# Official Journal C 89/2011

| | ISSN 1725-2423
  doi:10.3000/17252423.C_2011.089.eng |
| --- | --- |
| Official Journal
  of the European Union | C 89 |
| | |
| English edition | Information and Notices | Volume 5419 March 2011 |

ISSN 1725-2423

doi:10.3000/17252423.C_2011.089.eng

Official Journal

of the European Union

C 89

English edition

Information and Notices

Volume 5419 March 2011

---

| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | Court of Justice of the European Union |
| 2011/C 089/01 | Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 80, 12.3.2011 | 1 |

Notice No

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

2011/C 089/01

Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 80, 12.3.2011

Official Journal of the European Union

1

| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2011/C 089/02 | Case C-449/09: Order of the Court (Fifth Chamber) of 28 October 2010 (reference for a preliminary ruling from the Sofiyski gradski sad — Bulgaria) — Canon Kabushiki Kaisha v IPN Bulgaria OOD (The first subparagraph of Article 104(3) of the Rules of Procedure — Trade marks — Directive 89/104/EEC — Right of the proprietor of a mark to oppose the first placing into circulation within the EEA, without his consent, of goods bearing that mark) | 2 |
| 2011/C 089/03 | Case C-73/10 P: Order of the Court of 16 November 2010 — Internationale Fruchtimport Gesellschaft Weichert GmbH & Co. KG v European Commission (Appeal — Competition — Commission Decision relating to a proceeding under Article 81 EC — Action for annulment — Time-limit — Action brought out of time — Reasons justifying derogation from the time-limit for bringing proceedings — Right of access to a court — Principles of legality and proportionality — Appeal clearly unfounded) | 2 |
| 2011/C 089/04 | Case C-156/10 P: Order of the Court (Seventh Chamber) of 15 December 2010 — Karen Goncharov v Office for Harmonisation in the Internal Market (Trade Marks and Designs), DSB (Appeals — Community trade mark — Marks consisting of acronyms — Earlier trade mark DSB — Word sign DSBW — Opposition proceedings — Relative ground for refusal — Examination of the likelihood of confusion — Visual similarity — Aural similarity — Inadmissibility — Assessment of the facts) | 3 |
| 2011/C 089/05 | Case C-204/10 P: Order of the Court of 23 November 2010 — Enercon GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Hasbro, Inc. (Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 8(1)(b) — Word mark ENERCON — Opposition of the proprietor of the word mark TRANSFORMERS ENERGON — Refusal to register — Likelihood of confusion) | 3 |
| 2011/C 089/06 | Case C-216/10 P: Order of the Court (Eighth Chamber) of 25 November 2010 — Lufthansa AirPlus Servicekarten GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Applus Servicios Technológicos SL (Appeal — Community trade mark — Regulation (EC) No 40/94 — Articles 8(1)(b) and (5), 73, 74 and 79 — Figurative mark A+ — Opposition by the proprietor of the Community word mark AirPlus International — Opposition rejected) | 4 |
| 2011/C 089/07 | Case C-352/10: Order of the Court (Fifth Chamber) of 15 December 2010 (reference for a preliminary ruling from the Audiencia Provincial de Oviedo — Spain) — Angel Lorenzo González Alonso v Nationale Nederlanden Vida Cia De Seguros y Reaseguros SAE (Reference for a preliminary ruling — Inadmissibility) | 4 |
| 2011/C 089/08 | Case C-583/10: Reference for a preliminary ruling from Court of Appeal (England & Wales) (Civil Division) made on 13 December 2010 — The United States of America v Christine Nolan | 4 |
| 2011/C 089/09 | Case C-586/10: Reference for a preliminary ruling from the Bundesarbeitsgericht (Germany) lodged on 15 December 2010 — Bianca Kücük v Land Nordrhein-Westfalen | 5 |
| 2011/C 089/10 | Case C-588/10: Reference for a preliminary ruling from the Naczelny Sąd Administracyjny (Polish Republic) lodged on 14 December 2010 — Minister Finansów v Kraft Foods Polska S.A. | 5 |
| 2011/C 089/11 | Case C-589/10: Reference for a preliminary ruling from the Sąd Pracy i Ubezpieczeń Społecznych w Białymstoku (Polish Republic) lodged on 14 December 2010 — Janina Wencel v Zakład Ubezpieczeń Społecznych w Białymstoku | 5 |
| 2011/C 089/12 | Case C-591/10: Reference for a preliminary ruling from High Court of Justice (Chancery Division) (United Kingdom) made on 14 December 2010 — Littlewoods Retail Ltd and others v Her Majesty's Commissioners of Revenue and Customs | 6 |
| 2011/C 089/13 | Case C-602/10: Reference for a preliminary ruling from the Judecătoria Călărași (Romania) lodged on 21 December 2010 — SC Volksbank România SA v Autoritatea Națională pentru Protecția Consumatorilor — Comisariatul Județean pentru Protecția Consumatorilor Călărași (CJPC) | 7 |
| 2011/C 089/14 | Case C-604/10: Reference for a preliminary ruling from Court of Appeal (England & Wales) (Civil Division) made on 21 December 2010 — Football Dataco Limited, Football Association Premier League Ltd, Football League Limited, Scottish Premier League Limited, Scottish Football League, PA Sport UK Limited v Yahoo UK Limited, Stan James (Abingdon) Limited, Stan James PLC, Enetpulse APS | 7 |
| 2011/C 089/15 | Case C-607/10: Action brought on 22 December 2010 — European Commission v Kingdom of Sweden | 8 |
| 2011/C 089/16 | Case C-609/10 P: Appeal brought on 23 December 2010 by Dieter C. Umbach against the judgment of the Court (Seventh Chamber) delivered on 21 October 2010 in Case T-474/08 Dieter C. Umbach v European Commission | 8 |
| 2011/C 089/17 | Case C-616/10: Reference for a preliminary ruling from the Rechtbank ‘s Gravenhage (Netherlands) lodged on 29 December 2010 — Solvay S.A. v Honeywell Fluorine Products Europe B.V. Honeywell Belgium N.V. Honeywell Europe N.V. | 9 |
| 2011/C 089/18 | Case C-629/10: Reference for a preliminary ruling from High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court) made on 24 December 2010 — TUI Travel plc, British Airways plc, easyJet Airline Co. Ltd, International Air Transport Association, The Queen v Civil Aviation Authority | 10 |
| 2011/C 089/19 | Case C-630/10: Reference for a preliminary ruling from High Court of Justice (Chancery Division) (United Kingdom) made on 24 December 2010 — University of Queensland, CSL Ltd v Comptroller-General of Patents, Designs and Trade Marks | 10 |
| 2011/C 089/20 | Case C-18/11: Reference for a preliminary ruling from Upper Tribunal (Tax and Chancery Chamber) (United Kingdom) made on 12 January 2011 — The Commissioners for Her Majesty's Revenue & Customs v Philips Electronics UK Ltd | 11 |
| 2011/C 089/21 | Case C-33/11: Reference for a preliminary ruling from the Supreme Administrative Court (Finland) lodged on 21 January 2011 — A Oy | 11 |
| 2011/C 089/22 | Case C-36/11: Reference for a preliminary ruling from the Consiglio di Stato — Second Chamber (Italy) lodged on 24 January 2011 — Pioneer HI-Bred Italia Srl v Ministero delle Politiche Agricole e Forestali | 12 |
| 2011/C 089/23 | Case C-349/09: Order of the President of the Third Chamber of the Court of 14 December 2010 — European Commission v Republic of Poland | 12 |
| 2011/C 089/24 | Case C-486/09: Order of the President of the Court of 17 November 2010 — European Commission v Italian Republic | 12 |
| 2011/C 089/25 | Case C-80/10: Order of the President of the Court of 12 November 2010 — European Commission v Hellenic Republic | 13 |
| 2011/C 089/26 | Case C-251/10 P: Order of the President of the Court of 9 November 2010 — KEK Diavlos v European Commission | 13 |
| 2011/C 089/27 | Case C-315/10: Order of the President of the Court of 16 November 2010 (reference for a preliminary ruling from the Tribunal da Relação do Porto (Portugal)) — Companhia Siderúrgica Nacional, CSN Cayman Ltd v Unifer Steel SL, BNP Paribas (Suisse), Colepccl (Portugal) SA, Banco Português de Investimento SA (BPI) | 13 |
| 2011/C 089/28 | Case C-353/10: Order of the President of the Court of 22 November 2010 — European Commission v Hellenic Republic | 13 |
| 2011/C 089/29 | Case C-394/10: Order of the President of the Court of 17 November 2010 — European Commission v Grand Duchy of Luxembourg | 13 |
| 2011/C 089/30 | Case C-398/10: Order of the President of the Court of 3 January 2011 — European Commission v Hellenic Republic | 13 |
| | General Court |
| 2011/C 089/31 | Case T-33/05: Judgment of the General Court of 3 February 2011 — Cetarsa v Commission (Competition — Agreements, decisions and concerted practices — Spanish market for the purchase and first processing of raw tobacco — Decision finding an infringement of Article 81 EC — Price fixing and market-sharing — Fines — Gravity and duration of the infringement — Equal treatment — Principle of proportionality — Maximum limit of 10 % of turnover — Cooperation) | 14 |
| 2011/C 089/32 | Case T-205/07: Judgment of the General Court of 3 February 2011 — Italy v Commission (Rules on the use of languages — Publication on EPSO’s website of a Call for expressions of interest to constitute a database of candidates to be recruited as contractual agents — Publication in three official languages — Articles 12 EC and 290 EC — Article 82 of the Conditions of Employment of other Servants — Regulation No 1) | 14 |
| 2011/C 089/33 | Case T-157/08: Judgment of the General Court of 8 February 2011 — Paroc v OHIM (INSULATE FOR LIFE) (Community trade mark — Application for Community word mark INSULATE FOR LIFE — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 40/94 (now Article 7(1)(b) of Regulation (EC) No 207/2009) — Merely confirmatory decision — Partial inadmissibility) | 15 |
| 2011/C 089/34 | Case T-584/08: Judgment of the General Court of 3 February 2011 — Cantiere Navale De Poli v Commission (State aid — Temporary defensive mechanism for shipbuilding — Alteration planned by the Italian authorities to an aid scheme previously authorised by the Commission — Decision declaring the aid scheme incompatible with the common market) | 15 |
| 2011/C 089/35 | Case T-3/09: Judgment of the General Court of 3 February 2011 — Italy v Commission (State aid — Temporary defensive mechanism for shipbuilding — Alteration planned by the Italian authorities to an aid scheme previously authorised by the Commission — Decision declaring the aid scheme incompatible with the common market) | 15 |
| 2011/C 089/36 | Case T-194/09: Judgment of the General Court of 8 February 2011 — Lan Airlines v OHIM — Air Nostrum (LÍNEAS AÉREAS Del MEDITERRÁNEO LAM) (Community trade mark — Opposition proceedings — Application for Community word mark LINEAS AEREAS DEL MEDITERRANEO LAM — Earlier Community word and figurative marks LAN — Relative ground for refusal — No likelihood of confusion — No similarity between the signs — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009)) | 16 |
| 2011/C 089/37 | Case T-222/09: Judgment of the General Court of 9 February 2011 — Ineos Healthcare v OHIM — Teva Pharmaceutical Industries (ALPHAREN) (Community trade mark — Opposition proceedings — Application for the Community word mark ALPHAREN — Earlier national word marks ALPHA D3 — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009) — Examination of the facts of its own motion — Article 74 of Regulation No 40/94 (now Article 76 of Regulation No 207/2009)) | 16 |
| 2011/C 089/38 | Case T-299/09 and T-300/09: Judgment of the General Court of 3 February 2011 — Gühring v OHIM (Combination of the colours broom yellow and silver grey and combination of the colours yellow ochre and silver grey) (Community trade mark — Application for a Community trade mark consisting of a combination of the colours broom yellow and silver grey — Application for a Community trade mark consisting of a combination of the colours yellow ochre and silver grey — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009 — Examination of the facts of the Court’s own motion — Article 76(1) of Regulation No 207/2009 — Obligation to state reasons — Article 75 of Regulation No 207/2009) | 16 |
| 2011/C 089/39 | Case T-136/10: Order of the General Court of 20 January 2011 — M v EMA (Action for damages — Lack of jurisdiction of the General Court — Referral back to the Civil Service Tribunal) | 17 |
| 2011/C 089/40 | Case T-587/10: Action brought on 29 December 2010 — Interspeed v Commission | 17 |
| 2011/C 089/41 | Case T-588/10: Action brought on 29 December 2010 — Hellenic Republic v Commission | 18 |
| 2011/C 089/42 | Case T-2/11: Action brought on 4 January 2011 — Portugal v Commission | 20 |
| 2011/C 089/43 | Case T-43/11: Action brought on 25 January 2011 — Singapore Airlines and Singapore Airlines Cargo PTE v Commission | 21 |
| 2011/C 089/44 | Case T-50/11: Action brought on 24 January 2011 — Fraas v OHIM (Dark grey, light grey, black, beige, dark red and light red coloured checked pattern) | 22 |
| 2011/C 089/45 | Case T-56/11: Action brought on 25 January 2011 — SAS Cargo Group and Others v Commission | 23 |
| 2011/C 089/46 | Case T-58/11 P: Appeal brought on 25 January 2011 by Michel Nolin against the judgment of the Civil Service Tribunal delivered on 1 December 2010 in Case F-82/09, Nolin v Commission | 23 |
| 2011/C 089/47 | Case T-59/11: Action brought on 31 January 2011 — ISOTIS v Commission | 24 |
| 2011/C 089/48 | Case T-61/11: Action brought on 28 January 2011 — Vermop Salmon v OHIM — Leifheit (Clean Twist) | 25 |
| 2011/C 089/49 | Case T-64/11: Action brought on 28 January 2011 — Run2Day Franchise v OHIM — Runners Point (Run2) | 25 |
| 2011/C 089/50 | Case T-66/11: Action brought on 28 January 2011 — Present Service Ullrich v OHIM — Punt-Nou (babilu) | 26 |
| 2011/C 089/51 | Case T-69/11: Action brought on 24 January 2011 — Truvo Belgium v OHIM — AOL (Truvo) | 26 |
| 2011/C 089/52 | Case T-76/11: Action brought on 2 February 2011 — Spain v Commission | 27 |
| 2011/C 089/53 | Case T-416/06: Order of the General Court of 21 January 2011 — Sumitomo Chemical Agro Europe v Commission | 27 |
| | European Union Civil Service Tribunal |
| 2011/C 089/54 | Case F-60/10: Order of the Civil Service Tribunal of 8 February 2011 — Chiavegato v Commission | 28 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2011/C 089/02

Case C-449/09: Order of the Court (Fifth Chamber) of 28 October 2010 (reference for a preliminary ruling from the Sofiyski gradski sad — Bulgaria) — Canon Kabushiki Kaisha v IPN Bulgaria OOD (The first subparagraph of Article 104(3) of the Rules of Procedure — Trade marks — Directive 89/104/EEC — Right of the proprietor of a mark to oppose the first placing into circulation within the EEA, without his consent, of goods bearing that mark)

2

2011/C 089/03

Case C-73/10 P: Order of the Court of 16 November 2010 — Internationale Fruchtimport Gesellschaft Weichert GmbH & Co. KG v European Commission (Appeal — Competition — Commission Decision relating to a proceeding under Article 81 EC — Action for annulment — Time-limit — Action brought out of time — Reasons justifying derogation from the time-limit for bringing proceedings — Right of access to a court — Principles of legality and proportionality — Appeal clearly unfounded)

2

2011/C 089/04

Case C-156/10 P: Order of the Court (Seventh Chamber) of 15 December 2010 — Karen Goncharov v Office for Harmonisation in the Internal Market (Trade Marks and Designs), DSB (Appeals — Community trade mark — Marks consisting of acronyms — Earlier trade mark DSB — Word sign DSBW — Opposition proceedings — Relative ground for refusal — Examination of the likelihood of confusion — Visual similarity — Aural similarity — Inadmissibility — Assessment of the facts)

3

2011/C 089/05

Case C-204/10 P: Order of the Court of 23 November 2010 — Enercon GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Hasbro, Inc. (Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 8(1)(b) — Word mark ENERCON — Opposition of the proprietor of the word mark TRANSFORMERS ENERGON — Refusal to register — Likelihood of confusion)

3

2011/C 089/06

Case C-216/10 P: Order of the Court (Eighth Chamber) of 25 November 2010 — Lufthansa AirPlus Servicekarten GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Applus Servicios Technológicos SL (Appeal — Community trade mark — Regulation (EC) No 40/94 — Articles 8(1)(b) and (5), 73, 74 and 79 — Figurative mark A+ — Opposition by the proprietor of the Community word mark AirPlus International — Opposition rejected)

4

2011/C 089/07

Case C-352/10: Order of the Court (Fifth Chamber) of 15 December 2010 (reference for a preliminary ruling from the Audiencia Provincial de Oviedo — Spain) — Angel Lorenzo González Alonso v Nationale Nederlanden Vida Cia De Seguros y Reaseguros SAE (Reference for a preliminary ruling — Inadmissibility)

4

2011/C 089/08

Case C-583/10: Reference for a preliminary ruling from Court of Appeal (England & Wales) (Civil Division) made on 13 December 2010 — The United States of America v Christine Nolan

4

2011/C 089/09

Case C-586/10: Reference for a preliminary ruling from the Bundesarbeitsgericht (Germany) lodged on 15 December 2010 — Bianca Kücük v Land Nordrhein-Westfalen

5

2011/C 089/10

Case C-588/10: Reference for a preliminary ruling from the Naczelny Sąd Administracyjny (Polish Republic) lodged on 14 December 2010 — Minister Finansów v Kraft Foods Polska S.A.

5

2011/C 089/11

Case C-589/10: Reference for a preliminary ruling from the Sąd Pracy i Ubezpieczeń Społecznych w Białymstoku (Polish Republic) lodged on 14 December 2010 — Janina Wencel v Zakład Ubezpieczeń Społecznych w Białymstoku

5

2011/C 089/12

Case C-591/10: Reference for a preliminary ruling from High Court of Justice (Chancery Division) (United Kingdom) made on 14 December 2010 — Littlewoods Retail Ltd and others v Her Majesty's Commissioners of Revenue and Customs

6

2011/C 089/13

Case C-602/10: Reference for a preliminary ruling from the Judecătoria Călărași (Romania) lodged on 21 December 2010 — SC Volksbank România SA v Autoritatea Națională pentru Protecția Consumatorilor — Comisariatul Județean pentru Protecția Consumatorilor Călărași (CJPC)

7

2011/C 089/14

Case C-604/10: Reference for a preliminary ruling from Court of Appeal (England & Wales) (Civil Division) made on 21 December 2010 — Football Dataco Limited, Football Association Premier League Ltd, Football League Limited, Scottish Premier League Limited, Scottish Football League, PA Sport UK Limited v Yahoo UK Limited, Stan James (Abingdon) Limited, Stan James PLC, Enetpulse APS

7

2011/C 089/15

Case C-607/10: Action brought on 22 December 2010 — European Commission v Kingdom of Sweden

8

2011/C 089/16

Case C-609/10 P: Appeal brought on 23 December 2010 by Dieter C. Umbach against the judgment of the Court (Seventh Chamber) delivered on 21 October 2010 in Case T-474/08 Dieter C. Umbach v European Commission

8

2011/C 089/17

Case C-616/10: Reference for a preliminary ruling from the Rechtbank ‘s Gravenhage (Netherlands) lodged on 29 December 2010 — Solvay S.A. v Honeywell Fluorine Products Europe B.V. Honeywell Belgium N.V. Honeywell Europe N.V.

