# Official Journal C 297/2009

| | ISSN 1725-2423
  doi:10.3000/17252423.C_2009.297.eng |
| --- | --- |
| Official Journal
  of the European Union | C 297 |
| | |
| English edition | Information and Notices | Volume 525 December 2009 |

ISSN 1725-2423

doi:10.3000/17252423.C_2009.297.eng

Official Journal

of the European Union

C 297

English edition

Information and Notices

Volume 525 December 2009

---

| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES |
| | Court of Justice |
| 2009/C 297/01 | Information note on references from national courts for a preliminary ruling | 1 |
| 2009/C 297/02 | Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 282, 21.11.2009 | 6 |

Notice No

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Court of Justice

2009/C 297/01

Information note on references from national courts for a preliminary ruling

1

2009/C 297/02

Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 282, 21.11.2009

Official Journal of the European Union

6

| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2009/C 297/03 | Case C-35/08: Judgment of the Court (Third Chamber) of 15 October 2009 (reference for a preliminary ruling from the Finanzgericht Baden-Württemberg — Germany) — Grundstücksgemeinschaft Busley and Cibrian Fernandez v Finanzamt Stuttgart-Körperschaften (Free movement of capital — Immovable property — Income tax — Deductibility of rental losses from the taxable income of a person liable to tax — Application of the decreasing-balance method of depreciation to the costs of acquisition or construction — More favourable tax treatment confined to immovable property situated on the national territory) | 7 |
| 2009/C 297/04 | Case C-101/08: Judgment of the Court (Fourth Chamber) of 15 October 2009 (reference for a preliminary ruling from the Cour de cassation (Luxembourg)) — Audiolux SA, BIP Investment Partners SA, Jean-Paul Felten, Joseph Weyland, Luxiprivilège SA, Foyer SA, Investas ASBL, Claudie Stein-Lambert, Christiane Worre-Lambert, Baron Antoine De Schorlemer, Jacques Funck, Jean Petitdidier v Groupe Bruxelles Lambert SA (GBL), RTL Group, Juan Abello Gallo, Didier Bellens, André Desmarais, Gérald Frère, Jocelyn Lefebvre, Onno Ruding, Gilles Samyn, Martin Taylor, Bertelsmann AG, Siegfried Luther, Thomas Middelhoff, Ewald Wagenbach, Rolf Schmidt-Holz, Erich Schumann, WAZ Finanzierungs-GmbH, Westdeutsche Allgemeine Zeitungsverlagsgesellschaft E. Brost & J. Funke GmbH & Co (WAZ) (Directives 77/91/EEC, 79/279/EEC and 2004/25/EC — General principle of Community law on the protection of minority shareholders — None — Company law — Acquisition of control — Mandatory bid — Recommendation 77/534/EEC — Code of Conduct) | 7 |
| 2009/C 297/05 | Case C-116/08: Judgment of the Court (Third Chamber) of 22 October 2009 (reference for a preliminary ruling from the Hof van Cassatie van België (Belgium)) — C. Meerts v Proost NV (Directive 96/34/EC — Framework agreement on parental leave concluded by UNICE, CEEP and the ETUC — Interpretation of Clause 2.6 and 2.7 — Part-time parental leave — Dismissal of a worker before the end of parental leave without observing the statutory period of notice — Calculation of compensation) | 8 |
| 2009/C 297/06 | Case C-138/08: Judgment of the Court (Fourth Chamber) of 15 October 2009 (reference for a preliminary ruling from the Fővárosi Ítélőtábla (Republic of Hungary)) — Hochtief AG, Linde-Kca-Dresden GmbH v Közbeszerzések Tanácsa Közbeszerzési Döntőbizottság (Procedures for the award of public works contracts — Procedures initiated after the entry into force of Directive 2004/18/EC and before the expiry of the period for transposition of that directive — Negotiated procedures with publication of a contract notice — Obligation to admit a minimum number of suitable candidates — Obligation to ensure genuine competition) | 9 |
| 2009/C 297/07 | Case C-196/08: Judgment of the Court (Third Chamber) of 15 October 2009 (reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Sicilia (Italy)) — Acoset SpA v Conferenza Sindaci e Presidenza Prov. Reg. ATO Idrico Ragusa, Comune di Comiso (RG), Comune di Modica (RG), Provincia Regionale di Ragusa, Comune di Acate (RG), Comune di Chiaramonte Gulfi (RG), Comune di Giarratana (RG), Comune di Ispica (RG), Comune di Monterosso Almo (RG), Comune di Pozzallo (RG), Comune di Ragusa, Comune di Vittoria (RG), Comune di Santa Croce Camerina (RG), Comune di Scicli (RG) (Articles 43 EC, 49 EC and 86 EC — Award of public contracts — Award of water service to a semi-private company — Competitive procedure — Appointment of the private partner responsible for operating the service — Award made without regard to the rules governing the award of public contracts) | 9 |
| 2009/C 297/08 | Case C-232/08: Judgment of the Court (Seventh Chamber) of 15 October 2009 — Commission of the European Communities v Kingdom of the Netherlands (Failure of a Member State to fulfil obligations — Regulation (EC) No 850/1998 — Article 29(2) — Restrictions on fishing for plaice — Maximum engine power of fishing vessels — Regulation (EEC) No 2847/93 — Article 2(1) — Regulation (EC) No 2371/2002 — Article 23 — Control, and enforcement of the rules) | 10 |
| 2009/C 297/09 | Case C-242/08: Judgment of the Court (Fourth Chamber) of 22 October 2009 (reference for a preliminary ruling from the Bundesfinanzhof (Germany)) — Swiss Re Germany Holding GmbH v Finanzamt München für Körperschaften (Sixth VAT Directive — Articles 9(2)(e), fifth indent, and 13B(a), (c) and (d)(2) and (3) — Insurance and reinsurance transactions — Concept — Transfer of a portfolio of life reinsurance contracts, for consideration, to a person established in a third country — Determination of the place of that transfer — Exemptions) | 10 |
| 2009/C 297/10 | Case C-255/08: Judgment of the Court (Sixth Chamber) of 15 October 2009 — Commission of the European Communities v Kingdom of the Netherlands (Failure of a Member State to fulfil obligations — Directive 85/337/EEC — Assessment of the effects of certain public and private projects on the environment — Determination of thresholds — Size of the project — Incomplete transposition) | 11 |
| 2009/C 297/11 | Joined Cases C-261/08 and C-348/08: Judgment of the Court (Third Chamber) of 22 October 2009 (references for preliminary rulings from the Tribunal Superior de Justicia de Murcia (Spain)) — María Julia Zurita García (C-261/08), Aurelio Choque Cabrera (C-348/08) v Delegación del Gobierno en Murcia (Visas, asylum and immigration — Measures concerning the crossing of external borders — Article 62(1) and (2)(a) EC — Convention implementing the Schengen Agreement — Articles 6b and 23 — Regulation (EC) No 562/2006 — Articles 5, 11 and 13 — Presumption concerning the duration of the stay — Unlawful presence of third-country nationals in the territory of a Member State — National legislation allowing for either a fine or expulsion, depending on the circumstances) | 12 |
| 2009/C 297/12 | Case C-263/08: Judgment of the Court (Second Chamber) of 15 October 2009 (reference for a preliminary ruling from the Högsta domstolen — Sweden) — Djurgården-Lilla Värtans Miljöskyddsförening v Stockholms kommun genom dess marknämnd (Directive 85/337/EEC — Public participation in environmental decision-making procedures — Right of access to a review procedure to challenge decisions authorising projects likely to have significant effects on the environment) | 12 |
| 2009/C 297/13 | Case C-275/08: Judgment of the Court (Fourth Chamber) of 15 October 2009 — Commission of the European Communities v Federal Republic of Germany (Failure of a Member State to fulfil obligations — Directive 93/36/EEC — Public supply contracts — Supply of software designed for motor vehicle registration — Negotiated procedure without prior publication of a contract notice) | 13 |
| 2009/C 297/14 | Case C-301/08: Judgment of the Court (Fourth Chamber) of 22 October 2009 (reference for a preliminary ruling from the Cour de cassation (Luxembourg)) — Irène Bogiatzi, married name Ventouras v Deutscher Luftpool, Société Luxair, société luxembourgeoise de navigation aérienne SA, European Communities, Grand Duchy of Luxembourg, Foyer Assurances SA (Transport policy — Regulation (EC) No 2027/97 — Warsaw Convention — Air carrier liability in the event of accidents — Time-limit for bringing an action for damages in respect of harm suffered) | 13 |
| 2009/C 297/15 | Case C-324/08: Judgment of the Court (First Chamber) of 15 October 2009 (reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands)) — Makro Zelfbedieningsgroothandel C.V., Metro Cash & Carry B.V., Remo Zaandam B.V. v Diesel S.P.A. (Directive 89/104/EEC — Trade-mark law — Exhaustion of trade mark proprietor’s rights — Placing of goods on the market in the European Economic Area by a third party — Implied consent — Conditions) | 14 |
| 2009/C 297/16 | Case C-425/08: Judgment of the Court (Second Chamber) of 15 October 2009 (reference for a preliminary ruling from the Conseil d’État (Belgium)) — Enviro Tech (Europe) Ltd v État belge (Environment and consumer protection — Classification, packaging and labelling of n-propyl bromide as a dangerous substance — Directive 2004/73/EC — Directive 67/548/EEC — Duty to transpose) | 14 |
