# Official Journal C 399/2012

| | ISSN 1977-091X
  doi:10.3000/1977091X.C_2012.399.eng |
| --- | --- |
| Official Journal
  of the European Union | C 399 |
| | |
| English edition | Information and Notices | Volume 5522 December 2012 |

ISSN 1977-091X

doi:10.3000/1977091X.C_2012.399.eng

Official Journal

of the European Union

C 399

English edition

Information and Notices

Volume 5522 December 2012

---

| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | Court of Justice of the European Union |
| 2012/C 399/01 | Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 389, 15.12.2012 | 1 |

Notice No

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

2012/C 399/01

Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 389, 15.12.2012

Official Journal of the European Union

1

| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2012/C 399/02 | Case C-300/10: Judgment of the Court (Grand Chamber) of 23 October 2012 (reference for a preliminary ruling from the Tribunal da Relação de Guimarães — Portugal) — Vítor Hugo Marques Almeida v Companhia de Seguros Fidelidade-Mundial SA, Jorge Manuel da Cunha Carvalheira, Paulo Manuel Carvalheira, Fundo de Garantia Automóvel (Insurance against civil liability in respect of the use of motor vehicles — Directive 72/166/EEC — Article 3(1) — Directive 84/5/EEC — Article 2(1) — Directive 90/232/EEC — Article 1 — Right to compensation by means of compulsory insurance against civil liability in respect of the use of motor vehicles — Civil liability of the insured person — Victim’s contribution to loss or injury — Limitation of the right to compensation) | 2 |
| 2012/C 399/03 | Case C-557/10: Judgment of the Court (First Chamber) of 25 October 2012 — European Commission v Portuguese Republic (Failure of a Member State to fulfil obligations — Transport — Development of the Community’s railways — Directive 91/440/EEC — Article 5(3) — Rail transport undertakings — Freedom of management — Decisions on staff, assets and own procurement — Article 7(3) — Grant of financing to the infrastructure manager — Directive 2001/14/EC — Article 6(1) — Balancing the accounts — Appropriate conditions — Incomplete transposition) | 3 |
| 2012/C 399/04 | Joined Cases C-581/10 and C-629/10: Judgment of the Court (Grand Chamber) of 23 October 2012 (references for a preliminary ruling from the Amtsgericht Köln — Germany, High Court of Justice (England and Wales), Queen’s Bench Division (Administrative Court) — United Kingdom) — Emeka Nelson, Bill Chinazo Nelson, Brian Cheimezie Nelson v Deutsche Lufthansa AG (C-581/10), TUI Travel plc, British Airways plc, easyJet Airline Company Ltd, International Air Transport Association v Civil Aviation Authority (C-629/10) (Air transport — Regulation (EC) No 261/2004 — Articles 5 to 7 — Montreal Convention — Articles 19 and 29 — Right to compensation in the event of delay of flights — Compatibility) | 3 |
| 2012/C 399/05 | Case C-133/11: Judgment of the Court (First Chamber) of 25 October 2012 (reference for a preliminary ruling from the Bundesgerichtshof — Germany) — Folien Fischer AG, Fofitec AG v Ritrama SpA (Area of freedom, security and justice — Jurisdiction in civil and commercial matters — Special jurisdiction in tort, delict or quasi-delict — Action for a negative declaration (negative Feststellungsklage) — Whether a person alleged to have committed a harmful act may bring a person who might be adversely affected, before the courts with jurisdiction for the place where the act allegedly occurred or may occur, seeking a declaration that there is no liability in tort or delict) | 4 |
| 2012/C 399/06 | Case C-164/11: Judgment of the Court (Eighth Chamber) of 25 October 2012 — European Commission v French Republic (Failure of a Member State to fulfil obligations — Directive 2003/96/EC — Taxation of energy products and electricity — Failure to transpose within the prescribed period) | 4 |
| 2012/C 399/07 | Joined Cases C-318/11 and C-319/11: Judgment of the Court (Eighth Chamber) of 25 October 2012 (reference for a preliminary ruling from the Förvaltningsrätten i Falun — Sweden) — Daimler AG (C-318/11), Widex A/S(C-319/11) v Skatteverket (Common system of value added tax — Directive 2006/112/EC — Articles 170 and 171 — Eighth VAT Directive — Article 1 — Directive 2008/9/EC — Article 3(a) — Arrangements for the refund of value added tax to taxable persons not established in the territory of the country — Taxable persons established in one Member State and carrying out in another Member State only technical testing or research activities) | 5 |
| 2012/C 399/08 | Case C-367/11: Judgment of the Court (Fourth Chamber) of 25 October 2012 (reference for a preliminary ruling from the Cour de cassation — Belgium) — Déborah Prete v Office national de l’emploi (Freedom of movement for persons — Article 39 EC — National of a Member State seeking employment in another Member State — Equal treatment — Tideover allowance for young persons seeking their first job — Grant subject to completion of at least six years’ studies in the host State) | 6 |
| 2012/C 399/09 | Case C-387/11: Judgment of the Court (First Chamber) of 25 October 2012 — European Commission v Kingdom of Belgium (Failure of a Member State to fulfil obligations — Articles 49 TFEU and 63 TFEU — Articles 31 and 40 of the EEA Agreement — Taxation of income from capital and immovable property — Resident and non-resident investment companies — Withholding tax — Setting off of withholding tax — Exemption of income from capital and movable property — Discrimination — Justifications) | 6 |
| 2012/C 399/10 | Case C-553/11: Judgment of the Court (Third Chamber) of 25 October 2012 (reference for a preliminary ruling from the Bundesgerichtshof — Germany) — Bernhard Rintisch v Klaus Eder (Trade marks — Directive 89/104/EEC — Article 10(1) and (2)(a) — Genuine use — Use in a form, itself registered as a trade mark, differing in elements which do not alter the distinctive character of the mark — Temporal effects of a judgment) | 7 |
| 2012/C 399/11 | Case C-557/11: Judgment of the Court (Sixth Chamber) of 25 October 2012 (reference for a preliminary ruling from the Naczelny Sąd Administracyjny — Poland) — Maria Kozak v Dyrektor Izby Skarbowej w Lublinie (VAT — Directive 2006/112/EC — Articles 306 to 310 — Special scheme for travel agents — Transport services carried out by travel agents acting in their own name — Concept of single service — Article 98 — Reduced VAT rate) | 7 |
| 2012/C 399/12 | Case C-592/11: Judgment of the Court (Eighth Chamber) of 25 October 2012 (reference for a preliminary ruling from the Korkein hallinto-oikeus — Finland) — Anssi Ketelä (Agriculture — Regulations (EC) No 1698/2005 and 1974/2006 — Setting up aid for young farmers — Conditions for grant — Setting up for the first time on an agricultural holding as head of the holding — Conditions governing applicability where the person concerned sets up using a legal person) | 8 |
| 2012/C 399/13 | Case C-102/12 P: Appeal brought on 27 February 2012 by Stefan Städter against the order of the General Court (First Chamber) delivered on 16 December 2011 in Case T-532/11 Stefan Städter v European Central Bank | 8 |
| 2012/C 399/14 | Case C-409/12: Reference for a preliminary ruling from the Oberster Patent- und Markensenat (Austria) lodged on 6 September 2012 — Backaldrin Österreich The Kornspitz Company GmbH v Pfahnl Backmittel GmbH | 9 |
| 2012/C 399/15 | Case C-426/12: Reference for a preliminary ruling from the Gerechtshof te ’s-Hertogenbosch (Netherlands), lodged on 18 September 2012 — X; Other party: Voorzitter van het managementteam van het onderdeel Belastingdienst/Z van de rijksbelastingdienst | 9 |
| 2012/C 399/16 | Case C-430/12: Reference for a preliminary ruling from the Curtea de Apel Bacău (Romania) lodged on 21 September 2012 — Elena Luca v Casa de Asigurări de Sănătate Bacău | 10 |
| 2012/C 399/17 | Case C-431/12: Reference for a preliminary ruling from the Înalta Curte de Casație și Justiție (Romania), lodged on 24 September 2012 — Agenția Națională de Administrare Fiscală — Direcția Generală de Soluționare a Contestațiilor, Agenția Națională de Administrare Fiscală — Direcția Generală de Administrare a Marilor Contribuabili v SC Rafinăria Steaua Română SA | 10 |
| 2012/C 399/18 | Case C-435/12: Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 26 September 2012 — ACI Adam BV and Others v Stichting de Thuiskopie and Others | 10 |
| 2012/C 399/19 | Case C-437/12: Reference for a preliminary ruling from the Gerechtshof te ’s Hertogenbosch (Netherlands), lodged on 1 October 2012 — X; Other party: Voorzitter van het managementteam van het onderdeel Belastingdienst/Z van de rijksbelastingdienst | 11 |
| 2012/C 399/20 | Case C-451/12: Reference for a preliminary ruling from the Audiencia Provincial de Salamanca (Spain) lodged on 8 October 2012 — Josune Esteban García | 12 |
| 2012/C 399/21 | Case C-454/12: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 10 October 2012 — Pro Med Logistik GmbH v Finanzamt Dresden-Süd | 12 |
| 2012/C 399/22 | Case C-455/12: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 10 October 2012 — Karin Oertel v Finanzamt Würzburg mit Außenstelle Ochsenfurt | 13 |
| 2012/C 399/23 | Case C-463/12: Reference for a preliminary ruling from the Østre Landsret (Denmark) lodged on 16 October 2012 — Copydan Båndkopi v Nokia Danmark A/S | 13 |
| 2012/C 399/24 | Case C-468/12: Reference for a preliminary ruling from the Tribunale di Cosenza (Italy) lodged on 19 October 2012 — CCIAA di Cosenza v CIESSE SRL in liquidation | 14 |
| 2012/C 399/25 | Case C-472/12: Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 22 October 2012 — Panasonic Italia SpA v Agenzia delle Dogane | 15 |
| | General Court |
| 2012/C 399/26 | Case T-574/08: Judgment of the General Court of 7 November 2012 — Syndicat des thoniers méditerranéens and Others v Commission (Non-contractual liability — Fishing — Conservation of fishery resources — Reconstitution of the stocks of bluefin tuna — Emergency measures prohibiting fishing by purse seiners — Unusual loss) | 16 |
| 2012/C 399/27 | Case T-135/09: Judgment of the General Court of 14 November 2012 — Nexans France and Nexans v Commission (Competition — Administrative procedure — Action for annulment — Acts adopted during an inspection — Intermediate measures — Inadmissibility — Decision ordering an inspection — Obligation to state the reasons on which the decision is based — Protection of privacy — Reasonable grounds — Review by the Courts) | 16 |
| 2012/C 399/28 | Case T-140/09: Judgment of the General Court of 14 November 2012 — Prysmian and Prysmian Cavi e Sistemi Energia v Commission (Competition — Administrative procedure — Action for annulment — Acts adopted during an inspection — Intermediate measures — Inadmissibility — Decision ordering an inspection — Obligation to state the reasons on which the decision is based — Protection of privacy — Reasonable grounds — Review by the Court.) | 17 |
| 2012/C 399/29 | Case T-278/09: Judgment of the General Court of 15 November 2012 — Verband Deutscher Prädikatsweingüter v OHIM (GG) (Community trade mark — Application for the Community collective word mark GG — Absolute ground for refusal — Descriptive character — Lack of distinctive character — Article 7(1)(b) and (c) of Regulation (EC) No 207/2009 — Obligation to state reasons — Article 75 of Regulation No 207/2009) | 17 |
| 2012/C 399/30 | Case T-137/10: Judgment of the General Court of 7 November 2012 — CBI v Commission (State aid — Public hospitals — Funding granted by the Belgian authorities to public hospitals belonging to the IRIS network — Decision at the end of the preliminary phase — Decision declaring the aid compatible with the internal market — Service of general economic interest — Definition of the public service mandate — Proportionality of the public service compensation) | 18 |
| 2012/C 399/31 | Case T-194/10: Judgment of the General Court of 8 November 2012 — Hungary v Commission (Action for annulment — Regulation (EC) No 1234/2007 — Regulation (EC) No 607/2009 — E-Bacchus database — Registration of the protected designation of origin Vinohradnícka oblast Tokaj’, in respect of Slovakia — Measure not subject to review — Inadmissibility) | 18 |
| 2012/C 399/32 | Joined Cases T-83/11 and T-84/11: Judgment of the General Court of 13 November 2012 — Antrax It v OHIM — THC (Radiators for heating) (Community design — Invalidity proceedings — Registered Community designs representing thermosiphons for the purposes of radiators for heating — Earlier design — Ground for invalidity — Lack of individual character — Overall impression not different — Article 6 and Article 25(1)(b) of Regulation (EC) No 6/2002 — No scope for innovation — Obligation to state reasons) | 19 |
| 2012/C 399/33 | Case T-114/11: Judgment of the General Court of 7 November 2012 — Giordano v Commission (Non-contractual liability — Fisheries — Conservation of fisheries resources — Recovery of bluefin tuna stocks — Emergency measures prohibiting fishing by purse seiners — Unlawful conduct — Causal link) | 19 |
| 2012/C 399/34 | Case T-268/11 P: Judgment of the General Court of 8 November 2012 — Commission v Strack (Appeal — Civil Service — Officials — Leave — Sick leave — Annulment at first instance of the Commission’s decision refusing to carry over days of annual leave not taken by the person concerned — Article 4 of Annex V to the Staff Regulations — Article 1e(2) of the Staff Regulations — Directive 2003/88/EC — Appeal well founded — Whether the state of the proceedings permits final judgment to be given — Dismissal of the action) | 19 |
| 2012/C 399/35 | Case T-415/11: Judgment of the General Court of 8 November 2012 — Hartmann v OHIM (Nutriskin Protection Complex) (Community trade mark — Application for the Community word mark Nutriskin Protection Complex — Absolute grounds for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009 — Lack of distinctive character — Article 7(1)(b) of Regulation No 207/2009 — OHIM’s decision-making practice — Obligation to state reasons — Article 75 of Regulation No 207/2009) | 20 |
| 2012/C 399/36 | Case T-529/11: Judgment of the General Court of 14 November 2012 — Evonik Industries v OHIM — Impulso Industrial Alternativo (Impulso creador) (Community trade mark — Opposition proceedings — Application for Community word mark Impulso creador — Earlier figurative Community mark IMPULSO — Relative ground for refusal — Likelihood of confusion — Similarity of signs — Article 8(1)(b) of Regulation (EC) No 207/2009) | 20 |
| 2012/C 399/37 | Case T-555/11: Judgment of the General Court of 13 November 2012 — tesa v OHIM — Superquímica (tesa TACK) (Community trade mark — Opposition proceedings — Application for Community figurative mark tesa TACK — Earlier national figurative mark TACK Ceys — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 207/2009) | 21 |
| 2012/C 399/38 | Case T-212/07 REV: Order of the General Court of 24 October 2012 — Harman International Industries, Inc. v OHIM — Becker (Barbara Becker) (Community trade mark — Opposition — Withdrawal of the opposition — No need to adjudicate) | 21 |
| 2012/C 399/39 | Case T-180/11: Order of the General Court of 23 October 2012 — Chivas v OHIM — Glencairn Scotch Whisky (CHIVAS LIVE WITH CHIVALRY) (Community trade mark — Opposition — Opposition withdrawn — No need to adjudicate) | 21 |
| 2012/C 399/40 | Case T-181/11: Order of the General Court of 23 October 2012 — Chivas v OHIM — Glencairn Scotch Whisky (LIVE WITH CHIVALRY) (Community trade mark — Opposition — Opposition withdrawn — No need to adjudicate) | 22 |
| 2012/C 399/41 | Case T-442/11: Order of the General Court of 24 October 2012 — Evropaïki Dynamiki v Commission (Action for annulment — Act not subject to review — Act which is confirmatory, in part, and informative, in part — Inadmissibility — Action for damages — Failure to identify the alleged conduct or to define the alleged damage — Inadmissibility — Action for damages — Absence of proof of damage — Action manifestly lacking any foundation in law) | 22 |
| 2012/C 399/42 | Case T-530/11: Order of the General Court of 23 October 2012 — Chivas v OHIM — Glencairn Scotch Whisky (CHIVALRY) (Community trade mark — Opposition — Opposition withdrawn — No need to adjudicate) | 22 |
| 2012/C 399/43 | Case T-187/12: Order of the General Court of 13 September 2012 — Bäßler v OHIM (MAX) (Application — Formal requirements — Manifest inadmissibility) | 23 |
| 2012/C 399/44 | Case T-219/12 R: Order of the President of the General Court of 24 October 2012 — Saobraćajni institut CIP v Commission (Application for interim measures — Public service contracts — Call for tenders concerning the preparation of technical documentation for a railway modernisation project — Exclusion of the applicant from participating in that tendering procedure — Annulment of the tendering procedure after the action had been brought — No need to adjudicate) | 23 |
| 2012/C 399/45 | Case T-227/12 R: Order of the President of the General Court of 24 October 2012 — Saobraćajni institut CIP v Commission (Application for interim measures — Public service contracts — Call for tenders concerning the preparation of technical documentation for a rail modernisation project — Exclusion of the applicant from participation in the tender procedure — Annulment of the tender procedure after the action had been brought — No need to adjudicate) | 23 |
| 2012/C 399/46 | Case T-444/12: Action brought on 8 October 2012 — Novartis v OHIM — Tenimenti Angelini (LINEX) | 24 |
| 2012/C 399/47 | Case T-450/12: Action brought on 11 October 2012 — Anagnostakis v Commission | 24 |
| 2012/C 399/48 | Case T-455/12: Action brought on 12 October 2012 — Zoo Sport v OHIM — K-2 (zoo sport) | 25 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2012/C 399/02