9

2011/C 089/18

Case C-629/10: Reference for a preliminary ruling from High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court) made on 24 December 2010 — TUI Travel plc, British Airways plc, easyJet Airline Co. Ltd, International Air Transport Association, The Queen v Civil Aviation Authority

10

2011/C 089/19

Case C-630/10: Reference for a preliminary ruling from High Court of Justice (Chancery Division) (United Kingdom) made on 24 December 2010 — University of Queensland, CSL Ltd v Comptroller-General of Patents, Designs and Trade Marks

10

2011/C 089/20

Case C-18/11: Reference for a preliminary ruling from Upper Tribunal (Tax and Chancery Chamber) (United Kingdom) made on 12 January 2011 — The Commissioners for Her Majesty's Revenue & Customs v Philips Electronics UK Ltd

11

2011/C 089/21

Case C-33/11: Reference for a preliminary ruling from the Supreme Administrative Court (Finland) lodged on 21 January 2011 — A Oy

11

2011/C 089/22

Case C-36/11: Reference for a preliminary ruling from the Consiglio di Stato — Second Chamber (Italy) lodged on 24 January 2011 — Pioneer HI-Bred Italia Srl v Ministero delle Politiche Agricole e Forestali

12

2011/C 089/23

Case C-349/09: Order of the President of the Third Chamber of the Court of 14 December 2010 — European Commission v Republic of Poland

12

2011/C 089/24

Case C-486/09: Order of the President of the Court of 17 November 2010 — European Commission v Italian Republic

12

2011/C 089/25

Case C-80/10: Order of the President of the Court of 12 November 2010 — European Commission v Hellenic Republic

13

2011/C 089/26

Case C-251/10 P: Order of the President of the Court of 9 November 2010 — KEK Diavlos v European Commission

13

2011/C 089/27

Case C-315/10: Order of the President of the Court of 16 November 2010 (reference for a preliminary ruling from the Tribunal da Relação do Porto (Portugal)) — Companhia Siderúrgica Nacional, CSN Cayman Ltd v Unifer Steel SL, BNP Paribas (Suisse), Colepccl (Portugal) SA, Banco Português de Investimento SA (BPI)

13

2011/C 089/28

Case C-353/10: Order of the President of the Court of 22 November 2010 — European Commission v Hellenic Republic

13

2011/C 089/29

Case C-394/10: Order of the President of the Court of 17 November 2010 — European Commission v Grand Duchy of Luxembourg

13

2011/C 089/30

Case C-398/10: Order of the President of the Court of 3 January 2011 — European Commission v Hellenic Republic

13

General Court

2011/C 089/31

Case T-33/05: Judgment of the General Court of 3 February 2011 — Cetarsa v Commission (Competition — Agreements, decisions and concerted practices — Spanish market for the purchase and first processing of raw tobacco — Decision finding an infringement of Article 81 EC — Price fixing and market-sharing — Fines — Gravity and duration of the infringement — Equal treatment — Principle of proportionality — Maximum limit of 10 % of turnover — Cooperation)

14

2011/C 089/32

Case T-205/07: Judgment of the General Court of 3 February 2011 — Italy v Commission (Rules on the use of languages — Publication on EPSO’s website of a Call for expressions of interest to constitute a database of candidates to be recruited as contractual agents — Publication in three official languages — Articles 12 EC and 290 EC — Article 82 of the Conditions of Employment of other Servants — Regulation No 1)

14

2011/C 089/33

Case T-157/08: Judgment of the General Court of 8 February 2011 — Paroc v OHIM (INSULATE FOR LIFE) (Community trade mark — Application for Community word mark INSULATE FOR LIFE — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 40/94 (now Article 7(1)(b) of Regulation (EC) No 207/2009) — Merely confirmatory decision — Partial inadmissibility)

15

2011/C 089/34

Case T-584/08: Judgment of the General Court of 3 February 2011 — Cantiere Navale De Poli v Commission (State aid — Temporary defensive mechanism for shipbuilding — Alteration planned by the Italian authorities to an aid scheme previously authorised by the Commission — Decision declaring the aid scheme incompatible with the common market)

15

2011/C 089/35

Case T-3/09: Judgment of the General Court of 3 February 2011 — Italy v Commission (State aid — Temporary defensive mechanism for shipbuilding — Alteration planned by the Italian authorities to an aid scheme previously authorised by the Commission — Decision declaring the aid scheme incompatible with the common market)

15

2011/C 089/36

Case T-194/09: Judgment of the General Court of 8 February 2011 — Lan Airlines v OHIM — Air Nostrum (LÍNEAS AÉREAS Del MEDITERRÁNEO LAM) (Community trade mark — Opposition proceedings — Application for Community word mark LINEAS AEREAS DEL MEDITERRANEO LAM — Earlier Community word and figurative marks LAN — Relative ground for refusal — No likelihood of confusion — No similarity between the signs — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))

16

2011/C 089/37

Case T-222/09: Judgment of the General Court of 9 February 2011 — Ineos Healthcare v OHIM — Teva Pharmaceutical Industries (ALPHAREN) (Community trade mark — Opposition proceedings — Application for the Community word mark ALPHAREN — Earlier national word marks ALPHA D3 — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009) — Examination of the facts of its own motion — Article 74 of Regulation No 40/94 (now Article 76 of Regulation No 207/2009))

16

2011/C 089/38

Case T-299/09 and T-300/09: Judgment of the General Court of 3 February 2011 — Gühring v OHIM (Combination of the colours broom yellow and silver grey and combination of the colours yellow ochre and silver grey) (Community trade mark — Application for a Community trade mark consisting of a combination of the colours broom yellow and silver grey — Application for a Community trade mark consisting of a combination of the colours yellow ochre and silver grey — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009 — Examination of the facts of the Court’s own motion — Article 76(1) of Regulation No 207/2009 — Obligation to state reasons — Article 75 of Regulation No 207/2009)

16

2011/C 089/39

Case T-136/10: Order of the General Court of 20 January 2011 — M v EMA (Action for damages — Lack of jurisdiction of the General Court — Referral back to the Civil Service Tribunal)

17

2011/C 089/40

Case T-587/10: Action brought on 29 December 2010 — Interspeed v Commission

17

2011/C 089/41

Case T-588/10: Action brought on 29 December 2010 — Hellenic Republic v Commission

18

2011/C 089/42

Case T-2/11: Action brought on 4 January 2011 — Portugal v Commission

20

2011/C 089/43

Case T-43/11: Action brought on 25 January 2011 — Singapore Airlines and Singapore Airlines Cargo PTE v Commission

21

2011/C 089/44

Case T-50/11: Action brought on 24 January 2011 — Fraas v OHIM (Dark grey, light grey, black, beige, dark red and light red coloured checked pattern)

22

2011/C 089/45

Case T-56/11: Action brought on 25 January 2011 — SAS Cargo Group and Others v Commission

23

2011/C 089/46

Case T-58/11 P: Appeal brought on 25 January 2011 by Michel Nolin against the judgment of the Civil Service Tribunal delivered on 1 December 2010 in Case F-82/09, Nolin v Commission

23

2011/C 089/47

Case T-59/11: Action brought on 31 January 2011 — ISOTIS v Commission

24

2011/C 089/48

Case T-61/11: Action brought on 28 January 2011 — Vermop Salmon v OHIM — Leifheit (Clean Twist)

25

2011/C 089/49

Case T-64/11: Action brought on 28 January 2011 — Run2Day Franchise v OHIM — Runners Point (Run2)

25

2011/C 089/50

Case T-66/11: Action brought on 28 January 2011 — Present Service Ullrich v OHIM — Punt-Nou (babilu)

26

2011/C 089/51

Case T-69/11: Action brought on 24 January 2011 — Truvo Belgium v OHIM — AOL (Truvo)

26

2011/C 089/52

Case T-76/11: Action brought on 2 February 2011 — Spain v Commission

27

2011/C 089/53

Case T-416/06: Order of the General Court of 21 January 2011 — Sumitomo Chemical Agro Europe v Commission

27

European Union Civil Service Tribunal

2011/C 089/54

Case F-60/10: Order of the Civil Service Tribunal of 8 February 2011 — Chiavegato v Commission

28

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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

| 19.3.2011 | EN | Official Journal of the European Union | C 89/1 |
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19.3.2011

EN

Official Journal of the European Union

C 89/1

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2011/C 89/01

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

OJ C 80, 12.3.2011

Past publications

OJ C 72, 5.3.2011

OJ C 63, 26.2.2011

OJ C 55, 19.2.2011

OJ C 46, 12.2.2011

OJ C 38, 5.2.2011

OJ C 30, 29.1.2011

These texts are available on:

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

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V Announcements

COURT PROCEEDINGS

Court of Justice

| 19.3.2011 | EN | Official Journal of the European Union | C 89/2 |
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19.3.2011

EN

Official Journal of the European Union

C 89/2

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Order of the Court (Fifth Chamber) of 28 October 2010 (reference for a preliminary ruling from the Sofiyski gradski sad — Bulgaria) — Canon Kabushiki Kaisha v IPN Bulgaria OOD

(Case C-449/09) (1)

(The first subparagraph of Article 104(3) of the Rules of Procedure - Trade marks - Directive 89/104/EEC - Right of the proprietor of a mark to oppose the first placing into circulation within the EEA, without his consent, of goods bearing that mark)

2011/C 89/02

Language of the case: Bulgarian

Referring court

Sofiyski gradski sad

Parties to the main proceedings

Applicant: Canon Kabushiki Kaisha

Defendant: IPN Bulgaria OOD

Re:

Reference for a preliminary ruling — Sofiyski gradski sad — Interpretation of Article 5, in conjunction with Article 7 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) — Parallel imports of original goods without the consent of the proprietor of the right conferred by the mark — Possibility for that proprietor to prevent the use in the course of trade, without his consent, of a sign identical to the mark — Proprietor’s right not exhausted

Operative part of the order

Article 5 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 trade mark proprietor may oppose the first placing into circulation in the course of trade in the European Economic Area, without his consent, of original goods bearing that mark.

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(1)  OJ C 100, 17.4.2010.

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| 19.3.2011 | EN | Official Journal of the European Union | C 89/2 |
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19.3.2011

EN

Official Journal of the European Union

C 89/2

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Order of the Court of 16 November 2010 — Internationale Fruchtimport Gesellschaft Weichert GmbH & Co. KG v European Commission

(Case C-73/10 P) (1)

(Appeal - Competition - Commission Decision relating to a proceeding under Article 81 EC - Action for annulment - Time-limit - Action brought out of time - Reasons justifying derogation from the time-limit for bringing proceedings - Right of access to a court - Principles of legality and proportionality - Appeal clearly unfounded)

2011/C 89/03

Language of the case: English

Parties

Appellant: Internationale Fruchtimport Gesellschaft Weichert GmbH & Co. KG (represented by: A. Rinne, Rechtsanwalt, S. Kon and C. Humpe, Solicitors, and C. Vajda QC)

Other party to the proceedings: European Commission (represented by: M. Kellerbauer and A. Biolan, Agents)

Re:

Appeal against the judgment of the Court of First Instance (Eighth Chamber) of 30 November 2009 in Case T-2/09 Internationale Fruchtimport Gesellschaft Weichert & Co. KG v Commission of the European Communities dismissing, as manifestly inadmissible, an action for partial annulment of Commission Decision C(2008) 5955 final of 15 October 2008 relating to a proceeding under Article 81 EC (Case COMP/39.188 — Bananas) concerning a cartel on a part of the European market in bananas, or, in the alternative, annulling or reducing the fine imposed on the applicant — Time-limit for bringing an action — Lateness

Operative part of the order

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

1.

The appeal is dismissed.

| 2. | Internationale Fruchtimport Gesellschaft Weichert GmbH & Co. KG shall pay the costs. |
| --- | --- |

2.

Internationale Fruchtimport Gesellschaft Weichert GmbH & Co. KG shall pay the costs.

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(1)  OJ C 80, 27.3.2010.

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| 19.3.2011 | EN | Official Journal of the European Union | C 89/3 |
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19.3.2011

EN

Official Journal of the European Union

C 89/3

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Order of the Court (Seventh Chamber) of 15 December 2010 — Karen Goncharov v Office for Harmonisation in the Internal Market (Trade Marks and Designs), DSB

(Case C-156/10 P) (1)

(Appeals - Community trade mark - Marks consisting of acronyms - Earlier trade mark DSB - Word sign ‘DSBW’ - Opposition proceedings - Relative ground for refusal - Examination of the likelihood of confusion - Visual similarity - Aural similarity - Inadmissibility - Assessment of the facts)

2011/C 89/04

Language of the case: German

Parties

Appellant: Karen Goncharov (represented by: A. Späth, Rechtsanwalt)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: B. Schmidt, acting as Agent), DSB (represented by: T. Graf, Rechtsanwalt)

Re:

Appeal against the judgment of the General Court (Fourth Chamber) of 21 January 2010 in Case T-34/07 Goncharov v OHIM — DSB (DSBW) by which the General Court dismissed the action for annulment of the decision of the Second Board of Appeal of OHIM of 4 December 2006, which refused registration of the word sign ‘DSBW’ as a Community trade mark for certain goods in Classes 39, 41 and 43 and upheld the opposition of the proprietor of the earlier Community word mark ‘DSB’ — Likelihood of confusion — Account not taken, during the examination of the likelihood of confusion, of the particularities of marks consisting of acronyms — Infringement of Article 8(1)(b) of Regulation (EC) No 40/94

Operative part of the order

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

1.

The appeal is dismissed.

| 2. | Mr Goncharov is ordered to pay the costs. |
| --- | --- |

2.

Mr Goncharov is ordered to pay the costs.

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(1)  OJ C 148, 5.6.2010.

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| 19.3.2011 | EN | Official Journal of the European Union | C 89/3 |
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19.3.2011

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Official Journal of the European Union

C 89/3

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Order of the Court of 23 November 2010 — Enercon GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Hasbro, Inc.

(Case C-204/10 P) (1)

(Appeal - Community trade mark - Regulation (EC) No 40/94 - Article 8(1)(b) - Word mark ENERCON - Opposition of the proprietor of the word mark TRANSFORMERS ENERGON - Refusal to register - Likelihood of confusion)

2011/C 89/05

Language of the case: English

Parties

Appellant: Enercon GmbH (represented by: J. Mellor, Barrister, and R. Böhm, Rechtsanwalt)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (represented by: D. Botis, Agent), Hasbro, Inc.

Re:

Appeal brought against the judgment of the General Court (Sixth Chamber) of 3 February 2010 in Case T-472/07 Enercon v OHIM by which the General Court dismissed an action for annulment brought by the applicant for the word mark ‘ENERCON’, for goods in Classes 16, 18, 24, 25, 28 and 32, against Decision R 959/2006-4 of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 25 October 2007, dismissing the appeal brought by the applicant against the Opposition Division’s decision which refused registration of that mark in the context of the opposition brought by the proprietor of the Community word mark ‘TRANSFORMERS ENERGON’, for goods in Classes 16, 18, 24, 25, 28, 30 and 32, and the unregistered marks ‘TRANSFORMERS ENERGON’ and ‘ENERGON’ used in the United Kingdom for similar goods — Infringement of Article 8(1)(c) of Regulation (EC) No 40/94

Operative part of the order

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

1.

The appeal is dismissed.

| 2. | Enercon GmbH shall pay the costs. |
| --- | --- |

2.

Enercon GmbH shall pay the costs.

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(1)  OJ C 179, 3.7.2010.

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| 19.3.2011 | EN | Official Journal of the European Union | C 89/4 |
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19.3.2011

EN

Official Journal of the European Union

C 89/4

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Order of the Court (Eighth Chamber) of 25 November 2010 — Lufthansa AirPlus Servicekarten GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Applus Servicios Technológicos SL

(Case C-216/10 P) (1)

(Appeal - Community trade mark - Regulation (EC) No 40/94 - Articles 8(1)(b) and (5), 73, 74 and 79 - Figurative mark A+ - Opposition by the proprietor of the Community word mark AirPlus International - Opposition rejected)

2011/C 89/06

Language of the case: English

Parties

Appellant: Lufthansa AirPlus Servicekarten GmbH (represented by: R. Kunze, Rechtsanwalt)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: D. Botis, Agent), Applus Servicios Technológicos SL

Re:

Appeal against the judgment of the General Court (Sixth Chamber) of 3 March 2010 in Case T-321/07 Lufthansa AirPlus Servicekarten GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and Applus Servicios Tecnológicos by which that court dismissed an action brought by the proprietor of the Community word mark ‘AirPlus International’ for goods and services in Classes 9, 35, 36 and 42 against Decision R 310/2006-2 of the Second Board of Appeal of OHIM of 7 June 2007 dismissing the appeal against the Opposition Division’s decision rejecting the opposition brought by the appellant against the application for registration of the figurative mark ‘A+’ for goods and services in Classes 9, 35, 36, 37, 40, 41 and 42

Operative part of the order

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

1.

The appeal is dismissed.

| 2. | Lufthansa AirPlus Servicekarten GmbH shall pay the costs. |
| --- | --- |

2.

Lufthansa AirPlus Servicekarten GmbH shall pay the costs.

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(1)  OJ C 179, 3.7.2010.

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| 19.3.2011 | EN | Official Journal of the European Union | C 89/4 |
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19.3.2011

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Official Journal of the European Union

C 89/4

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Order of the Court (Fifth Chamber) of 15 December 2010 (reference for a preliminary ruling from the Audiencia Provincial de Oviedo — Spain) — Angel Lorenzo González Alonso v Nationale Nederlanden Vida Cia De Seguros y Reaseguros SAE

(Case C-352/10) (1)

(Reference for a preliminary ruling - Inadmissibility)

2011/C 89/07

Language of the case: Spanish

Referring court

Audiencia Provincial de Oviedo

Parties to the main proceedings

Applicant: Angel Lorenzo González Alonso

Defendant: Nationale Nederlanden Vida Cia De Seguros y Reaseguros SAE

Re:

Reference for a preliminary ruling — Audiencia Provincial de Oviedo — Interpretation of Article 3(2)(d) of Council Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises (OJ 1985 L 372, p. 31) — Contract, concluded away from business premises, under which life assurance is offered in return for payment of a monthly premium invested in various products of the company itself

Operative part of the order

The reference for a preliminary ruling made by the Audiencia Provincial de Oviedo by decision of 22 June 2010 is manifestly inadmissible.

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(1)  OJ C 288, 23.10.2010.

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| 19.3.2011 | EN | Official Journal of the European Union | C 89/4 |
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19.3.2011

EN

Official Journal of the European Union

C 89/4

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Reference for a preliminary ruling from Court of Appeal (England & Wales) (Civil Division) made on 13 December 2010 — The United States of America v Christine Nolan

(Case C-583/10)

2011/C 89/08

Language of the case: English

Referring court

Court of Appeal (England & Wales) (Civil Division)

Parties to the main proceedings

Applicant: The United States of America

Defendant: Christine Nolan

Question referred

Does the employer's obligation to consult about collective redundancies, pursuant to Directive 98/59/EC (1), arise (i) when the employer is proposing, but has not yet made, a strategic business or operational decision that will foreseeably or inevitably lead to collective redundancies; or (ii) only when that decision has actually been made and he is then proposing consequential redundancies?

