# Official Journal C 133/2012

| | ISSN 1977-091X
  doi:10.3000/1977091X.C_2012.133.eng |
| --- | --- |
| Official Journal
  of the European Union | C 133 |
| | |
| English edition | Information and Notices | Volume 555 May 2012 |

ISSN 1977-091X

doi:10.3000/1977091X.C_2012.133.eng

Official Journal

of the European Union

C 133

English edition

Information and Notices

Volume 555 May 2012

---

| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | Court of Justice of the European Union |
| 2012/C 133/01 | Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 126, 28.4.2012 | 1 |

Notice No

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

2012/C 133/01

Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 126, 28.4.2012

Official Journal of the European Union

1

| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2012/C 133/02 | Case C-380/09 P: Judgment of the Court (Grand Chamber) of 13 March 2012 — Melli Bank plc v Council of the European Union, French Republic, United Kingdom of Great Britain and Northern Ireland, European Commission (Appeal — Common foreign and security policy — Restrictive measures against the Islamic Republic of Iran to prevent nuclear proliferation — Freezing the funds of a bank’s subsidiary — Principle of proportionality — Ownership or control of the entity) | 2 |
| 2012/C 133/03 | Case C-506/09 P: Judgment of the Court (First Chamber) of 22 March 2012 — Portuguese Republic v Transnáutica — Transportes e Navegação SA, European Commission (Appeal — Customs union — Regulation (EEC) No 2913/92 and Regulation (EEC) No 2454/93 — Remission of import duties — Consignments of tobacco and ethyl alcohol for third countries — Fraud committed by an employee of the company liable) | 2 |
| 2012/C 133/04 | Case C-135/10: Judgment of the Court (Third Chamber) of 15 March 2012 (reference for a preliminary ruling from the Corte d’appello di Torino — Italy) — Società Consortile Fonografici (SCF) v Marco Del Corso (Copyright and related rights in the information society — Direct applicability of the Rome Convention, the TRIPS Agreement and the WPPT in the European Union legal order — Directive 92/100/EC — Article 8(2) — Directive 2001/29/EC — Concept of communication to the public — Communication to the public of phonograms broadcast by radio in a dental practice) | 3 |
| 2012/C 133/05 | Case C-162/10: Judgment of the Court (Third Chamber) of 15 March 2012 (reference for a preliminary ruling from the High Court of Ireland — Ireland) — Phonographic Performance (Ireland) Ltd v Ireland, Attorney General (Copyright and related rights — Directive 2006/115/EC — Articles 8 and 10 — Concepts of user and communication to the public — Installation in hotel bedrooms of televisions and/or radios to which the hotelier distributes a broadcast signal) | 3 |
| 2012/C 133/06 | Case C-190/10: Judgment of the Court (First Chamber) of 22 March 2012 (reference for a preliminary ruling from the Tribunal Supremo — Spain) — Génesis Seguros Generales Sociedad Anónima de Seguros y Reaseguros (GENESIS) v Boys Toys SA, Administración del Estado (Community trade mark — Definition and acquisition — Earlier trade mark — Procedure for filing — Filing by electronic means — Method enabling precise identification of the day, hour and minute when the application was filed) | 4 |
| 2012/C 133/07 | Case C-292/10: Judgment of the Court (First Chamber) of 15 March 2012 (reference for a preliminary ruling from the Landgericht Regensburg — Germany) — G v Cornelius de Visser (Jurisdiction and the enforcement of judgments in civil and commercial matters — Public notification of legal documents — Lack of known domicile or place of abode of the defendant in the territory of a Member State — Jurisdiction in matters relating to tort, delict or quasi-delict — Infringement of the right to protection of personality liable to have been committed by the publication of photographs on the internet — Place where the harmful event occurred or may occur) | 5 |
| 2012/C 133/08 | Case C-338/10: Judgment of the Court (Third Chamber) of 22 March 2012 (reference for a preliminary ruling from the Finanzgericht Hamburg — Germany) — Grünwald Logistik Service GmbH (GLS) v Hauptzollamt Hamburg-Stadt (Dumping — Anti-dumping duty imposed on imports of certain prepared or preserved citrus fruits originating in China — Regulation (EC) No 1355/2008 — Validity — Regulation (EC) No 384/96 — Article 2(7)(a) — Determination of normal value — Non-market economy country — Commission’s obligation to take due care to determine normal value on the basis of the price or constructed value in a market economy third country) | 5 |
| 2012/C 133/09 | Case C-340/10: Judgment of the Court (Fourth Chamber) of 15 March 2012 — European Commission v Republic of Cyprus (Failure of a Member State to fulfil obligations — Directive 92/43/EEC — Articles 4(1) and 12(1) — Failure to include Paralimni Lake as a site of Community importance within the time-limit laid down — System of protection for the species Natrix natrix cypriaca (Cypriot grass snake)) | 6 |
| 2012/C 133/10 | Case C-376/10 P: Judgment of the Court (Grand Chamber) of 13 March 2012 — Pye Phyo Tay Za v Council of the European Union, United Kingdom of Great Britain and Northern Ireland, European Commission (Appeal — Common foreign and security policy — Restrictive measures against the Republic of the Union of Myanmar — Freezing of funds applicable to persons, entities and bodies — Legal basis) | 6 |
| 2012/C 133/11 | Case C-453/10: Judgment of the Court (First Chamber) of 15 March 2012 (reference for a preliminary ruling from the Okresný súd Prešov — Slovakia) — Jana Pereničová, Vladislav Perenič v SOS financ, spol. s r. o. (Consumer protection — Consumer credit agreement — Incorrect statement of annual percentage rate of charge — Effect of unfair commercial practices and unfair terms on the validity of the contract as a whole) | 7 |
| 2012/C 133/12 | Case C-567/10: Judgment of the Court (Fourth Chamber) of 22 March 2012 (reference for a preliminary ruling from the Cour constitutionnelle — Belgium) — Inter-Environnement Bruxelles ASBL, Pétitions-Patrimoine ASBL, Atelier de Recherche et d’Action Urbaines ASBL v Région de Bruxelles-Capitale (Directive 2001/42/EC — Assessment of the effects of certain plans and programmes on the environment — Concept of plans and programmes which are required by legislative, regulatory or administrative provisions — Applicability of the directive to a procedure for the total or partial repeal of a land use plan) | 8 |
| 2012/C 133/13 | Case C-574/10: Judgment of the Court (Third Chamber) of 15 March 2012 — European Commission v Federal Republic of Germany (Failure of a Member State to fulfil its obligations — Directive 2004/18/EC — Public service contracts — Architecture and engineering services — Design, planning and supervision of a project to renovate a public building — Implementation of the project in several phases, for budgetary reasons — Market value) | 8 |
| 2012/C 133/14 | Case C-46/11: Judgment of the Court (Eighth Chamber) of 15 March 2012 — European Commission v Republic of Poland (Failure of a Member State to fulfil obligations — Directive 92/43/EEC — Conservation of natural habitats and of wild fauna and flora — Inadequate protection of certain species, including the otter (Lutra Lutra)) | 9 |
| 2012/C 133/15 | Joined Cases C-90/11 and C-91/11: Judgment of the Court (Third Chamber) of 15 March 2012 (references for a preliminary ruling from the Bundespatentgericht — Germany) — Alfred Strigl v Deutsches Patent- und Markenamt (Case C-90/11), Securvita Gesellschaft zur Entwicklung alternativer Versicherungskonzepte mbH v Öko-Invest Verlagsgesellschaft mbH (C-91/11) (Trade marks — Directive 2008/95/EC — Grounds for refusal or invalidity — Verbal expressions which consist of a word combination and a sequence of letters identical to the initial letters of those words — Distinctive character — Descriptive character — Assessment criteria) | 9 |
| 2012/C 133/16 | Case C-153/11: Judgment of the Court (Second Chamber) of 22 March 2012 (reference for a preliminary ruling from the Administrativen sad — Varna — Bulgaria) — Klub OOD v Direktor na Direktsia Obzhalvane i upravlenie na izpalnenieto — Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite (VAT — Directive 2006/112/EC — Article 168 — Right of deduction — Origin of the right of deduction — Right of a company to deduct the input VAT paid for the acquisition of capital goods not yet brought into use for the company’s business activities) | 9 |
| 2012/C 133/17 | Case C-157/11: Judgment of the Court (Sixth Chamber) of 15 March 2012 (reference for a preliminary ruling from the Tribunale di Napoli — Italy) — Giuseppe Sibilio v Comune di Afragola (Social policy — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 1999/70/EC — Clause 2 — Concept of an employment contract or relationship defined by law, collective agreements or practice in force in each Member State — Scope of the framework agreement — Clause 4, point 1 — Principle of non-discrimination — Persons carrying out work of social utility with public authorities — National rule excluding the existence of an employment relationship — National rule establishing a difference between the benefit paid to socially useful workers and the remuneration received by workers engaged under a contract of definite and/or indefinite duration by the same public authorities and carrying out the same activities) | 10 |
| 2012/C 133/18 | Case C-248/11: Judgment of the Court (Second Chamber) of 22 March 2012 (reference for a preliminary ruling from the Curtea de Apel Cluj — Romania) — Criminal proceedings against Rareș Doralin Nilaș, Sergiu-Dan Dascăl, Gicu Agenor Gânscă, Ana-Maria Oprean, Ionuț Horea Baboș (Directive 2004/39/EC — Markets in financial instruments — Article 4(1)(14) — Concept of regulated market — Authorisation — Functional requirements — Market whose legal nature is not specified, but which is managed, after a merger, by a legal person also managing a regulated market — Article 47 — Not included on the list of regulated markets — Directive 2003/6/EC — Scope — Market manipulation) | 10 |
| 2012/C 133/19 | Case C-191/11 P: Order of the Court (Eighth Chamber) of 8 February 2012 — Yorma’s AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Norma Lebensmittelfilialbetrieb GmbH & Co. KG (Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 8(1)(b) — Opposition proceedings — Application for Community figurative mark with the word element yorma’s — Earlier Community word mark NORMA — Relative ground for refusal — Likelihood of confusion) | 11 |
| 2012/C 133/20 | Case C-404/11 P: Order of the Court of 2 February 2012 — Elf Aquitaine SA v European Commission (Appeal — Regulation (EC) No 1/2003 — Competition — Cartel — Sodium chlorate market — Concept of an undertaking — Presumption of decisive influence — Scope of that presumption — Factors not capable of rebutting the presumption — Personal fine — Unlimited jurisdiction) | 11 |
| 2012/C 133/21 | Case C-421/11 P: Order of the Court of 7 February 2012 — Total SA and Elf Aquitaine SA v European Commission (Appeal — Regulation (EC) No 1/2003 — Competition — Cartel — Market for methacrylates — Concept of undertaking — Presumption of decisive influence — Obligation to state reasons — Principle of sound administration — Extension of the authority of a final decision — Deterrent multiplying factor — Indivisible nature of the fine — Unlimited jurisdiction) | 12 |
| 2012/C 133/22 | Case C-442/11: Order of the Court (Eighth Chamber) of 9 February 2012 (reference for a preliminary ruling from the High Court of Justice (Chancery Division) (United Kingdom) — Novartis AG v Actavis UK Ltd (The first subparagraph of Article 104(3) of the Rules of Procedure — Medicinal products for human use — Supplementary protection certificate — Regulation (EC) No 469/2009 — Articles 4 and 5 — Sole active ingredient for which such a certificate is granted — Scope of protection — Medicinal product containing more than one active ingredient, including the active ingredient which is the subject of a certificate) | 12 |
| 2012/C 133/23 | Case C-556/11: Order of the Court (Sixth Chamber) of 9 February 2012 (reference for a preliminary ruling from the Juzgado Contencioso-Administrativo No 4 de Valladolid — Espagne) — María Jesús Lorenzo Martínez v Junta de Castilla y León, Dirección General de Recursos Humanos de la Consejería de Educación (First subparagraph of Article 104(3) of the Rules of Procedure — Social policy — Directive 1999/70/EC — Clause 4(1) of the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Fixed-term employment contracts in the public sector — Non-university teaching — Right to six-yearly continuing professional education increments — Exclusion of teachers employed as temporary officials — Principle of non-discrimination) | 13 |
| 2012/C 133/24 | Case C-574/11: Order of the Court (Eighth Chamber) of 9 February 2012 (reference for a preliminary ruling from the Landgericht Düsseldorf — Germany) — Novartis AG v Actavis Deutschland GmbH & Co KG, Actavis Ltd (The first subparagraph of Article 104(3) of the Rules of Procedure — Medicinal products for human use — Supplementary protection certificate — Regulation (EC) No 469/2009 — Articles 4 and 5 — Sole active ingredient for which such a certificate is granted — Scope of protection — Medicinal product containing more than one active ingredient, including the active ingredient which is the subject of a certificate) | 13 |
| 2012/C 133/25 | Case C-599/11 P: Appeal brought on 28 November 2011 by TofuTown.com GmbH against the judgment of the General Court (Second Chamber) delivered on 20 September 2011 in Case T-99/10 Meica Ammerländische Fleischwarenfabrik Fritz Meinen GmbH & Co. KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) | 14 |
| 2012/C 133/26 | Case C-611/11 P: Appeal brought on 30 November 2011 by ara AG against the judgment of the General Court (Seventh Chamber) delivered on 22 September 2011 in Case T-174/10 ara v OHIM | 14 |
| 2012/C 133/27 | Case C-624/11 P: Appeal brought on 6 December 2011 by Brighton Collectibles, Inc. against the judgment of the General Court (Second Chamber) delivered on 27 September 2011 in Case T-403/10 Brighton Collectibles v OHIM — Felmar | 15 |
| 2012/C 133/28 | Case C-72/12: Reference for a preliminary ruling from the Bundesverwaltungsgericht (Federal Administrative Court) Leipzig (Germany) lodged on 13 February 2012 — Gemeinde Altrip (Municipality of Altrip), Gebrüder Hört GbR, Willi Schneider v Rhineland-Palatinate | 15 |
| 2012/C 133/29 | Case C-76/12: Action brought on 13 February 2012 — European Commission v French Republic | 16 |
| 2012/C 133/30 | Case C-78/12: Reference for a preliminary ruling from the Аdministrativen sad Sofia-grad (Bulgaria) lodged on 14 February 2012 — Еvitа-K EOOD v Direktor na Direktsia Obzhalvane i upravlenie na izpalnenieto, Sofia | 16 |
| 2012/C 133/31 | Case C-84/12: Reference for a preliminary ruling from the Verwaltungsgericht Berlin (Germany) lodged on 17 February 2012 — Ezatollah Rahmanian Koushkaki v Federal Republic of Germany | 17 |
| 2012/C 133/32 | Case C-89/12: Reference for a preliminary ruling from the Hof van Cassatie van België (Belgium) lodged on 17 February 2012 — Rose Marie Bark v Galileo Joint Undertaking, in liquidation | 18 |
| 2012/C 133/33 | Case C-92/12: Reference for a preliminary ruling from High Court of Ireland (Ireland) made on 17 February 2012 — Health Service Executive v SC, AC | 18 |
| 2012/C 133/34 | Case C-93/12: Reference for a preliminary ruling from the Administrativen sad Sofia-grad (Bulgaria) lodged on 21 February 2012 — ET Agrokonsulting-04-Velko Stoyanov v Izpalnitelen direktor na Darzhaven fond Zemedelie — Razplashtatelna agentsia | 19 |
| 2012/C 133/35 | Case C-101/12: Reference for a preliminary ruling from the Verwaltungsgericht Stuttgart (Germany) lodged on 27 February 2012 — Herbert Schaible v Land Baden-Württemberg | 19 |
| 2012/C 133/36 | Case C-109/12: Reference for a preliminary ruling from the Korkein hallinto-oikeus (Finland) lodged on 29 February 2012 — Laboratoires Lyocentre | 20 |
| 2012/C 133/37 | Case C-130/12: Action brought on 9 March 2012 — European Commission v Portuguese Republic | 20 |
| 2012/C 133/38 | Case C-328/11 P: Order of the President of the Court of 30 January 2012 — Alder Capital Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Gimv Nederland BV | 20 |
| | General Court |
| 2012/C 133/39 | Joined Cases T-50/06 RENV, T-56/06 RENV, T-60/06 RENV, T-62/06 RENV and T-69/06 RENV: Judgment of the General Court of 21 March 2012 — Ireland and Others v Commission (State aid — Directive 92/81/EEC — Excise duty on mineral oils — Mineral oils used as fuel for alumina production — Exemption from excise duty — Whether the exemption complies with a Council decision of authorisation under Article 8(4) of Directive 92/81 — Presumption of legality attaching to European Union measures — Legal certainty — Sound administration) | 21 |
| 2012/C 133/40 | Case T-113/06: Judgment of the General Court of 21 March 2012 — Marine Harvest Norway and Alsaker Fjordbruk v Council (Dumping — Imports of salmon originating in Norway — Definition of the Community industry — Like product — Composition of the sample of Community producers) | 21 |
| 2012/C 133/41 | Case T-115/06: Judgment of the General Court of 21 March 2012 — Fiskeri og Havbruksnæringens Landsforening and Others v Council (Dumping — Imports of salmon originating in Norway — Lesser duty rule — Calculation of minimum import prices and fixed duties) | 22 |
| 2012/C 133/42 | Case T-63/09: Judgment of the General Court of 21 March 2012 — Volkswagen v OHIM — Suzuki Motor (SWIFT GTi) (Community Trade Mark — Opposition proceedings — Application for Community word mark SWIFT GTi — Earlier international and national marks GTI — Relative grounds for refusal — Similarity of the goods — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009) — Assessment of the likelihood of confusion — Rejection of the opposition) | 22 |
| 2012/C 133/43 | Case T-227/09: Judgment of the General Court of 21 March 2012 — Feng Shen Technology v OHIM — Majtczak (FS) (Community trade mark — Invalidity proceedings — Community figurative mark FS — Applicant acting in bad faith — Article 51(1)(b) of Regulation (EC) No 40/94 (now Article 52(1)(b) of Regulation (EC) No 207/2009)) | 23 |
| 2012/C 133/44 | Joined Cases T-458/09 and T-171/10: Judgment of the General Court of 22 March 2012 — Slovak Telekom v Commission (Competition — Administrative procedure — Decisions requesting information — Necessity for the information sought — Principle of good administration — Obligation to state the reasons on which the decision is based — Proportionality) | 23 |
| 2012/C 133/45 | Case T-157/10: Judgment of the General Court of 23 March 2012 — Barilla v OHIM — Brauerei Schlösser (ALIXIR) (Community trade mark — Opposition proceedings — Application for registration of the Community word mark ALIXIR — Earlier national word mark Elixeer — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 207/2009) | 23 |
| 2012/C 133/46 | Case T-420/10: Judgment of the General Court of 27 March 2012 — Armani v OHIM — Del Prete (AJ AMICI JUNIOR) (Community trade mark — Opposition proceedings — Application for the Community figurative mark AJ AMICI JUNIOR — Earlier national figurative mark AJ ARMANI JEANS — Earlier national word mark ARMANI JUNIOR — Relative ground for refusal — Article 8(1)(b) of Regulation (EC) No 207/2009) | 24 |
| 2012/C 133/47 | Joined Cases T-439/10 and T-440/10: Judgment of the General Court of 21 March 2012 — Fulmen and Mahmoudian v Council (Common foreign and security policy — Restrictive measures against Iran with the aim of preventing nuclear proliferation — Freezing of funds — Actions for annulment — Obligation to state reasons — Rights of the defence — Right to effective judicial protection — Error of assessment — Burden and standard of proof) | 24 |
| 2012/C 133/48 | Case T-225/10: Order of the General Court of 21 March 2012 — Banco Bilbao Vizcaya Argentaria v Commission (Action for annulment — State aid — Aid scheme allowing the tax amortisation of financial goodwill for foreign shareholding acquisitions — Decision declaring the aid scheme incompatible with the common market and not ordering the recovery of the aid — No individual concern — Inadmissibility) | 25 |
| 2012/C 133/49 | Case T-228/10: Order of the General Court of 21 March 2012 — Telefónica v Commission (Action for annulment — State aid — Aid schemes allowing for the tax amortisation of financial goodwill for foreign shareholding acquisitions — Decision declaring the aid scheme incompatible with the common market and not ordering the recovery of aid — Act entailing implementing measures — Lack of individual concern — Inadmissibility) | 25 |
| 2012/C 133/50 | Case T-234/10: Order of the General Court of 21 March 2012 — Ebro Foods v Commission (Action for annulment — State aid — Aid scheme allowing the tax amortisation of financial goodwill for foreign shareholding acquisitions — Decision declaring the aid scheme incompatible with the common market and not ordering the recovery of the aid — No individual concern — Inadmissibility) | 26 |
| 2012/C 133/51 | Case T-174/11: Order of the General Court of 21 March 2012 — Modelo Continente Hipermercados v Commission (Action for annulment — State aid — Aid schemes allowing for the tax amortisation of financial goodwill for foreign shareholding acquisitions — Decision declaring the aid scheme incompatible with the common market and not ordering the recovery of aid — Lack of individual concern — Inadmissibility) | 26 |
| 2012/C 133/52 | Case T-398/11: Order of the General Court of 19 March 2012 — Barthel and Others v Court of Justice (Appeal — Public Service — Officials — Remuneration — Refusal to grant the appellants an allowance for shiftwork — Time-limit for lodging a complaint — Out of time — Appeal partly manifestly unfounded and partly manifestly inadmissible) | 26 |
| 2012/C 133/53 | Case T-55/12: Action brought on 8 February 2012 — Chen v OHIM — AM Denmark (Cleaning devices) | 27 |
| 2012/C 133/54 | Case T-105/12: Action brought on 2 March 2012 — Hellenic Republic v Commission | 27 |
| 2012/C 133/55 | Case T-101/10: Order of the General Court of 19 March 2012 — Poland v Commission | 28 |
| | European Union Civil Service Tribunal |
| 2012/C 133/56 | Case F-133/11: Action brought on 13 December 2011 — ZZ v Commission | 29 |
| 2012/C 133/57 | Case F-1/12: Action brought on 2nd January 2012 — ZZ v European Court of Auditors | 29 |
| 2012/C 133/58 | Case F-5/12: Action brought on 10 January 2012 — ZZ v Frontex | 29 |
| 2012/C 133/59 | Case F-7/12: Action brought on 16th January 2012 — ZZ v European Network and Information Security Agency (ENISA) | 30 |
| 2012/C 133/60 | Case F-9/12: Action brought on 20 January 2012 — ZZ v European Parliament | 30 |
| 2012/C 133/61 | Case F-21/12: Action brought on 15 February 2012 — ZZ v European Economic and Social Committee | 30 |
| 2012/C 133/62 | Case F-29/12: Action brought on 5 March 2012 — ZZ and Others v Commission | 31 |
| 2012/C 133/63 | Case F-31/12: Action brought on 6 March 2012 — ZZ v Commission | 31 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2012/C 133/02

