v Council

47

2009/C 113/01

Case F-24/09: Action brought on 16 March 2009 — Wagner-Leclercq v Council

47

2009/C 113/02

Case F-25/09: Action brought on 16 March 2009 — Van Neyghem v Council

48

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Court of Justice

| 16.5.2009 | EN | Official Journal of the European Union | C 113/1 |
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16.5.2009

EN

Official Journal of the European Union

C 113/1

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2009/C 113/01

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

OJ C 102, 1.5.2009

Past publications

OJ C 90, 18.4.2009

OJ C 82, 4.4.2009

OJ C 69, 21.3.2009

OJ C 55, 7.3.2009

OJ C 44, 21.2.2009

OJ C 32, 7.2.2009

These texts are available on:

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

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V Announcements

COURT PROCEEDINGS

Court of Justice

| 16.5.2009 | EN | Official Journal of the European Union | C 113/2 |
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16.5.2009

EN

Official Journal of the European Union

C 113/2

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Judgment of the Court (Grand Chamber) of 10 March 2009 (reference for a preliminary ruling from the Unabhängiger Verwaltungssenat im Land Niederösterreich — Austria) — Gottfried Heinrich

(Case C-345/06) (1)

(Article 254(2) EC - Regulation (EC) No 1049/2001 - Article 2(3) - Regulation (EC) No 622/2003 - Aviation security - Annex - List of articles prohibited on board aircraft - Not published - Binding force)

2009/C 113/02

Language of the case: German

Referring court

Unabhängiger Verwaltungssenat im Land Niederösterreich

Parties to the main proceedings

Applicant: Gottfried Heinrich

Re:

Reference for a preliminary ruling — Unabhängiger Verwaltungssenat im Land Niederösterreich — Interpretation of Article 254(2) EC and Article 2(3) of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43) — Validity of Commission Regulation (EC) No 622/2003 of 4 April 2003 laying down measures for the implementation of the common basic standards on aviation security (OJ 2003 L 89, p. 9) — Annex to the regulation, establishing detailed measures in respect of aviation security, and in particular a list of prohibited articles that cannot be brought on board an aircraft, not published

Operative part of the judgment

The annex to Commission Regulation (EC) No 622/2003 of 4 April 2003 laying down measures for the implementation of the common basic standards on aviation security, as amended by Commission Regulation (EC) No 68/2004 of 15 January 2004, which was not published in the Official Journal of the European Union, has no binding force in so far as it seeks to impose obligations on individuals.

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(1)  OJ C 281, 18.11.2006.

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| 16.5.2009 | EN | Official Journal of the European Union | C 113/2 |
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16.5.2009

EN

Official Journal of the European Union

C 113/2

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Judgment of the Court (Grand Chamber) of 24 March 2009 (reference for a preliminary ruling from the Bundesgerichtshof (Germany)) — Danske Slagterier v Bundesrepublik Deutschland

(Case C-445/06) (1)

(Measures having equivalent effect - Animal health - Intra-Community trade - Fresh meat - Veterinary checks - Non-contractual liability of a Member State - Limitation period - Determination of the loss or damage)

2009/C 113/03

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: Danske Slagterier

Defendant: Bundesrepublik Deutschland

Re:

Reference for a preliminary ruling — Bundesgerichtshof — Interpretation of Article 28 EC and of Articles 5(1)(o) and 6(1)(b)(iii) of Council Directive 64/433/EEC of 26 June 1964 on health conditions for the production and marketing of fresh meat (OJ, English Special Edition 1963-64, p. 185), as amended by Council Directive 91/497/EEC of 29 July 1991 (OJ 1991 L 268, p. 69), in conjunction with Articles 5(1), 7 and 8 of Council Directive 89/662/EEC of 11 December 1989 concerning veterinary checks in intra-Community trade with a view to the completion of the internal market (OJ 1989 L 395, p. 13) — Interpretation of Community law concerning a Member State’s non-contractual liability for breach of Community law — Limitation period — Determination of the loss or damage for which reparation may be granted and of the obligations on the injured party

Operative part of the judgment

| 1. | Individuals who have been harmed by the incorrect transposition and application of Council Directive 64/433/EEC of 26 June 1964 on health conditions for the production and marketing of fresh meat, as amended by Council Directive 91/497/EEC of 29 July 1991, and Council Directive 89/662/EEC of 11 December 1989 concerning veterinary checks in intra-Community trade with a view to the completion of the internal market may rely on the right to the free movement of goods in order to be able to render the State liable for the breach of Community law. |
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1.

Individuals who have been harmed by the incorrect transposition and application of Council Directive 64/433/EEC of 26 June 1964 on health conditions for the production and marketing of fresh meat, as amended by Council Directive 91/497/EEC of 29 July 1991, and Council Directive 89/662/EEC of 11 December 1989 concerning veterinary checks in intra-Community trade with a view to the completion of the internal market may rely on the right to the free movement of goods in order to be able to render the State liable for the breach of Community law.

| 2. | Where the Commission of the European Communities has brought infringement proceedings under Article 226 EC, Community law does not require the limitation period laid down by national legislation for a claim seeking reparation on account of State liability for breach of Community law to be interrupted or suspended during those proceedings. |
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2.

Where the Commission of the European Communities has brought infringement proceedings under Article 226 EC, Community law does not require the limitation period laid down by national legislation for a claim seeking reparation on account of State liability for breach of Community law to be interrupted or suspended during those proceedings.

| 3. | Community law does not preclude the limitation period applicable to an action for damages against the State for incorrect transposition of a directive from beginning to run on the date on which the first injurious effects of the incorrect transposition have been produced and the further injurious effects thereof are foreseeable, even if that date is prior to the correct transposition of the directive. |
| --- | --- |

3.

Community law does not preclude the limitation period applicable to an action for damages against the State for incorrect transposition of a directive from beginning to run on the date on which the first injurious effects of the incorrect transposition have been produced and the further injurious effects thereof are foreseeable, even if that date is prior to the correct transposition of the directive.

| 4. | Community law does not preclude the application of national legislation which lays down that an individual cannot obtain reparation for loss or damage which he has wilfully or negligently failed to avert by utilising a legal remedy, provided that utilisation of that remedy can reasonably be required of the injured party, a matter which is for the referring court to determine in light of all the circumstances of the main proceedings. The likelihood that a national court will make a reference for a preliminary ruling under Article 234 EC or the existence of infringement proceedings pending before the Court of Justice cannot, in itself, constitute a sufficient reason for concluding that it is not reasonable to have recourse to a legal remedy. |
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4.

Community law does not preclude the application of national legislation which lays down that an individual cannot obtain reparation for loss or damage which he has wilfully or negligently failed to avert by utilising a legal remedy, provided that utilisation of that remedy can reasonably be required of the injured party, a matter which is for the referring court to determine in light of all the circumstances of the main proceedings. The likelihood that a national court will make a reference for a preliminary ruling under Article 234 EC or the existence of infringement proceedings pending before the Court of Justice cannot, in itself, constitute a sufficient reason for concluding that it is not reasonable to have recourse to a legal remedy.

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(1)  OJ C 326, 30.12.2006.

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| 16.5.2009 | EN | Official Journal of the European Union | C 113/3 |
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16.5.2009

EN

Official Journal of the European Union

C 113/3

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Judgment of the Court (Fourth Chamber) of 19 March 2009 — Commission of the European Communities v Hellenic Republic

(Case C-489/06) (1)

(Failure of a Member State to fulfil obligations - Directives 93/36/EEC and 93/42/EEC - Public contracts - Procedures for the award of public supply contracts - Hospital supplies)

2009/C 113/04

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (represented by: M. Patakia and X. Lewis, acting as Agents)

Defendant: Hellenic Republic (represented by: D. Tsagkaraki and S. Chala, acting as Agents)

Re:

Failure of a Member State to fulfil obligations — Infringement of Article 8(2) of Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts (OJ 1993 L 199, p. 1) and of Articles 17 and 18 of Council Directive 93/42/EEC of 14 June 1993 concerning medical devices (OJ 1993 L 169, p. 1) — Rejection of medical devices, in the context of calls for tenders for supplies to public hospitals in Greece, on grounds relating to the ‘general sufficiency and safety of use’ of the devices, notwithstanding their certification with the CE marking, and without, in any event, the procedure provided for in Directive 93/42/EEC being followed

Operative part of the judgment

The Court:

| 1. | Declares that, by rejecting tenders in respect of medical devices bearing the CE certification marking, without the competent contracting authorities of Greek hospitals having complied with the procedure provided for in Council Directive 93/42/EEC of 14 June 1993 concerning medical devices, as amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council of 29 September 2003, the Hellenic Republic has failed to fulfil its obligations under Article 8(2) of Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts, as amended by Commission Directive 2001/78/EC of 13 September 2001, and Articles 17 and 18 of Directive 93/42, as amended by Regulation No 1882/2003; |
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1.

Declares that, by rejecting tenders in respect of medical devices bearing the CE certification marking, without the competent contracting authorities of Greek hospitals having complied with the procedure provided for in Council Directive 93/42/EEC of 14 June 1993 concerning medical devices, as amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council of 29 September 2003, the Hellenic Republic has failed to fulfil its obligations under Article 8(2) of Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts, as amended by Commission Directive 2001/78/EC of 13 September 2001, and Articles 17 and 18 of Directive 93/42, as amended by Regulation No 1882/2003;

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

Orders the Hellenic Republic to pay the costs.

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(1)  OJ C 326, 30.12.2006.

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| 16.5.2009 | EN | Official Journal of the European Union | C 113/3 |
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16.5.2009

EN

Official Journal of the European Union

C 113/3

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Judgment of the Court (First Chamber) of 19 March 2009 — Archer Daniels Midland Co. v Commission of the European Communities

(Case C-510/06 P) (1)

(Appeal - Competition - Agreements, decisions and concerted practices - Sodium gluconate market - Fines - Guidelines on the method of setting fines - Community competition policy - Equal treatment - Turnover to be taken into account - Attenuating circumstances)

2009/C 113/05

Language of the case: English

Parties

Appellant: Archer Daniels Midland Co. (represented by: M. Garcia, Solicitor)

Other party to the proceedings: Commission of the European Communities (represented by: A. Bouquet and X. Lewis, Agents)

Re:

Appeal against the judgment of the Court of First Instance (Third Chamber) of 27 September 2006 in Case T-329/01 Archer Daniels Midland Co. v Commission, by which the Court dismissed an action for annulment of Articles 1 and 3 of Commission Decision C(2001)2931 final of 2 October 2001 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/E-1/36.756 — Sodium Gluconate) and, in the alternative, for a reduction in the fine imposed on the applicant

Operative part of the judgment

The Court:

| 1. | Dismisses the appeal; |
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1.

Dismisses the appeal;

| 2. | Orders Archer Daniels Midland Co. to pay the costs. |
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2.

Orders Archer Daniels Midland Co. to pay the costs.

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(1)  OJ C 56, 10.3.2007.

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| 16.5.2009 | EN | Official Journal of the European Union | C 113/4 |
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16.5.2009

EN

Official Journal of the European Union

C 113/4

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Judgment of the Court (Second Chamber) of 26 March 2009 — Selex Sistemi Integrati SpA. v Commission of the European Communities, European Organisation for the Safety of Air Navigation (Eurocontrol)

(Case C-113/07 P) (1)

(Appeals - Competition - Article 82 EC - Concept of an ‘undertaking’ - Economic activity - International organisation - Abuse of a dominant position)

2009/C 113/06

Language of the case: Italian

Parties

Appellant: Selex Sistemi Integrati SpA (represented by: F. Sciaudone, R. Sciaudone and D. Fioretti, avvocati)

Other parties to the proceedings: Commission of the European Communities, European Organisation for the Safety of Air Navigation (Eurocontrol) (represented by: F. Montag and T. Wessely, Rechtsanwälte)

Re:

Appeal against the judgment of the Court of First Instance (Second Chamber) delivered on 12 December 2006 in Case T-155/04 Selex Sistemi Integrati v Commission by which that Court dismissed an application for annulment or amendment of the Commission’s decision of 12 February 2004 rejecting the complaint lodged by Selex concerning an alleged infringement by Eurocontrol of the provisions of the EC Treaty relating to competition

Operative part of the judgment

The Court:

| 1. | Dismisses the appeal; |
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1.

Dismisses the appeal;

| 2. | Orders Selex Sistemi Integrati SpA to pay, in addition to its own costs, those incurred by the Commission of the European Communities and half the costs incurred by the European Organisation for the Safety of Air Navigation (Eurocontrol); |
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2.

Orders Selex Sistemi Integrati SpA to pay, in addition to its own costs, those incurred by the Commission of the European Communities and half the costs incurred by the European Organisation for the Safety of Air Navigation (Eurocontrol);

| 3. | Orders the European Organisation for the Safety of Air Navigation to pay half its own costs. |
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3.

Orders the European Organisation for the Safety of Air Navigation to pay half its own costs.

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(1)  OJ C 117, 26.5.2007.

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| 16.5.2009 | EN | Official Journal of the European Union | C 113/4 |
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16.5.2009

EN

Official Journal of the European Union

C 113/4

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Judgment of the Court (Grand Chamber) of 10 March 2009 (reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria)) — Hartlauer Handelsgesellschaft mbH v Wiener Landesregierung, Oberösterreichische Landesregierung

(Case C-169/07) (1)

(Freedom of establishment - Social security - National health system financed by the State - System of benefits in kind - System of reimbursement of costs paid by the person insured - Authorisation to set up a private outpatient dental clinic - Criterion of assessment of the need to set up a health institution - Objective of maintaining a balanced high-quality medical or hospital service open to all - Objective of preventing a risk of serious harm to the financial balance of the social security system - Consistency - Proportionality)

2009/C 113/07

Language of the case: German

Referring court

Verwaltungsgerichtshof

Parties to the main proceedings

Applicant: Hartlauer Handelsgesellschaft mbH

Defendants: Wiener Landesregierung, Oberösterreichische Landesregierung

Re:

Reference for a preliminary ruling — Verwaltungsgerichtshof — Interpretation of Articles 43 EC and 48 EC — Authorisation of a private hospital to provide outpatient dental medicine — Authorisation subject to an assessment of the needs of the market

Operative part of the judgment

Articles 43 EC and 48 EC preclude national legislation such as that at issue in the main proceedings under which authorisation is necessary for the setting up of a private health institution in the form of an independent outpatient dental clinic, and authorisation must be refused if there is no need for that outpatient clinic, having regard to the care already offered by contractual practitioners, where that legislation does not also subject group practices to such a system and is not based on a condition capable of adequately circumscribing the exercise by the national authorities of their discretion.

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(1)  OJ C 155, 7.7.2007.

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| 16.5.2009 | EN | Official Journal of the European Union | C 113/5 |
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16.5.2009

EN

Official Journal of the European Union

C 113/5

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Judgment of the Court (Second Chamber) of 19 March 2009 (reference for a preliminary ruling from the Finanzgericht Düsseldorf (Germany)) — Mitsui & Co. Deutschland GmbH v Hauptzollamt Düsseldorf

(Case C-256/07) (1)

(Community Customs Code - Repayment of customs duties - Article 29(1) and (3)(a) - Value for customs purposes - Regulation (EEC) No 2454/93 - Article 145(2) and (3) - Taking into account, for customs valuation purposes, of payments made by the seller in performance of a warranty obligation provided for in the contract of sale - Temporal application - Substantive rules - Procedural rules - Retroactive application of a rule - Validity)

2009/C 113/08

Language of the case: German

Referring court

Finanzgericht Düsseldorf

Parties to the main proceedings

Applicant: Mitsui & Co. Deutschland GmbH

Defendant: Hauptzollamt Düsseldorf

Re:

Reference for a preliminary ruling — Finanzgericht Düsseldorf — Interpretation of Article 29(1) and (3)(a) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), and Article 145(2) and (3) 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 Commission Regulation (EC) No 444/2002 of 11 March 2002 (OJ 2002 L 68, p. 11) — Validity of those provisions in so far as they also apply retroactively to imports in respect of which the customs declaration was accepted before the entry into force of Commission Regulation (EC) No 444/2002 — Taking into account, in the context of the determination of the customs value of imported goods, payments made by the seller in performance of a warranty obligation, laid down in the contract of sale, to reimburse to the buyer the costs incurred in providing services under the warranty which the buyer had to provide to its own customers as a result of defective goods

Operative part of the judgment

| 1. | Article 29(1) and (3)(a) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code and Article 145(2) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation No 2913/92, as amended by Commission Regulation (EC) No 444/2002 of 11 March 2002, must be interpreted as meaning that, when defects affecting goods became apparent after the goods were released for free circulation, but it is demonstrated that they existed before such release, and those defects give rise, under a warranty obligation, to subsequent reimbursements by the seller/manufacturer to the buyer, reimbursements which correspond to the costs of repairs invoiced by the buyer’s own distributors, such reimbursements can result in a reduction of the transaction value of the goods and, as a result, of their customs value, which was declared on the basis of the price initially agreed between the seller/manufacturer and the buyer. |
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1.

Article 29(1) and (3)(a) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code and Article 145(2) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation No 2913/92, as amended by Commission Regulation (EC) No 444/2002 of 11 March 2002, must be interpreted as meaning that, when defects affecting goods became apparent after the goods were released for free circulation, but it is demonstrated that they existed before such release, and those defects give rise, under a warranty obligation, to subsequent reimbursements by the seller/manufacturer to the buyer, reimbursements which correspond to the costs of repairs invoiced by the buyer’s own distributors, such reimbursements can result in a reduction of the transaction value of the goods and, as a result, of their customs value, which was declared on the basis of the price initially agreed between the seller/manufacturer and the buyer.

| 2. | Article 145(2) and (3) of Regulation No 2454/93, as amended by Regulation No 444/2002, do not apply to imports in respect of which the customs declarations were accepted before 19 March 2002. |
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2.

Article 145(2) and (3) of Regulation No 2454/93, as amended by Regulation No 444/2002, do not apply to imports in respect of which the customs declarations were accepted before 19 March 2002.

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(1)  OJ C 183, 4.8.2007.

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| 16.5.2009 | EN | Official Journal of the European Union | C 113/5 |
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16.5.2009

EN

Official Journal of the European Union

C 113/5

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Judgment of the Court (First Chamber) of 19 March 2009 — Commission of the European Communities v Federal Republic of Germany

(Case C-270/07) (1)

(Failure of a Member State to fulfil obligations - Common agricultural policy - Fees relating to veterinary inspections and controls - Directive 85/73/EEC - Regulation (EC) No 882/2004)

2009/C 113/09

Language of the case: German

Parties

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

Defendant: Federal Republic of Germany (represented by: M. Lumma and C. Schulze-Bahr, acting as Agents, and by U. Karpenstein, Rechtsanwalt)

Re:

Failure of a Member State to fulfil obligations — Infringement of Article 1 and Article 5(3) and (4) of Council Directive 85/73/EEC of 29 January 1985 on the financing of health inspections and controls of fresh meat and poultrymeat (OJ 1985 L 32, p. 14), as amended by Council Directive 97/79/EC of 18 December 1997 (OJ 1997 L 24, p. 31), and of Article 27(2), (4) and (10) of Regulation (EC) No 882/2004 of the European Parliament and of the Council of 29 April 2004 on official controls performed to ensure the verification of compliance with feed and food law, animal health and animal welfare rules (OJ 2004 L 165, p. 1), as amended by Commission Regulation (EC) No 776/2006 of 23 May 2006 (OJ 2006 L 136, p. 3) — National rules on the health inspection of meat also allowing, over and above the Community fee, the collection of an additional specific fee equivalent to the costs of bacteriological examinations of fresh meat

Operative part of the judgment

The Court:

| 1. | Dismisses the action; |
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1.

Dismisses the action;

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

2.

Orders the Commission of the European Communities to pay the costs.

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(1)  OJ C 199, 25.8.2007.

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| 16.5.2009 | EN | Official Journal of the European Union | C 113/6 |
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16.5.2009

EN

Official Journal of the European Union

C 113/6

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Judgment of the Court (First Chamber) of 19 March 2009 — Commission of the European Communities v Italian Republic

(Case C-275/07) (1)

(Failure of a Member State to fulfil obligations - External Community transit - TIR Carnets - Customs duties - Own resources of the Communities - Making available - Time-limits - Default interest - Accounting rules)

2009/C 113/10

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: G. Wilms, M. Velardo and D. Recchia, acting as Agents)

Defendant: Italian Republic (represented by: I.M. Braguglia and G. Albenzio, acting as Agents)

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 8 and 11 of Council Regulation (EEC, Euratom) No 1552/89 of 29 May 1989 implementing Decision 88/376/EEC, Euratom on the system of the Communities' own resources (OJ 1989 L 155, p. 1) and Article 6(2)(a) thereof, replaced as from 30 May 2000 by Council Regulation (EC, Euratom) No 1150/2000 of 22 May 2000 implementing Decision 94/728/EC, Euratom on the system of the Communities' own resources (OJ 2000 L 130, p.1) — Accounting rules — Default interest due for late payment of own resources

Operative part of the judgment

The Court:

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

1.

Dismisses the action.

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

2.

Orders the Commission of the European Communities to pay the costs.

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(1)  OJ C 199, 25.8.2007.

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| 16.5.2009 | EN | Official Journal of the European Union | C 113/6 |
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16.5.2009

EN

Official Journal of the European Union

C 113/6

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Judgment of the Court (First Chamber) of 19 March 2009 (reference for a preliminary ruling from the Hessischer Verwaltungsgerichtshof (Germany)) — Firma Baumann GmbH v Land Hessen

(Case C-309/07) (1)

(Common agricultural policy - Fees concerning veterinary inspections and controls - Directive 85/73/EEC)

2009/C 113/11

Language of the case: German

Referring court

Hessischer Verwaltungsgerichtshof

Parties to the main proceedings

Applicant: Firma Baumann GmbH

Defendant: Land Hessen

Re:

Reference for a preliminary ruling — Hessischer Verwaltungsgerichtshof –Interpretation of Article 5(3) and points 1, 2(a), 4(a) and 4(b) of Chapter I of Annex A to Council Directive 85/73/EEC of 29 January 1985 on the financing of health inspections and controls of fresh meat and poultrymeat (OJ 1985 L 32, p. 14), as amended by Council Directive 96/43/EC of 26 June 1996 (OJ 1996 L 162, p. 1) — Legislation making a distinction between slaughtering units in large establishments and other slaughtering activities, adjusting the rate of fees on a diminishing scale according to animal types and increasing fees for slaughtering carried out outside normal hours

Operative part of the judgment

| 1. | Point 4(a) of chapter I of Annex A to Council Directive 85/73/EEC of 29 January 1985 on the financing of veterinary inspections and controls covered by Directives 89/662/EEC, 90/425/EEC, 90/675/EEC and 91/496/EEC, as amended and consolidated by Council Directive 96/43/EC of 26 June 1996, must be interpreted as meaning that it does not permit Member States to deviate from the fee structure laid down in points 1 and 2(a) of Chapter I of Annex A and charge a fee the scale of which varies according to the size of establishments and diminishes according to the number of animals slaughtered per animal type;
  Point 4(b) of chapter I of Annex A to Directive 85/73, as amended and consolidated by Directive 96/43, must be interpreted as meaning that a Member State is not required to comply with the fee structure laid down in points 1 and 2(a) of Chapter I of Annex A and may charge a fee the scale of which varies according to the size of an establishment and the number of animals slaughtered per animal type, where it is established that those factors have an actual effect on the actual costs incurred in carrying out the veterinary inspections and controls required by the relevant provisions of Community law. |
| --- | --- |

1.

Point 4(a) of chapter I of Annex A to Council Directive 85/73/EEC of 29 January 1985 on the financing of veterinary inspections and controls covered by Directives 89/662/EEC, 90/425/EEC, 90/675/EEC and 91/496/EEC, as amended and consolidated by Council Directive 96/43/EC of 26 June 1996, must be interpreted as meaning that it does not permit Member States to deviate from the fee structure laid down in points 1 and 2(a) of Chapter I of Annex A and charge a fee the scale of which varies according to the size of establishments and diminishes according to the number of animals slaughtered per animal type;

Point 4(b) of chapter I of Annex A to Directive 85/73, as amended and consolidated by Directive 96/43, must be interpreted as meaning that a Member State is not required to comply with the fee structure laid down in points 1 and 2(a) of Chapter I of Annex A and may charge a fee the scale of which varies according to the size of an establishment and the number of animals slaughtered per animal type, where it is established that those factors have an actual effect on the actual costs incurred in carrying out the veterinary inspections and controls required by the relevant provisions of Community law.

| 2. | Point 4(a) of chapter I of Annex A to Directive 85/73, as amended and consolidated by Directive 96/43, must be interpreted as meaning that a Member State may charge, in respect of inspections of animals which, at the request of the owner, are slaughtered outside normal slaughtering hours, an ‘additional fee on a percentage basis’ on top of the fee normally charged for inspections of animals when that increase represents a standard value which reflects the additional costs to be covered;
  Point 4(b) of chapter I of Annex A to Directive 85/73, as amended and consolidated by Directive 96/43, must be interpreted as meaning that a Member State may charge, in respect of inspections of animals which, at the request of the owner, are slaughtered outside normal slaughtering hours, an ‘additional fee on a percentage basis’ on top of the fee normally charged for inspections of animals when that increase reflects the additional actual costs. |
| --- | --- |

2.