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(1)  Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies

OJ L 225, p. 16

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| 19.3.2011 | EN | Official Journal of the European Union | C 89/5 |
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19.3.2011

EN

Official Journal of the European Union

C 89/5

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Reference for a preliminary ruling from the Bundesarbeitsgericht (Germany) lodged on 15 December 2010 — Bianca Kücük v Land Nordrhein-Westfalen

(Case C-586/10)

2011/C 89/09

Language of the case: German

Referring court

Bundesarbeitsgericht

Parties to the main proceedings

Applicant: Bianca Kücük

Defendant: Land Nordrhein-Westfalen

Questions referred

| 1. | Is it in breach of clause 5(1) of the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP in the Annex to Council Directive 1999/70/EC of 28 June 1999 (1) for a national provision, which — like point 3 of the second sentence of Paragraph 14(1) of the Teilzeit- und Befristungsgesetz (Law on part-time working and fixed-term contracts, ‘the TzBfG’) — provides that there are objective grounds for repeated fixed-term work where one employee replaces another, to be interpreted and applied to mean that there are also objective grounds where there is a permanent need for a replacement although the need for a replacement could also be met by the employee concerned being employed for an indefinite duration and the replacement duties of one of the regular staff lost being assigned to him, but the employer reserves the right to decide anew in each case how it is to respond to a specific loss of staff? |
| --- | --- |

1.

Is it in breach of clause 5(1) of the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP in the Annex to Council Directive 1999/70/EC of 28 June 1999 (1) for a national provision, which — like point 3 of the second sentence of Paragraph 14(1) of the Teilzeit- und Befristungsgesetz (Law on part-time working and fixed-term contracts, ‘the TzBfG’) — provides that there are objective grounds for repeated fixed-term work where one employee replaces another, to be interpreted and applied to mean that there are also objective grounds where there is a permanent need for a replacement although the need for a replacement could also be met by the employee concerned being employed for an indefinite duration and the replacement duties of one of the regular staff lost being assigned to him, but the employer reserves the right to decide anew in each case how it is to respond to a specific loss of staff?

If the answer to the first question should be in the affirmative:

| 2. | Is such interpretation and application of a national provision such as point 3 of the second sentence of Paragraph 14(1) TzBfG, as per the first question, in breach of clause 5(1) of the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP in the Annex to Council Directive 1999/70/EC of 28 June 1999 in the circumstances described in the first question even where the national legislature, with the replacement-type objective reason provided for in a national provision such as Paragraph 21(1) of the Bundeselterngeld- und Elternzeitgesetz (Law on parental leave and benefit, ‘BEEG’) justifying fixed-term work, also pursues the social-policy objective of making it easier for an employer to grant special leave and for an employee to avail him/herself of it for reasons of maternity protection or parenting, for instance? |
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2.

Is such interpretation and application of a national provision such as point 3 of the second sentence of Paragraph 14(1) TzBfG, as per the first question, in breach of clause 5(1) of the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP in the Annex to Council Directive 1999/70/EC of 28 June 1999 in the circumstances described in the first question even where the national legislature, with the replacement-type objective reason provided for in a national provision such as Paragraph 21(1) of the Bundeselterngeld- und Elternzeitgesetz (Law on parental leave and benefit, ‘BEEG’) justifying fixed-term work, also pursues the social-policy objective of making it easier for an employer to grant special leave and for an employee to avail him/herself of it for reasons of maternity protection or parenting, for instance?

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(1)  OJ 1999 L 175, p. 43

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| 19.3.2011 | EN | Official Journal of the European Union | C 89/5 |
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19.3.2011

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Official Journal of the European Union

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Reference for a preliminary ruling from the Naczelny Sąd Administracyjny (Polish Republic) lodged on 14 December 2010 — Minister Finansów v Kraft Foods Polska S.A.

(Case C-588/10)

2011/C 89/10

Language of the case: Polish

Referring court

Naczelny Sąd Administracyjny

Parties to the main proceedings

Applicant: Minister Finansów

Defendant: Kraft Foods Polska SA

Question referred

In view of the fact that Article 90(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (1) provides that where the price is reduced after the supply takes place, the taxable amount is to be reduced accordingly under conditions which are to be determined by the Member States, does the concept of these conditions cover a condition such as that provided for in Article 29(4a) of the Ustawa o podatku od towarów i usług (Law on turnover tax) of 11 March 2004 (Dziennik Ustaw No 54, item 535, as amended), which makes the right to reduce the taxable amount in relation to the amount set out in an invoice contingent on holding, before the expiry of the time limit for submitting a tax declaration for the accounting period in which the purchaser of the product or service received a correcting invoice, acknowledgement of receipt of the correcting invoice by the purchaser of the product or service in respect of which the invoice was issued, and does it infringe the principle of VAT neutrality and proportionality?

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

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| 19.3.2011 | EN | Official Journal of the European Union | C 89/5 |
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19.3.2011

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Official Journal of the European Union

C 89/5

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Reference for a preliminary ruling from the Sąd Pracy i Ubezpieczeń Społecznych w Białymstoku (Polish Republic) lodged on 14 December 2010 — Janina Wencel v Zakład Ubezpieczeń Społecznych w Białymstoku

(Case C-589/10)

2011/C 89/11

Language of the case: Polish

Referring court

Sąd Pracy i Ubezpieczeń Społecznych w Białymstoku

Parties to the main proceedings

Applicant: Janina Wencel

Defendant: Zakład Ubezpieczeń Społecznych w Białymstoku

Questions referred

| 1. | Does the principle of freedom of movement and residence in the Member States of the European Union, as expressed in Articles 21 and 20(2) of the Treaty on the Functioning of the European Union, mean that Article 10 of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (1) must be interpreted as meaning that old-age cash benefits acquired under the legislation of one Member State are not to be subject to any reduction, modification, suspension, withdrawal or confiscation by reason of the fact that the recipient lived simultaneously (had two equivalent habitual residences) in the territory of two Member States, including of one other than that in which the institution responsible for payment of the retirement pension is situated? |
| --- | --- |

1.

Does the principle of freedom of movement and residence in the Member States of the European Union, as expressed in Articles 21 and 20(2) of the Treaty on the Functioning of the European Union, mean that Article 10 of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (1) must be interpreted as meaning that old-age cash benefits acquired under the legislation of one Member State are not to be subject to any reduction, modification, suspension, withdrawal or confiscation by reason of the fact that the recipient lived simultaneously (had two equivalent habitual residences) in the territory of two Member States, including of one other than that in which the institution responsible for payment of the retirement pension is situated?

| 2. | Must Articles 21 and 20(2) of the Treaty on the Functioning of the European Union and Article 10 of Council Regulation (EEC) No 1408/71 be interpreted as precluding the application of national provision Article 114(1) of the Ustawa o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych (Polish Law on retirement pensions and other pensions from the Social Security Fund) of 17 December 1998 (Dziennik Ustaw of 2009, No 153, item 1227, as amended), in conjunction with Article 4 of the Agreement of 9 October 1975 between the People’s Republic of Poland and the Federal Republic of Germany on pension and accident insurance (Dziennik Ustaw No 16, item 101, of 1976, as amended), which entails re-examination of the case by the Polish pension institution and removal of the pension right of a person who, for many years, has had simultaneously two habitual residences (two centres of interest) in two countries now belonging to the European Union and who did not, prior to 2009, submit an application or declaration concerning the transfer of residence to one of those countries?
  In the event that the answer is in the negative: |
| --- | --- |

2.

Must Articles 21 and 20(2) of the Treaty on the Functioning of the European Union and Article 10 of Council Regulation (EEC) No 1408/71 be interpreted as precluding the application of national provision Article 114(1) of the Ustawa o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych (Polish Law on retirement pensions and other pensions from the Social Security Fund) of 17 December 1998 (Dziennik Ustaw of 2009, No 153, item 1227, as amended), in conjunction with Article 4 of the Agreement of 9 October 1975 between the People’s Republic of Poland and the Federal Republic of Germany on pension and accident insurance (Dziennik Ustaw No 16, item 101, of 1976, as amended), which entails re-examination of the case by the Polish pension institution and removal of the pension right of a person who, for many years, has had simultaneously two habitual residences (two centres of interest) in two countries now belonging to the European Union and who did not, prior to 2009, submit an application or declaration concerning the transfer of residence to one of those countries?

In the event that the answer is in the negative:

| 3. | Must Articles 20(2) and 21 of the Treaty on the Functioning of the European Union and Article 10 of Council Regulation No 1408/71 be interpreted as precluding the application of national provision Article 138(1) and (2) of the Ustawa o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych of 17 December 1998 (Dziennik Ustaw of 2009, No 153, item 1227, as amended), which entails the demanding by the Polish pension institution of repayment of a retirement pension in respect of the period of the last three years from a person who, from 1975 to 2009 had simultaneously two habitual residences (two centres of interest) in two countries now belonging to the European Union, where that person had not, at the time the application for the grant of a retirement pension was examined and after it was received, been advised by the Polish insurance institution of the need to inform it also that he has two habitual residences in two countries and of the need to submit an application or declaration concerning the choice of an insurance institution of one of those countries as competent to consider applications concerning retirement pensions? |
| --- | --- |

3.

Must Articles 20(2) and 21 of the Treaty on the Functioning of the European Union and Article 10 of Council Regulation No 1408/71 be interpreted as precluding the application of national provision Article 138(1) and (2) of the Ustawa o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych of 17 December 1998 (Dziennik Ustaw of 2009, No 153, item 1227, as amended), which entails the demanding by the Polish pension institution of repayment of a retirement pension in respect of the period of the last three years from a person who, from 1975 to 2009 had simultaneously two habitual residences (two centres of interest) in two countries now belonging to the European Union, where that person had not, at the time the application for the grant of a retirement pension was examined and after it was received, been advised by the Polish insurance institution of the need to inform it also that he has two habitual residences in two countries and of the need to submit an application or declaration concerning the choice of an insurance institution of one of those countries as competent to consider applications concerning retirement pensions?

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

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| 19.3.2011 | EN | Official Journal of the European Union | C 89/6 |
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19.3.2011

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Official Journal of the European Union

C 89/6

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Reference for a preliminary ruling from High Court of Justice (Chancery Division) (United Kingdom) made on 14 December 2010 — Littlewoods Retail Ltd and others v Her Majesty's Commissioners of Revenue and Customs

(Case C-591/10)

2011/C 89/12

Language of the case: English

Referring court

High Court of Justice (Chancery Division)

Parties to the main proceedings

Applicants: Littlewoods Retail Ltd and others

Defendant: Her Majesty's Commissioners of Revenue and Customs

Questions referred

| 1. | Where a taxable person has overpaid VAT which was collected by the Member State contrary to the requirements of EU VAT legislation, does the remedy provided by a Member State accord with EU law if that remedy provides only for (a) reimbursement of the principal sums overpaid, and (b) simple interest on those sums in accordance with national legislation, such as section 78 of the Value Added Tax Act 1994? |
| --- | --- |

1.

Where a taxable person has overpaid VAT which was collected by the Member State contrary to the requirements of EU VAT legislation, does the remedy provided by a Member State accord with EU law if that remedy provides only for (a) reimbursement of the principal sums overpaid, and (b) simple interest on those sums in accordance with national legislation, such as section 78 of the Value Added Tax Act 1994?

| 2. | If not, does EU law require that the remedy provided by a Member State should provide for (a) reimbursement of the principal sums overpaid, and (b) payment of compound interest as the measure of the use value of the sums overpaid in the hands of the Member State and/or the loss of the use value of the money in the hands of the taxpayer? |
| --- | --- |

2.

If not, does EU law require that the remedy provided by a Member State should provide for (a) reimbursement of the principal sums overpaid, and (b) payment of compound interest as the measure of the use value of the sums overpaid in the hands of the Member State and/or the loss of the use value of the money in the hands of the taxpayer?

| 3. | If the answer to both questions 1 and 2 is in the negative, what must the remedy that EU law requires the Member State to provide include, in addition to reimbursement of the principal sums overpaid, in respect of the use value of the overpayment and/or interest? |
| --- | --- |

3.

If the answer to both questions 1 and 2 is in the negative, what must the remedy that EU law requires the Member State to provide include, in addition to reimbursement of the principal sums overpaid, in respect of the use value of the overpayment and/or interest?

| 4. | If the answer to question 1 is in the negative, does the EU law principle of effectiveness require a member state to disapply national law restrictions (such as sections 78 and 80 of the Value Added Tax Act 1994) on any domestic claims or remedies that would otherwise be available to the taxable person to vindicate the EU law right established in the Court of Justice's answer to the first 3 questions, or is it sufficient that the national court disapplies such restrictions only in respect of one of these domestic claims or remedies? What other principles should guide the national court in giving effect to this EU law right so as to accord with the EU law principle of effectiveness? |
| --- | --- |

4.

If the answer to question 1 is in the negative, does the EU law principle of effectiveness require a member state to disapply national law restrictions (such as sections 78 and 80 of the Value Added Tax Act 1994) on any domestic claims or remedies that would otherwise be available to the taxable person to vindicate the EU law right established in the Court of Justice's answer to the first 3 questions, or is it sufficient that the national court disapplies such restrictions only in respect of one of these domestic claims or remedies? What other principles should guide the national court in giving effect to this EU law right so as to accord with the EU law principle of effectiveness?

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| 19.3.2011 | EN | Official Journal of the European Union | C 89/7 |
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19.3.2011

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Official Journal of the European Union

C 89/7

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Reference for a preliminary ruling from the Judecătoria Călărași (Romania) lodged on 21 December 2010 — SC Volksbank România SA v Autoritatea Națională pentru Protecția Consumatorilor — Comisariatul Județean pentru Protecția Consumatorilor Călărași (CJPC)

(Case C-602/10)

2011/C 89/13

Language of the case: Romanian

Referring court

Judecătoria Călărași

Parties to the main proceedings

Appellant: SC Volksbank România SA

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

Questions referred

| 1. | To what extent must Article 30(1) of Directive 2008/48 (1) be interpreted as precluding Member States from providing that national legislation transposing the Directive is also to apply to agreements concluded before the entry into force of the national implementing provision? |
| --- | --- |

1.

To what extent must Article 30(1) of Directive 2008/48 (1) be interpreted as precluding Member States from providing that national legislation transposing the Directive is also to apply to agreements concluded before the entry into force of the national implementing provision?

| 2. | To what extent do the provisions of Article 85(2) of OUG [Ordonanță de Urgență a Guvernului (Government Emergency Order)] No 50/2010 constitute an adequate transposition of the Community provision laid down in Article 24[(1)] of Directive 2008/48, which requires the Member States to ensure that provision is made for adequate and effective out-of-court dispute resolution procedures for the settlement of disputes with consumers concerning consumer credit agreements? |
| --- | --- |

2.

To what extent do the provisions of Article 85(2) of OUG [Ordonanță de Urgență a Guvernului (Government Emergency Order)] No 50/2010 constitute an adequate transposition of the Community provision laid down in Article 24[(1)] of Directive 2008/48, which requires the Member States to ensure that provision is made for adequate and effective out-of-court dispute resolution procedures for the settlement of disputes with consumers concerning consumer credit agreements?

| 3. | To what extent must Article 22(1) of Directive 2008/48 be interpreted as meaning that it introduces the maximum level of harmonisation in the field of consumer credit agreements, which precludes the Member States from:






  3.1. | extending the scope of the provisions in Directive 2008/48 to agreements expressly excluded from the scope of the Directive (such as mortgage loan agreements or agreements concerning the right of ownership in immovable property); or |
| --- | --- | --- |

3.

To what extent must Article 22(1) of Directive 2008/48 be interpreted as meaning that it introduces the maximum level of harmonisation in the field of consumer credit agreements, which precludes the Member States from:

3.1.

extending the scope of the provisions in Directive 2008/48 to agreements expressly excluded from the scope of the Directive (such as mortgage loan agreements or agreements concerning the right of ownership in immovable property); or

| 3.2. | introducing additional obligations for credit institutions as regards the types of charges they may impose or the categories of reference indices to which the variable interest rate may refer in consumer credit agreements falling within the scope of the national implementing provision? |
| --- | --- |

3.2.

introducing additional obligations for credit institutions as regards the types of charges they may impose or the categories of reference indices to which the variable interest rate may refer in consumer credit agreements falling within the scope of the national implementing provision?

If the third question is answered in the negative, to what extent must the principles of freedom to provide services and the free movement of capital in general, and Articles 56, 58 and 63(1) of the Treaty on the Functioning of the European Union (TFEU) in particular, be interpreted as precluding a Member State from imposing measures on credit institutions prohibiting in consumer credit agreements the application of bank charges not included in the list of permitted charges, unless such charges are defined in the legislation of the State concerned?

---

(1)  Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC (OJ 2008 L 133, p. 66).

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| 19.3.2011 | EN | Official Journal of the European Union | C 89/7 |
| --- | --- | --- | --- |

19.3.2011

EN

Official Journal of the European Union

C 89/7

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Reference for a preliminary ruling from Court of Appeal (England & Wales) (Civil Division) made on 21 December 2010 — Football Dataco Limited, Football Association Premier League Ltd, Football League Limited, Scottish Premier League Limited, Scottish Football League, PA Sport UK Limited v Yahoo UK Limited, Stan James (Abingdon) Limited, Stan James PLC, Enetpulse APS

(Case C-604/10)

2011/C 89/14

Language of the case: English

Referring court

Court of Appeal (England & Wales) (Civil Division)

Parties to the main proceedings

Applicants: Football Dataco Limited, Football Association Premier League Ltd, Football League Limited, Scottish Premier League Limited, Scottish Football League, PA Sport UK Limited

Defendants: Yahoo UK Limited, Stan James (Abingdon) Limited, Stan James PLC, Enetpulse APS

Questions referred

| 1. | In Article 3(1) of Directive 96/9/EC (1) on the legal protection of databases what is meant by ‘databases which, by reason of the selection or arrangement of their contents, constitute the author's own intellectual creation’ and in particular:






  a) | should the intellectual effort and skill of creating data be excluded? |
| --- | --- | --- |

1.

In Article 3(1) of Directive 96/9/EC (1) on the legal protection of databases what is meant by ‘databases which, by reason of the selection or arrangement of their contents, constitute the author's own intellectual creation’ and in particular:

a)

should the intellectual effort and skill of creating data be excluded?

| b) | does ‘selection or arrangement’ include adding important significance to a pre-existing item of data (as in fixing the date of a football match); |
| --- | --- |

b)

does ‘selection or arrangement’ include adding important significance to a pre-existing item of data (as in fixing the date of a football match);

| c) | does ‘author's own intellectual creation’ require more than significant labour and skill from the author, if so what? |
| --- | --- |

c)

does ‘author's own intellectual creation’ require more than significant labour and skill from the author, if so what?

| 2. | Does the Directive preclude national rights in the nature of copyright in databases other than those provided for by the Directive? |
| --- | --- |

2.

Does the Directive preclude national rights in the nature of copyright in databases other than those provided for by the Directive?

---

(1)  Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases

OJ L 77, p. 20

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| 19.3.2011 | EN | Official Journal of the European Union | C 89/8 |
| --- | --- | --- | --- |

19.3.2011

EN

Official Journal of the European Union

C 89/8

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Action brought on 22 December 2010 — European Commission v Kingdom of Sweden

(Case C-607/10)

2011/C 89/15

Language of the case: Swedish

Parties

Applicant: European Commission (represented by: A. Alcover San Pedro and K. Simonsson, acting as Agents)

Defendant: Kingdom of Sweden

Form of order sought

| — | Declare that, by failing to adopt the measures necessary to ensure that the competent authorities see to it, by means of permits in accordance with Articles 6 and 8 of Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control (1) or, as appropriate, by reconsidering and, where necessary, by updating the conditions, that existing installations operate in accordance with the requirements of Articles 3, 7, 9, 10 and 13, Article 14(a) and (b) and Article 15(2) not later than 30 October 2007, the Kingdom of Sweden has failed to fulfil its obligations under that directive; |
| --- | --- |

—

Declare that, by failing to adopt the measures necessary to ensure that the competent authorities see to it, by means of permits in accordance with Articles 6 and 8 of Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control (1) or, as appropriate, by reconsidering and, where necessary, by updating the conditions, that existing installations operate in accordance with the requirements of Articles 3, 7, 9, 10 and 13, Article 14(a) and (b) and Article 15(2) not later than 30 October 2007, the Kingdom of Sweden has failed to fulfil its obligations under that directive;

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

—

order the Kingdom of Sweden to pay the costs.