| 2009/C 297/17 | Case C-438/08: Judgment of the Court (Fourth Chamber) of 22 October 2009 — Commission of the European Communities v Republic of Portugal (Failure of a Member State to fulfil obligations — Freedom of establishment — Directive 96/96/EC — National legislation — Restrictive conditions for access to the activity of vehicle inspection — Article 45 EC — Activities connected with the exercise of official authority — Road safety — Proportionality) | 15 |
| 2009/C 297/18 | Case C-449/08: Judgment of the Court (Fifth Chamber) of 22 October 2009 (reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven (Netherlands)) — G. Elbertsen v Minister van Landbouw, Natuur en Voedselkwaliteit (Common agricultural policy — Integrated administration and control system for certain aid schemes — Regulation (EC) No 1782/2003 — Single payment scheme — Establishment of the reference amount — Farmers in a special situation — National reserve) | 15 |
| 2009/C 297/19 | Case C-30/09: Judgment of the Court (Sixth Chamber) of 15 October 2009 — Commission of the European Communities v Portuguese Republic (Failure of a Member State to fulfil obligations — Directive 96/82/EC — Article 11 — External emergency plans) | 16 |
| 2009/C 297/20 | Case C-181/09: Reference for a preliminary ruling from the Sofiyski gradski sad (Bulgaria) lodged on 19 May 2009 — Canon Kabushiki Kaisha v IPN Bulgaria OOD | 16 |
| 2009/C 297/21 | Case C-328/09: Action brought on 14 August 2009 — Commission of the European Communities v Republic of Estonia | 17 |
| 2009/C 297/22 | Case C-358/09 P: Appeal brought on 7 September 2009 by DSV Road NV against the judgment of the Court of First Instance (Fourth Chamber) of 8 July 2009 in Case T-219/07 DSV Road NV v Commission | 17 |
| 2009/C 297/23 | Case C-360/09: Reference for a preliminary ruling from the Amtsgericht Bonn (Germany) lodged on 9 September 2009 — Pfleiderer AG v Bundeskartellamt | 18 |
| 2009/C 297/24 | Case C-367/09: Reference for a preliminary ruling from the Hof van beroep te Antwerpen (Belgium) of 8 September 2009 — Belgisch Interventie- en Restitutiebureau v SGS Belgium NV, Firme Derwa NV and Centraal Beheer Achmea NV | 18 |
| 2009/C 297/25 | Case C-375/09: Reference for a preliminary ruling from the Sąd Najwyższy (Republic of Poland), lodged on 23 September 2009 — Prezes Urzędu Ochrony Konkurencji i Konsumentów v Tele2 Polska sp. z o.o., now Netia S.A. | 19 |
| 2009/C 297/26 | Case C-382/09: Reference for a preliminary ruling from the Augstākās tiesas Senāta Administratīvo lietu departaments lodged on 28 September 2009 — Stils Met SIA v Valsts ieņēmumu dienests | 19 |
| | Court of First Instance |
| 2009/C 297/27 | Case T-339/07: Judgment of the Court of First Instance of 28 October 2009 — Juwel Aquarium v OHIM — Potschak (Panorama) (Community trade mark — Invalidity proceedings — Community word mark Panorama — Absolute ground for refusal — Descriptive character — Article 7(1)(c) and Article 51(1)(a) of Regulation (EC) No 40/94 (now Article 7(1)(c) and Article 52(1)(a) of Regulation (EC) No 207/2009)) | 20 |
| 2009/C 297/28 | Case T-80/08: Judgment of the Court of First Instance of 28 October 2009 — CureVac v OHIM — Qiagen (RNAiFect) (Community trade mark — Opposition proceedings — Application for the Community word mark RNAiFect — Earlier Community word mark RNActive — Relative ground for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009)) | 20 |
| 2009/C 297/29 | Case T-137/08: Judgment of the Court of First Instance of 28 October 2009 — BCS v OHIM — Deere (Combination of the colours green and yellow) (Community trade mark — Invalidity proceedings — Community trade mark consisting of a combination of the colours green and yellow — Absolute ground for refusal — Distinctive character acquired through use — Article 7(3) and Article 51(1)(a) of Regulation (EC) No 40/94 (now Article 7(3) and Article 52(1)(a) of Regulation (EC) No 207/2009) — Relative ground for refusal — Earlier unregistered national mark consisting of a combination of the colours green and yellow — Article 8(4) and Article 52(1)(c) of Regulation No 40/94 (now Article 8(4) and Article 53(1)(c) of Regulation No 207/2009) — Obligation to state reasons — Article 73 of Regulation No 40/94 (now Article 75 of Regulation No 207/2009)) | 21 |
| 2009/C 297/30 | Case T-307/08: Judgment of the Court of First Instance of 20 October 2009 — Aldi Einkauf v OHIM — Goya Importaciones y Distribuciones (4 OUT Living) (Community trade mark — Opposition proceedings — Application for figurative Community mark 4 OUT Living — Earlier national figurative mark Living & Co — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009)) | 21 |
| 2009/C 297/31 | Case T-120/09: Action brought on 27 March 2009 — Phoenix-Reisen and DRV v Commission | 21 |
| 2009/C 297/32 | Case T-369/09: Action brought on 22 September 2009 — Sociedade Quinta do Portal SA v OHIM — Vallegre–Vinhos do Porto (PORTO ALEGRE) | 22 |
| 2009/C 297/33 | Case T-381/09: Action brought on 25 September 2009 — RWE Transgas v Commission | 22 |
| 2009/C 297/34 | Case T-382/09: Action brought on 30 September 2009 — ERGO Versicherungsgruppe v OHIM — DeguDent (ERGO) | 23 |
| 2009/C 297/35 | Case T-384/09: Action brought on 1 October 2009 — SKW Stahl-Metallurgie Holding and SKW Stahl-Metallurgie v Commission | 23 |
| 2009/C 297/36 | Case T-391/09: Action brought on 5 October 2009 — Evonik Degussa and AlzChem Hart v Commission | 24 |
| 2009/C 297/37 | Case T-392/09: Action brought on 2 October 2009 — 1. garantovaná v Commission | 25 |
| 2009/C 297/38 | Case T-393/09: Action brought on 2 October 2009 — NEC Display Solutions Europe v OHIM — Nokia (NaViKey) | 26 |
| 2009/C 297/39 | Case T-394/09: Action brought on 5 October 2009 — General Bearing v OHIM (GENERAL BEARING CORPORATION) | 26 |
| 2009/C 297/40 | Case T-395/09: Action brought on 6 October 2009 — Arques Industries v Commission | 27 |
| 2009/C 297/41 | Case T-396/09: Action brought on 6 October 2009 — Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht v Commission | 28 |
| 2009/C 297/42 | Case T-397/09: Action brought on 6 October 2009 — Ernst August Prinz von Hannover Herzog zu Braunschweig und Lüneburg v OHIM (Figurative mark representing a coat of arms) | 29 |
| 2009/C 297/43 | Case T-400/09: Action brought on 6 October 2009 — ECKA Granulate and non ferrum Metallpulver v Commission | 29 |
| 2009/C 297/44 | Case T-401/09: Action brought on 5 October 2009 — Marcuccio v Court of Justice of the European Communities | 30 |
| 2009/C 297/45 | Case T-402/09 P: Appeal brought on 7 October 2009 by Luigi Marcuccio against the order of 20 July 2009 of the Civil Service Tribunal in Case F-86/07, Marcuccio v Commission | 30 |
| 2009/C 297/46 | Case T-403/09: Action brought on 7 October 2009 — Tecnoprocess v Delegation of the European Commission to Morocco and Others | 31 |
| 2009/C 297/47 | Case T-404/09: Action brought on 9 October 2009 — Deutsche Bahn v OHIM (Combination of the colours grey and red) | 31 |
| 2009/C 297/48 | Case T-405/09: Action brought on 9 October 2009 — Deutsche Bahn v OHIM (Combination of the colours grey and red) | 32 |
| 2009/C 297/49 | Case T-415/09: Action brought on 14 October 2009 — New Yorker SHK Jeans v OHIM — Vallis K — Vallis A (FISHBONE) | 32 |
| 2009/C 297/50 | Case T-417/09: Action brought on 16 October 2009 — Poslovni Sistem Mercator v OHIM — Mercator Multihull (MERCATOR STUDIOS) | 33 |
| 2009/C 297/51 | Case T-422/09: Action brought on 19 October 2009 — São Paulo Alpargatas v OHIM — Fischer (BAHANIAS LAS ORIGINALES) | 33 |
| | European Union Civil Service Tribunal |
| 2009/C 297/52 | Case F-16/08: Judgment of the Civil Service Tribunal (Second Chamber) of 10 September 2009 — Behmer v European Parliament (Officials — Procedure for the award of merit points at the European Parliament — Infringement of the obligation to state reasons — Statement of reasons given in the course of the procedure) | 35 |
| 2009/C 297/53 | Case F-29/08: Judgment of the Civil Service Tribunal (Third Chamber) of 7 October 2009 — Y v Commission (Contract staff — Dismissal for obviously inadequate work — Conduct in the service inadequate) | 35 |
| 2009/C 297/54 | Case F-33/08: Judgment of the Civil Service Tribunal (First Chamber) of 21 October 2009 — V v Commission (Staff case — Members of the contract staff — Recruitment — Refusal to employ the applicant for physical unfitness to perform her duties — Validity of the procedure — Validity of the medical examination prior to appointment — Preparatory acts) | 35 |
| 2009/C 297/55 | Case F-74/08: Judgment of the Civil Service Tribunal (Third Chamber) of 21 October 2009 — Ramaekers-Jørgensen v Commission (Officials — Community tax — Calculation — Combining the amount of personal remuneration and the survivor’s pension — Rules for collecting the tax — Date of levy) | 36 |
| 2009/C 297/56 | Case F-76/09: Action brought on 14 September 2009 — Cusack-Gard'ner v Commission | 36 |
| 2009/C 297/57 | Case F-82/09: Action brought on 16 October 2009 — Nolin v Commission | 37 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2009/C 297/03