Point 4(a) of chapter I of Annex A to Directive 85/73, as amended and consolidated by Directive 96/43, must be interpreted as meaning that a Member State may charge, in respect of inspections of animals which, at the request of the owner, are slaughtered outside normal slaughtering hours, an ‘additional fee on a percentage basis’ on top of the fee normally charged for inspections of animals when that increase represents a standard value which reflects the additional costs to be covered;

Point 4(b) of chapter I of Annex A to Directive 85/73, as amended and consolidated by Directive 96/43, must be interpreted as meaning that a Member State may charge, in respect of inspections of animals which, at the request of the owner, are slaughtered outside normal slaughtering hours, an ‘additional fee on a percentage basis’ on top of the fee normally charged for inspections of animals when that increase reflects the additional actual costs.

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(1)  OJ C 247, 20.10.2007.

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| 16.5.2009 | EN | Official Journal of the European Union | C 113/7 |
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16.5.2009

EN

Official Journal of the European Union

C 113/7

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Judgment of the Court (First Chamber) of 12 March 2009 — Antartica Srl v Office for Harmonisation in the Internal Market (Trade Marks and Designs), The Nasdaq Stock Market Inc.

(Case C-320/07 P) (1)

(Appeal - Community trade mark - Regulation (EC) No 40/94 - Article 8(5) - Refusal to register - Earlier trade mark of repute NASDAQ - Figurative sign ‘nasdaq’ - Use of the earlier mark for goods and services allegedly offered free of charge - Taking unfair advantage of the distinctive character or the repute of the earlier mark - Relevant public)

2009/C 113/12

Language of the case: English

Parties

Appellant: Antartica Srl (represented by: E. Racca and A. Fusillo, avvocati)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Folliard-Monguiral, acting as Agent), The Nasdaq Stock Market Inc. (represented by: J. van Manen and J. Hofhuis, advocaten)

Re:

Appeal against the judgment of the Court of First Instance (Fourth Chamber) of 10 May 2007 in Case T-47/06 Antartica v OHIM by which that Court dismissed as unfounded an action brought by the applicant for registration of the figurative trade mark ‘nasdaq’ in respect of goods in Classes 9, 12, 14, 25 and 28 against Decision R752/2004-2 of the Second Board of Appeal of OHIM of 7 December 2005 setting aside the Opposition Division’s decision which rejected the opposition brought by the proprietor of the Community and national word marks ‘NASDAQ’ in respect of goods in Classes 9, 16, 35, 36, 38 and 42 — Interpretation of Article 8(5) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1)

Operative part of the judgment

The Court:

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

1.

Dismisses the appeal;

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

2.

Orders Antartica Srl to pay the costs.

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(1)  OJ C 211, 8.9.2007.

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| 16.5.2009 | EN | Official Journal of the European Union | C 113/7 |
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16.5.2009

EN

Official Journal of the European Union

C 113/7

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Judgment of the Court (Third Chamber) of 26 March 2009 — Commission of the European Communities v Italian Republic

(Case C-326/07) (1)

(Failure of a Member State to fulfil obligations - Articles 43 EC and 56 EC - Articles of association of privatised undertakings - Criteria for the exercise of certain special powers held by the State)

2009/C 113/13

Language of the case: Italian

Parties

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

Defendant: Italian Republic (represented by: I.M. Braguglia, acting as Agent, and P. Gentili, avvocato dello Stato)

Re:

Failure of a Member State to fulfil its obligations — Infringement of Articles 43 EC and 56 EC — Clause introduced into the statutes of certain privatised undertakings concerning the exercise of various special powers

Operative part of the judgment

The Court:

| 1. | Declares that, by adopting the provisions contained in Article 1(2) of the Decree of the President of the Council of Ministers of 10 June 2004 defining the criteria for the exercise of the special powers referred to in Article 2 of Decree-Law No 332 of 31 May 1994, converted into law with amendments by Law No 474 of 30 July 1994 (decreto del Presidente del Consiglio dei Ministri, definizione dei criteri di esercizio dei poteri speciali, di cui all’art. 2 del decreto-legge 31 maggio 1994, n. 332, convertito, con modificazioni, dalla legge 30 luglio 1994, n. 474), the Italian Republic has failed to fulfil its obligations:






  — | under Articles 43 EC and 56 EC, in so far as those provisions apply to the special powers provided by Article 2(1)(a) and (b) of the Decree-Law, as amended by Law No 350 of 24 December 2003 relating to the provisions for drawing up the annual and pluriannual budget of the State (Finance Law for 2004) (legge No 350, disposizioni per la formazione del bilancio annuale e pluriennale dello Stato (legge finanziaria 2004), and |
| --- | --- | --- |

1.

Declares that, by adopting the provisions contained in Article 1(2) of the Decree of the President of the Council of Ministers of 10 June 2004 defining the criteria for the exercise of the special powers referred to in Article 2 of Decree-Law No 332 of 31 May 1994, converted into law with amendments by Law No 474 of 30 July 1994 (decreto del Presidente del Consiglio dei Ministri, definizione dei criteri di esercizio dei poteri speciali, di cui all’art. 2 del decreto-legge 31 maggio 1994, n. 332, convertito, con modificazioni, dalla legge 30 luglio 1994, n. 474), the Italian Republic has failed to fulfil its obligations:

—

under Articles 43 EC and 56 EC, in so far as those provisions apply to the special powers provided by Article 2(1)(a) and (b) of the Decree-Law, as amended by Law No 350 of 24 December 2003 relating to the provisions for drawing up the annual and pluriannual budget of the State (Finance Law for 2004) (legge No 350, disposizioni per la formazione del bilancio annuale e pluriennale dello Stato (legge finanziaria 2004), and

| — | under Article 43 EC, in so far as those provisions apply to the special power provided by Article 2(1)(c) of the Decree-Law; |
| --- | --- |

—

under Article 43 EC, in so far as those provisions apply to the special power provided by Article 2(1)(c) of the Decree-Law;

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

2.

Orders the Italian Republic to pay the costs.

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(1)  OJ C 247, 20.10.2007.

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| 16.5.2009 | EN | Official Journal of the European Union | C 113/8 |
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16.5.2009

EN

Official Journal of the European Union

C 113/8

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Judgment of the Court (First Chamber) of 26 March 2009 (reference for a preliminary ruling from the Landgericht Hamburg (Germany)) — Turgay Semen v Deutsche Tamoil GmbH

(Case C-348/07) (1)

(Directive 86/653/EEC - Article 17 - Self-employed commercial agents - Termination of a contract - Right to an indemnity - Determining the amount of the indemnity)

2009/C 113/14

Language of the case: German

Referring court

Landgericht Hamburg

Parties to the main proceedings

Applicant: Turgay Semen

Defendant: Deutsche Tamoil GmbH

Re:

Reference for a preliminary ruling — Landgericht Hamburg — Interpretation of Article 17(2)(a) of Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents (OJ 1986 L 382, p. 17) — Entitlement of commercial agent to an indemnity after termination of the agency contract — Determination of the amount of that indemnity in a situation in which the benefits which the principal continues to derive from business with customers which the commercial agent brought exceed the latter’s loss of commission

Operative part of the judgment

| 1. | Article 17(2)(a) of Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents is to be interpreted to the effect that it is not possible automatically to limit the indemnity to which a commercial agent is entitled by the amount of commission lost as a result of the termination of the agency contract, even though the benefits which the principal continues to derive have to be given a higher monetary value. |
| --- | --- |

1.

Article 17(2)(a) of Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents is to be interpreted to the effect that it is not possible automatically to limit the indemnity to which a commercial agent is entitled by the amount of commission lost as a result of the termination of the agency contract, even though the benefits which the principal continues to derive have to be given a higher monetary value.

| 2. | Article 17(2)(a) of Directive 86/653 is to be interpreted to the effect that, where the principal belongs to a group of companies, benefits accruing to other companies of that group are not, in principle, deemed to be benefits accruing to the principal and, consequently, do not necessarily have to be taken into account for the purposes of calculating the amount of indemnity to which a commercial agent is entitled. |
| --- | --- |

2.

Article 17(2)(a) of Directive 86/653 is to be interpreted to the effect that, where the principal belongs to a group of companies, benefits accruing to other companies of that group are not, in principle, deemed to be benefits accruing to the principal and, consequently, do not necessarily have to be taken into account for the purposes of calculating the amount of indemnity to which a commercial agent is entitled.

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(1)  OJ C 235, 6.10.2007.

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| 16.5.2009 | EN | Official Journal of the European Union | C 113/8 |
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16.5.2009

EN

Official Journal of the European Union

C 113/8

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Judgment of the Court (Fourth Chamber) of 12 March 2009 — Commission of the European Communities v Portuguese Republic

(Case C-458/07) (1)

(Failure of Member State to fulfil obligations - Telecommunications - Directive 2002/22/EC - Universal service - Obligation to make available to end-users a comprehensive directory and telephone directory enquiry service)

2009/C 113/15

Language of the case: Portuguese

Parties

Applicant: Commission of the European Communities (represented by: G. Braun and P. Guerra e Andrade, Agents)

Defendant: Portuguese Republic (represented by: L. Inez Fernandes, Agent, and L. Morais, Advogado)

Re:

Failure by Member State to fulfil obligations — Infringement of Article 5(1) and (2) and Article 25(1) and (3) of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services (Universal Service Directive) (OJ 2002 L 108, p. 51) — Failure to include certain subscribers in the universal directory

Operative part of the judgment

The Court:

| 1. | Declares that, by not guaranteeing, in practice, the making available to all end-users of at least one comprehensive directory and at least one comprehensive telephone directory enquiry service in accordance with the provisions of Article 5(1) and (2) and Article 25(1) and (3) of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services (Universal Service Directive), the Portuguese Republic has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that, by not guaranteeing, in practice, the making available to all end-users of at least one comprehensive directory and at least one comprehensive telephone directory enquiry service in accordance with the provisions of Article 5(1) and (2) and Article 25(1) and (3) of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services (Universal Service Directive), the Portuguese Republic has failed to fulfil its obligations under that directive;

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

2.

Orders the Portuguese Republic to pay the costs.

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(1)  OJ C 297, 8.12.2007.

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| 16.5.2009 | EN | Official Journal of the European Union | C 113/9 |
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16.5.2009

EN

Official Journal of the European Union

C 113/9

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Judgment of the Court (Third Chamber) of 26 March 2009 — Commission of the European Communities v Hellenic Republic

(Case C-559/07) (1)

(Failure of a Member State to fulfil obligations - Social policy - Article 141 EC - Equal pay for male and female workers - National civil and military pension regime - Different treatment with regard to retirement age and minimum required service - Justification - Absence)

2009/C 113/16

Language of the case: Greek

Parties

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

Defendant: Hellenic Republic (represented by: F. Spathopoulos, K. Bokovits, A. Samoni-Rantou, E.-M. Mamouna and S. Vodina, Agents)

Re:

Failure of a Member State to fulfil obligations — Infringement of Article 141 EC — Infringement of the principle of equal pay for male and female workers — National civil and military retirement pensions regime prescribing a retirement age that can vary according to sex

Operative part of the judgment

The Court:

| 1. | Declares that, by maintaining in force provisions which provide for differences between male and female workers with regard to retirement age and minimum required service under the Greek Civil and Military Pensions Code instituted by Presidential Decree No 166/2000 of 3 July 2000, in the version applicable to the present case, the Hellenic Republic has failed to fulfil its obligations under Article 141 EC; |
| --- | --- |

1.

Declares that, by maintaining in force provisions which provide for differences between male and female workers with regard to retirement age and minimum required service under the Greek Civil and Military Pensions Code instituted by Presidential Decree No 166/2000 of 3 July 2000, in the version applicable to the present case, the Hellenic Republic has failed to fulfil its obligations under Article 141 EC;

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

2.

Orders the Hellenic Republic to pay the costs.

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(1)  OJ C 37, 9.2.2008.

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| 16.5.2009 | EN | Official Journal of the European Union | C 113/9 |
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16.5.2009

EN

Official Journal of the European Union

C 113/9

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Judgment of the Court (First Chamber) of 19 March 2009 — Commission of the European Communities v Republic of Finland

(Case C-10/08) (1)

(Taxation in Finland of second-hand vehicles imported from other Member States - Compatibility of national legislation with the first paragraph of Article 90 EC, the Sixth VAT Directive and Directive 2006/112/EC)

2009/C 113/17

Language of the case: Finnish

Parties

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

Defendant: Republic of Finland (represented by: J. Heliskoski, Agent)

Re:

Failure by a Member State to fulfil obligations — Infringement of Article 90 EC and Article 17(1) and (2) of Directive 77/388/EEC: Sixth Council Directive 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), now Articles 167 and 168 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — National legislation providing for value added tax on the tax on vehicles and a right to deduct the corresponding amount from output value added tax — Application of the same taxable value to vehicles under three months old and to new vehicles — Application of a level of depreciation of 0,8 % per month to vehicles under six months old where there are no equivalent vehicles on the national market

Operative part of the judgment

The Court hereby:

| 1. | Declares that, by allowing the tax referred to in Article 5 of Law No 1482/1994 on vehicle tax (autoverolaki (1482/1994)) of 29 December 1994 to be deducted from the value added tax, pursuant to Article 102(1)(4) of Law No 1501/1993 on value added tax (arvonlisäverolaki (1501/1993)) of 30 December 1993, the Republic of Finland has failed to fulfil its obligations under the first paragraph of Article 90 EC and Article 17(1) and (2) of Directive 77/388/EEC: Sixth Council Directive 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, reproduced in Articles 167 and 168 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax; |
| --- | --- |

1.

Declares that, by allowing the tax referred to in Article 5 of Law No 1482/1994 on vehicle tax (autoverolaki (1482/1994)) of 29 December 1994 to be deducted from the value added tax, pursuant to Article 102(1)(4) of Law No 1501/1993 on value added tax (arvonlisäverolaki (1501/1993)) of 30 December 1993, the Republic of Finland has failed to fulfil its obligations under the first paragraph of Article 90 EC and Article 17(1) and (2) of Directive 77/388/EEC: Sixth Council Directive 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, reproduced in Articles 167 and 168 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax;

| 2. | Declares that, by retaining, when taxing vehicles, the same taxable value for vehicles under three months old as for new vehicles, the Finnish Republic has failed to fulfil its obligations under the first paragraph of Article 90 EC; |
| --- | --- |

2.

Declares that, by retaining, when taxing vehicles, the same taxable value for vehicles under three months old as for new vehicles, the Finnish Republic has failed to fulfil its obligations under the first paragraph of Article 90 EC;

| 3. | Orders the action to be dismissed as to the remainder; |
| --- | --- |

3.

Orders the action to be dismissed as to the remainder;

| 4. | Orders the Finnish Republic to pay, apart from its own costs, three-quarters of the costs of the Commission of the European Communities; |
| --- | --- |

4.

Orders the Finnish Republic to pay, apart from its own costs, three-quarters of the costs of the Commission of the European Communities;

| 5. | Orders the Commission of the European Communities to bear the remainder of its own costs. |
| --- | --- |

5.

Orders the Commission of the European Communities to bear the remainder of its own costs.

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(1)  OJ C 79, 29.3.2008.

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| 16.5.2009 | EN | Official Journal of the European Union | C 113/10 |
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16.5.2009

EN

Official Journal of the European Union

C 113/10

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Judgment of the Court (Second Chamber) of 26 March 2009 — Sunplus Technology Co. Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Sun Microsystems Inc.

(Case C-21/08 P) (1)

(Appeal - Community trade mark - Regulation (EC) No 40/94 - Article 8(1)(b) - Word and figurative mark ‘SUNPLUS’ - Opposition by the proprietor of the national word marks ‘SUN’ - Refusal of registration)

2009/C 113/18

Language of the case: English

Parties

Appellant: Sunplus Technology Co. Ltd (represented by: K. Lochner and H. Gauß, Rechtsanwälte)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Folliard-Monguiral, acting as Agent), Sun Microsystems Inc. (represented by: M. Graf, Rechtsanwalt)

Re:

Appeal against the judgment of the Court of First Instance (Fifth Chamber) of 15 November 2007 in Case T-38/04 Sunplus Technology Co. Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) in which the Court of First Instance dismissed an action brought, by the applicant for the figurative mark ‘SUNPLUS’ for goods in Class 9, against decision R 642/2000-4 of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 7 October 2003, dismissing the appeal against the decision of the opposition division which refused an application for registration of that mark in opposition proceedings initiated by the holder of the national figurative and word trade marks ‘SUN’ for goods in Class 9 — Similarity between the marks — Article 8(1)(b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1)

Operative part of the judgment

The Court:

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

1.

Dismisses the appeal;

| 2. | Orders Sunplus Technology Co. Ltd to pay the costs. |
| --- | --- |

2.

Orders Sunplus Technology Co. Ltd to pay the costs.

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(1)  OJ C 64, 8.3.2008.

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| 16.5.2009 | EN | Official Journal of the European Union | C 113/10 |
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16.5.2009

EN

Official Journal of the European Union

C 113/10

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Judgment of the Court (Fourth Chamber) of 19 March 2009 (reference for a preliminary ruling from the Unabhängiger Finanzsenat, Außenstelle Graz — Austria) — Dachsberger & Söhne GmbH v Zollamt Salzburg, Erstattungen

(Case C-77/08) (1)

(Export refund - Differentiated refund - Time of the submission of the request - Export declaration - No proof of clearance for release for consumption in the destination country - Penalty)

2009/C 113/19

Language of the case: German

Referring court

Unabhängiger Finanzsenat, Außenstelle Graz

Parties to the main proceedings

Applicant: Dachsberger & Söhne GmbH

Defendant: Zollamt Salzburg, Erstattungen

Re:

Reference for a preliminary ruling — Unabhängiger Finanzsenat, Außenstelle Graz — Interpretation of the second sentence of the second subparagraph of Article 11(1) of Commission Regulation (EEC) No 3665/87 of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products (OJ 1987 L 351, p. 1), as amended by Commission Regulation (EC) No 2945/94 of 2 December 1994 amending Regulation (EEC) No 3665/87 laying down common detailed rules for the application of the system of export refunds on agricultural products, as regards the recovery of amounts unduly paid and sanctions (OJ 1994 L 310, p. 57) — Concept of the request for the differentiated part of the export refund — Imposition of the penalty in the event of incorrect information with regard to the destination country featuring in the export declaration

Operative part of the judgment

Article 11(1) of Commission Regulation (EEC) No 3665/87 of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products, as amended by Commission Regulation (EC) No 495/97 of 18 March 1997, must be interpreted as meaning that, in the case of a differentiated refund, the differentiated part of the refund is requested not at the time of presentation of the application provided for in Article 47(1) of Regulation No 3665/87 or of the documents relating to payment of the refund provided for in Article 47(2) of that regulation, but as soon as the document referred to in Article 3(5) of the regulation is presented. The inclusion in that document of information capable of leading to a refund in excess of the refund applicable and which is found to be incorrect gives rise, as a result, subject to the cases laid down in the third and seventh subparagraphs of Article 11(1) of that regulation, to the imposition of the penalty prescribed in the first and second subparagraphs of Article 11(1).

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(1)  OJ C 128, 24.5.2008.

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| 16.5.2009 | EN | Official Journal of the European Union | C 113/11 |
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16.5.2009

EN

Official Journal of the European Union

C 113/11

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Judgment of the Court (Eighth Chamber) of 19 March 2009 — Commission of the European Communities v Republic of Poland

(Case C-143/08) (1)

(Failure of a Member State to fulfil obligations - Directive 2006/73/EC - Failure to transpose within the period prescribed)

2009/C 113/20

Language of the case: Polish

Parties

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

Defendant: Republic of Poland (represented by: M. Dowgielewicz, acting as Agent)

Re:

Failure of a Member State to fulfil obligations — Failure to adopt, within the period prescribed, the provisions necessary to give effect to Commission Directive 2006/73/EC of 10 August 2006 implementing Directive 2004/39/EC of the European Parliament and of the Council as regards organisational requirements and operating conditions for investment firms and defined terms for the purposes of that directive (OJ 2006 L 241, p. 26)

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to adopt, within the period prescribed, all the laws, regulations and administrative provisions necessary to comply with Commission Directive 2006/73/EC of 10 August 2006 implementing Directive 2004/39/EC of the European Parliament and of the Council as regards organisational requirements and operating conditions for investment firms and defined terms for the purposes of that directive, the Republic of Poland has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that, by failing to adopt, within the period prescribed, all the laws, regulations and administrative provisions necessary to comply with Commission Directive 2006/73/EC of 10 August 2006 implementing Directive 2004/39/EC of the European Parliament and of the Council as regards organisational requirements and operating conditions for investment firms and defined terms for the purposes of that directive, the Republic of Poland has failed to fulfil its obligations under that directive;

| 2. | orders the Republic of Poland to pay the costs. |
| --- | --- |

2.

orders the Republic of Poland to pay the costs.

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(1)  OJ C 142, 7.6.2008.

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| 16.5.2009 | EN | Official Journal of the European Union | C 113/11 |
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16.5.2009

EN

Official Journal of the European Union

C 113/11

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Judgment of the Court (Eighth Chamber) of 24 March 2009 — Commission of the European Communities v Grand Duchy of Luxembourg

(Case C-184/08) (1)

(Failure of a Member State to fulfil its obligations - Regulation (EC) No 648/2004 - Article 18 - Market for detergents and for surfactants for detergents - Sanctions)

2009/C 113/21

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: P. Oliver and J.-B. Laignelot, acting as Agents)

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

Re:

Failure of a Member State to fulfil its obligations — Failure to adopt or communicate within the prescribed time-limit dissuasive, effective and proportionate sanctions for infringements of Regulation (EC) No 648/2004 of the European Parliament and of the Council of 31 March 2004 on detergents (OJ 2004 L 104, p. 1)

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to adopt, within the prescribed time-limit, sanctions in accordance with Article 18 of Regulation (EC) No 648/2004 of the European Parliament and of the Council of 31 March 2004 on detergents, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that article; |
| --- | --- |

1.

Declares that, by failing to adopt, within the prescribed time-limit, sanctions in accordance with Article 18 of Regulation (EC) No 648/2004 of the European Parliament and of the Council of 31 March 2004 on detergents, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that article;

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

2.

Orders the Grand Duchy of Luxembourg to pay the costs.

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(1)  OJ C 158, 21.6.2008.

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| 16.5.2009 | EN | Official Journal of the European Union | C 113/12 |
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16.5.2009

EN

Official Journal of the European Union

C 113/12

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Judgment of the Court (Eighth Chamber) of 19 March 2009 — Commission of the European Communities v Portuguese Republic

(Case C-245/08) (1)

(Failure of a Member State to fulfil its obligations - Free movement of persons - Freedom to provide services - Right of establishment - Adjustments consequent on the accession of the Republic of Bulgaria and Romania)

2009/C 113/22

Language of the case: Portuguese

Parties

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

Defendant: Portuguese Republic (represented by: L. Inez Fernandes and F. Fraústo de Azevedo, acting as Agents)

Re:

Failure of a Member State to fulfil its obligations — Failure to have adopted, within the time-limit prescribed, the measures necessary to comply with Council Directive 2006/100/EC of 20 November 2006 adapting certain Directives in the field of freedom of movement of persons, by reason of the accession of Bulgaria and Romania (OJ 2006 L 363, p. 141)

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to adopt, within the time-limit prescribed, the laws, regulations and administrative provisions necessary to comply with Council Directive 2006/100/EC of 20 November 2006 adapting certain Directives in the field of freedom of movement of persons, by reason of the accession of Bulgaria and Romania, the Portuguese Republic has failed to fulfil its obligations under Article 2(1) of that directive; |
| --- | --- |

1.

Declares that, by failing to adopt, within the time-limit prescribed, the laws, regulations and administrative provisions necessary to comply with Council Directive 2006/100/EC of 20 November 2006 adapting certain Directives in the field of freedom of movement of persons, by reason of the accession of Bulgaria and Romania, the Portuguese Republic has failed to fulfil its obligations under Article 2(1) of that directive;

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

2.