Case C-300/10: Judgment of the Court (Grand Chamber) of 23 October 2012 (reference for a preliminary ruling from the Tribunal da Relação de Guimarães — Portugal) — Vítor Hugo Marques Almeida v Companhia de Seguros Fidelidade-Mundial SA, Jorge Manuel da Cunha Carvalheira, Paulo Manuel Carvalheira, Fundo de Garantia Automóvel (Insurance against civil liability in respect of the use of motor vehicles — Directive 72/166/EEC — Article 3(1) — Directive 84/5/EEC — Article 2(1) — Directive 90/232/EEC — Article 1 — Right to compensation by means of compulsory insurance against civil liability in respect of the use of motor vehicles — Civil liability of the insured person — Victim’s contribution to loss or injury — Limitation of the right to compensation)

2

2012/C 399/03

Case C-557/10: Judgment of the Court (First Chamber) of 25 October 2012 — European Commission v Portuguese Republic (Failure of a Member State to fulfil obligations — Transport — Development of the Community’s railways — Directive 91/440/EEC — Article 5(3) — Rail transport undertakings — Freedom of management — Decisions on staff, assets and own procurement — Article 7(3) — Grant of financing to the infrastructure manager — Directive 2001/14/EC — Article 6(1) — Balancing the accounts — Appropriate conditions — Incomplete transposition)

3

2012/C 399/04

Joined Cases C-581/10 and C-629/10: Judgment of the Court (Grand Chamber) of 23 October 2012 (references for a preliminary ruling from the Amtsgericht Köln — Germany, High Court of Justice (England and Wales), Queen’s Bench Division (Administrative Court) — United Kingdom) — Emeka Nelson, Bill Chinazo Nelson, Brian Cheimezie Nelson v Deutsche Lufthansa AG (C-581/10), TUI Travel plc, British Airways plc, easyJet Airline Company Ltd, International Air Transport Association v Civil Aviation Authority (C-629/10) (Air transport — Regulation (EC) No 261/2004 — Articles 5 to 7 — Montreal Convention — Articles 19 and 29 — Right to compensation in the event of delay of flights — Compatibility)

3

2012/C 399/05

Case C-133/11: Judgment of the Court (First Chamber) of 25 October 2012 (reference for a preliminary ruling from the Bundesgerichtshof — Germany) — Folien Fischer AG, Fofitec AG v Ritrama SpA (Area of freedom, security and justice — Jurisdiction in civil and commercial matters — Special jurisdiction in tort, delict or quasi-delict — Action for a negative declaration (negative Feststellungsklage) — Whether a person alleged to have committed a harmful act may bring a person who might be adversely affected, before the courts with jurisdiction for the place where the act allegedly occurred or may occur, seeking a declaration that there is no liability in tort or delict)

4

2012/C 399/06

Case C-164/11: Judgment of the Court (Eighth Chamber) of 25 October 2012 — European Commission v French Republic (Failure of a Member State to fulfil obligations — Directive 2003/96/EC — Taxation of energy products and electricity — Failure to transpose within the prescribed period)

4

2012/C 399/07

Joined Cases C-318/11 and C-319/11: Judgment of the Court (Eighth Chamber) of 25 October 2012 (reference for a preliminary ruling from the Förvaltningsrätten i Falun — Sweden) — Daimler AG (C-318/11), Widex A/S(C-319/11) v Skatteverket (Common system of value added tax — Directive 2006/112/EC — Articles 170 and 171 — Eighth VAT Directive — Article 1 — Directive 2008/9/EC — Article 3(a) — Arrangements for the refund of value added tax to taxable persons not established in the territory of the country — Taxable persons established in one Member State and carrying out in another Member State only technical testing or research activities)

5

2012/C 399/08

Case C-367/11: Judgment of the Court (Fourth Chamber) of 25 October 2012 (reference for a preliminary ruling from the Cour de cassation — Belgium) — Déborah Prete v Office national de l’emploi (Freedom of movement for persons — Article 39 EC — National of a Member State seeking employment in another Member State — Equal treatment — Tideover allowance for young persons seeking their first job — Grant subject to completion of at least six years’ studies in the host State)

6

2012/C 399/09

Case C-387/11: Judgment of the Court (First Chamber) of 25 October 2012 — European Commission v Kingdom of Belgium (Failure of a Member State to fulfil obligations — Articles 49 TFEU and 63 TFEU — Articles 31 and 40 of the EEA Agreement — Taxation of income from capital and immovable property — Resident and non-resident investment companies — Withholding tax — Setting off of withholding tax — Exemption of income from capital and movable property — Discrimination — Justifications)

6

2012/C 399/10

Case C-553/11: Judgment of the Court (Third Chamber) of 25 October 2012 (reference for a preliminary ruling from the Bundesgerichtshof — Germany) — Bernhard Rintisch v Klaus Eder (Trade marks — Directive 89/104/EEC — Article 10(1) and (2)(a) — Genuine use — Use in a form, itself registered as a trade mark, differing in elements which do not alter the distinctive character of the mark — Temporal effects of a judgment)

7

2012/C 399/11

Case C-557/11: Judgment of the Court (Sixth Chamber) of 25 October 2012 (reference for a preliminary ruling from the Naczelny Sąd Administracyjny — Poland) — Maria Kozak v Dyrektor Izby Skarbowej w Lublinie (VAT — Directive 2006/112/EC — Articles 306 to 310 — Special scheme for travel agents — Transport services carried out by travel agents acting in their own name — Concept of single service — Article 98 — Reduced VAT rate)

7

2012/C 399/12

Case C-592/11: Judgment of the Court (Eighth Chamber) of 25 October 2012 (reference for a preliminary ruling from the Korkein hallinto-oikeus — Finland) — Anssi Ketelä (Agriculture — Regulations (EC) No 1698/2005 and 1974/2006 — Setting up aid for young farmers — Conditions for grant — Setting up for the first time on an agricultural holding as head of the holding — Conditions governing applicability where the person concerned sets up using a legal person)

8

2012/C 399/13

Case C-102/12 P: Appeal brought on 27 February 2012 by Stefan Städter against the order of the General Court (First Chamber) delivered on 16 December 2011 in Case T-532/11 Stefan Städter v European Central Bank

8

2012/C 399/14

Case C-409/12: Reference for a preliminary ruling from the Oberster Patent- und Markensenat (Austria) lodged on 6 September 2012 — Backaldrin Österreich The Kornspitz Company GmbH v Pfahnl Backmittel GmbH

9

2012/C 399/15

Case C-426/12: Reference for a preliminary ruling from the Gerechtshof te ’s-Hertogenbosch (Netherlands), lodged on 18 September 2012 — X; Other party: Voorzitter van het managementteam van het onderdeel Belastingdienst/Z van de rijksbelastingdienst

9

2012/C 399/16

Case C-430/12: Reference for a preliminary ruling from the Curtea de Apel Bacău (Romania) lodged on 21 September 2012 — Elena Luca v Casa de Asigurări de Sănătate Bacău

10

2012/C 399/17

Case C-431/12: Reference for a preliminary ruling from the Înalta Curte de Casație și Justiție (Romania), lodged on 24 September 2012 — Agenția Națională de Administrare Fiscală — Direcția Generală de Soluționare a Contestațiilor, Agenția Națională de Administrare Fiscală — Direcția Generală de Administrare a Marilor Contribuabili v SC Rafinăria Steaua Română SA

10

2012/C 399/18

Case C-435/12: Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 26 September 2012 — ACI Adam BV and Others v Stichting de Thuiskopie and Others

10

2012/C 399/19

Case C-437/12: Reference for a preliminary ruling from the Gerechtshof te ’s Hertogenbosch (Netherlands), lodged on 1 October 2012 — X; Other party: Voorzitter van het managementteam van het onderdeel Belastingdienst/Z van de rijksbelastingdienst

11

2012/C 399/20

Case C-451/12: Reference for a preliminary ruling from the Audiencia Provincial de Salamanca (Spain) lodged on 8 October 2012 — Josune Esteban García

12

2012/C 399/21

Case C-454/12: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 10 October 2012 — Pro Med Logistik GmbH v Finanzamt Dresden-Süd

12

2012/C 399/22

Case C-455/12: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 10 October 2012 — Karin Oertel v Finanzamt Würzburg mit Außenstelle Ochsenfurt

13

2012/C 399/23

Case C-463/12: Reference for a preliminary ruling from the Østre Landsret (Denmark) lodged on 16 October 2012 — Copydan Båndkopi v Nokia Danmark A/S

13

2012/C 399/24

Case C-468/12: Reference for a preliminary ruling from the Tribunale di Cosenza (Italy) lodged on 19 October 2012 — CCIAA di Cosenza v CIESSE SRL in liquidation

14

2012/C 399/25

Case C-472/12: Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 22 October 2012 — Panasonic Italia SpA v Agenzia delle Dogane

15

General Court

2012/C 399/26

Case T-574/08: Judgment of the General Court of 7 November 2012 — Syndicat des thoniers méditerranéens and Others v Commission (Non-contractual liability — Fishing — Conservation of fishery resources — Reconstitution of the stocks of bluefin tuna — Emergency measures prohibiting fishing by purse seiners — Unusual loss)

16

2012/C 399/27

Case T-135/09: Judgment of the General Court of 14 November 2012 — Nexans France and Nexans v Commission (Competition — Administrative procedure — Action for annulment — Acts adopted during an inspection — Intermediate measures — Inadmissibility — Decision ordering an inspection — Obligation to state the reasons on which the decision is based — Protection of privacy — Reasonable grounds — Review by the Courts)

16

2012/C 399/28

Case T-140/09: Judgment of the General Court of 14 November 2012 — Prysmian and Prysmian Cavi e Sistemi Energia v Commission (Competition — Administrative procedure — Action for annulment — Acts adopted during an inspection — Intermediate measures — Inadmissibility — Decision ordering an inspection — Obligation to state the reasons on which the decision is based — Protection of privacy — Reasonable grounds — Review by the Court.)

17

2012/C 399/29

Case T-278/09: Judgment of the General Court of 15 November 2012 — Verband Deutscher Prädikatsweingüter v OHIM (GG) (Community trade mark — Application for the Community collective word mark GG — Absolute ground for refusal — Descriptive character — Lack of distinctive character — Article 7(1)(b) and (c) of Regulation (EC) No 207/2009 — Obligation to state reasons — Article 75 of Regulation No 207/2009)

17

2012/C 399/30

Case T-137/10: Judgment of the General Court of 7 November 2012 — CBI v Commission (State aid — Public hospitals — Funding granted by the Belgian authorities to public hospitals belonging to the IRIS network — Decision at the end of the preliminary phase — Decision declaring the aid compatible with the internal market — Service of general economic interest — Definition of the public service mandate — Proportionality of the public service compensation)

18

2012/C 399/31

Case T-194/10: Judgment of the General Court of 8 November 2012 — Hungary v Commission (Action for annulment — Regulation (EC) No 1234/2007 — Regulation (EC) No 607/2009 — E-Bacchus database — Registration of the protected designation of origin Vinohradnícka oblast Tokaj’, in respect of Slovakia — Measure not subject to review — Inadmissibility)

18

2012/C 399/32

Joined Cases T-83/11 and T-84/11: Judgment of the General Court of 13 November 2012 — Antrax It v OHIM — THC (Radiators for heating) (Community design — Invalidity proceedings — Registered Community designs representing thermosiphons for the purposes of radiators for heating — Earlier design — Ground for invalidity — Lack of individual character — Overall impression not different — Article 6 and Article 25(1)(b) of Regulation (EC) No 6/2002 — No scope for innovation — Obligation to state reasons)

19

2012/C 399/33

Case T-114/11: Judgment of the General Court of 7 November 2012 — Giordano v Commission (Non-contractual liability — Fisheries — Conservation of fisheries resources — Recovery of bluefin tuna stocks — Emergency measures prohibiting fishing by purse seiners — Unlawful conduct — Causal link)

19

2012/C 399/34

Case T-268/11 P: Judgment of the General Court of 8 November 2012 — Commission v Strack (Appeal — Civil Service — Officials — Leave — Sick leave — Annulment at first instance of the Commission’s decision refusing to carry over days of annual leave not taken by the person concerned — Article 4 of Annex V to the Staff Regulations — Article 1e(2) of the Staff Regulations — Directive 2003/88/EC — Appeal well founded — Whether the state of the proceedings permits final judgment to be given — Dismissal of the action)

19

2012/C 399/35

Case T-415/11: Judgment of the General Court of 8 November 2012 — Hartmann v OHIM (Nutriskin Protection Complex) (Community trade mark — Application for the Community word mark Nutriskin Protection Complex — Absolute grounds for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009 — Lack of distinctive character — Article 7(1)(b) of Regulation No 207/2009 — OHIM’s decision-making practice — Obligation to state reasons — Article 75 of Regulation No 207/2009)

20

2012/C 399/36

Case T-529/11: Judgment of the General Court of 14 November 2012 — Evonik Industries v OHIM — Impulso Industrial Alternativo (Impulso creador) (Community trade mark — Opposition proceedings — Application for Community word mark Impulso creador — Earlier figurative Community mark IMPULSO — Relative ground for refusal — Likelihood of confusion — Similarity of signs — Article 8(1)(b) of Regulation (EC) No 207/2009)

20

2012/C 399/37

Case T-555/11: Judgment of the General Court of 13 November 2012 — tesa v OHIM — Superquímica (tesa TACK) (Community trade mark — Opposition proceedings — Application for Community figurative mark tesa TACK — Earlier national figurative mark TACK Ceys — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 207/2009)

21

2012/C 399/38

Case T-212/07 REV: Order of the General Court of 24 October 2012 — Harman International Industries, Inc. v OHIM — Becker (Barbara Becker) (Community trade mark — Opposition — Withdrawal of the opposition — No need to adjudicate)

21

2012/C 399/39

Case T-180/11: Order of the General Court of 23 October 2012 — Chivas v OHIM — Glencairn Scotch Whisky (CHIVAS LIVE WITH CHIVALRY) (Community trade mark — Opposition — Opposition withdrawn — No need to adjudicate)

21

2012/C 399/40

Case T-181/11: Order of the General Court of 23 October 2012 — Chivas v OHIM — Glencairn Scotch Whisky (LIVE WITH CHIVALRY) (Community trade mark — Opposition — Opposition withdrawn — No need to adjudicate)

22

2012/C 399/41

Case T-442/11: Order of the General Court of 24 October 2012 — Evropaïki Dynamiki v Commission (Action for annulment — Act not subject to review — Act which is confirmatory, in part, and informative, in part — Inadmissibility — Action for damages — Failure to identify the alleged conduct or to define the alleged damage — Inadmissibility — Action for damages — Absence of proof of damage — Action manifestly lacking any foundation in law)

22

2012/C 399/42

Case T-530/11: Order of the General Court of 23 October 2012 — Chivas v OHIM — Glencairn Scotch Whisky (CHIVALRY) (Community trade mark — Opposition — Opposition withdrawn — No need to adjudicate)

22

2012/C 399/43

Case T-187/12: Order of the General Court of 13 September 2012 — Bäßler v OHIM (MAX) (Application — Formal requirements — Manifest inadmissibility)

23

2012/C 399/44

Case T-219/12 R: Order of the President of the General Court of 24 October 2012 — Saobraćajni institut CIP v Commission (Application for interim measures — Public service contracts — Call for tenders concerning the preparation of technical documentation for a railway modernisation project — Exclusion of the applicant from participating in that tendering procedure — Annulment of the tendering procedure after the action had been brought — No need to adjudicate)

23

2012/C 399/45

Case T-227/12 R: Order of the President of the General Court of 24 October 2012 — Saobraćajni institut CIP v Commission (Application for interim measures — Public service contracts — Call for tenders concerning the preparation of technical documentation for a rail modernisation project — Exclusion of the applicant from participation in the tender procedure — Annulment of the tender procedure after the action had been brought — No need to adjudicate)

23

2012/C 399/46

Case T-444/12: Action brought on 8 October 2012 — Novartis v OHIM — Tenimenti Angelini (LINEX)

24

2012/C 399/47

Case T-450/12: Action brought on 11 October 2012 — Anagnostakis v Commission

24

2012/C 399/48

Case T-455/12: Action brought on 12 October 2012 — Zoo Sport v OHIM — K-2 (zoo sport)

25

| EN | |
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EN

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

| 22.12.2012 | EN | Official Journal of the European Union | C 399/1 |
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22.12.2012

EN

Official Journal of the European Union

C 399/1

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2012/C 399/01

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

OJ C 389, 15.12.2012

Past publications

OJ C 379, 8.12.2012

OJ C 373, 1.12.2012

OJ C 366, 24.11.2012

OJ C 355, 17.11.2012

OJ C 343, 10.11.2012

OJ C 331, 27.10.2012

These texts are available on:

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

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V Announcements

COURT PROCEEDINGS

Court of Justice

| 22.12.2012 | EN | Official Journal of the European Union | C 399/2 |
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22.12.2012

EN

Official Journal of the European Union

C 399/2

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Judgment of the Court (Grand Chamber) of 23 October 2012 (reference for a preliminary ruling from the Tribunal da Relação de Guimarães — Portugal) — Vítor Hugo Marques Almeida v Companhia de Seguros Fidelidade-Mundial SA, Jorge Manuel da Cunha Carvalheira, Paulo Manuel Carvalheira, Fundo de Garantia Automóvel

(Case C-300/10) (1)

(Insurance against civil liability in respect of the use of motor vehicles - Directive 72/166/EEC - Article 3(1) - Directive 84/5/EEC - Article 2(1) - Directive 90/232/EEC - Article 1 - Right to compensation by means of compulsory insurance against civil liability in respect of the use of motor vehicles - Civil liability of the insured person - Victim’s contribution to loss or injury - Limitation of the right to compensation)

2012/C 399/02

Language of the case: Portuguese

Referring court

Tribunal da Relação de Guimarães

Parties to the main proceedings

Applicant: Vítor Hugo Marques Almeida

Defendants: Companhia de Seguros Fidelidade-Mundial SA, Jorge Manuel da Cunha Carvalheira, Paulo Manuel Carvalheira, Fundo de Garantia Automóvel

Re:

Reference for a preliminary ruling — Tribunal da Relação de Guimarães — Interpretation of Articles 3(1) of Council Directive 72/166/EEC of 24 April 1972 on the approximation of the laws of Member States relating to insurance against civil liability in respect of the use of motor vehicles, and to the enforcement of the obligation to insure against such liability (OJ, English Special Edition, 1972 (II), p. 360), Article 2(1) of Second Council Directive 84/5/EEC of 30 December 1983 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles (OJ 1984 L 8, p. 17) and Articles 1 and 1a of Third Council Directive 90/232/EEC of 14 May 1990 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles (OJ 1990 L 129, p. 33) — Collision of two vehicles not attributable to the drivers — Passenger in one of the vehicles having contributed to the occurrence of his own injuries — Liability for risk — National provisions by virtue of which it is possible to refuse or to limit the right to compensation of injured passengers who have contributed to the occurrence of the injury or loss

Operative part of the judgment

In circumstances such as those of the case in the main proceedings, Article 3(1) of Council Directive 72/166/EEC of 24 April 1972 on the approximation of the laws of Member States relating to insurance against civil liability in respect of the use of motor vehicles, and to the enforcement of the obligation to insure against such liability, Article 2(1) of Second Council Directive 84/5/EEC of 30 December 1983 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles, and Article 1 of Third Council Directive 90/232/EEC of 14 May 1990 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles must be interpreted as meaning that they do not preclude national provisions which, where two motor vehicles collide giving rise to personal injury to the passenger in one of the vehicles and the event is not attributable to the fault of the drivers of those vehicles, allows the civil liability of the insured persons to be limited or excluded.