Case C-35/08: Judgment of the Court (Third Chamber) of 15 October 2009 (reference for a preliminary ruling from the Finanzgericht Baden-Württemberg — Germany) — Grundstücksgemeinschaft Busley and Cibrian Fernandez v Finanzamt Stuttgart-Körperschaften (Free movement of capital — Immovable property — Income tax — Deductibility of rental losses from the taxable income of a person liable to tax — Application of the decreasing-balance method of depreciation to the costs of acquisition or construction — More favourable tax treatment confined to immovable property situated on the national territory)

7

2009/C 297/04

Case C-101/08: Judgment of the Court (Fourth Chamber) of 15 October 2009 (reference for a preliminary ruling from the Cour de cassation (Luxembourg)) — Audiolux SA, BIP Investment Partners SA, Jean-Paul Felten, Joseph Weyland, Luxiprivilège SA, Foyer SA, Investas ASBL, Claudie Stein-Lambert, Christiane Worre-Lambert, Baron Antoine De Schorlemer, Jacques Funck, Jean Petitdidier v Groupe Bruxelles Lambert SA (GBL), RTL Group, Juan Abello Gallo, Didier Bellens, André Desmarais, Gérald Frère, Jocelyn Lefebvre, Onno Ruding, Gilles Samyn, Martin Taylor, Bertelsmann AG, Siegfried Luther, Thomas Middelhoff, Ewald Wagenbach, Rolf Schmidt-Holz, Erich Schumann, WAZ Finanzierungs-GmbH, Westdeutsche Allgemeine Zeitungsverlagsgesellschaft E. Brost & J. Funke GmbH & Co (WAZ) (Directives 77/91/EEC, 79/279/EEC and 2004/25/EC — General principle of Community law on the protection of minority shareholders — None — Company law — Acquisition of control — Mandatory bid — Recommendation 77/534/EEC — Code of Conduct)

7

2009/C 297/05

Case C-116/08: Judgment of the Court (Third Chamber) of 22 October 2009 (reference for a preliminary ruling from the Hof van Cassatie van België (Belgium)) — C. Meerts v Proost NV (Directive 96/34/EC — Framework agreement on parental leave concluded by UNICE, CEEP and the ETUC — Interpretation of Clause 2.6 and 2.7 — Part-time parental leave — Dismissal of a worker before the end of parental leave without observing the statutory period of notice — Calculation of compensation)

8

2009/C 297/06

Case C-138/08: Judgment of the Court (Fourth Chamber) of 15 October 2009 (reference for a preliminary ruling from the Fővárosi Ítélőtábla (Republic of Hungary)) — Hochtief AG, Linde-Kca-Dresden GmbH v Közbeszerzések Tanácsa Közbeszerzési Döntőbizottság (Procedures for the award of public works contracts — Procedures initiated after the entry into force of Directive 2004/18/EC and before the expiry of the period for transposition of that directive — Negotiated procedures with publication of a contract notice — Obligation to admit a minimum number of suitable candidates — Obligation to ensure genuine competition)

9

2009/C 297/07

Case C-196/08: Judgment of the Court (Third Chamber) of 15 October 2009 (reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Sicilia (Italy)) — Acoset SpA v Conferenza Sindaci e Presidenza Prov. Reg. ATO Idrico Ragusa, Comune di Comiso (RG), Comune di Modica (RG), Provincia Regionale di Ragusa, Comune di Acate (RG), Comune di Chiaramonte Gulfi (RG), Comune di Giarratana (RG), Comune di Ispica (RG), Comune di Monterosso Almo (RG), Comune di Pozzallo (RG), Comune di Ragusa, Comune di Vittoria (RG), Comune di Santa Croce Camerina (RG), Comune di Scicli (RG) (Articles 43 EC, 49 EC and 86 EC — Award of public contracts — Award of water service to a semi-private company — Competitive procedure — Appointment of the private partner responsible for operating the service — Award made without regard to the rules governing the award of public contracts)

9

2009/C 297/08

Case C-232/08: Judgment of the Court (Seventh Chamber) of 15 October 2009 — Commission of the European Communities v Kingdom of the Netherlands (Failure of a Member State to fulfil obligations — Regulation (EC) No 850/1998 — Article 29(2) — Restrictions on fishing for plaice — Maximum engine power of fishing vessels — Regulation (EEC) No 2847/93 — Article 2(1) — Regulation (EC) No 2371/2002 — Article 23 — Control, and enforcement of the rules)

10

2009/C 297/09

Case C-242/08: Judgment of the Court (Fourth Chamber) of 22 October 2009 (reference for a preliminary ruling from the Bundesfinanzhof (Germany)) — Swiss Re Germany Holding GmbH v Finanzamt München für Körperschaften (Sixth VAT Directive — Articles 9(2)(e), fifth indent, and 13B(a), (c) and (d)(2) and (3) — Insurance and reinsurance transactions — Concept — Transfer of a portfolio of life reinsurance contracts, for consideration, to a person established in a third country — Determination of the place of that transfer — Exemptions)

10

2009/C 297/10

Case C-255/08: Judgment of the Court (Sixth Chamber) of 15 October 2009 — Commission of the European Communities v Kingdom of the Netherlands (Failure of a Member State to fulfil obligations — Directive 85/337/EEC — Assessment of the effects of certain public and private projects on the environment — Determination of thresholds — Size of the project — Incomplete transposition)

11

2009/C 297/11

Joined Cases C-261/08 and C-348/08: Judgment of the Court (Third Chamber) of 22 October 2009 (references for preliminary rulings from the Tribunal Superior de Justicia de Murcia (Spain)) — María Julia Zurita García (C-261/08), Aurelio Choque Cabrera (C-348/08) v Delegación del Gobierno en Murcia (Visas, asylum and immigration — Measures concerning the crossing of external borders — Article 62(1) and (2)(a) EC — Convention implementing the Schengen Agreement — Articles 6b and 23 — Regulation (EC) No 562/2006 — Articles 5, 11 and 13 — Presumption concerning the duration of the stay — Unlawful presence of third-country nationals in the territory of a Member State — National legislation allowing for either a fine or expulsion, depending on the circumstances)

12

2009/C 297/12

Case C-263/08: Judgment of the Court (Second Chamber) of 15 October 2009 (reference for a preliminary ruling from the Högsta domstolen — Sweden) — Djurgården-Lilla Värtans Miljöskyddsförening v Stockholms kommun genom dess marknämnd (Directive 85/337/EEC — Public participation in environmental decision-making procedures — Right of access to a review procedure to challenge decisions authorising projects likely to have significant effects on the environment)

12

2009/C 297/13

Case C-275/08: Judgment of the Court (Fourth Chamber) of 15 October 2009 — Commission of the European Communities v Federal Republic of Germany (Failure of a Member State to fulfil obligations — Directive 93/36/EEC — Public supply contracts — Supply of software designed for motor vehicle registration — Negotiated procedure without prior publication of a contract notice)

13

2009/C 297/14

Case C-301/08: Judgment of the Court (Fourth Chamber) of 22 October 2009 (reference for a preliminary ruling from the Cour de cassation (Luxembourg)) — Irène Bogiatzi, married name Ventouras v Deutscher Luftpool, Société Luxair, société luxembourgeoise de navigation aérienne SA, European Communities, Grand Duchy of Luxembourg, Foyer Assurances SA (Transport policy — Regulation (EC) No 2027/97 — Warsaw Convention — Air carrier liability in the event of accidents — Time-limit for bringing an action for damages in respect of harm suffered)

13

2009/C 297/15

Case C-324/08: Judgment of the Court (First Chamber) of 15 October 2009 (reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands)) — Makro Zelfbedieningsgroothandel C.V., Metro Cash & Carry B.V., Remo Zaandam B.V. v Diesel S.P.A. (Directive 89/104/EEC — Trade-mark law — Exhaustion of trade mark proprietor’s rights — Placing of goods on the market in the European Economic Area by a third party — Implied consent — Conditions)

14

2009/C 297/16

Case C-425/08: Judgment of the Court (Second Chamber) of 15 October 2009 (reference for a preliminary ruling from the Conseil d’État (Belgium)) — Enviro Tech (Europe) Ltd v État belge (Environment and consumer protection — Classification, packaging and labelling of n-propyl bromide as a dangerous substance — Directive 2004/73/EC — Directive 67/548/EEC — Duty to transpose)

14

2009/C 297/17

Case C-438/08: Judgment of the Court (Fourth Chamber) of 22 October 2009 — Commission of the European Communities v Republic of Portugal (Failure of a Member State to fulfil obligations — Freedom of establishment — Directive 96/96/EC — National legislation — Restrictive conditions for access to the activity of vehicle inspection — Article 45 EC — Activities connected with the exercise of official authority — Road safety — Proportionality)

15

2009/C 297/18

Case C-449/08: Judgment of the Court (Fifth Chamber) of 22 October 2009 (reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven (Netherlands)) — G. Elbertsen v Minister van Landbouw, Natuur en Voedselkwaliteit (Common agricultural policy — Integrated administration and control system for certain aid schemes — Regulation (EC) No 1782/2003 — Single payment scheme — Establishment of the reference amount — Farmers in a special situation — National reserve)

15

2009/C 297/19

Case C-30/09: Judgment of the Court (Sixth Chamber) of 15 October 2009 — Commission of the European Communities v Portuguese Republic (Failure of a Member State to fulfil obligations — Directive 96/82/EC — Article 11 — External emergency plans)

16

2009/C 297/20

Case C-181/09: Reference for a preliminary ruling from the Sofiyski gradski sad (Bulgaria) lodged on 19 May 2009 — Canon Kabushiki Kaisha v IPN Bulgaria OOD

16

2009/C 297/21

Case C-328/09: Action brought on 14 August 2009 — Commission of the European Communities v Republic of Estonia

17

2009/C 297/22

Case C-358/09 P: Appeal brought on 7 September 2009 by DSV Road NV against the judgment of the Court of First Instance (Fourth Chamber) of 8 July 2009 in Case T-219/07 DSV Road NV v Commission

17

2009/C 297/23

Case C-360/09: Reference for a preliminary ruling from the Amtsgericht Bonn (Germany) lodged on 9 September 2009 — Pfleiderer AG v Bundeskartellamt

18

2009/C 297/24

Case C-367/09: Reference for a preliminary ruling from the Hof van beroep te Antwerpen (Belgium) of 8 September 2009 — Belgisch Interventie- en Restitutiebureau v SGS Belgium NV, Firme Derwa NV and Centraal Beheer Achmea NV

18

2009/C 297/25

Case C-375/09: Reference for a preliminary ruling from the Sąd Najwyższy (Republic of Poland), lodged on 23 September 2009 — Prezes Urzędu Ochrony Konkurencji i Konsumentów v Tele2 Polska sp. z o.o., now Netia S.A.