Case C-380/09 P: Judgment of the Court (Grand Chamber) of 13 March 2012 — Melli Bank plc v Council of the European Union, French Republic, United Kingdom of Great Britain and Northern Ireland, European Commission (Appeal — Common foreign and security policy — Restrictive measures against the Islamic Republic of Iran to prevent nuclear proliferation — Freezing the funds of a bank’s subsidiary — Principle of proportionality — Ownership or control of the entity)

2

2012/C 133/03

Case C-506/09 P: Judgment of the Court (First Chamber) of 22 March 2012 — Portuguese Republic v Transnáutica — Transportes e Navegação SA, European Commission (Appeal — Customs union — Regulation (EEC) No 2913/92 and Regulation (EEC) No 2454/93 — Remission of import duties — Consignments of tobacco and ethyl alcohol for third countries — Fraud committed by an employee of the company liable)

2

2012/C 133/04

Case C-135/10: Judgment of the Court (Third Chamber) of 15 March 2012 (reference for a preliminary ruling from the Corte d’appello di Torino — Italy) — Società Consortile Fonografici (SCF) v Marco Del Corso (Copyright and related rights in the information society — Direct applicability of the Rome Convention, the TRIPS Agreement and the WPPT in the European Union legal order — Directive 92/100/EC — Article 8(2) — Directive 2001/29/EC — Concept of communication to the public — Communication to the public of phonograms broadcast by radio in a dental practice)

3

2012/C 133/05

Case C-162/10: Judgment of the Court (Third Chamber) of 15 March 2012 (reference for a preliminary ruling from the High Court of Ireland — Ireland) — Phonographic Performance (Ireland) Ltd v Ireland, Attorney General (Copyright and related rights — Directive 2006/115/EC — Articles 8 and 10 — Concepts of user and communication to the public — Installation in hotel bedrooms of televisions and/or radios to which the hotelier distributes a broadcast signal)

3

2012/C 133/06

Case C-190/10: Judgment of the Court (First Chamber) of 22 March 2012 (reference for a preliminary ruling from the Tribunal Supremo — Spain) — Génesis Seguros Generales Sociedad Anónima de Seguros y Reaseguros (GENESIS) v Boys Toys SA, Administración del Estado (Community trade mark — Definition and acquisition — Earlier trade mark — Procedure for filing — Filing by electronic means — Method enabling precise identification of the day, hour and minute when the application was filed)

4

2012/C 133/07

Case C-292/10: Judgment of the Court (First Chamber) of 15 March 2012 (reference for a preliminary ruling from the Landgericht Regensburg — Germany) — G v Cornelius de Visser (Jurisdiction and the enforcement of judgments in civil and commercial matters — Public notification of legal documents — Lack of known domicile or place of abode of the defendant in the territory of a Member State — Jurisdiction in matters relating to tort, delict or quasi-delict — Infringement of the right to protection of personality liable to have been committed by the publication of photographs on the internet — Place where the harmful event occurred or may occur)

5

2012/C 133/08

Case C-338/10: Judgment of the Court (Third Chamber) of 22 March 2012 (reference for a preliminary ruling from the Finanzgericht Hamburg — Germany) — Grünwald Logistik Service GmbH (GLS) v Hauptzollamt Hamburg-Stadt (Dumping — Anti-dumping duty imposed on imports of certain prepared or preserved citrus fruits originating in China — Regulation (EC) No 1355/2008 — Validity — Regulation (EC) No 384/96 — Article 2(7)(a) — Determination of normal value — Non-market economy country — Commission’s obligation to take due care to determine normal value on the basis of the price or constructed value in a market economy third country)

5

2012/C 133/09

Case C-340/10: Judgment of the Court (Fourth Chamber) of 15 March 2012 — European Commission v Republic of Cyprus (Failure of a Member State to fulfil obligations — Directive 92/43/EEC — Articles 4(1) and 12(1) — Failure to include Paralimni Lake as a site of Community importance within the time-limit laid down — System of protection for the species Natrix natrix cypriaca (Cypriot grass snake))

6

2012/C 133/10

Case C-376/10 P: Judgment of the Court (Grand Chamber) of 13 March 2012 — Pye Phyo Tay Za v Council of the European Union, United Kingdom of Great Britain and Northern Ireland, European Commission (Appeal — Common foreign and security policy — Restrictive measures against the Republic of the Union of Myanmar — Freezing of funds applicable to persons, entities and bodies — Legal basis)

6

2012/C 133/11

Case C-453/10: Judgment of the Court (First Chamber) of 15 March 2012 (reference for a preliminary ruling from the Okresný súd Prešov — Slovakia) — Jana Pereničová, Vladislav Perenič v SOS financ, spol. s r. o. (Consumer protection — Consumer credit agreement — Incorrect statement of annual percentage rate of charge — Effect of unfair commercial practices and unfair terms on the validity of the contract as a whole)

7

2012/C 133/12

Case C-567/10: Judgment of the Court (Fourth Chamber) of 22 March 2012 (reference for a preliminary ruling from the Cour constitutionnelle — Belgium) — Inter-Environnement Bruxelles ASBL, Pétitions-Patrimoine ASBL, Atelier de Recherche et d’Action Urbaines ASBL v Région de Bruxelles-Capitale (Directive 2001/42/EC — Assessment of the effects of certain plans and programmes on the environment — Concept of plans and programmes which are required by legislative, regulatory or administrative provisions — Applicability of the directive to a procedure for the total or partial repeal of a land use plan)

8

2012/C 133/13

Case C-574/10: Judgment of the Court (Third Chamber) of 15 March 2012 — European Commission v Federal Republic of Germany (Failure of a Member State to fulfil its obligations — Directive 2004/18/EC — Public service contracts — Architecture and engineering services — Design, planning and supervision of a project to renovate a public building — Implementation of the project in several phases, for budgetary reasons — Market value)

8

2012/C 133/14

Case C-46/11: Judgment of the Court (Eighth Chamber) of 15 March 2012 — European Commission v Republic of Poland (Failure of a Member State to fulfil obligations — Directive 92/43/EEC — Conservation of natural habitats and of wild fauna and flora — Inadequate protection of certain species, including the otter (Lutra Lutra))

9

2012/C 133/15

Joined Cases C-90/11 and C-91/11: Judgment of the Court (Third Chamber) of 15 March 2012 (references for a preliminary ruling from the Bundespatentgericht — Germany) — Alfred Strigl v Deutsches Patent- und Markenamt (Case C-90/11), Securvita Gesellschaft zur Entwicklung alternativer Versicherungskonzepte mbH v Öko-Invest Verlagsgesellschaft mbH (C-91/11) (Trade marks — Directive 2008/95/EC — Grounds for refusal or invalidity — Verbal expressions which consist of a word combination and a sequence of letters identical to the initial letters of those words — Distinctive character — Descriptive character — Assessment criteria)

9

2012/C 133/16

Case C-153/11: Judgment of the Court (Second Chamber) of 22 March 2012 (reference for a preliminary ruling from the Administrativen sad — Varna — Bulgaria) — Klub OOD v Direktor na Direktsia Obzhalvane i upravlenie na izpalnenieto — Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite (VAT — Directive 2006/112/EC — Article 168 — Right of deduction — Origin of the right of deduction — Right of a company to deduct the input VAT paid for the acquisition of capital goods not yet brought into use for the company’s business activities)

9

2012/C 133/17

Case C-157/11: Judgment of the Court (Sixth Chamber) of 15 March 2012 (reference for a preliminary ruling from the Tribunale di Napoli — Italy) — Giuseppe Sibilio v Comune di Afragola (Social policy — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Directive 1999/70/EC — Clause 2 — Concept of an employment contract or relationship defined by law, collective agreements or practice in force in each Member State — Scope of the framework agreement — Clause 4, point 1 — Principle of non-discrimination — Persons carrying out work of social utility with public authorities — National rule excluding the existence of an employment relationship — National rule establishing a difference between the benefit paid to socially useful workers and the remuneration received by workers engaged under a contract of definite and/or indefinite duration by the same public authorities and carrying out the same activities)

10

2012/C 133/18

Case C-248/11: Judgment of the Court (Second Chamber) of 22 March 2012 (reference for a preliminary ruling from the Curtea de Apel Cluj — Romania) — Criminal proceedings against Rareș Doralin Nilaș, Sergiu-Dan Dascăl, Gicu Agenor Gânscă, Ana-Maria Oprean, Ionuț Horea Baboș (Directive 2004/39/EC — Markets in financial instruments — Article 4(1)(14) — Concept of regulated market — Authorisation — Functional requirements — Market whose legal nature is not specified, but which is managed, after a merger, by a legal person also managing a regulated market — Article 47 — Not included on the list of regulated markets — Directive 2003/6/EC — Scope — Market manipulation)

10

2012/C 133/19

Case C-191/11 P: Order of the Court (Eighth Chamber) of 8 February 2012 — Yorma’s AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Norma Lebensmittelfilialbetrieb GmbH & Co. KG (Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 8(1)(b) — Opposition proceedings — Application for Community figurative mark with the word element yorma’s — Earlier Community word mark NORMA — Relative ground for refusal — Likelihood of confusion)

11

2012/C 133/20

Case C-404/11 P: Order of the Court of 2 February 2012 — Elf Aquitaine SA v European Commission (Appeal — Regulation (EC) No 1/2003 — Competition — Cartel — Sodium chlorate market — Concept of an undertaking — Presumption of decisive influence — Scope of that presumption — Factors not capable of rebutting the presumption — Personal fine — Unlimited jurisdiction)

11

2012/C 133/21

Case C-421/11 P: Order of the Court of 7 February 2012 — Total SA and Elf Aquitaine SA v European Commission (Appeal — Regulation (EC) No 1/2003 — Competition — Cartel — Market for methacrylates — Concept of undertaking — Presumption of decisive influence — Obligation to state reasons — Principle of sound administration — Extension of the authority of a final decision — Deterrent multiplying factor — Indivisible nature of the fine — Unlimited jurisdiction)

12

2012/C 133/22

Case C-442/11: Order of the Court (Eighth Chamber) of 9 February 2012 (reference for a preliminary ruling from the High Court of Justice (Chancery Division) (United Kingdom) — Novartis AG v Actavis UK Ltd (The first subparagraph of Article 104(3) of the Rules of Procedure — Medicinal products for human use — Supplementary protection certificate — Regulation (EC) No 469/2009 — Articles 4 and 5 — Sole active ingredient for which such a certificate is granted — Scope of protection — Medicinal product containing more than one active ingredient, including the active ingredient which is the subject of a certificate)

12

2012/C 133/23

Case C-556/11: Order of the Court (Sixth Chamber) of 9 February 2012 (reference for a preliminary ruling from the Juzgado Contencioso-Administrativo No 4 de Valladolid — Espagne) — María Jesús Lorenzo Martínez v Junta de Castilla y León, Dirección General de Recursos Humanos de la Consejería de Educación (First subparagraph of Article 104(3) of the Rules of Procedure — Social policy — Directive 1999/70/EC — Clause 4(1) of the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Fixed-term employment contracts in the public sector — Non-university teaching — Right to six-yearly continuing professional education increments — Exclusion of teachers employed as temporary officials — Principle of non-discrimination)

13

2012/C 133/24

Case C-574/11: Order of the Court (Eighth Chamber) of 9 February 2012 (reference for a preliminary ruling from the Landgericht Düsseldorf — Germany) — Novartis AG v Actavis Deutschland GmbH & Co KG, Actavis Ltd (The first subparagraph of Article 104(3) of the Rules of Procedure — Medicinal products for human use — Supplementary protection certificate — Regulation (EC) No 469/2009 — Articles 4 and 5 — Sole active ingredient for which such a certificate is granted — Scope of protection — Medicinal product containing more than one active ingredient, including the active ingredient which is the subject of a certificate)

13

2012/C 133/25

Case C-599/11 P: Appeal brought on 28 November 2011 by TofuTown.com GmbH against the judgment of the General Court (Second Chamber) delivered on 20 September 2011 in Case T-99/10 Meica Ammerländische Fleischwarenfabrik Fritz Meinen GmbH & Co. KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

14

2012/C 133/26

Case C-611/11 P: Appeal brought on 30 November 2011 by ara AG against the judgment of the General Court (Seventh Chamber) delivered on 22 September 2011 in Case T-174/10 ara v OHIM

14

2012/C 133/27

Case C-624/11 P: Appeal brought on 6 December 2011 by Brighton Collectibles, Inc. against the judgment of the General Court (Second Chamber) delivered on 27 September 2011 in Case T-403/10 Brighton Collectibles v OHIM — Felmar

15

2012/C 133/28

Case C-72/12: Reference for a preliminary ruling from the Bundesverwaltungsgericht (Federal Administrative Court) Leipzig (Germany) lodged on 13 February 2012 — Gemeinde Altrip (Municipality of Altrip), Gebrüder Hört GbR, Willi Schneider v Rhineland-Palatinate

15

2012/C 133/29

Case C-76/12: Action brought on 13 February 2012 — European Commission v French Republic

16

2012/C 133/30

Case C-78/12: Reference for a preliminary ruling from the Аdministrativen sad Sofia-grad (Bulgaria) lodged on 14 February 2012 — Еvitа-K EOOD v Direktor na Direktsia Obzhalvane i upravlenie na izpalnenieto, Sofia

16

2012/C 133/31

Case C-84/12: Reference for a preliminary ruling from the Verwaltungsgericht Berlin (Germany) lodged on 17 February 2012 — Ezatollah Rahmanian Koushkaki v Federal Republic of Germany

17

2012/C 133/32

Case C-89/12: Reference for a preliminary ruling from the Hof van Cassatie van België (Belgium) lodged on 17 February 2012 — Rose Marie Bark v Galileo Joint Undertaking, in liquidation

18

2012/C 133/33

Case C-92/12: Reference for a preliminary ruling from High Court of Ireland (Ireland) made on 17 February 2012 — Health Service Executive v SC, AC

18

2012/C 133/34

Case C-93/12: Reference for a preliminary ruling from the Administrativen sad Sofia-grad (Bulgaria) lodged on 21 February 2012 — ET Agrokonsulting-04-Velko Stoyanov v Izpalnitelen direktor na Darzhaven fond Zemedelie — Razplashtatelna agentsia

19

2012/C 133/35

Case C-101/12: Reference for a preliminary ruling from the Verwaltungsgericht Stuttgart (Germany) lodged on 27 February 2012 — Herbert Schaible v Land Baden-Württemberg

19

2012/C 133/36

Case C-109/12: Reference for a preliminary ruling from the Korkein hallinto-oikeus (Finland) lodged on 29 February 2012 — Laboratoires Lyocentre

20

2012/C 133/37

Case C-130/12: Action brought on 9 March 2012 — European Commission v Portuguese Republic

20

2012/C 133/38

Case C-328/11 P: Order of the President of the Court of 30 January 2012 — Alder Capital Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Gimv Nederland BV

20

General Court

2012/C 133/39

Joined Cases T-50/06 RENV, T-56/06 RENV, T-60/06 RENV, T-62/06 RENV and T-69/06 RENV: Judgment of the General Court of 21 March 2012 — Ireland and Others v Commission (State aid — Directive 92/81/EEC — Excise duty on mineral oils — Mineral oils used as fuel for alumina production — Exemption from excise duty — Whether the exemption complies with a Council decision of authorisation under Article 8(4) of Directive 92/81 — Presumption of legality attaching to European Union measures — Legal certainty — Sound administration)

21

2012/C 133/40

Case T-113/06: Judgment of the General Court of 21 March 2012 — Marine Harvest Norway and Alsaker Fjordbruk v Council (Dumping — Imports of salmon originating in Norway — Definition of the Community industry — Like product — Composition of the sample of Community producers)

21

2012/C 133/41

Case T-115/06: Judgment of the General Court of 21 March 2012 — Fiskeri og Havbruksnæringens Landsforening and Others v Council (Dumping — Imports of salmon originating in Norway — Lesser duty rule — Calculation of minimum import prices and fixed duties)

22

2012/C 133/42

Case T-63/09: Judgment of the General Court of 21 March 2012 — Volkswagen v OHIM — Suzuki Motor (SWIFT GTi) (Community Trade Mark — Opposition proceedings — Application for Community word mark SWIFT GTi — Earlier international and national marks GTI — Relative grounds for refusal — Similarity of the goods — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009) — Assessment of the likelihood of confusion — Rejection of the opposition)

22

2012/C 133/43

Case T-227/09: Judgment of the General Court of 21 March 2012 — Feng Shen Technology v OHIM — Majtczak (FS) (Community trade mark — Invalidity proceedings — Community figurative mark FS — Applicant acting in bad faith — Article 51(1)(b) of Regulation (EC) No 40/94 (now Article 52(1)(b) of Regulation (EC) No 207/2009))

23

2012/C 133/44

Joined Cases T-458/09 and T-171/10: Judgment of the General Court of 22 March 2012 — Slovak Telekom v Commission (Competition — Administrative procedure — Decisions requesting information — Necessity for the information sought — Principle of good administration — Obligation to state the reasons on which the decision is based — Proportionality)

23

2012/C 133/45

Case T-157/10: Judgment of the General Court of 23 March 2012 — Barilla v OHIM — Brauerei Schlösser (ALIXIR) (Community trade mark — Opposition proceedings — Application for registration of the Community word mark ALIXIR — Earlier national word mark Elixeer — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 207/2009)

23

2012/C 133/46

Case T-420/10: Judgment of the General Court of 27 March 2012 — Armani v OHIM — Del Prete (AJ AMICI JUNIOR) (Community trade mark — Opposition proceedings — Application for the Community figurative mark AJ AMICI JUNIOR — Earlier national figurative mark AJ ARMANI JEANS — Earlier national word mark ARMANI JUNIOR — Relative ground for refusal — Article 8(1)(b) of Regulation (EC) No 207/2009)

24

2012/C 133/47

Joined Cases T-439/10 and T-440/10: Judgment of the General Court of 21 March 2012 — Fulmen and Mahmoudian v Council (Common foreign and security policy — Restrictive measures against Iran with the aim of preventing nuclear proliferation — Freezing of funds — Actions for annulment — Obligation to state reasons — Rights of the defence — Right to effective judicial protection — Error of assessment — Burden and standard of proof)

24

2012/C 133/48

Case T-225/10: Order of the General Court of 21 March 2012 — Banco Bilbao Vizcaya Argentaria v Commission (Action for annulment — State aid — Aid scheme allowing the tax amortisation of financial goodwill for foreign shareholding acquisitions — Decision declaring the aid scheme incompatible with the common market and not ordering the recovery of the aid — No individual concern — Inadmissibility)

25

2012/C 133/49

Case T-228/10: Order of the General Court of 21 March 2012 — Telefónica v Commission (Action for annulment — State aid — Aid schemes allowing for the tax amortisation of financial goodwill for foreign shareholding acquisitions — Decision declaring the aid scheme incompatible with the common market and not ordering the recovery of aid — Act entailing implementing measures — Lack of individual concern — Inadmissibility)

25

2012/C 133/50

Case T-234/10: Order of the General Court of 21 March 2012 — Ebro Foods v Commission (Action for annulment — State aid — Aid scheme allowing the tax amortisation of financial goodwill for foreign shareholding acquisitions — Decision declaring the aid scheme incompatible with the common market and not ordering the recovery of the aid — No individual concern — Inadmissibility)

26

2012/C 133/51

Case T-174/11: Order of the General Court of 21 March 2012 — Modelo Continente Hipermercados v Commission (Action for annulment — State aid — Aid schemes allowing for the tax amortisation of financial goodwill for foreign shareholding acquisitions — Decision declaring the aid scheme incompatible with the common market and not ordering the recovery of aid — Lack of individual concern — Inadmissibility)

26

2012/C 133/52

Case T-398/11: Order of the General Court of 19 March 2012 — Barthel and Others v Court of Justice (Appeal — Public Service — Officials — Remuneration — Refusal to grant the appellants an allowance for shiftwork — Time-limit for lodging a complaint — Out of time — Appeal partly manifestly unfounded and partly manifestly inadmissible)

26

2012/C 133/53

Case T-55/12: Action brought on 8 February 2012 — Chen v OHIM — AM Denmark (Cleaning devices)

27

2012/C 133/54

Case T-105/12: Action brought on 2 March 2012 — Hellenic Republic v Commission

27

2012/C 133/55

Case T-101/10: Order of the General Court of 19 March 2012 — Poland v Commission

28

European Union Civil Service Tribunal

2012/C 133/56

Case F-133/11: Action brought on 13 December 2011 — ZZ v Commission

29

2012/C 133/57

Case F-1/12: Action brought on 2nd January 2012 — ZZ v European Court of Auditors

29

2012/C 133/58

Case F-5/12: Action brought on 10 January 2012 — ZZ v Frontex

29

2012/C 133/59

Case F-7/12: Action brought on 16th January 2012 — ZZ v European Network and Information Security Agency (ENISA)

30

2012/C 133/60

Case F-9/12: Action brought on 20 January 2012 — ZZ v European Parliament

30

2012/C 133/61

Case F-21/12: Action brought on 15 February 2012 — ZZ v European Economic and Social Committee

30

2012/C 133/62

Case F-29/12: Action brought on 5 March 2012 — ZZ and Others v Commission

31

2012/C 133/63

Case F-31/12: Action brought on 6 March 2012 — ZZ v Commission

31

| | Corrigenda |
| --- | --- |
| 2012/C 133/64 | Corrigendum to notice in the Official Journal in Case C-528/11 (OJ C 370, 17.12.2011) | 32 |

Corrigenda

2012/C 133/64

Corrigendum to notice in the Official Journal in Case C-528/11 (OJ C 370, 17.12.2011)

32

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

EN

---

IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

| 5.5.2012 | EN | Official Journal of the European Union | C 133/1 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/1

---

2012/C 133/01

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

OJ C 126, 28.4.2012

Past publications

OJ C 118, 21.4.2012

OJ C 109, 14.4.2012

OJ C 89, 24.3.2012

OJ C 80, 17.3.2012

OJ C 73, 10.3.2012

OJ C 65, 3.3.2012

These texts are available on:

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

---

V Announcements

COURT PROCEEDINGS

Court of Justice

| 5.5.2012 | EN | Official Journal of the European Union | C 133/2 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/2

---

Judgment of the Court (Grand Chamber) of 13 March 2012 — Melli Bank plc v Council of the European Union, French Republic, United Kingdom of Great Britain and Northern Ireland, European Commission

(Case C-380/09 P) (1)

(Appeal - Common foreign and security policy - Restrictive measures against the Islamic Republic of Iran to prevent nuclear proliferation - Freezing the funds of a bank’s subsidiary - Principle of proportionality - Ownership or control of the entity)

2012/C 133/02

Language of the case: English

Parties

Appellant: Melli Bank plc (represented by: D. Anderson and D. Wyatt QC, R. Blakeley, Barrister, instructed by S. Gadhia and T. Din, Solicitors)

Other parties to the proceedings: Council of the European Union, (represented by: M. Bishop and R. Szostak, Agents), French Republic, (represented by: E. Belliard, G. de Bergues, L. Butel and E. Ranaivoson, Agents), United Kingdom of Great Britain and Northern Ireland, (represented by: S. Hathaway, Agent, and S. Lee, Barrister), European Commission (represented by: S. Boelaert and M. Konstantinidis, Agents)

Re:

Appeal brought against the judgment of the Court of First Instance (Second Chamber) of 9 July 2009 in Joined Cases T-246/08 and T-332/08 Melli Bank plc v Council of the European Union by which that court dismissed an application for the annulment in part of Council Decision 2008/475/EC of 23 June 2008 implementing Article 7(2) of Council Regulation (EC) No 423/2007 concerning restrictive measures against Iran (OJ 2008 L 163, p. 29), in so far as the appellant’s name appears in the list of persons, bodies and entities to which those provisions apply.