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(1)  OJ C 234, 28.8.2010.

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| 22.12.2012 | EN | Official Journal of the European Union | C 399/3 |
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22.12.2012

EN

Official Journal of the European Union

C 399/3

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Judgment of the Court (First Chamber) of 25 October 2012 — European Commission v Portuguese Republic

(Case C-557/10) (1)

(Failure of a Member State to fulfil obligations - Transport - Development of the Community’s railways - Directive 91/440/EEC - Article 5(3) - Rail transport undertakings - Freedom of management - Decisions on staff, assets and own procurement - Article 7(3) - Grant of financing to the infrastructure manager - Directive 2001/14/EC - Article 6(1) - Balancing the accounts - Appropriate conditions - Incomplete transposition)

2012/C 399/03

Language of the case: Portuguese

Parties

Applicant: European Commission (represented by: H. Støvlbæk and M. França, Agents)

Defendant: Portuguese Republic (represented by: L. Inez Fernandes and A. Pereira de Miranda, Agents)

Re:

Failure of a Member State to fulfil obligations — Failure to adopt, within the period specified, all the measures necessary to comply with Article 5(3) of Council Directive 91/440/EEC of 29 July 1991 on the development of the Community's railways (OJ 1991 L 237, p. 25), as amended by Directive 2001/12/EC (OJ 2001 L 75, p. 1), Article 7(3) of Directive 91/440 and Article 6(1) of Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification (OJ 2001 L 75, p. 29)

Operative part of the judgment

The Court:

| 1. | Declares that, by making individual decisions to acquire or transfer holdings in the capital of companies by the public rail transport undertaking CP Comboios de Portugal EPE subject to government approval and by failing to adopt the national measures necessary to comply with the obligation to lay down appropriate conditions to ensure that the accounts of the infrastructure manager la Rede Ferroviária Nacional — REFER EP are balanced, the Portuguese Republic has failed to fulfil its obligations under Article 5(3) of Council Directive 91/440/EEC of 29 July 1991 on the development of the Community’s railways, as amended by Directive 2001/12/EC of the European Parliament and of the Council of 26 February 2001, and, second, Article 7(3) of Directive 91/440 and Article 6(1) of Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification, as amended by Directive 2007/58/EC of the European Parliament and of the Council of 23 October 2007; |
| --- | --- |

1.

Declares that, by making individual decisions to acquire or transfer holdings in the capital of companies by the public rail transport undertaking CP Comboios de Portugal EPE subject to government approval and by failing to adopt the national measures necessary to comply with the obligation to lay down appropriate conditions to ensure that the accounts of the infrastructure manager la Rede Ferroviária Nacional — REFER EP are balanced, the Portuguese Republic has failed to fulfil its obligations under Article 5(3) of Council Directive 91/440/EEC of 29 July 1991 on the development of the Community’s railways, as amended by Directive 2001/12/EC of the European Parliament and of the Council of 26 February 2001, and, second, Article 7(3) of Directive 91/440 and Article 6(1) of Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification, as amended by Directive 2007/58/EC of the European Parliament and of the Council of 23 October 2007;

| 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 38, 5.2.2011.

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| 22.12.2012 | EN | Official Journal of the European Union | C 399/3 |
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22.12.2012

EN

Official Journal of the European Union

C 399/3

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Judgment of the Court (Grand Chamber) of 23 October 2012 (references for a preliminary ruling from the Amtsgericht Köln — Germany, High Court of Justice (England and Wales), Queen’s Bench Division (Administrative Court) — United Kingdom) — Emeka Nelson, Bill Chinazo Nelson, Brian Cheimezie Nelson v Deutsche Lufthansa AG (C-581/10), TUI Travel plc, British Airways plc, easyJet Airline Company Ltd, International Air Transport Association v Civil Aviation Authority (C-629/10)

(Joined Cases C-581/10 and C-629/10) (1)

(Air transport - Regulation (EC) No 261/2004 - Articles 5 to 7 - Montreal Convention - Articles 19 and 29 - Right to compensation in the event of delay of flights - Compatibility)

2012/C 399/04

Languages of the case: German and English

Referring courts

Amtsgericht Köln, High Court of Justice (England and Wales), Queen’s Bench Division (Administrative Court)

Parties to the main proceedings

Applicants: Emeka Nelson, Bill Chinazo Nelson, Brian Cheimezie Nelson (C-581/10), TUI Travel plc, British Airways plc, easyJet Airline Company Ltd, International Air Transport Association (C-629/10)

Defendants: Deutsche Lufthansa AG (C-581/10), Civil Aviation Authority (C-629/10)

Re:

(Case C-581/10)

Reference for a preliminary ruling — Amtsgericht Köln — Interpretation of Article 7 of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1) — Right to compensation if a flight is delayed — Whether that right is compatible with the prohibition of punitive or exemplary damages set out in Article 29 of the Convention for the Unification of Certain Rules for International Carriage by Air (Montreal Convention), approved by Council Decision of 5 April 2001 (OJ 2001 L 194, p. 38)

(Case C-629/10)

Reference for a preliminary ruling — High Court of Justice (England and Wales), Queen’s Bench Division (Administrative Court) — Interpretation of Articles 5, 6 and 7 of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1) — Right to compensation in the event of delay — Effects of the judgment in Joined Cases C-402/07 and C-432/07 Sturgeon and Others [2009] ECR I-10923

Operative part of the judgment

| 1. | Articles 5 to 7 of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, must be interpreted as meaning that passengers whose flights are delayed are entitled to compensation under that regulation where they suffer, on account of such flights, a loss of time equal to or in excess of three hours, that is, where they reach their final destination three hours or more after the arrival time originally scheduled by the air carrier. Such a delay does not, however, entitle passengers to compensation if the air carrier can prove that the long delay is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken, namely circumstances beyond the actual control of the air carrier. |
| --- | --- |

1.

Articles 5 to 7 of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, must be interpreted as meaning that passengers whose flights are delayed are entitled to compensation under that regulation where they suffer, on account of such flights, a loss of time equal to or in excess of three hours, that is, where they reach their final destination three hours or more after the arrival time originally scheduled by the air carrier. Such a delay does not, however, entitle passengers to compensation if the air carrier can prove that the long delay is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken, namely circumstances beyond the actual control of the air carrier.

| 2. | Consideration of the questions referred for a preliminary ruling has disclosed no factor of such a kind as to affect the validity of Articles 5 to 7 of Regulation No 261/2004. |
| --- | --- |

2.

Consideration of the questions referred for a preliminary ruling has disclosed no factor of such a kind as to affect the validity of Articles 5 to 7 of Regulation No 261/2004.

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(1)  OJ C 72, 5.3.2011.

OJ C 89, 19.3.2011.

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| 22.12.2012 | EN | Official Journal of the European Union | C 399/4 |
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22.12.2012

EN

Official Journal of the European Union

C 399/4

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Judgment of the Court (First Chamber) of 25 October 2012 (reference for a preliminary ruling from the Bundesgerichtshof — Germany) — Folien Fischer AG, Fofitec AG v Ritrama SpA

(Case C-133/11) (1)

(Area of freedom, security and justice - Jurisdiction in civil and commercial matters - Special jurisdiction in tort, delict or quasi-delict - Action for a negative declaration («negative Feststellungsklage») - Whether a person alleged to have committed a harmful act may bring a person who might be adversely affected, before the courts with jurisdiction for the place where the act allegedly occurred or may occur, seeking a declaration that there is no liability in tort or delict)

2012/C 399/05

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicants: Folien Fischer AG, Fofitec AG

Defendant: Ritrama SpA

Re:

Reference for a preliminary ruling — Bundesgerichtshof — Interpretation of point (3) of Article 5 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1) — Special jurisdiction in tort, delict or quasi-delict — Action for a negative declaration (negative Feststellungsklage) — Whether a person who may have committed a harmful act may bring the person potentially adversely affected before the courts with jurisdiction for the place where the act occurred or may occur, seeking a declaration that there is no liability in tort or delict.

Operative part of the judgment

Point (3) of Article 5 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that an action for a negative declaration seeking to establish the absence of liability in tort, delict, or quasi-delict falls within the scope of that provision.

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(1)  OJ C 204, 9.7.2011.

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| 22.12.2012 | EN | Official Journal of the European Union | C 399/4 |
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22.12.2012

EN

Official Journal of the European Union

C 399/4

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Judgment of the Court (Eighth Chamber) of 25 October 2012 — European Commission v French Republic

(Case C-164/11) (1)

(Failure of a Member State to fulfil obligations - Directive 2003/96/EC - Taxation of energy products and electricity - Failure to transpose within the prescribed period)

2012/C 399/06

Language of the case: French

Parties

Applicant: European Commission (represented by: W. Mölls, acting as Agent)

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

Intervener in support of the defendant: Kingdom of Spain (represented by: S. Centeno Huerta, acting as Agent)

Re:

Failure of a Member State to fulfil obligations — Failure to adopt, within the prescribed period, the provisions necessary to adapt its electricity taxation system to the provisions laid down by Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity (OJ 2003 L 283, p. 51) — Application of a single rate on expiry of the transitional period

Operative part of the judgment

The Court:

| 1. | Declares that by failing to adopt the provisions necessary to adapt its electricity taxation system to the provisions laid down by Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity, despite the expiry of the transitional period provided for in the second subparagraph of Article 18(10) of that directive, the French Republic has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that by failing to adopt the provisions necessary to adapt its electricity taxation system to the provisions laid down by Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity, despite the expiry of the transitional period provided for in the second subparagraph of Article 18(10) of that directive, the French Republic has failed to fulfil its obligations under that directive;

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

2.

Orders the French Republic to pay the costs.

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(1)  OJ C 186, 25.6.2011.

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| 22.12.2012 | EN | Official Journal of the European Union | C 399/5 |
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22.12.2012

EN

Official Journal of the European Union

C 399/5

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Judgment of the Court (Eighth Chamber) of 25 October 2012 (reference for a preliminary ruling from the Förvaltningsrätten i Falun — Sweden) — Daimler AG (C-318/11), Widex A/S(C-319/11) v Skatteverket

(Joined Cases C-318/11 and C-319/11) (1)

(Common system of value added tax - Directive 2006/112/EC - Articles 170 and 171 - Eighth VAT Directive - Article 1 - Directive 2008/9/EC - Article 3(a) - Arrangements for the refund of value added tax to taxable persons not established in the territory of the country - Taxable persons established in one Member State and carrying out in another Member State only technical testing or research activities)

2012/C 399/07

Language of the case: Swedish

Referring court

Förvaltningsrätten i Falun

Parties to the main proceedings

Applicants: Daimler AG (C-318/11), Widex A/S(C-319/11)

Defendant: Skatteverket

Re:

(C-318/11)

Reference for a preliminary ruling — Förvaltningsrätten i Falun — Interpretation of Articles 170 and 171 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) and of Articles 1 and 2 of Eighth Council Directive 79/1072/EEC of 6 December 1979 on the harmonisation of the laws of the Member States relating to turnover taxes — Arrangements for the refund of value added tax to taxable persons not established in the territory of the country (OJ 1979 L 331, p. 11) and Articles 2, 3 and 5 of Council Directive 2008/9/EC of 12 February 2008 laying down detailed rules for the refund of value added tax, provided for in Directive 2006/112/EC, to taxable persons not established in the Member State of refund but established in another Member State (OJ 2008 L 44, p. 23) — Car manufacturer established in Member State A, having made certain acquisitions in Member State B, in order to carry out there, through its subsidiary established in that Member State, endurance tests on its vehicles in winter conditions, with a view to their sale in Member State A — Subsidiary wholly owned by the car manufacturer having the principal objective of providing to the parent company sites, tracks on which to carry out the tests and services connected with the tests inside Member State B, necessary to the commercial activities carried out by the parent company in the Member State where it is established — Whether the car manufacturer has a fixed establishment in Member State B

(C-319/11)

Reference for a preliminary ruling — Förvaltningsrätten i Falun — Interpretation of Articles 170 and 171 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) and Articles 1 and 2 of Eighth Council Directive 79/1072/EEC of 6 December 1979 on the harmonisation of the laws of the Member States relating to turnover taxes — Arrangements for the refund of value added tax to taxable persons not established in the territory of the country (OJ 1979 L 331, p. 11) — Company manufacturing hearing aids established in Member State A which has acquired goods and services in Member State B for the needs of its audiology research department situated in that Member State and whose staff is employed by that company — Whether or not the hearing aid manufacturer has a fixed establishment in Member State B

Operative part of the judgment

| 1. | A taxable person for VAT established in one Member State and carrying out in another Member State only technical testing or research work, not including taxable transactions, cannot be regarded as having in that other Member State a ‘fixed establishment from which business transactions are effected’ within the meaning of Article 1 of Eighth Council Directive 79/1072/EEC of 6 December 1979 on the harmonisation of the laws of the Member States relating to turnover taxes — Arrangements for the refund of value added tax to taxable persons not established in the territory of the country, as amended by Council Directive 2006/98/EC of 20 November 2006, and Article 3(a) of Council Directive 2008/9/EC of 12 February 2008 laying down detailed rules for the refund of value added tax, provided for in Directive 2006/112/EC, to taxable persons not established in the Member State of refund but established in another Member State; |
| --- | --- |

1.

A taxable person for VAT established in one Member State and carrying out in another Member State only technical testing or research work, not including taxable transactions, cannot be regarded as having in that other Member State a ‘fixed establishment from which business transactions are effected’ within the meaning of Article 1 of Eighth Council Directive 79/1072/EEC of 6 December 1979 on the harmonisation of the laws of the Member States relating to turnover taxes — Arrangements for the refund of value added tax to taxable persons not established in the territory of the country, as amended by Council Directive 2006/98/EC of 20 November 2006, and Article 3(a) of Council Directive 2008/9/EC of 12 February 2008 laying down detailed rules for the refund of value added tax, provided for in Directive 2006/112/EC, to taxable persons not established in the Member State of refund but established in another Member State;

| 2. | The interpretation given to the concept of ‘fixed establishment from which business transactions are effected’ is not called into question, in a situation such as that in the main proceedings, by the fact that the taxable person has, in the Member State where it has applied for refund, a wholly-owned subsidiary, the purpose of which is almost exclusively to supply the person with various services in respect of its technical testing activity. |
| --- | --- |

2.

The interpretation given to the concept of ‘fixed establishment from which business transactions are effected’ is not called into question, in a situation such as that in the main proceedings, by the fact that the taxable person has, in the Member State where it has applied for refund, a wholly-owned subsidiary, the purpose of which is almost exclusively to supply the person with various services in respect of its technical testing activity.

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(1)  OJ C 269, 10.9.2011.

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| 22.12.2012 | EN | Official Journal of the European Union | C 399/6 |
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22.12.2012

EN

Official Journal of the European Union

C 399/6

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Judgment of the Court (Fourth Chamber) of 25 October 2012 (reference for a preliminary ruling from the Cour de cassation — Belgium) — Déborah Prete v Office national de l’emploi

(Case C-367/11) (1)

(Freedom of movement for persons - Article 39 EC - National of a Member State seeking employment in another Member State - Equal treatment - Tideover allowance for young persons seeking their first job - Grant subject to completion of at least six years’ studies in the host State)

2012/C 399/08

Language of the case: French

Referring court

Cour de cassation

Parties to the main proceedings

Applicant: Déborah Prete

Defendant: Office national de l’emploi

Re:

Reference for a preliminary ruling — Cour de cassation (Belgium) — Interpretation of Articles 12, 17, 18 and 39 EC (now Articles 18, 20, 21 and 45 TFEU) — Tideover allowance for young persons seeking their first job — Grant subject to completion of at least six years’ studies at an educational establishment in the Member State concerned — Refusal to grant it to a national of another Member State who completed her secondary studies in that other State, on the sole ground that the above condition was not fulfilled — Factors to be taken into account to appraise the young person’s link to the national employment market

Operative part of the judgment

Article 39 EC precludes a national provision such as that at issue in the main proceedings, which makes the right to a tideover allowance for the benefit of young people looking for their first job subject to the condition that the person concerned has completed at least six years’ studies in an educational establishment of the host Member State, insofar as that condition prevents other representative factors liable to establish the existence of a real link between the person claiming the allowance and the geographic labour market concerned being taken into account and accordingly goes beyond what is necessary to attain the aim pursued by that provision which is to ensure that such a link exists.