Orders the Portuguese Republic to pay the costs.

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(1)  OJ C 183, 19.7.2008.

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| 16.5.2009 | EN | Official Journal of the European Union | C 113/12 |
| --- | --- | --- | --- |

16.5.2009

EN

Official Journal of the European Union

C 113/12

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Judgment of the Court (Fifth Chamber) of 12 March 2009 — Commission of the European Communities v Grand Duchy of Luxembourg

(Case C-289/08) (1)

(Failure of a Member State to fulfil its obligations - Directive 96/82/EC - Article 11(1)(c) - External emergency plans - Failure to transpose within the period prescribed)

2009/C 113/23

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: G. Rozet and A. Sipos, acting as Agents)

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

Re:

Failure of a Member State to fulfil its obligations — Failure to draw up external emergency plans for the measures to be taken outside establishments subject to Article 9 of Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances (OJ 1997 L 10, p. 13)

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to draw up within the period prescribed an external emergency plan for the measures to be taken outside establishments subject to Article 9 of Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 11(1)(c) of that directive. |
| --- | --- |

1.

Declares that, by failing to draw up within the period prescribed an external emergency plan for the measures to be taken outside establishments subject to Article 9 of Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 11(1)(c) 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 223, 30.8.2008.

---

| 16.5.2009 | EN | Official Journal of the European Union | C 113/12 |
| --- | --- | --- | --- |

16.5.2009

EN

Official Journal of the European Union

C 113/12

---

Judgment of the Court (Eighth Chamber) of 12 March 2009 — Commission of the European Communities v Hellenic Republic

(Case C-298/08) (1)

(Failure of a Member State to fulfil obligations - Directive 2006/22/EC - Approximation of laws - Social legislation relating to road transport activities - Failure to transpose within the period prescribed)

2009/C 113/24

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (represented by: N. Yerrell and I. Chatzigiannis, acting as Agents)

Defendant: Hellenic Republic (represented by: N. Dafniou, acting as Agent)

Re:

Failure of a Member State to fulfil obligations — Failure to adopt, within the prescribed period, the measures necessary to comply with Directive 2006/22/EC of the European Parliament and of the Council of 15 March 2006 on minimum conditions for the implementation of Council Regulations (EEC) No 3820/85 and (EEC) No 3821/85 concerning social legislation relating to road transport activities and repealing Council Directive 88/599/EEC (OJ 2006 L 102, p. 35)

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2006/22/EC of the European Parliament and of the Council of 15 March 2006 on minimum conditions for the implementation of Council Regulations (EEC) No 3820/85 and (EEC) No 3821/85 concerning social legislation relating to road transport activities and repealing Council Directive 88/599/EEC, the Hellenic Republic has failed to fulfil its obligations under Directive 2006/22; |
| --- | --- |

1.

Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2006/22/EC of the European Parliament and of the Council of 15 March 2006 on minimum conditions for the implementation of Council Regulations (EEC) No 3820/85 and (EEC) No 3821/85 concerning social legislation relating to road transport activities and repealing Council Directive 88/599/EEC, the Hellenic Republic has failed to fulfil its obligations under Directive 2006/22;

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

2.

orders the Hellenic Republic to pay the costs.

---

(1)  OJ C 223, 30.8.2008.

---

| 16.5.2009 | EN | Official Journal of the European Union | C 113/13 |
| --- | --- | --- | --- |

16.5.2009

EN

Official Journal of the European Union

C 113/13

---

Judgment of the Court (Fifth Chamber) of 24 March 2009 — Commission of the European Communities v Grand Duchy of Luxembourg

(Case C-331/08) (1)

(Failure of a Member State to fulfil obligations - Environmental liability - Directive 2004/35/EC - Prevention and remedying of environmental damage)

2009/C 113/25

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: G. Rozet and U. Wölker, acting as Agents)

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

Re:

Failure of a Member State to fulfil obligations — Failure to adopt the provisions necessary to comply with Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (OJ 2004 L 143, p. 56)

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to adopt, within the period prescribed, all the laws, regulations and administrative provisions necessary to comply with Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 19 of that directive; |
| --- | --- |

1.

Declares that, by failing to adopt, within the period prescribed, all the laws, regulations and administrative provisions necessary to comply with Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 19 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 272, 25.10.2008.

---

| 16.5.2009 | EN | Official Journal of the European Union | C 113/13 |
| --- | --- | --- | --- |

16.5.2009

EN

Official Journal of the European Union

C 113/13

---

Judgment of the Court (Sixth Chamber) of 12 March 2009 — Commission of the European Communities v Kingdom of Belgium

(Case C-342/08) (1)

(Failure of a Member State to fulfil obligations - Directive 96/82/EC - Article 11(1)(c) - Failure to draw up external emergency plans - Incomplete transposition)

2009/C 113/26

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: G. Rozet and A. Sipos, acting as Agents)

Defendant: Kingdom of Belgium (represented by: T. Materne, acting as Agent)

Re:

Failure of a Member State to fulfil obligations — Failure to draw up external emergency plans for the measures to be taken outside establishments falling within Article 9 of Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances (OJ 1997 L 10, p. 13)

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to ensure that an external emergency plan is drawn up for all the establishments covered by Article 9 of Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances, as amended by Directive 2003/105/EC of the European Parliament and of the Council of 16 December 2003, the Kingdom of Belgium has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that, by failing to ensure that an external emergency plan is drawn up for all the establishments covered by Article 9 of Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances, as amended by Directive 2003/105/EC of the European Parliament and of the Council of 16 December 2003, the Kingdom of Belgium has failed to fulfil its obligations under that directive;

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

2.

orders the Kingdom of Belgium to pay the costs.

---

(1)  OJ C 285, 8.11.2008.

---

| 16.5.2009 | EN | Official Journal of the European Union | C 113/13 |
| --- | --- | --- | --- |

16.5.2009

EN

Official Journal of the European Union

C 113/13

---

Judgment of the Court (Seventh Chamber) of 12 March 2009 — Commission of the European Communities v Republic of Slovenia

(Case C-402/08) (1)

(Failure of a Member State to fulfil obligations - Directive 2004/35/EC - Environmental liability with regard to the prevention and remedying of environmental damage - Failure to transpose within the period prescribed)

2009/C 113/27

Language of the case: Slovenian

Parties

Applicant: Commission of the European Communities (represented by: U. Wölker and V. Kovačič, acting as Agents)

Defendant: Republic of Slovenia (represented by: A. Vran, Agent)

Re:

Failure of a Member State to fulfil its obligations — Failure to adopt within the period prescribed the provisions necessary to comply with Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (OJ 2004 L 142, p. 56)

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to adopt, within the period prescribed, the laws, regulations and administrative provisions necessary to comply with Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage, the Republic of Slovenia has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that, by failing to adopt, within the period prescribed, the laws, regulations and administrative provisions necessary to comply with Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage, the Republic of Slovenia has failed to fulfil its obligations under that directive;

| 2. | Orders the Republic of Slovenia to pay the costs. |
| --- | --- |

2.

Orders the Republic of Slovenia to pay the costs.

---

(1)  OJ C 285, 8.11.2008.

---

| 16.5.2009 | EN | Official Journal of the European Union | C 113/14 |
| --- | --- | --- | --- |

16.5.2009

EN

Official Journal of the European Union

C 113/14

---

Order of the Court (Eighth Chamber) of 19 February 2009 (reference for a preliminary ruling from the Oberster Gerichtshof (Austria)) — LSG-Gesellschaft zur Wahrnehmung von Leistungsschutzrechten GmbH v Tele2 Telecommunication GmbH

(Case C-557/07) (1)

(Article 104(3) of the Rules of Procedure - Information society - Copyright and related right - Retention and disclosure of certain traffic data - Protecting the confidentiality of electronic communication - ‘Intermediaries’ within the meaning of Article 8(3) of Directive 2001/29/EC)

2009/C 113/28

Language of the case: German

Referring court

Oberster Gerichtshof (Austria)

Parties

Applicant: LSG-Gesellschaft zur Wahrnehmung von Leistungsschutzrechten GmbH

Defendant: Tele2 Telecommunication GmbH

Re:

Reference for a preliminary ruling — Oberster Gerichtshof (Austria) — Interpretation of Articles 5(1)(a) and 8(3) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10), of Article 8(3) of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (OJ 2004 L 157, p. 45) and of Articles 6 and 15 of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (OJ 2002 L 201, p. 37) — Classification as ‘intermediary’ of an internet services provider — National legislation imposing an obligation on intermediaries to supply information to individuals who are victims of an infringement of copyright for the purposes of civil proceedings — Communication to a copyright protection company of the names and addresses of the users participating in file-sharing systems.

Operative part of the order

| 1. | Community law, in particular Article 8(3) of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights, read in conjunction with Article 15(1) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), does not preclude Member States from laying down an obligation to disclose to private third parties personal data relating to Internet traffic to enable them to initiate civil proceedings for copyright infringements. However, Community law requires that Member States, when transposing Directives 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’), 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, 2002/58 and 2004/48, ensure that they rely on an interpretation of those directives which allows a fair balance to be struck between the various fundamental rights protected by the Community legal order. Further, when implementing the measures transposing those directives, the authorities and courts of Member States must not only interpret their national law in a manner consistent with those directives but also make sure that they do not rely on an interpretation of them which would be in conflict with those fundamental rights or with the other general principles of Community law, such as the principle of proportionality. |
| --- | --- |

1.

Community law, in particular Article 8(3) of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights, read in conjunction with Article 15(1) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), does not preclude Member States from laying down an obligation to disclose to private third parties personal data relating to Internet traffic to enable them to initiate civil proceedings for copyright infringements. However, Community law requires that Member States, when transposing Directives 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’), 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, 2002/58 and 2004/48, ensure that they rely on an interpretation of those directives which allows a fair balance to be struck between the various fundamental rights protected by the Community legal order. Further, when implementing the measures transposing those directives, the authorities and courts of Member States must not only interpret their national law in a manner consistent with those directives but also make sure that they do not rely on an interpretation of them which would be in conflict with those fundamental rights or with the other general principles of Community law, such as the principle of proportionality.

| 2. | An access provider, who merely provides a user with Internet access without offering other services such as inter alia email, FTP or file sharing services or exercising any control, either in law or in fact, over the services which the user makes use of, must be considered ‘intermediaries’ within the meaning of Article 8(3) of Directive 2001/29. |
| --- | --- |

2.

An access provider, who merely provides a user with Internet access without offering other services such as inter alia email, FTP or file sharing services or exercising any control, either in law or in fact, over the services which the user makes use of, must be considered ‘intermediaries’ within the meaning of Article 8(3) of Directive 2001/29.

---

(1)  OJ C 64, 8.3.2008.

---

| 16.5.2009 | EN | Official Journal of the European Union | C 113/15 |
| --- | --- | --- | --- |

16.5.2009

EN

Official Journal of the European Union

C 113/15

---

Order of the Court (Eighth Chamber) of 6 February 2009 — MPDV Mikrolab GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-17/08 P) (1)

(Appeal - Community trade mark - Regulation (EC) No 40/94 - Article 7(1)(c) - Refusal of registration - Word mark manufacturing score card - Descriptive character)

2009/C 113/29

Language of the case: German

Parties

Applicant: MPDV Mikrolab GmbH (represented by: W. Göpfert, Rechtsanwalt)

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

Re:

Appeal against the judgment of the Court of First Instance (First Chamber) of 8 November 2007 in Case T-459/05 MPDV Mikrolab v OHIM (manufacturing score card), by which the Court of First Instance dismissed the action for annulment of the decision of the Second Board of Appeal of OHIM of 19 October 2005, which dismissed the appeal against the decision of the examiner refusing registration of the word mark ‘manufacturing score card’ for goods and services in Classes 9, 35 and 42 — Distinctive character of a word mark consisting of words each of which is descriptive of the characteristics of the goods or services concerned

Operative part of the order

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

1.

The appeal is dismissed.

| 2. | MPDV Mikrolab GmbH is ordered to pay the costs. |
| --- | --- |

2.

MPDV Mikrolab GmbH is ordered to pay the costs.

---

(1)  OJ C 79, 29.3.2008.

---

| 16.5.2009 | EN | Official Journal of the European Union | C 113/15 |
| --- | --- | --- | --- |

16.5.2009

EN

Official Journal of the European Union

C 113/15

---

Order of the Court of 12 February 2009 (reference for a preliminary ruling from the Bundespatentgericht (Germany)) — Bild digital GmbH & Co. KG, formerly Bild.T-Online.de AG & Co. KG (C-39/08), ZVS Zeitungsvertrieb Stuttgart GmbH (C-43/08) v Präsident des Deutschen Patent- und Markenamts

(Joined Cases C-39/08 and C-43/08) (1)

(First subparagraph of Article 103(3) of the Rules of Procedure - Directive 89/104/EEC - Applications for registration of trade marks - Examination on a case-by-case basis - Failure to take account of earlier decisions - Manifest inadmissibility)

2009/C 113/30

Language of the case: German

Referring court

Bundespatentgericht (Germany)

Parties

Applicants: Bild digital GmbH & Co. KG, formerly Bild.T-Online.de AG & Co. KG (C 39/08), ZVS Zeitungsvertrieb Stuttgart GmbH (C 43/08)

Defendant: Präsident des Deutschen Patent- und Markenamts

Re:

Reference for a preliminary ruling — Bundespatentgericht (Germany) — Interpretation of Article 3 of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1) — Examination of applications for registration of trade marks on a case-by-case basis without account being taken of earlier decisions in similar situations — Refusal to register a trade mark applied for by the proprietor of a series of similar marks

Operative part of the order

The competent authority of a Member State required to rule on an application for registration of a trade mark is not required to disregard the grounds for refusal of registration set out in Article 3(1)(a), (b) and (c) of Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks, as amended by Council Decision 92/10/EEC of 19 December 1991, and to grant that application on the ground that the sign for which registration as a trade mark is sought is composed in a manner identical or comparable to a sign which it has already accepted for registration as a trade mark and which refers to identical or similar goods or services.

---

(1)  OJ C 107, 26.4.2008.

---

| 16.5.2009 | EN | Official Journal of the European Union | C 113/16 |
| --- | --- | --- | --- |

16.5.2009

EN

Official Journal of the European Union

C 113/16

---

Order of the Court (Second Chamber) of 19 February 2009 (reference for a preliminary ruling from the Hof van Cassatie van België — Belgium) — UDV North America Inc v Brandtraders NV

(Case C-62/08) (1)

(Article 104(3), second subparagraph, of the Rules of Procedure - Community trade mark - Regulation (EC) No 40/94 - Article 9(1)(a) and (2)(d) - Right of the proprietor of a registered mark to prevent the use by a third party of a sign which is identical to the mark - Concept of ‘use’ - Use of a sign which is identical to the mark by a trade intermediary in its business papers - Intermediary acting in its own name but on behalf of a vendor)

2009/C 113/31

Language of the case: Dutch

Referring court

Hof van Cassatie van België

Parties to the main proceedings

Applicant: UDV North America Inc

Defendant: Brandtraders NV

Re:

Reference for a preliminary ruling — Hof van Cassatie van België — Interpretation of Article 9(1) and 2(d) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1) — Right of the proprietor of a mark to oppose its use by a third party — Concept of use of the mark.

Operative part of the order

The concept of ‘use’ for the purpose of Article 9(1)(a) and (2)(d) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark covers a situation, such as that at issue in the main proceedings, in which a trade intermediary, which is acting in its own name but on behalf of the vendor and is thus not an interested party in relation to trade in goods in which it is itself a contractual party, uses, in its business papers, a sign which is identical with a Community trade mark in relation to goods or services which are identical with those for which the mark is registered.

---

(1)  OJ C 107, 26.4.2008.

---

| 16.5.2009 | EN | Official Journal of the European Union | C 113/16 |
| --- | --- | --- | --- |

16.5.2009

EN

Official Journal of the European Union

C 113/16

---

Order of the Court of 5 February 2009 (reference for a preliminary ruling from the Lietuvos vyriausiasis administracinis teismas) — Mechel Nemunas UAB v Valstybinė mokesčių inspekcija prie Lietuvos respublikos finansų ministerijos

(Case C-119/08) (1)

(First subparagraph of Article 104(3) of the Rules of Procedure - First VAT Directive - Sixth VAT Directive - Article 33(1) - Concept of ‘turnover taxes’ - Tax calculated on the basis of an undertaking’s turnover to finance the maintenance and development programme for national roads)

2009/C 113/32

Language of the case: Lithuanian

Referring court

Lietuvos vyriausiasis administracinis teismas

Parties

Applicant: Mechel Nemunas UAB

Defendant: Valstybinė mokesčių inspekcija prie Lietuvos respublikos finansų ministerijos

Re:

Reference for a preliminary ruling — Lietuvos vyriausiasis administracinis teismas — Interpretation of First Council Directive 67/227/EEC of 11 April 1967 on the harmonisation of legislation of Member States concerning turnover taxes (OJ, English Special Edition 1967, p. 14) and of Article 33 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 45, p. 1) — Lithuanian road tax calculated on the basis of an undertaking’s turnover to finance the maintenance and development programme for national roads

Operative part of the order

Article 33 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, as amended by Council Directive 91/680/EEC of 16 December 1991, must be interpreted as meaning that it does not preclude a tax such as the levy on revenue laid down by the Lithuanian Law on the financing of the road maintenance and development programme (Lietuvos Respublikos kelių priežiūros ir plėtros programos finansavimo įstatymas).

---

(1)  OJ C 128, 24.5.2008.

---

| 16.5.2009 | EN | Official Journal of the European Union | C 113/17 |
| --- | --- | --- | --- |

16.5.2009

EN

Official Journal of the European Union

C 113/17

---

Order of the Court (Fifth Chamber) of 30 January 2009 — Dorel Juvenile Group, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-131/08) (1)

(Appeal - Community trade mark - Regulation (EC) No 40/94 - Article 7(1)(b) - Application for word mark SAFETY 1ST - Lack of distinctive character - Refusal of registration)

2009/C 113/33

Language of the case: English

Parties

Applicant: Dorel Juvenile Group, Inc. (represented by: G. Simon, Rechtsanwältin)

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

Re:

Appeal against the judgment of the Court of First Instance (Fifth Chamber) of 24 January 2008 in Case T-88/06 Dorel Juvenile Group, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) by which the Court dismissed an action for annulment of the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 11 January 2006 (Case R 616/2004-2) dismissing the appeal against the examiner’s decision which refused to register the word mark ‘SAFETY 1ST’ for goods in Classes 12, 20, 21 and 28 — Distinctive character of a trade mark — Article 7(1)(b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1)

Operative part of the order

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

1.

The appeal is dismissed.

| 2. | Dorel Juvenile Group, Inc. is ordered to pay the costs. |
| --- | --- |

2.

Dorel Juvenile Group, Inc. is ordered to pay the costs.

---

(1)  OJ C 158, 21.6.2008.

---

| 16.5.2009 | EN | Official Journal of the European Union | C 113/17 |
| --- | --- | --- | --- |

16.5.2009

EN

Official Journal of the European Union

C 113/17

---

Order of the Court of 5 March 2009 — Commission of the European Communities v Provincia di Imperia

(Case C-183/08 P) (1)

(Appeal - Article 119 of the Rules of Procedure - Conditions governing the admissibility of an action for annulment - Interest in bringing an action - Call for proposals regarding the financing of innovative actions under the European Social Fund - Dismissal - Benefit for the applicant arising from a possible annulment of the contested act)

2009/C 113/34

Language of the case: French

Parties

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

Other party to the proceedings: Provincia di Imperia (represented by: K. Platteau and S. Rostagno, avocats)

Re:

Appeal against the judgment of the Court of First Instance (Fifth Chamber) of 14 February 2008 in Case T-351/05 Provincia di Imperia v Commission, by which the Court of First Instance declared admissible (but unfounded) the action brought by the applicant, seeking the annulment of the Commission’s decision of 30 June 2005 to refuse to grant a subsidy in the context of a call for proposals concerning innovative measures under the European Social Fund — Infringement of the conditions governing the admissibility of an action for annulment — The notion of an interest in bringing an action — No benefit for the applicant arising from a possible annulment of the contested act

Operative part of the order

| 1. | The appeal is dismissed as manifestly unfounded. |
| --- | --- |

1.

The appeal is dismissed as manifestly unfounded.

| 2. | The Commission of the European Communities shall bear its own costs. |
| --- | --- |

2.

The Commission of the European Communities shall bear its own costs.

---

(1)  OJ C 209, 15.8.2008.

---

| 16.5.2009 | EN | Official Journal of the European Union | C 113/18 |
| --- | --- | --- | --- |

16.5.2009

EN

Official Journal of the European Union

C 113/18

---

Order of the Court (Fifth Chamber) of 20 January 2009 — Sebirán S.L. v Office for Harmonisation in the Internal Market (Trade Marks and Designs), El Coto de Rioja S.A.

(Case C-210/08 P) (1)

(Appeal - Community trade mark - Regulation (EC) No 40/94 - Article 8(1)(b) - Likelihood of confusion - Figurative mark Coto D’Arcis - Opposition by the proprietor of word marks COTO DE IMAZ and EL COTO - Partial refusal to register)

2009/C 113/35

Language of the case: Spanish

Parties

Appellant: Sebirán S.L. (represented by: J.A. Calderón Chavero, abogado)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: J. Laporta Insa, Agent), El Coto de Rioja S.A. (represented by: J. Grimau Muñoz and J. Villamor Muguerza, abogados)

Re:

Appeal against the judgment of the Court of First Instance (Fourth Chamber) delivered on 12 March 2008 in Case T-332/04 Sebirán v OHIM and El Coto de Rioja in which the Court dismissed the application of Sebirán S.L. for 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)

Operative part of the order

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

1.

The appeal is dismissed.

| 2. | Sebirán S.L. is ordered to pay the costs. |
| --- | --- |

2.

Sebirán S.L. is ordered to pay the costs.

---

(1)  OJ C 183, 19.7.2008.

---

| 16.5.2009 | EN | Official Journal of the European Union | C 113/18 |
| --- | --- | --- | --- |

16.5.2009

EN

Official Journal of the European Union

C 113/18

---

Order of the Court of 3 February 2009 — Massimo Giannini v Commission of the European Communities

(Case C-231/08 P) (1)

(Appeal - Community civil service - Right to a fair hearing - Infringement of Articles 4, 27 and 29 of the Staff Regulations - Principle of non-discrimination - Interest of the service and duty of care - Distortion of the evidence and rules on evidence - Appeal manifestly inadmissible in part and manifestly unfounded in part)

2009/C 113/36

Language of the case: French

Parties

Appellant: Massimo Giannini (represented by: L. Levi and C. Ronzi, avocats)

Other party to the proceedings: Commission of the European Communities (represented by: G. Berscheid and L. Lozano Palacios, Agents)

Re:

Appeal against the judgment of the Court of First Instance (Third Chamber) delivered on 12 March 2008 in Case T-100/04 Giannani v Commission in which the Court dismissed the appellant’s 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 in the fields of economics and statistics not to include his name on the competition reserve list and for damages to be awarded — Infringement of right to a fair hearing by reason of the excessive length of the procedure — Infringement of Articles 4, 27 and 29 of the Staff Regulations and the concepts of interest of the service and duty of care — Infringement of the principle of non-discrimination and the rules on evidence

Operative part of the order

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

1.

The appeal is dismissed.

| 2. | The appellant is ordered to pay the costs. |
| --- | --- |

2.

The appellant is ordered to pay the costs.

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(1)  OJ C 223, 30.8.2008.

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| 16.5.2009 | EN | Official Journal of the European Union | C 113/19 |
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Official Journal of the European Union

C 113/19

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Order of the Court of 3 March 2009 — Christos Michail v Commission of the European Communities

(Case C-268/08 P) (1)

(Appeal - Staff case - Articles 12a and 24 of the Staff Regulations - Psychological harassment - Duty to provide assistance - Distortion of facts - Errors in the legal assessment of the facts)

2009/C 113/37

Language of the case: French

Parties

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

Other party to the proceedings: Commission of the European Communities (represented by: G. Berscheid and J. Currall, Agents, E. Bourtzalas and I. Antypas, lawyers)

Re:

Appeal against the judgment of the Court of First Instance (First Chamber) delivered on 16 April 2008 in Case T-486/04 Michail v Commission in which the Court dismissed the appellant’s action for annulment of the Commission’s implied decision of 20 March 2004 rejecting the request for assistance made by the appellant pursuant to Article 24 of the Staff Regulations — Infringement of Article 12a of the Staff Regulations — Psychological harassment — Distortion of facts — Errors made in the legal assessment of the facts

Operative part of the order

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

1.

The appeal is dismissed.

| 2. | The appellant is ordered to pay the costs. |
| --- | --- |

2.