Operative part of the judgment

The Court:

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

1.

Dismisses the appeal.

| 2. | Orders Melli Bank plc to pay the costs. |
| --- | --- |

2.

Orders Melli Bank plc to pay the costs.

---

(1)  OJ C 282, 21.11.2009.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/2 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/2

---

Judgment of the Court (First Chamber) of 22 March 2012 — Portuguese Republic v Transnáutica — Transportes e Navegação SA, European Commission

(Case C-506/09 P) (1)

(Appeal - Customs union - Regulation (EEC) No 2913/92 and Regulation (EEC) No 2454/93 - Remission of import duties - Consignments of tobacco and ethyl alcohol for third countries - Fraud committed by an employee of the company liable)

2012/C 133/03

Language of the case: English

Parties

Appellant: Portuguese Republic (represented by: L. Inez Fernandes, Agent)

Other parties to the proceedings: Transnáutica — Transportes e Navegação SA (represented by: M. López Garrido, advogada), European Commission (represented by: R. Lyal and L. Bouyon, Agents)

Intervener in support of the appellant: Kingdom of Spain (represented by: M. Muñoz Pérez, Agent)

Re:

Appeal brought against the judgment of the Court of First Instance (Seventh Chamber) of 23 September 2009 in Case T-385/05 Transnáutica v Commission, by which that court annulled Commission Decision REM 05/2004 of 6 July 2005 informing the Portuguese authorities that the remission of import duties for the applicant was not justified in relation to a certain amount and that import duties could not be reimbursed to it in relation to another amount since the fact that the applicant was unaware that one of its employees was acting fraudulently did not constitute a special situation which may justify the remission and reimbursement of import duties to it.

Operative part of the judgment

The Court:

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

1.

Dismisses the appeal;

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

2.

Orders the Portuguese Republic to pay the costs;

| 3. | Orders the Kingdom of Spain to bear its own costs. |
| --- | --- |

3.

Orders the Kingdom of Spain to bear its own costs.

---

(1)  OJ C 63, 13.3.2010.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/3 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/3

---

Judgment of the Court (Third Chamber) of 15 March 2012 (reference for a preliminary ruling from the Corte d’appello di Torino — Italy) — Società Consortile Fonografici (SCF) v Marco Del Corso

(Case C-135/10) (1)

(Copyright and related rights in the information society - Direct applicability of the Rome Convention, the TRIPS Agreement and the WPPT in the European Union legal order - Directive 92/100/EC - Article 8(2) - Directive 2001/29/EC - Concept of ‘communication to the public’ - Communication to the public of phonograms broadcast by radio in a dental practice)

2012/C 133/04

Language of the case: Italian

Referring court

Corte d’appello di Torino

Parties to the main proceedings

Applicant: Società Consortile Fonografici (SCF)

Defendant: Marco Del Corso

Intervening party: Procuratore generale della Repubblica

Re:

Reference for a preliminary ruling — Corte di Appello di Torino — Direct applicability within the Community legal order of the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, done at Rome on 26 October 1961, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) and the World Intellectual Property Organisation (WIPO) Treaty on Performances and Phonograms (WPPT) — Interpretation of Article 3(2) Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10) — Concept of ‘communication to the public’ — Broadcasting and communication to the public of radio phonograms in a dental practice

Operative part of the judgment

| 1. | The provisions of the Agreement on Trade-Related Aspects of Intellectual Property Rights, which constitutes Annex 1C to the Agreement establishing the World Trade Organisation (WTO) signed at Marrrakesh on 15 April 1994 and approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) and of the World Intellectual Property Organisation (WIPO) Performances and Phonograms Treaty of 20 December 1996 are applicable in the legal order of the European Union.
  As the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, adopted at Rome on 26 October 1961, does not form part of the legal order of the European Union it is not applicable there; however, it has indirect effects within the European Union.
  Individuals may not rely directly either on that convention or on the agreement or the treaty mentioned above.
  The concept of ‘communication to the public’ which appears in Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property and Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted in the light of the equivalent concepts contained in the convention, the agreement and the treaty mentioned above and in such a way that it is compatible with those agreements, taking account of the context in which those concepts are found and the purpose of the relevant provisions of the agreements as regards intellectual property. |
| --- | --- |

1.

The provisions of the Agreement on Trade-Related Aspects of Intellectual Property Rights, which constitutes Annex 1C to the Agreement establishing the World Trade Organisation (WTO) signed at Marrrakesh on 15 April 1994 and approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) and of the World Intellectual Property Organisation (WIPO) Performances and Phonograms Treaty of 20 December 1996 are applicable in the legal order of the European Union.

As the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, adopted at Rome on 26 October 1961, does not form part of the legal order of the European Union it is not applicable there; however, it has indirect effects within the European Union.

Individuals may not rely directly either on that convention or on the agreement or the treaty mentioned above.

The concept of ‘communication to the public’ which appears in Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property and Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted in the light of the equivalent concepts contained in the convention, the agreement and the treaty mentioned above and in such a way that it is compatible with those agreements, taking account of the context in which those concepts are found and the purpose of the relevant provisions of the agreements as regards intellectual property.

| 2. | The concept of ‘communication to the public’ for the purposes of Article 8(2) of Directive 92/100 must be interpreted as meaning that it does not cover the broadcasting, free of charge, of phonograms within private dental practices engaged in professional economic activity, such as the one at issue in the main proceedings, for the benefit of patients of those practices and enjoyed by them without any active choice on their part. Therefore such an act of transmission does not entitle the phonogram producers to the payment of remuneration. |
| --- | --- |

2.

The concept of ‘communication to the public’ for the purposes of Article 8(2) of Directive 92/100 must be interpreted as meaning that it does not cover the broadcasting, free of charge, of phonograms within private dental practices engaged in professional economic activity, such as the one at issue in the main proceedings, for the benefit of patients of those practices and enjoyed by them without any active choice on their part. Therefore such an act of transmission does not entitle the phonogram producers to the payment of remuneration.

---

(1)  OJ C 134, 22.5.2010.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/3 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/3

---

Judgment of the Court (Third Chamber) of 15 March 2012 (reference for a preliminary ruling from the High Court of Ireland — Ireland) — Phonographic Performance (Ireland) Ltd v Ireland, Attorney General

(Case C-162/10) (1)

(Copyright and related rights - Directive 2006/115/EC - Articles 8 and 10 - Concepts of ‘user’ and ‘communication to the public’ - Installation in hotel bedrooms of televisions and/or radios to which the hotelier distributes a broadcast signal)

2012/C 133/05

Language of the case: English

Referring court

High Court of Ireland

Parties to the main proceedings

Applicant: Phonographic Performance (Ireland) Ltd

Defendants: Ireland, Attorney General

Re:

Reference for a preliminary ruling — High Court of Ireland — Interpretation of Articles 8(2) and 10(1)(a) of Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (OJ 2006 L 376, p. 28) — Broadcasting and communication to the public of phonograms — Right to a single equitable remuneration for artists and producers — Concept of ‘user’ and of ‘communication to the public’ — Installation in hotel rooms of televisions and/or radios to which the hotel company distributes a broadcast signal

Operative part of the judgment

| 1. | A hotel operator which provides in guest bedrooms televisions and/or radios to which it distributes a broadcast signal is a ‘user’ making a ‘communication to the public’ of a phonogram which may be played in a broadcast for the purposes of Article 8(2) of Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property; |
| --- | --- |

1.

A hotel operator which provides in guest bedrooms televisions and/or radios to which it distributes a broadcast signal is a ‘user’ making a ‘communication to the public’ of a phonogram which may be played in a broadcast for the purposes of Article 8(2) of Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property;

| 2. | A hotel operator which provides in guest bedrooms televisions and/or radios to which it distributes a broadcast signal is obliged to pay equitable remuneration under Article 8(2) of Directive 2006/115 for the broadcast of a phonogram, in addition to that paid by the broadcaster; |
| --- | --- |

2.

A hotel operator which provides in guest bedrooms televisions and/or radios to which it distributes a broadcast signal is obliged to pay equitable remuneration under Article 8(2) of Directive 2006/115 for the broadcast of a phonogram, in addition to that paid by the broadcaster;

| 3. | A hotel operator which provides in guest bedrooms, not televisions and/or radios to which it distributes a broadcast signal, but other apparatus and phonograms in physical or digital form which may be played on or heard from such apparatus, is a ‘user’ making a ‘communication to the public’ of a phonogram within the meaning of Article 8(2) of Directive 2006/115/EC. It is therefore obliged to pay ‘equitable remuneration’ under that provision for the transmission of those phonograms; |
| --- | --- |

3.

A hotel operator which provides in guest bedrooms, not televisions and/or radios to which it distributes a broadcast signal, but other apparatus and phonograms in physical or digital form which may be played on or heard from such apparatus, is a ‘user’ making a ‘communication to the public’ of a phonogram within the meaning of Article 8(2) of Directive 2006/115/EC. It is therefore obliged to pay ‘equitable remuneration’ under that provision for the transmission of those phonograms;

| 4. | Article 10(1)(a) of Directive 2006/115, which provides for a limitation to the right to equitable remuneration provided for by Article 8(2) of that directive in the case of ‘private use’, does not allow Member States to exempt a hotel operator which makes a ‘communication to the public’ of a phonogram, within the meaning of Article 8(2) of that directive, from the obligation to pay such remuneration. |
| --- | --- |

4.

Article 10(1)(a) of Directive 2006/115, which provides for a limitation to the right to equitable remuneration provided for by Article 8(2) of that directive in the case of ‘private use’, does not allow Member States to exempt a hotel operator which makes a ‘communication to the public’ of a phonogram, within the meaning of Article 8(2) of that directive, from the obligation to pay such remuneration.

---

(1)  OJ C 161, 19.6.2010.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/4 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/4

---

Judgment of the Court (First Chamber) of 22 March 2012 (reference for a preliminary ruling from the Tribunal Supremo — Spain) — Génesis Seguros Generales Sociedad Anónima de Seguros y Reaseguros (GENESIS) v Boys Toys SA, Administración del Estado

(Case C-190/10) (1)

(Community trade mark - Definition and acquisition - Earlier trade mark - Procedure for filing - Filing by electronic means - Method enabling precise identification of the day, hour and minute when the application was filed)

2012/C 133/06

Language of the case: Spanish

Referring court

Tribunal Supremo

Parties to the main proceedings

Applicant: Génesis Seguros Generales Sociedad Anónima de Seguros y Reaseguros (GENESIS)

Defendants: Boys Toys SA, Administración del Estado

Re:

Reference for a preliminary ruling — Tribunal Supremo — Interpretation of Article 27 of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1) — Definition and acquisition of the Community trade mark — Priority — Procedure for filing — Method (e-mail) enabling precise identification of the day, hour and minute when the application was filed

Operative part of the judgment

Article 27 of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark, as amended by Council Regulation (EC) No 1992/2003 of 27 October 2003 must be interpreted as precluding account being taken not only of the day but also of the hour and minute of filing of an application for a Community trade mark with the Office for Harmonisation in the Internal Market (trade marks and designs) (OHIM) for the purposes of establishing that trade mark’s priority over a national trade mark filed on the same day, where, according to the national legislation governing the registration of national trade marks, the hour and minute of filing are relevant in that regard.

---

(1)  OJ C 195, 17.7.2010.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/5 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/5

---

Judgment of the Court (First Chamber) of 15 March 2012 (reference for a preliminary ruling from the Landgericht Regensburg — Germany) — G v Cornelius de Visser

(Case C-292/10) (1)

(Jurisdiction and the enforcement of judgments in civil and commercial matters - Public notification of legal documents - Lack of known domicile or place of abode of the defendant in the territory of a Member State - Jurisdiction ‘in matters relating to tort, delict or quasi-delict’ - Infringement of the right to protection of personality liable to have been committed by the publication of photographs on the internet - Place where the harmful event occurred or may occur)

2012/C 133/07

Language of the case: German

Referring court

Landgericht Regensburg

Parties to the main proceedings

Applicant: G

Defendant: Cornelius de Visser

Re:

Reference for a preliminary ruling — Landgericht Regensburg — Interpretation of the first paragraph of Article 6 TEU in conjunction wíth the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union (OJ 2007 C 303, p. 1), of Articles 4(1), 5, point 3, and 26(2) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1) and of Article 3(1) and (2) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (OJ 2000 L 178, p. 1) — National legislation allowing in certain circumstances for public notification of legal documents to the defendant and allowing a default decision to be taken on the basis of a writ notified in that manner — Applicability of the rules on jurisdiction in Regulation (EC) No 44/2001 in the absence of a known domicile or place of residence of the defendant in the territory of a Member State — Determination of the jurisdiction of the courts and of the law applicable to an action brought in respect of an infringement of personality rights which may have been committed by the publication of photographs on an internet site edited by a person whose domicile is unknown

Operative part of the judgment

| 1. | In circumstances such as those in the main proceedings, Article 4(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that it does not preclude the application of Article 5(3) of that regulation to an action for liability arising from the operation of an Internet site against a defendant who is probably a European Union citizen but whose whereabouts are unknown if the court seised of the case does not hold firm evidence to support the conclusion that the defendant is in fact domiciled outside the European Union; |
| --- | --- |

1.

In circumstances such as those in the main proceedings, Article 4(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that it does not preclude the application of Article 5(3) of that regulation to an action for liability arising from the operation of an Internet site against a defendant who is probably a European Union citizen but whose whereabouts are unknown if the court seised of the case does not hold firm evidence to support the conclusion that the defendant is in fact domiciled outside the European Union;

| 2. | European Union law must be interpreted as meaning that it does not preclude the issue of judgment by default against a defendant on whom, given that it is impossible to locate him, the document instituting proceedings has been served by public notice under national law, provided that the court seised of the matter has first satisfied itself that all investigations required by the principles of diligence and good faith have been undertaken to trace the defendant; |
| --- | --- |

2.

European Union law must be interpreted as meaning that it does not preclude the issue of judgment by default against a defendant on whom, given that it is impossible to locate him, the document instituting proceedings has been served by public notice under national law, provided that the court seised of the matter has first satisfied itself that all investigations required by the principles of diligence and good faith have been undertaken to trace the defendant;

| 3. | European Union law must be interpreted as precluding certification as a European Enforcement Order, within the meaning of Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims, of a judgment by default issued against a defendant whose address is unknown; |
| --- | --- |

3.

European Union law must be interpreted as precluding certification as a European Enforcement Order, within the meaning of Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims, of a judgment by default issued against a defendant whose address is unknown;

| 4. | Article 3(1) and (2) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market does not apply to a situation where the place of establishment of the information society services provider is unknown, since application of that provision is subject to identification of the Member State in whose territory the service provider in question is actually established. |
| --- | --- |

4.

Article 3(1) and (2) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market does not apply to a situation where the place of establishment of the information society services provider is unknown, since application of that provision is subject to identification of the Member State in whose territory the service provider in question is actually established.

---

(1)  OJ C 346, 18.12.2010.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/5 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/5

---

Judgment of the Court (Third Chamber) of 22 March 2012 (reference for a preliminary ruling from the Finanzgericht Hamburg — Germany) — Grünwald Logistik Service GmbH (GLS) v Hauptzollamt Hamburg-Stadt

(Case C-338/10) (1)

(Dumping - Anti-dumping duty imposed on imports of certain prepared or preserved citrus fruits originating in China - Regulation (EC) No 1355/2008 - Validity - Regulation (EC) No 384/96 - Article 2(7)(a) - Determination of normal value - Non-market economy country - Commission’s obligation to take due care to determine normal value on the basis of the price or constructed value in a market economy third country)

2012/C 133/08

Language of the case: German

Referring court

Finanzgericht Hamburg

Parties to the main proceedings

Applicant: Grünwald Logistik Service GmbH (GLS)

Defendant: Hauptzollamt Hamburg-Stadt

Re:

Reference for a preliminary ruling — Finanzgericht Hamburg — Validity, in the light of Article 2(7)(a) of Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1), of Commission Regulation (EC) No 642/2008 of 4 July 2008 imposing a provisional anti-dumping duty on imports of certain prepared or preserved citrus fruits (namely mandarins, etc.) originating in the People’s Republic of China (OJ 2008 L 178, p. 19) and of Council Regulation (EC) No 1355/2008 of 18 December 2008 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain prepared or preserved citrus fruits (namely mandarins, etc.) originating in the People’s Republic of China (OJ 2008 L 350, p. 35) — Determination of normal value for a country which does not have a market economy — Determination of normal value on the basis of the price actually paid or payable for like products in the European Union — Obligation imposed on the Commission by Article 2(7)(a) of Regulation (EC) No 384/96 to take the measures necessary to determine normal value on the basis of the price or constructed value in a market-economy third country.

Operative part of the judgment

Council Regulation (EC) No 1355/2008 of 18 December 2008 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain prepared or preserved citrus fruits (namely mandarins, etc.) originating in the People’s Republic of China is invalid.

---

(1)  OJ C 260, 25.9.2010.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/6 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/6

---

Judgment of the Court (Fourth Chamber) of 15 March 2012 — European Commission v Republic of Cyprus

(Case C-340/10) (1)

(Failure of a Member State to fulfil obligations - Directive 92/43/EEC - Articles 4(1) and 12(1) - Failure to include Paralimni Lake as a site of Community importance within the time-limit laid down - System of protection for the species Natrix natrix cypriaca (Cypriot grass snake))

2012/C 133/09

Language of the case: Greek

Parties

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

Defendant: Republic of Cyprus (represented by: K. Lykourgos and M. Chatzigeorgiou, acting as Agents)

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 4(1) and 12(1) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7) — Failure to include Paralimni Lake in the national list of sites eligible for identification as sites of Community importance — Failure to establish a system of protection for the species Natrix natrix cypriaca (Cypriot grass snake)

Operative part of the judgment

The Court:

| 1. | Declares that the Republic of Cyprus,






  — | by not having included the site of Paralimni Lake in the national list of proposed sites of Community importance, |
| --- | --- | --- |

1.

Declares that the Republic of Cyprus,

—

by not having included the site of Paralimni Lake in the national list of proposed sites of Community importance,

| — | by tolerating activities which seriously compromise the ecological characteristics of Paralimni Lake and by not having taken the protective measures necessary to maintain the population of Natrix natrix cypriaca (Cypriot grass snake), the species which constitutes the ecological interest of the lake and Xyliatos Dam, and |
| --- | --- |

—

by tolerating activities which seriously compromise the ecological characteristics of Paralimni Lake and by not having taken the protective measures necessary to maintain the population of Natrix natrix cypriaca (Cypriot grass snake), the species which constitutes the ecological interest of the lake and Xyliatos Dam, and

| — | by not having taken the requisite measures to establish and apply a system of strict protection for that species, |
| --- | --- |

—

by not having taken the requisite measures to establish and apply a system of strict protection for that species,

has failed to fulfil its obligations under Article 4(1) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, as amended by Council Directive 2006/105/EC of 20 November 2006, under Directive 92/43, as amended, and under Article 12(1) of Directive 92/43, as amended, respectively;

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

2.

Orders the Republic of Cyprus to pay the costs.

---

(1)  OJ C 246, 11.9.2010.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/6 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/6

---

Judgment of the Court (Grand Chamber) of 13 March 2012 — Pye Phyo Tay Za v Council of the European Union, United Kingdom of Great Britain and Northern Ireland, European Commission

(Case C-376/10 P) (1)

(Appeal - Common foreign and security policy - Restrictive measures against the Republic of the Union of Myanmar - Freezing of funds applicable to persons, entities and bodies - Legal basis)

2012/C 133/10

Language of the case: English

Parties

Appellant: Pye Phyo Tay Za (represented by: D. Anderson QC, S. Kentridge QC, M. Lester, Barrister, and G. Martin, Solicitor)

Other parties to the proceedings: Council of the European Union (represented by: M. Bishop and E. Finnegan, acting as Agents), United Kingdom of Great Britain and Northern Ireland (represented by: S. Hathaway, acting as Agent, and D. Beard, Barrister), European Commission (represented by: S. Boelaert and M. Konstantinidis, acting as Agents)

Re:

Appeal brought against the judgment of the General Court (Eighth Chamber) of 19 May 2010 in Case T-181/08 Tay Za v Council, by which the Court dismissed an application for partial annulment of Council Regulation (EC) No 194/2008 of 25 February 2008 renewing and strengthening the restrictive measures in respect of Burma/Myanmar and repealing Regulation (EC) No 817/2006, in so far as the applicant’s name appears on the list of persons, entities or bodies to which those provisions apply (OJ 2008 L 66, p. 1)

Operative part of the judgment

The Court:

| 1. | Sets aside the judgment of the General Court of the European Union of 19 May 2010 in Case T-181/08 Tay Za v Council; |
| --- | --- |

1.

Sets aside the judgment of the General Court of the European Union of 19 May 2010 in Case T-181/08 Tay Za v Council;

| 2. | Annuls Council Regulation (EC) No 194/2008 of 25 February 2008 renewing and strengthening the restrictive measures in respect of Burma/Myanmar and repealing Regulation (EC) No 817/2006 in so far as Mr Tay Za is concerned; |
| --- | --- |

2.