19

2009/C 297/26

Case C-382/09: Reference for a preliminary ruling from the Augstākās tiesas Senāta Administratīvo lietu departaments lodged on 28 September 2009 — Stils Met SIA v Valsts ieņēmumu dienests

19

Court of First Instance

2009/C 297/27

Case T-339/07: Judgment of the Court of First Instance of 28 October 2009 — Juwel Aquarium v OHIM — Potschak (Panorama) (Community trade mark — Invalidity proceedings — Community word mark Panorama — Absolute ground for refusal — Descriptive character — Article 7(1)(c) and Article 51(1)(a) of Regulation (EC) No 40/94 (now Article 7(1)(c) and Article 52(1)(a) of Regulation (EC) No 207/2009))

20

2009/C 297/28

Case T-80/08: Judgment of the Court of First Instance of 28 October 2009 — CureVac v OHIM — Qiagen (RNAiFect) (Community trade mark — Opposition proceedings — Application for the Community word mark RNAiFect — Earlier Community word mark RNActive — Relative ground for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))

20

2009/C 297/29

Case T-137/08: Judgment of the Court of First Instance of 28 October 2009 — BCS v OHIM — Deere (Combination of the colours green and yellow) (Community trade mark — Invalidity proceedings — Community trade mark consisting of a combination of the colours green and yellow — Absolute ground for refusal — Distinctive character acquired through use — Article 7(3) and Article 51(1)(a) of Regulation (EC) No 40/94 (now Article 7(3) and Article 52(1)(a) of Regulation (EC) No 207/2009) — Relative ground for refusal — Earlier unregistered national mark consisting of a combination of the colours green and yellow — Article 8(4) and Article 52(1)(c) of Regulation No 40/94 (now Article 8(4) and Article 53(1)(c) of Regulation No 207/2009) — Obligation to state reasons — Article 73 of Regulation No 40/94 (now Article 75 of Regulation No 207/2009))

21

2009/C 297/30

Case T-307/08: Judgment of the Court of First Instance of 20 October 2009 — Aldi Einkauf v OHIM — Goya Importaciones y Distribuciones (4 OUT Living) (Community trade mark — Opposition proceedings — Application for figurative Community mark 4 OUT Living — Earlier national figurative mark Living & Co — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))

21

2009/C 297/31

Case T-120/09: Action brought on 27 March 2009 — Phoenix-Reisen and DRV v Commission

21

2009/C 297/32

Case T-369/09: Action brought on 22 September 2009 — Sociedade Quinta do Portal SA v OHIM — Vallegre–Vinhos do Porto (PORTO ALEGRE)

22

2009/C 297/33

Case T-381/09: Action brought on 25 September 2009 — RWE Transgas v Commission

22

2009/C 297/34

Case T-382/09: Action brought on 30 September 2009 — ERGO Versicherungsgruppe v OHIM — DeguDent (ERGO)

23

2009/C 297/35

Case T-384/09: Action brought on 1 October 2009 — SKW Stahl-Metallurgie Holding and SKW Stahl-Metallurgie v Commission

23

2009/C 297/36

Case T-391/09: Action brought on 5 October 2009 — Evonik Degussa and AlzChem Hart v Commission

24

2009/C 297/37

Case T-392/09: Action brought on 2 October 2009 — 1. garantovaná v Commission

25

2009/C 297/38

Case T-393/09: Action brought on 2 October 2009 — NEC Display Solutions Europe v OHIM — Nokia (NaViKey)

26

2009/C 297/39

Case T-394/09: Action brought on 5 October 2009 — General Bearing v OHIM (GENERAL BEARING CORPORATION)

26

2009/C 297/40

Case T-395/09: Action brought on 6 October 2009 — Arques Industries v Commission

27

2009/C 297/41

Case T-396/09: Action brought on 6 October 2009 — Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht v Commission

28

2009/C 297/42

Case T-397/09: Action brought on 6 October 2009 — Ernst August Prinz von Hannover Herzog zu Braunschweig und Lüneburg v OHIM (Figurative mark representing a coat of arms)

29

2009/C 297/43

Case T-400/09: Action brought on 6 October 2009 — ECKA Granulate and non ferrum Metallpulver v Commission

29

2009/C 297/44

Case T-401/09: Action brought on 5 October 2009 — Marcuccio v Court of Justice of the European Communities

30

2009/C 297/45

Case T-402/09 P: Appeal brought on 7 October 2009 by Luigi Marcuccio against the order of 20 July 2009 of the Civil Service Tribunal in Case F-86/07, Marcuccio v Commission

30

2009/C 297/46

Case T-403/09: Action brought on 7 October 2009 — Tecnoprocess v Delegation of the European Commission to Morocco and Others

31

2009/C 297/47

Case T-404/09: Action brought on 9 October 2009 — Deutsche Bahn v OHIM (Combination of the colours grey and red)

31

2009/C 297/48

Case T-405/09: Action brought on 9 October 2009 — Deutsche Bahn v OHIM (Combination of the colours grey and red)

32

2009/C 297/49

Case T-415/09: Action brought on 14 October 2009 — New Yorker SHK Jeans v OHIM — Vallis K — Vallis A (FISHBONE)

32

2009/C 297/50

Case T-417/09: Action brought on 16 October 2009 — Poslovni Sistem Mercator v OHIM — Mercator Multihull (MERCATOR STUDIOS)

33

2009/C 297/51

Case T-422/09: Action brought on 19 October 2009 — São Paulo Alpargatas v OHIM — Fischer (BAHANIAS LAS ORIGINALES)

33

European Union Civil Service Tribunal

2009/C 297/52

Case F-16/08: Judgment of the Civil Service Tribunal (Second Chamber) of 10 September 2009 — Behmer v European Parliament (Officials — Procedure for the award of merit points at the European Parliament — Infringement of the obligation to state reasons — Statement of reasons given in the course of the procedure)

35

2009/C 297/53

Case F-29/08: Judgment of the Civil Service Tribunal (Third Chamber) of 7 October 2009 — Y v Commission (Contract staff — Dismissal for obviously inadequate work — Conduct in the service inadequate)

35

2009/C 297/54

Case F-33/08: Judgment of the Civil Service Tribunal (First Chamber) of 21 October 2009 — V v Commission (Staff case — Members of the contract staff — Recruitment — Refusal to employ the applicant for physical unfitness to perform her duties — Validity of the procedure — Validity of the medical examination prior to appointment — Preparatory acts)

35

2009/C 297/55

Case F-74/08: Judgment of the Civil Service Tribunal (Third Chamber) of 21 October 2009 — Ramaekers-Jørgensen v Commission (Officials — Community tax — Calculation — Combining the amount of personal remuneration and the survivor’s pension — Rules for collecting the tax — Date of levy)

36

2009/C 297/56

Case F-76/09: Action brought on 14 September 2009 — Cusack-Gard'ner v Commission

36

2009/C 297/57

Case F-82/09: Action brought on 16 October 2009 — Nolin v Commission

37

| EN | |
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EN

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Court of Justice

| 5.12.2009 | EN | Official Journal of the European Union | C 297/1 |
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5.12.2009

EN

Official Journal of the European Union

C 297/1

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Following the entry into force of the Treaty of Lisbon, this note replaces the information note published in OJ 2005 C 143, p. 1 and the supplement to that note published in OJ 2008 C 64.

INFORMATION NOTE

on references from national courts for a preliminary ruling

2009/C 297/01

I.   General

| 1. | The preliminary ruling system is a fundamental mechanism of European Union law aimed at enabling national courts to ensure uniform interpretation and application of that law in all the Member States. |
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1.

The preliminary ruling system is a fundamental mechanism of European Union law aimed at enabling national courts to ensure uniform interpretation and application of that law in all the Member States.

| 2. | The Court of Justice of the European Union has jurisdiction to give preliminary rulings on the interpretation of European Union law and on the validity of acts of the institutions, bodies, offices or agencies of the Union. That general jurisdiction is conferred on it by Article 19(3)(b) of the Treaty on European Union (OJEU 2008 C 115, p. 13) (‘the TEU’) and Article 267 of the Treaty on the Functioning of the European Union (OJEU 2008 C 115, p. 47) (‘the TFEU’). |
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2.