The appellant is ordered to pay the costs.

---

(1)  OJ C 223, 30.8.2008.

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| 16.5.2009 | EN | Official Journal of the European Union | C 113/19 |
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Reference for a preliminary ruling from the Amtsgericht Charlottenburg (Germany) lodged on 17 November 2008 — Amiraike Berlin GmbH Aero and Campus Cottbus Ltd.

(Case C-497/08)

2009/C 113/38

Language of the case: German

Referring court

Amtsgericht Charlottenburg

Parties to the main proceedings

Applicant: Amiraike Berlin GmbH

Other party: Aero Campus Cottbus Ltd

Question referred

Are the provisions of primary Community law, in particular, Articles 10 EC, 43 EC and 48 EC and the principle according to which Member States as between each other must accord mutual recognition to their respective legal orders to be interpreted as meaning that in ratifying Community law a Member State (‘the first Member State’) has indicated, in principle, its acceptance of the effects on its national territory of expropriatory measures imposed under the legal order of a second Member State, at any rate, where the company (created as a matter of private law) affected by the expropriatory measure previously elected on an intentional basis — exercising its Community right to freedom of establishment — to submit itself to the company law regime of the second Member State, responsible for imposing the expropriation, notwithstanding the fact that it exercises its business activities in the first Member State and holds company assets affected by the expropriatory measure situated in that State?

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| 16.5.2009 | EN | Official Journal of the European Union | C 113/19 |
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16.5.2009

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Official Journal of the European Union

C 113/19

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Reference for a preliminary ruling from the Bundesfinanzhof (Germany), lodged on 11 February 2009 — Leo-Libera GmbH v Finanzamt Buchholz in der Nordheide

(Case C-58/09)

2009/C 113/39

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Claimant: Leo-Libera GmbH

Defendant: Finanzamt Buchholz in der Nordheide

Question referred

Is Article 135(1)(i) of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax to be interpreted as meaning that Member States are permitted to have a rule under which only specified forms of (race) betting and lotteries are exempt from tax, and all ‘other forms of gambling’ are excluded from the tax exemption?

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

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| 16.5.2009 | EN | Official Journal of the European Union | C 113/20 |
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Official Journal of the European Union

C 113/20

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Reference for a preliminary ruling from the Oberverwaltungsgericht Rheinland-Pfalz (Germany) lodged on 11 February 2009 — Landkreis Bad Dürkheim v Aufsichts- und Dienstleistungsdirektion, interested party: Frau Astrid Niedermair-Schiemann

(Case C-61/09)

2009/C 113/40

Language of the case: German

Referring court

Oberverwaltungsgericht Rheinland-Pfalz

Parties to the main proceedings

Applicant: Landkreis Bad Dürkheim

Defendant: Aufsichts- und Dienstleistungsdirektion

Interested party: Frau Astrid Niedermair-Schiemann

Questions referred

| 1. | Is there also an ‘agricultural area’ in the sense of Article 44(2) of Regulation (EC) No 1782/2003 (1) if that area is admittedly also used for agricultural purposes (grazing for sheep farming purposes) but the overriding objective is to achieve the aims of landscape management and nature conservation? |
| --- | --- |

1.

Is there also an ‘agricultural area’ in the sense of Article 44(2) of Regulation (EC) No 1782/2003 (1) if that area is admittedly also used for agricultural purposes (grazing for sheep farming purposes) but the overriding objective is to achieve the aims of landscape management and nature conservation?

| 2. | If Question 1 is to be answered in the affirmative:
  Is an area used for non-agricultural activities in the sense of Article 44(2) of Regulation (EC) No 1782/2003 if the overriding purpose of the activity is nature conservation or in any case if the farmer is subject to the instructions of the nature conservation authority when fulfilling nature conservation objectives? |
| --- | --- |

2.

If Question 1 is to be answered in the affirmative:

Is an area used for non-agricultural activities in the sense of Article 44(2) of Regulation (EC) No 1782/2003 if the overriding purpose of the activity is nature conservation or in any case if the farmer is subject to the instructions of the nature conservation authority when fulfilling nature conservation objectives?

| 3. | If there is an agricultural area (Question 1), which is also used for an agricultural activity (Question 2):
  Does the allocation of an agricultural area to a holding (agricultural area of the holding in the sense of Article 44(2) of Regulation (EC) No 1782/2003) require:






  (a) | that it be at the disposal of the holding against payment on the basis of a lease or another similar temporary transaction? |
| --- | --- | --- |

3.

If there is an agricultural area (Question 1), which is also used for an agricultural activity (Question 2):

Does the allocation of an agricultural area to a holding (agricultural area of the holding in the sense of Article 44(2) of Regulation (EC) No 1782/2003) require:

(a)

that it be at the disposal of the holding against payment on the basis of a lease or another similar temporary transaction?

| (b) | If (a) is to be answered in the negative: is it without prejudice to the allocation to the holding if occupation of the areas is allowed, without charge or in return only for taking over the contributions to the trade association, for use of a specific nature and for a limited period of time in accordance with the objectives of nature conservation? |
| --- | --- |

(b)

If (a) is to be answered in the negative: is it without prejudice to the allocation to the holding if occupation of the areas is allowed, without charge or in return only for taking over the contributions to the trade association, for use of a specific nature and for a limited period of time in accordance with the objectives of nature conservation?

| (c) | If (a) is to be answered in the affirmative: is it without prejudice to the allocation to the holding if the holding is obliged to carry out certain tasks on the land in return for payment? |
| --- | --- |

(c)

If (a) is to be answered in the affirmative: is it without prejudice to the allocation to the holding if the holding is obliged to carry out certain tasks on the land in return for payment?

---

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

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| 16.5.2009 | EN | Official Journal of the European Union | C 113/20 |
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Appeal brought on 17 February 2009 by the Comitato ‘Venezia vuole vivere’ against the judgment delivered on 28 November 2008 in Joined Cases T-254/00, T-270/00 and T-277/00 Hotel Cipriani SpA and Others v Commission

(Case C-71/09 P)

2009/C 113/41

Language of the case: Italian

Parties

Appellant: Comitato ‘Venezia vuole vivere’ (represented by: A. Vianello, avvocato)

Other parties to the proceedings: Hotel Cipriani SpA, Società Italiana per il gas SpA (Italgas), Italian Republic, Coopservice — Servizi di fiducia Soc. coop. rl, Commission of the European Communities

Form of order sought

The appellant claims that the Court should:

| — | uphold the present appeal; |
| --- | --- |

—

uphold the present appeal;

| — | set aside the judgment of the Court of First Instance of the European Communities (Sixth Chamber, Extended Composition) of 28 November 2008 in Joined Cases T-254/00, T-270/00 and T-277/00 Comitato Venezia Vuole Vivere v Commission of the European Communities, notified on 3 December 2008, and annul Commission Decision 2000/394/EC (1) of 25 November 1999, failing which, annul Article 5 of that decision in so far as it imposes an obligation to recover the amount accounted for by the social security relief in question and provides for interest to be applied to that amount in respect of the period in question; |
| --- | --- |

—

set aside the judgment of the Court of First Instance of the European Communities (Sixth Chamber, Extended Composition) of 28 November 2008 in Joined Cases T-254/00, T-270/00 and T-277/00 Comitato Venezia Vuole Vivere v Commission of the European Communities, notified on 3 December 2008, and annul Commission Decision 2000/394/EC (1) of 25 November 1999, failing which, annul Article 5 of that decision in so far as it imposes an obligation to recover the amount accounted for by the social security relief in question and provides for interest to be applied to that amount in respect of the period in question;

| — | order the Commission to pay the costs of the proceedings both at first instance and before the Court of Justice. |
| --- | --- |

—

order the Commission to pay the costs of the proceedings both at first instance and before the Court of Justice.

Pleas in law and main arguments

The Comitato Venezia Vuole Vivere (‘the Committee’) relies on six pleas in law in support of its appeal.

By the first plea, the Committee maintains that the Court of First Instance erred in law, infringing Article 87(1) EC, and failed to fulfil its obligation under Article 253 EC to state reasons. In particular, the judgment under appeal does not adequately examine the compensatory nature of the aid covered by the contested decision or the effects of that aid on the market, failing to state the related grounds, and breaches the principle of non-discrimination and equal treatment so far as concerns the examination of the situation of the municipalised undertakings vis-à-vis the applicant undertakings.

By the second plea, the Committee alleges infringement of Article 86(2) EC and, in particular, failure to examine the applicability to the case before it of the derogation relating to the operation of services of general economic interest. By contrast, such an examination was carried out in the case of the municipalised undertakings.

By the third plea, alleging infringement of Article 87(3) EC, the Committee criticises the approach taken in the judgment under appeal so far as concerns the Commission’s absolute discretion regarding the applicability of the derogation relating to regional difficulties and so far as concerns the lack of an adequate examination of circumstances of the case.

By the fourth plea, the Committee alleges infringement of Article 87(3((d) EC and, in particular, criticises the granting to the Consorzio Venezia Nuova of the derogation for ‘cultural’ purposes and the failure to undertake an examination of that aspect in the case of the other undertakings.

By the fifth plea, the Committee criticises the failure to attribute due significance to the continuity between the aid found to be unlawful (introduced after June 1994) and the rules previously in force (as far back as 1973), in breach of Articles 1 and 15 of Council Regulation (EC) No 659/1999 (2) of 22 March 1999 laying down detailed rules for the application of Article [88 EC].

By the sixth plea, the Committee criticises the automatic nature of the order for recovery, maintaining that this is in breach of Article 14 of Regulation No 659/99.

---

(1)  Commission Decision 2000/394/EC of 25 November 1999 on aid to firms in Venice and Chioggia by way of relief from social security contributions under Laws Nos 30/1997 and 206/1995 (OJ 2000 L 150, p. 50).

(2)  OJ 1999 L 83, p. 1.

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| 16.5.2009 | EN | Official Journal of the European Union | C 113/21 |
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16.5.2009

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Official Journal of the European Union

C 113/21

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Appeal brought on 16 February 2009 by Hotel Cipriani SpA against the judgment delivered on 28 November 2008 in Joined Cases T-254/00, T-270/00 and T-277/00 Hotel Cipriani SpA and Others v Commission

(Case C-73/09 P)

2009/C 113/42

Language of the case: Italian

Parties

Appellant: Hotel Cipriani SpA (represented by: A. Bianchini, avvocato)

Other parties to the proceedings: Società Italiana per il gas SpA (Italgas), Italian Republic, Coopservice — Servizi di fiducia Soc. coop. rl, Comitato ‘Venezia vuole vivere’, Commission of the European Communities

Form of order sought

The appellant claims that the Court should:

| — | set aside the judgment of the Court of First Instance; |
| --- | --- |

—

set aside the judgment of the Court of First Instance;

| — | uphold the forms of order sought at first instance and, in consequence:






  — | annul the Commission decision (1) contested at first instance; |
| --- | --- | --- |

—

uphold the forms of order sought at first instance and, in consequence:

—

annul the Commission decision (1) contested at first instance;

| — | in the lesser alternative, annul Article 5 of that decision in so far as the order for recovery provided for therein was interpreted by the Commission as covering also the aid granted on the basis of the de minimis principle and/or annul Article 5 in so far as it provides for interest to be paid at a rate which is higher than that actually paid by the appellant on its own debts; |
| --- | --- |

—

in the lesser alternative, annul Article 5 of that decision in so far as the order for recovery provided for therein was interpreted by the Commission as covering also the aid granted on the basis of the de minimis principle and/or annul Article 5 in so far as it provides for interest to be paid at a rate which is higher than that actually paid by the appellant on its own debts;

| — | order the Commission to pay the costs of the proceedings both at first instance and before the Court of Justice. |
| --- | --- |

—

order the Commission to pay the costs of the proceedings both at first instance and before the Court of Justice.

Pleas in law and main arguments

| 1. | By the first plea in law, Hotel Cipriani alleges infringement and misapplication of Article 87(1) EC, together with the statement of inadequate/contradictory grounds for the judgment under appeal. The laws and regulations found to be incompatible with Article 87 EC in no way distort or threaten to distort competition on the common market in hotel and catering (the very market on which Hotel Cipriani operates), the reasons being that (i) the city of Venice is such a special context that it does not affect the common market in any way, and (ii) the social security relief at issue was granted merely in order to offset the additional costs borne by the undertakings concerned on account of the difficulties inherent in operating on the relevant geographical market in accordance with the same conditions as the other areas of the European common market. The Court of First Instance failed to take proper account of those special circumstances, and simply concluded — without considering this issue in sufficient depth — that the advantages derived by the Venetian undertakings outweighed the disadvantages relating to their location: hence the claim that the grounds for the judgment under appeal are either inadequate or contradictory. |
| --- | --- |

1.

By the first plea in law, Hotel Cipriani alleges infringement and misapplication of Article 87(1) EC, together with the statement of inadequate/contradictory grounds for the judgment under appeal. The laws and regulations found to be incompatible with Article 87 EC in no way distort or threaten to distort competition on the common market in hotel and catering (the very market on which Hotel Cipriani operates), the reasons being that (i) the city of Venice is such a special context that it does not affect the common market in any way, and (ii) the social security relief at issue was granted merely in order to offset the additional costs borne by the undertakings concerned on account of the difficulties inherent in operating on the relevant geographical market in accordance with the same conditions as the other areas of the European common market. The Court of First Instance failed to take proper account of those special circumstances, and simply concluded — without considering this issue in sufficient depth — that the advantages derived by the Venetian undertakings outweighed the disadvantages relating to their location: hence the claim that the grounds for the judgment under appeal are either inadequate or contradictory.

| 2. | By the second plea in law, Hotel Cipriani alleges infringement and misapplication of Article 87(3)(c) EC, together with unsound reasoning in the grounds stated for the judgment under appeal. First the Commission, and then the Court of First Instance, erred in concluding that the regional derogation provided for under Article 87(3)(c) EC did not apply: as is amply attested by the documents produced before the Court of First Instance, the relevant geographical market justified the social security relief granted under the Italian legislation, because it was designed solely to preserve the socio-economic fabric of the city of Venice, and not — as is also clear from the first plea in law — to bring about any anti-competitive distortion of trade on the common market. |
| --- | --- |

2.

By the second plea in law, Hotel Cipriani alleges infringement and misapplication of Article 87(3)(c) EC, together with unsound reasoning in the grounds stated for the judgment under appeal. First the Commission, and then the Court of First Instance, erred in concluding that the regional derogation provided for under Article 87(3)(c) EC did not apply: as is amply attested by the documents produced before the Court of First Instance, the relevant geographical market justified the social security relief granted under the Italian legislation, because it was designed solely to preserve the socio-economic fabric of the city of Venice, and not — as is also clear from the first plea in law — to bring about any anti-competitive distortion of trade on the common market.

| 3. | By the third plea in law, Hotel Cipriani alleges infringement and misapplication of Article 87(3)(d) EC, together with unsound reasoning in the grounds stated for the judgment under appeal. In the case before the Court of First Instance, the social security relief had clearly been granted in order to facilitate the preservation of the undeniable cultural and artistic heritage of the city of Venice, which entails significant costs for the undertakings located in the lagoon areas, which undertakings located elsewhere do not have to bear. In rejecting those arguments — put forward, inter alia, by Hotel Cipriani — the judgment under appeal states, wrongly, that there was insufficient documentary evidence of the reasons for which, item by item, the costs linked to the preservation of the cultural and artistic heritage of Venice were borne by the applicant undertakings. That statement is wrong in a number of respects, and especially because ample documentation had been produced, even before the Commission, substantiating the fact that the entire historic city centre is, as such, subject to indiscriminate restrictions for the preservation of the buildings and architectural heritage. |
| --- | --- |

3.

By the third plea in law, Hotel Cipriani alleges infringement and misapplication of Article 87(3)(d) EC, together with unsound reasoning in the grounds stated for the judgment under appeal. In the case before the Court of First Instance, the social security relief had clearly been granted in order to facilitate the preservation of the undeniable cultural and artistic heritage of the city of Venice, which entails significant costs for the undertakings located in the lagoon areas, which undertakings located elsewhere do not have to bear. In rejecting those arguments — put forward, inter alia, by Hotel Cipriani — the judgment under appeal states, wrongly, that there was insufficient documentary evidence of the reasons for which, item by item, the costs linked to the preservation of the cultural and artistic heritage of Venice were borne by the applicant undertakings. That statement is wrong in a number of respects, and especially because ample documentation had been produced, even before the Commission, substantiating the fact that the entire historic city centre is, as such, subject to indiscriminate restrictions for the preservation of the buildings and architectural heritage.

| 4. | By the fourth plea in law, Hotel Cipriani alleges that the provision made for the compulsory recovery of the amounts accounted for by the aid is unlawful, in that it is contrary to Article 14(1) of Council Regulation (EC) No 659/1999 (2) of 22 March 1999 laying down detailed rules for the application of Article [88 EC]. The rule laid down in that provision as regards recovery does not apply where, in the circumstances of the case, it would be contrary to a general principle of Community law; such principles were identified before the Court of First Instance, namely, the principles of proportionality, equal treatment and legal certainty. |
| --- | --- |

4.

By the fourth plea in law, Hotel Cipriani alleges that the provision made for the compulsory recovery of the amounts accounted for by the aid is unlawful, in that it is contrary to Article 14(1) of Council Regulation (EC) No 659/1999 (2) of 22 March 1999 laying down detailed rules for the application of Article [88 EC]. The rule laid down in that provision as regards recovery does not apply where, in the circumstances of the case, it would be contrary to a general principle of Community law; such principles were identified before the Court of First Instance, namely, the principles of proportionality, equal treatment and legal certainty.

| 5. | By the fifth plea in law, Hotel Cipriani alleges infringement of Article 15 of Regulation No 659/99. In the case of the Commission’s decision of 25 November 1999, the 10-year limitation period specified in Article 15 of Regulation No 659/99 (which clearly applies ratione temporis to the present case) had already expired, with the result that, as regards the effects of the State aid at issue, reference must be made to Law No 171/1973, the ‘Special law for Venice’. |
| --- | --- |

5.

By the fifth plea in law, Hotel Cipriani alleges infringement of Article 15 of Regulation No 659/99. In the case of the Commission’s decision of 25 November 1999, the 10-year limitation period specified in Article 15 of Regulation No 659/99 (which clearly applies ratione temporis to the present case) had already expired, with the result that, as regards the effects of the State aid at issue, reference must be made to Law No 171/1973, the ‘Special law for Venice’.

---

(1)  Commission Decision 2000/394/EC of 25 November 1999 on aid to firms in Venice and Chioggia by way of relief from social security contributions under Laws Nos 30/1997 and 206/1995 (OJ 2000 L 150, p. 50).

(2)  OJ 1999 L 83, p. 1.

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| 16.5.2009 | EN | Official Journal of the European Union | C 113/22 |
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Appeal brought on 19 February 2009 by Società Italiana per il gas SpA (Italgas) against the judgment delivered on 28 November 2008 in Joined Cases T-254/00, T-270/00 and T-277/00 Hotel Cipriani and Others v Commission

(Case C-76/09 P)

2009/C 113/43

Language of the case: Italian

Parties

Appellant: Società Italiana per il gas SpA (Italgas) (represented by: M. Merola, M. Pappalardo, T. Ubaldi, avvocati)

Other parties to the proceedings: Hotel Cipriani SpA, Italian Republic, Coopservice — Servizi di fiducia Soc. coop. rl, Comitato ‘Venezia vuole vivere’, Commission of the European Communities

Form of order sought

The appellant claims that the Court should:

| — | set aside the judgment under appeal; |
| --- | --- |

—

set aside the judgment under appeal;

| — | annul Articles 1 and 2 of the decision, (1) in so far as they declare that the tax relief granted by Italy is incompatible with the common market, and Article 5 thereof or, in the alternative, refer the case back to the Court of First Instance in accordance with Article 61 of the Statute of the Court of Justice; |
| --- | --- |

—

annul Articles 1 and 2 of the decision, (1) in so far as they declare that the tax relief granted by Italy is incompatible with the common market, and Article 5 thereof or, in the alternative, refer the case back to the Court of First Instance in accordance with Article 61 of the Statute of the Court of Justice;

| — | order the Commission to pay the costs of the proceedings both at first instance and before the Court of Justice. |
| --- | --- |

—

order the Commission to pay the costs of the proceedings both at first instance and before the Court of Justice.

Pleas in law and main arguments

By the first plea in law, Italgas alleges an error of law in the application of Article 87(1) EC and faulty reasoning in the grounds stated for the judgment under appeal in relation to the compensatory nature of the relief at issue and in relation to the evidence of distortion of competition and the affecting of trade. Although the Court of First Instance acknowledged that a measure does not constitute State aid if it merely offsets objective financial disadvantages, it erred in holding that that principle did not apply to the case before it because: (i) there must be a direct connection between the amount of the compensation and the amount of the additional costs borne by the undertakings on account of their location in the lagoon areas of Venice and Chioggia; (ii) the additional costs borne by the beneficiary undertakings must be assessed in relation to the average costs borne by undertakings in the Community, not in relation to the average costs borne by undertakings located on the Italian mainland. Moreover, the Court of First Instance failed to note the contradiction in the contested decision where the Commission, appraising the position of the undertaking responsible for operating water services, found that it is possible to categorise a measure as compensatory even where the public service does not precisely account for the additional costs borne by the undertakings, and that these need not necessarily be calculated by reference to the average costs borne by undertakings in the Community.

By the second plea in law, Italgas alleges an error in law in the application of Article 87(1) EC and the Community case-law concerning the burden of proof, in relation to the Commission’s categorisation of the measure at issue as State aid for the purposes of Article 87(1), and faulty reasoning in the grounds stated for the judgment under appeal. In particular, the Court of First Instance erred in holding that it was for the Italian Republic and the interested third parties, not for the Commission, to show that the pre-conditions for the application of Article 87(1) EC were not satisfied in the case of certain categories of undertaking or sectors of activity concerned by the social security relief, concluding that the contested decision did not infringe Article 87(1) EC or the principle of equal treatment and was not weakened by the contradictory or faulty nature of the reasons stated. Furthermore, the Court of First Instance failed to address the plea raised by Italgas in its own application, alleging infringement of Article 87(1) in relation to the principle of non-discrimination and the manifestly contradictory nature of the reasons stated in the context of the examination of the derogation provided for in Article 86(2) EC.

By the third plea in law, Italgas alleges distortion of the facts and evidence, and an error of law relating to the observance of procedural obligations and the principle that the Commission is under a duty to carry out a diligent and impartial examination. It is clear from the documents produced in the course of the proceedings at first instance that the Court of First Instance distorted the facts and the evidence before it and committed a serious error in law in failing to point out that the Commission had not fulfilled its procedural obligations or the obligation, incumbent upon it in the exercise of its powers under Articles 87 and 88 EC, to carry out a diligent, accurate and non-discriminatory examination.

By the fourth plea in law, Italgas alleges an error of law, together with insufficient and contradictory grounds stated for the judgment under appeal, in the assessment of the failure to state adequate reasons for the contested decision, as regards the legal implications of the Commission’s letters of 29 August 2001 and 29 October 2001 in relation to the examination of the conditions concerning the effects of the relief at issue on competition and trade. In the light of the rules and principles underpinning the system established by the Treaty for the control of State aid, the position of the Court of First Instance is erroneous and unsupported by adequate grounds in so far as: (i) the Court concluded that the reasons stated for the contested decision were sufficient to enable the Italian authorities to identify the undertakings under an obligation to return the aid received, for the implementation of the contested decision; (ii) the Court minimised the legal implications of the details and additional information which the Commission communicated to the Italian authorities by the letters of 29 August 2001 and 29 October 2001, categorising those letters as acts which fell within the scope of the duty of cooperation in good faith between the Commission and the national authorities.

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(1)  Commission Decision 2000/394/EC of 25 November 1999 on aid to firms in Venice and Chioggia by way of relief from social security contributions under Laws Nos 30/1997 and 206/1995 (OJ 2000 L 150, p. 50).

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| 16.5.2009 | EN | Official Journal of the European Union | C 113/23 |
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Reference for a preliminary ruling from the Conseil d'État (France) lodged on 2 March 2009 — Graphic Procédé v Ministère du budget, des comptes publics et de la fonction publique

(Case C-88/09)

2009/C 113/44

Language of the case: French

Referring court

Conseil d'État

Parties to the main proceedings

Applicant: Graphic Procédé

Defendant: Ministère du budget, des comptes publics et de la fonction publique

Question referred

What are the criteria to be employed in order to determine whether reprographics is a supply of goods or a provision of services [for the purposes 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] (1)?

---

(1)  OJ 1977 L 145, p. 1.