Pleas in law and main arguments

It follows from Article 5(1) of the IPPC Directive that Member States are to adopt the measures necessary to ensure that the competent authorities see to it, by means of permits in accordance with Articles 6 and 8 of Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control or, as appropriate, by reconsidering and, where necessary, by updating the conditions, that existing installations operate in accordance with the requirements of Articles 3, 7, 9, 10 and 13, Article 14(a) and (b) and Article 15(2) not later than 30 October 2007. In the view of the Commission, that obligation is to be understood as covering all existing installations in the Member State in question.

In accordance with established case-law, a question whether there is a breach of the Treaties is to be assessed against the background of the situation prevailing in the Member State concerned at the time of expiry of the period laid down in the reasoned opinion. It follows from Sweden’s reply to the reasoned opinion that 33 existing installations did not meet the requirements in the IPPC Directive at the time of the reply.

Furthermore, it is apparent from the attachment to Sweden’s supplementary reply to the reasoned opinion that in October 2010, nearly three years after expiry of the period in the IPPC Directive, there remained 23 existing installations which did not meet the requirements under the directive.

---

(1)  OJ L 24, 29.1.2008, p. 8.

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| 19.3.2011 | EN | Official Journal of the European Union | C 89/8 |
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19.3.2011

EN

Official Journal of the European Union

C 89/8

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Appeal brought on 23 December 2010 by Dieter C. Umbach against the judgment of the Court (Seventh Chamber) delivered on 21 October 2010 in Case T-474/08 Dieter C. Umbach v European Commission

(Case C-609/10 P)

2011/C 89/16

Language of the case: German

Parties

Appellant: Dieter C. Umbach (represented by: M. Stephani, lawyer)

Other party to the proceedings: European Commission

Form of order sought

| — | Annulment of point 1 of the operative part of the judgment of the Court of 21 October 2010 in Case T-474/08 Umbach v European Commission. |
| --- | --- |

—

Annulment of point 1 of the operative part of the judgment of the Court of 21 October 2010 in Case T-474/08 Umbach v European Commission.

| — | Annulment of the European Commission’s decision of 2 September 2008, reference: SG.E.3/MV/psi D(2008) 6991. |
| --- | --- |

—

Annulment of the European Commission’s decision of 2 September 2008, reference: SG.E.3/MV/psi D(2008) 6991.

| — | Order that the European Commission pay the costs of the case at first instance and on appeal. |
| --- | --- |

—

Order that the European Commission pay the costs of the case at first instance and on appeal.

Pleas in law and main arguments

By his appeal, Mr Umbach appeals the decision of the Court (Seventh Chamber) of 21 October 2010 in Case T-474/08 and seeks the setting aside of that judgment, by which he was refused full access to documents connected with a TACIS contract which concern him.

The appellant is of the opinion that on the basis of obligations under primary law, in particular Article 41(2)(b) of the Charter of Fundamental Rights, direct access to documents which affect him must be permitted, in particular where a claim for payment is brought against him by the European Commission before a Member State court and he requires access to documents of the European Commission for the purposes of defending those proceedings.

The European Commission on the other hand contends that only Regulation (EC) No 1049/2001 is applicable and that it is thereby entitled to grant only limited access or to refuse such access.

With regard to Regulation (EC) No 1049/2001, the appellant claims that, to the extent that that regulation is applicable, the European Commission’s discretion concerning his fundamental rights is limited, leading to the same result under secondary law as is reached under the primary provisions of the Charter of Fundamental Rights referred to.

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| 19.3.2011 | EN | Official Journal of the European Union | C 89/9 |
| --- | --- | --- | --- |

19.3.2011

EN

Official Journal of the European Union

C 89/9

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Reference for a preliminary ruling from the Rechtbank ‘s Gravenhage (Netherlands) lodged on 29 December 2010 — Solvay S.A. v Honeywell Fluorine Products Europe B.V. Honeywell Belgium N.V. Honeywell Europe N.V.

(Case C-616/10)

2011/C 89/17

Language of the case: Dutch

Referring court

Rechtbank ’s-Gravenhage

Parties to the main proceedings

Applicant: Solvay S.A.

Defendants: Honeywell Fluorine Products Europe BV and Others

Questions referred

| 1. | In a situation where two or more companies from different Member States, in proceedings pending before a court of one of those Member States, are each separately accused of committing an infringement of the same national part of a European patent which is in force in yet another Member State by virtue of their performance of reserved actions with regard to the same product, does the possibility arise of ‘irreconcilable judgments’ resulting from separate proceedings as referred to in Article 6(1) of the Regulation? (1) |
| --- | --- |

1.

In a situation where two or more companies from different Member States, in proceedings pending before a court of one of those Member States, are each separately accused of committing an infringement of the same national part of a European patent which is in force in yet another Member State by virtue of their performance of reserved actions with regard to the same product, does the possibility arise of ‘irreconcilable judgments’ resulting from separate proceedings as referred to in Article 6(1) of the Regulation? (1)

| 2. | Is Article 22(4) of the Regulation applicable in proceedings seeking provisional relief on the basis of a foreign patent (such as a provisional cross-border prohibition against infringement), if the defendant argues by way of defence that the patent invoked is invalid, taking into account that the court in that case does not make a final decision on the validity of the patent invoked but makes an assessment as to how the court having jurisdiction under Article 22(4) of the Regulation would rule in that regard, and that the application for interim relief in the form of a prohibition against infringement shall be refused if, in the opinion of the court, a reasonable, non-negligible possibility exists that the patent invoked would be declared invalid by the competent court? |
| --- | --- |

2.

Is Article 22(4) of the Regulation applicable in proceedings seeking provisional relief on the basis of a foreign patent (such as a provisional cross-border prohibition against infringement), if the defendant argues by way of defence that the patent invoked is invalid, taking into account that the court in that case does not make a final decision on the validity of the patent invoked but makes an assessment as to how the court having jurisdiction under Article 22(4) of the Regulation would rule in that regard, and that the application for interim relief in the form of a prohibition against infringement shall be refused if, in the opinion of the court, a reasonable, non-negligible possibility exists that the patent invoked would be declared invalid by the competent court?

| 3. | In order for Article 22(4) of the Regulation to be applicable in proceedings such as those referred to in the preceding question, must the defence of invalidity be subject to procedural requirements in the sense that Article 22(4) of the Regulation is only applicable if invalidity proceedings before the court having jurisdiction under Article 22(4) of the Regulation are already pending or are to be commenced — within a period to be laid down by the court — or at least that a summons in that regard has been or is being issued to the patent holder, or does it suffice if a defence of invalidity is merely raised and, if so, are requirements then laid down in respect of the content of the defence put forward, in the sense that it must be sufficiently substantiated and/or that the conduct of the defence must not be deemed to be an abuse of procedural law? |
| --- | --- |

3.

In order for Article 22(4) of the Regulation to be applicable in proceedings such as those referred to in the preceding question, must the defence of invalidity be subject to procedural requirements in the sense that Article 22(4) of the Regulation is only applicable if invalidity proceedings before the court having jurisdiction under Article 22(4) of the Regulation are already pending or are to be commenced — within a period to be laid down by the court — or at least that a summons in that regard has been or is being issued to the patent holder, or does it suffice if a defence of invalidity is merely raised and, if so, are requirements then laid down in respect of the content of the defence put forward, in the sense that it must be sufficiently substantiated and/or that the conduct of the defence must not be deemed to be an abuse of procedural law?

| 4. | If question 1 is answered in the affirmative, does the court, after a defence of invalidity has been raised in proceedings such as those referred to in question 1, retain jurisdiction in respect of the infringement action with the result that (if the claimant so desires) the infringement proceedings must be stayed until the court having jurisdiction under Article 22(4) of the Regulation has given a decision on the validity of the national part of the patent invoked, or that the claim must be refused because a defence that is essential to the decision may not be adjudicated, or does the court also lose its jurisdiction in respect of the infringement claim once a defence of invalidity has been raised? |
| --- | --- |

4.

If question 1 is answered in the affirmative, does the court, after a defence of invalidity has been raised in proceedings such as those referred to in question 1, retain jurisdiction in respect of the infringement action with the result that (if the claimant so desires) the infringement proceedings must be stayed until the court having jurisdiction under Article 22(4) of the Regulation has given a decision on the validity of the national part of the patent invoked, or that the claim must be refused because a defence that is essential to the decision may not be adjudicated, or does the court also lose its jurisdiction in respect of the infringement claim once a defence of invalidity has been raised?

| 5. | If question 1 is answered in the affirmative, can Article 31 of the Regulation confer on the national court jurisdiction to adjudicate on a claim seeking provisional relief on the basis of a foreign patent (such as a cross-border prohibition against infringement), and against which it is argued by way of defence that the patent invoked is invalid, or (should it be decided that the applicability of Article 22(4) of the Regulation does not affect the jurisdiction of the Rechtbank to adjudicate on the infringement question) jurisdiction to adjudicate on a defence claiming that the foreign patent invoked is invalid? |
| --- | --- |

5.

If question 1 is answered in the affirmative, can Article 31 of the Regulation confer on the national court jurisdiction to adjudicate on a claim seeking provisional relief on the basis of a foreign patent (such as a cross-border prohibition against infringement), and against which it is argued by way of defence that the patent invoked is invalid, or (should it be decided that the applicability of Article 22(4) of the Regulation does not affect the jurisdiction of the Rechtbank to adjudicate on the infringement question) jurisdiction to adjudicate on a defence claiming that the foreign patent invoked is invalid?

| 6. | If question 4 is answered in the affirmative, what facts or circumstances are then required in order to be able to accept that there is a real connecting link, as referred to in paragraph 40 of the Van Uden v Deco Line judgment, (2) between the subject matter of the measures sought and the territorial jurisdiction of the Contracting State of the court before which those measures are sought? |
| --- | --- |

6.

If question 4 is answered in the affirmative, what facts or circumstances are then required in order to be able to accept that there is a real connecting link, as referred to in paragraph 40 of the Van Uden v Deco Line judgment, (2) between the subject matter of the measures sought and the territorial jurisdiction of the Contracting State of the court before which those measures are sought?

---

(1)  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).

(2)  Judgment in Case C-391/95 Van Uden [1998] ECR I-7091.

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| 19.3.2011 | EN | Official Journal of the European Union | C 89/10 |
| --- | --- | --- | --- |

19.3.2011

EN

Official Journal of the European Union

C 89/10

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Reference for a preliminary ruling from High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court) made on 24 December 2010 — TUI Travel plc, British Airways plc, easyJet Airline Co. Ltd, International Air Transport Association, The Queen v Civil Aviation Authority

(Case C-629/10)

2011/C 89/18

Language of the case: English

Referring court

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

Parties to the main proceedings

Applicants: TUI Travel plc, British Airways plc, easyJet Airline Co. Ltd, International Air Transport Association

Defendant: Civil Aviation Authority

Questions referred

| 1. | Are Articles 5-7 of Regulation (EC) No 261/2004 (1) to be interpreted as requiring the compensation provided for in Article 7 to be paid to passengers whose flights are subject to delay within the meaning of Article 6, and if so in what circumstances? |
| --- | --- |

1.

Are Articles 5-7 of Regulation (EC) No 261/2004 (1) to be interpreted as requiring the compensation provided for in Article 7 to be paid to passengers whose flights are subject to delay within the meaning of Article 6, and if so in what circumstances?

| 2. | If question 1 is answered in the negative, are Articles 5-7 of Regulation (EC) No 261/2004 invalid, in whole or in part, for breach of the principle of equal treatment? |
| --- | --- |

2.

If question 1 is answered in the negative, are Articles 5-7 of Regulation (EC) No 261/2004 invalid, in whole or in part, for breach of the principle of equal treatment?

| 3. | If question 1 is answered in the affirmative, are Articles 5-7 of Regulation (EC) No 261/2004 invalid, in whole or in part, for (a) inconsistency with the Montreal Convention; (b) breach of the principle of proportionality; and/or (c) breach of the principle of legal certainty? |
| --- | --- |

3.

If question 1 is answered in the affirmative, are Articles 5-7 of Regulation (EC) No 261/2004 invalid, in whole or in part, for (a) inconsistency with the Montreal Convention; (b) breach of the principle of proportionality; and/or (c) breach of the principle of legal certainty?

| 4. | If question 1 is answered in the affirmative and question 3 in the negative, what if any limits are to be placed upon the temporal effects of the Court's ruling in this case? |
| --- | --- |

4.

If question 1 is answered in the affirmative and question 3 in the negative, what if any limits are to be placed upon the temporal effects of the Court's ruling in this case?

| 5. | If question 1 is answered in the negative, what if any effect is to be given to the decision of Sturgeon between 19 November 2009 and the date of the Court's ruling In this case? |
| --- | --- |

5.

If question 1 is answered in the negative, what if any effect is to be given to the decision of Sturgeon between 19 November 2009 and the date of the Court's ruling In this case?

---

(1)  Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (Text with EEA relevance) — Commission Statement

OJ L 46, p. 1

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| 19.3.2011 | EN | Official Journal of the European Union | C 89/10 |
| --- | --- | --- | --- |

19.3.2011

EN

Official Journal of the European Union

C 89/10

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Reference for a preliminary ruling from High Court of Justice (Chancery Division) (United Kingdom) made on 24 December 2010 — University of Queensland, CSL Ltd v Comptroller-General of Patents, Designs and Trade Marks

(Case C-630/10)

2011/C 89/19

Language of the case: English

Referring court

High Court of Justice (Chancery Division)

Parties to the main proceedings

Applicants: University of Queensland, CSL Ltd

Defendant: Comptroller-General of Patents, Designs and Trade Marks

Questions referred

| 1. | Regulation 469/2009 (1) (the Regulation) recognises amongst the other purposes identified in the recitals, the need for the grant of an SPC by each of the Member States of the Community to holders of national or European patents to be under the same conditions, as indicated in recitals 7 and 8. In the absence of Community harmonisation of patent law, what is meant in Article 3(a) of the Regulation by ‘the product is protected by a basic patent in force’ and what are the criteria for deciding this? |
| --- | --- |

1.

Regulation 469/2009 (1) (the Regulation) recognises amongst the other purposes identified in the recitals, the need for the grant of an SPC by each of the Member States of the Community to holders of national or European patents to be under the same conditions, as indicated in recitals 7 and 8. In the absence of Community harmonisation of patent law, what is meant in Article 3(a) of the Regulation by ‘the product is protected by a basic patent in force’ and what are the criteria for deciding this?

| 2. | In a case like the present one involving a medicinal product comprising more than one active ingredient, are there further or different criteria for determining whether or not ‘the product is protected by a basic patent’ according to Article 3(a) of the Regulation and, if so, what are those further or different criteria? |
| --- | --- |

2.

In a case like the present one involving a medicinal product comprising more than one active ingredient, are there further or different criteria for determining whether or not ‘the product is protected by a basic patent’ according to Article 3(a) of the Regulation and, if so, what are those further or different criteria?

| 3. | Is one of these further or different criteria whether the active ingredients are admixed together rather than being delivered in separate formulations but at the same time? |
| --- | --- |

3.

Is one of these further or different criteria whether the active ingredients are admixed together rather than being delivered in separate formulations but at the same time?

| 4. | For the purposes of Article 3(a), is a multi-disease vaccine comprising multiple antigens ‘protected by a basic patent’ if one antigen of the vaccine is ‘protected by the basic patent in force’? |
| --- | --- |

4.

For the purposes of Article 3(a), is a multi-disease vaccine comprising multiple antigens ‘protected by a basic patent’ if one antigen of the vaccine is ‘protected by the basic patent in force’?

| 5. | In a case like the present one involving a medicinal product comprising more than one active ingredient, is it relevant to the assessment of whether or not ‘the product is protected by a basic patent’ according to Article 3(a) that the basic patent is one of a family of patents based on the same original patent application and comprising a parent patent and two divisional patents which between them protect all the active ingredients in the medicinal product? |
| --- | --- |

5.

In a case like the present one involving a medicinal product comprising more than one active ingredient, is it relevant to the assessment of whether or not ‘the product is protected by a basic patent’ according to Article 3(a) that the basic patent is one of a family of patents based on the same original patent application and comprising a parent patent and two divisional patents which between them protect all the active ingredients in the medicinal product?

| 6. | In a case like the present one involving a basic patent with claims to ‘a process to obtain a product’ in the sense of Article l(c), does the ‘product’ of Article 3(a) have to be obtained directly by means of that process? |
| --- | --- |

6.

In a case like the present one involving a basic patent with claims to ‘a process to obtain a product’ in the sense of Article l(c), does the ‘product’ of Article 3(a) have to be obtained directly by means of that process?

| 7. | Does the SPC Regulation and, in particular, Article 3(b), permit the grant of a Supplementary Protection Certificate for a single active ingredient where:






  a) | a basic patent in force protects the single active ingredient within the meaning of Article 3(a) of the SPC Regulation; and |
| --- | --- | --- |

7.

Does the SPC Regulation and, in particular, Article 3(b), permit the grant of a Supplementary Protection Certificate for a single active ingredient where:

a)

a basic patent in force protects the single active ingredient within the meaning of Article 3(a) of the SPC Regulation; and

| b) | a medicinal product containing the single active ingredient together with one or more other active ingredients is the subject of a valid authorisation granted in accordance with Directive 2001/83/EC (2) or 2001/82/EC (3) which is the first marketing authorization that places the single active ingredient on the market? |
| --- | --- |

b)

a medicinal product containing the single active ingredient together with one or more other active ingredients is the subject of a valid authorisation granted in accordance with Directive 2001/83/EC (2) or 2001/82/EC (3) which is the first marketing authorization that places the single active ingredient on the market?

| 8. | Does the answer to Question 7 differ depending on whether the authorisation is for the single active ingredient admixed with the one or more other active ingredients rather than being delivered in separate formulations but at the same time? |
| --- | --- |

8.

Does the answer to Question 7 differ depending on whether the authorisation is for the single active ingredient admixed with the one or more other active ingredients rather than being delivered in separate formulations but at the same time?

---

(1)  Regulation (EC) No 469/2009 of the European Parliament and of the Council of 6 May 2009 concerning the supplementary protection certificate for medicinal products (Codified version) (Text with EEA relevance)

OJ L 152, p. 1

(2)  Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use

OJ L 311, p. 67

(3)  Directive 2001/82/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to veterinary medicinal products

OJ L 311, p. 1

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| 19.3.2011 | EN | Official Journal of the European Union | C 89/11 |
| --- | --- | --- | --- |

19.3.2011

EN

Official Journal of the European Union

C 89/11

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Reference for a preliminary ruling from Upper Tribunal (Tax and Chancery Chamber) (United Kingdom) made on 12 January 2011 — The Commissioners for Her Majesty's Revenue & Customs v Philips Electronics UK Ltd

(Case C-18/11)

2011/C 89/20

Language of the case: English

Referring court

Upper Tribunal (Tax and Chancery Chamber) (United Kingdom)

Parties to the main proceedings

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

Defendant: Philips Electronics UK Ltd

Questions referred

| 1. | Where a Member State (such as the UK) includes in its tax base the profits and losses of a company incorporated and tax resident in another Member State (such as the Netherlands) to the extent that the profits are attributable to a business carried on by the Netherlands company in the UK through a permanent establishment situated in the UK, is it a restriction on the freedom of a national of a Member State to establish in the UK under Article 49 TFEU (ex Article 43 EC) for the UK to prevent the surrender of the UK losses of a permanent establishment situated in the UK of a non-UK resident company to a UK company by way of group relief where any part of those losses or any amount brought into account in computing them ‘corresponds to, or is represented in, any amount which, for the purposes of any foreign tax is (in any period) deductible from or otherwise allowable against non-UK profits of the company or any person’ Le. to permit the surrender of UK losses in the case of a permanent establishment situated in the UK only where it is clear that at the time of the claim there can never be any deduction or allowance in any State outside the UK (including another Member State (such as the Netherlands)), and it being insufficient that relief available overseas has not in fact been claimed, and in circumstances where there is no equivalent condition applicable to the surrender of UK losses of a UK resident company? |
| --- | --- |

1.