The Court of Justice of the European Union has jurisdiction to give preliminary rulings on the interpretation of European Union law and on the validity of acts of the institutions, bodies, offices or agencies of the Union. That general jurisdiction is conferred on it by Article 19(3)(b) of the Treaty on European Union (OJEU 2008 C 115, p. 13) (‘the TEU’) and Article 267 of the Treaty on the Functioning of the European Union (OJEU 2008 C 115, p. 47) (‘the TFEU’).

| 3. | Article 256(3) TFEU provides that the General Court is to have jurisdiction to hear and determine questions referred for a preliminary ruling under Article 267, in specific areas laid down by the Statute. Since no provisions have been introduced into the Statute in that regard, the Court of Justice alone has jurisdiction to give preliminary rulings. |
| --- | --- |

3.

Article 256(3) TFEU provides that the General Court is to have jurisdiction to hear and determine questions referred for a preliminary ruling under Article 267, in specific areas laid down by the Statute. Since no provisions have been introduced into the Statute in that regard, the Court of Justice alone has jurisdiction to give preliminary rulings.

| 4. | While Article 267 TFEU confers on the Court of Justice a general jurisdiction, a number of provisions exist which lay down exceptions to or restrictions on that jurisdiction. This is true in particular of Articles 275 and 276 TFEU and Article 10 of Protocol (No 36) on Transitional Provisions of the Treaty of Lisbon (OJEU 2008 C 115, p. 322). |
| --- | --- |

4.

While Article 267 TFEU confers on the Court of Justice a general jurisdiction, a number of provisions exist which lay down exceptions to or restrictions on that jurisdiction. This is true in particular of Articles 275 and 276 TFEU and Article 10 of Protocol (No 36) on Transitional Provisions of the Treaty of Lisbon (OJEU 2008 C 115, p. 322).

| 5. | The preliminary ruling procedure being based on cooperation between the Court of Justice and national courts, it may be helpful, in order to ensure that that cooperation is effective, to provide the national courts with the following information. |
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5.

The preliminary ruling procedure being based on cooperation between the Court of Justice and national courts, it may be helpful, in order to ensure that that cooperation is effective, to provide the national courts with the following information.

| 6. | This practical information, which is in no way binding, is intended to provide guidance to national courts as to whether it is appropriate to make a reference for a preliminary ruling and, should they proceed, to help them formulate and submit questions to the Court. |
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6.

This practical information, which is in no way binding, is intended to provide guidance to national courts as to whether it is appropriate to make a reference for a preliminary ruling and, should they proceed, to help them formulate and submit questions to the Court.

The role of the Court of Justice in the preliminary ruling procedure

| 7. | Under the preliminary ruling procedure, the Court’s role is to give an interpretation of European Union law or to rule on its validity, not to apply that law to the factual situation underlying the main proceedings, which is the task of the national court. It is not for the Court either to decide issues of fact raised in the main proceedings or to resolve differences of opinion on the interpretation or application of rules of national law. |
| --- | --- |

7.

Under the preliminary ruling procedure, the Court’s role is to give an interpretation of European Union law or to rule on its validity, not to apply that law to the factual situation underlying the main proceedings, which is the task of the national court. It is not for the Court either to decide issues of fact raised in the main proceedings or to resolve differences of opinion on the interpretation or application of rules of national law.

| 8. | In ruling on the interpretation or validity of European Union law, the Court makes every effort to give a reply which will be of assistance in resolving the dispute, but it is for the referring court to draw the appropriate conclusions from that reply, if necessary by disapplying the rule of national law in question. |
| --- | --- |

8.

In ruling on the interpretation or validity of European Union law, the Court makes every effort to give a reply which will be of assistance in resolving the dispute, but it is for the referring court to draw the appropriate conclusions from that reply, if necessary by disapplying the rule of national law in question.

The decision to submit a question to the Court

The originator of the question

| 9. | Under Article 267 TFEU, any court or tribunal of a Member State, in so far as it is called upon to give a ruling in proceedings intended to arrive at a decision of a judicial nature, may as a rule refer a question to the Court of Justice for a preliminary ruling (1). Status as a court or tribunal is interpreted by the Court of Justice as a self-standing concept of European Union law. |
| --- | --- |

9.

Under Article 267 TFEU, any court or tribunal of a Member State, in so far as it is called upon to give a ruling in proceedings intended to arrive at a decision of a judicial nature, may as a rule refer a question to the Court of Justice for a preliminary ruling (1). Status as a court or tribunal is interpreted by the Court of Justice as a self-standing concept of European Union law.

| 10. | It is for the national court alone to decide whether to refer a question to the Court of Justice for a preliminary ruling, whether or not the parties to the main proceedings have requested it to do so. |
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10.

It is for the national court alone to decide whether to refer a question to the Court of Justice for a preliminary ruling, whether or not the parties to the main proceedings have requested it to do so.

References on interpretation

| 11. | Any court or tribunal may refer a question to the Court of Justice on the interpretation of a rule of European Union law if it considers it necessary to do so in order to resolve a dispute brought before it. |
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11.

Any court or tribunal may refer a question to the Court of Justice on the interpretation of a rule of European Union law if it considers it necessary to do so in order to resolve a dispute brought before it.

| 12. | However, courts or tribunals against whose decisions there is no judicial remedy under national law must, as a rule, refer such a question to the Court, unless the Court has already ruled on the point (and there is no new context that raises any serious doubt as to whether that case-law may be applied), or unless the correct interpretation of the rule of law in question is obvious. |
| --- | --- |

12.

However, courts or tribunals against whose decisions there is no judicial remedy under national law must, as a rule, refer such a question to the Court, unless the Court has already ruled on the point (and there is no new context that raises any serious doubt as to whether that case-law may be applied), or unless the correct interpretation of the rule of law in question is obvious.

| 13. | Thus, a court or tribunal against whose decisions there is a judicial remedy may, in particular when it considers that sufficient guidance is given by the case-law of the Court of Justice, itself decide on the correct interpretation of European Union law and its application to the factual situation before it. However, a reference for a preliminary ruling may prove particularly useful, at an appropriate stage of the proceedings, when there is a new question of interpretation of general interest for the uniform application of European Union law in all the Member States, or where the existing case-law does not appear to be applicable to a new set of facts. |
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13.

Thus, a court or tribunal against whose decisions there is a judicial remedy may, in particular when it considers that sufficient guidance is given by the case-law of the Court of Justice, itself decide on the correct interpretation of European Union law and its application to the factual situation before it. However, a reference for a preliminary ruling may prove particularly useful, at an appropriate stage of the proceedings, when there is a new question of interpretation of general interest for the uniform application of European Union law in all the Member States, or where the existing case-law does not appear to be applicable to a new set of facts.

| 14. | It is for the national court to explain why the interpretation sought is necessary to enable it to give judgment. |
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14.

It is for the national court to explain why the interpretation sought is necessary to enable it to give judgment.

References on determination of validity

| 15. | Although national courts may reject pleas raised before them challenging the validity of acts of an institution, body, office or agency of the Union, the Court of Justice has exclusive jurisdiction to declare such an act invalid. |
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15.

Although national courts may reject pleas raised before them challenging the validity of acts of an institution, body, office or agency of the Union, the Court of Justice has exclusive jurisdiction to declare such an act invalid.

| 16. | All national courts must therefore refer a question to the Court when they have doubts about the validity of such an act, stating the reasons for which they consider that that act may be invalid. |
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16.

All national courts must therefore refer a question to the Court when they have doubts about the validity of such an act, stating the reasons for which they consider that that act may be invalid.

| 17. | However, if a national court has serious doubts about the validity of an act of an institution, body, office or agency of the Union on which a national measure is based, it may exceptionally suspend application of that measure temporarily or grant other interim relief with respect to it. It must then refer the question of validity to the Court of Justice, stating the reasons for which it considers the act to be invalid. |
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17.

However, if a national court has serious doubts about the validity of an act of an institution, body, office or agency of the Union on which a national measure is based, it may exceptionally suspend application of that measure temporarily or grant other interim relief with respect to it. It must then refer the question of validity to the Court of Justice, stating the reasons for which it considers the act to be invalid.

The stage at which to submit a question for a preliminary ruling

| 18. | A national court or tribunal may refer a question to the Court for a preliminary ruling as soon as it finds that a ruling on the point or points of interpretation or validity is necessary to enable it to give judgment; it is the national court which is in the best position to decide at what stage of the proceedings such a question should be referred. |
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18.

A national court or tribunal may refer a question to the Court for a preliminary ruling as soon as it finds that a ruling on the point or points of interpretation or validity is necessary to enable it to give judgment; it is the national court which is in the best position to decide at what stage of the proceedings such a question should be referred.

| 19. | It is, however, desirable that a decision to seek a preliminary ruling should be taken when the national proceedings have reached a stage at which the national court is able to define the factual and legal context of the question, so that the Court of Justice has available to it all the information necessary to check, where appropriate, that European Union law applies to the main proceedings. It may also be in the interests of justice to refer a question for a preliminary ruling only after both sides have been heard. |
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19.

It is, however, desirable that a decision to seek a preliminary ruling should be taken when the national proceedings have reached a stage at which the national court is able to define the factual and legal context of the question, so that the Court of Justice has available to it all the information necessary to check, where appropriate, that European Union law applies to the main proceedings. It may also be in the interests of justice to refer a question for a preliminary ruling only after both sides have been heard.

The form of the reference for a preliminary ruling

| 20. | The decision by which a national court or tribunal refers a question to the Court of Justice for a preliminary ruling may be in any form allowed by national law as regards procedural steps. It must however be borne in mind that it is that document which serves as the basis of the proceedings before the Court and that it must therefore contain such information as will enable the latter to give a reply which is of assistance to the national court. Moreover, it is only the actual reference for a preliminary ruling which is notified to the interested persons entitled to submit observations to the Court, in particular the Member States and the institutions, and which is translated. |
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20.