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(1)  OJ C 282, 24.9.2011.

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| 22.12.2012 | EN | Official Journal of the European Union | C 399/6 |
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22.12.2012

EN

Official Journal of the European Union

C 399/6

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Judgment of the Court (First Chamber) of 25 October 2012 — European Commission v Kingdom of Belgium

(Case C-387/11) (1)

(Failure of a Member State to fulfil obligations - Articles 49 TFEU and 63 TFEU - Articles 31 and 40 of the EEA Agreement - Taxation of income from capital and immovable property - Resident and non-resident investment companies - Withholding tax - Setting off of withholding tax - Exemption of income from capital and movable property - Discrimination - Justifications)

2012/C 399/09

Language of the case: French

Parties

Applicant: European Commission (represented by: W. Mölls and C. Soulay, Agents)

Defendant: Kingdom of Belgium (represented by: J.-C. Halleux and M. Jacobs, Agents)

Intervener in support of the defendant: United Kingdom of Great Britain and Northern Ireland (represented by: S. Behzadi-Spencer, Agent)

Re:

Failure of a Member State to fulfil its obligations — Infringement of Articles 49 and 63 TFUE and Articles 31 and 40 of the European Economic Area Agreement — Taxation of income from capital and immovable property — Exemption for investment companies — National legislation providing for a withholding tax on income from capital and immovable property (‘précompte mobilier’) — Discrimination against foreign investment companies which do not have a fixed establishment in the national territory inasmuch as they are not permitted to recover the amount paid by way of withholding tax — Lack of justification

Operative part of the judgment

The Court:

| 1. | Declares that, by maintaining different rules for the taxation of income from capital and movable property according to whether it is earned by resident investment companies or non-resident investment companies with no permanent establishment in Belgium, the Kingdom of Belgium has failed to fulfil its obligations under Articles 49 TFEU and 63 TFEU, and Articles 31 and 40 of the Agreement on the European Economic Area of 2 May 1992; |
| --- | --- |

1.

Declares that, by maintaining different rules for the taxation of income from capital and movable property according to whether it is earned by resident investment companies or non-resident investment companies with no permanent establishment in Belgium, the Kingdom of Belgium has failed to fulfil its obligations under Articles 49 TFEU and 63 TFEU, and Articles 31 and 40 of the Agreement on the European Economic Area of 2 May 1992;

| 2. | Orders the Kingdom of Belgium to pay the costs; |
| --- | --- |

2.

Orders the Kingdom of Belgium to pay the costs;

| 3. | Orders the United Kingdom of Great Britain and Northern Ireland to bear its own costs. |
| --- | --- |

3.

Orders the United Kingdom of Great Britain and Northern Ireland to bear its own costs.

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(1)  OJ C 305, 15.10.2011.

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Judgment of the Court (Third Chamber) of 25 October 2012 (reference for a preliminary ruling from the Bundesgerichtshof — Germany) — Bernhard Rintisch v Klaus Eder

(Case C-553/11) (1)

(Trade marks - Directive 89/104/EEC - Article 10(1) and (2)(a) - Genuine use - Use in a form, itself registered as a trade mark, differing in elements which do not alter the distinctive character of the mark - Temporal effects of a judgment)

2012/C 399/10

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Appellant: Bernhard Rintisch

Respondent: Klaus Eder

Re:

Reference for a preliminary ruling — Bundesgerichtshof — Interpretation of Article 10(1) and (2)(a) 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) — Concept of ‘use of the trade mark’ — National legislation whereby use of the trade mark in a form different from the form in which it was registered may also be regarded as use of a registered trade mark, provided that the differences do not alter the distinctive character of the mark — Registration of a trade mark in order to secure or expand the protection of another registered trade mark — Legitimate expectations — Whether a change deriving from case-law is applicable to situations that had already arisen at the date of delivery of the judgment in question

Operative part of the judgment

| 1. | Article 10(2)(a) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks must be interpreted as meaning that the proprietor of a registered trade mark is not precluded from relying, in order to establish use of the trade mark for the purposes of that provision, on the fact that it is used in a form which differs from the form in which it was registered, without the differences between the two forms altering the distinctive character of that trade mark, even though that different form is itself registered as a trade mark. |
| --- | --- |

1.

Article 10(2)(a) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks must be interpreted as meaning that the proprietor of a registered trade mark is not precluded from relying, in order to establish use of the trade mark for the purposes of that provision, on the fact that it is used in a form which differs from the form in which it was registered, without the differences between the two forms altering the distinctive character of that trade mark, even though that different form is itself registered as a trade mark.

| 2. | Article 10(2)(a) of Directive 89/104 must be interpreted as precluding an interpretation of the national provision intended to transpose it into domestic law whereby Article 10(2)(a) does not apply to a ‘defensive’ trade mark which is registered only in order to secure or expand the protection of another registered trade mark that is registered in the form in which it is used. |
| --- | --- |

2.

Article 10(2)(a) of Directive 89/104 must be interpreted as precluding an interpretation of the national provision intended to transpose it into domestic law whereby Article 10(2)(a) does not apply to a ‘defensive’ trade mark which is registered only in order to secure or expand the protection of another registered trade mark that is registered in the form in which it is used.

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(1)  OJ C 80, 17.3.2012.

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Judgment of the Court (Sixth Chamber) of 25 October 2012 (reference for a preliminary ruling from the Naczelny Sąd Administracyjny — Poland) — Maria Kozak v Dyrektor Izby Skarbowej w Lublinie

(Case C-557/11) (1)

(VAT - Directive 2006/112/EC - Articles 306 to 310 - Special scheme for travel agents - Transport services carried out by travel agents acting in their own name - Concept of single service - Article 98 - Reduced VAT rate)

2012/C 399/11

Language of the case: Polish

Referring court

Naczelny Sąd Administracyjny

Parties to the main proceedings

Applicant: Maria Kozak

Defendant: Dyrektor Izby Skarbowej w Lublinie

Re:

Reference for a preliminary ruling — Naczelny Sąd Administracyjny — Interpretation of Articles 306 to 310, and Article 98 in conjunction with point 5 of Annex III, of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — Scope of the special scheme for the taxation of travel agents — Refusal to apply the reduced rate of VAT, applicable to transport services, to transport services supplied by travel agents acting in their own name within the framework of the supply of an integrated travel service — Classification as a single supply

Operative part of the judgment

Articles 306 to 310 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that where, in the context of a tourist service provided to a tourist in return for an all-inclusive price imposed in conformity with those provisions, a travel agent provides to that tourist an in-house transport service which forms part of that tourist service, that supply of services is subject to the normal value added tax regime, inter alia in relation to the tax rate, and not to the special value added tax scheme applicable to transactions carried out by travel agents. In accordance with Article 98 of that directive, if the Member States have provided for a reduced rate of value added tax for transport services, that reduced rate applies to that supply of services.

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(1)  OJ C 25, 28.1.2012.

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Judgment of the Court (Eighth Chamber) of 25 October 2012 (reference for a preliminary ruling from the Korkein hallinto-oikeus — Finland) — Anssi Ketelä

(Case C-592/11) (1)

(Agriculture - Regulations (EC) No 1698/2005 and 1974/2006 - Setting up aid for young farmers - Conditions for grant - Setting up for the first time on an agricultural holding as head of the holding - Conditions governing applicability where the person concerned sets up using a legal person)

2012/C 399/12

Language of the case: Finnish

Referring court

Korkein hallinto-oikeus

Parties to the main proceedings

Applicant: Anssi Ketelä

Re:

Reference for a preliminary ruling — Korkein hallinto-oikeus — Interpretation of Article 22(1)(a) of Council Regulation (EC) No 1698/2005 of 20 September 2005 on support for rural development by the European Agricultural Fund for Rural Development (EAFRD) (OJ 2005 L 277, p. 1) and Article 13(4) and (6) of Commission Regulation (EC) No 1974/2006 of 15 December 2006 laying down detailed rules for the application of Council Regulation (EC) No 1698/2005 (OJ 2006 L 368, p. 15) — Conditions for the grant of setting-up support for young farmers — First establishment support on an agricultural holding as heading of holding — Setting-up support granted to a natural person on the basis of acquiring a family farm — Interruption of the payment of the support on the ground that the recipient of the support had previously been a minority shareholder and general manager of a joint-stock company rearing pigs in particular.

Operative part of the judgment

Article 22(1)(a) of Council Regulation (EC) No 1698/2005 of 20 September 2005 on support for rural development by the European Agricultural Fund for Rural Development (EAFRD) must be interpreted as meaning that the requirement laid down by that provision that the person concerned must be setting up for the first time on an agricultural holding as ‘head of the holding’ means, in a situation in which the person concerned sets up using a limited company, that he has effective and long-term control and management of the agricultural holding.

While it is open to the Member States to lay down conditions from which it may be concluded that an aid applicant has the capacity of head of the holding, this is subject to the proviso that such conditions do not go beyond the framework that they aim to define and, therefore, in compliance with the objectives pursued by Regulation No 1698/2005, ensure that that applicant has effective and long-term control and management of the agricultural holding. National provisions such as those at issue in the main proceedings satisfy such requirements as they provide that where a young farmer sets up using a legal person, the grant of aid is conditional on the fact that he has the decision-making power in the company, which requires that he holds more than half of the shares in that company and that those shares represent more than half of the votes.

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(1)  OJ C 49, 18.2.2012.

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Appeal brought on 27 February 2012 by Stefan Städter against the order of the General Court (First Chamber) delivered on 16 December 2011 in Case T-532/11 Stefan Städter v European Central Bank

(Case C-102/12 P)

2012/C 399/13

Language of the case: German

Parties

Appellant: Stefan Städter (represented by: M.C. Kerber, Rechtsanwalt)

Other party to the proceedings: European Central Bank

By its order of 15 November 2012, the Court of Justice of the European Union (Sixth Chamber) dismissed the appeal and ordered the appellant to bear his own costs.

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| 22.12.2012 | EN | Official Journal of the European Union | C 399/9 |
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Reference for a preliminary ruling from the Oberster Patent- und Markensenat (Austria) lodged on 6 September 2012 — Backaldrin Österreich The Kornspitz Company GmbH v Pfahnl Backmittel GmbH

(Case C-409/12)

2012/C 399/14

Language of the case: German

Referring court

Oberster Patent- und Markensenat

Parties to the main proceedings

Applicant: Backaldrin Österreich The Kornspitz Company GmbH

Defendant: Pfahnl Backmittel GmbH

Questions referred

| 1. | Has a trade mark become ‘the common name. for a product or service’ within the meaning of Article 12(2)(a) of Directive 2008/95/EC, (1) where






  (a) | although traders know that the mark constitutes an indication of origin they do not generally disclose this to end consumers, and |
| --- | --- | --- |

1.

Has a trade mark become ‘the common name. for a product or service’ within the meaning of Article 12(2)(a) of Directive 2008/95/EC, (1) where

(a)

although traders know that the mark constitutes an indication of origin they do not generally disclose this to end consumers, and

| (b) | (inter alia) on those grounds, end consumers no longer understand the trade mark as an indication of origin but as the common name for goods or services, in respect of which the trade mark is registered? |
| --- | --- |

(b)

(inter alia) on those grounds, end consumers no longer understand the trade mark as an indication of origin but as the common name for goods or services, in respect of which the trade mark is registered?

| 2. | Can the conduct of a proprietor be regarded as ‘inactivity’ for the purposes of Article 12(2)(a) of Directive 2008/95/EC simply if the proprietor of the trade mark remains inactive notwithstanding the fact that traders do not inform customers that the name is a registered trade mark? |
| --- | --- |

2.

Can the conduct of a proprietor be regarded as ‘inactivity’ for the purposes of Article 12(2)(a) of Directive 2008/95/EC simply if the proprietor of the trade mark remains inactive notwithstanding the fact that traders do not inform customers that the name is a registered trade mark?

| 3. | If, as a consequence of acts or inactivity of the proprietor, a trade mark has become a common name for end consumers, but not in the trade, is that trade mark liable to be revoked if, and only if, end consumers have to use this name because there are no equivalent alternatives? |
| --- | --- |

3.

If, as a consequence of acts or inactivity of the proprietor, a trade mark has become a common name for end consumers, but not in the trade, is that trade mark liable to be revoked if, and only if, end consumers have to use this name because there are no equivalent alternatives?

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(1)  Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks (Codified version), (OJ 2008 L 299, p. 25).

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Reference for a preliminary ruling from the Gerechtshof te ’s-Hertogenbosch (Netherlands), lodged on 18 September 2012 — X; Other party: Voorzitter van het managementteam van het onderdeel Belastingdienst/Z van de rijksbelastingdienst

(Case C-426/12)

2012/C 399/15

Language of the case: Dutch

Referring court

Gerechtshof te ’s-Hertogenbosch

Parties to the main proceedings

Appellant: X

Other party: Voorzitter van het managementteam van het onderdeel Belastingdienst/Z van de rijksbelastingdienst

Questions referred

| 1. | Is there dual use within the meaning of Article 2(4)(b) of Directive 2003/96/EC (1) in the case where coal (products within the CN codes 2701, 2702 and 2704) is used as heating fuel in a lime kiln, while the carbon dioxide generated in that lime kiln from the coal (and limestone) is used for the production of lime-kiln gas, which is subsequently used in, and is indispensable for, the purification of the raw juice obtained from sugar beet? |
| --- | --- |

1.

Is there dual use within the meaning of Article 2(4)(b) of Directive 2003/96/EC (1) in the case where coal (products within the CN codes 2701, 2702 and 2704) is used as heating fuel in a lime kiln, while the carbon dioxide generated in that lime kiln from the coal (and limestone) is used for the production of lime-kiln gas, which is subsequently used in, and is indispensable for, the purification of the raw juice obtained from sugar beet?

| 2. | Is there dual use within the meaning of Article 2(4)(b) of Directive 2003/96/EC in the case where coal (products within the CN codes 2701, 2702 and 2704) is used as heating fuel, while 66 % of the carbon dioxide generated during the heating and taken up by the lime-kiln gas is absorbed, during the subsequent purification referred to above, by earth foam, which is sold as lime fertiliser to the agricultural sector? |
| --- | --- |

2.

Is there dual use within the meaning of Article 2(4)(b) of Directive 2003/96/EC in the case where coal (products within the CN codes 2701, 2702 and 2704) is used as heating fuel, while 66 % of the carbon dioxide generated during the heating and taken up by the lime-kiln gas is absorbed, during the subsequent purification referred to above, by earth foam, which is sold as lime fertiliser to the agricultural sector?

| 3. | In the event that there is dual use within the meaning of Article 2(4)(b) of Directive 2003/96/EC: having regard to the (literal) text of the opening words of Article 2(4) of Directive 2003/96/EC, is that directive not applicable, with the result that the appellant cannot rely (for the interpretation in national legislation of the concept of dual use as referred to in Article 20(e) Wbm (2)) on the direct effect of that directive? |
| --- | --- |

3.

In the event that there is dual use within the meaning of Article 2(4)(b) of Directive 2003/96/EC: having regard to the (literal) text of the opening words of Article 2(4) of Directive 2003/96/EC, is that directive not applicable, with the result that the appellant cannot rely (for the interpretation in national legislation of the concept of dual use as referred to in Article 20(e) Wbm (2)) on the direct effect of that directive?

| 4. | In the event that there is dual use within the meaning of Article 2(4)(b) of Directive 2003/96/EC and the latter is (consequently) inapplicable: in the case of the levying of a tax such as the present fuel tax, does European Union law preclude a more restrictive interpretation of the concept of dual use under domestic law as compared with an interpretation in accordance with Directive 2003/96/EC? |
| --- | --- |

4.

In the event that there is dual use within the meaning of Article 2(4)(b) of Directive 2003/96/EC and the latter is (consequently) inapplicable: in the case of the levying of a tax such as the present fuel tax, does European Union law preclude a more restrictive interpretation of the concept of dual use under domestic law as compared with an interpretation in accordance with Directive 2003/96/EC?

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(1)  Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity (OJ 2003 L 283, p. 51).

(2)  Wet belastingen op milieugrondslag (Netherlands Law introducing taxes for the protection of the environment).

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Reference for a preliminary ruling from the Curtea de Apel Bacău (Romania) lodged on 21 September 2012 — Elena Luca v Casa de Asigurări de Sănătate Bacău

(Case C-430/12)

2012/C 399/16

Language of the case: Romanian

Referring court

Curtea de Apel Bacău

Parties to the main proceedings

Applicant: Elena Luca

Defendant: Casa de Asigurări de Sănătate Bacău

Questions referred

| 1. | Do Article 56 [TFEU] (formerly Article 49 of the EC Treaty) and Article 22 of Regulation No 1408/71 (1) preclude national legislation, such as Articles 40(1)(b), 45 and 46 of Decree 592/2008, under which an employed or self-employed person, or a member of that person’s family, is not entitled to full reimbursement of expenses incurred in respect of medical treatment abroad unless he has obtained prior authorisation for those purposes? |
| --- | --- |

1.

Do Article 56 [TFEU] (formerly Article 49 of the EC Treaty) and Article 22 of Regulation No 1408/71 (1) preclude national legislation, such as Articles 40(1)(b), 45 and 46 of Decree 592/2008, under which an employed or self-employed person, or a member of that person’s family, is not entitled to full reimbursement of expenses incurred in respect of medical treatment abroad unless he has obtained prior authorisation for those purposes?

| 2. | Does partial payment for medical treatment carried out within the Community, calculated in accordance with the rates of the insuring Member State — in the present case, in accordance with Article 7a of Decree 122/2007 (now repealed by Decree 729/2009) — constitute a restriction for the purposes of Article 56 [TFEU] (formerly Article 49 of the EC Treaty)? |
| --- | --- |

2.