Annuls Council Regulation (EC) No 194/2008 of 25 February 2008 renewing and strengthening the restrictive measures in respect of Burma/Myanmar and repealing Regulation (EC) No 817/2006 in so far as Mr Tay Za is concerned;

| 3. | Orders the Council of the European Union to pay the costs of both the proceedings at first instance and the appeal proceedings; |
| --- | --- |

3.

Orders the Council of the European Union to pay the costs of both the proceedings at first instance and the appeal proceedings;

| 4. | Orders the United Kingdom of Great Britain and Northern Ireland and the European Commission to bear their own costs in relation to both the proceedings at first instance and the appeal proceedings. |
| --- | --- |

4.

Orders the United Kingdom of Great Britain and Northern Ireland and the European Commission to bear their own costs in relation to both the proceedings at first instance and the appeal proceedings.

---

(1)  OJ C 260, 25.9.2010.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/7 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/7

---

Judgment of the Court (First Chamber) of 15 March 2012 (reference for a preliminary ruling from the Okresný súd Prešov — Slovakia) — Jana Pereničová, Vladislav Perenič v SOS financ, spol. s r. o.

(Case C-453/10) (1)

(Consumer protection - Consumer credit agreement - Incorrect statement of annual percentage rate of charge - Effect of unfair commercial practices and unfair terms on the validity of the contract as a whole)

2012/C 133/11

Language of the case: Slovak

Referring court

Okresný súd Prešov

Parties to the main proceedings

Applicants: Jana Pereničová, Vladislav Perenič

Defendant: SOS financ, spol. s r. o.

Re:

Reference for a preliminary ruling — Okresný súd Prešov — Interpretation of Articles 4(1) and 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29), and of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22) — Consumer credit contract stipulating a usurious interest rate — Effect of unfair commercial practices and unfair terms on the validity of the contract as a whole.

Operative part of the judgment

| 1. | Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as meaning that, when assessing whether a contract concluded with a consumer by a trader which contains one or more unfair terms can continue to exist without those terms, the court hearing the case cannot base its decision solely on a possible advantage for one of the parties, in this case the consumer, of the annulment of the contract in question as a whole. That directive does not, however, preclude a Member State from providing, in compliance with European Union law, that a contract concluded with a consumer by a trader which contains one or more unfair terms is to be void as a whole where that will ensure better protection of the consumer. |
| --- | --- |

1.

Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as meaning that, when assessing whether a contract concluded with a consumer by a trader which contains one or more unfair terms can continue to exist without those terms, the court hearing the case cannot base its decision solely on a possible advantage for one of the parties, in this case the consumer, of the annulment of the contract in question as a whole. That directive does not, however, preclude a Member State from providing, in compliance with European Union law, that a contract concluded with a consumer by a trader which contains one or more unfair terms is to be void as a whole where that will ensure better protection of the consumer.

| 2. | A commercial practice such as that at issue in the main proceedings which consists in indicating in a credit agreement an annual percentage rate of charge lower than the real rate must be regarded as ‘misleading’ within the meaning of Article 6(1) of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) in so far as it causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise. It is for the national court to ascertain whether that is the case in the main proceedings. A finding that such a commercial practice is unfair is one element among others on which the competent court may, pursuant to Article 4(1) of Directive 93/13, base its assessment of the unfairness of the contractual terms relating to the cost of the loan granted to the consumer. Such a finding, however, has no direct effect on the assessment, from the point of view of Article 6(1) of Directive 93/13, of the validity of the credit agreement concluded. |
| --- | --- |

2.

A commercial practice such as that at issue in the main proceedings which consists in indicating in a credit agreement an annual percentage rate of charge lower than the real rate must be regarded as ‘misleading’ within the meaning of Article 6(1) of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) in so far as it causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise. It is for the national court to ascertain whether that is the case in the main proceedings. A finding that such a commercial practice is unfair is one element among others on which the competent court may, pursuant to Article 4(1) of Directive 93/13, base its assessment of the unfairness of the contractual terms relating to the cost of the loan granted to the consumer. Such a finding, however, has no direct effect on the assessment, from the point of view of Article 6(1) of Directive 93/13, of the validity of the credit agreement concluded.

---

(1)  OJ C 328, 4.12.2010.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/8 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/8

---

Judgment of the Court (Fourth Chamber) of 22 March 2012 (reference for a preliminary ruling from the Cour constitutionnelle — Belgium) — Inter-Environnement Bruxelles ASBL, Pétitions-Patrimoine ASBL, Atelier de Recherche et d’Action Urbaines ASBL v Région de Bruxelles-Capitale

(Case C-567/10) (1)

(Directive 2001/42/EC - Assessment of the effects of certain plans and programmes on the environment - Concept of plans and programmes ‘which are required by legislative, regulatory or administrative provisions’ - Applicability of the directive to a procedure for the total or partial repeal of a land use plan)

2012/C 133/12

Language of the case: French

Referring court

Cour constitutionnelle

Parties to the main proceedings

Applicants: Inter-Environnement Bruxelles ASBL, Pétitions-Patrimoine ASBL, Atelier de Recherche et d’Action Urbaines ASBL

Defendant: Région de Bruxelles-Capitale

Re:

Reference for a preliminary ruling — Cour constitutionnelle — Interpretation of Article 2(a) of Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (OJ 2001 L 197, p. 30) — Applicability of the directive to a procedure for the total or partial repeal of a land use plan — Interpretation of the concept of ‘plans and programmes which are required’ — Exclusion of plans the adoption of which is not compulsory

Operative part of the judgment

| 1. | The concept of plans and programmes ‘which are required by legislative, regulatory or administrative provisions’, appearing in Article 2(a) of Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment, must be interpreted as also concerning specific land development plans, such as the one covered by the national legislation at issue in the main proceedings. |
| --- | --- |

1.

The concept of plans and programmes ‘which are required by legislative, regulatory or administrative provisions’, appearing in Article 2(a) of Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment, must be interpreted as also concerning specific land development plans, such as the one covered by the national legislation at issue in the main proceedings.

| 2. | Article 2(a) of Directive 2001/42 must be interpreted as meaning that a procedure for the total or partial repeal of a land use plan, such as the procedure laid down in Articles 58 to 63 of the Brussels Town and Country Planning Code, as amended by the Order of 14 May 2009, falls in principle within the scope of that directive, so that it is subject to the rules relating to the assessment of effects on the environment that are laid down by the directive. |
| --- | --- |

2.

Article 2(a) of Directive 2001/42 must be interpreted as meaning that a procedure for the total or partial repeal of a land use plan, such as the procedure laid down in Articles 58 to 63 of the Brussels Town and Country Planning Code, as amended by the Order of 14 May 2009, falls in principle within the scope of that directive, so that it is subject to the rules relating to the assessment of effects on the environment that are laid down by the directive.

---

(1)  OJ C 63, 26.2.2011.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/8 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/8

---

Judgment of the Court (Third Chamber) of 15 March 2012 — European Commission v Federal Republic of Germany

(Case C-574/10) (1)

(Failure of a Member State to fulfil its obligations - Directive 2004/18/EC - Public service contracts - Architecture and engineering services - Design, planning and supervision of a project to renovate a public building - Implementation of the project in several phases, for budgetary reasons - Market value)

2012/C 133/13

Language of the case: German

Parties

Applicant: European Commission (represented by: G. Wilms and C. Zadra, acting as Agents)

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

Re:

Failure of a Member State to fulfil its obligations — Infringement of Articles 2, 9 and 20 in conjunction with Articles 23 to 55 of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114) — Award by the municipality of Niedernhausen, without a Europe-wide invitation to tender, of several architecture services relating to the same construction project to an engineering agency — Division of the service awarded — Calculation of the market value

Operative part of the judgment

The Court:

| 1. | Finds that, due to the fact that the municipality of Niedernhausen awarded an architecture services contract relating to the renovation of a public building called ‘Autalhall’ located in the territory of that municipality, the value of which exceeded the threshold laid down in Article 7(b) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, without conducting a Europe-wide invitation to tender, the Federal Republic of Germany infringed its obligations under Articles 2, 9 and 20 in conjunction with Articles 23 to 55 of that directive; |
| --- | --- |

1.

Finds that, due to the fact that the municipality of Niedernhausen awarded an architecture services contract relating to the renovation of a public building called ‘Autalhall’ located in the territory of that municipality, the value of which exceeded the threshold laid down in Article 7(b) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, without conducting a Europe-wide invitation to tender, the Federal Republic of Germany infringed its obligations under Articles 2, 9 and 20 in conjunction with Articles 23 to 55 of that directive;

| 2. | Orders the Federal Republic of Germany to pay the costs. |
| --- | --- |

2.

Orders the Federal Republic of Germany to pay the costs.

---

(1)  OJ C 72, 5.3.2011.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/9 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/9

---

Judgment of the Court (Eighth Chamber) of 15 March 2012 — European Commission v Republic of Poland

(Case C-46/11) (1)

(Failure of a Member State to fulfil obligations - Directive 92/43/EEC - Conservation of natural habitats and of wild fauna and flora - Inadequate protection of certain species, including the otter (Lutra Lutra))

2012/C 133/14

Language of the case: Polish

Parties

Applicant: European Commission (represented by: S. Petrova and K. Hermann, Agents)

Defendant: Republic of Poland (represented by: M. Szpunar, D. Krawczyk and B. Majczyna, Agents)

Re:

Failure of a Member State to fulfil obligations — Breach of Article 16(1) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7) — Inadequate protection of certain species, including the otter (Lutra Lutra)

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to transpose correctly the conditions governing the derogations laid down in Article 16(1) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, the Republic of Poland has failed to comply with its obligations under that provision; |
| --- | --- |

1.

Declares that, by failing to transpose correctly the conditions governing the derogations laid down in Article 16(1) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, the Republic of Poland has failed to comply with its obligations under that provision;

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

2.

Orders the Republic of Poland to pay the costs.

---

(1)  OJ C 103, 2.4.2011.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/9 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/9

---

Judgment of the Court (Third Chamber) of 15 March 2012 (references for a preliminary ruling from the Bundespatentgericht — Germany) — Alfred Strigl v Deutsches Patent- und Markenamt (Case C-90/11), Securvita Gesellschaft zur Entwicklung alternativer Versicherungskonzepte mbH v Öko-Invest Verlagsgesellschaft mbH (C-91/11)

(Joined Cases C-90/11 and C-91/11) (1)

(Trade marks - Directive 2008/95/EC - Grounds for refusal or invalidity - Verbal expressions which consist of a word combination and a sequence of letters identical to the initial letters of those words - Distinctive character - Descriptive character - Assessment criteria)

2012/C 133/15

Language of the cases: German

Referring court

Bundespatentgericht

Parties to the main proceedings

Applicants: Alfred Strigl (C-90/11), Securvita Gesellschaft zur Entwicklung alternativer Versicherungskonzepte mbH (C-91/11)

Defendants: Deutsches Patent- und Markenamt (Case C-90/11), Öko-Invest Verlagsgesellschaft mbH (C-91/11)

Re:

References for a preliminary ruling — Bundespatentgericht — Interpretation of Article 3(1)(b) and (c) of Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks (codified version) (OJ 2008 L 299, p. 25) — Distinctive character of a word mark composed of a combination of descriptive words and a sequence of non-descriptive letters that are identical to the initial letters of those words

Operative part of the judgment

Article 3(1)(b) and (c) of Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks must be interpreted as meaning that it is applicable to a word mark which consists of the juxtaposition of a descriptive word combination and a letter sequence which is non-descriptive in itself, if the relevant public perceives that sequence as being an abbreviation of that word combination by reason of the fact that it reproduces the first letter of each word of that combination, and that the mark in question, considered as a whole, can thus be understood as a combination of descriptive indications or abbreviations which is therefore devoid of distinctive character.

---

(1)  OJ C 173, 11.6.2011.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/9 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/9

---

Judgment of the Court (Second Chamber) of 22 March 2012 (reference for a preliminary ruling from the Administrativen sad — Varna — Bulgaria) — Klub OOD v Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite

(Case C-153/11) (1)

(VAT - Directive 2006/112/EC - Article 168 - Right of deduction - Origin of the right of deduction - Right of a company to deduct the input VAT paid for the acquisition of capital goods not yet brought into use for the company’s business activities)

2012/C 133/16

Language of the case: Bulgarian

Referring court

Administrativen sad — Varna

Parties to the main proceedings

Applicant: Klub OOD

Defendant: Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite

Re:

Reference for a preliminary ruling — Administrativen sad — Varna — Interpretation of Article 168(a) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — Deduction of the VAT paid by a taxable person in respect of goods supplied to him in so far as they are used for his taxable transactions — Right of a company, whose main activity consists in leasing its own immovable property, to deduct input VAT on the purchase of another property which has yet to be commercially exploited by that company

Operative part of the judgment

Article 168(a) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that a taxable person who has acquired capital goods while acting as such and has allocated the goods to the assets of the business is entitled to deduct the value added tax on the acquisition of those goods in the tax period in which the tax became due, regardless of the fact that the goods are not immediately used for business purposes. It is for the national court to ascertain whether the taxable person acquired the capital goods for the purposes of his economic activity and to assess, if need be, whether there is a fraudulent practice.

---

(1)  OJ C 186, 25.6.2011.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/10 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/10

---

Judgment of the Court (Sixth Chamber) of 15 March 2012 (reference for a preliminary ruling from the Tribunale di Napoli — Italy) — Giuseppe Sibilio v Comune di Afragola

(Case C-157/11) (1)

(Social policy - Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP - Directive 1999/70/EC - Clause 2 - Concept of ‘an employment contract or relationship defined by law, collective agreements or practice in force in each Member State’ - Scope of the framework agreement - Clause 4, point 1 - Principle of non-discrimination - Persons carrying out ‘work of social utility’ with public authorities - National rule excluding the existence of an employment relationship - National rule establishing a difference between the benefit paid to socially useful workers and the remuneration received by workers engaged under a contract of definite and/or indefinite duration by the same public authorities and carrying out the same activities)

2012/C 133/17

Language of the case: Italian

Referring court

Tribunale di Napoli

Parties to the main proceedings

Applicant: Giuseppe Sibilio

Defendant: Comune di Afragola

Re:

Reference for a preliminary ruling — Tribunale di Napoli — Interpretation of Clauses 2, 3, 4 and 5 of the Annex to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43) — Principle of non discrimination — Unemployed persons registered on mobility lists or as job seekers engaged by public authorities for a fixed term carrying out work of social utility/work of public utility (known as socially useful workers/publicly useful workers) — National legislation establishing a difference in treatment in terms of pay between socially useful workers/publicly useful workers and workers engaged under a contract of indefinite duration by the same public authorities performing the same duties.

Operative part of the judgment

Clause 2 of the framework agreement on fixed-term work concluded on 18 March 1999, which is annexed to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be interpreted as not precluding national legislation such as that at issue in the main proceedings, which provides that the relationship between socially useful workers and the public authorities for whom they carry out their activities does not fall within the scope of that framework agreement where, and which is for the national court to determine, those workers are not covered by an employment relationship as defined by national law, collective agreements or practice in force, or the Member States and/or social partners have exercised the option granted to them under point 2 of that clause

---

(1)  OJ C 173, 11.6.2011.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/10 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/10

---

Judgment of the Court (Second Chamber) of 22 March 2012 (reference for a preliminary ruling from the Curtea de Apel Cluj — Romania) — Criminal proceedings against Rareș Doralin Nilaș, Sergiu-Dan Dascăl, Gicu Agenor Gânscă, Ana-Maria Oprean, Ionuț Horea Baboș

(Case C-248/11) (1)

(Directive 2004/39/EC - Markets in financial instruments - Article 4(1)(14) - Concept of ‘regulated market’ - Authorisation - Functional requirements - Market whose legal nature is not specified, but which is managed, after a merger, by a legal person also managing a regulated market - Article 47 - Not included on the list of regulated markets - Directive 2003/6/EC - Scope - Market manipulation)

2012/C 133/18

Language of the case: Romanian

Referring court

Curtea de Apel Cluj

Parties in the main proceedings

Rareș Doralin Nilaș, Sergiu-Dan Dascăl, Gicu Agenor Gânscă, Ana-Maria Oprean, Ionuț Horea Baboș

Re:

Reference for a preliminary ruling — Curtea de Apel Cluj — Interpretation of Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments, amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC (OJ 2004 L 145, p. 1), in particular Articles 4(1)(19), 9 to 14 and 47 — Definition of the concept of ‘regulated market’ — Inclusion of the Rasdaq Exchange, secondary market in financial instruments, not approved by the competent authorities but administered by the Bucharest Exchange, approved as a regulated market — Applicable legal rules — Offence of market manipulation.

Operative part of the judgment

| 1. | Article 4(1)(14) of Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC, as amended by Directive 2007/44/EC of the European Parliament and of the Council of 5 September 2007, must be interpreted as meaning that a market in financial instruments which does not satisfy the requirements in Title III of that directive does not fall within the concept of ‘regulated market’, as defined in that provision, notwithstanding the fact that its operator merged with the operator of such a regulated market. |
| --- | --- |

1.

Article 4(1)(14) of Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC, as amended by Directive 2007/44/EC of the European Parliament and of the Council of 5 September 2007, must be interpreted as meaning that a market in financial instruments which does not satisfy the requirements in Title III of that directive does not fall within the concept of ‘regulated market’, as defined in that provision, notwithstanding the fact that its operator merged with the operator of such a regulated market.

| 2. | Article 47 of Directive 2004/39, as amended by Directive 2007/44, must be interpreted as meaning that the inclusion of a market on the list of regulated markets referred to in that article is not a precondition for the classification of that market as a regulated market within the meaning of that directive. |
| --- | --- |

2.

Article 47 of Directive 2004/39, as amended by Directive 2007/44, must be interpreted as meaning that the inclusion of a market on the list of regulated markets referred to in that article is not a precondition for the classification of that market as a regulated market within the meaning of that directive.

---

(1)  OJ C 252, 27.8.2011.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/11 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/11

---

Order of the Court (Eighth Chamber) of 8 February 2012 — Yorma’s AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Norma Lebensmittelfilialbetrieb GmbH & Co. KG

(Case C-191/11 P) (1)

(Appeal - Community trade mark - Regulation (EC) No 40/94 - Article 8(1)(b) - Opposition proceedings - Application for Community figurative mark with the word element ‘yorma’s’ - Earlier Community word mark NORMA - Relative ground for refusal - Likelihood of confusion)

2012/C 133/19

Language of the case: German

Parties

Appellant: Yorma’s AG (represented by: A. Weiß, Rechtsanwältin)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: G. Schneider, Agent), Norma Lebensmittelfilialbetrieb GmbH & Co. KG (represented by: A. Parr, Rechtsanwältin)

Re:

Appeal against the judgment of the General Court (First Chamber) of 15 February 2011 in Case T-213/09 Yorma’s v OHIM — Norma Lebensmittelfilialbetrieb (YORMA’S) dismissing the application for annulment of the decision of the First Board of Appeal of OHIM of 20 February 2009 refusing registration of the figurative sign with the word element ‘yorma’s’ as a Community trade mark for certain services in Classes 35 and 42 and upholding the opposition brought by the proprietor of the earlier Community word mark ‘NORMA’ — Likelihood of confusion between two marks — Incorrect assessment of the similarity of the marks and services concerned — 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. | Yorma’s AG shall pay the costs. |
| --- | --- |

2.

Yorma’s AG shall pay the costs.

---

(1)  OJ C 211, 16.7.2011.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/11 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/11

---

Order of the Court of 2 February 2012 — Elf Aquitaine SA v European Commission

(Case C-404/11 P) (1)

(Appeal - Regulation (EC) No 1/2003 - Competition - Cartel - Sodium chlorate market - Concept of an ‘undertaking’ - Presumption of decisive influence - Scope of that presumption - Factors not capable of rebutting the presumption - Personal fine - Unlimited jurisdiction)

2012/C 133/20

Language of the case: French

Parties

Appellant: Elf Aquitaine SA (represented by: E. Morgan de Rivery and E. Lagathu, avocats)

Other party to the proceedings: European Commission (represented by: E. Gippini Fournier and R. Sauer, acting as Agents)

Re:

Appeal brought against the judgment of the General Court (Second Chamber) of 17 May 2011 in Case T-299/08 Elf Aquitaine v Commission, by which the General Court dismissed the action brought by the applicant for annulment of Commission Decision C(2008) 2626 final of 11 June 2008 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/38.695 — Sodium chlorate) — Competition — Cartel — Infringement of the principles of conferral and proportionality — Manifestly erroneous interpretation — Infringement of the rights of the defence, of the principles of equality and equality of arms — Duty to state reasons — Illegality of the personal fine

Operative part of the order

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

1.

The appeal is dismissed.

| 2. | Elf Aquitaine SA is ordered to pay the costs. |
| --- | --- |

2.

Elf Aquitaine SA is ordered to pay the costs.

---

(1)  OJ C 298, 8.10.2011.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/12 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/12

---

Order of the Court of 7 February 2012 — Total SA and Elf Aquitaine SA v European Commission

(Case C-421/11 P) (1)

(Appeal - Regulation (EC) No 1/2003 - Competition - Cartel - Market for methacrylates - Concept of ‘undertaking’ - Presumption of decisive influence - Obligation to state reasons - Principle of sound administration - Extension of the authority of a final decision - Deterrent multiplying factor - Indivisible nature of the fine - Unlimited jurisdiction)

2012/C 133/21

Language of the case: French

Parties

Appellants: Total SA and Elf Aquitaine SA (represented by: E. Morgan de Rivery and A. Noël-Baron, lawyers)

Other party to the proceedings: European Commission (represented by: V. Bottka and B. Gencarelli, Agents)

Re:

Appeal brought against the judgment of the General Court (Fourth Chamber) of 7 June 2011 in Case T-206/06 Total and Elf Aquitaine v Commission, in which the General Court dismissed the action for annulment of Commission Decision C(2006) 2098 final of 31 May 2006 relating to a proceeding pursuant to Article 81 EC and Article 53 of the EEA Agreement (Case COMP/F/38.645 — Methacrylates) — Competition — Cartel — Infringement of the principles of conferral of powers and proportionality — Manifestly erroneous interpretation — Infringement of the rights of the defence, the principle of fairness and the principle of equality of arms — Obligation to state reasons — Infringement of the principle of sound administration

Operative part of the order

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

1.

The appeal is dismissed.

| 2. | Total SA and Elf Aquitaine SA shall pay the costs. |
| --- | --- |

2.

Total SA and Elf Aquitaine SA shall pay the costs.