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Action brought on 2 March 2009 — Commission of the European Communities v French Republic

(Case C-89/09)

2009/C 113/45

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: G. Rozet and E. Traversa, Agents)

Defendant: French Republic

Form of order sought

| — | Declare that, by limiting to a maximum of one-quarter the shares and therefore the voting rights in a Société d’Exercice Libéral à Responsabilité Limitée (limited liability company formed by persons carrying on a professional activity) operating medical laboratories which can be held by persons who are not biologists and by prohibiting holdings of capital in more than two companies established in order jointly to operate one or more medical laboratories, the French Republic has failed to fulfil its obligations under Article 43 of the EC Treaty; |
| --- | --- |

—

Declare that, by limiting to a maximum of one-quarter the shares and therefore the voting rights in a Société d’Exercice Libéral à Responsabilité Limitée (limited liability company formed by persons carrying on a professional activity) operating medical laboratories which can be held by persons who are not biologists and by prohibiting holdings of capital in more than two companies established in order jointly to operate one or more medical laboratories, the French Republic has failed to fulfil its obligations under Article 43 of the EC Treaty;

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

—

Order the French Republic to pay the costs.

Pleas in law and main arguments

The Commission submits two pleas in law in support of its action, alleging infringement of Article 43 of the EC Treaty.

By its first plea, the applicant maintains that, by limiting to a maximum of 25% of the authorised capital of Sociétés d’Exercice Libéral à Responsabilité Limitée operating medical laboratories the shares held by shareholders not carrying on a professional activity, the national legislation restricts unduly the freedom of establishment guaranteed by the Treaty. The objective of protection of public health, referred to by the defendant as a justification, could be achieved by measures less restrictive than those at issue in the present case. The Commission claims in that regard that, while it seems justified to require that medical analyses be carried out by competent staff with the appropriate professional qualifications, to require such qualifications for the mere holding of shares in or right to operate medical laboratories seems on the other hand disproportionate with regard to the objective pursued.

By its second plea in law, the Commission criticises the general prohibition on persons not carrying on a professional activity from holding capital in more than two companies established in order jointly to operate one or more medical laboratories. The objective put forward by the defendant of maintaining the decision-making power and the financial independence of the persons carrying out professional activities in the sector and the need to ensure a uniform distribution of the laboratories throughout the national territory do not justify the restrictive national measures.

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| 16.5.2009 | EN | Official Journal of the European Union | C 113/24 |
| --- | --- | --- | --- |

16.5.2009

EN

Official Journal of the European Union

C 113/24

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

(Case C-93/09)

2009/C 113/46

Language of the case: German

Referring court

Verwaltungsgericht Wiesbaden

Parties to the main proceedings

Applicant: Hartmut Eifert

Defendant: Land Hessen

Interested party: Bundesanstalt für Landwirtschaft und Ernährung

Questions referred

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

1.

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

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






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

2.

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

(a)

invalid, or

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

(b)

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

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

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

3.

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

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

4.

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

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

5.

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

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

6.

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

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| 16.5.2009 | EN | Official Journal of the European Union | C 113/25 |
| --- | --- | --- | --- |

16.5.2009

EN

Official Journal of the European Union

C 113/25

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Action brought on 6 March 2009 — Commission of the European Communities v French Republic

(Case C-94/09)

2009/C 113/47

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: M. Alfonso, Agent)

Defendant: French Republic

Form of order sought

| — | Declare that, by not applying a single rate of VAT to all services provided by funeral directors, or to related supplies of goods, the French Republic has failed to fulfil its obligations under Articles 96 to 99(1) of the VAT Directive (1); |
| --- | --- |

—

Declare that, by not applying a single rate of VAT to all services provided by funeral directors, or to related supplies of goods, the French Republic has failed to fulfil its obligations under Articles 96 to 99(1) of the VAT Directive (1);

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

—

Order the French Republic to pay the costs.

Pleas in law and main arguments

By its action, the Commission claims that French tax legislation distorts the functioning of the VAT system to the extent that it applies two VAT rates to services and goods supplied by funeral directors to the families of deceased persons whereas they constitute, in practice, a single complex transaction which should be subject to a single rate of tax.

The applicant complains in particular about the unjustified splitting off by the defendant of the service involving the transportation of the body by a vehicle designed especially for that purpose, for which a reduced VAT rate is applicable, from the other services carried out by funeral directors, such as the use of persons to move the body or the supply of a coffin, which, for their part, are subject to the normal rate of VAT. According to settled case-law, a transaction which comprises a single supply from an economic point of view should not be artificially split, so as not to distort the functioning of the VAT system. In the circumstances, the vast majority of families requesting the undertaking to organise funerals would moreover consider the activities in question as forming the same single supply.

The Commission also contests the defendant’s choice to apply variable reduced rates to the services provided by funeral directors. Article 98(1) of the VAT Directive does not allow a reduced rate to be applied to certain transportation services and a normal rate to other services carried out by the undertakings in question, since that is bound to make the actual rate of tax lower than the normal rate applicable in France. In addition, the level of that reduced tax varies from transaction to transaction according to the relative extent, in each case, of the services provided at a reduced rate, which is also prohibited by the directive.

---

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

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| 16.5.2009 | EN | Official Journal of the European Union | C 113/25 |
| --- | --- | --- | --- |

16.5.2009

EN

Official Journal of the European Union

C 113/25

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Action brought on 06 March 2009 — Commission of the European Communities v Ireland

(Case C-95/09)

2009/C 113/48

Language of the case: English

Parties

Applicant: Commission of the European Communities (represented by: S. Pardo Quintillán, A.A. Gilly, Agents)

Defendant: Ireland

The applicant claims that the Court should:

declare that,

| — | by failing to fully and correctly identify sensitive areas for the purposes of Article 5(1) of Council Directive (1) 91/271/EEC of 21 May 1991 concerning urban waste water treatment; |
| --- | --- |

—

by failing to fully and correctly identify sensitive areas for the purposes of Article 5(1) of Council Directive (1) 91/271/EEC of 21 May 1991 concerning urban waste water treatment;

| — | by failing to fully and correctly transpose the requirements of Articles 3(1), 3(2), 5(2),5(3),5(4) and 5(5) of that Directive in respect of certain sensitive areas; |
| --- | --- |

—

by failing to fully and correctly transpose the requirements of Articles 3(1), 3(2), 5(2),5(3),5(4) and 5(5) of that Directive in respect of certain sensitive areas;

| — | by failing by the required deadline of 31 December 1998 to provide the level of
  treatment referred to in Article 5(2) and (3) of that Directive in respect of all urban waste water from certain agglomerations exceeding 10,000 population equivalent discharged into or into the relevant catchment areas of sensitive areas; |
| --- | --- |

—

by failing by the required deadline of 31 December 1998 to provide the level of

treatment referred to in Article 5(2) and (3) of that Directive in respect of all urban waste water from certain agglomerations exceeding 10,000 population equivalent discharged into or into the relevant catchment areas of sensitive areas;

| — | by failing for certain agglomerations to ensure that the collecting system required under Article 3(1) of that Directive complies with the requirements of Article 3(2) of that Directive; and |
| --- | --- |

—

by failing for certain agglomerations to ensure that the collecting system required under Article 3(1) of that Directive complies with the requirements of Article 3(2) of that Directive; and

| — | by failing to correctly carry out the first mandatory review referred to in Article 5(6) of that Directive by the required deadline of 31 December 1997, Ireland has failed to comply with its obligations under these articles as well as those under Article 19 of the Directive and |
| --- | --- |

—

by failing to correctly carry out the first mandatory review referred to in Article 5(6) of that Directive by the required deadline of 31 December 1997, Ireland has failed to comply with its obligations under these articles as well as those under Article 19 of the Directive and

| — | by failing to provide information requested in the letter dated 23 April 1999, Ireland has failed to comply with the obligations that it has under Article 10 of the EC Treaty. |
| --- | --- |

—

by failing to provide information requested in the letter dated 23 April 1999, Ireland has failed to comply with the obligations that it has under Article 10 of the EC Treaty.

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

—

order Ireland to pay the costs.

Pleas in law and main arguments

The Commission considers that Ireland has failed to comply with its obligations under Arts. 3, 5 and 19 of the Directive and under Art. 10 of the EC Treaty for the following reasons:

As regards the Boyne Estuary the Commission contends that, by failing to notify a formal act of identification for this area, Ireland has failed to fully and correctly identify sensitive areas in accordance with Art. 5(1) of the Directive. As regards other areas which have not been identified as sensitive the Commission accepts that Ireland has made identifications for the purposes of Art. 5(1) but contends that the currently applicable formal acts of identification are insufficiently precise in terms of demarcating the sensitive area concerned.

As regards Arts. 3(1) and (2) of the Directive Irish legislation provides for a deferment of the implementation deadline referred to in the second paragraph of Art. 3(1) from 31/12/1998 to 14/06/2001. The Commission maintains that the Directive does not provide for such a possible deferment. The Commission also notes that, for 32 areas which Ireland subsequently identified as sensitive, the national legislation failed to respect the deadline of 31/12/1998 referred to in Art. 5 of the Directive.

The Commission contends that, in relation to areas which Ireland had wrongly failed to identify as sensitive, Ireland has failed to comply practically with the provisions of Art. 3(1) and (2) and Art. 5 (2), (3) and (4) in respect of agglomerations of more than 10 000 population equivalent, and with the provisions of Art. 5 (2), (3) and (4) in respect of urban waste water treatment plants coming within the scope of Art. 5(5) of the Directive.

The Commission considers that Ireland is in breach of Art. 5(6) of the Directive because it had not carried out the first review of the identification of sensitive areas required by 31/12/1997 at the latest.

Finally the Commission considers that, in failing to provide clear cartographical information showing the extent of sensitive areas and relevant catchment areas as well as the location of agglomerations concerned by the deadline of 31/12/1998 Ireland is in breach of its duties under Art. 10 of the EC Treaty.

---

(1)  Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment OJ L 135, p. 40

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| 16.5.2009 | EN | Official Journal of the European Union | C 113/26 |
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16.5.2009

EN

Official Journal of the European Union

C 113/26

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Appeal brought on 10 March 2009 by Anheuser-Busch, Inc. against the judgment of the Court of First Instance (First Chamber) delivered on 16 December 2008 in Joined Cases T-225/06, T-255/06, T-257/06 and T-309/06: Budějovický Budvar, národní podnik v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Anheuser-Busch, Inc

(Case C-96/09 P)

2009/C 113/49

Language of the case: English

Parties

Appellant: Anheuser-Busch, Inc. (represented by: V. von Bomhard, Rechtsanwältin, B. Goebel, Rechtsanwalt)

Other parties to the proceedings: Budějovický Budvar, národní podnik, Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Form of order sought

The appellant claims that the Court should:

| 1. | set aside the judgment of the Court of First Instance of the European Communities of 16 December 2008 in Joined Cases T-225/06, T-255/06, T-257/06 and T-309/06 with the exception of the order numbered 1, |
| --- | --- |

1.

set aside the judgment of the Court of First Instance of the European Communities of 16 December 2008 in Joined Cases T-225/06, T-255/06, T-257/06 and T-309/06 with the exception of the order numbered 1,

| 2. | give final judgment on the dispute by rejecting the order sought at first instance or, in the alternative, remit the case to the Court of First Instance and |
| --- | --- |

2.

give final judgment on the dispute by rejecting the order sought at first instance or, in the alternative, remit the case to the Court of First Instance and

| 3. | order that the costs of the proceedings be borne by the applicant at first instance. |
| --- | --- |

3.

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

Pleas in law and main arguments

The appellant submits that

| 1. | The Court of First Instance erred in law when effectively denying the competence of the Office to determine that Budvar had failed to meet its burden of establishing rights under Art. 8(4) (1) when there were serious doubts as to the validity of these rights (alleged appellations of origin for ‘BUD’). |
| --- | --- |

1.

The Court of First Instance erred in law when effectively denying the competence of the Office to determine that Budvar had failed to meet its burden of establishing rights under Art. 8(4) (1) when there were serious doubts as to the validity of these rights (alleged appellations of origin for ‘BUD’).

| 2. | The Court of First Instance misconstrued the qualitative and quantitative requirements of the Community law requirement of ‘use in the course of trade’ under Article 8(4). First, it held that this requirement was to be interpreted as meaning any commercial use outside the merely private sphere, holding in particular that it was not required to genuinely use the alleged Article 8(4) right as would be the case with trade marks. In this context, it allowed for ‘free of charge’ shipments to be considered ‘use in the course of trade’ as well as use in a different function (trade mark use rather than appellation of origin use). Second, the contested decision erroneously allowed for use after the application date of the opposed trade mark to be taken into account and thereby disregarded that for a prior right to be suitable as a ground of opposition under Article 8, all conditions for this ground of opposition must be present at the time of filing of the opposed application. Third, the Court misconstrued Article 8(4) by holding that, in deviation from the principle of territoriality; use could be taken into account that had occurred in countries other than the countries where the alleged Article 8(4) rights exist. |
| --- | --- |

2.

The Court of First Instance misconstrued the qualitative and quantitative requirements of the Community law requirement of ‘use in the course of trade’ under Article 8(4). First, it held that this requirement was to be interpreted as meaning any commercial use outside the merely private sphere, holding in particular that it was not required to genuinely use the alleged Article 8(4) right as would be the case with trade marks. In this context, it allowed for ‘free of charge’ shipments to be considered ‘use in the course of trade’ as well as use in a different function (trade mark use rather than appellation of origin use). Second, the contested decision erroneously allowed for use after the application date of the opposed trade mark to be taken into account and thereby disregarded that for a prior right to be suitable as a ground of opposition under Article 8, all conditions for this ground of opposition must be present at the time of filing of the opposed application. Third, the Court misconstrued Article 8(4) by holding that, in deviation from the principle of territoriality; use could be taken into account that had occurred in countries other than the countries where the alleged Article 8(4) rights exist.

| 3. | The Court of First Instance also misconstrued the requirement ‘of more than mere local significance’. It essentially found this requirement to be met by the fact that the alleged
  Article 8(4) right originated from a third country and was extended into two member states of the European Union. It did not ask whether the right at issue had gained more than mere local significance in the two actual member states for which it was claimed, thereby opening the door to Article 8(4) rights from outside the European Union. |
| --- | --- |

3.

The Court of First Instance also misconstrued the requirement ‘of more than mere local significance’. It essentially found this requirement to be met by the fact that the alleged

Article 8(4) right originated from a third country and was extended into two member states of the European Union. It did not ask whether the right at issue had gained more than mere local significance in the two actual member states for which it was claimed, thereby opening the door to Article 8(4) rights from outside the European Union.

| 4. | The second ground of appeal is a violation of Article 8(4)(b) together with Article 74(1). Article 8(4)(b) requires that the national right entitles Budvar to prohibit the use of the opposed trade mark. The Board of Appeal had determined, based on the evidence submitted by the parties and applying the established rule that the burden of proof in OHIM opposition proceedings is on the opponent, that Budvar had not proved that it was able, under the national law applying in either France or Austria, to prohibit the use of the trade mark ‘BUD’. The Court of First Instance, however, held contrary to Article 74(1) and Article 8(4)(b) that OHIM should of its own motion investigate the law and legal developments supporting the alleged Article 8(4) rights beyond the submissions of the parties, rather than dismissing the opposition for lack of proof of Budvar's alleged rights. |
| --- | --- |

4.

The second ground of appeal is a violation of Article 8(4)(b) together with Article 74(1). Article 8(4)(b) requires that the national right entitles Budvar to prohibit the use of the opposed trade mark. The Board of Appeal had determined, based on the evidence submitted by the parties and applying the established rule that the burden of proof in OHIM opposition proceedings is on the opponent, that Budvar had not proved that it was able, under the national law applying in either France or Austria, to prohibit the use of the trade mark ‘BUD’. The Court of First Instance, however, held contrary to Article 74(1) and Article 8(4)(b) that OHIM should of its own motion investigate the law and legal developments supporting the alleged Article 8(4) rights beyond the submissions of the parties, rather than dismissing the opposition for lack of proof of Budvar's alleged rights.

| 5. | Altogether, the contested judgment of the Court of First Instance has given an interpretation to Article 8(4) which is difficult to reconcile with the wording of this provision and impossible to reconcile with the objective of Regulation No. 40/94 to create a well functioning Community wide uniform trade mark right in order to foster intra-Community trade. |
| --- | --- |

5.

Altogether, the contested judgment of the Court of First Instance has given an interpretation to Article 8(4) which is difficult to reconcile with the wording of this provision and impossible to reconcile with the objective of Regulation No. 40/94 to create a well functioning Community wide uniform trade mark right in order to foster intra-Community trade.

| 6. | Each of these violations of the law by the Court of First Instance led to the annulment of the decisions of the Second Board of Appeal, and is therefore — each separately — reason to set aside the contested judgment. |
| --- | --- |

6.

Each of these violations of the law by the Court of First Instance led to the annulment of the decisions of the Second Board of Appeal, and is therefore — each separately — reason to set aside the contested judgment.

---

(1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark OJ L 11, 14.1.1994, p. 1

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| 16.5.2009 | EN | Official Journal of the European Union | C 113/27 |
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Official Journal of the European Union

C 113/27

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Action brought on 11 March 2009 — Commission of the European Communities v Czech Republic

(Case C-100/09)

2009/C 113/50

Language of the case: Czech

Parties

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

Defendant: Czech Republic

Form of order sought

| — | declare that, by failing to adopt all such laws, regulations and administrative provisions necessary to comply with Commission Directive 2007/14/EC of 8 March 2007 laying down detailed rules for the implementation of certain provisions of Directive 2004/109/EC on the harmonisation of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market, (1) or in any event, by failing to inform the Commission thereof, the Czech Republic has failed to fulfil its obligations under Article 24 of that directive; |
| --- | --- |

—

declare that, by failing to adopt all such laws, regulations and administrative provisions necessary to comply with Commission Directive 2007/14/EC of 8 March 2007 laying down detailed rules for the implementation of certain provisions of Directive 2004/109/EC on the harmonisation of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market, (1) or in any event, by failing to inform the Commission thereof, the Czech Republic has failed to fulfil its obligations under Article 24 of that directive;

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

—

order Czech Republic to pay the costs.

Pleas in law and main arguments

The period for implementing the directive into the domestic legal order expired on 8 March 2008.

---

(1)  OJ 2007 L 69, p. 27.

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| 16.5.2009 | EN | Official Journal of the European Union | C 113/28 |
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16.5.2009

EN

Official Journal of the European Union

C 113/28

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Action brought on 25 March 2009 — Commission of the European Communities v Kingdom of Spain

(Case C-114/09)

2009/C 113/51

Language of the case: Spanish

Parties

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

Defendant: Kingdom of Spain

Form of order sought

| — | Declare that by not adopting the laws, regulations and administrative provisions necessary to comply with Directive 2006/68/EC (1) of the European Parliament and of the Council of 6 September 2006 amending Council Directive 77/91/EEC (2) as regards the formation of public limited liability companies and the maintenance and alteration of their capital, or in any event, by not communicating them to the Commission, the Kingdom of Spain has failed to fulfil its obligations under that directive. |
| --- | --- |

—

Declare that by not adopting the laws, regulations and administrative provisions necessary to comply with Directive 2006/68/EC (1) of the European Parliament and of the Council of 6 September 2006 amending Council Directive 77/91/EEC (2) as regards the formation of public limited liability companies and the maintenance and alteration of their capital, or in any event, by not communicating them to the Commission, the Kingdom of Spain has failed to fulfil its obligations under that directive.

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

—

Order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

The period laid down for the transposition of Directive 2006/68/EC into national law ended on 15 April 2008.

---

(1)  OJ L 264, p. 32

(2)  OJ L 26, p.1

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| 16.5.2009 | EN | Official Journal of the European Union | C 113/28 |
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16.5.2009

EN

Official Journal of the European Union

C 113/28

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Order of the President of the Grand Chamber of the Court of 2 February 2009 (reference for a preliminary ruling from the Landgericht Frankfurt am Main — Germany) — Brigitte Ruf, née Elsässer, Gertrud Elsässer, née Sommer v European Central Bank (ECB), Coop Himmelblau Prix, Dreibholz & Partner ZT GmbH; intervener: the City of Frankfurt am Main

(Case C-408/07) (1)

2009/C 113/52

Language of the case: German

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

---

(1)  OJ C 283, 24.11.2007.

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| 16.5.2009 | EN | Official Journal of the European Union | C 113/28 |
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16.5.2009

EN

Official Journal of the European Union

C 113/28

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Order of the President of the Court of 19 February 2009 — Commission of the European Communities v Kingdom of Belgium

(Case C-92/08) (1)

2009/C 113/53

Language of the case: French

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

---

(1)  OJ C 116, 9.5.2008.

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| 16.5.2009 | EN | Official Journal of the European Union | C 113/28 |
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16.5.2009

EN

Official Journal of the European Union

C 113/28

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Order of the President of the Fourth Chamber of the Court of 21 January 2009 (reference for a preliminary ruling from the Juzgado de lo Mercantil de Madrid — Spain) — Asociación de Gestión de Derechos Intelectuales (AGEDI), Asociación de Artistas Intérpretes o Ejecutantes — Sociedad de Gestión de España (AIE) v Sogecable, SA, Canal Satélite Digital SL

(Case C-98/08) (1)

2009/C 113/54

Language of the case: Spanish

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

---

(1)  OJ C 128, 24.5.2008.

---

| 16.5.2009 | EN | Official Journal of the European Union | C 113/28 |
| --- | --- | --- | --- |

16.5.2009

EN

Official Journal of the European Union

C 113/28

---

Order of the President of the Court of 20 January 2009 — Commission of the European Communities v Italian Republic

(Case C-257/08) (1)

2009/C 113/55

Language of the case: Italian

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

---

(1)  OJ C 209, 15.8.2008.

---

| 16.5.2009 | EN | Official Journal of the European Union | C 113/29 |
| --- | --- | --- | --- |

16.5.2009

EN

Official Journal of the European Union

C 113/29

---

Order of the President of the Court of 30 January 2009 — Commission of the European Communities v Republic of Austria

(Case C-291/08) (1)

2009/C 113/56

Language of the case: German

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

---

(1)  OJ C 272, 25.10.2008.

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| 16.5.2009 | EN | Official Journal of the European Union | C 113/29 |
| --- | --- | --- | --- |

16.5.2009

EN

Official Journal of the European Union

C 113/29

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Order of the President of the Court of 6 March 2009 — Commission of the European Communities v Kingdom of Belgium

(Case C-329/08) (1)

2009/C 113/57

Language of the case: French

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

---

(1)  OJ C 272, 25.10.2008.

---

| 16.5.2009 | EN | Official Journal of the European Union | C 113/29 |
| --- | --- | --- | --- |

16.5.2009

EN

Official Journal of the European Union

C 113/29

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Order of the President of the Court of 19 February 2009 — Commission of the European Communities v French Republic

(Case C-332/08) (1)

2009/C 113/58

Language of the case: French

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

---

(1)  OJ C 272, 25.10.2008.

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| 16.5.2009 | EN | Official Journal of the European Union | C 113/29 |
| --- | --- | --- | --- |

16.5.2009

EN

Official Journal of the European Union

C 113/29

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Order of the President of the Court of 26 February 2009 — Commission of the European Communities v French Republic

(Case C-354/08) (1)

2009/C 113/59

Language of the case: French

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

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(1)  OJ C 285, 8.11.2008.

---

Court of First Instance

| 16.5.2009 | EN | Official Journal of the European Union | C 113/30 |
| --- | --- | --- | --- |

16.5.2009

EN

Official Journal of the European Union

C 113/30

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Judgment of the Court of First Instance of 1 April 2009 — Valero Jordana v Commission

(Case T-385/04) (1)

(Staff case - Officials - Action for annulment - Action for Damages - Promotion - Award of priority points)

2009/C 113/60

Language of the case: French

Parties

Applicant: Gregorio Valero Jordana (Brussels, Belgium) (represented by: M. Merola and I. Van Schendel, lawyers)

Defendant: Commission of the European Communities (represented by: V. Joris and C. Berardis-Kayser, Agents, initially, and V. Joris and G. Berscheid, Agents, and D. Waelbroeck, lawyer, subsequently)

Re:

Annulment of:

| — | the decision of the Director General of the Legal Service of the Commission awarding the applicant only one DG priority point under the 2003 promotion exercise, communicated on 7 July 2003 and confirmed by decision of the appointing authority notified on 16 December 2003; |
| --- | --- |

—

the decision of the Director General of the Legal Service of the Commission awarding the applicant only one DG priority point under the 2003 promotion exercise, communicated on 7 July 2003 and confirmed by decision of the appointing authority notified on 16 December 2003;

| — | the decision of the appointing authority to award the applicant a total of 20 points under the 2003 promotion exercise, notified on 16 December 2003; the merit list of officials in grade A5 under the 2003 promotion exercise, published in Administrative Notices No 6-2003 of 13 November 2003; the list of officials promoted to grade A4 under the 2003 exercise, published in Administrative Notices No 73-2003 of 27 November 2003; and the decision not to enter the applicant’s name on those lists; |
| --- | --- |

—

the decision of the appointing authority to award the applicant a total of 20 points under the 2003 promotion exercise, notified on 16 December 2003; the merit list of officials in grade A5 under the 2003 promotion exercise, published in Administrative Notices No 6-2003 of 13 November 2003; the list of officials promoted to grade A4 under the 2003 exercise, published in Administrative Notices No 73-2003 of 27 November 2003; and the decision not to enter the applicant’s name on those lists;

| — | the decision of the appointing authority not to grant to the applicant one additional priority point under the 2003 promotion exercise, as follows from the letter of 22 February 2007 and the decision of 17 April 2007; and |
| --- | --- |

—

the decision of the appointing authority not to grant to the applicant one additional priority point under the 2003 promotion exercise, as follows from the letter of 22 February 2007 and the decision of 17 April 2007; and

damages amounting to EUR 5 000.