Does partial payment for medical treatment carried out within the Community, calculated in accordance with the rates of the insuring Member State — in the present case, in accordance with Article 7a of Decree 122/2007 (now repealed by Decree 729/2009) — constitute a restriction for the purposes of Article 56 [TFEU] (formerly Article 49 of the EC Treaty)?

| 3. | If Question 2 is answered in the affirmative, what is the threshold for the reimbursement of expenses incurred by insured persons, in the event of a discrepancy in amount between the payments provided for under the legislation of the Member State of residence and the cost of the services provided for under the legislation of the Member State in which the treatment was carried out? |
| --- | --- |

3.

If Question 2 is answered in the affirmative, what is the threshold for the reimbursement of expenses incurred by insured persons, in the event of a discrepancy in amount between the payments provided for under the legislation of the Member State of residence and the cost of the services provided for under the legislation of the Member State in which the treatment was carried out?

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(1)  Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (English Special Edition, Series I, 1971(II), pp. 416 to 463).

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Reference for a preliminary ruling from the Înalta Curte de Casație și Justiție (Romania), lodged on 24 September 2012 — Agenția Națională de Administrare Fiscală — Direcția Generală de Soluționare a Contestațiilor, Agenția Națională de Administrare Fiscală — Direcția Generală de Administrare a Marilor Contribuabili v SC Rafinăria Steaua Română SA

(Case C-431/12)

2012/C 399/17

Language of the case: Romanian

Referring court

Înalta Curte de Casație și Justiție

Parties to the main proceedings

Appellants in cassation: Agenția Națională de Administrare Fiscală — Direcția Generală de Soluționare a Contestațiilor, Agenția Națională de Administrare Fiscală — Direcția Generală de Administrare a Marilor Contribuabili

Respondent in cassation: SC Rafinăria Steaua Română SA

Question referred

Is it contrary to Article 183 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (1) if Article 124 of the Romanian Tax Procedure Code is interpreted as meaning that the State is not liable for payment of interest on amounts claimed under VAT declarations in respect of the period between the date of set-off of those amounts and the date on which those set-off decisions are annulled by a national court?

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

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Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 26 September 2012 — ACI Adam BV and Others v Stichting de Thuiskopie and Others

(Case C-435/12)

2012/C 399/18

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicants: ACI Adam BV, Alpha International BV, AVC Nederland BV, BAS Computers & Componenten BV, Despec BV, Dexxon Data Media and Storage BV, Fuji Magnetics Nederland, Imation Europe BV, Maxell Benelux BV, Philips Consumer Electronics BV, Sony Benelux BV, Verbatim GmbH

Defendants: Stichting de Thuiskopie, Stichting Onderhandelingen Thuiskopie Vergoeding

Questions referred

| 1. | Should Article 5(2)(b) — whether or not in conjunction with Article 5(5) — of the Copyright Directive (1) be interpreted as meaning that the limitation on copyright referred to therein applies to reproductions which satisfy the requirements set out in that provision, regardless of whether the copies of the works from which the reproductions were taken became available to the natural person concerned lawfully — that is to say: without infringing the copyright of the rightholders — or does that limitation apply only to reproductions taken from works which have become available to the person concerned without infringement of copyright? |
| --- | --- |

1.

Should Article 5(2)(b) — whether or not in conjunction with Article 5(5) — of the Copyright Directive (1) be interpreted as meaning that the limitation on copyright referred to therein applies to reproductions which satisfy the requirements set out in that provision, regardless of whether the copies of the works from which the reproductions were taken became available to the natural person concerned lawfully — that is to say: without infringing the copyright of the rightholders — or does that limitation apply only to reproductions taken from works which have become available to the person concerned without infringement of copyright?

| 2. | (a) | If the answer to question 1 is that expressed at the end of the question, can the application of the ‘three-stage test’ referred to in Article 5(5) of the Copyright Directive form the basis for the expansion of the scope of the exception of Article 5(2), or can its application only lead to the reduction of the scope of the limitation? |
| --- | --- | --- |

2.

(a)

If the answer to question 1 is that expressed at the end of the question, can the application of the ‘three-stage test’ referred to in Article 5(5) of the Copyright Directive form the basis for the expansion of the scope of the exception of Article 5(2), or can its application only lead to the reduction of the scope of the limitation?

| (b) | If the answer to question 1 is that expressed at the end of the question, is a rule of national law which provides that in the case of reproductions made by a natural person for private use and without any direct or indirect commercial objective, fair compensation is payable, regardless of whether the manufacture of those reproductions is authorised under Article 5(2) of the Copyright Directive — and without there being any infringement by that rule of the prohibition right of the rightholder and his entitlement to damages — contrary to Article 5 of the Copyright Directive, or to any other rule of European law?
  In the light of the ‘three-stage test’ of Article 5(5) of the Copyright Directive, is it important when answering that question that technical resources to combat the making of unauthorised private copies are not (yet) available? |
| --- | --- |

(b)

If the answer to question 1 is that expressed at the end of the question, is a rule of national law which provides that in the case of reproductions made by a natural person for private use and without any direct or indirect commercial objective, fair compensation is payable, regardless of whether the manufacture of those reproductions is authorised under Article 5(2) of the Copyright Directive — and without there being any infringement by that rule of the prohibition right of the rightholder and his entitlement to damages — contrary to Article 5 of the Copyright Directive, or to any other rule of European law?

In the light of the ‘three-stage test’ of Article 5(5) of the Copyright Directive, is it important when answering that question that technical resources to combat the making of unauthorised private copies are not (yet) available?

| 3. | Is the Enforcement Directive (2) applicable to proceedings such as these where — after a Member State, on the basis of Article 5(2)b of the Copyright Directive, has imposed the obligation to pay the fair compensation referred to in that provision on producers and importers of media which are suitable and intended for the reproduction of works, and has determined that that fair compensation should be paid to an organisation designated by that Member State which has been charged with collecting and distributing the fair compensation — those liable to pay the compensation bring a claim for a declaration by the courts in respect of certain contested circumstances which have a bearing on the determination of the fair compensation, against the organisation concerned, which defends the action? |
| --- | --- |

3.

Is the Enforcement Directive (2) applicable to proceedings such as these where — after a Member State, on the basis of Article 5(2)b of the Copyright Directive, has imposed the obligation to pay the fair compensation referred to in that provision on producers and importers of media which are suitable and intended for the reproduction of works, and has determined that that fair compensation should be paid to an organisation designated by that Member State which has been charged with collecting and distributing the fair compensation — those liable to pay the compensation bring a claim for a declaration by the courts in respect of certain contested circumstances which have a bearing on the determination of the fair compensation, against the organisation concerned, which defends the action?

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(1)  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).

(2)  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).

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Reference for a preliminary ruling from the Gerechtshof te ’s Hertogenbosch (Netherlands), lodged on 1 October 2012 — X; Other party: Voorzitter van het managementteam van het onderdeel Belastingdienst/Z van de rijksbelastingdienst

(Case C-437/12)

2012/C 399/19

Language of the case: Dutch

Referring court

Gerechtshof te ’s Hertogenbosch

Parties to the main proceedings

Appellant: X

Other party: Voorzitter van het managementteam van het onderdeel Belastingdienst/Z van de rijksbelastingdienst

Questions referred

| 1. | In the appraisal of the question — to be answered in the context of Article 110 TFEU — as to whether the amount of the levy in 2010 in respect of the registration of the passenger car [concerned] is (not) higher than the residual amount of the levy which is incorporated in the value of similar used passenger cars already registered within national territory, should the following be considered to be similar for purposes of determining that residual amount:






  — | a comparable passenger car which, in the year in which the passenger car [concerned] was first put into service (2006), was registered as an unused passenger car, or |
| --- | --- | --- |

1.

In the appraisal of the question — to be answered in the context of Article 110 TFEU — as to whether the amount of the levy in 2010 in respect of the registration of the passenger car [concerned] is (not) higher than the residual amount of the levy which is incorporated in the value of similar used passenger cars already registered within national territory, should the following be considered to be similar for purposes of determining that residual amount:

—

a comparable passenger car which, in the year in which the passenger car [concerned] was first put into service (2006), was registered as an unused passenger car, or

| — | also the (other) passenger cars which were available on the market for second-hand passenger cars in 2010, and which, like the passenger car [concerned], were first put into service on 30 May 2006 and are otherwise comparable, but which were (imported and) registered as used passenger cars after 30 May 2006 (after 30 May 2006 and up to 2009), and/or |
| --- | --- |

—

also the (other) passenger cars which were available on the market for second-hand passenger cars in 2010, and which, like the passenger car [concerned], were first put into service on 30 May 2006 and are otherwise comparable, but which were (imported and) registered as used passenger cars after 30 May 2006 (after 30 May 2006 and up to 2009), and/or

| — | also the (other) passenger cars which were available on the market for second-hand passenger cars in 2010, and which, unlike the passenger car [concerned], were first put into service after 30 May 2006, but are otherwise comparable, and which were (imported and) registered as unused or used passenger cars after 30 May 2006 (after 30 May 2006 and up to 2009)? |
| --- | --- |

—

also the (other) passenger cars which were available on the market for second-hand passenger cars in 2010, and which, unlike the passenger car [concerned], were first put into service after 30 May 2006, but are otherwise comparable, and which were (imported and) registered as unused or used passenger cars after 30 May 2006 (after 30 May 2006 and up to 2009)?

| 2. | In the appraisal of the question as to whether Article 110 TFEU precludes the levying of BPM (1) in respect of the registration of the passenger car in 2010 in so far as that levy is based on the CO2 emission (in accordance with the tables in Article 9(1) of the Wet BPM (Netherlands Law on passenger-car and motorcycle tax), should that part of the levy be deemed to be a new tax, to be distinguished from the BPM up to 1 February 2008, which was based solely on the list price, with the result that, to the extent to which the levy is based on the CO2 emission, a comparison with (similar) second hand passenger cars which were registered before 1 January 2010 is not relevant? |
| --- | --- |

2.

In the appraisal of the question as to whether Article 110 TFEU precludes the levying of BPM (1) in respect of the registration of the passenger car in 2010 in so far as that levy is based on the CO2 emission (in accordance with the tables in Article 9(1) of the Wet BPM (Netherlands Law on passenger-car and motorcycle tax), should that part of the levy be deemed to be a new tax, to be distinguished from the BPM up to 1 February 2008, which was based solely on the list price, with the result that, to the extent to which the levy is based on the CO2 emission, a comparison with (similar) second hand passenger cars which were registered before 1 January 2010 is not relevant?

| 3. | If there is no question of a new tax as contemplated in Question 2: is the levying of BPM in respect of the registration of the passenger car in 2010, in so far as that levy is based on the CO2 emission (in accordance with the tables in Article 9(1) of the Wet BPM), precluded by the fact that, pursuant to Article 110 TFEU, the levy based on the CO2 emission (under Article 9ba of the Wet BPM applicable at the time) was not imposed in respect of passenger cars comparable to the passenger car [concerned] which were first put into service before 1 February 2008 and which, in the period from 1 February 2008 to 31 December 2009, were imported and registered as used passenger cars, whereas that levy based on the CO2 emission was imposed in respect of the registration, in the aforementioned period, of passenger cars which were first put into service after 1 February 2008 but were otherwise comparable to the passenger car [concerned]? |
| --- | --- |

3.

If there is no question of a new tax as contemplated in Question 2: is the levying of BPM in respect of the registration of the passenger car in 2010, in so far as that levy is based on the CO2 emission (in accordance with the tables in Article 9(1) of the Wet BPM), precluded by the fact that, pursuant to Article 110 TFEU, the levy based on the CO2 emission (under Article 9ba of the Wet BPM applicable at the time) was not imposed in respect of passenger cars comparable to the passenger car [concerned] which were first put into service before 1 February 2008 and which, in the period from 1 February 2008 to 31 December 2009, were imported and registered as used passenger cars, whereas that levy based on the CO2 emission was imposed in respect of the registration, in the aforementioned period, of passenger cars which were first put into service after 1 February 2008 but were otherwise comparable to the passenger car [concerned]?

---

(1)  Belasting personenauto’s en motorrijwielen (Netherlands passenger-car and motorcycle tax).

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| 22.12.2012 | EN | Official Journal of the European Union | C 399/12 |
| --- | --- | --- | --- |

22.12.2012

EN

Official Journal of the European Union

C 399/12

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Reference for a preliminary ruling from the Audiencia Provincial de Salamanca (Spain) lodged on 8 October 2012 — Josune Esteban García

(Case C-451/12)

2012/C 399/20

Language of the case: Spanish

Referring court

Audiencia Provincial de Salamanca

Parties to the main proceedings

Appellant: Josune Esteban García

Question referred

Do Articles 4, 12, 114 and 169 of the Treaty and Article 38 of the Charter of Fundamental Rights of the European Union, in conjunction with Directive 93/13 (1) and the case-law of the Court of Justice relating to the high level of protection of the interests of consumers, as well as to the practical effect of directives and the principles of equivalence and effectiveness, allow the Audiencia Provincial, as a national court of appeal, to hear and determine, in spite of the absence of any relevant domestic legal rule, the appeal brought against the decision of the court of first instance assigning to a court of the place where the defendant has its address territorial jurisdiction to hear and determine the action for damages based on the defendant’s alleged failure to fulfil its contractual obligations under a contract concluded over the internet?

---

(1)  Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29)

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| 22.12.2012 | EN | Official Journal of the European Union | C 399/12 |
| --- | --- | --- | --- |

22.12.2012

EN

Official Journal of the European Union

C 399/12

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Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 10 October 2012 — Pro Med Logistik GmbH v Finanzamt Dresden-Süd

(Case C-454/12)

2012/C 399/21

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: Pro Med Logistik GmbH

Defendant: Finanzamt Dresden-Süd

Questions referred

| 1. | Having regard to the principle of neutrality, do the third subparagraph of Article 12(3)(a) in conjunction with Annex H, Category 5, of Sixth Council Directive 77/388/EEC of 17 May 1977 (1) on the harmonisation of the laws of the Member States relating to turnover taxes and Article 98(1) in conjunction with Annex III, Category 5, of Council Directive 2006/112/EC of 28 November 2006 (2) on the common system of value added tax (OJ L 347, p. 1) preclude national rules which provide for a reduced rate of turnover tax for local passenger transport by taxi, whereas local passenger transport by minicab is subject to the standard rate of tax? |
| --- | --- |

1.

Having regard to the principle of neutrality, do the third subparagraph of Article 12(3)(a) in conjunction with Annex H, Category 5, of Sixth Council Directive 77/388/EEC of 17 May 1977 (1) on the harmonisation of the laws of the Member States relating to turnover taxes and Article 98(1) in conjunction with Annex III, Category 5, of Council Directive 2006/112/EC of 28 November 2006 (2) on the common system of value added tax (OJ L 347, p. 1) preclude national rules which provide for a reduced rate of turnover tax for local passenger transport by taxi, whereas local passenger transport by minicab is subject to the standard rate of tax?

| 2. | For the answer to the first question, is it relevant whether operators of hackney cabs and taxis and operators of minicabs perform journeys on the basis of special agreements with major customers under almost identical conditions? |
| --- | --- |

2.

For the answer to the first question, is it relevant whether operators of hackney cabs and taxis and operators of minicabs perform journeys on the basis of special agreements with major customers under almost identical conditions?

---

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

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

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| 22.12.2012 | EN | Official Journal of the European Union | C 399/13 |
| --- | --- | --- | --- |

22.12.2012

EN

Official Journal of the European Union

C 399/13

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Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 10 October 2012 — Karin Oertel v Finanzamt Würzburg mit Außenstelle Ochsenfurt

(Case C-455/12)

2012/C 399/22

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: Karin Oertel

Defendant: Finanzamt Würzburg mit Außenstelle Ochsenfurt

Question referred

Having regard to the principle of neutrality, does the third subparagraph of Article 12(3)(a) in conjunction with Annex H, Category 5, of Sixth Council Directive 77/388/EEC of 17 May 1977 (1) on the harmonisation of the laws of the Member States relating to turnover taxes preclude national rules which provide for a reduced rate of turnover tax for local passenger transport by taxi, whereas local passenger transport by minicab is subject to the standard rate of tax?

---

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

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| 22.12.2012 | EN | Official Journal of the European Union | C 399/13 |
| --- | --- | --- | --- |

22.12.2012

EN

Official Journal of the European Union

C 399/13

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Reference for a preliminary ruling from the Østre Landsret (Denmark) lodged on 16 October 2012 — Copydan Båndkopi v Nokia Danmark A/S

(Case C-463/12)

2012/C 399/23

Language of the case: Danish

Referring court

Østre Landsret

Parties to the main proceedings

Applicant: Copydan Båndkopi

Defendant: Nokia Danmark A/S

Questions referred

| 1. | Is it compatible with Directive 2001/29/EC (1) for Member States to have legislation which guarantees compensation for the rightholders for reproductions made using the following sources:






  1. | files where the use in question is approved by the rightholders and paid for by the customer (licensed content from online shops, for example); |
| --- | --- | --- |

1.