Where a Member State (such as the UK) includes in its tax base the profits and losses of a company incorporated and tax resident in another Member State (such as the Netherlands) to the extent that the profits are attributable to a business carried on by the Netherlands company in the UK through a permanent establishment situated in the UK, is it a restriction on the freedom of a national of a Member State to establish in the UK under Article 49 TFEU (ex Article 43 EC) for the UK to prevent the surrender of the UK losses of a permanent establishment situated in the UK of a non-UK resident company to a UK company by way of group relief where any part of those losses or any amount brought into account in computing them ‘corresponds to, or is represented in, any amount which, for the purposes of any foreign tax is (in any period) deductible from or otherwise allowable against non-UK profits of the company or any person’ Le. to permit the surrender of UK losses in the case of a permanent establishment situated in the UK only where it is clear that at the time of the claim there can never be any deduction or allowance in any State outside the UK (including another Member State (such as the Netherlands)), and it being insufficient that relief available overseas has not in fact been claimed, and in circumstances where there is no equivalent condition applicable to the surrender of UK losses of a UK resident company?

| 2. | If so, is that restriction capable of being justified:






  a) | solely on the basis of the need to prevent the double use of losses, or |
| --- | --- | --- |

2.

If so, is that restriction capable of being justified:

a)

solely on the basis of the need to prevent the double use of losses, or

| b) | solely on the basis of the need to preserve the balanced allocation of taxing powers between Member States, or |
| --- | --- |

b)

solely on the basis of the need to preserve the balanced allocation of taxing powers between Member States, or

| c) | on the basis of the need to preserve the balanced allocation of taxing powers between Member States in conjunction with the need to prevent the double use of losses? |
| --- | --- |

c)

on the basis of the need to preserve the balanced allocation of taxing powers between Member States in conjunction with the need to prevent the double use of losses?

| 3. | If so, is the restriction proportionate to such justification or justifications? |
| --- | --- |

3.

If so, is the restriction proportionate to such justification or justifications?

| 4. | If any restriction on the rights of the Netherlands company is not justified or to the extent that it is not proportionate to any justification, does EU Jaw require the UK to provide the UK company with a remedy such as the right to claim group relief against its profits? |
| --- | --- |

4.

If any restriction on the rights of the Netherlands company is not justified or to the extent that it is not proportionate to any justification, does EU Jaw require the UK to provide the UK company with a remedy such as the right to claim group relief against its profits?

---

| 19.3.2011 | EN | Official Journal of the European Union | C 89/11 |
| --- | --- | --- | --- |

19.3.2011

EN

Official Journal of the European Union

C 89/11

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Reference for a preliminary ruling from the Supreme Administrative Court (Finland) lodged on 21 January 2011 — A Oy

(Case C-33/11)

2011/C 89/21

Language of the case: Finnish

Referring court

Supreme Administrative Court

Parties to the main proceedings

Applicant: A Oy

Defendant: Veronsaajien oikeudenvalvontayksikkö

Questions referred

| 1. | Is Article 15(6) of the Sixth VAT Directive 77/388/EEC (1) to be interpreted as meaning that the concept ‘airline operating for reward chiefly on international routes’ also refers to a commercial airline operating for reward chiefly on international charter routes for the requirements of companies and private persons? |
| --- | --- |

1.

Is Article 15(6) of the Sixth VAT Directive 77/388/EEC (1) to be interpreted as meaning that the concept ‘airline operating for reward chiefly on international routes’ also refers to a commercial airline operating for reward chiefly on international charter routes for the requirements of companies and private persons?

| 2. | Is Article 15(6) of the Sixth VAT Directive 77/388/EEC to be interpreted as meaning that the exemption provided therein only applies to that supply of aircraft which takes place directly to airlines operating for reward chiefly on international routes, or does this exemption also apply to the supply of aircraft to a operator which does not itself operate for reward chiefly on international routes, but which in turn supplies the aircraft for the use of such an operator? |
| --- | --- |

2.

Is Article 15(6) of the Sixth VAT Directive 77/388/EEC to be interpreted as meaning that the exemption provided therein only applies to that supply of aircraft which takes place directly to airlines operating for reward chiefly on international routes, or does this exemption also apply to the supply of aircraft to a operator which does not itself operate for reward chiefly on international routes, but which in turn supplies the aircraft for the use of such an operator?

| 3. | Having regard to the reply given to the second question above, is it of significance that the owner of the aircraft in turn makes a charge for the use of the aircraft to a private person who is its shareholder, who uses the procured aircraft for his own business and/or private use, taking into account the fact that the airline has also been able to use the aircraft for other flights? |
| --- | --- |

3.

Having regard to the reply given to the second question above, is it of significance that the owner of the aircraft in turn makes a charge for the use of the aircraft to a private person who is its shareholder, who uses the procured aircraft for his own business and/or private use, taking into account the fact that the airline has also been able to use the aircraft for other flights?

---

(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).

---

| 19.3.2011 | EN | Official Journal of the European Union | C 89/12 |
| --- | --- | --- | --- |

19.3.2011

EN

Official Journal of the European Union

C 89/12

---

Reference for a preliminary ruling from the Consiglio di Stato — Second Chamber (Italy) lodged on 24 January 2011 — Pioneer HI-Bred Italia Srl v Ministero delle Politiche Agricole e Forestali

(Case C-36/11)

2011/C 89/22

Language of the case: Italian

Referring court

Consiglio di Stato — Second Chamber

Parties to the main proceedings

Applicant: Pioneer HI-Bred Italia Srl

Defendant: Ministero delle Politiche Agricole e Forestali

Question referred

Where a Member State has chosen to make authorisation to cultivate GMOs, even those listed in the European common catalogue, conditional upon compliance with appropriate general measures for ensuring coexistence with conventional and organic farming, must Article 26a of Directive 2001/18/EC, (1) read in the light of Recommendation 2003/556/EC (2) and subsequent Recommendation [2010/C 200/01], (3) be interpreted as meaning that, in the period preceding adoption of the general measures: (a) authorisation must be issued where the application concerns GMOs listed in the European common catalogue; or (b) consideration of the application for authorisation must be suspended until such time as the general measures have been adopted; or (c) authorisation must be issued, but coupled with appropriate requirements for preventing, in the specific case, contact — including unintended contact — between authorised GM crops and surrounding conventional or organic crops?

---

(1)  OJ 2001 L 106, p. 1.

(2)  OJ 2003 L 189, p. 36.

(3)  OJ 2010 C 200, p. 1.

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| 19.3.2011 | EN | Official Journal of the European Union | C 89/12 |
| --- | --- | --- | --- |

19.3.2011

EN

Official Journal of the European Union

C 89/12

---

Order of the President of the Third Chamber of the Court of 14 December 2010 — European Commission v Republic of Poland

(Case C-349/09) (1)

2011/C 89/23

Language of the case: Polish

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

---

(1)  OJ C 312, 19.12.2009.

---

| 19.3.2011 | EN | Official Journal of the European Union | C 89/12 |
| --- | --- | --- | --- |

19.3.2011

EN

Official Journal of the European Union

C 89/12

---

Order of the President of the Court of 17 November 2010 — European Commission v Italian Republic

(Case C-486/09) (1)

2011/C 89/24

Language of the case: Italian

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

---

(1)  OJ C 24, 30.1.2010.

---

| 19.3.2011 | EN | Official Journal of the European Union | C 89/13 |
| --- | --- | --- | --- |

19.3.2011

EN

Official Journal of the European Union

C 89/13

---

Order of the President of the Court of 12 November 2010 — European Commission v Hellenic Republic

(Case C-80/10) (1)

2011/C 89/25

Language of the case: Greek

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

---

(1)  OJ C 100, 17.4.2010.

---

| 19.3.2011 | EN | Official Journal of the European Union | C 89/13 |
| --- | --- | --- | --- |

19.3.2011

EN

Official Journal of the European Union

C 89/13

---

Order of the President of the Court of 9 November 2010 — KEK Diavlos v European Commission

(Case C-251/10 P) (1)

2011/C 89/26

Language of the case: Greek

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

---

(1)  OJ C 195, 17.7.2010.

---

| 19.3.2011 | EN | Official Journal of the European Union | C 89/13 |
| --- | --- | --- | --- |

19.3.2011

EN

Official Journal of the European Union

C 89/13

---

Order of the President of the Court of 16 November 2010 (reference for a preliminary ruling from the Tribunal da Relação do Porto (Portugal)) — Companhia Siderúrgica Nacional, CSN Cayman Ltd v Unifer Steel SL, BNP Paribas (Suisse), Colepccl (Portugal) SA, Banco Português de Investimento SA (BPI)

(Case C-315/10) (1)

2011/C 89/27

Language of the case: Portuguese

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

---

(1)  OJ C 260, 25.9.2010.

---

| 19.3.2011 | EN | Official Journal of the European Union | C 89/13 |
| --- | --- | --- | --- |

19.3.2011

EN

Official Journal of the European Union

C 89/13

---

Order of the President of the Court of 22 November 2010 — European Commission v Hellenic Republic

(Case C-353/10) (1)

2011/C 89/28

Language of the case: Greek

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

---

(1)  OJ C 246, 11.9.2010.

---

| 19.3.2011 | EN | Official Journal of the European Union | C 89/13 |
| --- | --- | --- | --- |

19.3.2011

EN

Official Journal of the European Union

C 89/13

---

Order of the President of the Court of 17 November 2010 — European Commission v Grand Duchy of Luxembourg

(Case C-394/10) (1)

2011/C 89/29

Language of the case: French

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

---

(1)  OJ C 274, 9.10.2010.

---

| 19.3.2011 | EN | Official Journal of the European Union | C 89/13 |
| --- | --- | --- | --- |

19.3.2011

EN

Official Journal of the European Union

C 89/13

---

Order of the President of the Court of 3 January 2011 — European Commission v Hellenic Republic

(Case C-398/10) (1)

2011/C 89/30

Language of the case: Greek

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

---

(1)  OJ C 274, 9.10.2010.

---

General Court

| 19.3.2011 | EN | Official Journal of the European Union | C 89/14 |
| --- | --- | --- | --- |

19.3.2011

EN

Official Journal of the European Union

C 89/14

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Judgment of the General Court of 3 February 2011 — Cetarsa v Commission

(Case T-33/05) (1)

(Competition - Agreements, decisions and concerted practices - Spanish market for the purchase and first processing of raw tobacco - Decision finding an infringement of Article 81 EC - Price fixing and market-sharing - Fines - Gravity and duration of the infringement - Equal treatment - Principle of proportionality - Maximum limit of 10 % of turnover - Cooperation)

2011/C 89/31

Language of the case: Spanish

Parties

Applicant: Compañía española de tabaco en rama, SA (Cetarsa) (Navalmoral de la Mata, Spain) (represented by: M. Araujo Boyd, J. Buendía Sierra and A. Givaja Sanz, lawyers)

Defendant: European Commission (represented by: F. Castillo de la Torre and É. Gippini Fournier, acting as Agents)

Re:

Firstly, an application for the annulment of Commission Decision C(2004) 4030 final of 20 October 2004 relating to a proceeding under Article 81(1) EC (Case COMP/C.38.238/B.2 — Raw Tobacco — Spain), secondly and in the alternative, an application for the reduction of the amount of the fine imposed on the applicant in that decision and, thirdly, a counterclaim by the Commission seeking to have that amount increased.

Operative part of the judgment

The Court:

| 1. | Sets the amount of the fine imposed on Compañía española de tabaco en rama, SA (Cetarsa) in Article 3 of Commission Decision C(2004) 4030 final of 20 October 2004 relating to a proceeding under Article 81(1) EC (Case COMP/C.38.238/B.2 — Raw Tobacco — Spain) at EUR 3 147 000; |
| --- | --- |

1.

Sets the amount of the fine imposed on Compañía española de tabaco en rama, SA (Cetarsa) in Article 3 of Commission Decision C(2004) 4030 final of 20 October 2004 relating to a proceeding under Article 81(1) EC (Case COMP/C.38.238/B.2 — Raw Tobacco — Spain) at EUR 3 147 000;

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

2.

Dismisses the action as to the remainder;

| 3. | Dismisses the European Commission’s counterclaim; |
| --- | --- |

3.

Dismisses the European Commission’s counterclaim;

| 4. | Orders Cetarsa to bear eight-tenths of its own costs and eight-tenths of the costs incurred by the Commission, and orders the Commission to bear two-tenths of its own costs and two-tenths of the costs incurred by Cetarsa. |
| --- | --- |

4.

Orders Cetarsa to bear eight-tenths of its own costs and eight-tenths of the costs incurred by the Commission, and orders the Commission to bear two-tenths of its own costs and two-tenths of the costs incurred by Cetarsa.

---

(1)  OJ C 82, 2.4.2005.

---

| 19.3.2011 | EN | Official Journal of the European Union | C 89/14 |
| --- | --- | --- | --- |

19.3.2011

EN

Official Journal of the European Union

C 89/14

---

Judgment of the General Court of 3 February 2011 — Italy v Commission

(Case T-205/07) (1)

(Rules on the use of languages - Publication on EPSO’s website of a Call for expressions of interest to constitute a database of candidates to be recruited as contractual agents - Publication in three official languages - Articles 12 EC and 290 EC - Article 82 of the Conditions of Employment of other Servants - Regulation No 1)

2011/C 89/32

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: B. Tidore, acting as Agent, and P. Gentili, avvocato dello Stato)

Defendant: European Commission (represented by: J. Currall and H. Krämer, and A. Dal Ferro, lawyer)

Re:

Application for annulment of Call for expressions of interest EPSO/CAST/EU/27/07 to constitute a database of candidates to be recruited as contractual agents carrying out various activities within the European institutions and agencies, published on the website of the European Personnel Selection Office (EPSO) on 27 March 2007.

Operative part of the judgment

The Court:

| 1. | Annuls Call for expressions of interest EPSO/CAST/EU/27/07 to constitute a database of candidates to be recruited as contractual agents carrying out various activities within the European institutions and agencies, published on the website of the European Personnel Selection Office (EPSO) on 27 March 2007; |
| --- | --- |

1.

Annuls Call for expressions of interest EPSO/CAST/EU/27/07 to constitute a database of candidates to be recruited as contractual agents carrying out various activities within the European institutions and agencies, published on the website of the European Personnel Selection Office (EPSO) on 27 March 2007;

| 2. | Orders the Italian Republic and the European Commission to bear their own costs. |
| --- | --- |

2.

Orders the Italian Republic and the European Commission to bear their own costs.

---

(1)  OJ C 170, 21.7.2007.

---

| 19.3.2011 | EN | Official Journal of the European Union | C 89/15 |
| --- | --- | --- | --- |

19.3.2011

EN

Official Journal of the European Union

C 89/15

---

Judgment of the General Court of 8 February 2011 — Paroc v OHIM (INSULATE FOR LIFE)

(Case T-157/08) (1)

(Community trade mark - Application for Community word mark INSULATE FOR LIFE - Absolute ground for refusal - Lack of distinctive character - Article 7(1)(b) of Regulation (EC) No 40/94 (now Article 7(1)(b) of Regulation (EC) No 207/2009) - Merely confirmatory decision - Partial inadmissibility)

2011/C 89/33

Language of the case: English

Parties

Applicant: Paroc Oy AB (Helsinki, Finland) (represented by: J. Palm)

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

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 21 February 2008 (Case R 54/2008-2), concerning an application for registration of the word sign INSULATE FOR LIFE as a Community trade mark.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Paroc Oy AB to pay the costs. |
| --- | --- |

2.

Orders Paroc Oy AB to pay the costs.

---

(1)  OJ C 171, 5.7.2008.

---

| 19.3.2011 | EN | Official Journal of the European Union | C 89/15 |
| --- | --- | --- | --- |

19.3.2011

EN

Official Journal of the European Union

C 89/15

---

Judgment of the General Court of 3 February 2011 — Cantiere Navale De Poli v Commission

(Case T-584/08) (1)

(State aid - Temporary defensive mechanism for shipbuilding - Alteration planned by the Italian authorities to an aid scheme previously authorised by the Commission - Decision declaring the aid scheme incompatible with the common market)

2011/C 89/34

Language of the case: Italian

Parties

Applicant: Cantiere Navale De Poli SpA (Venice, Italy) (represented initially by: A. Abate and R. Longanesi Cattani, and subsequently by A. Abate and A. Franchi, lawyers)

Defendant: European Commission (represented by: E. Righini, C. Urraca Caviedes and V. Di Bucci, Agents)

Re:

Action for annulment of Commission Decision 2010/38/EC of 21 October 2008 on State aid C-20/08 (ex N 62/08) which Italy is planning to implement through a modification of scheme N 59/04 concerning a temporary defensive mechanism for shipbuilding (OJ 2010 L 17, p. 50).

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Cantiere Navale De Poli SpA to pay the costs. |
| --- | --- |

2.

Orders Cantiere Navale De Poli SpA to pay the costs.

---

(1)  OJ C 55, 7.3.2009.

---

| 19.3.2011 | EN | Official Journal of the European Union | C 89/15 |
| --- | --- | --- | --- |

19.3.2011

EN

Official Journal of the European Union

C 89/15

---

Judgment of the General Court of 3 February 2011 — Italy v Commission

(Case T-3/09) (1)

(State aid - Temporary defensive mechanism for shipbuilding - Alteration planned by the Italian authorities to an aid scheme previously authorised by the Commission - Decision declaring the aid scheme incompatible with the common market)

2011/C 89/35

Language of the case: Italian

Parties

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

Defendant: European Commission (represented by: E. Righini, C. Urraca Caviedes and V. Di Bucci, acting as Agents)

Re:

Application for annulment of Commission Decision 2010/38/EC of 21 October 2008 on State aid C-20/08 (ex N 62/08) which Italy is planning to implement through a modification of scheme N 59/04 concerning a temporary defensive mechanism for shipbuilding (OJ 2010 L 17, p. 50).

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

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

2.

Orders the Italian Republic to pay the costs.

---

(1)  OJ C 55, 7.3.2009.

---

| 19.3.2011 | EN | Official Journal of the European Union | C 89/16 |
| --- | --- | --- | --- |

19.3.2011

EN

Official Journal of the European Union

C 89/16

---

Judgment of the General Court of 8 February 2011 — Lan Airlines v OHIM — Air Nostrum (LÍNEAS AÉREAS Del MEDITERRÁNEO LAM)

(Case T-194/09) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark LINEAS AEREAS DEL MEDITERRANEO LAM - Earlier Community word and figurative marks LAN - Relative ground for refusal - No likelihood of confusion - No similarity between the signs - Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))

2011/C 89/36

Language of the case: Spanish

Parties

Applicant: Lan Airlines, SA (Renca, Chile) (represented by: E. Armijo Chávarri and A. Castán Pérez-Gómez, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Air Nostrum, Líneas Aéreas del Mediterráneo, SA (Manises, Spain)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 19 February 2009 (Case R 107/2008-4) relating to opposition proceedings between Lan Airlines, SA and Air Nostrum, Líneas Aéreas del Mediterráneo, SA.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Lan Airlines, SA to pay the costs. |
| --- | --- |

2.