---

(1)  OJ C 340, 19.11.2011.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/12 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/12

---

Order of the Court (Eighth Chamber) of 9 February 2012 (reference for a preliminary ruling from the High Court of Justice (Chancery Division) (United Kingdom) — Novartis AG v Actavis UK Ltd

(Case C-442/11) (1)

(The first subparagraph of Article 104(3) of the Rules of Procedure - Medicinal products for human use - Supplementary protection certificate - Regulation (EC) No 469/2009 - Articles 4 and 5 - Sole active ingredient for which such a certificate is granted - Scope of protection - Medicinal product containing more than one active ingredient, including the active ingredient which is the subject of a certificate)

2012/C 133/22

Language of the case: English

Referring court

High Court of Justice (Chancery Division)

Parties to the main proceedings

Applicant: Novartis AG

Defendant: Actavis UK Ltd

Re:

Reference for a preliminary ruling — High Court of Justice (Chancery Division) — Interpretation of Articles 4 and 5 of 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 (OJ 2009 L 152, p. 1) — Scope of the certificate — Protection only of medicinal products containing the protected active ingredient alone or protection also of medicinal products containing the protected active ingredient in combination with another active ingredient

Operative part of the order

Articles 4 and 5 of 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 must be interpreted as meaning that, where a ‘product’ consisting of an active ingredient was protected by a basic patent and the holder of that patent was able to rely on the protection conferred by that patent for that ‘product’ in order to oppose the marketing of a medicinal product containing that active ingredient in combination with one or more other active ingredients, a supplementary protection certificate granted for that ‘product’ enables its holder, after the basic patent has expired, to oppose the marketing by a third party of a medicinal product containing that product for a use of the ‘product’, as a medicinal product, which was authorised before that certificate expired.

---

(1)  OJ C 311, 22.10.2011.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/13 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/13

---

Order of the Court (Sixth Chamber) of 9 February 2012 (reference for a preliminary ruling from the Juzgado Contencioso-Administrativo No 4 de Valladolid — Espagne) — María Jesús Lorenzo Martínez v Junta de Castilla y León, Dirección General de Recursos Humanos de la Consejería de Educación

(Case C-556/11) (1)

(First subparagraph of Article 104(3) of the Rules of Procedure - Social policy - Directive 1999/70/EC - Clause 4(1) of the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP - Fixed-term employment contracts in the public sector - Non-university teaching - Right to six-yearly continuing professional education increments - Exclusion of teachers employed as temporary officials - Principle of non-discrimination)

2012/C 133/23

Language of the case: Spanish

Referring court

Juzgado Contencioso-Administrativo No 4 de Valladolid

Parties to the main proceedings

Applicant: María Jesús Lorenzo Martínez

Defendant: Junta de Castilla y León, Dirección General de Recursos Humanos de la Consejería de Educación

Re:

Reference for a preliminary ruling — Juzgado Contencioso-Administrativo de Valladolid — Interpretation of Clause 4 of the Annex to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43) — Principle of non-discrimination — Grant to teaching staff of a six-yearly continuing professional education increment — Increment granted exclusively to established (career) civil servants

Operative part of the order

Clause 4(1) of the framework agreement on fixed-term work, concluded on 18 March 1999 and annexed to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which restricts, in the absence of any objective justification, the right to receive a six-yearly continuing professional education increment solely to teachers employed as established (career) civil servants, to the exclusion of those working as temporary officials, where, in respect of the receipt of that increment, those two categories of workers are in comparable situations.

---

(1)  OJ C 25, 28.1.2010.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/13 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/13

---

Order of the Court (Eighth Chamber) of 9 February 2012 (reference for a preliminary ruling from the Landgericht Düsseldorf — Germany) — Novartis AG v Actavis Deutschland GmbH & Co KG, Actavis Ltd

(Case C-574/11) (1)

(The first subparagraph of Article 104(3) of the Rules of Procedure - Medicinal products for human use - Supplementary protection certificate - Regulation (EC) No 469/2009 - Articles 4 and 5 - Sole active ingredient for which such a certificate is granted - Scope of protection - Medicinal product containing more than one active ingredient, including the active ingredient which is the subject of a certificate)

2012/C 133/24

Language of the case: German

Referring court

Landgericht Düsseldorf

Parties to the main proceedings

Applicant: Novartis AG

Defendants: Actavis Deutschland GmbH & Co KG, Actavis Ltd

Re:

Reference for a preliminary ruling — Landgericht Düsseldorf — Interpretation of Articles 4 and 5 of 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 (OJ 2009 L 152, p. 1) — Scope of the certificate — Protection solely of medicinal products consisting only of the protected active ingredient or protection extended to medicinal products consisting of the protected active ingredient in combination with another active ingredient

Operative part of the order

Articles 4 and 5 of 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 must be interpreted as meaning that, where a ‘product’ consisting of an active ingredient was protected by a basic patent and the holder of that patent was able to rely on the protection conferred by that patent for that ‘product’ in order to oppose the marketing of a medicinal product containing that active ingredient in combination with one or more other active ingredients, a supplementary protection certificate granted for that ‘product’ enables its holder, after the basic patent has expired, to oppose the marketing by a third party of a medicinal product containing that product for a use of the ‘product’, as a medicinal product, which was authorised before that certificate expired.

---

(1)  OJ C 32, 4.2.2012.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/14 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/14

---

Appeal brought on 28 November 2011 by TofuTown.com GmbH against the judgment of the General Court (Second Chamber) delivered on 20 September 2011 in Case T-99/10 Meica Ammerländische Fleischwarenfabrik Fritz Meinen GmbH & Co. KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-599/11 P)

2012/C 133/25

Language of the case: German

Parties

Appellant: TofuTown.com GmbH (represented by: B. Krause, Rechtsanwältin)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Meica Ammerländische Fleischwarenfabrik Fritz Meinen GmbH & Co. KG

Form of order sought

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

—

Set aside the judgment under appeal;

| — | order Meica Ammerländische Fleischwarenfabrik Fritz Meinen GmbH & Co. KG to pay the costs of the proceedings at first instance and of this appeal, or, on the contested basis that the appeal is dismissed, order that such costs be shared. |
| --- | --- |

—

order Meica Ammerländische Fleischwarenfabrik Fritz Meinen GmbH & Co. KG to pay the costs of the proceedings at first instance and of this appeal, or, on the contested basis that the appeal is dismissed, order that such costs be shared.

Pleas in law and main arguments

The present appeal has been brought against the judgment of the General Court by which that Court annulled the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 7 January 2010 relating to opposition proceedings between Meica Ammerländische Fleischwarenfabrik Fritz Meinen GmbH & Co. KG and TofuTown.com GmbH.

In the appellant’s view the judgment under appeal should be set aside on the following grounds.

First, the General Court erred in law in determining, under new criteria, that there was a likelihood of confusion in the light of Article 8(1)(b) of Regulation No 207/2009. According to the judgment under appeal, it is sufficient, in order for the existence of a conceptual similarity to be established, that both terms are taken from a common overarching term, and that, although conceptually different, they do not contrast with each other, which is inconsistent with existing case-law.

Second, the General Court erred in law in determining that there was a likelihood of confusion without taking all the relevant and accepted criteria for the assessment of the similarity of trade marks into account. In the present case, the only common element is at the end of the mark cited in opposition. According to settled case-law, consumers generally pay more attention to the beginning of a trade mark than to the end.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/14 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/14

---

Appeal brought on 30 November 2011 by ara AG against the judgment of the General Court (Seventh Chamber) delivered on 22 September 2011 in Case T-174/10 ara v OHIM

(Case C-611/11 P)

2012/C 133/26

Language of the case: French

Parties

Appellant: ara AG (represented by: M. Gail, Rechtsanwalt)

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

Form of order sought

| — | Set aside the judgment of the General Court of the European Union of 22 September 2011 in Case T-174/10; |
| --- | --- |

—

Set aside the judgment of the General Court of the European Union of 22 September 2011 in Case T-174/10;

| — | annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 26 January 2010 (Case R 481/2009-1); |
| --- | --- |

—

annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 26 January 2010 (Case R 481/2009-1);

| — | order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) and the intervener at first instance to pay the entirety of the costs in the two instances. |
| --- | --- |

—

order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) and the intervener at first instance to pay the entirety of the costs in the two instances.

Pleas in law and main arguments

The appellant alleges infringement by the General Court of Article 8(1)(b) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark. (1)

In that connection, the appellant alleges, first, breach of the obligation to state reasons by the General Court in that it failed, in the global assessment of the likelihood of confusion, to provide sufficient reasons with regard to the criteria of the relevant public, the comparison of the marks and the likelihood of confusion. Thus, the General Court erred in finding that the public in question consists of average consumers displaying an average level of attention when the goods concerned are purchased despite the fact that it had been established, initially, that the consumer will rarely have the chance to make a direct comparison between the different marks. Furthermore, the General Court erred in finding, when comparing the marks, that the presence of the two triangular motifs dominated the impression conveyed to the public by the mark in dispute. Consequently, the General Court overstated one or more components of the mark.

In addition, the appellant submits that the General Court breached the obligation to state reasons to the extent that it did not refer to the documents submitted by the intervener in connection with ascertaining whether there was a likelihood of confusion.

Lastly, the appellant submits that the General Court underestimated the importance of the principle that the competent authority has a duty to examine relevant facts of its own motion.

---

(1)  OJ 2009 L 78, p. 1.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/15 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/15

---

Appeal brought on 6 December 2011 by Brighton Collectibles, Inc. against the judgment of the General Court (Second Chamber) delivered on 27 September 2011 in Case T-403/10 Brighton Collectibles v OHIM — Felmar

(Case C-624/11 P)

2012/C 133/27

Language of the case: French

Parties

Appellant: Brighton Collectibles, Inc. (represented by: J. Horn, avocat)

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

Form of order sought

| — | Set aside the judgment of the General Court in Case T-403/10; |
| --- | --- |

—

Set aside the judgment of the General Court in Case T-403/10;

| — | Order OHIM to bear its own costs and those of the appellant; |
| --- | --- |

—

Order OHIM to bear its own costs and those of the appellant;

| — | Order Felmar to bear its own costs if it intervenes in the proceedings. |
| --- | --- |

—

Order Felmar to bear its own costs if it intervenes in the proceedings.

Pleas in law and main arguments

By the present appeal, the appellant claims that the General Court failed to make a valid assessment of the evidence the appellant submitted to it and failed to give sufficient reasons for its decision with regard to the national laws relied upon, in particular, Irish and UK case-law relating to passing off. Consequently, the General Court infringed the provisions of Article 8(4) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark. (1)

---

(1)  OJ 2009 L 78, p. 1.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/15 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/15

---

Reference for a preliminary ruling from the Bundesverwaltungsgericht (Federal Administrative Court) Leipzig (Germany) lodged on 13 February 2012 — Gemeinde Altrip (Municipality of Altrip), Gebrüder Hört GbR, Willi Schneider v Rhineland-Palatinate

(Case C-72/12)

2012/C 133/28

Language of the case: German

Referring court

Bundesverwaltungsgericht (Federal Administrative Court) Leipzig

Parties to the main proceedings

Applicants: Gemeinde Altrip (Municipality of Altrip), Gebrüder Hört GbR, Willi Schneider

Defendant: Rhineland-Palatinate

Questions referred

| 1. | Is Article 6(1) of Directive 2003/35/EC (1) of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC (2) and 96/61/EC to be interpreted as meaning that Member States were required to declare the rules of national law adopted to implement Article 10a of Directive 85/337/EEC applicable also to those official permit procedures which had been initiated before 25 June 2005 but in which the permits were not issued until after that date? |
| --- | --- |

1.

Is Article 6(1) of Directive 2003/35/EC (1) of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC (2) and 96/61/EC to be interpreted as meaning that Member States were required to declare the rules of national law adopted to implement Article 10a of Directive 85/337/EEC applicable also to those official permit procedures which had been initiated before 25 June 2005 but in which the permits were not issued until after that date?

| 2. | If Question 1 is answered in the affirmative:
  Is Article 10a of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003, to be interpreted as meaning that Member States were required to extend the applicability of the rules of national law adopted in implementation of Article 10a of Directive 85/337/EEC for the purpose of challenging the procedural legality of a decision to include cases in which an environmental impact assessment was carried out but was incorrect? |
| --- | --- |

2.

If Question 1 is answered in the affirmative:

Is Article 10a of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003, to be interpreted as meaning that Member States were required to extend the applicability of the rules of national law adopted in implementation of Article 10a of Directive 85/337/EEC for the purpose of challenging the procedural legality of a decision to include cases in which an environmental impact assessment was carried out but was incorrect?

| 3. | If Question 2 is answered in the affirmative:
  In cases in which, in accordance with Article 10a(1)(b) of Directive 85/337/EEC, the administrative procedural law of a Member State lays down in principle that access to a judicial review procedure for members of the public concerned is conditional upon maintaining the impairment of a right, is Article 10a of Directive 85/337/EEC to be interpreted as meaning






  (a) | that a challenge before a court to the procedural legality of decisions to which the provisions of this Directive on public participation are applicable can be successful and lead to the decision being set aside only if, in the circumstances of the case, there is a definite possibility that the contested decision would have been different without the procedural error and if, at the same time, the procedural error affected a substantive legal position to which the applicant was entitled, or |
| --- | --- | --- |

3.

If Question 2 is answered in the affirmative:

In cases in which, in accordance with Article 10a(1)(b) of Directive 85/337/EEC, the administrative procedural law of a Member State lays down in principle that access to a judicial review procedure for members of the public concerned is conditional upon maintaining the impairment of a right, is Article 10a of Directive 85/337/EEC to be interpreted as meaning

(a)

that a challenge before a court to the procedural legality of decisions to which the provisions of this Directive on public participation are applicable can be successful and lead to the decision being set aside only if, in the circumstances of the case, there is a definite possibility that the contested decision would have been different without the procedural error and if, at the same time, the procedural error affected a substantive legal position to which the applicant was entitled, or

| (b) | that, in a challenge before a court to procedural legality, procedural errors in decisions to which the provisions of the Directive on public participation are applicable must be considerable on a wider scale? |
| --- | --- |

(b)

that, in a challenge before a court to procedural legality, procedural errors in decisions to which the provisions of the Directive on public participation are applicable must be considerable on a wider scale?

If it is necessary to answer the above question as in b):

Which substantive requirements should apply to procedural errors, in order for these to be taken into account in challenges before a court to the procedural legality of the decision in favour of an applicant?

---

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

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

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/16 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/16

---

Action brought on 13 February 2012 — European Commission v French Republic

(Case C-76/12)

2012/C 133/29

Language of the case: French

Parties

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

Defendant: French Republic

Form of order sought

| — | declare that, by maintaining in force a tax regime which exempts from tax dividends paid by a French company to investment funds established in France, whereas the same dividends distributed to investment funds established in another Member State of the European Union or of the European Economic Area are subject to a withholding tax, the French Republic has failed to fulfil its obligations under Article 63 of the Treaty on the Functioning of the European Union and Article 40 of the Agreement on the European Economic Area; |
| --- | --- |

—

declare that, by maintaining in force a tax regime which exempts from tax dividends paid by a French company to investment funds established in France, whereas the same dividends distributed to investment funds established in another Member State of the European Union or of the European Economic Area are subject to a withholding tax, the French Republic has failed to fulfil its obligations under Article 63 of the Treaty on the Functioning of the European Union and Article 40 of the Agreement on the European Economic Area;

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

—

order the French Republic to pay the costs.

Pleas in law and main arguments

By its action, the Commission challenges the difference in the tax treatment of dividends paid by French companies to undertakings for collective investment in transferable securities (UCITS) depending on whether those UCITS are resident or non-resident in France. One of the elements of the tax regime applied to UCITS resident in France is the fact that the latter are not subject to tax in respect of dividends distributed to them by French companies. By contrast, pursuant to Article 119a (2) of the French General Tax Code (Code général des impôts), a withholding tax is applied to dividends distributed by French companies to non-resident UCITS. The Commission takes the view that the differing tax treatment applied to resident and to non-resident UCITS, although they are in an objectively comparable situation irrespective of their State of residence, constitutes an obstacle to the free movement of capital, and that that obstacle is not justified by the effectiveness of fiscal supervision or by the need to safeguard a balanced apportionment of the power to tax.

The Commission notes that, according to settled case-law as set out in particular in the judgments in Case C-540/07 Commission v Italy [2009] ECR I-10983 and Case C-284/09 Commission v Germany [2011], the Court has held that Member States which subject dividends distributed to companies established in other Member States to a tax regime which is less favourable than that applied to dividends distributed to resident companies, without that difference in treatment being justified by objectively different situations or by overriding reasons in the general interest, have failed to fulfil their obligations in respect of the free movement of capital.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/16 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/16

---

Reference for a preliminary ruling from the Аdministrativen sad Sofia-grad (Bulgaria) lodged on 14 February 2012 — Еvitа-K EOOD v Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’, Sofia

(Case C-78/12)

2012/C 133/30

Language of the case: Bulgarian

Referring court

Аdministrativen sad Sofia-grad

Parties to the main proceedings

Applicant: Еvitа-K EOOD

Defendant: Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’, Sofia

Questions referred

| 1. | Is the concept of ‘supply of goods’ within the meaning of Article 14(1) of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax in conjunction with Article 345 of the Treaty on the Functioning of the European Union to be interpreted as meaning that, in the circumstances of the main proceedings, it allows the person to whom a supply is made to acquire the right to dispose of the goods (movable property specified only by type) by acquiring the ownership of those goods from a non owner through bona fide possession acquired for consideration, which is permissible under the national law of the Member State, although it should be borne in mind that, under that law, the right of ownership of such property is transferred by delivery? |
| --- | --- |

1.

Is the concept of ‘supply of goods’ within the meaning of Article 14(1) of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax in conjunction with Article 345 of the Treaty on the Functioning of the European Union to be interpreted as meaning that, in the circumstances of the main proceedings, it allows the person to whom a supply is made to acquire the right to dispose of the goods (movable property specified only by type) by acquiring the ownership of those goods from a non owner through bona fide possession acquired for consideration, which is permissible under the national law of the Member State, although it should be borne in mind that, under that law, the right of ownership of such property is transferred by delivery?

| 2. | Does proof of effecting a ‘supply of goods’ within the meaning of Article 14(1) of Directive 2006/112 with respect to a specific invoice in connection with the exercise of the right under Article 178(a) of the Directive to deduct the tax actually paid and shown in that invoice presuppose that the person to whom the supply is made demonstrates the supplier’s rights of ownership where the supply relates to movable property specified according to its type and under the national law of the Member State the right of ownership of such property is transferred by delivery, although under that law the acquisition of the right of ownership of such property by bona fide possession acquired for consideration from a non owner is also permitted?
  Is a ‘supply of goods’ for the purposes of deduction of input tax within the meaning of the Directive to be regarded as proved where, in the circumstances of the main proceedings, the person to whom the supply is made has effected a subsequent supply of the same goods (animals subject to compulsory identification) by exportation with the submission of a customs declaration and there is no evidence of rights of third parties in those goods? |
| --- | --- |

2.

Does proof of effecting a ‘supply of goods’ within the meaning of Article 14(1) of Directive 2006/112 with respect to a specific invoice in connection with the exercise of the right under Article 178(a) of the Directive to deduct the tax actually paid and shown in that invoice presuppose that the person to whom the supply is made demonstrates the supplier’s rights of ownership where the supply relates to movable property specified according to its type and under the national law of the Member State the right of ownership of such property is transferred by delivery, although under that law the acquisition of the right of ownership of such property by bona fide possession acquired for consideration from a non owner is also permitted?

Is a ‘supply of goods’ for the purposes of deduction of input tax within the meaning of the Directive to be regarded as proved where, in the circumstances of the main proceedings, the person to whom the supply is made has effected a subsequent supply of the same goods (animals subject to compulsory identification) by exportation with the submission of a customs declaration and there is no evidence of rights of third parties in those goods?

| 3. | For the purposes of demonstrating that a ‘supply of goods’ within the meaning of Article 14(1) of Directive 2006/112 has been effected with respect to a specific invoice in connection with the exercise of the right under Article 178(a) of the Directive to deduct the tax actually paid and shown in that invoice, must it be assumed that the supplier and the person to whom the supply is made, who are not agricultural producers, are acting in bad faith where, on receipt of the goods, no document mentioning the animals’ ear tags in accordance with the requirements of European Union veterinary legislation was provided by the previous owner, and the animals’ ear tags are not mentioned in the veterinary certificate which was issued by an administrative authority and which accompanies the animals during transport in order to effect the specific supply?
  Where the supplier and the person to whom the supply is made have independently made lists of the ear tags, must it then be assumed that they have complied with the requirements of that European Union veterinary legislation if the administrative authority has not shown the animals’ ear tags in the veterinary certificate which accompanies the animals during their shipment? |
| --- | --- |

3.

For the purposes of demonstrating that a ‘supply of goods’ within the meaning of Article 14(1) of Directive 2006/112 has been effected with respect to a specific invoice in connection with the exercise of the right under Article 178(a) of the Directive to deduct the tax actually paid and shown in that invoice, must it be assumed that the supplier and the person to whom the supply is made, who are not agricultural producers, are acting in bad faith where, on receipt of the goods, no document mentioning the animals’ ear tags in accordance with the requirements of European Union veterinary legislation was provided by the previous owner, and the animals’ ear tags are not mentioned in the veterinary certificate which was issued by an administrative authority and which accompanies the animals during transport in order to effect the specific supply?

Where the supplier and the person to whom the supply is made have independently made lists of the ear tags, must it then be assumed that they have complied with the requirements of that European Union veterinary legislation if the administrative authority has not shown the animals’ ear tags in the veterinary certificate which accompanies the animals during their shipment?

| 4. | Are the supplier and the person to whom the supply is made in the main proceedings, who are not agricultural producers, required under Article 242 of Directive 2006/112 to show the goods supplied (animals subject to compulsory identification or ‘biological assets’) in their accounts pursuant to International Accounting Standard 41, Agriculture, and to prove control of the assets in accordance with that standard? |
| --- | --- |

4.

Are the supplier and the person to whom the supply is made in the main proceedings, who are not agricultural producers, required under Article 242 of Directive 2006/112 to show the goods supplied (animals subject to compulsory identification or ‘biological assets’) in their accounts pursuant to International Accounting Standard 41, Agriculture, and to prove control of the assets in accordance with that standard?

| 5. | Does Article 226(6) of Directive 2006/112 require the ear tags of the animals, which are subject to compulsory identification under the European Union veterinary legislation and are the goods supplied, also to be shown in VAT invoices such as those at issue in the main proceedings where the national law of the Member State does not expressly lay down such a requirement for the transfer of the right of ownership of such animals and the persons involved in the supply are not agricultural producers? |
| --- | --- |

5.