Is it compatible with Directive 2001/29/EC (1) for Member States to have legislation which guarantees compensation for the rightholders for reproductions made using the following sources:

1.

files where the use in question is approved by the rightholders and paid for by the customer (licensed content from online shops, for example);

| 2. | files where the use in question is approved by the rightholders and not paid for by the customer (licensed content, for example, in connection with a marketing action); |
| --- | --- |

2.

files where the use in question is approved by the rightholders and not paid for by the customer (licensed content, for example, in connection with a marketing action);

| 3. | the user’s own DVD, CD, MP3 player, computer, etc., where effective technological measures are not applied; |
| --- | --- |

3.

the user’s own DVD, CD, MP3 player, computer, etc., where effective technological measures are not applied;

| 4. | the user’s own DVD, CD, MP3 player, computer, etc., where effective technological measures are applied; |
| --- | --- |

4.

the user’s own DVD, CD, MP3 player, computer, etc., where effective technological measures are applied;

| 5. | a third party’s DVD, CD, MP3 player, computer, etc.; |
| --- | --- |

5.

a third party’s DVD, CD, MP3 player, computer, etc.;

| 6. | unlawfully copied works from the Internet or other sources; |
| --- | --- |

6.

unlawfully copied works from the Internet or other sources;

| 7. | files copied lawfully in some other way from, for example, the Internet (from lawful sources where no licence has been granted)? |
| --- | --- |

7.

files copied lawfully in some other way from, for example, the Internet (from lawful sources where no licence has been granted)?

| 2. | How must effective technological measures be taken into account, (ref. Article 6 of the Directive) in the Member States’ legislation on compensation for rightholders (ref. Article 5(2)(b) of the Directive)? |
| --- | --- |

2.

How must effective technological measures be taken into account, (ref. Article 6 of the Directive) in the Member States’ legislation on compensation for rightholders (ref. Article 5(2)(b) of the Directive)?

| 3. | In the calculation of compensation for private copying (ref. Article 5(2)(b) of the Directive), what constitutes ‘situations where the prejudice to the rightholder would be minimal’, as referred to in recital 35 in the preamble to the Directive, with the result that it will not be compatible with the Directive for the Member States to have legislation which provides for compensation for rightholders for such copying for private use (ref. in this connection the survey referred to in part 2 above)? |
| --- | --- |

3.

In the calculation of compensation for private copying (ref. Article 5(2)(b) of the Directive), what constitutes ‘situations where the prejudice to the rightholder would be minimal’, as referred to in recital 35 in the preamble to the Directive, with the result that it will not be compatible with the Directive for the Member States to have legislation which provides for compensation for rightholders for such copying for private use (ref. in this connection the survey referred to in part 2 above)?

| 4. | (a) | If it is assumed that the primary or most important function of memory cards in mobile phones is not private copying, is it compatible with the Directive for the Member States to have legislation which guarantees compensation for rightholders for copying on mobile phone memory cards? |
| --- | --- | --- |

4.

(a)

If it is assumed that the primary or most important function of memory cards in mobile phones is not private copying, is it compatible with the Directive for the Member States to have legislation which guarantees compensation for rightholders for copying on mobile phone memory cards?

| (b) | If it is assumed that private copying is one of the several primary or essential functions of memory cards in mobile phones, is it compatible with the Directive for the Member States to have legislation which guarantees compensation for rightholders for copying on mobile phone memory cards? |
| --- | --- |

(b)

If it is assumed that private copying is one of the several primary or essential functions of memory cards in mobile phones, is it compatible with the Directive for the Member States to have legislation which guarantees compensation for rightholders for copying on mobile phone memory cards?

| 5. | Is it compatible with the concept of ‘fair balance’ in recital 31 in the preamble to the Directive and with the uniform interpretation of the concept of ‘fair compensation’ (ref. Article 5(2)(b) of the Directive), which must be based on ‘prejudice’, for the Member States to have legislation under which remuneration is collected for memory cards, whereas no remuneration is collected for internal memory such as MP3 players or iPods, which are designed and primarily used for private copying? |
| --- | --- |

5.

Is it compatible with the concept of ‘fair balance’ in recital 31 in the preamble to the Directive and with the uniform interpretation of the concept of ‘fair compensation’ (ref. Article 5(2)(b) of the Directive), which must be based on ‘prejudice’, for the Member States to have legislation under which remuneration is collected for memory cards, whereas no remuneration is collected for internal memory such as MP3 players or iPods, which are designed and primarily used for private copying?

| 6. | (a) | Does the Directive preclude the Member States from having legislation which provides for the collection of remuneration for private copying from a producer and/or importer who sells memory cards to business concerns which sell the memory cards on to both private and business customers, without the producer’s and/or importer’s having knowledge of whether the memory cards have been sold to private or business customers? |
| --- | --- | --- |

6.

(a)

Does the Directive preclude the Member States from having legislation which provides for the collection of remuneration for private copying from a producer and/or importer who sells memory cards to business concerns which sell the memory cards on to both private and business customers, without the producer’s and/or importer’s having knowledge of whether the memory cards have been sold to private or business customers?

| (b) | Is the answer to question 6(a) affected if provisions are laid down in a Member State’s legislation which ensure that producers, importers and/or distributors do not have to pay remuneration for memory cards used for professional purposes, that producers, importers and/or distributors, where the remuneration has nevertheless been paid, can have the remuneration for memory cards refunded in so far as they are used for professional purposes, and that producers, importers and/or distributors can sell memory cards to other undertakings registered with the organisation which administers the remuneration scheme, without payment of remuneration? |
| --- | --- |

(b)

Is the answer to question 6(a) affected if provisions are laid down in a Member State’s legislation which ensure that producers, importers and/or distributors do not have to pay remuneration for memory cards used for professional purposes, that producers, importers and/or distributors, where the remuneration has nevertheless been paid, can have the remuneration for memory cards refunded in so far as they are used for professional purposes, and that producers, importers and/or distributors can sell memory cards to other undertakings registered with the organisation which administers the remuneration scheme, without payment of remuneration?

| (c) | Is the answer to questions 6(a) and 6(b) affected






  1. | if provisions are laid down in a Member State’s legislation ensuring that producers, importers and/or distributors do not have to pay remuneration for memory cards used for professional purposes, but the concept of ‘professional purposes’ is interpreted as conferring a right of deduction applying only to undertakings approved by Copydan, whereas remuneration must be paid for memory cards used professionally by other business customers which are not approved by Copydan; |
| --- | --- | --- |

(c)

Is the answer to questions 6(a) and 6(b) affected

1.

if provisions are laid down in a Member State’s legislation ensuring that producers, importers and/or distributors do not have to pay remuneration for memory cards used for professional purposes, but the concept of ‘professional purposes’ is interpreted as conferring a right of deduction applying only to undertakings approved by Copydan, whereas remuneration must be paid for memory cards used professionally by other business customers which are not approved by Copydan;

| 2. | if provisions are laid down in a Member State’s legislation ensuring that producers, importers and/or distributors, where the remuneration has in fact been paid (theoretically), can have remuneration for memory cards refunded where they are used for professional purposes, but (a) it is in practice only the purchaser of the memory card who can have the remuneration refunded, and (b) the purchaser of memory cards must submit an application for refund of remuneration to Copydan; |
| --- | --- |

2.

if provisions are laid down in a Member State’s legislation ensuring that producers, importers and/or distributors, where the remuneration has in fact been paid (theoretically), can have remuneration for memory cards refunded where they are used for professional purposes, but (a) it is in practice only the purchaser of the memory card who can have the remuneration refunded, and (b) the purchaser of memory cards must submit an application for refund of remuneration to Copydan;

| 3. | if provisions are laid down in a Member State’s legislation ensuring that producers, importers and/or distributors may sell memory cards to other undertakings registered with the organisation which administers the remuneration scheme, without payment of remuneration, but (a) Copydan is the organisation which administers the remuneration scheme and (b) the registered undertakings have no knowledge of whether the memory cards have been sold to private or business customers? |
| --- | --- |

3.

if provisions are laid down in a Member State’s legislation ensuring that producers, importers and/or distributors may sell memory cards to other undertakings registered with the organisation which administers the remuneration scheme, without payment of remuneration, but (a) Copydan is the organisation which administers the remuneration scheme and (b) the registered undertakings have no knowledge of whether the memory cards have been sold to private or business customers?

---

(1)  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).

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| 22.12.2012 | EN | Official Journal of the European Union | C 399/14 |
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Official Journal of the European Union

C 399/14

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Reference for a preliminary ruling from the Tribunale di Cosenza (Italy) lodged on 19 October 2012 — CCIAA di Cosenza v CIESSE SRL in liquidation

(Case C-468/12)

2012/C 399/24

Language of the case: Italian

Referring court

Tribunale di Cosenza

Parties to the main proceedings

Applicant: Camera di Commercio, Industria, Artigianato e Agricoltura (CCIAA) di Cosenza

Defendant: CIESSE SRL in liquidation

Question referred

Do the Italian rules governing the methods for calculating the annual duty to be paid by all persons engaged in economic activity conflict with Article 5 of Directive 2008/7/EC (1) of 12 February 2008 in so far as they place a significantly greater burden on the operation of a business activity by a capital company (‘capital company’ being understood in the exhaustive sense provided for in [Directive 2008/7/EC]) than by a sole trader, inasmuch as under those rules (i) sole traders pay fixed annual duty of EUR 200 if registered in the ordinary section or EUR 88 if noted in the special section, (ii) società semplici agricole (agricultural partnerships) pay fixed annual duty of EUR 100 (in addition to EUR 20 for each local unit), (iii) local units and/or branches of undertakings having their seat abroad pay fixed duty of EUR 110, (iv) non-agricultural partnerships pay fixed duty of EUR 200, and (v) law firms pay fixed duty of EUR 200, whereas all other collective economic undertakings (companies, consortia, and so on) are required to pay ‘duty as a proportion of the preceding year’s turnover’ (thereby paying as much as EUR 40 000)?

---

(1)  Council Directive 2008/7/EC of 12 February 2008 concerning indirect taxes on the raising of capital (OJ 2008 L 46, p. 11).

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| 22.12.2012 | EN | Official Journal of the European Union | C 399/15 |
| --- | --- | --- | --- |

22.12.2012

EN

Official Journal of the European Union

C 399/15

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Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 22 October 2012 — Panasonic Italia SpA v Agenzia delle Dogane

(Case C-472/12)

2012/C 399/25

Language of the case: Italian

Referring court

Corte Suprema di Cassazione

Parties to the main proceedings

Applicant: Panasonic Italia SpA

Defendant: Agenzia delle Dogane

Questions referred

| 1. | Primarily — was it necessary, before the entry into force of Regulation (EC) No 754/2004, (1) to classify under heading 8471, or under heading 8528, a plasma colour monitor with a diagonal measurement of the screen of 106,6 centimetres, equipped with two loudspeakers and a remote control, and with an input device designed for the insertion of a video card (very inexpensive and easy to find and insert) which was not imported with the screen, but which, once inserted, meant that the monitor was capable of receiving composite AV video signals and could be connected, not only to automatic data-processing machines, but also to recording and reproducing apparatus, DVD players, video cameras and satellite receivers? |
| --- | --- |

1.

Primarily — was it necessary, before the entry into force of Regulation (EC) No 754/2004, (1) to classify under heading 8471, or under heading 8528, a plasma colour monitor with a diagonal measurement of the screen of 106,6 centimetres, equipped with two loudspeakers and a remote control, and with an input device designed for the insertion of a video card (very inexpensive and easy to find and insert) which was not imported with the screen, but which, once inserted, meant that the monitor was capable of receiving composite AV video signals and could be connected, not only to automatic data-processing machines, but also to recording and reproducing apparatus, DVD players, video cameras and satellite receivers?

| 2. | If the answer to Question 1 is in the negative, the Court of Justice is asked to assess and determine whether Regulation No 754/2004 actually requires a monitor of that type to be classified under heading 8528; |
| --- | --- |

2.

If the answer to Question 1 is in the negative, the Court of Justice is asked to assess and determine whether Regulation No 754/2004 actually requires a monitor of that type to be classified under heading 8528;

| 3. | If the answer to Question 2 is affirmative, the Court is asked whether or not the provisions laid down in that regard by Regulation No 754/2004 have to be regarded as interpretative and, as such, as having retroactive effect save where earlier specific provisions to the contrary apply. |
| --- | --- |

3.

If the answer to Question 2 is affirmative, the Court is asked whether or not the provisions laid down in that regard by Regulation No 754/2004 have to be regarded as interpretative and, as such, as having retroactive effect save where earlier specific provisions to the contrary apply.

---

(1)  Commission Regulation (EC) No 754/2004 of 21 April 2004 concerning the classification of certain goods in the Combined Nomenclature (OJ 2004 L 118, p. 32).

---

General Court

| 22.12.2012 | EN | Official Journal of the European Union | C 399/16 |
| --- | --- | --- | --- |

22.12.2012

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Official Journal of the European Union

C 399/16

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Judgment of the General Court of 7 November 2012 — Syndicat des thoniers méditerranéens and Others v Commission

(Case T-574/08) (1)

(Non-contractual liability - Fishing - Conservation of fishery resources - Reconstitution of the stocks of bluefin tuna - Emergency measures prohibiting fishing by purse seiners - Unusual loss)

2012/C 399/26

Language of the case: French

Parties

Applicants: Syndicat des thoniers méditerranéens (Marseille, France); Marc Carreno (Sète, France); Jean-Louis Donnarel (Lourmarin, France); Jean-François Flores (Sète); Gérald Lubrano (Balaruc-les-Bains, France); Hervé Marin (Balaruc-le-Vieux, France); Nicolas Marin (Frontignan, France); Sébastien Marin (Bouzigues, France); Jean-Marc Penniello (Collioure, France); Serge Antoine José Perez (Sorède, France) (represented by: C. Bonnefoi, lawyer); Jean-Luc Buono (Agde, France); Gérard Buono (Agde); Roger Louis Paul Del Ponte (Balaruc-les-Bains); Serge Antoine Di Rocco (Frontignan); Jean Gérald Lubrano (Balaruc-les-Bains); Jean Lubrano (Port-Vendres, France); Jean Lucien Lubrano (Saleilles, France); Fabrice Marin (Frontignan) and Robert Marin (Balaruc-les-Bains) (represented initially by: C. Bonnefoi, and subsequently by: A. Arnaud and P.-O. Koubi-Flotte, lawyers)

Defendant: European Commission (represented by: K. Banks, F. Clotuche-Duvieusart and A. Bouquet, acting as Agents)

Re:

Action for damages seeking compensation for the loss allegedly suffered by the applicants following adoption of Commission Regulation (EC) No 530/2008 of 12 June 2008 establishing emergency measures as regards purse seiners fishing for bluefin tuna in the Atlantic Ocean, east of longitude 45° W, and in the Mediterranean Sea (OJ 2008 L 155, p. 9)

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

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

2.

Orders the applicants to pay the costs.

---

(1)  OJ C 69, 21.3.2009.

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| 22.12.2012 | EN | Official Journal of the European Union | C 399/16 |
| --- | --- | --- | --- |

22.12.2012

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Official Journal of the European Union

C 399/16

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Judgment of the General Court of 14 November 2012 — Nexans France and Nexans v Commission

(Case T-135/09) (1)

(Competition - Administrative procedure - Action for annulment - Acts adopted during an inspection - Intermediate measures - Inadmissibility - Decision ordering an inspection - Obligation to state the reasons on which the decision is based - Protection of privacy - Reasonable grounds - Review by the Courts)

2012/C 399/27

Language of the case: English

Parties

Applicants: Nexans France SAS (Paris, France) and Nexans SA (Paris) (represented by: M. Powell, solicitor, J.-P. Tran-Thiet, avocat, and G. Forwood, barrister)

Defendant: European Commission (represented initially by X. Lewis and N. von Lingen, and subsequently by N. von Lingen and V. Di Bucci, acting as Agents)

Re:

Application for (i) annulment of Commission decision C(2009) 92/1 of 9 January 2009 ordering Nexans SA and its subsidiary Nexans France SAS to submit to an inspection in accordance with Article 20, paragraph 4, of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1) (Case COMP/39.610); (ii) a declaration that the decision taken by the Commission during that inspection to copy in their entirety the content of certain computer files, in order to examine them in its offices, is unlawful; (iii) annulment of the decision taken by the Commission to interview an employee of Nexans France during the inspection; and (iv) an order directing the Commission to take certain action.

Operative part of the judgment

The Court:

| 1. | Annuls Commission decision C(2009) 92/1 of 9 January 2009 ordering Nexans SA and all companies directly or indirectly controlled by it, including Nexans France SAS, to submit to an inspection in accordance with Article 20, paragraph 4, of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC], in so far as it concerns electric cables other than high voltage underwater and underground electric cables and the material associated with those other cables; |
| --- | --- |

1.

Annuls Commission decision C(2009) 92/1 of 9 January 2009 ordering Nexans SA and all companies directly or indirectly controlled by it, including Nexans France SAS, to submit to an inspection in accordance with Article 20, paragraph 4, of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC], in so far as it concerns electric cables other than high voltage underwater and underground electric cables and the material associated with those other cables;

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

2.

Dismisses the action as to the remainder;

| 3. | Orders Nexans and Nexans France to bear their own costs and to pay half of the costs incurred by the European Commission; |
| --- | --- |

3.

Orders Nexans and Nexans France to bear their own costs and to pay half of the costs incurred by the European Commission;

| 4. | Orders the European Commission to bear half of its own costs. |
| --- | --- |

4.

Orders the European Commission to bear half of its own costs.

---

(1)  OJ C 141, 20.6.2009.

---

| 22.12.2012 | EN | Official Journal of the European Union | C 399/17 |
| --- | --- | --- | --- |

22.12.2012

EN

Official Journal of the European Union

C 399/17

---

Judgment of the General Court of 14 November 2012 — Prysmian and Prysmian Cavi e Sistemi Energia v Commission

(Case T-140/09) (1)

(Competition - Administrative procedure - Action for annulment - Acts adopted during an inspection - Intermediate measures - Inadmissibility - Decision ordering an inspection - Obligation to state the reasons on which the decision is based - Protection of privacy - Reasonable grounds - Review by the Court.)