Orders Lan Airlines, SA to pay the costs.

---

(1)  OJ C 167, 18.7.2009.

---

| 19.3.2011 | EN | Official Journal of the European Union | C 89/16 |
| --- | --- | --- | --- |

19.3.2011

EN

Official Journal of the European Union

C 89/16

---

Judgment of the General Court of 9 February 2011 — Ineos Healthcare v OHIM — Teva Pharmaceutical Industries (ALPHAREN)

(Case T-222/09) (1)

(Community trade mark - Opposition proceedings - Application for the Community word mark ALPHAREN - Earlier national word marks ALPHA D3 - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009) - Examination of the facts of its own motion - Article 74 of Regulation No 40/94 (now Article 76 of Regulation No 207/2009))

2011/C 89/37

Language of the case: English

Parties

Applicant: Ineos Healthcare Ltd (Warrington, Cheshire, United Kingdom) (represented by: S. Malynicz, Barrister, and A. Smith, Solicitor)

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

Other party to the proceedings before the Board of Appeal of OHIM: Teva Pharmaceutical Industries Ltd (Jerusalem, Israel)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 24 March 2009 (Case R 1897/2007-2), concerning opposition proceedings between Teva Pharmaceutical Industries Ltd and Ineos Healthcare Ltd

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 24 March 2009 (Case R 1897/2007-2) as regards the goods in the following categories: ‘Pharmaceutical and veterinary preparations containing magnesium iron hydroxy carbonate or hydrotalcite or derivatives of these compounds’, ‘Phosphate binders for use in the treatment of hyperphosphataemia’; |
| --- | --- |

1.

Annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 24 March 2009 (Case R 1897/2007-2) as regards the goods in the following categories: ‘Pharmaceutical and veterinary preparations containing magnesium iron hydroxy carbonate or hydrotalcite or derivatives of these compounds’, ‘Phosphate binders for use in the treatment of hyperphosphataemia’;

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

2.

Dismisses the action as to the remainder;

| 3. | Orders OHIM to bear its own costs and to pay half of the costs incurred by Ineos Healthcare Ltd; |
| --- | --- |

3.

Orders OHIM to bear its own costs and to pay half of the costs incurred by Ineos Healthcare Ltd;

| 4. | Orders Ineos Healthcare to bear half of its own costs. |
| --- | --- |

4.

Orders Ineos Healthcare to bear half of its own costs.

---

(1)  OJ C 180, 1.8.2009.

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| 19.3.2011 | EN | Official Journal of the European Union | C 89/16 |
| --- | --- | --- | --- |

19.3.2011

EN

Official Journal of the European Union

C 89/16

---

Judgment of the General Court of 3 February 2011 — Gühring v OHIM (Combination of the colours broom yellow and silver grey and combination of the colours yellow ochre and silver grey)

(Case T-299/09 and T-300/09) (1)

(Community trade mark - Application for a Community trade mark consisting of a combination of the colours broom yellow and silver grey - Application for a Community trade mark consisting of a combination of the colours yellow ochre and silver grey - Absolute ground for refusal - Lack of distinctive character - Article 7(1)(b) of Regulation (EC) No 207/2009 - Examination of the facts of the Court’s own motion - Article 76(1) of Regulation No 207/2009 - Obligation to state reasons - Article 75 of Regulation No 207/2009)

2011/C 89/38

Language of the case: German

Parties

Applicant: Gühring OHG (Albstadt, Germany) (represented by: A. von Mühlendahl and H. Hartwig, lawyers)

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

Re:

Two actions brought against the decisions of the First Board of Appeal of OHIM of 30 April 2009 (Cases R 1330/2008-1 and R 1329/2008-1) concerning applications for registration of the combination of the colours broom yellow and silver grey and the combination of the colours yellow ochre and silver grey as Community trade marks.

Operative part of the judgment

The Court:

| 1. | Orders that Cases T-299/09 to T-300/09 be joined for the purposes of the judgment. |
| --- | --- |

1.

Orders that Cases T-299/09 to T-300/09 be joined for the purposes of the judgment.

| 2. | Dismisses the actions. |
| --- | --- |

2.

Dismisses the actions.

| 3. | Orders Gühring OHG to pay the costs. |
| --- | --- |

3.

Orders Gühring OHG to pay the costs.

---

(1)  OJ C 256, 24.10.2009.

---

| 19.3.2011 | EN | Official Journal of the European Union | C 89/17 |
| --- | --- | --- | --- |

19.3.2011

EN

Official Journal of the European Union

C 89/17

---

Order of the General Court of 20 January 2011 — M v EMA

(Case T-136/10) (1)

(Action for damages - Lack of jurisdiction of the General Court - Referral back to the Civil Service Tribunal)

2011/C 89/39

Language of the case: English.

Parties

Applicant: M (Broxbourne, United Kingdom) (represented by: C. Thomann, Barrister, and I. Khawaja, Solicitor)

Defendant: European Medicines Agency (EMA) (represented by: V. Salvatore and N. Rampal Olmedo, agents)

Re:

Action for damages, under Articles 268 TFEU and 340 TFEU, for loss allegedly sustained as a result of an accident at work.

Operative part of the order

| 1. | The action is referred back to the European Union Civil Service Tribunal. |
| --- | --- |

1.

The action is referred back to the European Union Civil Service Tribunal.

| 2. | The costs are reserved. |
| --- | --- |

2.

The costs are reserved.

---

(1)  OJ C 148, 5.6.2010.

---

| 19.3.2011 | EN | Official Journal of the European Union | C 89/17 |
| --- | --- | --- | --- |

19.3.2011

EN

Official Journal of the European Union

C 89/17

---

Action brought on 29 December 2010 — Interspeed v Commission

(Case T-587/10)

2011/C 89/40

Language of the case: Slovene

Parties

Applicant: Interspeed Holding Kompanija, A.D. (Belgrade, Republic of Serbia) (represented by: Dr Marko Bošnjak)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | order the defendant to pay the applicant damages for loss of profits, loss of income and reduction of the value of assets in the total amount of EUR 131 879 601, and additional sums comprising default interest on the damages claimed from the day this action was brought to the date of actual payment, and |
| --- | --- |

—

order the defendant to pay the applicant damages for loss of profits, loss of income and reduction of the value of assets in the total amount of EUR 131 879 601, and additional sums comprising default interest on the damages claimed from the day this action was brought to the date of actual payment, and

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

By this action, brought pursuant to Articles 256 and 258 of the Treaty on the Functioning of the European Union, the applicant claims that the Court should order the defendant to pay the applicant damages for loss of profits, loss of income and reduction of the value of assets in the total amount of EUR 131 879 601, and additional sums comprising default interest on the damages claimed from the day the action was brought to the date of actual payment, calculated at the rate of interest applied by the European Central Bank at the relevant period to major financing transactions, increased by two percentage points, and also the lawyers’ fees and other legal costs incurred by the applicant in connection with these proceedings.

If the Court should not uphold the action brought by the applicant, the latter claims that, as regards the costs of the proceedings, in accordance with Article 87(3) of the Rules of Procedure, the Court should order each party to bear its own costs.

In support of its action the applicant puts forward the following pleas in law.

In the first place, the applicant maintains that the European Agency for Reconstruction (‘the EAR’) has acted unlawfully, in that:

| — | on 19 December 2006 it issued a call for tenders; |
| --- | --- |

—

on 19 December 2006 it issued a call for tenders;

| — | on 22 December 2006 it published a notice for the selection of an undertaking to carry out work on the border crossing at Preševo; |
| --- | --- |

—

on 22 December 2006 it published a notice for the selection of an undertaking to carry out work on the border crossing at Preševo;

| — | on 10 May 2007 it concluded contract No 04SERO 1105004 for the execution of the works on the border crossing at Preševo; |
| --- | --- |

—

on 10 May 2007 it concluded contract No 04SERO 1105004 for the execution of the works on the border crossing at Preševo;

| — | it paid for the design of the reconstruction of the border crossing at Preševo; |
| --- | --- |

—

it paid for the design of the reconstruction of the border crossing at Preševo;

| — | it selected and paid Putevi Užice A.D. to carry out the works; |
| --- | --- |

—

it selected and paid Putevi Užice A.D. to carry out the works;

| — | it selected and appointed E GIS BCEOM International s.a. as the inspecting body in respect of the reconstruction works and paid the sum of EUR 180 850 for the inspection service, in performance of contract No 06SERO 1102/008 171381 concluded on 16 December 2008 and contract No 04SERO 1105/00 1 162-954 concluded on 24 September 2004, for a total contractual amount of EUR 606 276,39; |
| --- | --- |

—

it selected and appointed E GIS BCEOM International s.a. as the inspecting body in respect of the reconstruction works and paid the sum of EUR 180 850 for the inspection service, in performance of contract No 06SERO 1102/008 171381 concluded on 16 December 2008 and contract No 04SERO 1105/00 1 162-954 concluded on 24 September 2004, for a total contractual amount of EUR 606 276,39;

| — | it bought the equipment necessary for the border crossing (containers, barriers and so on); |
| --- | --- |

—

it bought the equipment necessary for the border crossing (containers, barriers and so on);

| — | it took part in the reconstruction as an investor, directly coordinated and monitored its investment through its office in Belgrade. |
| --- | --- |

—

it took part in the reconstruction as an investor, directly coordinated and monitored its investment through its office in Belgrade.

In addition, the applicant maintains that, by those actions, the EAR unlawfully frustrated the applicant’s legitimate expectations and infringed the lawful and judicially protected rights that the applicant could exercise until December 2007 (so far as concerns the retail outlet) or until 7 May 2009 (so far as concerns rights relating to the goods-customs terminal). Those expectations and rights are the expression of the right to protection of property, which is, inter alia, one of the fundamental rights guaranteed by Article 1 of Protocol No 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Moreover, the applicant maintains that those actions of the EAR amount to a clear and serious breach of general legal principles which, in the circumstances of the case, are in essence: the principle of protection of legitimate expectations, the right to protection of property, the principle of proportionality and the principle of transparency. The obviously serious nature of the breach is demonstrated, inter alia, by the amount of the loss sustained by the applicant.

In the second place, the applicant maintains that the EAR’s conduct caused the financial loss to be incurred, as a result of:

| — | loss of profits, because it was impossible for the applicant to receive income from the goods-customs terminal, a loss which amounts to EUR 56 838 141; |
| --- | --- |

—

loss of profits, because it was impossible for the applicant to receive income from the goods-customs terminal, a loss which amounts to EUR 56 838 141;

| — | loss of profits, because it was impossible for the applicant to receive income from the sales outlet in the Preševo border crossing area, a loss amounting to EUR 46 800 000; |
| --- | --- |

—

loss of profits, because it was impossible for the applicant to receive income from the sales outlet in the Preševo border crossing area, a loss amounting to EUR 46 800 000;

| — | loss of income, because it was impossible for the applicant to receive rents for and other revenue from the shopping centre in the immediate vicinity of the Preševo border crossing, a loss amounting to EUR 42 681 600. |
| --- | --- |

—

loss of income, because it was impossible for the applicant to receive rents for and other revenue from the shopping centre in the immediate vicinity of the Preševo border crossing, a loss amounting to EUR 42 681 600.

In the third place, the applicant maintains that the loss sustained was unarguably caused by the ‘reconstruction’ activity in the Preševo border crossing area, planned and executed by the EAR.

The applicant further argues that the EAR was fully aware of the fact that the applicant possessed the abovementioned rights in the Preševo border crossing area and that the EAR therefore deliberately breached the applicant’s rights.

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| 19.3.2011 | EN | Official Journal of the European Union | C 89/18 |
| --- | --- | --- | --- |

19.3.2011

EN

Official Journal of the European Union

C 89/18

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Action brought on 29 December 2010 — Hellenic Republic v Commission

(Case T-588/10)

2011/C 89/41

Language of the case: Greek

Parties

Applicant: Hellenic Republic (represented by: I. Khalkias, E. Leftheriotou and X. Basakou)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

| — | grant the application; |
| --- | --- |

—

grant the application;

| — | annul the Commission decision of 4 November 2010 excluding from European Union financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD), in so far as the decision concerns financial corrections to the detriment of the Hellenic Republic; |
| --- | --- |

—

annul the Commission decision of 4 November 2010 excluding from European Union financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD), in so far as the decision concerns financial corrections to the detriment of the Hellenic Republic;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

By its action, the Hellenic Republic seeks the annulment of the Commission decision of 4 November 2010 excluding from European Union financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD), notified as document C(2010) 7555 final and published in the Official Journal of the European Union on 5 November 2010 (OJ 2010 L 288, p. 24) as Decision 2010/668/EU, in so far as it concerns financial corrections that were imposed to the detriment of the Hellenic Republic in the areas of (a) direct aid — arable land, (b) tobacco, (c) cross compliance, (d) dried grapes, (e) the islands of the Aegean and (f) animal premiums.

In relation to the correction for direct aid — arable land, the applicant pleads first that there was no valid legal basis for applying the old guidelines to the new common agricultural policy (CAP) and to the new single payment scheme and that that new scheme fails to define the key and ancillary controls in such a way that flat-rate corrections can be applied.

Second, the applicant maintains that the application of the old guidelines to the new CAP seriously infringes the principle of proportionality.

Third the applicant submits that imposition of the correction, and specifically one of more than three times the amount in question, infringes the principle of the protection of legitimate expectations since by reason of judicial decisions it was not possible to renew/complete the Land Parcel Identification System — Geographical Information System (LPIS-GIS) and Greece agreed with the European Union on an action plan to complete the LPIS-GIS, a plan which was adhered to absolutely.

Fourth, the applicant pleads that (a) the facts have been assessed poorly and incorrectly (as regards the alleged belatedness in the carrying out and poor quality of the on-the-spot controls) and (b) it is apparent from a comparison of the data from the LPIS-GIS that was used for the 2006 claim year with the data of the 2009 LPIS-GIS which, as the Commission confirmed by an on-the-spot control, was a complete and reliable system, that the differences and failings are minimal and do not exceed 2.5 %.

In relation to the correction for tobacco, the applicant contends, first, that Article 31 of Regulation (EC) No 1290/2005 (1) has been interpreted and applied incorrectly because the complaints that are relied upon by the European Union gave rise to absolutely no risk for the EAGGF.

Second, the applicant maintains that the conditions for payment of the support were defined exhaustively and exclusively in Article 5 of Regulation (EC) No 2075/92 (2) and therefore the Commission acted unlawfully in laying down in Article 16(1) of Regulation (EC) No 2848/1998 (3) as an additional condition for payment of a premium that the tobacco must be delivered to the first producer by 30 April of the year following the year of harvest (late deliveries of tobacco).

Third, the applicant maintains that Article 16(1) of Commission Regulation (EC) No 2848/1998 offends against the principle of proportionality since lateness of a few days in delivery of the tobacco that was attributable not to the tobacco producers but to the traders purchasing the tobacco deprives the producers of their entire annual income without there being the requisite scaling down/reduction of the premium, and simultaneously infringes Article 39(1)(b) TFEU and Article 3(3) of Regulation (EEC) No 2075/92.

Fourth, the applicant submits that it is not lawful to deny the producers the premium because of the few days’ lateness in delivering the tobacco, particularly as the undertaking pleaded the presence of exceptional circumstances which did not allow it to produce the letters of guarantee in time and to participate in the tobacco deliveries.

Fifth, the applicant maintains that the Commission was mistaken in taking the view that transfer of the cultivation contracts is not permitted by Regulation (EEC) No 2075/92 and Regulation (EC) No 2848/98.

Sixth, the applicant pleads that (a) Articles 5 and 6(2)(b) of Regulation (EEC) No 2075/92 have been incorrectly appraised and applied as regards approval of the three first producers who did not own their own equipment (non-eligible undertakings) and (b) the Commission did not take into account in particular the information of the Monada Epexergasias Kapnou Kentrikis Elladas, A.T.P.L (Tobacco Processing Unit of Central Greece).

In relation to cross compliance, the applicant pleads, first, that there was no valid legal basis for imposing a correction in the area of cross compliance.

Second, the applicant maintains that it is not permissible to apply the matters laid down in document AGRI 64043/9-6-06 retroactively to the 2005 control year.

Third, the applicant submits that the Commission did not comply with its obligation of cooperation that is imposed by the Treaty, since 2005 was the first year in which the new system was applied, and that the applicant complied immediately and fully with the recommendations of the European Union, so that, on the basis also of the general principle of equity, there is no justification for corrections, in particular of 10 %, in a new area of obligations.

Fourth, the applicant contends that the Commission erred in its assessment of the facts as regards also the six points relied upon by the European Union.

In relation to dried grapes, the applicant submits, first, that the unlawful and unjustifiable restrictions are based on an error as to the facts and on misappraisal of the facts and of the provisions of Article 3(2)(d) of Regulation (EC) No 1621/1999. (4)

Second, the applicant maintains that the fivefold increase, from 2 % to 10 %, in the correction for sultanas from the 2002-03 period to the 2003-04 period and the more than doubling of the correction, from 10 % to 25 %, from the 2003-04 period to the 2004-05 period and the 2005-06 period result from incorrect application of the guidelines for flat-rate deductions and incorrect assessment of the facts, constitute a clear breach of the principle of proportionality and exceed the discretion available to the European Union.

Third, the applicant pleads that (a) the fivefold increase in the correction for currants from 5 % in the 2004-05 period to 25 % in the 2005-06 period results from an incorrect interpretation and application of the guidelines for flat-rate deductions, clearly infringes the principle of proportionality and exceeds the discretion available to the European Union in respect of imposition of the correction and (b) that the assessment of 5 % in the 2004-05 period, a period in which no aid was granted for vineyard plots which did not achieve the minimum yield, is arbitrary and not justified.

Fourth, the applicant pleads misappraisal of the facts in relation to the alleged deficiencies in the vineyard register and to identification and measurement of vineyard plots.

Fifth, the applicant maintains that the facts have been assessed incorrectly so far as concerns the alleged shortcomings in respect of the requirements for management and supervision of the measure.

In relation to the islands of the Aegean, the applicant pleads, first, infringement of the principle of res judicata, given that, by its judgment of 27 October 2005 in Case C-175/03 Greece v Commission, not published in the ECR, the Court of Justice annulled the financial correction which had been imposed in this field for the same years, or, in the alternative, infringement of Articles 264 TFEU and 266 TFEU.

Second, the applicant contends that Article 7(4) of Regulation (EC) No 1258/1999, (5) which provides that corrections are to be imposed on the basis of the 24-month rule, has been interpreted and applied incorrectly, in the alternative, that essential procedural requirements have been breached, in the further alternative, that the European Union was not empowered, ratione temporis, to impose a correction in 2010 based on the letter of 17 August 2000, or finally that the imposition of corrections in 2010 for shortcomings of the control system in 1999, 2000 and 2001 infringes the general principle of legal certainty and the general principles requiring action to be taken within a reasonable time and the European Union to act timeously, on account of the unjustified and excessively long duration of the procedure.

Lastly, in relation to animal premiums, the applicant maintains, first, that the procedure for clearance of the accounts is invalid because the Commission was not empowered, ratione temporis, to impose financial corrections and, second, that the facts have been assessed incorrectly, and the principle of proportionality has been infringed, as regards appraisal of the risk to the fund posed by the specific issues.