Does Article 226(6) of Directive 2006/112 require the ear tags of the animals, which are subject to compulsory identification under the European Union veterinary legislation and are the goods supplied, also to be shown in VAT invoices such as those at issue in the main proceedings where the national law of the Member State does not expressly lay down such a requirement for the transfer of the right of ownership of such animals and the persons involved in the supply are not agricultural producers?

| 6. | Is it permissible under Article 185(1) of Directive 2006/112, on the basis of a national provision such as that in the main proceedings, to adjust the deduction of input tax on account of the conclusion that the supplier’s right of ownership of the goods which are the content of the supply was not proved, where the supply was not cancelled by any of the persons involved in it, the person to whom the supply was made effected a subsequent supply of the same goods, there is no evidence of rights claimed by third parties in those goods (animals subject to compulsory identification), no bad faith on the part of the person to whom the supply was made is alleged and under the law of the Member State the right of ownership of such goods specified only according to their type is transferred by delivery? |
| --- | --- |

6.

Is it permissible under Article 185(1) of Directive 2006/112, on the basis of a national provision such as that in the main proceedings, to adjust the deduction of input tax on account of the conclusion that the supplier’s right of ownership of the goods which are the content of the supply was not proved, where the supply was not cancelled by any of the persons involved in it, the person to whom the supply was made effected a subsequent supply of the same goods, there is no evidence of rights claimed by third parties in those goods (animals subject to compulsory identification), no bad faith on the part of the person to whom the supply was made is alleged and under the law of the Member State the right of ownership of such goods specified only according to their type is transferred by delivery?

---

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

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/17 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/17

---

Reference for a preliminary ruling from the Verwaltungsgericht Berlin (Germany) lodged on 17 February 2012 — Ezatollah Rahmanian Koushkaki v Federal Republic of Germany

(Case C-84/12)

2012/C 133/31

Language of the case: German

Referring court

Verwaltungsgericht Berlin

Parties to the main proceedings

Applicant: Rahmanian Koushkaki

Defendant: Federal Republic of Germany

Questions referred

| 1. | In order for the court to direct the defendant to issue a Schengen visa to the applicant, must the court be satisfied that, pursuant to Article 21(1) of the Visa Code, (1) the applicant intends to leave the territory of the Member States before the expiry of the visa applied for, or is it sufficient if the court, after examining Article 32(1)(b) of the Visa Code, has no doubts based on special circumstances as to the applicant’s stated intention to leave the territory of the Member States before the expiry of the visa applied for? |
| --- | --- |

1.

In order for the court to direct the defendant to issue a Schengen visa to the applicant, must the court be satisfied that, pursuant to Article 21(1) of the Visa Code, (1) the applicant intends to leave the territory of the Member States before the expiry of the visa applied for, or is it sufficient if the court, after examining Article 32(1)(b) of the Visa Code, has no doubts based on special circumstances as to the applicant’s stated intention to leave the territory of the Member States before the expiry of the visa applied for?

| 2. | Does the Visa Code establish a non-discretionary right to the issue of a Schengen visa if the entry conditions, in particular those of Article 21(1) of the Visa Code, are satisfied and there are no grounds for refusing the visa pursuant to Article 32(1) of the Visa Code? |
| --- | --- |

2.

Does the Visa Code establish a non-discretionary right to the issue of a Schengen visa if the entry conditions, in particular those of Article 21(1) of the Visa Code, are satisfied and there are no grounds for refusing the visa pursuant to Article 32(1) of the Visa Code?

| 3. | Does the Visa Code preclude a national provision whereby a foreigner may, in accordance with Regulation (EC) No 810/2009, be issued with a visa for transit through or an intended stay in the territory of the Schengen States of no more than three months within a six-month period from the date of first entry (Schengen visa)? |
| --- | --- |

3.

Does the Visa Code preclude a national provision whereby a foreigner may, in accordance with Regulation (EC) No 810/2009, be issued with a visa for transit through or an intended stay in the territory of the Schengen States of no more than three months within a six-month period from the date of first entry (Schengen visa)?

---

(1)  Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code), OJ 2009, L 243, p. 1.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/18 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/18

---

Reference for a preliminary ruling from the Hof van Cassatie van België (Belgium) lodged on 17 February 2012 — Rose Marie Bark v Galileo Joint Undertaking, in liquidation

(Case C-89/12)

2012/C 133/32

Language of the case: Dutch

Referring court

Hof van Cassatie (Belgium)

Parties to the main proceedings

Appellant in cassation: Rose Marie Bark

Respondent in cassation: Galileo Joint Undertaking, in liquidation

Question referred

Should Article 11(2) of the Statutes of the Galileo Joint Undertaking, annexed to Council Regulation (EC) No 876/2002 (1) of 21 May 2002 setting up the Galileo Joint Undertaking, in conjunction with Article 2 of that regulation be interpreted as meaning that the conditions of employment of other servants of the European Union, and more specifically the pay conditions of those conditions of employment, are applicable to staff of the Galileo Joint Undertaking who are employed on fixed-term contracts?

---

(1)  OJ 2002 L 138, p. 1.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/18 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/18

---

Reference for a preliminary ruling from High Court of Ireland (Ireland) made on 17 February 2012 — Health Service Executive v SC, AC

(Case C-92/12)

2012/C 133/33

Language of the case: English

Referring court

High Court of Ireland

Parties to the main proceedings

Applicant: Health Service Executive

Defendants: SC, AC

Questions referred

| 1. | Does a judgment which provides for the detention of a child for a specified time in another Member State in an institution providing therapeutic and educational care come within the material scope of Council Regulation No 2201/2003 (1)? |
| --- | --- |

1.

Does a judgment which provides for the detention of a child for a specified time in another Member State in an institution providing therapeutic and educational care come within the material scope of Council Regulation No 2201/2003 (1)?

| 2. | If the answer to Question one is yes, what obligations, if any, arise out of Article 56 of Council Regulation No 2201/2003 as to the nature of the consultation and consent mechanism to ensure the effective protection of a child who is to be so detained. |
| --- | --- |

2.

If the answer to Question one is yes, what obligations, if any, arise out of Article 56 of Council Regulation No 2201/2003 as to the nature of the consultation and consent mechanism to ensure the effective protection of a child who is to be so detained.

| 3. | Where a Court of a Member State has contemplated the placement of a child for a specified time in a residential care institution in another Member State and has obtained the consent of that State in accordance with Article 56 of Council Regulation 2201/2003, must the judgment of the court directing the placement of a child for a specified time in a residential care institution situated in another Member State be recognised and/or declared enforceable in that other Member State as a precondition to the placement being effected? |
| --- | --- |

3.

Where a Court of a Member State has contemplated the placement of a child for a specified time in a residential care institution in another Member State and has obtained the consent of that State in accordance with Article 56 of Council Regulation 2201/2003, must the judgment of the court directing the placement of a child for a specified time in a residential care institution situated in another Member State be recognised and/or declared enforceable in that other Member State as a precondition to the placement being effected?

| 4. | Does a judgment of the court directing the placement of the child for a specified time in a residential care institution situated in another Member State and which has been consented to by that Member State in accordance with Article 56 of Council Regulation 2201/2003 have any legal effect in that other Member State prior to the grant of a declaration of recognition and/or enforceability upon the completion of the proceedings seeking such declaration of recognition and/or enforceability? |
| --- | --- |

4.

Does a judgment of the court directing the placement of the child for a specified time in a residential care institution situated in another Member State and which has been consented to by that Member State in accordance with Article 56 of Council Regulation 2201/2003 have any legal effect in that other Member State prior to the grant of a declaration of recognition and/or enforceability upon the completion of the proceedings seeking such declaration of recognition and/or enforceability?

| 5. | Where a judgment of the court directing the placement of the child for a specified time in a residential care institution situated in another Member State under Article 56 of Council Regulation 2201/2003 is renewed for a further specified time must the Article 56 consent of the other Member State be obtained upon the occasion of each renewal? |
| --- | --- |

5.

Where a judgment of the court directing the placement of the child for a specified time in a residential care institution situated in another Member State under Article 56 of Council Regulation 2201/2003 is renewed for a further specified time must the Article 56 consent of the other Member State be obtained upon the occasion of each renewal?

| 6. | Where a judgment of the court directing the placement of the child for a specified time in a residential care institution situated in another Member state under Article 56 of Council Regulation 2201/2003 is renewed for a further specified time must the judgment be recognised and/or enforced in that other Member State upon the occasion of each renewal? |
| --- | --- |

6.

Where a judgment of the court directing the placement of the child for a specified time in a residential care institution situated in another Member state under Article 56 of Council Regulation 2201/2003 is renewed for a further specified time must the judgment be recognised and/or enforced in that other Member State upon the occasion of each renewal?

---

(1)  OJ L 338, p. 1

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/19 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/19

---

Reference for a preliminary ruling from the Administrativen sad Sofia-grad (Bulgaria) lodged on 21 February 2012 — ET Agrokonsulting-04-Velko Stoyanov v Izpalnitelen direktor na Darzhaven fond ‘Zemedelie’ — Razplashtatelna agentsia

(Case C-93/12)

2012/C 133/34

Language of the case: Bulgarian

Referring court

Administrativen sad Sofia-grad

Parties to the main proceedings

Applicant: ET Agrokonsulting-04-Velko Stoyanov

Defendant: Izpalnitelen direktor na Darzhaven fond ‘Zemedelie’ — Razplashtatelna agentsia

Questions referred

| 1. | Are the principle of effectiveness set out in the case-law [of the Court of Justice] of the European Union and the principle of effective judicial protection enshrined in Article 47 of the Charter of Fundamental Rights of the European Union to be interpreted as not permitting a national procedural rule such as Article 133(1) of the Code of administrative procedure which makes jurisdiction for administrative disputes concerning the implementation of the European Union’s common agricultural policy dependent solely on the seat of the administrative authority which adopted the contested administrative act, considering that that rule does not take into consideration the place in which the properties are located and the place of residence of the person seeking justice? |
| --- | --- |

1.

Are the principle of effectiveness set out in the case-law [of the Court of Justice] of the European Union and the principle of effective judicial protection enshrined in Article 47 of the Charter of Fundamental Rights of the European Union to be interpreted as not permitting a national procedural rule such as Article 133(1) of the Code of administrative procedure which makes jurisdiction for administrative disputes concerning the implementation of the European Union’s common agricultural policy dependent solely on the seat of the administrative authority which adopted the contested administrative act, considering that that rule does not take into consideration the place in which the properties are located and the place of residence of the person seeking justice?

| 2. | Is the principle of equivalence set out in the case-law of the Court of Justice of the European Union to be interpreted as not permitting a national procedural rule such as Article 133(1) of the Code of administrative procedure which makes jurisdiction for administrative disputes concerning the implementation of the European Union’s common agricultural policy dependent solely on the seat of the administrative authority which adopted the contested administrative act, if account is taken of paragraph 19 of the transitional and final provisions of the Law amending and supplementing the Code of Administrative Procedure (which concerns jurisdiction for domestic administrative disputes concerning agricultural land)? |
| --- | --- |

2.

Is the principle of equivalence set out in the case-law of the Court of Justice of the European Union to be interpreted as not permitting a national procedural rule such as Article 133(1) of the Code of administrative procedure which makes jurisdiction for administrative disputes concerning the implementation of the European Union’s common agricultural policy dependent solely on the seat of the administrative authority which adopted the contested administrative act, if account is taken of paragraph 19 of the transitional and final provisions of the Law amending and supplementing the Code of Administrative Procedure (which concerns jurisdiction for domestic administrative disputes concerning agricultural land)?

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/19 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/19

---

Reference for a preliminary ruling from the Verwaltungsgericht Stuttgart (Germany) lodged on 27 February 2012 — Herbert Schaible v Land Baden-Württemberg

(Case C-101/12)

2012/C 133/35

Language of the case: German

Referring court

Verwaltungsgericht Stuttgart

Parties to the main proceedings

Applicant: Herbert Schaible

Defendant: Land Baden-Württemberg

Questions referred

The questions whether

| (a) | the claimant’s obligation to identify individual animals under Articles 3(1) and 4(2) of Regulation (EC) No 21/2004, (1) |
| --- | --- |

(a)

the claimant’s obligation to identify individual animals under Articles 3(1) and 4(2) of Regulation (EC) No 21/2004, (1)

| (b) | the claimant’s obligation of electronic identification of individual animals under the first subparagraph of Article 9(3) of Regulation (EC) No 21/2004 as amended by Regulation (EC) No 1560/2007, (2) and |
| --- | --- |

(b)

the claimant’s obligation of electronic identification of individual animals under the first subparagraph of Article 9(3) of Regulation (EC) No 21/2004 as amended by Regulation (EC) No 1560/2007, (2) and

| (c) | the claimant’s obligation to keep holding register C in accordance with Article 5(1) in conjunction with point B(2) of the Annex to Regulation (EC) No 21/2004 |
| --- | --- |

(c)

the claimant’s obligation to keep holding register C in accordance with Article 5(1) in conjunction with point B(2) of the Annex to Regulation (EC) No 21/2004

are compatible with higher-ranking European Union law and therefore valid are referred to the Court of Justice of the European Union.

---

(1)  Council Regulation (EC) No 21/2004 of 17 December 2003 establishing a system for the identification and registration of ovine and caprine animals and amending Regulation (EC) No 1782/2003 and Directives 92/102/EEC and 64/432/EEC (OJ 2004 L 5, p. 8).

(2)  Council Regulation (EC) No 1560/2007 of 17 December 2007 amending Regulation (EC) No 21/2004 as regards the date of introduction of electronic identification for ovine and caprine animals (OJ 2007 L 340, p. 25).

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/20 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/20

---

Reference for a preliminary ruling from the Korkein hallinto-oikeus (Finland) lodged on 29 February 2012 — Laboratoires Lyocentre

(Case C-109/12)

2012/C 133/36

Language of the case: Finnish

Referring court

Korkein hallinto-oikeus

Parties to the main proceedings

Appellant: Laboratoires Lyocentre

Other parties: Lääkealan turvallisuus- ja kehittämiskeskus, Sosiaali- ja terveysalan lupa- ja valvontavirasto

Questions referred

| 1. | Does a definition given in one Member State in accordance with the Devices Directive 93/42/EEC (1), by which a product is regarded as a healthcare device or accessory in accordance with the Devices Directive and is provided with a CE marking, preclude the competent national authority of another Member State from defining the product concerned, on the basis of its pharmacological, immunological or metabolic effects, as a medicinal product in accordance with Article 1(2)(b) of the Medicinal Products Directive 2001/83/EC? (2) |
| --- | --- |

1.

Does a definition given in one Member State in accordance with the Devices Directive 93/42/EEC (1), by which a product is regarded as a healthcare device or accessory in accordance with the Devices Directive and is provided with a CE marking, preclude the competent national authority of another Member State from defining the product concerned, on the basis of its pharmacological, immunological or metabolic effects, as a medicinal product in accordance with Article 1(2)(b) of the Medicinal Products Directive 2001/83/EC? (2)

| 2. | If the answer to the previous question is in the negative, can that competent national authority define the product as a medicinal product observing only the procedures under the Medicinal Products Directive 2001/83/EC or is it necessary, prior to initiating procedures under the Medicinal Products Directive to define the product as a medicinal product, to follow the safeguard clause procedure in Article 8 of the Devices Directive or to comply with the provisions of Article 18 concerning an unduly affixed CE marking? |
| --- | --- |

2.

If the answer to the previous question is in the negative, can that competent national authority define the product as a medicinal product observing only the procedures under the Medicinal Products Directive 2001/83/EC or is it necessary, prior to initiating procedures under the Medicinal Products Directive to define the product as a medicinal product, to follow the safeguard clause procedure in Article 8 of the Devices Directive or to comply with the provisions of Article 18 concerning an unduly affixed CE marking?

| 3. | Does the Medicinal Products Directive 2001/83/EC, the Devices Directive 93/42/EEC or European Union legislation otherwise (including the protection of human health and life and consumer protection) preclude products containing the same substance and having the same functions from being on the market in the same Member State both as medicinal products in accordance with the Medicinal Products Directive 2001/83/EC, requiring a marketing authorisation, and as healthcare devices or accessories in accordance with the Devices Directive 93/42/EEC? |
| --- | --- |

3.

Does the Medicinal Products Directive 2001/83/EC, the Devices Directive 93/42/EEC or European Union legislation otherwise (including the protection of human health and life and consumer protection) preclude products containing the same substance and having the same functions from being on the market in the same Member State both as medicinal products in accordance with the Medicinal Products Directive 2001/83/EC, requiring a marketing authorisation, and as healthcare devices or accessories in accordance with the Devices Directive 93/42/EEC?

---

(1)  Council Directive 93/42/EEC of 14 June 1993 concerning medical devices, OJ 1993 L 169, 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 2001 L 311, p. 67.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/20 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/20

---

Action brought on 9 March 2012 — European Commission v Portuguese Republic

(Case C-130/12)

2012/C 133/37

Language of the case: Portuguese

Parties

Applicant: European Commission (represented by: P. Guerra e Andrade and J. Hottiaux, acting as Agents)

Defendant: Portuguese Republic

Form of order sought

The applicant claims that the Court should:

| — | declare that, by failing to adopt the legislative, regulatory and administrative provisions necessary to comply with Commission Directive 2009/113/EC (1) of 25 August 2009 amending Directive 2006/126/EC of the European Parliament and of the Council on driving licences, or, in any event, by failing to inform the Commission of such provisions, the Portuguese Republic has failed to fulfil its obligations under Article 2(1) of that directive; |
| --- | --- |

—

declare that, by failing to adopt the legislative, regulatory and administrative provisions necessary to comply with Commission Directive 2009/113/EC (1) of 25 August 2009 amending Directive 2006/126/EC of the European Parliament and of the Council on driving licences, or, in any event, by failing to inform the Commission of such provisions, the Portuguese Republic has failed to fulfil its obligations under Article 2(1) of that directive;

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

—

order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

The time-limit for transposing the directive expired on 14 September 2010.

---

(1)  OJ 2009 L 223, p. 31.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/20 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/20

---

Order of the President of the Court of 30 January 2012 — Alder Capital Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Gimv Nederland BV

(Case C-328/11 P) (1)

2012/C 133/38

Language of the case: English

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

---

(1)  OJ C 269, 10.9.2011.

---

General Court

| 5.5.2012 | EN | Official Journal of the European Union | C 133/21 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/21

---

Judgment of the General Court of 21 March 2012 — Ireland and Others v Commission

(Joined Cases T-50/06 RENV, T-56/06 RENV, T-60/06 RENV, T-62/06 RENV and T-69/06 RENV) (1)

(State aid - Directive 92/81/EEC - Excise duty on mineral oils - Mineral oils used as fuel for alumina production - Exemption from excise duty - Whether the exemption complies with a Council decision of authorisation under Article 8(4) of Directive 92/81 - Presumption of legality attaching to European Union measures - Legal certainty - Sound administration)

2012/C 133/39

Languages of the case: English, French and Italian

Parties

Applicants: Ireland (represented initially by D. O’Hagan and subsequently by E. Creedon, acting as Agents, and P. McGarry, Barrister) (Case T-50/06 RENV); French Republic (represented by G. de Bergues and J. Gstalter, acting as Agents) (Case T-56/06 RENV); Italian Republic (represented by G. Aiello, G. De Bellis and S. Fiorentino, avvocati dello Stato) (Case T-60/06 RENV); Eurallumina SpA (Portoscuso, Italy) (represented by R. Denton and L. Martin Alegi, Solicitors) (Case T-62/06 RENV); and Aughinish Alumina Ltd (Askeaton, Ireland) (represented by J. Handoll and C. Waterson, Solicitors) (Case T-69/06 RENV)

Defendant: European Commission (represented by: V. Di Bucci, N. Khan, D. Grespan and K. Walkerová, acting as Agents)

Re:

Application for annulment of Commission Decision 2006/323/EC of 7 December 2005 concerning the exemption from excise duty on mineral oils used as fuel for alumina production in Gardanne, in the Shannon region and in Sardinia respectively implemented by France, Ireland and Italy (OJ 2006 L 119, p. 12).

Operative part of the judgment

The Court:

| 1. | Annuls Commission Decision 2006/323/EC of 7 December 2005 concerning the exemption from excise duty on mineral oils used as fuel for alumina production in Gardanne, in the Shannon region and in Sardinia respectively implemented by France, Ireland and Italy, in so far as it finds, or is based on the finding, that the exemptions from excise duty on mineral oils used as fuel for alumina production granted by the French Republic, Ireland and the Italian Republic until 31 December 2003 constitute State aid within the meaning of Article 87(1) EC and in so far as it orders the French Republic, Ireland and the Italian Republic to take all measures necessary to recover those exemptions from the beneficiaries to the extent that the latter did not pay excise duty at the rate of at least EUR 13,01 per 1 000 kg of heavy fuel oils; |
| --- | --- |

1.

Annuls Commission Decision 2006/323/EC of 7 December 2005 concerning the exemption from excise duty on mineral oils used as fuel for alumina production in Gardanne, in the Shannon region and in Sardinia respectively implemented by France, Ireland and Italy, in so far as it finds, or is based on the finding, that the exemptions from excise duty on mineral oils used as fuel for alumina production granted by the French Republic, Ireland and the Italian Republic until 31 December 2003 constitute State aid within the meaning of Article 87(1) EC and in so far as it orders the French Republic, Ireland and the Italian Republic to take all measures necessary to recover those exemptions from the beneficiaries to the extent that the latter did not pay excise duty at the rate of at least EUR 13,01 per 1 000 kg of heavy fuel oils;

| 2. | Orders the European Commission to bear its own costs and to pay the costs incurred by Ireland in Case T-50/06 RENV, by the French Republic in Case T-56/06 RENV, by the Italian Republic in Case T-60/06 RENV, by Eurallumina Spa in Case T-62/06 RENV and by Aughinish Alumina Ltd in Case T-69/06 RENV, including the costs of the application for interim measures in Case T-69/06 R. |
| --- | --- |

2.

Orders the European Commission to bear its own costs and to pay the costs incurred by Ireland in Case T-50/06 RENV, by the French Republic in Case T-56/06 RENV, by the Italian Republic in Case T-60/06 RENV, by Eurallumina Spa in Case T-62/06 RENV and by Aughinish Alumina Ltd in Case T-69/06 RENV, including the costs of the application for interim measures in Case T-69/06 R.