Operative part of the judgment

The Court:

| 1. | Annuls the Commission decisions fixing the total promotion points for Mr Gregorio Valero Jordana at 20 points and refusing to enter his name on the list of officials promoted to grade A4 under the 2003 promotion exercise; |
| --- | --- |

1.

Annuls the Commission decisions fixing the total promotion points for Mr Gregorio Valero Jordana at 20 points and refusing to enter his name on the list of officials promoted to grade A4 under the 2003 promotion exercise;

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

2.

Dismisses the action as to the remainder;

| 3. | Orders the Commission to pay the costs. |
| --- | --- |

3.

Orders the Commission to pay the costs.

---

(1)  OJ C 284, 20.11.2004.

---

| 16.5.2009 | EN | Official Journal of the European Union | C 113/30 |
| --- | --- | --- | --- |

16.5.2009

EN

Official Journal of the European Union

C 113/30

---

Judgment of the Court of First Instance of 18 March 2009 — Shanghai Excell M&E Enterprise and Shanghai Adeptech Precision v Council

(Case T-299/05) (1)

(Dumping - Imports of certain electronic weighing scales originating in China - Market economy status - Article 2(7)(a) and (c), Article 2(10), and Article 11(9) of Regulation (EC) No 384/96)

2009/C 113/61

Language of the case: English

Parties

Applicants: Shanghai Excell M&E Enterprise Co. Ltd (Shanghai, China) and Shanghai Adeptech Precision Co. Ltd (Huaxin Town, China) (represented by: R. MacLean, Solicitor, and E. Gybels, lawyer)

Defendant: Council of the European Union (represented by: J.-P. Hix, acting as Agent, assisted by G. Berrisch, lawyer)

Intervener in support of the defendant: Commission of the European Communities (represented initially by: K. Talabér-Ritz and E. Righini, and subsequently by H. van Vliet and K. Talabér-Ritz, acting as Agents)

Re:

Action for annulment of Articles 1 and 2 of Council Regulation (EC) No 692/2005 of 28 April 2005 amending Regulation (EC) No 2605/2000 imposing definitive anti-dumping duties on imports of certain electronic weighing scales (REWS) originating, inter alia, in the People’s Republic of China (OJ 2005 L 112, p. 1).

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Shanghai Excell M&E Enterprise Co. Ltd and Shanghai Adeptech Precision Co. Ltd to bear their own costs and to pay those incurred by the Council; |
| --- | --- |

2.

Orders Shanghai Excell M&E Enterprise Co. Ltd and Shanghai Adeptech Precision Co. Ltd to bear their own costs and to pay those incurred by the Council;

| 3. | Orders the Commission to bear its own costs. |
| --- | --- |

3.

Orders the Commission to bear its own costs.

---

(1)  OJ C 257, 15.10.2005.

---

| 16.5.2009 | EN | Official Journal of the European Union | C 113/31 |
| --- | --- | --- | --- |

16.5.2009

EN

Official Journal of the European Union

C 113/31

---

Judgment of the Court of First Instance of 11 March 2009 — TF1 v Commission

(Case T-354/05) (1)

(State aid - Financing of France Télévisions by the audiovisual licence fee - Constant review of existing aid - Recommendation for the adoption of appropriate measures - Member State’s commitments accepted by the Commission - Decision declaring the aid compatible with the common market - Action for annulment - Period allowed for commencing proceedings - Nature of the contested measure - Interest in bringing proceedings - Admissibility - Rights of the defence - Obligation to state the reasons on which the decision is based - Altmark judgment)

2009/C 113/62

Language of the case: French

Parties

Applicant: Télévision française 1 SA (TF1) (Boulogne-Billancourt, France) (represented by: J.-P. Hordies and C. Smits, lawyers)

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

Interveners in support of the defendant: French Republic (represented by: G. de Bergues and A.-L. Vendrolini, acting as Agents); and France Télévisions S.A. (Paris, France) (represented by: J.-P. Gunther and D. Tayar, lawyers)

Re:

Application for the annulment of Commission Decision C(2005) 1166 final of 20 April 2005 on aid granted to France Télévisions [aid E 10/2005 (ex C 60/1999) — France, Audiovisual licence fee].

Operative part of the judgment

The Court:

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

1.

Dismisses the application;

| 2. | Orders Télévision française 1 SA (TF1) to bear its own costs and to pay those incurred by the Commission and by France Télévisions SA; |
| --- | --- |

2.

Orders Télévision française 1 SA (TF1) to bear its own costs and to pay those incurred by the Commission and by France Télévisions SA;

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

3.

Orders the French Republic to bear its own costs.

---

(1)  OJ C 315, 10.12.2005.

---

| 16.5.2009 | EN | Official Journal of the European Union | C 113/31 |
| --- | --- | --- | --- |

16.5.2009

EN

Official Journal of the European Union

C 113/31

---

Judgment of the Court of First Instance of 17 March 2009 — Laytoncrest v OHIM — Erico (TRENTON)

(Case T-171/06) (1)

(Community trade mark - Opposition proceedings - Application for the Community word mark TRENTON - Earlier Community word mark LENTON - Right to be heard - Article 73 of Regulation (EC) No 40/94 and Rule 54 of Regulation (EC) No 2868/95 - No withdrawal of the trade mark application - Article 44(1) of Regulation No 40/94 - Obligation to rule on the basis of the available evidence - Rule 20(3) and Rule 50(1) of Regulation No 2868/95)

2009/C 113/63

Language of the case: Greek

Parties

Applicant: Laytoncrest Ltd (London, United Kingdom) (represented by: N. Dontas and P. Georgopoulou, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the Court of First Instance: Erico International Corp. (Solon, Ohio, United States) (represented by: M. Samer, O. Gillert and F. Schiwek, lawyers)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 26 April 2006 (Case R 406/2004-2) relating to opposition proceedings between Erico International Corp. and Laytoncrest Ltd.

Operative part of the judgment

The Court of First Instance:

| 1. | Annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 26 April 2006 (R 406/2004-2); |
| --- | --- |

1.

Annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 26 April 2006 (R 406/2004-2);

| 2. | Orders OHIM to bear its own costs and to pay those incurred by Laytoncrest Ltd; |
| --- | --- |

2.

Orders OHIM to bear its own costs and to pay those incurred by Laytoncrest Ltd;

| 3. | Orders Erico International Corp. to bear its own costs. |
| --- | --- |

3.

Orders Erico International Corp. to bear its own costs.

---

(1)  OJ C 212, 2.9.2006.

---

| 16.5.2009 | EN | Official Journal of the European Union | C 113/32 |
| --- | --- | --- | --- |

16.5.2009

EN

Official Journal of the European Union

C 113/32

---

Judgment of the Court of First Instance of 24 March 2009 — Moreira da Fonseca v OHIM — General Óptica (GENERAL OPTICA)

(Joined Cases T-318/06 to T-321/06) (1)

(Community trade mark - Invalidity proceedings - Multi-coloured Community figurative marks GENERAL OPTICA - Earlier business name Generalóptica - Relative ground for refusal - Local significance of the earlier sign - Articles 8(4) and 52(1)(c) of Regulation (EC) No 40/94)

2009/C 113/64

Language of the case: English

Parties

Applicant: Alberto Jorge Moreira da Fonseca, Lda (Santo Tirso, Portugal) (represented by: M. Oehen Mendes and D. Jeffries, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: General Óptica, SA (Barcelona, Spain) (represented by: M. Curell Aguilà and X. Fàbrega Sabaté, lawyers)

Re:

Four actions brought against the decisions of the First Board of Appeal of OHIM of 8 August 2006 (Cases R 944/2005-1, R 945/2005-1, R 946/2005-1 and R 947/2005-1), concerning four sets of invalidity proceedings between Alberto Jorge Moreira da Fonseca, Lda and General Óptica, SA

Operative part of the judgment

The Court:

| 1. | Dismisses the actions. |
| --- | --- |

1.

Dismisses the actions.

| 2. | Orders Alberto Jorge Moreira da Fonseca, Lda to pay the costs. |
| --- | --- |

2.

Orders Alberto Jorge Moreira da Fonseca, Lda to pay the costs.

---

(1)  OJ C 236, 30.12.2006.

---

| 16.5.2009 | EN | Official Journal of the European Union | C 113/32 |
| --- | --- | --- | --- |

16.5.2009

EN

Official Journal of the European Union

C 113/32

---

Judgment of the Court of First Instance of 25 March 2009 — Alcoa Trasformazioni v Commission

(Case T-332/06) (1)

(State aid - Electricity - Preferential tariff - Decision initiating the procedure under Article 88(2) EC - Admissibility - Notion of State aid - New aid or existing aid - Advantage - Statement of reasons - Legitimate expectations - Legal certainty)

2009/C 113/65

Language of the case: English

Parties

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

Defendant: Commission of the European Communities (represented by: N. Khan, E. Righini and C. Urraca Caviedes, acting as Agents)

Re:

Application for annulment of Commission Decision 2006/C 214/03, notified to the Italian Republic by letter of 19 July 2006, initiating the procedure laid down in Article 88(2) EC, concerning State aid C 36/06 (ex NN 38/06) — Preferential electricity tariff to energy intensive industries in Italy, in so far as that decision relates to the electricity tariffs applicable to the two primary aluminium plants owned by Alcoa Trasformazioni.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Alcoa Trasformazioni Srl to bear its own costs and to pay those incurred by the Commission. |
| --- | --- |

2.

Orders Alcoa Trasformazioni Srl to bear its own costs and to pay those incurred by the Commission.

---

(1)  OJ C 326, 30.12.2006.

---

| 16.5.2009 | EN | Official Journal of the European Union | C 113/33 |
| --- | --- | --- | --- |

16.5.2009

EN

Official Journal of the European Union

C 113/33

---

Judgment of the Court of First Instance of 31 March 2009 — ArcelorMittal Luxembourg and Others v Commission

(Case T-405/06) (1)

(Competition - Agreements, decisions and concerted practices - Community market in beams - Decision establishing an infringement of Article 65 CS, after expiry of the ECSC Treaty on the basis of Regulation (EC) No 1/2003 - Competence of the Commission - Liability for the infringement - Limitation - Rights of the defence)

2009/C 113/66

Language of the case: French

Parties

Applicants: ArcelorMittal Luxembourg SA, formerly Arcelor Luxembourg SA (Luxembourg, Luxembourg); ArcelorMittal Belval & Differdange SA, formerly Arcelor Profil Luxembourg SA (Esch-sur-Alzette, Luxembourg); and ArcelorMittel International SA, formerly Arcelor International SA (Luxembourg) (represented by: A. Vandencasteele, lawyer)

Defendants: Commission of the European Communities (represented by: X. Lewis and F. Arbault, Agents)

Re:

Annulment of Commission Decision C(2006) 5342 final of 8 November 2006 relating to a proceeding under Article 65 [CS] concerning agreements and concerted practices engaged in by European producers of beams (Case COMP/F/38.907 — Steel beams).

Operative part of the judgment

The Court:

| 1. | Annuls Commission Decision C(2006) 5342 final of 8 November 2006 relating to a proceeding under Article 65 [CS] concerning agreements and concerted practices engaged in by European producers of beams (Case COMP/F/38.907 — Steel beams) inasmuch as it concerns ArcelorMittal Belval & Differdange SA and ArcelorMittal International SA; |
| --- | --- |

1.

Annuls Commission Decision C(2006) 5342 final of 8 November 2006 relating to a proceeding under Article 65 [CS] concerning agreements and concerted practices engaged in by European producers of beams (Case COMP/F/38.907 — Steel beams) inasmuch as it concerns ArcelorMittal Belval & Differdange SA and ArcelorMittal International SA;

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

2.

Dismisses the action as unfounded as to the remainder;

| 3. | Orders, in so far as the present case is between them, the Commission to pay, in addition its own expenses, the costs incurred by ArcelorMittal Belval & Differdange and ArcelorMittal International; |
| --- | --- |

3.

Orders, in so far as the present case is between them, the Commission to pay, in addition its own expenses, the costs incurred by ArcelorMittal Belval & Differdange and ArcelorMittal International;

| 4. | Orders, in so far as the present case is between them, ArcelorMittal Luxembourg SA to pay, in addition to its own costs, the costs incurred by the Commission. |
| --- | --- |

4.

Orders, in so far as the present case is between them, ArcelorMittal Luxembourg SA to pay, in addition to its own costs, the costs incurred by the Commission.

---

(1)  OJ C 42, 24.2.2007.

---

| 16.5.2009 | EN | Official Journal of the European Union | C 113/33 |
| --- | --- | --- | --- |

16.5.2009

EN

Official Journal of the European Union

C 113/33

---

Judgment of the Court of First Instance of 25 March 2009 — L’Oréal v OHIM — Spa Monopole (SPALINE)

(Case T-21/07) (1)

(Community trade mark - Opposition proceedings - Application for the Community word mark SPALINE - Earlier national word mark SPA - Relative ground for refusal - Damage to reputation - Unfair advantage derived from the reputation of the earlier mark - Use of the mark applied for without due cause - Article 8(5) of Regulation (EC) No 40/94)

2009/C 113/67

Language of the case: English

Parties

Applicant: L’Oréal SA (Paris, France) (represented by: E. Baud, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervening before the Court of First Instance: Spa Monopole, compagnie fermière de Spa SA/NV (Spa, Belgium) (represented by: E. Cornu, L. De Brouwer, D. Moreau and E. De Gryse, lawyers)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 18 October 2006 (Case R 415/2005-1), concerning opposition proceedings between Spa Monopole, compagnie fermière de Spa SA/NV and L’Oréal SA.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

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

2.

Orders L’Oréal SA to pay the costs.

---

(1)  OJ C 69, 24.3.2007.

---

| 16.5.2009 | EN | Official Journal of the European Union | C 113/33 |
| --- | --- | --- | --- |

16.5.2009

EN

Official Journal of the European Union

C 113/33

---

Judgment of the Court of First Instance of 25 March 2009 — L’Oréal v OHIM — Spa Monopole (SPA THERAPY)

(Case T-109/07) (1)

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

2009/C 113/68

Language of the case: French

Parties

Applicant: L’Oréal SA (Paris, France) (represented by: E. Baud, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervening before the Court of First Instance: Spa Monopole, compagnie fermière de Spa SA/NV (Spa, Belgium) (represented by: E. Cornu, L. De Brouwer and D. Moreau, lawyers)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 24 January 2007 (Case R 468/2005-4), concerning opposition proceedings between Spa Monopole, compagnie fermière de Spa SA/NV and L’Oréal SA.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

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

2.

Orders L’Oréal SA to pay the costs.

---

(1)  OJ C 140, 23.6.2007.

---

| 16.5.2009 | EN | Official Journal of the European Union | C 113/34 |
| --- | --- | --- | --- |

16.5.2009

EN

Official Journal of the European Union

C 113/34

---

Judgment of the Court of First Instance of 25 March 2009 — Anheuser-Busch v OHIM — Budějovický Budvar (BUDWEISER)

(Case T-191/07) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark BUDWEISER - Earlier international word and figurative marks BUDWEISER and Budweiser Budvar - Relative grounds for refusal - Article 8(1)(a) and (b) of Regulation (EC) No 40/94 - Genuine use of the earlier trade mark - Article 43(2) and (3) of Regulation No 40/94 - Infringement of rights of defence - Statement of reasons - Article 73 of Regulation No 40/94 - Late submission of documents - Discretion granted by Article 74(2) of Regulation No 40/94)

2009/C 113/69

Language of the case: English

Parties

Applicant: Anheuser-Busch, Inc. (Saint Louis, Missouri, United States) (represented by: V. von Bomhard and A. Renck, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervening before the Court of First Instance: Budějovický Budvar, národní podnik (České Budějovice, Czech Republic) (represented by: K. Čermák, lawyer)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 20 March 2007 (Case R 299/2006-2) relating to opposition proceedings between Budějovický Budvar, národní podnik and Anheuser-Busch, Inc.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Anheuser-Busch, Inc. to bear, in addition to its own costs, the costs of OHIM and Budějovický Budvar, národní podnik. |
| --- | --- |

2.

Orders Anheuser-Busch, Inc. to bear, in addition to its own costs, the costs of OHIM and Budějovický Budvar, národní podnik.

---

(1)  OJ C 183, 4.8.2007.

---

| 16.5.2009 | EN | Official Journal of the European Union | C 113/34 |
| --- | --- | --- | --- |

16.5.2009

EN

Official Journal of the European Union

C 113/34

---

Judgment of the Court of First Instance of 25 March 2009 — allsafe Jungfalk v OHIM (ALLSAFE)

(Case T-343/07) (1)

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

2009/C 113/70

Language of the case: German

Parties

Applicant: allsafe Jungfalk GmbH & Co. KG (Engen, Germany) (represented by: P. Mes, J. Bühling, C. Graf von der Groeben, G. Rother, A. Verhauwen, J. Künzel, D. Jestaedt and M. Bergermann, lawyers)

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

Re:

Action brought against the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 11 July 2007 (Case R 454/2006-4) concerning the registration of the word sign ALLSAFE as a community trade mark.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders allsafe Jungfalk GmbH & Co. KG to pay the costs. |
| --- | --- |

2.

Orders allsafe Jungfalk GmbH & Co. KG to pay the costs.

---

(1)  OJ C 269, 10.11.2007.

---

| 16.5.2009 | EN | Official Journal of the European Union | C 113/35 |
| --- | --- | --- | --- |

16.5.2009

EN

Official Journal of the European Union

C 113/35

---

Judgment of the Court of First Instance of 25 March 2009 — Kaul v OHIM — Bayer (ARCOL)

(Case T-402/07) (1)

(Community trade mark - Opposition proceedings - Application for the Community word mark ARCOL - Earlier Community word mark CAPOL - Implementation by OHIM of a judgment annulling a decision of one of its Boards of Appeal - Relative ground for refusal - No likelihood of confusion - Rights of the defence - Article 8(1)(b), Article 61(2), Article 63(6), Article 73, second sentence, and Article 74(2) of Regulation (EC) No 40/94)

2009/C 113/71

Language of the case: English

Parties

Applicant: Kaul GmbH (Elmshorn, Germany) (represented by: G. Würtenberger and R. Kunze, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Bayer AG (Leverkusen, Germany)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 1 August 2007 (Case R 782/2000-2), concerning opposition proceedings between Kaul GmbH and Bayer AG.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Kaul GmbH to pay the costs. |
| --- | --- |

2.

Orders Kaul GmbH to pay the costs.

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(1)  OJ C 8, 12.1.2008.

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| 16.5.2009 | EN | Official Journal of the European Union | C 113/35 |
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Order of the Court of First Instance of 19 March 2009 — Telecom Italia Media v Commission

Case T-96/07 (1)

(State aid - Subsidies for the purchase of digital decoders - Telecommunications - Commission decision finding aid to be incompatible with the common market - Decision of the Member State, adopted during the proceedings, not to recover the aid from the undertaking which brought the action for annulment against the Commission decision - No longer any legal interest in bringing proceedings - No need to adjudicate)

2009/C 113/72

Language of the case: Italian.

Parties

Applicant: Telecom Italia Media (TI Media) SpA (Rome, Italy) (represented by: F. Bassam and S. Venturini, lawyers)

Defendant: Commission of the European Communities (represented by: E. Righini, G. Conte and B. Martenczuk, Agents)

Intervener in support of the defendant: Sky Italia Srl (Rome, Italy) (represented by: F. González Díaz and D. Gerard, lawyers)

Re:

Action for the annulment of Commission Decision 2007/374/EC of 24 January 2007 on State aid C 52/2005 (ex NN 88/2005, ex CP 101/2004) implemented by the Italian Republic for the subsidised purchase of digital decoders (OJ 2007 L 147, p. 1)

Operative part of the order

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

1.

There is no need to adjudicate on the action.

| 2. | Each party shall bear its own costs. |
| --- | --- |

2.

Each party shall bear its own costs.

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(1)  OJ C 117, 29.5.2007

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Action brought on 11 February 2009 — Germany v Commission

(Case T-59/09)

2009/C 113/73

Language of the case: German

Parties

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

Defendant: Commission of the European Communities

Form of order sought

| — | Annul Commission Decision SG.E.3/RG/mbp D(2008)1 0067 of 5 December 2008 granting private applicants access to documents originating from German authorities submitted in proceedings for failure to fulfil obligations No 2005/4569, irrespective of objection raised by the German Government pursuant to Article 2(5) of Regulation No 1049/2001; |
| --- | --- |

—

Annul Commission Decision SG.E.3/RG/mbp D(2008)1 0067 of 5 December 2008 granting private applicants access to documents originating from German authorities submitted in proceedings for failure to fulfil obligations No 2005/4569, irrespective of objection raised by the German Government pursuant to Article 2(5) of Regulation No 1049/2001;

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

—

order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant has brought an action against the Commission’s decision of 5 December 2008 to grant private third parties access to documents originating from German authorities submitted in proceedings for failure to fulfil obligations, irrespective of objection raised by the German Government pursuant to Article 2(5) of Regulation No 1049/2001. (1)

In support of its action, the applicant submits that the contested decision infringes Article 4(5) of Regulation No 1049/2001 in conjunction with the principle of loyal cooperation between the Community and the Member States laid down in Article 10 EC.

Article 4(5) of Regulation No 1049/200 allows Member States to make the disclosure of documents originating from their authorities being held by Community institutions subject to their prior agreement. The Commission has no right to conduct its own extensive assessment of the reasons for the refusal to grant access to documents under Articles 4(1) to (3) of Regulation No 1049/2001. In its judgment in Case C-64/05 P Sweden v Commission and Others, (2) the Court of Justice laid down definitive criteria that allow the relevant Community institution to disregard the Member State’s objection and to conduct its own assessment of whether the grounds of refusal as set out in Article 4(1) to (3) of Regulation No 1049/2001 are present: the objection must either provide ‘no reasons at all’ or the reasons must ‘not [be] put forward in terms of’ the grounds of refusal.

Read in conjunction with the principle of loyal cooperation between the Community and the Member States laid down in Article 10 EC, the above means that, as a rule, the Member State has the right to undertake the assessment of whether any of the grounds of refusal listed in Article 4(1) to (3) of Regulation No 1049/2001 apply. The Commission has a right to disregard the refusal to grant access only in exceptional cases, where the explanation offered by the Member State does not fulfil those criteria adequately. A comparison with Article 4(4) of Regulation No 1049/2001 also dictates this. The two criteria laid down in the case-law are essential procedural requirements which, as regards content, must be modelled on the duty to state reasons in Article 253 EC. A judicial review of whether the refusal to grant access to documents falls under Article 4(1) to (3) of Regulation No 1049/2001 is to be undertaken by the Community courts, not the Commission.

In the alternative, the applicant submits that even if the Court were to interpret the judgment in Case C-64/05 P as meaning that objection raised by a Member State pursuant to Article 4(5) of Regulation No 1049/2001 is only binding on the Community institution where it complies with Article 4(1) to (3) of that regulation, the Commission was at most authorised to examine whether the reasons submitted by the Member State contained manifest errors. However, the statement of reasons submitted by Germany could in now way be considered to be manifestly defective.

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(1)  Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43)

(2)  Case C-64/05 P Sweden v Commission and Others [2007] ECR I-113839.