---

(1)  Council Regulation (EC) No 1290/2005 of 21 June 2005 on the financing of the common agricultural policy.

(2)  Council Regulation (EEC) No 2075/92 of 30 June 1992 on the common organisation of the market in raw tobacco.

(3)  Commission Regulation (EC) No 2848/98 of 22 December 1998 laying down detailed rules for the application of Council Regulation (EEC) No 2075/92 as regards the premium scheme, production quotas and the specific aid to be granted to producer groups in the raw tobacco sector.

(4)  Commission Regulation (EC) No 1621/1999 of 22 July 1999 laying down detailed rules for the application of Council Regulation (EC) No 2201/96 as regards aid for the cultivation of grapes to produce certain varieties of dried grapes.

(5)  Council Regulation (EC) No 1258/1999 of 17 May 1999 on the financing of the common agricultural policy.

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| 19.3.2011 | EN | Official Journal of the European Union | C 89/20 |
| --- | --- | --- | --- |

19.3.2011

EN

Official Journal of the European Union

C 89/20

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Action brought on 4 January 2011 — Portugal v Commission

(Case T-2/11)

2011/C 89/42

Language of the case: Portuguese

Parties

Applicant: Portuguese Republic (represented by: L. Inez Fernandes, M. Figueiredo and J. Saraiva de Almeida, Agents)

Defendant: European Commission

Form of order sought

| — | annulment of Commission Decision C(2010) 7555 of 4 November 2010, excluding from European Union financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), the European Agricultural Guarantee Fund (EAGF) and the European Agricultural Fund for Rural Development (EAFRD), in the part that applies to Portugal an individual financial correction to the POSEI measure, in the financial years 2005, 2006 and 2007, in the total amount of EUR 743 251,25. |
| --- | --- |

—

annulment of Commission Decision C(2010) 7555 of 4 November 2010, excluding from European Union financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), the European Agricultural Guarantee Fund (EAGF) and the European Agricultural Fund for Rural Development (EAFRD), in the part that applies to Portugal an individual financial correction to the POSEI measure, in the financial years 2005, 2006 and 2007, in the total amount of EUR 743 251,25.

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

—

order the European Commission to pay all the costs.

Pleas in law and main arguments

The applicant relies on four pleas in law: infringement of Article 11 of Regulation No 885/2006; (1) error in the interpretation of recital 28 in the preamble to Regulation No 43/2003; (2) infringement of Article 7(4) of Regulation No 1258/1999; (3) breach of the principles of equality and proportionality.

By its first plea, the applicant claims that the Commission infringed Article 1 of Regulation No 885/2006 insofar as it did not indicate any results of checks or any observations relating to the years 2005 and 2006, thereby preventing the Portuguese authorities from proving that its conclusions were inaccurate in relation to those years, or from correcting any deficiencies so as to comply with the Community rules and, therefore, denying them the benefit of the procedural guarantee granted to the Member States under that provision.

By its second plea, the applicant claims that the Commission misinterpreted recital 28 in the preamble to Regulation No 43/2003, in so far as it considered that the monitoring carried out by the Portuguese authorities was insufficient in the light of EU standards, given the level of irregularities noted, without explaining at any time, however, to what extent or for what reason this monitoring should have been different or more extensive while, at the same time, it considered this monitoring to be sufficient for the purposes of calculating the financial correction.

It adds that the Commission also infringed Article 7(4) of Regulation No 1258/1999, under which the Commission is to decide on the expenditure to be excluded from the Community financing where it finds that expenditure has not been effected in compliance with Community rules, by excluding from Community financing the expenditure incurred by the Portuguese Republic, having found, wrongly, that this had not been effected in compliance with those rules.

By its third plea, the applicant claims that the Commission infringed Article 7(4) of Regulation No 1258/1999 in that, during the clearance of the EAGGF-Guarantee accounts, it completely ignored the guidelines set out in Working Paper VI/5330/97 of 23.12.1997, which the Commission established and adopted for the purposes of applying that provision, particularly in relation to the calculation of the financial corrections.

Finally, the applicant claims that, owing also to the failure to observe the above-mentioned guidelines, the Commission breached the principles of equality and proportionality too. Thus, it breached the principle of equality in that it did not treat the situation of the Portuguese Republic in the same way as it treated other equal situations, in particular, by applying a financial correction rate of 5 %, in accordance with those guidelines. It breached the principle of proportionality in that, precisely because it failed to observe those guidelines, the Commission applied much higher correction rates, that is, between 44,32 % and 90,48 %, which was explained on the basis of the financial loss at issue.

By that same line of reasoning, the Commission also infringed Article 7(4) of Regulation No 1258/1999, according to which ‘The Commission shall evaluate the amounts to be excluded having regard in particular to the degree of non-compliance found. The Commission shall take into account the nature and gravity of the infringement and the financial loss suffered by the Community’.

---

(1)  Commission Regulation (EC) No 885/2006 of 21 June 2006 laying down detailed rules for the application of Council Regulation (EC) No 1290/2005 as regards the accreditation of paying agencies and other bodies and the clearance of the accounts of the EAGF and of the EAFRD.

(2)  Commission Regulation (EC) No 43/2003 of 23 December 2002 laying down detailed rules for applying Council Regulations (EC) No 1452/2001, (EC) No 1453/2001 and (EC) No 1454/2001 as regards aid for the local production of crop products in the outermost regions of the European Union

(3)  Council Regulation (EC) No 1258/1999 of 17 May 1999 on the financing of the common agricultural policy.

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| 19.3.2011 | EN | Official Journal of the European Union | C 89/21 |
| --- | --- | --- | --- |

19.3.2011

EN

Official Journal of the European Union

C 89/21

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Action brought on 25 January 2011 — Singapore Airlines and Singapore Airlines Cargo PTE v Commission

(Case T-43/11)

2011/C 89/43

Language of the case: English

Parties

Applicants: Singapore Airlines Ltd and Singapore Airlines Cargo PTE Ltd (represented by: J. Kallaugher, Solicitor, J. P. Poitras, Solicitor, J. R. Calzado and É. Barbier de la Serre, lawyers)

Defendant: European Commission

Form of order sought

| — | Annul Commission’s Decision of 9 November 2010 in case COMP/39.258 — Airfreight; |
| --- | --- |

—

Annul Commission’s Decision of 9 November 2010 in case COMP/39.258 — Airfreight;

| — | As a complement, or in the alternative, reduce the amount of fine imposed on the applicants; and |
| --- | --- |

—

As a complement, or in the alternative, reduce the amount of fine imposed on the applicants; and

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

—

Order the Commission to pay the costs.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging that the decision breaches essential procedural requirements, including:






  — | The right to an independent and impartial tribunal; |
| --- | --- | --- |

1.

First plea in law, alleging that the decision breaches essential procedural requirements, including:

—

The right to an independent and impartial tribunal;

| — | The right to legal certainty and foreseeable penalties; and |
| --- | --- |

—

The right to legal certainty and foreseeable penalties; and

| — | The applicants’ rights of the defence, since Singapore Airlines Cargo PTE Ltd was not granted access to the replies to the Statement of Objections filed by the other undertakings to which the Statement of Objections was addressed and other relevant material in the Commission’s possession that is relied on in the decision. |
| --- | --- |

—

The applicants’ rights of the defence, since Singapore Airlines Cargo PTE Ltd was not granted access to the replies to the Statement of Objections filed by the other undertakings to which the Statement of Objections was addressed and other relevant material in the Commission’s possession that is relied on in the decision.

| 2. | Second plea in law, alleging that the decision is vitiated by a series of errors of fact and law in the application of Article 101 TFEU in relation to the nature and scope of the supposed ‘cartel’, as:






  — | The decision is vitiated by inadequate reasoning because it fails to explain the basis for its central findings and does not define the relevant markets. |
| --- | --- | --- |

2.

Second plea in law, alleging that the decision is vitiated by a series of errors of fact and law in the application of Article 101 TFEU in relation to the nature and scope of the supposed ‘cartel’, as:

—

The decision is vitiated by inadequate reasoning because it fails to explain the basis for its central findings and does not define the relevant markets.

| — | The decision is affected by errors of assessment in relation to the nature and scope of the supposed ‘cartel’. In particular, the contacts alleged in the decision do not constitute a single worldwide network and the finding of a ‘common aim’ linking these contacts is not supported by the evidence; |
| --- | --- |

—

The decision is affected by errors of assessment in relation to the nature and scope of the supposed ‘cartel’. In particular, the contacts alleged in the decision do not constitute a single worldwide network and the finding of a ‘common aim’ linking these contacts is not supported by the evidence;

| — | The Commission has erred in law when it defined the elements of the alleged complex infringement; |
| --- | --- |

—

The Commission has erred in law when it defined the elements of the alleged complex infringement;

| — | The Commission has wrongly assessed the alleged complex infringement relating to non-commissioning of surcharges; and |
| --- | --- |

—

The Commission has wrongly assessed the alleged complex infringement relating to non-commissioning of surcharges; and

| — | The Commission has committed errors of law and of assessment when it treated the three alleged ‘elements’ of the infringement as a single infringement. |
| --- | --- |

—

The Commission has committed errors of law and of assessment when it treated the three alleged ‘elements’ of the infringement as a single infringement.

| 3. | Third plea in law, alleging that the Commission has committed errors of law and fact when it applied Article 101 TFEU to conduct related to sales in foreign jurisdictions, as:






  — | The Commission has committed errors of law and fact when it applied Article 101 TFEU to conduct affecting markets outside the EU, thereby breaching the rules limiting EU’s jurisdiction on such conduct; and |
| --- | --- | --- |

3.

Third plea in law, alleging that the Commission has committed errors of law and fact when it applied Article 101 TFEU to conduct related to sales in foreign jurisdictions, as:

—

The Commission has committed errors of law and fact when it applied Article 101 TFEU to conduct affecting markets outside the EU, thereby breaching the rules limiting EU’s jurisdiction on such conduct; and

| — | The Commission has committed errors of law and assessment when it refused to take into account the fact that in foreign jurisdictions that feature prominently in the decision, the decision does not properly reflect the fact that conduct was actively supervised and effectively required by government agencies. |
| --- | --- |

—

The Commission has committed errors of law and assessment when it refused to take into account the fact that in foreign jurisdictions that feature prominently in the decision, the decision does not properly reflect the fact that conduct was actively supervised and effectively required by government agencies.

| 4. | Fourth plea in law alleging that the Commission has committed a number of errors in inputting the alleged infringement to Singapore Airlines Cargo PTE Ltd, as:






  — | The Commission has committed several errors of law and assessment when it analyzed and took into account contacts prior to 1 May 2004, contacts regarding demands by forwarders for payments of commissions, contacts regarding the security surcharge, contacts regarding the fuel surcharge outside the EU and contacts regarding the fuel surcharge in the EU; |
| --- | --- | --- |

4.

Fourth plea in law alleging that the Commission has committed a number of errors in inputting the alleged infringement to Singapore Airlines Cargo PTE Ltd, as:

—

The Commission has committed several errors of law and assessment when it analyzed and took into account contacts prior to 1 May 2004, contacts regarding demands by forwarders for payments of commissions, contacts regarding the security surcharge, contacts regarding the fuel surcharge outside the EU and contacts regarding the fuel surcharge in the EU;

| — | The Commission has committed errors of law and appreciation regarding the use of WOW alliance contacts to establish Singapore Airlines Cargo PTE Ltd’s participation in the alleged infringement; and |
| --- | --- |

—

The Commission has committed errors of law and appreciation regarding the use of WOW alliance contacts to establish Singapore Airlines Cargo PTE Ltd’s participation in the alleged infringement; and

| — | The Commission has not established that Singapore Airlines Cargo PTE Ltd knew or should have known about the alleged infringement or its constituent elements. |
| --- | --- |

—

The Commission has not established that Singapore Airlines Cargo PTE Ltd knew or should have known about the alleged infringement or its constituent elements.

| 5. | Fifth plea in law alleging that the Commission has breached its duty, pursuant to the principle of sound administration, to examine carefully and impartially all the elements of the case. |
| --- | --- |

5.

Fifth plea in law alleging that the Commission has breached its duty, pursuant to the principle of sound administration, to examine carefully and impartially all the elements of the case.

| 6. | Sixth plea in law, alleging that the decision has made several errors of law and assessment in calculating the fine imposed on the applicants, as:






  — | The Commission has infringed the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006, C 210, p. 2), the principle of proportionality and the principle of equality in calculating the value of sales, as it has not taken into account:






  — | The fact that inbound turnover does nit relate to sales within EEA; |
| --- | --- | --- | --- |

6.

Sixth plea in law, alleging that the decision has made several errors of law and assessment in calculating the fine imposed on the applicants, as:

—

The Commission has infringed the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006, C 210, p. 2), the principle of proportionality and the principle of equality in calculating the value of sales, as it has not taken into account:

—

The fact that inbound turnover does nit relate to sales within EEA;

| — | The limited geographic scope of the conduct in relation to which the decision finds an infringement; |
| --- | --- |

—

The limited geographic scope of the conduct in relation to which the decision finds an infringement;

| — | The relative role of the applicants; and |
| --- | --- |

—

The relative role of the applicants; and

| — | The fact that the supposed coordination only involved surcharges. |
| --- | --- |

—

The fact that the supposed coordination only involved surcharges.

| — | The Commission failed to give proper weight to the scope and duration of the Singapore Airlines Cargo PTE Ltd’s alleged participation in the infringement; and |
| --- | --- |

—

The Commission failed to give proper weight to the scope and duration of the Singapore Airlines Cargo PTE Ltd’s alleged participation in the infringement; and

| — | The failure of the decision to grant a reduction for limited participation to Singapore Airlines Cargo PTE Ltd constitutes a breach of principle of equality of treatment. |
| --- | --- |

—

The failure of the decision to grant a reduction for limited participation to Singapore Airlines Cargo PTE Ltd constitutes a breach of principle of equality of treatment.

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| 19.3.2011 | EN | Official Journal of the European Union | C 89/22 |
| --- | --- | --- | --- |

19.3.2011

EN

Official Journal of the European Union

C 89/22

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Action brought on 24 January 2011 — Fraas v OHIM (Dark grey, light grey, black, beige, dark red and light red coloured checked pattern)

(Case T-50/11)

2011/C 89/44

Language in which the application was lodged: German

Parties

Applicant: V. Fraas GmbH (Helmbrechts-Wüstenselbitz, Germany) (represented by G. Würtenberger and R. Kunze, lawyers)

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

Form of order sought

| — | Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 November 2010 in Case R 1316/2010-4; |
| --- | --- |

—

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 November 2010 in Case R 1316/2010-4;

| — | Order the Office for Harmonisation in the Internal Market to pay the costs. |
| --- | --- |

—

Order the Office for Harmonisation in the Internal Market to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Figurative mark representing a dark grey, light grey, black, beige, dark red and light red coloured checked pattern for goods in Classes 18, 24, and 25

Decision of the Examiner: Rejection of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) in conjunction with Article 7(2) of Regulation (EC) No 207/2009 (1), as the Community trade mark at issue has distinctive character, and infringement of Articles 75 and 76 of Regulation (EC) No 207/2009, as the Board of Appeal did not examine the extensive factual and legal submissions of the applicant.

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

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| 19.3.2011 | EN | Official Journal of the European Union | C 89/23 |
| --- | --- | --- | --- |

19.3.2011

EN

Official Journal of the European Union

C 89/23

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Action brought on 25 January 2011 — SAS Cargo Group and Others v Commission

(Case T-56/11)

2011/C 89/45

Language of the case: English

Parties

Applicants: SAS Cargo Group A/S (Kastrup, Denmark), Scandinavian Airlines System Denmark-Norway-Sweden (Stockholm, Sweden), and SAS AB (Stockholm, Sweden) (represented by: M. Kofmann, B. Creve, lawyers, I. Forrester, QC, J. Killick and G. Forwood, Barristers)

Defendant: European Commission

Form of order sought

| — | annul the decision in whole or in part; |
| --- | --- |

—

annul the decision in whole or in part;

| — | declare that the applicants bear no responsibility for the global single, continuous and complex infringement as described in the decision, and, if necessary, annul the decision to the extent that it may find the applicants so responsible; |
| --- | --- |

—

declare that the applicants bear no responsibility for the global single, continuous and complex infringement as described in the decision, and, if necessary, annul the decision to the extent that it may find the applicants so responsible;

| — | further, or in the alternative, reduce the level of the fine; |
| --- | --- |

—

further, or in the alternative, reduce the level of the fine;

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

—

order the Commission to pay the costs;

| — | make such other order as may be appropriate in the circumstance of the case. |
| --- | --- |

—

make such other order as may be appropriate in the circumstance of the case.

Pleas in law and main arguments

Application for annulment of the Decision of the European Commission of 9 November 2010 relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union in Case COMP/39.258 — Airfreight concerning the coordination of various elements of the price to be charged for airfreight services in relation to fuel surcharge, security surcharge and the payment of commission on surcharges to freight forwarders

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

| 1. | First plea in law, alleging an infringement of essential procedural requirements, as well as the applicants’ rights to good administration, rights of defence and the general principle of equality of arms, by refusing the applicants access to relevant evidence, both inculpatory and exculpatory, which the Commission received after notification of its statement of objections, yet (the inculpatory evidence) is relied on in the contested decision. |
| --- | --- |

1.

First plea in law, alleging an infringement of essential procedural requirements, as well as the applicants’ rights to good administration, rights of defence and the general principle of equality of arms, by refusing the applicants access to relevant evidence, both inculpatory and exculpatory, which the Commission received after notification of its statement of objections, yet (the inculpatory evidence) is relied on in the contested decision.

| 2. | Second plea in law, alleging the lack of competence in so far as the decision applies Articles 101 TFEU/53 EEA to airfreight services that were inbound into the EEA by applying the effects criterion when this is not relevant to the territorial jurisdiction of Articles 101 TFEU/53 EEA, and in incorrectly applying the implementation criterion to sales outside the EEA. |
| --- | --- |

2.

Second plea in law, alleging the lack of competence in so far as the decision applies Articles 101 TFEU/53 EEA to airfreight services that were inbound into the EEA by applying the effects criterion when this is not relevant to the territorial jurisdiction of Articles 101 TFEU/53 EEA, and in incorrectly applying the implementation criterion to sales outside the EEA.

| 3. | Third plea in law, alleging a manifest error in assessing the conduct in which the applicants were involved, and in concluding that these proved the applicants’ participation in, or knowledge of, a global single and continuous infringement; moreover a number of instances of conduct relied on do not constitute an infringement of the relevant competition laws. |
| --- | --- |

3.

Third plea in law, alleging a manifest error in assessing the conduct in which the applicants were involved, and in concluding that these proved the applicants’ participation in, or knowledge of, a global single and continuous infringement; moreover a number of instances of conduct relied on do not constitute an infringement of the relevant competition laws.

| 4. | Fourth plea in law, alleging that the fine was unjustifiably and disproportionately high, taking into account the fact that the applicants were not involved in a global single and continuous infringement, as well as the relevant elements (including mitigating factors) that should have been taken into account when determining the amount of any fine imposed on the applicants. |
| --- | --- |

4.

Fourth plea in law, alleging that the fine was unjustifiably and disproportionately high, taking into account the fact that the applicants were not involved in a global single and continuous infringement, as well as the relevant elements (including mitigating factors) that should have been taken into account when determining the amount of any fine imposed on the applicants.

| 5. | Fifth plea in law, alleging a selective and arbitrary prosecution of the applicants (and others), while 72 other carriers which, according to the statement of objections and the decision, participated in supposedly illegal meetings or discussions and were never prosecuted. This raises serious issues under the European Convention on Human Rights and the Charter of Fundamental Rights of the EU. |
| --- | --- |

5.