The decision by which a national court or tribunal refers a question to the Court of Justice for a preliminary ruling may be in any form allowed by national law as regards procedural steps. It must however be borne in mind that it is that document which serves as the basis of the proceedings before the Court and that it must therefore contain such information as will enable the latter to give a reply which is of assistance to the national court. Moreover, it is only the actual reference for a preliminary ruling which is notified to the interested persons entitled to submit observations to the Court, in particular the Member States and the institutions, and which is translated.

| 21. | Owing to the need to translate the reference, it should be drafted simply, clearly and precisely, avoiding superfluous detail. |
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21.

Owing to the need to translate the reference, it should be drafted simply, clearly and precisely, avoiding superfluous detail.

| 22. | A maximum of about 10 pages is often sufficient to set out in a proper manner the context of a reference for a preliminary ruling. The order for reference must be succinct but sufficiently complete and must contain all the relevant information to give the Court and the interested persons entitled to submit observations a clear understanding of the factual and legal context of the main proceedings. In particular, the order for reference must:






  — | include a brief account of the subject-matter of the dispute and the relevant findings of fact, or, at least, set out the factual situation on which the question referred is based; |
| --- | --- | --- |

22.

A maximum of about 10 pages is often sufficient to set out in a proper manner the context of a reference for a preliminary ruling. The order for reference must be succinct but sufficiently complete and must contain all the relevant information to give the Court and the interested persons entitled to submit observations a clear understanding of the factual and legal context of the main proceedings. In particular, the order for reference must:

—

include a brief account of the subject-matter of the dispute and the relevant findings of fact, or, at least, set out the factual situation on which the question referred is based;

| — | set out the tenor of any applicable national provisions and identify, where necessary, the relevant national case-law, giving in each case precise references (for example, a page of an official journal or specific law report, with any internet reference); |
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—

set out the tenor of any applicable national provisions and identify, where necessary, the relevant national case-law, giving in each case precise references (for example, a page of an official journal or specific law report, with any internet reference);

| — | identify the European Union law provisions relevant to the case as accurately as possible; |
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—

identify the European Union law provisions relevant to the case as accurately as possible;

| — | explain the reasons which prompted the national court to raise the question of the interpretation or validity of the European Union law provisions, and the relationship between those provisions and the national provisions applicable to the main proceedings; |
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—

explain the reasons which prompted the national court to raise the question of the interpretation or validity of the European Union law provisions, and the relationship between those provisions and the national provisions applicable to the main proceedings;

| — | include, if need be, a summary of the main relevant arguments of the parties to the main proceedings. |
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—

include, if need be, a summary of the main relevant arguments of the parties to the main proceedings.

In order to make it easier to read and refer to the document, it is helpful if the different points or paragraphs of the order for reference are numbered.

| 23. | Finally, the referring court may, if it considers itself able, briefly state its view on the answer to be given to the questions referred for a preliminary ruling. |
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23.

Finally, the referring court may, if it considers itself able, briefly state its view on the answer to be given to the questions referred for a preliminary ruling.

| 24. | The question or questions themselves should appear in a separate and clearly identified section of the order for reference, generally at the beginning or the end. It must be possible to understand them without referring to the statement of the grounds for the reference, which will however provide the necessary background for a proper assessment. |
| --- | --- |

24.

The question or questions themselves should appear in a separate and clearly identified section of the order for reference, generally at the beginning or the end. It must be possible to understand them without referring to the statement of the grounds for the reference, which will however provide the necessary background for a proper assessment.

The effects of the reference for a preliminary ruling on the national proceedings

| 25. | A reference for a preliminary ruling calls for the national proceedings to be stayed until the Court of Justice has given its ruling. |
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25.

A reference for a preliminary ruling calls for the national proceedings to be stayed until the Court of Justice has given its ruling.

| 26. | However, the national court may still order protective measures, particularly in connection with a reference on determination of validity (see point 17 above). |
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26.

However, the national court may still order protective measures, particularly in connection with a reference on determination of validity (see point 17 above).

Costs and legal aid

| 27. | Preliminary ruling proceedings before the Court of Justice are free of charge and the Court does not rule on the costs of the parties to the main proceedings; it is for the national court to rule on those costs. |
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27.

Preliminary ruling proceedings before the Court of Justice are free of charge and the Court does not rule on the costs of the parties to the main proceedings; it is for the national court to rule on those costs.

| 28. | If a party has insufficient means and where it is possible under national rules, the national court may grant that party legal aid to cover the costs, including those of lawyers’ fees, which it incurs before the Court. The Court itself may also grant legal aid where the party in question is not already in receipt of legal aid under national rules or to the extent to which that aid does not cover, or covers only partly, costs incurred before the Court. |
| --- | --- |

28.

If a party has insufficient means and where it is possible under national rules, the national court may grant that party legal aid to cover the costs, including those of lawyers’ fees, which it incurs before the Court. The Court itself may also grant legal aid where the party in question is not already in receipt of legal aid under national rules or to the extent to which that aid does not cover, or covers only partly, costs incurred before the Court.

Communication between the national court and the Court of Justice

| 29. | The order for reference and the relevant documents (including, where applicable, the case file or a copy of the case file) are to be sent by the national court directly to the Court of Justice, by registered post (addressed to the Registry of the Court of Justice, L-2925 Luxembourg, telephone +352 4303-1). |
| --- | --- |

29.

The order for reference and the relevant documents (including, where applicable, the case file or a copy of the case file) are to be sent by the national court directly to the Court of Justice, by registered post (addressed to the Registry of the Court of Justice, L-2925 Luxembourg, telephone +352 4303-1).

| 30. | The Court Registry will stay in contact with the national court until a ruling is given, and will send it copies of the procedural documents. |
| --- | --- |

30.

The Court Registry will stay in contact with the national court until a ruling is given, and will send it copies of the procedural documents.

| 31. | The Court of Justice will send its ruling to the national court. It would welcome information from the national court on the action taken upon its ruling in the national proceedings and, where appropriate, a copy of the national court’s final decision. |
| --- | --- |

31.

The Court of Justice will send its ruling to the national court. It would welcome information from the national court on the action taken upon its ruling in the national proceedings and, where appropriate, a copy of the national court’s final decision.

II.   The Urgent preliminary ruling procedure (PPU)

| 32. | This part of the note provides practical information on the urgent preliminary ruling procedure applicable to references relating to the area of freedom, security and justice. The procedure is governed by Article 23a of Protocol (No 3) on the Statute of the Court of Justice of the European Union (OJEU 2008 C 115, p. 210) and Article 104b of the Rules of Procedure of the Court of Justice. National courts may request that this procedure be applied or request the application of the accelerated procedure under the conditions laid down in Article 23a of the Protocol and Article 104a of the Rules of Procedure. |
| --- | --- |

32.

This part of the note provides practical information on the urgent preliminary ruling procedure applicable to references relating to the area of freedom, security and justice. The procedure is governed by Article 23a of Protocol (No 3) on the Statute of the Court of Justice of the European Union (OJEU 2008 C 115, p. 210) and Article 104b of the Rules of Procedure of the Court of Justice. National courts may request that this procedure be applied or request the application of the accelerated procedure under the conditions laid down in Article 23a of the Protocol and Article 104a of the Rules of Procedure.

Conditions for the application of the urgent preliminary ruling procedure

| 33. | The urgent preliminary ruling procedure is applicable only in the areas covered by Title V of Part Three of the TFEU, which relates to the area of freedom, security and justice. |
| --- | --- |

33.

The urgent preliminary ruling procedure is applicable only in the areas covered by Title V of Part Three of the TFEU, which relates to the area of freedom, security and justice.

| 34. | The Court of Justice decides whether this procedure is to be applied. Such a decision is generally taken only on a reasoned request from the referring court. Exceptionally, the Court may decide of its own motion to deal with a reference under the urgent preliminary ruling procedure, where that appears to be required. |
| --- | --- |

34.

The Court of Justice decides whether this procedure is to be applied. Such a decision is generally taken only on a reasoned request from the referring court. Exceptionally, the Court may decide of its own motion to deal with a reference under the urgent preliminary ruling procedure, where that appears to be required.

| 35. | The urgent preliminary ruling procedure simplifies the various stages of the proceedings before the Court, but its application entails significant constraints for the Court and for the parties and other interested persons participating in the procedure, particularly the Member States. |
| --- | --- |

35.

The urgent preliminary ruling procedure simplifies the various stages of the proceedings before the Court, but its application entails significant constraints for the Court and for the parties and other interested persons participating in the procedure, particularly the Member States.

| 36. | It should therefore be requested only where it is absolutely necessary for the Court to give its ruling on the reference as quickly as possible. Although it is not possible to provide an exhaustive list of such situations, particularly because of the varied and evolving nature of the rules of European Union law governing the area of freedom, security and justice, a national court or tribunal might, for example, consider submitting a request for the urgent preliminary ruling procedure to be applied in the following situations: in the case, referred to in the fourth paragraph of Article 267 TFEU, of a person in custody or deprived of his liberty, where the answer to the question raised is decisive as to the assessment of that person’s legal situation or, in proceedings concerning parental authority or custody of children, where the identity of the court having jurisdiction under European Union law depends on the answer to the question referred for a preliminary ruling. |
| --- | --- |

36.