2012/C 399/28

Language of the case: Italian

Parties

Applicants: Prysmian SpA (Milan, Italy) and Prysmian Cavi e Sistemi Energia Srl (Milan) (represented by: A. Pappalardo, F. Russo, L. Stasi, C. Tesauro and L. Armati, lawyers)

Defendant: European Commission (represented by: V. Di Bucci and X. Lewis initially, then V. Di Bucci and N. von Lingen, Agents)

Re:

First, application for annulment of Commission Decision C(2009) 92/2 of 9 January 2009 ordering Prysmian SpA and all companies directly or indirectly controlled by it, including Prysmian Cavi e Sistemi Energia Srl, to submit to an inspection in accordance with Article 20, paragraph 4, of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1) (Case COMP/39.610); secondly, request seeking that the General Court declare unlawful the decision taken by the Commission during that inspection to copy certain computer files to examine them in its offices and, thirdly, request seeking that the General Court order the Commission to abstain from using any document obtained unlawfully and to return to Prysmian and to Prysmian Cavi e Sistemi Energia the documents obtained unlawfully.

Operative part of the judgment

The Court:

| 1. | Annuls Commission decision C(2009) 92/2 of 9 January 2009 ordering Prysmian SpA and all companies directly or indirectly controlled by it, including Prysmian Cavi e Sistemi Energia Srl, to submit to an inspection in accordance with Article 20, paragraph 4, of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC], in so far as it concerns electric cables other than high voltage underwater and underground electric cables and the material associated with those other cables; |
| --- | --- |

1.

Annuls Commission decision C(2009) 92/2 of 9 January 2009 ordering Prysmian SpA and all companies directly or indirectly controlled by it, including Prysmian Cavi e Sistemi Energia Srl, to submit to an inspection in accordance with Article 20, paragraph 4, of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC], in so far as it concerns electric cables other than high voltage underwater and underground electric cables and the material associated with those other cables;

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

2.

Dismisses the action as to the remainder;

| 3. | Orders Prysmian and Prysmian Cavi e Sistemi Energia to bear their own costs and to pay half of the costs incurred by the European Commission; |
| --- | --- |

3.

Orders Prysmian and Prysmian Cavi e Sistemi Energia to bear their own costs and to pay half of the costs incurred by the European Commission;

| 4. | Orders the European Commission to bear half of its own costs. |
| --- | --- |

4.

Orders the European Commission to bear half of its own costs.

---

(1)  OJ C 141, 20.6.2009.

---

| 22.12.2012 | EN | Official Journal of the European Union | C 399/17 |
| --- | --- | --- | --- |

22.12.2012

EN

Official Journal of the European Union

C 399/17

---

Judgment of the General Court of 15 November 2012 — Verband Deutscher Prädikatsweingüter v OHIM (GG)

(Case T-278/09) (1)

(Community trade mark - Application for the Community collective word mark GG - Absolute ground for refusal - Descriptive character - Lack of distinctive character - Article 7(1)(b) and (c) of Regulation (EC) No 207/2009 - Obligation to state reasons - Article 75 of Regulation No 207/2009)

2012/C 399/29

Language of the case: German

Parties

Applicant: Verband Deutscher Prädikatsweingüter eV, formerly Verband Deutscher Prädikats- und Qualitätsweingüter eV (Mainz, Germany) (represented by: N. Schindler, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: initially B. Schmidt, subsequently G. Schneider and lastly D. Walicka, acting as Agents)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 30 April 2009 (Case R 1568/2008-1), concerning an application for registration of the word sign GG as a Community trade mark

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Verband Deutscher Prädikatsweingüter eV to pay the costs. |
| --- | --- |

2.

Orders Verband Deutscher Prädikatsweingüter eV to pay the costs.

---

(1)  OJ C 220, 12.9.2009.

---

| 22.12.2012 | EN | Official Journal of the European Union | C 399/18 |
| --- | --- | --- | --- |

22.12.2012

EN

Official Journal of the European Union

C 399/18

---

Judgment of the General Court of 7 November 2012 — CBI v Commission

(Case T-137/10) (1)

(State aid - Public hospitals - Funding granted by the Belgian authorities to public hospitals belonging to the IRIS network - Decision at the end of the preliminary phase - Decision declaring the aid compatible with the internal market - Service of general economic interest - Definition of the public service mandate - Proportionality of the public service compensation)

2012/C 399/30

Language of the case: French

Parties

Applicant: Coordination bruxelloise d’Institutions sociales et de santé (CBI) (Brussels, Belgium) (represented by: D. Waelbroeck and D. Slater, lawyers)

Defendant: European Commission (represented by: B. Stromsky, C. Urraca Caviedes and S. Thomas, acting as Agents)

Interveners in support of the defendant: French Republic (represented by: G. de Bergues and J. Gstalter, acting as Agents); Kingdom of the Netherlands (represented initially by: M. Noort and M. de Ree and subsequently by: M. Noort, C. Wissels and J. Langer, acting as Agents); Région de Bruxelles-Capitale (Belgium); Municipality of Anderlecht (Belgium); Municipality of Etterbeek (Belgium); Municipality of Ixelles (Belgium); City of Brussels (Belgium); and Municipality of Saint-Gilles (Belgium) (represented by: P. Slegers and A. Lepièce, lawyers)

Re:

Application for annulment of Commission Decision C(2009) 8120 of 28 December 2009, concerning State aid NN54/2009 granted by the Kingdom of Belgium for the financing of the public hospitals belonging to the IRIS network in the Région Bruxelles-Capitale.

Operative part of the judgment

The Court:

| 1. | Annuls Commission Decision C(2009) 8120 of 28 December 2009, concerning State aid NN54/2009 granted by the Kingdom of Belgium for the financing of the public hospitals belonging to the IRIS network in the Région Bruxelles-Capitale; |
| --- | --- |

1.

Annuls Commission Decision C(2009) 8120 of 28 December 2009, concerning State aid NN54/2009 granted by the Kingdom of Belgium for the financing of the public hospitals belonging to the IRIS network in the Région Bruxelles-Capitale;

| 2. | Orders the European Commission to bear its won costs and those incurred by the Coordination bruxelloise d’Institutions sociales et de santé (CBI); |
| --- | --- |

2.

Orders the European Commission to bear its won costs and those incurred by the Coordination bruxelloise d’Institutions sociales et de santé (CBI);

| 3. | Orders the French Republic; Kingdom of the Netherlands; Région de Bruxelles-Capitale (Belgium); Municipality of Anderlecht (Belgium); Municipality of Etterbeek (Belgium); Municipality of Ixelles (Belgium); City of Brussels (Belgium); and Municipality of Saint-Gilles (Belgium) to bear their own costs. |
| --- | --- |

3.

Orders the French Republic; Kingdom of the Netherlands; Région de Bruxelles-Capitale (Belgium); Municipality of Anderlecht (Belgium); Municipality of Etterbeek (Belgium); Municipality of Ixelles (Belgium); City of Brussels (Belgium); and Municipality of Saint-Gilles (Belgium) to bear their own costs.

---

(1)  OJ C 148, 5.6.2010.

---

| 22.12.2012 | EN | Official Journal of the European Union | C 399/18 |
| --- | --- | --- | --- |

22.12.2012

EN

Official Journal of the European Union

C 399/18

---

Judgment of the General Court of 8 November 2012 — Hungary v Commission

(Case T-194/10) (1)

(Action for annulment - Regulation (EC) No 1234/2007 - Regulation (EC) No 607/2009 - E-Bacchus database - Registration of the protected designation of origin ‘Vinohradnícka oblast’ Tokaj’, in respect of Slovakia - Measure not subject to review - Inadmissibility)

2012/C 399/31

Language of the case: Hungarian

Parties

Applicant: Hungary (represented initially by J. Fazekas, M. Fehér and K. Szíjjártó, then by M. Fehér and K. Szíjjártó, acting as Agents)

Defendant: European Commission (represented by: B. Schima, V. Bottka and M. Vollkommer, acting as Agents)

Intervener in support of the defendant: Slovak Republic (represented by: B. Ricziová, acting as Agent)

Re:

Action for annulment of the registration of the protected designation of origin ‘Vinohradnícka oblasť Tokaj’, with Slovakia indicated as country of origin, in the electronic register of protected designations of origin and protected geographical indications for wine (the E-Bacchus database).

Operative part of the judgment

The Court:

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

1.

Dismisses the action as inadmissible;

| 2. | Orders Hungary to bear its own costs and to pay those incurred by the European Commission; |
| --- | --- |

2.

Orders Hungary to bear its own costs and to pay those incurred by the European Commission;

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

3.

Orders the Republic of Slovakia to bear its own costs.

---

(1)  OJ C 195, 17.7.2010.

---

| 22.12.2012 | EN | Official Journal of the European Union | C 399/19 |
| --- | --- | --- | --- |

22.12.2012

EN

Official Journal of the European Union

C 399/19

---

Judgment of the General Court of 13 November 2012 — Antrax It v OHIM — THC (Radiators for heating)

(Joined Cases T-83/11 and T-84/11) (1)

(Community design - Invalidity proceedings - Registered Community designs representing thermosiphons for the purposes of radiators for heating - Earlier design - Ground for invalidity - Lack of individual character - Overall impression not different - Article 6 and Article 25(1)(b) of Regulation (EC) No 6/2002 - No scope for innovation - Obligation to state reasons)

2012/C 399/32

Language of the case: Italian

Parties

Applicant: Antrax It Srl (Resana, Italy) (represented by: L. Gazzola, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: G. Mannucci and A. Folliard-Monguiral initially, then A. Folliard-Monguiral and F. Mattina, Agents)

Other party to the proceedings before the Board of Appeal of OHIM, intervening before the General Court: The Heating Company (THC) (Dilsen, Belgium) (represented by: J. Haber, lawyer)

Re:

Action brought against the decision of the Third Board of Appeal of OHIM of 2 November 2010 (Cases R 1451/2009-3 and R 1452/2009-3) relating to invalidity proceedings between The Heating Company (THC) and Antrax It Srl.

Operative part of the judgment

The Court:

| 1. | Annuls the decisions of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 2 November 2010 (Cases R 1451/2009-3 and R 1452/2009-3) in so far as they declared invalid the designs Nos 000593959-0001 and 000593959-0002; |
| --- | --- |

1.

Annuls the decisions of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 2 November 2010 (Cases R 1451/2009-3 and R 1452/2009-3) in so far as they declared invalid the designs Nos 000593959-0001 and 000593959-0002;

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

2.

Dismisses the actions as to the remainder;

| 3. | Orders OHIM, in addition to bearing its own costs, to pay the costs incurred by Antrax It Srl in the proceedings before the General Court; |
| --- | --- |

3.

Orders OHIM, in addition to bearing its own costs, to pay the costs incurred by Antrax It Srl in the proceedings before the General Court;

| 4. | Orders The Heating Company (THC), in addition to bearing its own costs before the General Court, to pay those incurred by Antrax It in the proceedings before the Board of Appeal. |
| --- | --- |

4.

Orders The Heating Company (THC), in addition to bearing its own costs before the General Court, to pay those incurred by Antrax It in the proceedings before the Board of Appeal.

---

(1)  OJ C 113, 9.4.2011.

---

| 22.12.2012 | EN | Official Journal of the European Union | C 399/19 |
| --- | --- | --- | --- |

22.12.2012

EN

Official Journal of the European Union

C 399/19

---

Judgment of the General Court of 7 November 2012 — Giordano v Commission

(Case T-114/11) (1)

(Non-contractual liability - Fisheries - Conservation of fisheries resources - Recovery of bluefin tuna stocks - Emergency measures prohibiting fishing by purse seiners - Unlawful conduct - Causal link)

2012/C 399/33

Language of the case: French

Parties

Applicant: Jean-François Giordano (Sète, France) (represented by: D. Rigeade and J. Jeanjean, lawyers)

Defendant: European Commission (represented by: A. Bouquet and D. Nardi, acting as Agents)

Re:

Action for damages seeking compensation for the losses allegedly suffered following the adoption of Commission Regulation (EC) No 530/2008 of 12 June 2008 establishing emergency measures as regards purse seiners fishing for bluefin tuna in the Atlantic Ocean, east of longitude 45° W, and in the Mediterranean Sea (OJ 2008 L 155, p. 9)

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Jean-François Giordano to pay the costs. |
| --- | --- |

2.

Orders Jean-François Giordano to pay the costs.

---

(1)  OJ C 139, 7.5.2011.

---

| 22.12.2012 | EN | Official Journal of the European Union | C 399/19 |
| --- | --- | --- | --- |

22.12.2012

EN

Official Journal of the European Union

C 399/19

---

Judgment of the General Court of 8 November 2012 — Commission v Strack

(Case T-268/11 P) (1)

(Appeal - Civil Service - Officials - Leave - Sick leave - Annulment at first instance of the Commission’s decision refusing to carry over days of annual leave not taken by the person concerned - Article 4 of Annex V to the Staff Regulations - Article 1e(2) of the Staff Regulations - Directive 2003/88/EC - Appeal well founded - Whether the state of the proceedings permits final judgment to be given - Dismissal of the action)

2012/C 399/34

Language of the case: German

Parties

Appellant: European Commission (represented by: B. Eggers and J. Currall, acting as Agents)

Other party to the proceedings: Guido Strack (Cologne, Germany) (represented by: H. Tettenborn, lawyer)

Re:

Appeal against the judgment of the European Union Civil Service Tribunal (Second Chamber) of 15 March 2011 in Case F-120/07 Strack v Commission ECR-SC 0000 seeking to have that judgment set aside in part.

Operative part of the judgment

The Court:

| 1. | Sets aside the judgment of the European Union Civil Service Tribunal of 15 March 2011 in Case F 120/07 Strack v Commission; |
| --- | --- |

1.

Sets aside the judgment of the European Union Civil Service Tribunal of 15 March 2011 in Case F 120/07 Strack v Commission;

| 2. | Dismisses the action brought by Mr Guido Strack before the European Union Civil Service Tribunal in Case F-120/07; |
| --- | --- |

2.

Dismisses the action brought by Mr Guido Strack before the European Union Civil Service Tribunal in Case F-120/07;

| 3. | Orders Mr Strack and the European Commission to bear their own costs, both of the proceedings before the Civil Service Tribunal and at the present instance. |
| --- | --- |

3.

Orders Mr Strack and the European Commission to bear their own costs, both of the proceedings before the Civil Service Tribunal and at the present instance.

---

(1)  OJ C 232, 6.8.2011.

---

| 22.12.2012 | EN | Official Journal of the European Union | C 399/20 |
| --- | --- | --- | --- |

22.12.2012

EN

Official Journal of the European Union

C 399/20

---

Judgment of the General Court of 8 November 2012 — Hartmann v OHIM (Nutriskin Protection Complex)

(Case T-415/11) (1)

(Community trade mark - Application for the Community word mark Nutriskin Protection Complex - Absolute grounds for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 207/2009 - Lack of distinctive character - Article 7(1)(b) of Regulation No 207/2009 - OHIM’s decision-making practice - Obligation to state reasons - Article 75 of Regulation No 207/2009)

2012/C 399/35

Language of the case: German

Parties

Applicant: Paul Hartmann AG (Heidenheim an der Brenz, Germany) (represented by: N. Aicher, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: K. Klüpfel and A. Poch, acting as Agents)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 26 May 2011 (Case R 1524/2010-1), concerning an application for registration of the sign Nutriskin Protection Complex as a Community trade mark

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Paul Hartmann AG to pay the costs. |
| --- | --- |

2.

Orders Paul Hartmann AG to pay the costs.

---

(1)  OJ C 298, 8.10.2011.

---

| 22.12.2012 | EN | Official Journal of the European Union | C 399/20 |
| --- | --- | --- | --- |

22.12.2012

EN

Official Journal of the European Union

C 399/20

---

Judgment of the General Court of 14 November 2012 — Evonik Industries v OHIM — Impulso Industrial Alternativo (Impulso creador)

(Case T-529/11) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark Impulso creador - Earlier figurative Community mark IMPULSO - Relative ground for refusal - Likelihood of confusion - Similarity of signs - Article 8(1)(b) of Regulation (EC) No 207/2009)

2012/C 399/36

Language of the case: English

Parties

Applicant: Evonik Industries AG (Essen, Germany) (represented by: J. Albrecht, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Impulso Industrial Alternativo, SA (Madrid, Spain) (represented by F. Brandolini Kujman and J. Devaureix, lawyers)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 20 June 2011 (Case R 1101/2010-2), concerning opposition proceedings between Impulso Industrial Alternativo, SA and Evonik Industries AG.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Evonik Industries AG to pay the costs. |
| --- | --- |

2.

Orders Evonik Industries AG to pay the costs.

---

(1)  OJ C 362, 10.12.2011.

---

| 22.12.2012 | EN | Official Journal of the European Union | C 399/21 |
| --- | --- | --- | --- |

22.12.2012

EN

Official Journal of the European Union

C 399/21

---

Judgment of the General Court of 13 November 2012 — tesa v OHIM — Superquímica (tesa TACK)

(Case T-555/11) (1)

(Community trade mark - Opposition proceedings - Application for Community figurative mark tesa TACK - Earlier national figurative mark TACK Ceys - Relative ground for refusal - Likelihood of confusion - Similarity of the signs - Article 8(1)(b) of Regulation (EC) No 207/2009)

2012/C 399/37

Language of the case: English

Parties

Applicant: tesa SE (Hamburg, Germany) (represented by: F. Schwab, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: La Superquímica, SA (L’Hospitalet de Llobregat, Spain) (represented by: A. Canela Giménez, lawyer)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 5 July 2011 (Case R 866/2010-1) relating to opposition proceedings between La Superquímica, SA and tesa SE.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders tesa SE to pay the costs. |
| --- | --- |

2.

Orders tesa SE to pay the costs.

---

(1)  OJ C 6, 7.1.2012.