Fifth plea in law, alleging a selective and arbitrary prosecution of the applicants (and others), while 72 other carriers which, according to the statement of objections and the decision, participated in supposedly illegal meetings or discussions and were never prosecuted. This raises serious issues under the European Convention on Human Rights and the Charter of Fundamental Rights of the EU.

| 6. | Sixth plea in law, alleging an infringement of the applicants’ right to an independent and impartial tribunal enshrined in Article 47(2) of the Charter of Fundamental Rights of the EU, in so far as the decision was adopted by an administrative authority which holds simultaneously powers of investigation and sanction. |
| --- | --- |

6.

Sixth plea in law, alleging an infringement of the applicants’ right to an independent and impartial tribunal enshrined in Article 47(2) of the Charter of Fundamental Rights of the EU, in so far as the decision was adopted by an administrative authority which holds simultaneously powers of investigation and sanction.

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| 19.3.2011 | EN | Official Journal of the European Union | C 89/23 |
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19.3.2011

EN

Official Journal of the European Union

C 89/23

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Appeal brought on 25 January 2011 by Michel Nolin against the judgment of the Civil Service Tribunal delivered on 1 December 2010 in Case F-82/09, Nolin v Commission

(Case T-58/11 P)

2011/C 89/46

Language of the case: French

Parties

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

Other party to the proceedings: European Commission

Form of order sought by the appellant

The appellant claims that the Court should:

| — | Set aside of the judgment of the Civil Service Tribunal (3rd Chamber) delivered on 1 December 2010 in Case F-82/09 (Michel Nolin v Commission); |
| --- | --- |

—

Set aside of the judgment of the Civil Service Tribunal (3rd Chamber) delivered on 1 December 2010 in Case F-82/09 (Michel Nolin v Commission);

| — | and, giving judgment itself,






  — | annul the decision of 19 December 2008 of the Director-General of the Personnel and Administration Directorate-General of the European Commission, to cancel all of the appellant's merit points and priority points following his promotion to grade AD 13 under Article 29(1)(a)(iii) of the Staff Regulations; |
| --- | --- | --- |

—

and, giving judgment itself,

—

annul the decision of 19 December 2008 of the Director-General of the Personnel and Administration Directorate-General of the European Commission, to cancel all of the appellant's merit points and priority points following his promotion to grade AD 13 under Article 29(1)(a)(iii) of the Staff Regulations;

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

—

order the Commission to pay the costs in both sets of proceedings.

Pleas in law and main arguments

In support of the appeal, the appellant relies on two pleas in law.

| 1. | First plea, alleging infringement of the principles of legality and legal certainty, since the CST erred in law in deciding that the Commission was entitled, with no legal basis, to base the contested decision on the general scheme of the general implementing provisions under Article 45(1) of the Staff Regulations of Officials of the European Union. |
| --- | --- |

1.

First plea, alleging infringement of the principles of legality and legal certainty, since the CST erred in law in deciding that the Commission was entitled, with no legal basis, to base the contested decision on the general scheme of the general implementing provisions under Article 45(1) of the Staff Regulations of Officials of the European Union.

| 2. | Second plea, alleging misapplication of the principle of non-discrimination, since the CST erred in law (i) in deciding that the Director-General of the Personnel and Administration Directorate-General had residual power which had not been legally conferred on him by a decision of the appointing authority in accordance with Article 2(ii) of the Staff Regulations and (ii) in deciding that officials promoted pursuant to Articles 29 and 45 of the Staff Regulations would, following their appointment or promotion, be in the same legal situation, even though that situation would not be the same either in terms of procedure or in terms of duties and responsibilities. |
| --- | --- |

2.

Second plea, alleging misapplication of the principle of non-discrimination, since the CST erred in law (i) in deciding that the Director-General of the Personnel and Administration Directorate-General had residual power which had not been legally conferred on him by a decision of the appointing authority in accordance with Article 2(ii) of the Staff Regulations and (ii) in deciding that officials promoted pursuant to Articles 29 and 45 of the Staff Regulations would, following their appointment or promotion, be in the same legal situation, even though that situation would not be the same either in terms of procedure or in terms of duties and responsibilities.

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| 19.3.2011 | EN | Official Journal of the European Union | C 89/24 |
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19.3.2011

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Official Journal of the European Union

C 89/24

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Action brought on 31 January 2011 — ISOTIS v Commission

(Case T-59/11)

2011/C 89/47

Language of the case: Greek

Parties

Applicant: Information Society open to impairmentS — ISOTIS (Athens, Greece) (represented by: B. Khristianos, lawyer)

Defendant: European Commission

Form of order sought

The applicant asks the General Court to:

| — | Declare that the applicant has in no way infringed Article ΙΙ.16.2 of the general conditions of the FP6 contracts, Articles ΙΙ.7.3 (serious financial regularity) and ΙΙ.7.4 (false declarations) of the general conditions of the eTEN contracts and Article ΙΙ.10.3 (breach of contract and failure to provide information) of the general conditions of the CIP contracts; |
| --- | --- |

—

Declare that the applicant has in no way infringed Article ΙΙ.16.2 of the general conditions of the FP6 contracts, Articles ΙΙ.7.3 (serious financial regularity) and ΙΙ.7.4 (false declarations) of the general conditions of the eTEN contracts and Article ΙΙ.10.3 (breach of contract and failure to provide information) of the general conditions of the CIP contracts;

| — | Declare that by calling into question the eligibility of the applicant’s costs the Commission has infringed the contracts in question; |
| --- | --- |

—

Declare that by calling into question the eligibility of the applicant’s costs the Commission has infringed the contracts in question;

| — | Declare that the costs amounting to EUR 932 362,44 which the applicant submitted to the Commission in connection with the ACCESS-eGOV, EU4ALL, eABILITIES, EMERGE, ENABLE, ASK-IT, NAVIGABILE, EURIDICE and T-SENIORITY contracts are eligible costs and that the applicant is not obliged to repay the sums contributed by the Commission; |
| --- | --- |

—

Declare that the costs amounting to EUR 932 362,44 which the applicant submitted to the Commission in connection with the ACCESS-eGOV, EU4ALL, eABILITIES, EMERGE, ENABLE, ASK-IT, NAVIGABILE, EURIDICE and T-SENIORITY contracts are eligible costs and that the applicant is not obliged to repay the sums contributed by the Commission;

| — | Declare that Commission’s delay in paying the final funding payments in respect of the EU4ALL, ASK-IT and ENABLE contracts constitutes a breach of its contractual obligations; |
| --- | --- |

—

Declare that Commission’s delay in paying the final funding payments in respect of the EU4ALL, ASK-IT and ENABLE contracts constitutes a breach of its contractual obligations;

| — | Declare that the Commission must pay to the applicant the sum of EUR 52 584,05 in interest from the notification of this action, in respect of the costs incurred by the applicant in connection with the EU4ALL contract; |
| --- | --- |

—

Declare that the Commission must pay to the applicant the sum of EUR 52 584,05 in interest from the notification of this action, in respect of the costs incurred by the applicant in connection with the EU4ALL contract;

| — | Declare that the Commission must pay to the applicant the sum of EUR 20 678,61 in interest from the notification of this action, in respect of the costs incurred by the applicant in connection with the ASK-IT contract; |
| --- | --- |

—

Declare that the Commission must pay to the applicant the sum of EUR 20 678,61 in interest from the notification of this action, in respect of the costs incurred by the applicant in connection with the ASK-IT contract;

| — | Declare that the Commission must pay to the applicant the sum of EUR 11 693,05 interest from the notification of this action, in respect of the costs incurred by the applicant in connection with the ENABLE contract; |
| --- | --- |

—

Declare that the Commission must pay to the applicant the sum of EUR 11 693,05 interest from the notification of this action, in respect of the costs incurred by the applicant in connection with the ENABLE contract;

| — | Order the Commission to pay the applicant’s legal costs. |
| --- | --- |

—

Order the Commission to pay the applicant’s legal costs.

Pleas in law and main arguments

In support of this action, which is based on (1) the arbitration clauses in the contracts in question and (2) on Belgian law, which governs the contracts in question, the applicant puts forward two arguments.

First, the applicant maintains that the costs which it submitted to the Commission were eligible costs and that it has not infringed its contractual obligations. In particular, the applicant maintains that the objections which the Commission sent to it after the financial audit checks on the ACCESS-eGOV, EU4ALL, eABILITIES, EMERGE, ENABLE, ASK-IT, NAVIGABILE, EURIDICE and T-SENIORITY programmes in respect of its economic management and the eligibility of its costs are wholly unfounded. Accordingly, there was no infringement of its contractual obligations and all of its costs must be declared to be eligible costs.

Second, by calling into question the eligibility of the costs and by delaying the payment of certain costs the Commission is in breach of its contractual obligations. In particular, the applicant maintains that the Commission’s questioning of the eligibility of the costs constitutes a breach of contract, contrary to the principle of good faith and an abuse of rights, because the findings which were drawn from the financial audit were entirely unsupported, vague and general. Moreover, the applicant maintains that the Commission’s delay in paying the final funding payments in respect of the EU4ALL, ASK-IT and ENABLE contracts constitutes a breach of its contractual obligations and the applicant seeks a declaration that the Commission is obliged to make payment.

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| 19.3.2011 | EN | Official Journal of the European Union | C 89/25 |
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19.3.2011

EN

Official Journal of the European Union

C 89/25

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Action brought on 28 January 2011 — Vermop Salmon v OHIM — Leifheit (Clean Twist)

(Case T-61/11)

2011/C 89/48

Language in which the application was lodged: German

Parties

Applicant: Vermop Salmon GmbH (Gilching, Germany) (represented by: W. von der Osten-Sacken, O. Sude and M. Ring, lawyers)

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

Other party to the proceedings before the Board of Appeal: Leifheit AG (Nassau, Germany)

Form of order sought

| — | Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 19 November 2010 in Case R 671/2010-1; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 19 November 2010 in Case R 671/2010-1;

| — | Declare Community trade mark No 4892642 ‘Clean Twist’ invalid; |
| --- | --- |

—

Declare Community trade mark No 4892642 ‘Clean Twist’ invalid;

| — | Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to bear its own costs and to pay those of the applicant; |
| --- | --- |

—

Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to bear its own costs and to pay those of the applicant;

| — | In the event that Leifheit AG intervenes in the proceedings, order the intervener to bear its own costs. |
| --- | --- |

—

In the event that Leifheit AG intervenes in the proceedings, order the intervener to bear its own costs.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: the word mark ‘Clean Twist’ for goods in Class 21

Proprietor of the Community trade mark: Leifheit AG

Applicant for the declaration of invalidity of the Community trade mark: the applicant

Grounds for the application for a declaration of invalidity: the earlier word marks ‘TWIX’ and ‘TWIXTER’ for goods in Classes 9, 12, 21, 22 and 25. Infringement of Article 53(1)(a) in conjunction with Article 8(1)(b) of Regulation (EC) No 207/2009. (1)

Decision of the Cancellation Division: Rejection of the application for a declaration of invalidity

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 53(1)(a) in conjunction with Article 8(1)(b) of Regulation (EC) No 207/2009 as there is a likelihood of confusion between the marks at issue.

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

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| 19.3.2011 | EN | Official Journal of the European Union | C 89/25 |
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19.3.2011

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Official Journal of the European Union

C 89/25

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Action brought on 28 January 2011 — Run2Day Franchise v OHIM — Runners Point (Run2)

(Case T-64/11)

2011/C 89/49

Language in which the application was lodged: English

Parties

Applicant: Run2Day Franchise BV (Utrecht, Netherlands) (represented by: H.J. Koenraad, lawyer)

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

Other party to the proceedings before the Board of Appeal: Runners Point Warenhandels GmbH (Recklinghausen, Germany)

Form of order sought

| — | Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 11 November 2010 in case R 349/2010-1; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 11 November 2010 in case R 349/2010-1;

| — | Order the defendant, and if applicable the other party to the proceedings before the Board of Appeal, to bear the costs of the proceedings; |
| --- | --- |

—

Order the defendant, and if applicable the other party to the proceedings before the Board of Appeal, to bear the costs of the proceedings;

Pleas in law and main arguments

Applicant for a Community trade mark: The other party to the proceedings before the Board of Appeal

Community trade mark concerned: The figurative mark ‘Run2’, for goods and services in classes 18, 25 and 35 — Community trade mark application No 6517502

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

Mark or sign cited in opposition: Community trade mark registration No 3800448 of the word mark ‘RUN2DAY’, for goods and services in classes 25, 28 and 35; Community trade mark registration No 3832458 of the figurative mark in colours ‘RUN2DAY’, for goods and services in classes 25, 28 and 35; Benelux trade mark registration No 811897 of the figurative mark in colours ‘RUN2DAY’, for goods and services in class 25

Decision of the Opposition Division: Upheld the opposition

Decision of the Board of Appeal: Annulled the decision of the Opposition Division and rejected the opposition

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly assessed that there was no likelihood of confusion.

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| 19.3.2011 | EN | Official Journal of the European Union | C 89/26 |
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19.3.2011

EN

Official Journal of the European Union

C 89/26

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Action brought on 28 January 2011 — Present Service Ullrich v OHIM — Punt-Nou (babilu)

(Case T-66/11)

2011/C 89/50

Language in which the application was lodged: English

Parties

Applicant: Present Service Ullrich Verwaltungs-GmbH (Erlangen, Germany) (represented by: A. Graf von Kalckreuth, lawyer)

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

Other party to the proceedings before the Board of Appeal: Punt-Nou, SL (Ontynient, Spain)

Form of order sought

| — | Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 19 November 2010 in case R 773/2010-2; |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 19 November 2010 in case R 773/2010-2;

| — | Dismiss the opposition against the applicant’s trade mark ‘babilu’ and declare that the trade mark ‘babilu’ should be registered for all the goods and services applied for; |
| --- | --- |

—

Dismiss the opposition against the applicant’s trade mark ‘babilu’ and declare that the trade mark ‘babilu’ should be registered for all the goods and services applied for;

| — | 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 ‘babilu’, for goods and services in classes 16, 18, 35, 36, 38 and 41 — Community trade mark application No 7205305

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 3363645 of the word mark ‘BABIDU’, for amongst others, services in class 35

Decision of the Opposition Division: Accepted the opposition in its entirety

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly assessed that there was likelihood of confusion on the part of the relevant public.

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| 19.3.2011 | EN | Official Journal of the European Union | C 89/26 |
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19.3.2011

EN

Official Journal of the European Union

C 89/26

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Action brought on 24 January 2011 — Truvo Belgium v OHIM — AOL (Truvo)

(Case T-69/11)

2011/C 89/51

Language in which the application was lodged: English

Parties

Applicant: Truvo Belgium (Antwerp, Belgium) (represented by: O.F.A.W. van Haperen, lawyer)

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

Other party to the proceedings before the Board of Appeal: AOL LLC (Dulles, United States)

Form of order sought

| — | Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 21 October 2010 in case R 956/2009-2; and |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 21 October 2010 in case R 956/2009-2; and

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

—

Order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: The figurative mark in colour ‘Truvo’, for goods and services in classes 16, 35, 38 and 41 — Community trade mark application No 6288484

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 4756169 of the figurative mark ‘TRUVEO’ for services in class 42

Decision of the Opposition Division: Rejected the Community trade mark application for all of class 38

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: The applicant considers that the contested decision infringes Article 8(1)(b) of Council Regulation (EC) No 207/2009, as well as it lacks proper motivation, as the Board of Appeal erred (i) in its comparison of the services, (ii) in its comparison of the signs, (iii) in its assessment of the relevant public, and (iv) in its assessment of likelihood of confusion.

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| 19.3.2011 | EN | Official Journal of the European Union | C 89/27 |
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19.3.2011

EN

Official Journal of the European Union

C 89/27

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Action brought on 2 February 2011 — Spain v Commission

(Case T-76/11)

2011/C 89/52

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by: N. Díaz Abad, acting as Agent)

Defendant: European Commission

Form of order sought

The applicant requests the Court to:

| — | annul Commission Regulation (EU) No 1004/2010 of 8 November 2010 of operating deductions from certain fishing quotas for 2010 on account of overfishing in the previous year (OJ 2010 L 291, p. 31); and |
| --- | --- |

—

annul Commission Regulation (EU) No 1004/2010 of 8 November 2010 of operating deductions from certain fishing quotas for 2010 on account of overfishing in the previous year (OJ 2010 L 291, p. 31); and

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

The applicant raises four pleas in law in support of its action:

| 1. | First plea in law, based on an error of legal basis, given that the legal basis for the impugned act is Article 105 of Council Regulation (EC) No 1224/2009 of 20 November 2009 (1), which entered into force on 1 January 2010, whilst the infringements to which the penalties at issue apply were committed in 2009. |
| --- | --- |

1.

First plea in law, based on an error of legal basis, given that the legal basis for the impugned act is Article 105 of Council Regulation (EC) No 1224/2009 of 20 November 2009 (1), which entered into force on 1 January 2010, whilst the infringements to which the penalties at issue apply were committed in 2009.

| 2. | Second plea in law, based on breach of the principles of legality and legal certainty, since penalty rules are being applied which were not in force at the time the infringements occurred. |
| --- | --- |

2.

Second plea in law, based on breach of the principles of legality and legal certainty, since penalty rules are being applied which were not in force at the time the infringements occurred.

| 3. | Third plea in law, based on breach of the principle of non-retroactivity of less favourable penalty provisions, insofar as less favourable rules are being applied to infringements that occurred in 2009. |
| --- | --- |

3.

Third plea in law, based on breach of the principle of non-retroactivity of less favourable penalty provisions, insofar as less favourable rules are being applied to infringements that occurred in 2009.

| 4. | Fourth plea in law, based on the fact that it may not be left to the Commission to determine the law applicable by reference to the time it chooses to commence an inquiry into a practice. |
| --- | --- |

4.

Fourth plea in law, based on the fact that it may not be left to the Commission to determine the law applicable by reference to the time it chooses to commence an inquiry into a practice.

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(1)  Council Regulation (EC) No 1224/2009 of 20 November 2009 establishing a Community control system for ensuring compliance with the rules of the common fisheries policy, amending Regulations (EC) No 847/96, (EC) No 2371/2002, (EC) No 811/2004, (EC) No 768/2005, (EC) No 2115/2005, (EC) No 2166/2005, (EC) No 388/2006, (EC) No 509/2007, (EC) No 676/2007, (EC) No 1098/2007, (EC) No 1300/2008, (EC) No 1342/2008 and repealing Regulations (EEC) No 2847/93, (EC) No 1627/94 and (EC) No 1966/2006 (OJ L 343, 22.12.2009, p. 1).

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| 19.3.2011 | EN | Official Journal of the European Union | C 89/27 |
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Official Journal of the European Union

C 89/27

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Order of the General Court of 21 January 2011 — Sumitomo Chemical Agro Europe v Commission

(Case T-416/06) (1)

2011/C 89/53

Language of the case: English

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

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(1)  OJ C 42, 24.2.2007.

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European Union Civil Service Tribunal

| 19.3.2011 | EN | Official Journal of the European Union | C 89/28 |
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19.3.2011

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Official Journal of the European Union

C 89/28

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Order of the Civil Service Tribunal of 8 February 2011 — Chiavegato v Commission

(Case F-60/10) (1)

2011/C 89/54

Language of the case: French

The President of the First Chamber has ordered that the case be removed from the register, following amicable settlement.

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(1)  OJ C 260, 25.9.10, p. 28.

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