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| 16.5.2009 | EN | Official Journal of the European Union | C 113/36 |
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Action brought on 20 February 2009 — Química Atlântica v Commission

(Case T-71/09)

2009/C 113/74

Language of the case: Portuguese

Parties

Applicant: Química Atlântica, Lda (Lisbon, Portugal) (represented by J. Teixeira Alves, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | a declaration that the Commission was obliged to adopt measures for the harmonisation of the criteria for classifying and charging duty on dicalcium phosphate imported from Tunisia; |
| --- | --- |

—

a declaration that the Commission was obliged to adopt measures for the harmonisation of the criteria for classifying and charging duty on dicalcium phosphate imported from Tunisia;

| — | a declaration that that failure to act on the part of the Commission has engendered considerable differences in the duty payable on goods declared in Portugal compared to those declared in those Member States that, for reasons of geographical proximity, compete with traders declaring goods in Portugal; |
| --- | --- |

—

a declaration that that failure to act on the part of the Commission has engendered considerable differences in the duty payable on goods declared in Portugal compared to those declared in those Member States that, for reasons of geographical proximity, compete with traders declaring goods in Portugal;

| — | an order that the Commission should adopt harmonising measures for the classification and charging of duty on dicalcium phosphate; |
| --- | --- |

—

an order that the Commission should adopt harmonising measures for the classification and charging of duty on dicalcium phosphate;

| — | an order that the Commission should take into account the fact that phosphate is an inorganic product, obtained from the chemical reaction caused by the addition of an acid to minerals, so its classification is automatically excluded from the first 24 chapters of the Common Customs Tariff; |
| --- | --- |

—

an order that the Commission should take into account the fact that phosphate is an inorganic product, obtained from the chemical reaction caused by the addition of an acid to minerals, so its classification is automatically excluded from the first 24 chapters of the Common Customs Tariff;

| — | an order that the Commission should adopt measures to ensure that the classification adopted in the various Member States is harmonised in keeping with appropriate criteria of interpretation; |
| --- | --- |

—

an order that the Commission should adopt measures to ensure that the classification adopted in the various Member States is harmonised in keeping with appropriate criteria of interpretation;

| — | a declaration that the applicant is entitled to reimbursement of the customs duties it has paid over and above those that would be payable if the rate for Tariff Code 2835 52 90 were applied; |
| --- | --- |

—

a declaration that the applicant is entitled to reimbursement of the customs duties it has paid over and above those that would be payable if the rate for Tariff Code 2835 52 90 were applied;

| — | an order that the Commission should pay the costs of the proceedings and the unavoidable expenses borne by the applicant, in particular its lawyer’s fees and transport and accommodation expenses. |
| --- | --- |

—

an order that the Commission should pay the costs of the proceedings and the unavoidable expenses borne by the applicant, in particular its lawyer’s fees and transport and accommodation expenses.

Pleas in law and main arguments

The applicant markets dicalcium phosphate, imported from Tunisia, which, until 1994, it declared to customs under the description hydrogen orthophosphate of calcium (dicalcium phosphate) under tariff code 2835 52 90 of the CN. The Portuguese customs authorities required dicalcium phosphate to be declared under code 2309 90 98 of the CN, as preparations of a kind used in animal feeding — Other, subject to high duty, whereas in France, the United Kingdom and Spain, which take up nearly all the dicalcium phosphate obtained in Tunisia and exported to the EU, the same product was classified under tariff heading 2835 52 90 and zero-rated.

The applicant has requested the Commission to adopt measures to harmonise the tariff classification of dicalcium phosphate, but the Commission has never acted. Ever since 2005 it has put off and put off taking a decision on the harmonisation of dicalcium phosphate. In December 2008 the Commission adopted an express measure, of negative content, consisting, first, of the affirmation that the classification of dicalcium phosphate under tariff heading 2309 was constant and uniform in the various Member States and, secondly, of the consequential refusal to adopt measures to render that classification uniform. The Commission has in its possession authentic documents which prove that dicalcium phosphate imported from Tunisia, the chief supplier to the Community, is classified in France and Spain under tariff code 2835 25 90 and it had the means whereby to learn that at the very least in the United Kingdom also that classification had been adopted. The bare assertion that there are no problems in classifying dicalcium phosphate in the other Member States is a half-truth, for it does not say that dicalcium phosphate is not imported into those Member States from Tunisia. The Commission was required to ascertain whether the composition of dicalcium phosphate from Tunisia was not close to that of substitutes imported from other regions, which it has not done, despite its knowing of a binding tariff information in France. The Commission’s reply to the applicant’s complaints bestows legitimacy on divergent and, therefore, necessarily incorrect tariff classifications, is based on untrue premisses and in the end the Commission has adopted no measure to harmonise the classification criteria, maintaining the former situation of uncertainty.

The Portuguese courts have upheld the decisions of the Portuguese customs authorities, without making a reference to the CJEC for a preliminary ruling as they were bound to do. In most of the Member States that import dicalcium phosphate from Tunisia the product is declared under tariff code 2835 52 90. This divergence in classification, with its effects on duty, has forced the applicant out of the Spanish market, on which dicalcium phosphate enjoyed duty-free status because of its being classified under tariff code 2835 52 90.

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| 16.5.2009 | EN | Official Journal of the European Union | C 113/37 |
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Action brought on 20 February 2009 — France v Commission

(Case T-79/09)

2009/C 113/75

Language of the case: French

Parties

Applicant: French Republic (represented by: E. Belliard, G. de Bergues and A.-L. Vendrolini, Agents)

Defendant: Commission of the European Communities

Form of order sought

| — | annul the contested decision; |
| --- | --- |

—

annul the contested decision;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

By this action, the applicant seeks annulment of Commission Decision C(2008) 7846 final of 10 December 2008 by which the Commission found that the compulsory voluntary levies collected by the inter-branch organisations from members of the professions which they represent for the purpose of financing actions capable of being carried out by those organisations were a measure constituting State Aid within the meaning of Article 87(1) EC.

In support of its action, the application puts forward, with regard to the substance, a plea in law alleging:

| — | failure to take account of the definition of State Aid within the meaning of Article 87(1) EC inasmuch as the Commission found, contrary to what the French Government maintains, that those compulsory voluntary levies constitute parafiscal contributions, that is to say, State resources, although:






  — | the procedure for recognising inter-branch organisations and the extension procedure for inter-branch agreements cannot be considered to be means for the State to implement a particular policy which it has previously defined; |
| --- | --- | --- |

—

failure to take account of the definition of State Aid within the meaning of Article 87(1) EC inasmuch as the Commission found, contrary to what the French Government maintains, that those compulsory voluntary levies constitute parafiscal contributions, that is to say, State resources, although:

—

the procedure for recognising inter-branch organisations and the extension procedure for inter-branch agreements cannot be considered to be means for the State to implement a particular policy which it has previously defined;

| — | the basis of assessment, the amount, the treatment and the use of compulsory voluntary levies are fixed by the inter-branch organisations in their agreements, the public authorities not intervening at any stage; |
| --- | --- |

—

the basis of assessment, the amount, the treatment and the use of compulsory voluntary levies are fixed by the inter-branch organisations in their agreements, the public authorities not intervening at any stage;

| — | the compulsory voluntary levies are to be mandatorily used to finance the action for which they are intended and can never be put at the disposal of the public authorities; |
| --- | --- |

—

the compulsory voluntary levies are to be mandatorily used to finance the action for which they are intended and can never be put at the disposal of the public authorities;

| — | persons liable to pay compulsory voluntary levies necessarily benefit from actions financed by those levies and all the operators in the sector bear the cost as purchasers or vendors of the produce concerned. |
| --- | --- |

—

persons liable to pay compulsory voluntary levies necessarily benefit from actions financed by those levies and all the operators in the sector bear the cost as purchasers or vendors of the produce concerned.

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| 16.5.2009 | EN | Official Journal of the European Union | C 113/38 |
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Official Journal of the European Union

C 113/38

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Action brought on 19 February 2009 — Evropaïki Dynamiki v Commission

(Case T-86/09)

2009/C 113/76

Language of the case: English

Parties

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

Defendant: Commission of the European Communities

Form of order sought

| — | annul the Commission’s decision to reject the bid of the applicant, filed in response to the open Call for Tender MARE/2008/01 for the ‘Provision of computer and related services, including the maintenance and development of DG MARE information systems’ (1) communicated to the applicant by letter dated 12 December 2008 and all further related decisions including the one to award the contract to the successful contractor; |
| --- | --- |

—

annul the Commission’s decision to reject the bid of the applicant, filed in response to the open Call for Tender MARE/2008/01 for the ‘Provision of computer and related services, including the maintenance and development of DG MARE information systems’ (1) communicated to the applicant by letter dated 12 December 2008 and all further related decisions including the one to award the contract to the successful contractor;

| — | order the Commission to pay the applicant’s damages suffered on account of the tendering procedure in question for an amount of EUR 2 520 000; |
| --- | --- |

—

order the Commission to pay the applicant’s damages suffered on account of the tendering procedure in question for an amount of EUR 2 520 000;

| — | order the Commission to pay the applicant’s legal costs and expenses incurred in connection with this application, even if the current application is rejected. |
| --- | --- |

—

order the Commission to pay the applicant’s legal costs and expenses incurred in connection with this application, even if the current application is rejected.

Pleas in law and main arguments

In the present case the applicant seeks the annulment of the defendant’s decision to reject its bid submitted in response to a call for an open tender MARE/2008/01 for the ‘Provision of computer and related services, including the maintenance and development of DG MARE information systems’ and to award the contract to the successful contractor. The applicant further requests compensation for the alleged damages on account of the tender procedure.

In support of its claims the applicant puts forward four pleas in law.

First, it argues that the defendant infringed the principle of equal treatment as it failed to observe the exclusion criteria provided for by Articles 93(1) and 94 of the financial regulation (2) regarding one member of the winning consortium and it discriminated against the applicant by not offering it access to all the available technical documentation and the source code which was only available to the incumbent contractor. The applicant further considers that the weighting ration for the application of the award criterion of the ‘most economically advantageous offer’ practically neutralised the impact of the effect of the price in breach of the provisions of the financial regulation. Moreover, the applicant claims that the defendant based the evaluation of its offer on different criteria than those presented in the tender specifications, thus infringing the obligation of transparency.

Second, the applicant contends that the defendant failed to provide sufficient motivation of its decision in particular regarding quality criteria 2 and 3 in violation of the principle of transparency.

Third, the applicant raises doubts as to the fact that the members of the evaluation committee acted despite being in conflict of interests and therefore in violation of a procedural requirement.

Fourth, the applicant claims that the defendant committed several manifest errors and misused its power of assessment.

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(1)  OJ 2008/S 115-152936

(2)  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 L 248, p. 1)

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| 16.5.2009 | EN | Official Journal of the European Union | C 113/38 |
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Action brought on 25 February 2009 — Gråhundbus v/Jørgen Andersen v Commission

(Case T-87/09)

2009/C 113/77

Language of the case: English

Parties

Applicant: Gråhundbus v/Jørgen Andersen (Ballerup, Denmark) (represented by: M. Nissen, J. Rivas de Andrés, J. Gutiérrez Gisbert, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | annul the definitive position of the Commission concerning the Copenhagen-Ystad route contained in paragraphes 75, 76 and 145 of the Decision of the Commission dated 10 September 2008 with regard to State Aid case C 41/08 (NN 35/08) — Danske Statsbaner; |
| --- | --- |

—

annul the definitive position of the Commission concerning the Copenhagen-Ystad route contained in paragraphes 75, 76 and 145 of the Decision of the Commission dated 10 September 2008 with regard to State Aid case C 41/08 (NN 35/08) — Danske Statsbaner;

| — | in the alternative, annul the decision of the Commission dated 10 September 2008 with regard to State Aid case C 41/08 (NN 35/08) — Danske Statsbaner; |
| --- | --- |

—

in the alternative, annul the decision of the Commission dated 10 September 2008 with regard to State Aid case C 41/08 (NN 35/08) — Danske Statsbaner;

| — | order that the Commission pay the cost incurred by the applicant. |
| --- | --- |

—

order that the Commission pay the cost incurred by the applicant.

Pleas in law and main arguments

The applicant seeks the annulment of Commission decision of 10 September 2008 to initiate the procedure provided for in Article 88(2) EC in respect of the State aid allegedly granted by Denmark to Danske Statsbaner (‘DSB’) for rail passenger transport between Copenhagen and Ystad through the public service contracts between Danish Ministry of Transport and the public enterprise DSB (Case C 41/08 (NN 35/08) — Danske Statsbaner). Interested parties were invited to submit their comments (1).

The applicant operates bus passenger transport on the route Copenhagen-Ystad.

In support of its application, the applicant puts forward three pleas in law.

First, it claims that the Commission erred in law when deciding that the Danish government did not incur in a manifest error of appreciation when considering that the Copenhagen-Ystad route constituted a public service or service of general economic interest.

Second, the applicant submits that the Commission erred in law when it did not raise doubts with regard to the qualification of the Copenhagen-Ystad route as public service obligation or a service of general economic interest or a public service in view of the information in its possession. It argues that the Commission should not have accepted the arguments submitted by the Danish government without further debate or examination.

Third, the applicant contends that the Commission failed to provide adequate reasoning to its decision in violation of its obligation under Article 253 EC as the only reasoning provided in the decision consists in repeating the arguments of the Danish government.

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(1)  OJ 2008 C 309, p. 14

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| 16.5.2009 | EN | Official Journal of the European Union | C 113/39 |
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Action brought on 2 March 2009 — Strategi Group v OHIM — Reed Business Information (STRATEGI)

(Case T-92/09)

2009/C 113/78

Language in which the application was lodged: English

Parties

Applicant: Strategi Group Ltd (Manchester, United Kingdom) (represented by: N. Saunders, Barrister)

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

Other party to the proceedings before the Board of Appeal: Reed Business Information (Issy-Les-Moulineaux, France)

Form of order sought

| — | Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 18 December 2008 in case R 1581/2007-2 and remit the application to OHIM to allow it to proceed; and |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 18 December 2008 in case R 1581/2007-2 and remit the application to OHIM to allow it to proceed; and

| — | Order OHIM (and any intervening parties) to pay the costs of these proceedings and those of the appeal proceedings before the Board of Appeal of OHIM. |
| --- | --- |

—

Order OHIM (and any intervening parties) to pay the costs of these proceedings and those of the appeal proceedings before the Board of Appeal of OHIM.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘STRATEGI’, for services in class 35

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

Mark or sign cited: French trade mark registration No 1 240 001 of the word mark ‘Stratégies’ for goods and services in classes 9, 16, 28, 35, 41 and 42

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Annulled the decision of the Opposition Division

Pleas in law: Infringement of Article 43 of Council Regulation 40/94 as the Board of Appeal erred in particular by ruling in the circumstances of this case that use of a trade mark as the title of a magazine may constitute use of that trade mark for services offered in that publication, and by failing to set out the proper evidential requirements needed to prove genuine use in such circumstances and/or by failing to give appropriate consideration to the evidence filed on the basis of the correct principles; Further, or in the alternative, infringement of Rule 22 of Commission Regulation No 2868/95 (1) as the Board of Appeal failed to properly apply the provision of the said legal provision to the circumstances of the case, since it failed to provide guidance on the evidence required to establish proof of use and/or wrongly found that the evidence filed by the opponent was inadequate to establish use of the trade mark for the services relied upon.

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

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| 16.5.2009 | EN | Official Journal of the European Union | C 113/39 |
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Action brought on 11 March 2009 — von Oppeln-Bronikowski and von Oppeln-Bronikowski v OHIM — Pomodoro Clothing (promodoro)

(Case T-103/09)

2009/C 113/79

Language in which the application was lodged: English

Parties

Applicants: Anna Elisabeth Richarda von Oppeln-Bronikowski and Baron Zebulon Baptiste von Oppeln-Bronikowski (Düsseldorf, Germany) (represented by: V. Knies, lawyer)

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

Other party to the proceedings before the Board of Appeal: Pomodoro Clothing Company Ltd. (London, United Kingdom)

Form of order sought

| — | Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 7 January 2009 in case R 325/2008-1 |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 7 January 2009 in case R 325/2008-1

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘promodoro’, for goods and services in classes 25, 28 and 35 — application No 3 587 557

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

Mark or sign cited: United Kingdom trade mark registration of the word mark ‘POMODORO’ for goods in class 25

Decision of the Opposition Division: Partially rejected the application

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Rule 22 of Commission Regulation No 2868/95 (1) as the Board of Appeal wrongly took into account proof of use submitted out of time by the other party to the proceedings before the Board of Appeal; Infringement of Article 43(2) of Council Regulation 40/94 as the Board of Appeal failed to conclude that the evidence submitted by the other party to the proceedings before the Board of Appeal within the required time limit did not constitute sufficient proof of use of the trade mark cited in the opposition proceedings; Infringement of Article 8(2) of Council Regulation 40/94 as the Board of Appeal wrongly held that there was a likelihood of confusion between the trade marks in question.

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

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| 16.5.2009 | EN | Official Journal of the European Union | C 113/40 |
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Action brought on 13 March 2009 — adp Gauselmann v OHIM — Maclean (Archer Maclean’s Mercury)

(Case T-106/09)

2009/C 113/80

Language in which the application was lodged: English

Parties

Applicant: adp Gauselmann GmbH (Espelkamp, Germany) (represented by: P. Koch Moreno, lawyer)

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

Other party to the proceedings before the Board of Appeal: Archer Maclean (Banbury, United Kingdom)

Form of order sought

| — | Declare non-conformity of the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 12 January 2009 in case R 1266/2007-1 with Council Regulation 40/94; |
| --- | --- |

—

Declare non-conformity of the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 12 January 2009 in case R 1266/2007-1 with Council Regulation 40/94;

| — | Declare that Community trade mark application No 4 290 227 for classes 9 and 28 falls within the prohibition contained in Article 8(1)(b) of Council Regulation 40/94; and |
| --- | --- |

—

Declare that Community trade mark application No 4 290 227 for classes 9 and 28 falls within the prohibition contained in Article 8(1)(b) of Council Regulation 40/94; and

| — | Order OHIM and, as appropriate, the intervener in the proceedings to pay the costs. |
| --- | --- |

—

Order OHIM and, as appropriate, the intervener in the proceedings to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The other party to the proceedings before the Board of Appeal

Community trade mark concerned: The figurative mark ‘Archer Maclean’s Mercury’, for goods in classes 9, 16 and 28 — application No 4 290 227

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

Mark or sign cited: German trade mark registration of the word mark ‘Merkur’ for goods and services in classes 6, 9, 28, 35, 37, 41 and 42

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation 40/94 as the Board of Appeal wrongly concluded that there were no visual, phonetic or conceptual identity similarities between the trade marks concerned, as well as that there was no identity of goods for classes 9 and 28, and therefore no likelihood of confusion between the trade marks concerned.

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| 16.5.2009 | EN | Official Journal of the European Union | C 113/40 |
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Action brought on 12 March 2009 — United Kingdom v Commission

(Case T-107/09)

2009/C 113/81

Language of the case: English

Parties

Applicant: United Kingdom of Great Britain and Northern Ireland (represented by: V. Jackson, agent assisted by T. Eicke, Barrister)

Defendant: Commission of the European Communities

Form of order sought

| — | annul Commission decision 2008/960/EC of 8 December 2008 excluding from Community financing certain expenditure incurred by the Member States under Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) and under the European Agricultural Guarantee Fund (EAGF) (1) in part, namely in so far as it has the effect of applying a correction to the Fruit and Vegetable aid scheme against the United Kingdom for alleged weaknesses in its control system concerning the recognition of POs created before 2002 (not providing technical means) and |
| --- | --- |

—

annul Commission decision 2008/960/EC of 8 December 2008 excluding from Community financing certain expenditure incurred by the Member States under Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) and under the European Agricultural Guarantee Fund (EAGF) (1) in part, namely in so far as it has the effect of applying a correction to the Fruit and Vegetable aid scheme against the United Kingdom for alleged weaknesses in its control system concerning the recognition of POs created before 2002 (not providing technical means) and

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

—

order the Commission to pay the costs of proceedings.

Pleas in law and main arguments

By means of present application, the applicant seeks the partial annulement of Commission decision 2008/960/EC of 8 December 2008 excluding from Community financing certain expenditure incurred by the Member States under Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) and under the European Agricultural Guarantee Fund (EAGF) on the ground that the Commission wrongly interpreted and applied Article 11(2)(d) of Council Regulation No 2200/96 (2) in finding that the United Kingdom government had failed to observe the conditions laid down in that provision for the recognition of Producer Organisation in the fruit and vegetable sector.

The applicant contends that the Commission’s restrictive interpretation of Article 11(2)(d) of Council Regulation 2200/96 underlying the relevant aspects of the contested decision is inconsistent both with the language and with the object and purpose of that provision.

---

(1)  Notified under document number C(2008) 7820, OJ 2008 L 340, p. 99

(2)  Council Regulation (EC) No 2200/96 of 28 October 1996 on the common organization of the market in fruit and vegetables, OJ 1996 L 297, p. 1

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Action brought on 17 March 2009 — Rintisch v OHIM — Valfeuri Pates Alimentaires (PROTIVITAL)

(Case T-109/09)

2009/C 113/82

Language in which the application was lodged: English

Parties

Applicants: Bernhard Rintisch (Bottrop, Germany) (represented by: A. Dreyer, lawyer)

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

Other party to the proceedings before the Board of Appeal: Valfeuri Pates Alimentaires SA (Wittenheim, France)

Form of order sought

| — | Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 21 January 2009 in case R 1660/2007-4; and |
| --- | --- |

—

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 21 January 2009 in case R 1660/2007-4; and

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

—

Order OHIM to pay the costs

Pleas in law and main arguments

Applicant for the Community trade mark: The other party to the proceedings before the Board of Appeal

Community trade mark concerned: The word mark ‘PROTIVITAL’, for goods in classes 5, 29 and 30 — application No 4 843 331

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

Mark or sign cited: German trade mark registration of the word mark ‘PROTI’ for goods in classes 29 and 32; German trade mark registration of the figurative mark ‘PROTIPOWER’ for goods in classes 5, 29 and 32; German trade mark registration of the word mark ‘PROTIPLUS’ for goods in classes 5, 29 and 32; German trade mark registration of the trade word ‘PROTITOP’ for goods in classes 5, 29, 30 and 32; Community trade mark registration of the word mark ‘PROTI’ for goods in classes 5 and 29

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation 40/94 as the Board of Appeal failed to assess the opposition on its merits; Infringement of Article 74(2) of Council Regulation 40/94 as the Board of Appeal failed to exercise discretion or at least failed to state reasons how it exercised discretion; Misuse of power as the Board of Appeal erred by not taking into account documents and evidence submitted by the applicant.

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Action brought on 19 March 2009 — Icebreaker v OHIM — Gilmar (ICEBREAKER)

(Case T-112/09)

2009/C 113/83

Language in which the application was lodged: English

Parties

Applicants: Icebreaker Ltd (Wellington, New Zealand) (represented by: L. Prehn, lawyer)

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

Other party to the proceedings before the Board of Appeal: Gilmar SpA (San Giovanni in Marignano (Rimini), Italy)

Form of order sought

| — | Reverse the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 January 2009 in case R 1536/2007-4 and approve for registration for goods in class 25 the Community trade mark concerned; and |
| --- | --- |

—

Reverse the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 January 2009 in case R 1536/2007-4 and approve for registration for goods in class 25 the Community trade mark concerned; and

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

—

Order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘ICEBREAKER’, for goods in classes 9, 24 and 25 — application No 3 205 523

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

Mark or sign cited: Italian trade mark registration of the word mark ‘ICEBERG’ for goods in class 25; International trade mark registration of the word mark ‘ICEBERG’ for goods in class 25; Spanish trade mark registration of the word mark ‘ICEBERG’ for goods in class 25; Italian trade mark registration of the word mark ‘ICE’ for goods in class 25; International trade mark registration of the word mark ‘ICE’ for goods in class 25

Decision of the Opposition Division: Partially allowed the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation 40/94 as the Board of Appeal wrongly concluded that there is a likelihood of confusion between the trade marks concerned.

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Action brought on 24 March 2009 — Electrolux v Commission

(Case T-115/09)

2009/C 113/84

Language of the case: English

Parties

Applicant: AB Electrolux (Stockholm, Sweden) (represented by: F. Wijckmans, H. Burez, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | annul the contested decision in its entirety on account of the fact that one or more of the (cumulative) conditions of the Community guidelines on State aid for rescuing and restructuring firms in difficulty are not met or that, in any event, the Commission has failed to ascertain to the requisite legal standard that each of such conditions is met; |
| --- | --- |

—

annul the contested decision in its entirety on account of the fact that one or more of the (cumulative) conditions of the Community guidelines on State aid for rescuing and restructuring firms in difficulty are not met or that, in any event, the Commission has failed to ascertain to the requisite legal standard that each of such conditions is met;

| — | in subsidiary order, annul the decision in its entirety on account of the failure to comply with the duty to state reasons laid down in Article 253 EC; |
| --- | --- |

—

in subsidiary order, annul the decision in its entirety on account of the failure to comply with the duty to state reasons laid down in Article 253 EC;

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

—

order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant seeks the annulment of Commission Decision C(2008) 5995 final of 21 October 2008 declaring compatible with the common market the restructuring aid to be paid out by the French authorities to FagorBrandt company, subject to a number of conditions [C 44/2007 (ex N 460/2007)]. The applicant is a competitor to the beneficiary of the aid and has participated in the investigation procedure leading to the adoption of the contested decision.