It should therefore be requested only where it is absolutely necessary for the Court to give its ruling on the reference as quickly as possible. Although it is not possible to provide an exhaustive list of such situations, particularly because of the varied and evolving nature of the rules of European Union law governing the area of freedom, security and justice, a national court or tribunal might, for example, consider submitting a request for the urgent preliminary ruling procedure to be applied in the following situations: in the case, referred to in the fourth paragraph of Article 267 TFEU, of a person in custody or deprived of his liberty, where the answer to the question raised is decisive as to the assessment of that person’s legal situation or, in proceedings concerning parental authority or custody of children, where the identity of the court having jurisdiction under European Union law depends on the answer to the question referred for a preliminary ruling.

The request for application of the urgent preliminary ruling procedure

| 37. | To enable the Court to decide quickly whether the urgent preliminary ruling procedure should be applied, the request must set out the matters of fact and law which establish the urgency and, in particular, the risks involved in following the normal preliminary ruling procedure. |
| --- | --- |

37.

To enable the Court to decide quickly whether the urgent preliminary ruling procedure should be applied, the request must set out the matters of fact and law which establish the urgency and, in particular, the risks involved in following the normal preliminary ruling procedure.

| 38. | In so far as it is able to do so, the referring court should briefly state its view on the answer to be given to the question(s) referred. Such a statement makes it easier for the parties and other interested persons participating in the procedure to define their positions and facilitates the Court’s decision, thereby contributing to the rapidity of the procedure. |
| --- | --- |

38.

In so far as it is able to do so, the referring court should briefly state its view on the answer to be given to the question(s) referred. Such a statement makes it easier for the parties and other interested persons participating in the procedure to define their positions and facilitates the Court’s decision, thereby contributing to the rapidity of the procedure.

| 39. | The request for the urgent preliminary ruling procedure must be submitted in a form that enables the Court Registry to establish immediately that the file must be dealt with in a particular way. Accordingly, the request should be submitted in a document separate from the order for reference itself, or in a covering letter expressly setting out the request. |
| --- | --- |

39.

The request for the urgent preliminary ruling procedure must be submitted in a form that enables the Court Registry to establish immediately that the file must be dealt with in a particular way. Accordingly, the request should be submitted in a document separate from the order for reference itself, or in a covering letter expressly setting out the request.

| 40. | As regards the order for reference itself, it is particularly important that it should be succinct where the matter is urgent, as this will help to ensure the rapidity of the procedure. |
| --- | --- |

40.

As regards the order for reference itself, it is particularly important that it should be succinct where the matter is urgent, as this will help to ensure the rapidity of the procedure.

Communication between the Court of Justice, the national court and the parties

| 41. | As regards communication with the national court or tribunal and the parties before it, national courts or tribunals which submit a request for an urgent preliminary ruling procedure are requested to state the e-mail address or any fax number which may be used by the Court of Justice, together with the e-mail addresses or any fax numbers of the representatives of the parties to the proceedings. |
| --- | --- |

41.

As regards communication with the national court or tribunal and the parties before it, national courts or tribunals which submit a request for an urgent preliminary ruling procedure are requested to state the e-mail address or any fax number which may be used by the Court of Justice, together with the e-mail addresses or any fax numbers of the representatives of the parties to the proceedings.

| 42. | A copy of the signed order for reference together with a request for the urgent preliminary ruling procedure can initially be sent to the Court by e-mail (ECJ-Registry@curia.europa.eu) or by fax (+352 43 37 66). Processing of the reference and of the request can then begin upon receipt of the e-mailed or faxed copy. The originals of those documents must, however, be sent to the Court Registry as soon as possible. |
| --- | --- |

42.

A copy of the signed order for reference together with a request for the urgent preliminary ruling procedure can initially be sent to the Court by e-mail (ECJ-Registry@curia.europa.eu) or by fax (+352 43 37 66). Processing of the reference and of the request can then begin upon receipt of the e-mailed or faxed copy. The originals of those documents must, however, be sent to the Court Registry as soon as possible.

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(1)  Article 10(1) to (3) of Protocol No 36 provides that the powers of the Court of Justice in relation to acts adopted before the entry into force of the Treaty of Lisbon (OJ 2007 C 306, p. 1) under Title VI of the TEU, in the field of police cooperation and judicial cooperation in criminal matters, and which have not since been amended, are, however, to remain the same for a maximum period of five years from the date of entry into force of the Treaty of Lisbon (1 December 2009). During that period, such acts may, therefore, form the subject-matter of a reference for a preliminary ruling only where the order for reference is made by a court of a Member State which has accepted the jurisdiction of the Court of Justice, it being a matter for each State to determine whether the right to refer a question to the Court is to be available to all of its national courts or is to be reserved to the courts of last instance.

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| 5.12.2009 | EN | Official Journal of the European Union | C 297/6 |
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2009/C 297/02

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

OJ C 282, 21.11.2009

Past publications

OJ C 267, 7.11.2009

OJ C 256, 24.10.2009

OJ C 244, 10.10.2009

OJ C 233, 26.9.2009

OJ C 220, 12.9.2009

OJ C 205, 29.8.2009

These texts are available on:

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

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V Announcements

COURT PROCEEDINGS

Court of Justice

| 5.12.2009 | EN | Official Journal of the European Union | C 297/7 |
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Official Journal of the European Union

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Judgment of the Court (Third Chamber) of 15 October 2009 (reference for a preliminary ruling from the Finanzgericht Baden-Württemberg — Germany) — Grundstücksgemeinschaft Busley and Cibrian Fernandez v Finanzamt Stuttgart-Körperschaften

(Case C-35/08) (1)

(Free movement of capital - Immovable property - Income tax - Deductibility of rental losses from the taxable income of a person liable to tax - Application of the decreasing-balance method of depreciation to the costs of acquisition or construction - More favourable tax treatment confined to immovable property situated on the national territory)

2009/C 297/03

Language of the case: German

Referring court

Finanzgericht Baden-Württemberg

Parties to the main proceedings

Applicant: Grundstücksgemeinschaft Busley and Cibrian Fernandez

Defendant: Finanzamt Stuttgart-Körperschaften

Re:

Reference for a preliminary ruling — Finanzgericht Baden-Württemberg — Interpretation of Articles 18 and 56 of the EC Treaty — National income tax legislation limiting the ability to deduct losses arising from the rental of real property to those losses relating to property located on national territory, and reserving to such property alone the application of a more favourable method of depreciation

Operative part of the judgment

Article 56 EC precludes income-tax legislation of a Member State under which natural persons who are resident and liable to unlimited taxation are entitled to have (i) losses from the letting or leasing of an immovable property deducted from the taxable amount in the year in which those losses arise, and (ii) the income from such property assessed on the basis of the application of the decreasing-balance method of depreciation, only if the property in question is situated on the territory of that Member State.

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(1)  OJ C 92, 12.04.2008.

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| 5.12.2009 | EN | Official Journal of the European Union | C 297/7 |
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Official Journal of the European Union

C 297/7

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Judgment of the Court (Fourth Chamber) of 15 October 2009 (reference for a preliminary ruling from the Cour de cassation (Luxembourg)) — Audiolux SA, BIP Investment Partners SA, Jean-Paul Felten, Joseph Weyland, Luxiprivilège SA, Foyer SA, Investas ASBL, Claudie Stein-Lambert, Christiane Worre-Lambert, Baron Antoine De Schorlemer, Jacques Funck, Jean Petitdidier v Groupe Bruxelles Lambert SA (GBL), RTL Group, Juan Abello Gallo, Didier Bellens, André Desmarais, Gérald Frère, Jocelyn Lefebvre, Onno Ruding, Gilles Samyn, Martin Taylor, Bertelsmann AG, Siegfried Luther, Thomas Middelhoff, Ewald Wagenbach, Rolf Schmidt-Holz, Erich Schumann, WAZ Finanzierungs-GmbH, Westdeutsche Allgemeine Zeitungsverlagsgesellschaft E. Brost & J. Funke GmbH & Co (WAZ)

(Case C-101/08) (1)

(Directives 77/91/EEC, 79/279/EEC and 2004/25/EC - General principle of Community law on the protection of minority shareholders - None - Company law - Acquisition of control - Mandatory bid - Recommendation 77/534/EEC - Code of Conduct)

2009/C 297/04

Language of the case: French

Referring court

Cour de cassation

Parties to the main proceedings

Applicants: Audiolux SA, BIP Investment Partners SA, Jean-Paul Felten, Joseph Weyland, Luxiprivilège SA, Foyer SA, Investas ASBL, Claudie Stein-Lambert, Christiane Worre-Lambert, Baron Antoine De Schorlemer, Jacques Funck, Jean Petitdidier

Defendants: Groupe Bruxelles Lambert SA (GBL), RTL Group, Juan Abello Gallo, Didier Bellens, André Desmarais, Gérald Frère, Jocelyn Lefebvre, Onno Ruding, Gilles Samyn, Martin Taylor, Bertelsmann AG, Siegfried Luther, Thomas Middelhoff, Ewald Wagenbach, Rolf Schmidt-Holz, Erich Schumann, WAZ Finanzierungs-GmbH, Westdeutsche Allgemeine Zeitungsverlagsgesellschaft E. Brost & J. Funke GmbH & Co (WAZ)

Re:

Reference for a preliminary ruling — Cour de cassation (Grand Duchy of Luxembourg) — Interpretation of (1) Articles 20 and 42 of the Second Council Directive 77/91/EEC of 13 December 1976 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies ... in respect of the formation of public limited liability companies and the maintenance and alteration of their capital, with a view to making such safeguards equivalent (OJ 1977 L 26, p. 1), (2) the Commission Recommendation of 25 July 1977 concerning a European code of conduct relating to transactions in transferable securities (OJ 1977 L 212 p. 37), (3) Council Directive 79/279/EEC of 5 March 1979 coordinating the conditions for the admission of securities to official stock exchange listing (OJ 1979 L 66, p. 21) and (4) Article 3(1)(a) of Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids (OJ 2004 L 142, p. 12) — Is there, in Community law, a general principle of the equality of shareholders? — If so, what is the scope ratione materiae and ratione temporis of that principle?