---

(1)  OJ C 86, 8.4.2006.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/21 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/21

---

Judgment of the General Court of 21 March 2012 — Marine Harvest Norway and Alsaker Fjordbruk v Council

(Case T-113/06) (1)

(Dumping - Imports of salmon originating in Norway - Definition of the Community industry - Like product - Composition of the sample of Community producers)

2012/C 133/40

Language of the case: English

Parties

Applicants: Marine Harvest Norway AS, successor in law to Fjord Seafood Norway AS (Bergen, Norway) and Alsaker Fjordbruk AS (Onarheim, Norway) (represented by: J.M. Juuhl-Langseth and P. Dyrberg, lawyers)

Defendant: Council of the European Union (represented by: J.-P. Hix and B. Driessen, acting as Agents, and by G. Berrisch, lawyer)

Intervener in support of the defendant: European Commission (represented: initially by P. Stancanelli and K. Talabér-Ritz, and subsequently by K. Talabér-Ritz, T. Scharf and H. van Vliet, acting as Agents, and by E. McGovern, Barrister)

Re:

Application for annulment of Council Regulation (EC) No 85/2006 of 17 January 2006 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of farmed salmon originating in Norway (OJ 2006 L 15, p. 1)

Operative part of the judgment

The Court:

| 1. | Annuls Council Regulation (EC) No 85/2006 of 17 January 2006 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of farmed salmon originating in Norway in so far as it concerns Marine Harvest Norway AS, legal successor to Fjord Seafood Norway AS, for the anti-dumping duties applied to imports originating from the latter until 18 September 2007, and Alsaker Fjordbruk AS; |
| --- | --- |

1.

Annuls Council Regulation (EC) No 85/2006 of 17 January 2006 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of farmed salmon originating in Norway in so far as it concerns Marine Harvest Norway AS, legal successor to Fjord Seafood Norway AS, for the anti-dumping duties applied to imports originating from the latter until 18 September 2007, and Alsaker Fjordbruk AS;

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

2.

Dismisses the action as to the remainder;

| 3. | Orders the Council of the European Union to bear its own costs and to pay those of Marine Harvest Norway, legal successor to Fjord Seafood Norway, and Alsaker Fjordbruk; |
| --- | --- |

3.

Orders the Council of the European Union to bear its own costs and to pay those of Marine Harvest Norway, legal successor to Fjord Seafood Norway, and Alsaker Fjordbruk;

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

4.

Orders the European Commission to bear its own costs.

---

(1)  OJ C 131, 3.6.2006.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/22 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/22

---

Judgment of the General Court of 21 March 2012 — Fiskeri og Havbruksnæringens Landsforening and Others v Council

(Case T-115/06) (1)

(Dumping - Imports of salmon originating in Norway - Lesser duty rule - Calculation of minimum import prices and fixed duties)

2012/C 133/41

Language of the case: English

Parties

Applicants: Fiskeri og Havbruksnæringens Landsforening (Oslo, Norway); Norske Sjømatbedrifters Landsforening (Trondheim, Norway); Salmar Farming AS (Kverva, Norway); Hydroteck AS (Kristiansund, Norway); Hallvard Lerøy AS (Bergen, Norway); and Lerøy Midnor AS (Hestvika, Norway) (represented by: B. Servais and T. Paulsen, lawyers)

Defendant: Council of the European Union (represented by: J.-P. Hix and B. Driessen, acting as Agents)

Intervener in support of the defendant: European Commission (represented: initially by P. Stancanelli and K. Talabér-Ritz, and subsequently by K. Talabér-Ritz, T. Scharf and H. van Vliet, acting as Agents, and by E. McGovern, Barrister)

Re:

Application for annulment of Council Regulation (EC) No 85/2006 of 17 January 2006 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of farmed salmon originating in Norway (OJ 2006 L 15, p. 1)

Operative part of the judgment

The Court:

| 1. | Annuls Council Regulation (EC) No 85/2006 of 17 January 2006 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of farmed salmon originating in Norway in so far as it concerns the Fiskeri og Havbruksnæringens Landsforening, the Norske Sjømatbedrifters Landsforening, Salmar Farming AS, Hydroteck AS, Hallvard Lerøy AS and Lerøy Midnor AS; |
| --- | --- |

1.

Annuls Council Regulation (EC) No 85/2006 of 17 January 2006 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of farmed salmon originating in Norway in so far as it concerns the Fiskeri og Havbruksnæringens Landsforening, the Norske Sjømatbedrifters Landsforening, Salmar Farming AS, Hydroteck AS, Hallvard Lerøy AS and Lerøy Midnor AS;

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

2.

Dismisses the action as to the remainder;

| 3. | Orders the Council of the European Union to bear its own costs and to pay those of the Fiskeri og Havbruksnæringens Landsforening, the Norske Sjømatbedrifters Landsforening, Salmar Farming, Hydroteck, Hallvard Lerøy and Lerøy Midnor; |
| --- | --- |

3.

Orders the Council of the European Union to bear its own costs and to pay those of the Fiskeri og Havbruksnæringens Landsforening, the Norske Sjømatbedrifters Landsforening, Salmar Farming, Hydroteck, Hallvard Lerøy and Lerøy Midnor;

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

4.

Orders the European Commission to bear its own costs.

---

(1)  OJ C 143, 17.6.2006.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/22 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/22

---

Judgment of the General Court of 21 March 2012 — Volkswagen v OHIM — Suzuki Motor (SWIFT GTi)

(Case T-63/09) (1)

(Community Trade Mark - Opposition proceedings - Application for Community word mark SWIFT GTi - Earlier international and national marks GTI - Relative grounds for refusal - Similarity of the goods - Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009) - Assessment of the likelihood of confusion - Rejection of the opposition)

2012/C 133/42

Language of the case: German

Parties

Applicant: Volkswagen AG (Wolfsburg, Germany) (represented by: H.-P. Schrammek, C. Drzymalla and S. Risthaus, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Suzuki Motor Corp. (Shizuoka-ken, Japan)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 9 December 2008 (Case R 749/2007-2) relating to opposition proceedings between Volkswagen AG and Suzuki Motor Corp.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Volkswagen AG to pay the costs. |
| --- | --- |

2.

Orders Volkswagen AG to pay the costs.

---

(1)  OJ C 102, 1.5.2009.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/23 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/23

---

Judgment of the General Court of 21 March 2012 — Feng Shen Technology v OHIM — Majtczak (FS)

(Case T-227/09) (1)

(Community trade mark - Invalidity proceedings - Community figurative mark FS - Applicant acting in bad faith - Article 51(1)(b) of Regulation (EC) No 40/94 (now Article 52(1)(b) of Regulation (EC) No 207/2009))

2012/C 133/43

Language of the case: English

Parties

Applicant: Feng Shen Technology Co. Ltd (Guieshan Township, Taïwan) (represented by: P. Rath and W. Festl-Wietek, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: (Jarosław Majtczak (Łódź, Poland) (represented by: initially by J. Wyrwas, and subsequently by J. Radłowski, lawyers)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 1 April 2009 (Case R 529/2008-4), relating to invalidity proceedings between Feng Shen Technology Co. Ltd and Jarosław Majtczak

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 1 April 2009 (Case R 529/2008-4); |
| --- | --- |

1.

Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 1 April 2009 (Case R 529/2008-4);

| 2. | Orders OHIM to bear its own costs and pay the costs of Feng Shen Technology Co. Ltd; |
| --- | --- |

2.

Orders OHIM to bear its own costs and pay the costs of Feng Shen Technology Co. Ltd;

| 3. | Orders Mr Jarosław Majtczak to bear his own costs. |
| --- | --- |

3.

Orders Mr Jarosław Majtczak to bear his own costs.

---

(1)  OJ C 193, 15.8.2009.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/23 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/23

---

Judgment of the General Court of 22 March 2012 — Slovak Telekom v Commission

(Joined Cases T-458/09 and T-171/10) (1)

(Competition - Administrative procedure - Decisions requesting information - Necessity for the information sought - Principle of good administration - Obligation to state the reasons on which the decision is based - Proportionality)

2012/C 133/44

Language of the case: English

Parties

Applicant: Slovak Telekom a.s. (Bratislava, Slovakia) (represented: initially by M. Maier, L. Kjølbye and D. Geradin, and subsequently by L. Kjølbye, D. Geradin and G. Berrisch, lawyers)

Defendant: European Commission (represented: in Case T-458/09, by F. Castillo de la Torre and K. Mojzesowicz and in Case T-171/10, by F. Castillo de la Torre, K. Mojzesowicz and J. Bourke, Agents)

Re:

Applications for annulment, first, of Commission Decision C(2009) 6840 of 3 September 2009 relating to a proceeding pursuant to Articles 18(3) and 24(1) of Council Regulation (EC) No 1/2003 (Case COMP/39.523 — Slovak Telekom) and, second, of Commission Decision C(2010) 902 of 8 February 2010 relating to a proceeding pursuant to Articles 18(3) and 24(1) of Regulation No 1/2003 (Case COMP/39.523 — Slovak Telekom)

Operative part of the judgment

The Court:

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

1.

Dismisses the actions;

| 2. | Orders Slovak Telekom a.s. to pay the costs. |
| --- | --- |

2.

Orders Slovak Telekom a.s. to pay the costs.

---

(1)  OJ C 11, 16.1.2010.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/23 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/23

---

Judgment of the General Court of 23 March 2012 — Barilla v OHIM — Brauerei Schlösser (ALIXIR)

(Case T-157/10) (1)

(Community trade mark - Opposition proceedings - Application for registration of the Community word mark ALIXIR - Earlier national word mark Elixeer - Relative ground for refusal - Likelihood of confusion - Similarity of the signs - Article 8(1)(b) of Regulation (EC) No 207/2009)

2012/C 133/45

Language of the case: English

Parties

Applicant: Barilla G. e R. Fratelli SpA (Parma, Italy) (represented by: A. Vanzetti, G. Sironi and A. Colmano, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Brauerei Schlösser GmbH (Düsseldorf, Germany) (represented by: J. Flick, lawyer)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 25 January 2010 (case R 820/2009-2), relating to opposition proceedings between Brauerei Schlösser GmbH and Barilla G. e R. Fratelli SpA.

Operative part of the judgment

The General Court:

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

1.

Dismisses the action;

| 2. | Orders Barilla G. e R. Fratelli SpA to pay the costs. |
| --- | --- |

2.

Orders Barilla G. e R. Fratelli SpA to pay the costs.

---

(1)  OJ C 148, 5.6.2010.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/24 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/24

---

Judgment of the General Court of 27 March 2012 — Armani v OHIM — Del Prete (AJ AMICI JUNIOR)

(Case T-420/10) (1)

(Community trade mark - Opposition proceedings - Application for the Community figurative mark AJ AMICI JUNIOR - Earlier national figurative mark AJ ARMANI JEANS - Earlier national word mark ARMANI JUNIOR - Relative ground for refusal - Article 8(1)(b) of Regulation (EC) No 207/2009)

2012/C 133/46

Language of the case: Italian

Parties

Applicant: Giorgio Armani SpA (Milan, Italy) (represented by: M. Rapisardi, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Annunziata Del Prete (Naples, Italy) (represented by: R. Bocchini, lawyer)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 8 July 2010 (Case R 1360/2009-2), relating to opposition proceeding between Giorgio Armani SpA and Ms Annunziata Del Prete

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 8 July 2010 (Case R 1360/2009-2); |
| --- | --- |

1.

Annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 8 July 2010 (Case R 1360/2009-2);

| 2. | Orders OHIM and Ms Annunziata Del Prete to each pay half of the costs incurred by Giorgio Armani SpA before the Board of Appeal; |
| --- | --- |

2.

Orders OHIM and Ms Annunziata Del Prete to each pay half of the costs incurred by Giorgio Armani SpA before the Board of Appeal;

| 3. | Orders OHIM and Ms Del Prete to bear their own costs and to each pay half of the costs incurred by Giorgio Armani before the Court. |
| --- | --- |

3.

Orders OHIM and Ms Del Prete to bear their own costs and to each pay half of the costs incurred by Giorgio Armani before the Court.

---

(1)  OJ C 301, 6.11.2010.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/24 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/24

---

Judgment of the General Court of 21 March 2012 — Fulmen and Mahmoudian v Council

(Joined Cases T-439/10 and T-440/10) (1)

(Common foreign and security policy - Restrictive measures against Iran with the aim of preventing nuclear proliferation - Freezing of funds - Actions for annulment - Obligation to state reasons - Rights of the defence - Right to effective judicial protection - Error of assessment - Burden and standard of proof)

2012/C 133/47

Language of the case: French

Parties

Applicants: Fulmen (Teheran, Iran) and Fereydoun Mahmoudian (Teheran) (represented by: A. Kronshagen, lawyer)

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

Intervener in support of the defendant: European Commission (represented by: M. Konstantinidis and É. Cujo, acting as Agents)

Re:

Application for annulment of Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP (OJ 2010 L 195, p. 39), Council Implementing Regulation (EU) No 668/2010 of 26 July 2010 implementing Article 7(2) of Regulation (EC) No 423/2007 concerning restrictive measures against Iran (OJ 2010 L 195, p. 25), and Council Decision 2010/644/CFSP of 25 October 2010 amending Decision 2010/413 (OJ 2010 L 281, p. 81), and Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran and repealing Regulation (EC) No 423/2007 (OJ 2010 L 281, p. 1), in so far as those measures concern the applicants, and, further, an application for recognition of the damage suffered by the applicants due to the adoption of the abovementioned measures.

Operative part of the judgment

The General Court:

| 1. | annuls, in so far as they concern Fulmen and Mr Fereydoun Mahmoudian:






  — | Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP, |
| --- | --- | --- |

1.

annuls, in so far as they concern Fulmen and Mr Fereydoun Mahmoudian:

—

Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP,

| — | Council Implementing Regulation (EU) No 668/2010 of 26 July 2010 implementing Article 7(2) of Regulation (EC) No 423/2007 concerning restrictive measures against Iran, |
| --- | --- |

—

Council Implementing Regulation (EU) No 668/2010 of 26 July 2010 implementing Article 7(2) of Regulation (EC) No 423/2007 concerning restrictive measures against Iran,

| — | Council Decision 2010/644/CFSP of 25 October 2010 amending Decision 2010/413 and |
| --- | --- |

—

Council Decision 2010/644/CFSP of 25 October 2010 amending Decision 2010/413 and

| — | Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran and repealing Regulation No 423/2007; |
| --- | --- |

—

Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran and repealing Regulation No 423/2007;

| 2. | orders the effects of Decision 2010/413, as amended by Decision 2010/644, to be maintained as regards Fulmen and Mr Mahmoudian until the annulment of Regulation No 961/2010 takes effect; |
| --- | --- |

2.

orders the effects of Decision 2010/413, as amended by Decision 2010/644, to be maintained as regards Fulmen and Mr Mahmoudian until the annulment of Regulation No 961/2010 takes effect;

| 3. | dismisses the action as to the remainder; |
| --- | --- |

3.

dismisses the action as to the remainder;

| 4. | orders the Council of the European Union to bear its own costs and to pay the costs incurred by Fulmen and by Mr Mahmoudian; |
| --- | --- |

4.

orders the Council of the European Union to bear its own costs and to pay the costs incurred by Fulmen and by Mr Mahmoudian;

| 5. | orders the European Commission to bear its own costs. |
| --- | --- |

5.

orders the European Commission to bear its own costs.

---

(1)  OJ C 328, 4.12.2010.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/25 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/25

---

Order of the General Court of 21 March 2012 — Banco Bilbao Vizcaya Argentaria v Commission

(Case T-225/10) (1)

(Action for annulment - State aid - Aid scheme allowing the tax amortisation of financial goodwill for foreign shareholding acquisitions - Decision declaring the aid scheme incompatible with the common market and not ordering the recovery of the aid - No individual concern - Inadmissibility)

2012/C 133/48

Language of the case: Spanish

Parties

Applicant: Banco Bilbao Vizcaya Argentaria, SA (Bilbao, Spain) (represented by: J. Buendía Sierra, E. Abad Valdenebro, M. Munõz de Juan and R. Calvo Salinero, lawyers)

Defendant: European Commission (represented by: R. Lyal and C. Urraca Caviedes, acting as Agents)

Re:

Application for annulment of Article 1(1) of Commission Decision 2011/5/EC of 28 October 2009 on the tax amortisation of financial goodwill for foreign shareholding acquisitions C 45/07 (ex NN 51/07, ex CP 9/07) implemented by Spain (OJ 2011 L 7, p. 48)

Operative part of the order

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

1.

The action is dismissed.

| 2. | Banco Bilbao Vizcaya Argentaria, SA shall pay the costs. |
| --- | --- |

2.

Banco Bilbao Vizcaya Argentaria, SA shall pay the costs.

---

(1)  OJ C 179, 3.7.2010.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/25 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/25

---

Order of the General Court of 21 March 2012 — Telefónica v Commission

(Case T-228/10) (1)

(Action for annulment - State aid - Aid schemes allowing for the tax amortisation of financial goodwill for foreign shareholding acquisitions - Decision declaring the aid scheme incompatible with the common market and not ordering the recovery of aid - Act entailing implementing measures - Lack of individual concern - Inadmissibility)

2012/C 133/49

Language of the case: Spanish

Parties

Applicant: Telefónica, SA (Madrid, Spain) (represented by: J. Ruiz Calzado, M. Núñez-Müller and J. Domínguez Pérez, lawyers)

Defendant: European Commission (represented by: R. Lyal and C. Urraca Caviedes, Agents)

Re:

Application for annulment of Article 1(1) of Commission Decision 2011/5/EC of 28 October 2009 on the tax amortisation of financial goodwill for foreign shareholding acquisitions C 45/07 (ex NN 51/07, ex CP 9/07) implemented by Spain (OJ 2011 L 7, p. 48).

Operative part of the order

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

1.

The action is dismissed.

| 2. | Telefónica, SA is ordered to pay the costs. |
| --- | --- |

2.

Telefónica, SA is ordered to pay the costs.

---

(1)  OJ C 195, 17.7.2010.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/26 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/26

---

Order of the General Court of 21 March 2012 — Ebro Foods v Commission

(Case T-234/10) (1)

(Action for annulment - State aid - Aid scheme allowing the tax amortisation of financial goodwill for foreign shareholding acquisitions - Decision declaring the aid scheme incompatible with the common market and not ordering the recovery of the aid - No individual concern - Inadmissibility)

2012/C 133/50

Language of the case: Spanish

Parties

Applicant: Ebro Foods, SA, formerly Ebro Puleva, SA (Madrid, Spain) (represented by: J. Buendía Sierra, E. Abad Valdenebro, M. Munõz de Juan and R. Calvo Salinero, lawyers)

Defendant: European Commission (represented by: R. Lyal and C. Urraca Caviedes, acting as Agents)

Re:

Application for annulment of Article 1(1) of Commission Decision 2011/5/EC of 28 October 2009 on the tax amortisation of financial goodwill for foreign shareholding acquisitions C 45/07 (ex NN 51/07, ex CP 9/07) implemented by Spain (OJ 2011 L 7, p. 48)

Operative part of the order

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

1.

The action is dismissed.

| 2. | Ebro Foods, SA shall pay the costs. |
| --- | --- |

2.

Ebro Foods, SA shall pay the costs.

---

(1)  OJ C 195, 17.7.2010.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/26 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/26

---

Order of the General Court of 21 March 2012 — Modelo Continente Hipermercados v Commission

(Case T-174/11) (1)

(Action for annulment - State aid - Aid schemes allowing for the tax amortisation of financial goodwill for foreign shareholding acquisitions - Decision declaring the aid scheme incompatible with the common market and not ordering the recovery of aid - Lack of individual concern - Inadmissibility)

2012/C 133/51

Language of the case: Spanish

Parties

Applicant: Modelo Continente Hipermercados, SA, sucursal en España (Madrid, Spain) (represented by: J. Buendía Sierra, E. Abad Valdenebro, M. Muñoz de Juan and R. Calvo Salinero, lawyers)

Defendant: European Commission (represented by: R. Lyal and C. Urraca Caviedes, Agents)

Re:

Application for annulment of Article 1(1) of Commission Decision 2011/5/EC of 28 October 2009 on the tax amortisation of financial goodwill for foreign shareholding acquisitions C 45/07 (ex NN 51/07, ex CP 9/07) implemented by Spain (OJ 2011 L 7, p. 48).

Operative part of the order

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

1.

The action is dismissed;

| 2. | Modelo Continente Hipermercados, SA, sucursal en España, is ordered to pay the costs. |
| --- | --- |

2.

Modelo Continente Hipermercados, SA, sucursal en España, is ordered to pay the costs.

---

(1)  OJ C 139, 7.5.2011.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/26 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/26

---

Order of the General Court of 19 March 2012 — Barthel and Others v Court of Justice

(Case T-398/11) (1)

(Appeal - Public Service - Officials - Remuneration - Refusal to grant the appellants an allowance for shiftwork - Time-limit for lodging a complaint - Out of time - Appeal partly manifestly unfounded and partly manifestly inadmissible)

2012/C 133/52

Language of the case: French

Parties

Applicants: Yvette Barthel (Arlon, Belgium); Marianne Reiffers (Olm, Luxembourg); and Lieven Massez (Luxembourg, Luxembourg) (represented by: S. Orlandi A. Coolen, J.-N. Louis, É. Marchal and D. Abreu Caldas, lawyers)

Defendant: Court of Justice (represented by: A. Placco, acting as Agent)

Re:

Appeal against the order of the Civil Service Tribunal (Second Chamber) of 10 May 2011 in Case F-59/10 Barthel and Others v Court of Justice [2011] II-0000, seeking the annulment of that order.

Operative part of the order

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

1.

The appeal is dismissed.

| 2. | Ms Yvette Barthel, Ms Marianne Reiffers and Mr Lieven Massez are to bear their own costs and to pay those incurred by the Court of Justice of the European Union in the present proceedings. |
| --- | --- |

2.

Ms Yvette Barthel, Ms Marianne Reiffers and Mr Lieven Massez are to bear their own costs and to pay those incurred by the Court of Justice of the European Union in the present proceedings.

---

(1)  OJ C 290, 1.10.2011.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/27 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/27

---

Action brought on 8 February 2012 — Chen v OHIM — AM Denmark (Cleaning devices)

(Case T-55/12)

2012/C 133/53

Language in which the application was lodged: English

Parties

Applicant: Su-Shan Chen (Sanchong, Taiwan) (represented by: C. Onken, lawyer)

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

Other party to the proceedings before the Board of Appeal: AM Denmark A/S (Kokkedal, Denmark)

Form of order sought

| — | Annul the decision of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 26 October 2011 in case R 2179/2010-3; and |
| --- | --- |

—

Annul the decision of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 26 October 2011 in case R 2179/2010-3; and

| — | Order OHIM and the other party to the proceedings before the Board of Appeal to bear the costs. |
| --- | --- |

—

Order OHIM and the other party to the proceedings before the Board of Appeal to bear the costs.