The applicant claims that the contested decision infringes Article 87(3)(c) EC and the Community guidelines on State aid for rescuing and restructuring firms in difficulty (1). In the applicant’s opinion, the holding of the decision is incorrect as a matter of law on account of the fact that one or more of the cumulative conditions of the abovementioned guidelines are not met or that, in any event, the Commission has failed to ascertain to the requisite legal standard that each of such conditions is met. In particular, the applicant submits that the Commission failed to comply with:

| — | the ‘one time, last time’ condition, |
| --- | --- |

—

the ‘one time, last time’ condition,

| — | the condition that restructuring aid may not serve to keep firms artificially alive, |
| --- | --- |

—

the condition that restructuring aid may not serve to keep firms artificially alive,

| — | the conditions as to the assessment of previous unlawful aid, |
| --- | --- |

—

the conditions as to the assessment of previous unlawful aid,

| — | the condition that the beneficiary of the aid must be a firm in difficulty, |
| --- | --- |

—

the condition that the beneficiary of the aid must be a firm in difficulty,

| — | the condition that the beneficiary of the aid should not be a newly created firm, |
| --- | --- |

—

the condition that the beneficiary of the aid should not be a newly created firm,

| — | the condition that the beneficiary of the aid must restore the long-term viability of the beneficiary, |
| --- | --- |

—

the condition that the beneficiary of the aid must restore the long-term viability of the beneficiary,

| — | the condition of imposing compensatory measures to avoid undue distortions resulting from the restructuring aid, and |
| --- | --- |

—

the condition of imposing compensatory measures to avoid undue distortions resulting from the restructuring aid, and

| — | the condition that the aid must be limited to the minimum and that a real contribution (free of aid) must be made by the business group. |
| --- | --- |

—

the condition that the aid must be limited to the minimum and that a real contribution (free of aid) must be made by the business group.

Furthermore, the applicant contends that the contested decision infringes the duty to state reasons laid down in Article 253 EC in particular with respect to the arguments advanced by the applicant regarding the structural overcapacity in the sector, the contribution of the beneficiary to the costs of the restructuring plan that must be ‘as high as possible’ and the repayment obligation of previous unlawful aid.

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(1)  OJ 2004 C 244, p. 2

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Action brought on 24 March 2009 — Whirlpool Europe v Commission

(Case T-116/09)

2009/C 113/85

Language of the case: English

Parties

Applicant: Whirlpool Europe BV (Breda, Netherlands) (represented by: F.Tuytschaever, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | annul the contested decision in its entirety on account of the fact that one or more of the (cumulative) conditions of the Community guidelines on State aid for rescuing and restructuring firms in difficulty are not met or that, in any event, the Commission has failed to ascertain to the requisite legal standard that each of such conditions is met; |
| --- | --- |

—

annul the contested decision in its entirety on account of the fact that one or more of the (cumulative) conditions of the Community guidelines on State aid for rescuing and restructuring firms in difficulty are not met or that, in any event, the Commission has failed to ascertain to the requisite legal standard that each of such conditions is met;

| — | in subsidiary order, annul the decision in its entirety on account of the failure to comply with the duty to state reasons laid down in Article 253 EC; |
| --- | --- |

—

in subsidiary order, annul the decision in its entirety on account of the failure to comply with the duty to state reasons laid down in Article 253 EC;

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

—

order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant seeks the annulment of Commission Decision C(2008) 5995 final of 21 October 2008 declaring compatible with the common market the restructuring aid to be paid out by the French authorities to FagorBrandt company, subject to a number of conditions [C 44/2007 (ex N 460/2007)]. The applicant is a competitor to the beneficiary of the aid and has participated in the investigation procedure leading to the adoption of the contested decision.

The pleas in law and main arguments relied on by the applicant are identical or similar to those relied on in Case T-115/09 Electrolux v Commission.

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Action brought on 23 March 2009 — Protege International v Commission

(Case T-119/09)

2009/C 113/86

Language of the case: French

Parties

Applicant: Protege International Ltd (London, United Kingdom) (represented by: D. Shefet, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | annul the decision adopted by the Commission on 23 January relating to a proceeding under Article 82 of the EC Treaty (Case COMP/39.414 — Protégé International/Pernod Ricard). |
| --- | --- |

—

annul the decision adopted by the Commission on 23 January relating to a proceeding under Article 82 of the EC Treaty (Case COMP/39.414 — Protégé International/Pernod Ricard).

Pleas in law and main arguments

The applicant seeks annulment of the Commission decision of 23 January 2009 whereby the Commission, in making a finding of no sufficient Community interest to continue with the investigation, rejected the complaint brought by the applicant against Pernod Ricard regarding alleged abuse of dominant position committed by the latter in the Irish whiskey market consisting, first, of legal proceedings filed by Pernod Ricard against the applicant with regard to the application for registration as trade marks of ‘WILD GEESE’, ‘WILD GEESE RARE IRISH WHISKEY’ and ‘WILD GEESE IRISH SOLDIERS AND HEROS’ by the applicant and, second, in a refusal to supply.

In support of its action, the applicant claims that

| — | the legal proceedings initiated by Pernod Ricard had the aim, not of protecting Pernod Ricard’s intellectual property rights in its trade mark ‘WILD TURKEY’, since no risk of confusion exists between the opposing marks, but that of eliminating the applicant as a competitor of Pernod Ricard in the Irish whiskey market; |
| --- | --- |

—

the legal proceedings initiated by Pernod Ricard had the aim, not of protecting Pernod Ricard’s intellectual property rights in its trade mark ‘WILD TURKEY’, since no risk of confusion exists between the opposing marks, but that of eliminating the applicant as a competitor of Pernod Ricard in the Irish whiskey market;

| — | there was an abuse of dominant position when Pernod Ricard refused to provide Irish whiskey to the applicant by reason of the latter’s refusal to accept conditions restricting sale to markets approved by Pernod Ricard; |
| --- | --- |

—

there was an abuse of dominant position when Pernod Ricard refused to provide Irish whiskey to the applicant by reason of the latter’s refusal to accept conditions restricting sale to markets approved by Pernod Ricard;

| — | there is a Community interest, since the alleged abuses concern different Member States and the Community territory as a whole. |
| --- | --- |

—

there is a Community interest, since the alleged abuses concern different Member States and the Community territory as a whole.

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Action brought on 27 March 2009 — Al Shanfari v Council and Commission

(Case T-121/09)

2009/C 113/87

Language of the case: English

Parties

Applicant: Thamer Al Shanfari (represented by: P. Saini, QC, T. Nesbitt and B. Kennelly, Barristers, A. Patel, N. Sheikh, and K. Mehta, Solicitors)

Defendant: Council of the European Union and Commission of the European Communities

Form of order sought

| — | the annulment of Council Regulation (EC) No 314/2004 as amended by Commission Regulation (EC) No 77/2009, in so far as it concerns the applicant; and |
| --- | --- |

—

the annulment of Council Regulation (EC) No 314/2004 as amended by Commission Regulation (EC) No 77/2009, in so far as it concerns the applicant; and

| — | an order that the Council and the Commission pay the applicant’s costs of this action. |
| --- | --- |

—

an order that the Council and the Commission pay the applicant’s costs of this action.

Pleas in law and main arguments

By operation of Council Regulation (EC) No 314/2004 (1) as amended by Commission Regulation (EC) No 77/2009 (2) (‘the Contested Regulation’), all of the applicant’s funds within the Member States of the European Union have been frozen with the effect of preventing him from doing business in the EU, as well as being branded as having ties to the repressive regime in Zimbabwe and as being implicated in activities that seriously undermine democracy, respect of human rights and the rule of law. In addition, the applicant is subject to a travel ban pursuant to Article 4 of Council Common Position 2004/161/CFSP (3).

The applicant contends that the Contested Regulation should be annulled on the following grounds, each of which is addressed below:

First, the applicant submits that the Contested Regulation has no proper legal basis since neither Article 60 EC nor Article 301 EC give the Council the power to freeze the entirety of an individual’s funds who is not connected with the Government of Zimbabwe.

Second, according to the applicant’s submissions, the Contested Regulation infringes the Council and the Commission’s obligation to state reasons under Article 253 EC since the brief statement relating to the applicant in Annex III is manifestly inadequate and the Council Common Position which subjects the applicant to a travel ban provides no further particulars.

Third, the applicant claims that the Contested Regulation infringes the applicant’s fundamental rights, by interfering with his rights to effective judicial protection and to a fair hearing; as well as by interfering to a disproportionate extent with his rights to peaceful enjoyment of his property.

---

(1)  Council Regulation (EC) No 314/2004 of 19 February 2004 concerning certain restrictive measures in respect of Zimbabwe (OJ 2004 L 55, p. 1)

(2)  Commission Regulation (EC) No 77/2009 of 26 January 2009 amending Council Regulation (EC) No 314/2004 concerning certain restrictive measures in respect of Zimbabwe (OJ 2009 L 23, p. 5)

(3)  Council Common Position 2004/161/CFSP of 19 February 2004 renewing restrictive measures against Zimbabwe (OJ L 50, p. 66)

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Order of the Court of First Instance of 13 March 2009 — Torres v OHIM — Vinícola de Tomelloso (TORREGAZATE)

(Case T-273/07) (1)

2009/C 113/88

Language of the case: Spanish

The President of the Sixth 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 19 March 2009 — FMC Chemical and Others v Commission

(Case T-349/07 and T-350/07) (1)

2009/C 113/89

Language of the case: English

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

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(1)  OJ C 269, 10.11.2007.

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Order of the Court of First Instance (Seventh Chamber) of 11 March 2009 — Batchelor v Commission

(Case T -342/08) (1)

2009/C 113/90

Language of the case: English

The President of the Court of First Instance (Seventh Chamber) has ordered that the case be removed from the register.

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(1)  C 272, 25.10.2008.

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Order of the Court of First Instance of 5 March 2009 — Portugal v Commission

(Case T-378/08) (1)

2009/C 113/91

Language of the case: Portuguese

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

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(1)  OJ C 285, 8.11.2008.

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Order of the Court of First Instance of 24 March 2009 — Intel v Commission

(Case T-457/08) (1)

2009/C 113/92

Language of the case: English

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

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(1)  OJ C 301, 22.11.2008.

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European Union Civil Service Tribunal

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Action brought on 26 January 2009 — Soerensen Ferraresi v Commission

(Case F-5/09)

2009/C 113/93

Language of the case: Italian

Parties

Applicant: Ayo Soerensen Ferraresi (Milan, Italy) (represented by: C. Di Vuolo, lawyer)

Defendant: Commission of the European Communities

Subject-matter and description of the proceedings

An application for compensation for the damage suffered by the applicant as a result of mobbing experienced by the applicant and the decision of the Invalidity Committee to retire the applicant of its own motion on the ground of invalidity.

Form of order sought

| — | Order the defendant to pay compensation for the physical harm and the non-material and financial loss suffered by the applicant; |
| --- | --- |

—

Order the defendant to pay compensation for the physical harm and the non-material and financial loss suffered by the applicant;

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

—

order the defendant to pay the costs.

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Action brought on 18 February 2009 — A v Commission

(Case F-12/09)

2009/C 113/94

Language of the case: French

Parties

Applicant: A (Port-Vendres, France) (represented by: B. Cambier, A. Paternostre, lawyers)

Defendant: Commission of the European Communities

Subject-matter and description of the proceedings

First, the application seeks to obtain a declaration that the Commission is liable for certain wrongful acts allegedly committed against the applicant in the procedure pursuant to Article 73 of the Staff Regulations, and the annulment of several decisions refusing to give the applicant the benefit of the provisions of Article 73(2)(b) of the Staff Regulations, refusing to communicate to him a set of documents within his medical file and refusing to reimburse him for certain medical expenses. Second, the application seeks compensation for damage allegedly sustained.

Form of order sought

| — | Declare that the European Commission is liable for wrongful acts committed against the applicant in the procedure pursuant to Article 73 of the Staff Regulations and the agreed rules ‘on insurance against accidents and occupational disease’ of officials of the European Communities; |
| --- | --- |

—

Declare that the European Commission is liable for wrongful acts committed against the applicant in the procedure pursuant to Article 73 of the Staff Regulations and the agreed rules ‘on insurance against accidents and occupational disease’ of officials of the European Communities;

| — | Annul the decisions of the European Commission of 8 April and 13 November 2008 refusing to give to the applicant the benefit of the provisions of Article 73(2)(b) of the Staff Regulations, refusing to communicate to him a set of documents within his medical file and refusing to reimburse him for certain medical expenses; |
| --- | --- |

—

Annul the decisions of the European Commission of 8 April and 13 November 2008 refusing to give to the applicant the benefit of the provisions of Article 73(2)(b) of the Staff Regulations, refusing to communicate to him a set of documents within his medical file and refusing to reimburse him for certain medical expenses;

| — | Order the European Commission to pay immediately to the applicant the benefit provided for in Article 73(2)(b) of the Staff Regulations, namely EUR 1 422 024, to communicate to him the requested documents and to reimburse him in full for the medical expenses incurred and to be incurred because of the occupational disease suffered by him; |
| --- | --- |

—

Order the European Commission to pay immediately to the applicant the benefit provided for in Article 73(2)(b) of the Staff Regulations, namely EUR 1 422 024, to communicate to him the requested documents and to reimburse him in full for the medical expenses incurred and to be incurred because of the occupational disease suffered by him;

| — | Order the European Commission to pay to the applicant interest on late payment at the key rate of the European Central Bank increased by two points on the amount of the benefit to be paid under Article 73(2)(b) of the Staff Regulations, running from December 2004, when the occupational origin of the applicant’s disease ought to have been recognised; |
| --- | --- |

—

Order the European Commission to pay to the applicant interest on late payment at the key rate of the European Central Bank increased by two points on the amount of the benefit to be paid under Article 73(2)(b) of the Staff Regulations, running from December 2004, when the occupational origin of the applicant’s disease ought to have been recognised;

| — | Order the European Commission to pay to the applicant, in respect of his entitlement to full compensation for the damage suffered and in addition to the sums referred to above, the sum of EUR 1 949 689, that sum representing the difference between the total amount of the damage suffered and that of the lump sum benefit payable to the applicant under Article 73(2)(b) of the Staff Regulations; |
| --- | --- |

—

Order the European Commission to pay to the applicant, in respect of his entitlement to full compensation for the damage suffered and in addition to the sums referred to above, the sum of EUR 1 949 689, that sum representing the difference between the total amount of the damage suffered and that of the lump sum benefit payable to the applicant under Article 73(2)(b) of the Staff Regulations;

| — | Order the European Commission to pay to the applicant the sum of EUR 25 000 or any other sum which appears sufficient to the Tribunal in respect of the non-material damage suffered because of the many wrongful acts and breaches of procedure committed by the departments of the European Commission in the conduct of medical procedures relating to him; |
| --- | --- |

—

Order the European Commission to pay to the applicant the sum of EUR 25 000 or any other sum which appears sufficient to the Tribunal in respect of the non-material damage suffered because of the many wrongful acts and breaches of procedure committed by the departments of the European Commission in the conduct of medical procedures relating to him;

| — | 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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Action brought on 27 February 2009 — Meister v OHIM

(Case F-17/09)

2009/C 113/95

Language of the case: German

Parties

Applicant: Herbert E. Meister (Alicante, Spain) (represented by: H.-J. Zimmermann, lawyer)

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

Subject-matter and description of the proceedings

Annulment of the dismissal of the applicant’s complaint regarding the calculation of promotion points for the year 2008 and application for damages for infringement of the principles of proper personnel management

Form of order sought

| — | Annul the negative decision of the president of 20 December 2008 taken in relation to the internal complaint brought by the applicant under Article 90(2) of the Staff Regulations of 20 August 2008; |
| --- | --- |

—

Annul the negative decision of the president of 20 December 2008 taken in relation to the internal complaint brought by the applicant under Article 90(2) of the Staff Regulations of 20 August 2008;

| — | order the defendant to pay damages to the applicant, of an amount to be determined by the court; |
| --- | --- |

—

order the defendant to pay damages to the applicant, of an amount to be determined by the court;

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

—

order the defendant to pay the costs of the proceedings.

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Action brought on 2 March 2009 — Merhzaoui v Council

(Case F-18/09)

2009/C 113/96

Language of the case: French

Parties

Applicant: Mohamed Merhzaoui (Brussels, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis, E. Marchal, lawyers)

Defendant: Council of the European Union

Subject-matter and description of the proceedings

First, annulment of the decision to assign the applicant to the career stream AST 1-7. Secondly, annulment of the decision not to promote him to grade AST 2 in the 2008 promotion procedure and of the decisions to promote less deserving officials to that grade.

Form of order sought

The applicant claims that the Tribunal should:

| — | annul the decision to assign the applicant, with effect from 1 May 2006, to the career stream AST 1-7. |
| --- | --- |

—

annul the decision to assign the applicant, with effect from 1 May 2006, to the career stream AST 1-7.

| — | annul the appointing authority’s decision not to promote him to grade AST 2 in the 2008 promotion procedure and, so far as necessary, the decisions to promote less deserving officials to that grade; |
| --- | --- |

—

annul the appointing authority’s decision not to promote him to grade AST 2 in the 2008 promotion procedure and, so far as necessary, the decisions to promote less deserving officials to that grade;

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

—

order the Council of the European Union to pay the costs.

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| 16.5.2009 | EN | Official Journal of the European Union | C 113/46 |
| --- | --- | --- | --- |

16.5.2009

EN

Official Journal of the European Union

C 113/46

---

Action brought on 6 March 2009 — Lopez Sanchez v Council

(Case F-19/09)

2009/C 113/97

Language of the case: French

Parties

Applicant: Carolina Lopez Sanchez (Brussels, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis, E. Marchal, lawyers)

Defendant: Council of the European Union

Subject-matter and description of the proceedings

Annulment of the decision not to promote the applicant to grade AST 3 in the 2008 promotion procedure and, so far as necessary, of the decisions to promote less deserving officials to that grade.

Form of order sought

The applicant claims that the Tribunal should:

| — | annul the decision of the appointing authority not to promote the applicant to grade AST 3 in the 2008 promotion procedure and, so far as necessary, the decisions to promote less deserving officials to that grade; |
| --- | --- |

—

annul the decision of the appointing authority not to promote the applicant to grade AST 3 in the 2008 promotion procedure and, so far as necessary, the decisions to promote less deserving officials to that grade;

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

—

order the Council of the European Union to pay the costs.

---

| 16.5.2009 | EN | Official Journal of the European Union | C 113/46 |
| --- | --- | --- | --- |

16.5.2009

EN

Official Journal of the European Union

C 113/46

---

Action brought on 9 March 2009 — Juvyns v Council

(Case F-20/09)

2009/C 113/98

Language of the case: French

Parties

Applicant: Marc Juvyns (Brussels, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis, E. Marchal, lawyers)

Defendant: Council of the European Union

Subject-matter and description of the proceedings

Annulment of the decision not to promote the applicant to grade AST 7 in the 2008 promotion procedure and, so far as necessary, of the decisions to promote less deserving officials to that grade.

Form of order sought

The applicant claims that the Tribunal should:

| — | annul the appointing authority’s decision not to promote the applicant to grade AST 7 in the 2008 promotion procedure and, so far as necessary, the decisions to promote less deserving officials to that grade; |
| --- | --- |

—

annul the appointing authority’s decision not to promote the applicant to grade AST 7 in the 2008 promotion procedure and, so far as necessary, the decisions to promote less deserving officials to that grade;

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

—

order the Council of the European Union to pay the costs.

---

| 16.5.2009 | EN | Official Journal of the European Union | C 113/47 |
| --- | --- | --- | --- |

16.5.2009

EN

Official Journal of the European Union

C 113/47

---

Action brought on 9 March 2009 — De Benedetti-Dagnoni v Council

(Case F-21/09)

2009/C 113/99

Language of the case: French

Parties

Applicant: Rosangela De Benedetti-Dagnoni (Brussels, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis, E. Marchal, lawyers)

Defendant: Council of the European Union

Subject-matter and description of the proceedings

Annulment of the decision not to promote the applicant to grade AST 7 in the 2008 promotion procedure and, so far as necessary, of the decisions to promote less deserving officials to that grade.

Form of order sought

The applicant claims that the Tribunal should:

| — | annul the appointing authority’s decision not to promote the applicant to grade AST 7 in the 2008 promotion procedure and, so far as necessary, the decisions to promote less deserving officials to that grade; |
| --- | --- |

—

annul the appointing authority’s decision not to promote the applicant to grade AST 7 in the 2008 promotion procedure and, so far as necessary, the decisions to promote less deserving officials to that grade;

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

—

order the Council of the European Union to pay the costs.

---

| 16.5.2009 | EN | Official Journal of the European Union | C 113/47 |
| --- | --- | --- | --- |

16.5.2009

EN

Official Journal of the European Union

C 113/47

---

Action brought on 9 March 2009 — Marie-Hélène Willigens v Council

(Case F-22/09)

2009/C 113/100

Language of the case: French

Parties

Applicant: Marie-Hélène Willigens (Glabais, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis, E. Marchal, lawyers)

Defendant: Council of the European Union

Subject-matter and description of the proceedings

Annulment of the decision not to promote the applicant to grade AST 7 in the 2008 promotion procedure and, so far as necessary, of the decisions to promote less deserving officials to that grade.

Form of order sought

The applicant claims that the Tribunal should:

| — | annul the appointing authority’s decision not to promote the applicant to grade AST 7 in the 2008 promotion procedure and, so far as necessary, the decisions to promote less deserving officials to that grade; |
| --- | --- |

—

annul the appointing authority’s decision not to promote the applicant to grade AST 7 in the 2008 promotion procedure and, so far as necessary, the decisions to promote less deserving officials to that grade;

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

—

order the Council of the European Union to pay the costs.

---

| 16.5.2009 | EN | Official Journal of the European Union | C 113/47 |
| --- | --- | --- | --- |

16.5.2009

EN

Official Journal of the European Union

C 113/47

---

Action brought on 16 March 2009 — Wagner-Leclercq v Council

(Case F-24/09)

2009/C 113/101

Language of the case: French

Parties

Applicant: Inge Wagner-Leclercq (Edegem, Belgium) (represented by: S. Rodrigues, C. Bernard-Glanz, lawyers)

Defendant: Council of the European Union

Subject-matter and description of the proceedings

Annulment of the decision of the appointing authority published in the staff notice No 75/08 of 24 April 2008, listing the AST officials (career path I-11) proposed for promotion in the 2008 promotion year.

Form of order sought

| — | Annul the decision of the appointing authority published in the staff notice No 75/08 of 24 April 2008, listing the AST officials (career path I-11) proposed for promotion in the 2008 promotion year; |
| --- | --- |

—

Annul the decision of the appointing authority published in the staff notice No 75/08 of 24 April 2008, listing the AST officials (career path I-11) proposed for promotion in the 2008 promotion year;

| — | Annul, so far as necessary, the decision of the appointing authority rejecting the applicant’s complaint; |
| --- | --- |

—

Annul, so far as necessary, the decision of the appointing authority rejecting the applicant’s complaint;

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

—

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

---

| 16.5.2009 | EN | Official Journal of the European Union | C 113/48 |
| --- | --- | --- | --- |

16.5.2009

EN

Official Journal of the European Union

C 113/48

---

Action brought on 16 March 2009 — Van Neyghem v Council

(Case F-25/09)

2009/C 113/102

Language of the case: French

Parties

Applicant: Kris van Neyghem (Tienen, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis, E. Marchal, lawyers)

Defendant: Council of the European Union

Subject-matter and description of the proceedings

Annulment of the decision not to promote the applicant to grade AST 7 for the 2008 promotion year and, so far as necessary, of the decisions to promote officials of lesser merit to that grade.

Form of order sought

| — | Annul the decision of the appointing authority not to promote the applicant to grade AST 7 for the 2008 promotion year and, so far as necessary, the decisions to promote officials of lesser merit to that grade; |
| --- | --- |

—

Annul the decision of the appointing authority not to promote the applicant to grade AST 7 for the 2008 promotion year and, so far as necessary, the decisions to promote officials of lesser merit to that grade;

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

—

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

---