---

| 22.12.2012 | EN | Official Journal of the European Union | C 399/21 |
| --- | --- | --- | --- |

22.12.2012

EN

Official Journal of the European Union

C 399/21

---

Order of the General Court of 24 October 2012 — Harman International Industries, Inc. v OHIM — Becker (Barbara Becker)

(Case T-212/07 REV) (1)

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

2012/C 399/38

Language of the case: English

Parties

Applicant: Harman International Industries, Inc. (Northridge, California, United States) (represented by: M. Vanhegan, barrister)

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

Other party to the proceedings before the Board of Appeal of OHIM intervening before the General Court: Barbara Becker (Miami, Florida, United States) (represented by: P. Baronikians, lawyer)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 7 March 2007 (Case R 502/2006-1), relating to opposition proceedings between Harman International Industries, Inc. and Barbara Becker.

Operative part of the order

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

1.

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

| 2. | The applicant and the intervener are ordered to bear their own costs and to each pay half of the costs incurred by the defendant. |
| --- | --- |

2.

The applicant and the intervener are ordered to bear their own costs and to each pay half of the costs incurred by the defendant.

---

(1)  OJ C 183, 4.8.2007.

---

| 22.12.2012 | EN | Official Journal of the European Union | C 399/21 |
| --- | --- | --- | --- |

22.12.2012

EN

Official Journal of the European Union

C 399/21

---

Order of the General Court of 23 October 2012 — Chivas v OHIM — Glencairn Scotch Whisky (CHIVAS LIVE WITH CHIVALRY)

(Case T-180/11) (1)

(Community trade mark - Opposition - Opposition withdrawn - No need to adjudicate)

2012/C 399/39

Language of the case: English

Parties

Applicant: Chivas Holdings (IP) Ltd (Paisley, Renfrewshire, United Kingdom) (represented by: A. Carboni, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM intervening before the General Court: Glencairn Scotch Whisky Co. Ltd (Glasgow, United Kingdom) (represented by: K. Lumsdaine, Solicitor)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 12 January 2011 (Case R 1262/2010-1) concerning opposition proceedings between Glencairn Scotch Whisky Co. Ltd and Chivas Holdings (IP) Ltd.

Operative part of the order

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

1.

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

| 2. | The applicant and the intervener are each ordered to bear their own costs and to pay half the costs incurred by the defendant. |
| --- | --- |

2.

The applicant and the intervener are each ordered to bear their own costs and to pay half the costs incurred by the defendant.

---

(1)  OJ C 152, 21.5.2011.

---

| 22.12.2012 | EN | Official Journal of the European Union | C 399/22 |
| --- | --- | --- | --- |

22.12.2012

EN

Official Journal of the European Union

C 399/22

---

Order of the General Court of 23 October 2012 — Chivas v OHIM — Glencairn Scotch Whisky (LIVE WITH CHIVALRY)

(Case T-181/11) (1)

(Community trade mark - Opposition - Opposition withdrawn - No need to adjudicate)

2012/C 399/40

Language of the case: English

Parties

Applicant: Chivas Holdings (IP) Ltd (Paisley, Renfrewshire, United Kingdom) (represented by: A. Carboni, lawyer)

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

Other party/parties to the proceedings before the Board of Appeal of OHIM intervening before the General Court: Glencairn Scotch Whisky Co. Ltd (Glasgow, United Kingdom) (represented by: K. Lumsdaine, lawyer)

Re:

Action brought against the decision of the Frist Board of Appeal of OHIM of 12 January 2011 (Case R-1263/2010-1) concerning opposition proceedings between Glencairn Scotch Whisky Co. Ltd and Chivas Holdings (IP) Ltd.

Operative part of the order

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

1.

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

| 2. | The applicant and the intervener are each ordered to bear their own costs and to pay half the costs incurred by the defendant. |
| --- | --- |

2.

The applicant and the intervener are each ordered to bear their own costs and to pay half the costs incurred by the defendant.

---

(1)  OJ C 152, 21.5.2011.

---

| 22.12.2012 | EN | Official Journal of the European Union | C 399/22 |
| --- | --- | --- | --- |

22.12.2012

EN

Official Journal of the European Union

C 399/22

---

Order of the General Court of 24 October 2012 — Evropaïki Dynamiki v Commission

(Case T-442/11) (1)

(Action for annulment - Act not subject to review - Act which is confirmatory, in part, and informative, in part - Inadmissibility - Action for damages - Failure to identify the alleged conduct or to define the alleged damage - Inadmissibility - Action for damages - Absence of proof of damage - Action manifestly lacking any foundation in law)

2012/C 399/41

Language of the case: English

Parties

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

Defendant: European Commission (represented by: S. Delaude and D. Calciu, acting as Agents, assisted by P. Wytinck, lawyer)

Re:

Application, first, for the annulment of a letter of the Commission of 27 May 2011, second, for an order for the Commission to pay damages and, third, for an order for the Commission to publish a communiqué.

Operative part of the order

The General Court:

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

1.

Dismisses the action;

| 2. | Orders Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to pay its own costs and those incurred by the European Commission. |
| --- | --- |

2.

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

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(1)  OJ C 290, 1.10.2011.

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| 22.12.2012 | EN | Official Journal of the European Union | C 399/22 |
| --- | --- | --- | --- |

22.12.2012

EN

Official Journal of the European Union

C 399/22

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Order of the General Court of 23 October 2012 — Chivas v OHIM — Glencairn Scotch Whisky (CHIVALRY)

(Case T-530/11) (1)

(Community trade mark - Opposition - Opposition withdrawn - No need to adjudicate)

2012/C 399/42

Language of the case: English

Parties

Applicant: Chivas Holdings (IP) Ltd (Paisley, Renfrewshire, United Kingdom) (represented by: A. Carboni, Solicitor)

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

Other party to the proceedings before the Board of Appeal of OHIM intervening before the General Court: Glencairn Scotch Whisky Co. Ltd (Glasgow, United Kingdom)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 14 July 2011 (Case R-2334/2010-1) concerning opposition proceedings between Glencairn Scotch Whisky Co. Ltd and Chivas Holdings (IP) Ltd.

Operative part of the order

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

1.

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

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

2.

The applicant is ordered to bear its own costs and to pay the costs incurred by the defendant.

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(1)  OJ C 362, 10.12.2011.

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| 22.12.2012 | EN | Official Journal of the European Union | C 399/23 |
| --- | --- | --- | --- |

22.12.2012

EN

Official Journal of the European Union

C 399/23

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Order of the General Court of 13 September 2012 — Bäßler v OHIM (MAX)

(Case T-187/12)

(Application - Formal requirements - Manifest inadmissibility)

2012/C 399/43

Language of the case: English

Parties

Applicant: Uwe Bäßler (Gmunden, Austria) (represented by: L. Müller, lawyer)

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

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 2 February 2012 (Case R 0909/2011-1), concerning an application for registration of the word mark MAX as a Community trade mark.

Operative part of the order

The Court:

| 1. | Dismisses the action as inadmissible. |
| --- | --- |

1.

Dismisses the action as inadmissible.

| 2. | Orders the applicant to bear his own costs. |
| --- | --- |

2.

Orders the applicant to bear his own costs.

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| 22.12.2012 | EN | Official Journal of the European Union | C 399/23 |
| --- | --- | --- | --- |

22.12.2012

EN

Official Journal of the European Union

C 399/23

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Order of the President of the General Court of 24 October 2012 — Saobraćajni institut CIP v Commission

(Case T-219/12 R)

(Application for interim measures - Public service contracts - Call for tenders concerning the preparation of technical documentation for a railway modernisation project - Exclusion of the applicant from participating in that tendering procedure - Annulment of the tendering procedure after the action had been brought - No need to adjudicate)

2012/C 399/44

Language of the case: English

Parties

Applicant: Saobraćajni institut CIP d.o.o. (Belgrade, Serbia) (represented by: A. Lojpur, lawyer)

Defendant: European Commission (represented by: F. Erlbacher and E. Georgieva, acting as Agents)

Re:

Application seeking, in essence, interim measures ordering suspension of the tendering procedure in the context of the contract notice published on 27 March 2012 concerning the preparation of technical documentation for a railway modernisation project and excluding the applicant from participating in the tendering procedure.

Operative part of the order

| 1. | There is no further need to adjudicate on the application for interim measures. |
| --- | --- |

1.

There is no further need to adjudicate on the application for interim measures.

| 2. | The European Commission shall bear the costs. |
| --- | --- |

2.

The European Commission shall bear the costs.

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| 22.12.2012 | EN | Official Journal of the European Union | C 399/23 |
| --- | --- | --- | --- |

22.12.2012

EN

Official Journal of the European Union

C 399/23

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Order of the President of the General Court of 24 October 2012 — Saobraćajni institut CIP v Commission

(Case T-227/12 R)

(Application for interim measures - Public service contracts - Call for tenders concerning the preparation of technical documentation for a rail modernisation project - Exclusion of the applicant from participation in the tender procedure - Annulment of the tender procedure after the action had been brought - No need to adjudicate)

2012/C 399/45

Language of the case: English

Parties

Applicant: Saobraćajni institut CIP d.o.o. (Belgrade, Serbia) (represented by: A. Lojpur, lawyer)

Defendant: European Commission (represented by: F. Erlbacher and E. Georgieva, acting as Agents)

Re:

Application for, essentially, interim measures ordering the suspension of the tender procedure in the context of the contract notice published on 3 April 2012 concerning the preparation of technical documentation for a rail modernisation project and excluding the applicant from participating in the tender procedure.

Operative part of the order

| 1. | There is no further need to adjudicate on the application for interim measures. |
| --- | --- |

1.

There is no further need to adjudicate on the application for interim measures.

| 2. | The European Commission shall pay the costs. |
| --- | --- |

2.

The European Commission shall pay the costs.

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| 22.12.2012 | EN | Official Journal of the European Union | C 399/24 |
| --- | --- | --- | --- |

22.12.2012

EN

Official Journal of the European Union

C 399/24

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Action brought on 8 October 2012 — Novartis v OHIM — Tenimenti Angelini (LINEX)

(Case T-444/12)

2012/C 399/46

Language in which the application was lodged: English

Parties

Applicant: Novartis AG (Basel, Switzerland) (represented by: M. Douglas, lawyer)

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

Other party to the proceedings before the Board of Appeal: Tenimenti Angelini SpA (Montalcino, Italy)

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 6 August 2012 in case R 414/2011-4; and |
| --- | --- |

—

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 6 August 2012 in case R 414/2011-4; and

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

—

Order the defendant to bear the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The word mark ‘LINEX’, for goods and services in class 5 — Community trade mark application No 8122863

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 in opposition: Italian trade mark registration No 1281035 for the word mark ‘LINES PERLA’, for goods in classes 5, 16 and 25; Italian trade mark registration No 245598 for the word mark ‘LINES LADY’, for goods in class 5; Italian trade mark registration No 311801 for the word mark ‘LINES INTERVALLO’, for goods in class 5; Italian trade mark registration No 414841 for the word mark ‘LINES IDEA’, for goods in class 5; Italian trade mark registration No 584405 for the word mark ‘LINES SETA’, for goods in classes 5, 16 and 25; Italian trade mark registration No 607537 for the word mark ‘LINES SETA ALI’, for goods in classes 5, 16 and 25; Italian trade mark registration No 643382 for the word mark ‘LINES SETA ULTRA’, for goods in classes 5, 16 and 25; Italian trade mark registration No 980294 for the figurative mark ‘VELO’, for goods in classes 3, 5 and 16; Italian trade mark registration No 980295 for the figurative mark ‘LINES’, for goods in classes 3, 5 and 16; Italian trade mark application No MI2007C011896 for the figurative mark ‘LINES SETA’, for goods in classes 5, 16 and 25; well-known mark in Italy ‘LINES’, for goods in class 5

Decision of the Opposition Division: Upheld the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law:

| — | Infringement of Article 76(1) of Council Regulation No 207/2009; and |
| --- | --- |

—

Infringement of Article 76(1) of Council Regulation No 207/2009; and

| — | Infringement of Article 8(1)(b) of Council Regulation No 207/2009. |
| --- | --- |

—

Infringement of Article 8(1)(b) of Council Regulation No 207/2009.

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| 22.12.2012 | EN | Official Journal of the European Union | C 399/24 |
| --- | --- | --- | --- |

22.12.2012

EN

Official Journal of the European Union

C 399/24

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Action brought on 11 October 2012 — Anagnostakis v Commission

(Case T-450/12)

2012/C 399/47

Language of the case: Greek

Parties

Applicant: Alexios Anagnostakis (Athens, Greece) (represented by: A. Anagnostakis, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

| — | annul the decision of the European Commission of 6 September 2012 by which it rejected registration of the proposed citizens’ initiative entitled ‘ONE MILLION SIGNATURES FOR A EUROPE OF SOLIDARITY’; |
| --- | --- |

—

annul the decision of the European Commission of 6 September 2012 by which it rejected registration of the proposed citizens’ initiative entitled ‘ONE MILLION SIGNATURES FOR A EUROPE OF SOLIDARITY’;

| — | order the Commission to register the abovementioned initiative in accordance with the law, and order any other measure required by law; |
| --- | --- |

—

order the Commission to register the abovementioned initiative in accordance with the law, and order any other measure required by law;

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

—

order the European Commission to pay the costs.

Pleas in law and main arguments

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

| 1. | The first plea in law is derived from Article 122 TFEU.






  — | The applicant maintains that the European Commission is unjustified in contending that it lacks competence to submit a proposal for the adoption of a legal measure relating to the proposed initiative concerning establishment of the ‘principle of the state of necessity’. Under Article 122(1) TFEU (ex Article 100 EC), the Commission proposes (and the Council decides upon), in a spirit of solidarity between Member States, the measures appropriate to the economic situation. Such measures include the laying down of the principle of the state of necessity in the treaties of the European Union and the adoption of measures and policies to that effect. |
| --- | --- | --- |

1.

The first plea in law is derived from Article 122 TFEU.

—

The applicant maintains that the European Commission is unjustified in contending that it lacks competence to submit a proposal for the adoption of a legal measure relating to the proposed initiative concerning establishment of the ‘principle of the state of necessity’. Under Article 122(1) TFEU (ex Article 100 EC), the Commission proposes (and the Council decides upon), in a spirit of solidarity between Member States, the measures appropriate to the economic situation. Such measures include the laying down of the principle of the state of necessity in the treaties of the European Union and the adoption of measures and policies to that effect.

| 2. | The second plea in law is derived from Article 136(1) TFEU.






  — | The applicant maintains that the Commission is unjustified in considering in its decision that Article 136(1) TFEU might be used as a legal basis only where the measures relate to the strengthening of budgetary discipline and are limited to that. Under Article 136(1)(b) TFEU, the measures proposed can also relate to the setting out of economic policy guidelines for the Member States in question. The principle of the state of necessity is such a guideline in the carrying out of that policy. |
| --- | --- | --- |

2.

The second plea in law is derived from Article 136(1) TFEU.

—

The applicant maintains that the Commission is unjustified in considering in its decision that Article 136(1) TFEU might be used as a legal basis only where the measures relate to the strengthening of budgetary discipline and are limited to that. Under Article 136(1)(b) TFEU, the measures proposed can also relate to the setting out of economic policy guidelines for the Member States in question. The principle of the state of necessity is such a guideline in the carrying out of that policy.

| 3. | The third plea in law is derived from Article 136(1) TFEU.






  — | The applicant submits that the Commission is unjustified in considering in its decision that Article 136(1) does not empower the European Union to take the place of the Member States in the exercise of their budgetary sovereignty and of the functions which are related to State income and expenditure. The Council can adopt, under the procedure provided for in Articles 121 TFEU to 126 TFEU, measures for the Member States whose currency is the euro. That is clear from Article 136(1). That article does not contain a restriction, in the application of measures, deriving from the supposed budgetary sovereignty of the Member States. |
| --- | --- | --- |

3.

The third plea in law is derived from Article 136(1) TFEU.

—

The applicant submits that the Commission is unjustified in considering in its decision that Article 136(1) does not empower the European Union to take the place of the Member States in the exercise of their budgetary sovereignty and of the functions which are related to State income and expenditure. The Council can adopt, under the procedure provided for in Articles 121 TFEU to 126 TFEU, measures for the Member States whose currency is the euro. That is clear from Article 136(1). That article does not contain a restriction, in the application of measures, deriving from the supposed budgetary sovereignty of the Member States.

| 4. | The fourth plea in law is derived from Article 222 TFEU.






  — | The applicant submits that the Commission’s decision is in direct conflict with the solidarity clause set out in Article 222 TFEU. |
| --- | --- | --- |

4.

The fourth plea in law is derived from Article 222 TFEU.

—

The applicant submits that the Commission’s decision is in direct conflict with the solidarity clause set out in Article 222 TFEU.

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| 22.12.2012 | EN | Official Journal of the European Union | C 399/25 |
| --- | --- | --- | --- |

22.12.2012

EN

Official Journal of the European Union

C 399/25

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Action brought on 12 October 2012 — Zoo Sport v OHIM — K-2 (zoo sport)

(Case T-455/12)

2012/C 399/48

Language in which the application was lodged: English

Parties

Applicant: Zoo Sport Ltd (Leeds, United Kingdom) (represented by: I. Rungg, lawyer)

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

Other party to the proceedings before the Board of Appeal: K-2 Corp. (Seattle, United States)

Form of order sought

The applicant claims that the Court should:

| — | Vary the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 9 August 2012 in case R 1395/2011-4, so as to reject the opposition in its entirety; and |
| --- | --- |

—

Vary the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 9 August 2012 in case R 1395/2011-4, so as to reject the opposition in its entirety; and

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

—

Order the defendant to bear the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The figurative mark in black and white ‘zoo sport’, for goods and services in classes 18, 25 and 35 — Community trade mark application No 8909293

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 in opposition: Community trade mark registration No 5233119 for the word mark ‘ZOOT’, for goods in classes 9 and 25; Community trade mark registration No 4719316 for the figurative mark in black and white ‘SPORTS ZOOT SPORTS’, for goods and services in classes 25, 35, 36 and 41

Decision of the Opposition Division: Upheld the opposition for part of the contested goods and services

Decision of the Board of Appeal: Partially annulled the contested decision

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

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