Pleas in law and main arguments

Registered Community design in respect of which a declaration of invalidity has been sought: A design for the product ‘cleaning devices’ — registered Community design No 1027718-0001

Proprietor of the Community design: The applicant

Applicant for the declaration of invalidity of the Community design: The other party to the proceedings before the Board of Appeal

Grounds for the application for a declaration of invalidity: The other party to the proceedings before the Board of Appeal requested the invalidation of the RCD based on Articles 4 to 9 and Article 25(1)(e) of Council Regulation No 6/2002; three-dimensional Community trade mark registration No 5185079, for goods in classes 3 and 21

Decision of the Invalidity Division: Declared the contested RCD invalid

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 25(1)(e) of Council Regulation No 6/2002, as the Board of Appeal wrongly assumed that the earlier Community trade mark was used in the contested Community design. Besides, the Board of Appeal did not have to presume that the earlier trade mark possessed at least a minimum degree of distinctiveness necessary for its registrability. Infringement of Article 9(1)(b) of Council Regulation No 207/2009, as the Board of Appeal did not correctly apply this Article. Indeed, contrary to the view taken by OHIM, Article 9(1)(b) CTMR does not confer on other party before the OHIM the right to prohibit the use of the contested Community design, as there is no likelihood of confusion. In particular, the applicant’s Community design and the trade mark of the other party are not so similar as to account for a likelihood of confusion.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/27 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/27

---

Action brought on 2 March 2012 — Hellenic Republic v Commission

(Case T-105/12)

2012/C 133/54

Language of the case: Greek

Parties

Applicant: Hellenic Republic (represented by: K. Samoni and N. Dafniou)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

| — | grant the application for annulment; |
| --- | --- |

—

grant the application for annulment;

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

—

annul the contested decision of the Commission;

| — | 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 (under Article 263 TFEU) of Commission Decision 1472708 of 3 January 2012‘relating to continued payment by the Hellenic Republic of the daily penalty payment of EUR 31 536 for each day of delay in implementing the measures necessary to comply with the judgment of the Court of Justice of the European Union in Case C-65/05’, in so far as making of the penalty payment is sought from 22 August 2011 onwards. Under the aforementioned contested decision, given that, according to the Commission, the Hellenic Republic appears not to have undertaken the necessary measures to comply with the judgment of the Court of Justice in Case C-65/05 and subsequently its second judgment in Case C-109/08, the Hellenic Republic is called upon to pay the sum of EUR 4 825 008 as a penalty payment for the period from 1 July 2011 until 30 November 2011.

In support of its action, the applicant puts forward the following pleas for annulment.

| 1. | First, misappraisal on the part of the Commission, in relation to adoption by the Hellenic Republic of the measures necessary to comply with the judgment of the Court of Justice
  The Hellenic Republic submits that the defendant appraised and interpreted incorrectly the measures adopted by the Hellenic Republic to comply with the Court of Justice’s judgment. The Hellenic Republic maintains that it has taken all the necessary measures to comply with the Court of Justice’s judgment in adopting Law 4002/2011 by which the contested articles of Law 3037/2002 are repealed, in pursuance of the judgment of the Court of Justice in Case C-65/05. |
| --- | --- |

1.

First, misappraisal on the part of the Commission, in relation to adoption by the Hellenic Republic of the measures necessary to comply with the judgment of the Court of Justice

The Hellenic Republic submits that the defendant appraised and interpreted incorrectly the measures adopted by the Hellenic Republic to comply with the Court of Justice’s judgment. The Hellenic Republic maintains that it has taken all the necessary measures to comply with the Court of Justice’s judgment in adopting Law 4002/2011 by which the contested articles of Law 3037/2002 are repealed, in pursuance of the judgment of the Court of Justice in Case C-65/05.

| 2. | Second, exceeding by the Commission of its power
  The Hellenic Republic exceeded the limits of its mandate as guardian of the Treaty, since it did not confine itself, as required of it, to establishing whether or not measures for compliance were clearly carried out. Furthermore, it went beyond the limits of the Court of Justice’s judgments, given that the Hellenic Republic complied fully with those judgments. |
| --- | --- |

2.

Second, exceeding by the Commission of its power

The Hellenic Republic exceeded the limits of its mandate as guardian of the Treaty, since it did not confine itself, as required of it, to establishing whether or not measures for compliance were clearly carried out. Furthermore, it went beyond the limits of the Court of Justice’s judgments, given that the Hellenic Republic complied fully with those judgments.

| 3. | Third, deficiency of reasoning on the part of the Commission
  In its decision contested by the Hellenic Republic, the Commission did not explain, and did not set out expressly, the reasons for which it sought the continued making of the penalty payment for the period after the adoption of Law 4002/2011, that is to say, from 22 August 2011 until 30 November 2011.
  The Hellenic Republic disputes that additional sum since it considers that it complied fully with the judgments of the Court of Justice once that law was promulgated. |
| --- | --- |

3.

Third, deficiency of reasoning on the part of the Commission

In its decision contested by the Hellenic Republic, the Commission did not explain, and did not set out expressly, the reasons for which it sought the continued making of the penalty payment for the period after the adoption of Law 4002/2011, that is to say, from 22 August 2011 until 30 November 2011.

The Hellenic Republic disputes that additional sum since it considers that it complied fully with the judgments of the Court of Justice once that law was promulgated.

| 4. | Fourth, incorrect use of legal basis
  The Hellenic Republic submits that, if the Commission considered that Law 4002/2001 was not being applied correctly by the Hellenic Republic, it had to use Article 258 TFEU and initiate a fresh infringement procedure, and not require continued making of the penalty payment. |
| --- | --- |

4.

Fourth, incorrect use of legal basis

The Hellenic Republic submits that, if the Commission considered that Law 4002/2001 was not being applied correctly by the Hellenic Republic, it had to use Article 258 TFEU and initiate a fresh infringement procedure, and not require continued making of the penalty payment.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/28 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/28

---

Order of the General Court of 19 March 2012 — Poland v Commission

(Case T-101/10) (1)

2012/C 133/55

Language of the case: Polish

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

---

(1)  C 113, 1.5.2010.

---

European Union Civil Service Tribunal

| 5.5.2012 | EN | Official Journal of the European Union | C 133/29 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/29

---

Action brought on 13 December 2011 — ZZ v Commission

(Case F-133/11)

2012/C 133/56

Language of the case: German

Parties

Applicant: ZZ (represented by: P. Goergen, lawyer)

Defendant: European Commission

Subject-matter and description of the proceedings

Annulment of the Commission’s decision classifying the applicant, who was included in the reserve list of competition EPSO/A/17/04, notice of which was published before the entry into force of the new Staff Regulations, at grade AD6, step 2, under less favourable provisions.

Form of order sought

| — | Annul the applicant’s classification in grade/step AD6/2 on the applicant’s appointment as a probationer with effect from 1 April 2011; |
| --- | --- |

—

Annul the applicant’s classification in grade/step AD6/2 on the applicant’s appointment as a probationer with effect from 1 April 2011;

| — | declare that, on an objective consideration of the applicant’s professional experience and in accordance with the principles underlying other vacancy notices, and having regard to the principle of pay being commensurate with performance, the applicant is entitled to be classified at grade AD11/2, or, in any event, at another appropriate grade; |
| --- | --- |

—

declare that, on an objective consideration of the applicant’s professional experience and in accordance with the principles underlying other vacancy notices, and having regard to the principle of pay being commensurate with performance, the applicant is entitled to be classified at grade AD11/2, or, in any event, at another appropriate grade;

| — | in respect of the material damage caused to the applicant, award the applicant a sum — up to the date on which the decision on the applicant’s classification at the grade appropriate to the applicant’s professional experience and seniority is properly adopted — comprising the full difference (EUR 3 051,43 per month or an amount to be determined by experts) between the amounts corresponding to the applicant’s classification in accordance with the recruitment decision and the classification to which the applicant would have been entitled, together with default interest to the date of the decision on the applicant’s correct classification in grade, at the rate set by the European Central Bank; |
| --- | --- |

—

in respect of the material damage caused to the applicant, award the applicant a sum — up to the date on which the decision on the applicant’s classification at the grade appropriate to the applicant’s professional experience and seniority is properly adopted — comprising the full difference (EUR 3 051,43 per month or an amount to be determined by experts) between the amounts corresponding to the applicant’s classification in accordance with the recruitment decision and the classification to which the applicant would have been entitled, together with default interest to the date of the decision on the applicant’s correct classification in grade, at the rate set by the European Central Bank;

| — | put the applicant in a position whereby pension and other entitlements arising from the applicant’s employment relationship with the defendant are calculated or recalculated in the same way as they would have been had the applicant been correctly classified in grade — in accordance with the present application — and award the applicant the sum of EUR 10 000 for non-pecuniary loss, together with default interest at the rate set by the European Central Bank, from the date of the applicant’s recruitment to the defendant, or alternatively from the date of the present application, until full payment; |
| --- | --- |

—

put the applicant in a position whereby pension and other entitlements arising from the applicant’s employment relationship with the defendant are calculated or recalculated in the same way as they would have been had the applicant been correctly classified in grade — in accordance with the present application — and award the applicant the sum of EUR 10 000 for non-pecuniary loss, together with default interest at the rate set by the European Central Bank, from the date of the applicant’s recruitment to the defendant, or alternatively from the date of the present application, until full payment;

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

—

order the European Commission to pay the costs.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/29 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/29

---

Action brought on 2nd January 2012 — ZZ v European Court of Auditors

(Case F-1/12)

2012/C 133/57

Language of the case: English

Parties

Applicant: ZZ (represented by: S. Rodrigues, A. Blot, A. Tymen, lawyers)

Defendant: European Court of Auditors

Subject-matter and description of the proceeding

The annulment of the decision of the Court of Auditors rejecting the request for compensation for the losses suffered.

Form of order sought

| — | Annul the Decision of 21 January 2011 rejecting his request for compensation for the losses suffered as a result of his retirement on invalidity pension; |
| --- | --- |

—

Annul the Decision of 21 January 2011 rejecting his request for compensation for the losses suffered as a result of his retirement on invalidity pension;

| — | if necessary, annul the Decision of 22 September 2011 rejecting his complaint dated 1st March 2011; |
| --- | --- |

—

if necessary, annul the Decision of 22 September 2011 rejecting his complaint dated 1st March 2011;

| — | compensate the losses suffered; |
| --- | --- |

—

compensate the losses suffered;

| — | order the Court of Auditors to pay the costs. |
| --- | --- |

—

order the Court of Auditors to pay the costs.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/29 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/29

---

Action brought on 10 January 2012 — ZZ v Frontex

(Case F-5/12)

2012/C 133/58

Language of the case: French

Parties

Applicant: ZZ (represented by: S. Pappas, lawyer)

Defendant: Frontex

Subject-matter and description of the proceedings

Application for annulment of the decision of Frontex imposing a penalty on the applicant and the decision dismissing him.

Form of order sought

| — | Annul the decision of 24 May 2011 dismissing the applicant; |
| --- | --- |

—

Annul the decision of 24 May 2011 dismissing the applicant;

| — | Annul the decision of 16 April 2011 imposing a penalty on him; |
| --- | --- |

—

Annul the decision of 16 April 2011 imposing a penalty on him;

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

—

Order Frontex to pay the costs.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/30 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/30

---

Action brought on 16th January 2012 — ZZ v European Network and Information Security Agency (ENISA)

(Case F-7/12)

2012/C 133/59

Language of the case: English

Parties

Applicant: ZZ (represented by: L. Levi, A. Tymen, lawyers)

Defendant: European Network and Information Security Agency (ENISA)

Subject-matter and description of the proceedings

The annulment of the 2009 career report, the list of reclassification of the civil servants for 2010 and, if necessary, the annulment of the decision rejecting his demand on 17 October 2011.

Form of order sought

| — | The annulment of the Applicant’s 2009 career development report; |
| --- | --- |

—

The annulment of the Applicant’s 2009 career development report;

| — | the annulment of the 16 November 2010 decision fixing the list of staff reclassified in the reclassification exercise 2010; |
| --- | --- |

—

the annulment of the 16 November 2010 decision fixing the list of staff reclassified in the reclassification exercise 2010;

| — | if necessary, the annulment of the decision of 17 October 2011 rejecting the Applicant’s complaint dated 16 June 2011; |
| --- | --- |

—

if necessary, the annulment of the decision of 17 October 2011 rejecting the Applicant’s complaint dated 16 June 2011;

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

—

order ENISA to pay the costs.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/30 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/30

---

Action brought on 20 January 2012 — ZZ v European Parliament

(Case F-9/12)

2012/C 133/60

Language of the case: French

Parties

Applicant: ZZ (represented by: L. Lévi and M. Vandenbussche, lawyers)

Defendant: European Parliament

Subject-matter and description of the proceedings

Application for an order that the European Parliament pay compensation for the material and non-material loss allegedly suffered by the applicant as a result of errors committed in the management of her reserve list

Form of order sought

| — | Recognise that the Parliament has non-contractual liability for the errors committed in the management of her reserve list; |
| --- | --- |

—

Recognise that the Parliament has non-contractual liability for the errors committed in the management of her reserve list;

| — | Pay compensation for the applicant’s material loss evaluated, for the period from December 2003 to December 2011, at EUR 749 449,03, plus pensions funds, and for the subsequent period until the legal retirement age, at the monthly net payment amounts corresponding to the salaries fixed for officials in function group AD from grade AD 9 step 2, second year, taking account of the normal career of an official of that grade, supplemented by the corresponding contributions to the sickness fund. All to be increased by late-payment interest at the rate of the European Central Bank plus two points; |
| --- | --- |

—

Pay compensation for the applicant’s material loss evaluated, for the period from December 2003 to December 2011, at EUR 749 449,03, plus pensions funds, and for the subsequent period until the legal retirement age, at the monthly net payment amounts corresponding to the salaries fixed for officials in function group AD from grade AD 9 step 2, second year, taking account of the normal career of an official of that grade, supplemented by the corresponding contributions to the sickness fund. All to be increased by late-payment interest at the rate of the European Central Bank plus two points;

| — | Pay compensation for the non-material loss evaluated at EUR 70 000; |
| --- | --- |

—

Pay compensation for the non-material loss evaluated at EUR 70 000;

| — | Order the European Parliament to pay the costs. |
| --- | --- |

—

Order the European Parliament to pay the costs.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/30 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/30

---

Action brought on 15 February 2012 — ZZ v European Economic and Social Committee

(Case F-21/12)

2012/C 133/61

Language of the case: French

Parties

Applicant: ZZ (represented by: N. Lhoëst, lawyer)

Defendant: European Economic and Social Committee

Subject-matter and description of the proceedings

Annulment of the decision withdrawing the award of expatriation allowance to the applicant and retroactively seeking to recover that allowance.

Form of order sought

| — | Annul the decision of the Appointing Authority (‘AA’) of the EESC of 9 June 2011 withdrawing the award of expatriation allowance to the applicant with effect from 1 July 2010 and seeking to recover the expatriation allowance paid to him since that date; |
| --- | --- |

—

Annul the decision of the Appointing Authority (‘AA’) of the EESC of 9 June 2011 withdrawing the award of expatriation allowance to the applicant with effect from 1 July 2010 and seeking to recover the expatriation allowance paid to him since that date;

| — | Insofar as it is necessary, annul the implied decision of the AA of the EESC rejecting the claim brought by the applicant on 9 September 2011 under Article 90(2) of the Staff Regulations; |
| --- | --- |

—

Insofar as it is necessary, annul the implied decision of the AA of the EESC rejecting the claim brought by the applicant on 9 September 2011 under Article 90(2) of the Staff Regulations;

| — | Order the EESC to reimburse the applicant for the expatriation allowance recovered with effect from 1 July 2010 and to pay expatriation allowance which has not been paid since 9 June 2011, all together with late payment interest at the rate of the European Central Bank increased by two points; |
| --- | --- |

—

Order the EESC to reimburse the applicant for the expatriation allowance recovered with effect from 1 July 2010 and to pay expatriation allowance which has not been paid since 9 June 2011, all together with late payment interest at the rate of the European Central Bank increased by two points;

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

—

Order the EESC to pay the costs.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/31 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/31

---

Action brought on 5 March 2012 — ZZ and Others v Commission

(Case F-29/12)

2012/C 133/62

Language of the case: French

Parties

Applicants: ZZ and Others (represented by: D. Abreu Caldas, S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal)

Defendant: European Commission

Subject-matter and description of the proceedings

Annulment of the decisions to transfer pension rights acquired before entry into service at the Commission on the basis of the proposal recalculated by the PMO.

Form of order sought

| — | declare Article 9 of the General Implementing Provisions of Article 11(2) of Annex VIII of the Staff Regulations to be unlawful; |
| --- | --- |

—

declare Article 9 of the General Implementing Provisions of Article 11(2) of Annex VIII of the Staff Regulations to be unlawful;

| — | annul the decisions annulling and replacing the applicants offers concerning the crediting of pension rights; |
| --- | --- |

—

annul the decisions annulling and replacing the applicants offers concerning the crediting of pension rights;

| — | annul the decisions to apply to the applicants’ applications to transfer pension rights the parameters referred to in the General Implementing Provisions of Article 11(2) of Annex VIII of the Staff Regulations of 3 March 2011; |
| --- | --- |

—

annul the decisions to apply to the applicants’ applications to transfer pension rights the parameters referred to in the General Implementing Provisions of Article 11(2) of Annex VIII of the Staff Regulations of 3 March 2011;

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

—

order the Commission to pay the costs.

---

| 5.5.2012 | EN | Official Journal of the European Union | C 133/31 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/31

---

Action brought on 6 March 2012 — ZZ v Commission

(Case F-31/12)

2012/C 133/63

Language of the case: French

Parties

Applicant: ZZ (represented by: D. Abreu Caldas, S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal, lawyers)

Defendant: European Commission

Subject-matter and description of the proceedings

Annulment of the decision to transfer pension rights acquired before the applicant’s entry into service at the Commission on the basis of the proposal recalculated by the PMO.

Form of order sought

| — | Annul the decision annulling and replacing the proposals for the transfer of the applicant’s pension rights made in his application under Article 11(2) in Annex VIII of the Staff Regulations, which contains a new proposal calculated on the basis of the GIPs adopted on 3 March 2011. |
| --- | --- |

—

Annul the decision annulling and replacing the proposals for the transfer of the applicant’s pension rights made in his application under Article 11(2) in Annex VIII of the Staff Regulations, which contains a new proposal calculated on the basis of the GIPs adopted on 3 March 2011.

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

—

Order the Commission to pay the costs.

---

Corrigenda

| 5.5.2012 | EN | Official Journal of the European Union | C 133/32 |
| --- | --- | --- | --- |

5.5.2012

EN

Official Journal of the European Union

C 133/32

---

Corrigendum to notice in the Official Journal in Case C-528/11

(
  Official Journal of the European Union C 370 of 17 December 2011
  )

2012/C 133/64

The text of the notice in Case C-528/11 Halaf is to be replaced by the following text:

Reference for a preliminary ruling from the Administrativen Sad Sofia (Bulgaria) lodged on 18 October 2011 — Zuheyr Freyeh Halaf v Darzhavna agentsia za bezhantsite pri Ministerski savet

(Case C-528/11)

2012/C 133/64

Language of the case: Bulgarian

Referring court

Administrativen Sad Sofia

Parties to the main proceedings

Applicant: Zuheyr Freyeh Halaf

Defendant: Darzhavna agentsia za bezhantsite pri Ministerski savet

Questions referred

| 1. | Is Article 3(2) of Council Regulation (EC) No 343/2003 (1) of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national to be interpreted as meaning that it permits a Member State to assume responsibility for examining an asylum application where no personal circumstances exist in relation to the asylum seeker which establish the applicability of the humanitarian clause in Article 15 of that regulation and where the Member State responsible pursuant to Article 3(1) of that regulation has not responded to a request to take back the applicant pursuant to Article 20(1) of Regulation No 343/2003, given that that regulation does not contain any provisions concerning compliance with the principle of solidarity pursuant to Article 80 TFEU? |
| --- | --- |

1.

Is Article 3(2) of Council Regulation (EC) No 343/2003 (1) of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national to be interpreted as meaning that it permits a Member State to assume responsibility for examining an asylum application where no personal circumstances exist in relation to the asylum seeker which establish the applicability of the humanitarian clause in Article 15 of that regulation and where the Member State responsible pursuant to Article 3(1) of that regulation has not responded to a request to take back the applicant pursuant to Article 20(1) of Regulation No 343/2003, given that that regulation does not contain any provisions concerning compliance with the principle of solidarity pursuant to Article 80 TFEU?

| 2. | What is the content of the right to asylum under Article 18 of the Charter of Fundamental Rights of the European Union in conjunction with Article 53 of that Charter and in conjunction with the definition in Article 2(c) and recital 12 of Regulation No 343/2003? |
| --- | --- |

2.

What is the content of the right to asylum under Article 18 of the Charter of Fundamental Rights of the European Union in conjunction with Article 53 of that Charter and in conjunction with the definition in Article 2(c) and recital 12 of Regulation No 343/2003?

| 3. | Is Article 3(2) of Regulation No 343/2003, in relation to the obligation under Article 78(1) TFEU to comply with instruments under international law on asylum, to be interpreted as meaning that in the procedure for determining the Member State responsible pursuant to Regulation No 343/2003, the Member States are obliged to request the Office of the UNHCR to present its views, where facts and conclusions therefrom are set out in documents of that Office to the effect that the Member State responsible pursuant to Article 3(1) of Regulation No 343/2003 is in breach of provisions of European Union law on asylum? |
| --- | --- |

3.

Is Article 3(2) of Regulation No 343/2003, in relation to the obligation under Article 78(1) TFEU to comply with instruments under international law on asylum, to be interpreted as meaning that in the procedure for determining the Member State responsible pursuant to Regulation No 343/2003, the Member States are obliged to request the Office of the UNHCR to present its views, where facts and conclusions therefrom are set out in documents of that Office to the effect that the Member State responsible pursuant to Article 3(1) of Regulation No 343/2003 is in breach of provisions of European Union law on asylum?

If this question is answered in the affirmative, the following question might also be answered:

If such a request is not made to the Office of the UNHCR to present its views, does this constitute a substantial infringement of the procedure for determining the Member State responsible pursuant to Article 3 of Regulation No 343/2003 and an infringement of the right to good administration and the right to an effective legal remedy pursuant to Articles 41 and 47 of the Charter of Fundamental Rights of the European Union, specifically also in the light of Article 21 of Directive 2005/85/EC, which provides that that Office has the right to present its views when individual applications for asylum are examined?

---

(1)  OJ 2003 L 50, p 1

1

---