Operative part of the judgment

Community law does not include any general principle of law under which minority shareholders are protected by an obligation on the dominant shareholder, when acquiring or exercising control of a company, to offer to buy their shares under the same conditions as those agreed when a shareholding conferring or strengthening the control of the dominant shareholder was acquired.

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(1)  OJ C 116, 9.5.2008.

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| 5.12.2009 | EN | Official Journal of the European Union | C 297/8 |
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5.12.2009

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Official Journal of the European Union

C 297/8

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Judgment of the Court (Third Chamber) of 22 October 2009 (reference for a preliminary ruling from the Hof van Cassatie van België (Belgium)) — C. Meerts v Proost NV

(Case C-116/08) (1)

(Directive 96/34/EC - Framework agreement on parental leave concluded by UNICE, CEEP and the ETUC - Interpretation of Clause 2.6 and 2.7 - Part-time parental leave - Dismissal of a worker before the end of parental leave without observing the statutory period of notice - Calculation of compensation)

2009/C 297/05

Language of the case: Dutch

Referring court

Hof van Cassatie van België

Parties to the main proceedings

Appellant: C. Meerts

Respondent: Proost NV

Re:

Reference for a preliminary ruling — Hof van Cassatie van België — Interpretation of clauses 2.4 to 2.7 of the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC, annexed to Council Directive 96/34/EC of 3 June 1996 (OJ 1996 L 145, p. 4) — Parental leave in the form of part-time working — Dismissal of the employee before the end of the period of parental leave without urgent cause or without observing the statutory period of notice — Calculation of payment in lieu of notice

Operative part of the judgment

Clause 2.6 and 2.7 of the framework agreement on parental leave concluded on 14 December 1995, which is annexed to Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC, as amended by Council Directive 97/75/EC of 15 December 1997, must be interpreted as precluding, where an employer unilaterally terminates a worker’s full-time employment contract of indefinite duration, without urgent cause or without observing the statutory period of notice, whilst the worker is on part-time parental leave, the compensation to be paid to the worker from being determined on the basis of the reduced salary being received when the dismissal takes place.

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(1)  OJ C 128, 24.5.2008.

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| 5.12.2009 | EN | Official Journal of the European Union | C 297/9 |
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5.12.2009

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Official Journal of the European Union

C 297/9

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Judgment of the Court (Fourth Chamber) of 15 October 2009 (reference for a preliminary ruling from the Fővárosi Ítélőtábla (Republic of Hungary)) — Hochtief AG, Linde-Kca-Dresden GmbH v Közbeszerzések Tanácsa Közbeszerzési Döntőbizottság

(Case C-138/08) (1)

(Procedures for the award of public works contracts - Procedures initiated after the entry into force of Directive 2004/18/EC and before the expiry of the period for transposition of that directive - Negotiated procedures with publication of a contract notice - Obligation to admit a minimum number of suitable candidates - Obligation to ensure genuine competition)

2009/C 297/06

Language of the case: Hungarian

Referring court

Fővárosi Ítélőtábla

Parties to the main proceedings

Applicant: Hochtief AG, Linde-Kca-Dresden GmbH

Defendant: Közbeszerzések Tanácsa Közbeszerzési Döntőbizottság

Intervening party: Budapest Főváros Önkormányzata

Re:

Reference for a preliminary ruling — Fővárosi Ítélőtábla — Interpretation of Article 22(2) and (3) of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ 1993 L 199, p. 54), and of Article 44(3) 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) — Whether it is possible to continue a negotiated procedure with publication of a contract notice where the number of suitable candidates is less than the minimum number of the range prescribed in the contract notice, and less than the minimum number prescribed for that purpose in the abovementioned directives

Operative part of the judgment

| 1. | 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 is not applicable to a decision taken by a contracting authority when awarding a public works contract before the period for transposition of that directive has expired; |
| --- | --- |

1.

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 is not applicable to a decision taken by a contracting authority when awarding a public works contract before the period for transposition of that directive has expired;

| 2. | Article 22(3) of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts, as amended by Directive 97/52/EC of the European Parliament and of the Council of 13 October 1997, must be interpreted as meaning that where a contract is awarded by a negotiated procedure and the number of suitable candidates is below the lower limit prescribed for the procedure in question, the contracting authority may, nevertheless, continue with the procedure by inviting the suitable candidate or candidates to negotiate the terms of that contract; |
| --- | --- |

2.

Article 22(3) of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts, as amended by Directive 97/52/EC of the European Parliament and of the Council of 13 October 1997, must be interpreted as meaning that where a contract is awarded by a negotiated procedure and the number of suitable candidates is below the lower limit prescribed for the procedure in question, the contracting authority may, nevertheless, continue with the procedure by inviting the suitable candidate or candidates to negotiate the terms of that contract;

| 3. | Council Directive 93/37, as amended by Directive 97/52, must be interpreted as meaning that the obligation to ensure that there is genuine competition is satisfied where the contracting authority has recourse to the negotiated procedure under the conditions referred to in Article 7(2) of that directive. |
| --- | --- |

3.

Council Directive 93/37, as amended by Directive 97/52, must be interpreted as meaning that the obligation to ensure that there is genuine competition is satisfied where the contracting authority has recourse to the negotiated procedure under the conditions referred to in Article 7(2) of that directive.

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(1)  OJ C 183, 19.07.2008.

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| 5.12.2009 | EN | Official Journal of the European Union | C 297/9 |
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Official Journal of the European Union

C 297/9

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Judgment of the Court (Third Chamber) of 15 October 2009 (reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Sicilia (Italy)) — Acoset SpA v Conferenza Sindaci e Presidenza Prov. Reg. ATO Idrico Ragusa, Comune di Comiso (RG), Comune di Modica (RG), Provincia Regionale di Ragusa, Comune di Acate (RG), Comune di Chiaramonte Gulfi (RG), Comune di Giarratana (RG), Comune di Ispica (RG), Comune di Monterosso Almo (RG), Comune di Pozzallo (RG), Comune di Ragusa, Comune di Vittoria (RG), Comune di Santa Croce Camerina (RG), Comune di Scicli (RG)

(Case C-196/08) (1)

(Articles 43 EC, 49 EC and 86 EC - Award of public contracts - Award of water service to a semi-private company - Competitive procedure - Appointment of the private partner responsible for operating the service - Award made without regard to the rules governing the award of public contracts)

2009/C 297/07

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per la Sicilia

Parties to the main proceedings

Applicant: Acoset SpA

Defendants: Conferenza Sindaci e Presidenza Prov. Reg. ATO Idrico Ragusa, Comune di Comiso (RG), Comune di Modica (RG), Provincia Regionale di Ragusa, Comune di Acate (RG), Comune di Chiaramonte Gulfi (RG), Comune di Giarratana (RG), Comune di Ispica (RG), Comune di Monterosso Almo (RG), Comune di Pozzallo (RG), Comune di Ragusa, Comune di Vittoria (RG), Comune di Santa Croce Camerina (RG), Comune di Scicli (RG)

Intervening party: Saceccav Depurazioni Sacede SpA

Re:

Reference for a preliminary ruling — Tribunale Amministrativo Regionale per la Sicilia — Interpretation of Articles 43 EC, 49 EC and 86 EC — Award of water service to a semi-private company appointing, in accordance with a competitive procedure, a private partner to be responsible for operating the service — Award made without regard to the rules governing the award of public contracts

Operative part of the judgment

Articles 43 EC, 49 EC and 86 EC do not preclude the direct award of a public service which entails the prior execution of certain works, such as that at issue in the main proceedings, to a semi-public company formed specifically for the purpose of providing that service and possessing a single corporate purpose, the private participant in the company being selected by means of a public and open procedure after verification of the financial, technical, operational and management requirements specific to the service to be performed and of the characteristics of the tender with regard to the service to be delivered, provided that the tendering procedure in question is consistent with the principles of free competition, transparency and equal treatment laid down by the EC Treaty with regard to concessions.

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(1)  OJ C 197, 2.8.2008.

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| 5.12.2009 | EN | Official Journal of the European Union | C 297/10 |
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5.12.2009

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Official Journal of the European Union

C 297/10

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Judgment of the Court (Seventh Chamber) of 15 October 2009 — Commission of the European Communities v Kingdom of the Netherlands

(Case C-232/08) (1)

(Failure of a Member State to fulfil obligations - Regulation (EC) No 850/1998 - Article 29(2) - Restrictions on fishing for plaice - Maximum engine power of fishing vessels - Regulation (EEC) No 2847/93 - Article 2(1) - Regulation (EC) No 2371/2002 - Article 23 - Control, and enforcement of the rules)

2009/C 297/08

Language of the case: Dutch

Parties

Applicant: Commission of the European Communities (represented by: T. van Rijn and K. Banks, Agents)

Defendant: Kingdom of the Netherlands (represented by: M. de Grave and C. Wissels, Agents)

Re:

Failure of a Member State to fulfil obligations — Infringement of Article 29(2) of Council Regulation (EC) No 850/98 of 30 March 1998 for the conservation of fishery resources through technical measures for the protection of juveniles of marine organisms, Article 23 of Council Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy and Article 2(1) of Council Regulation (EEC) No 2847/93 of 12 October 1993 establishing a control system applicable to the common fisheries policy — Fishing for plaice — Inspection and control of fishing vessels and their activities — Responsibility of the Member States

Operative part of the judgment

The Court:

| 1. | Declares that, by allowing fishing vessels to have a higher engine power than permitted under Article 29(2) of Council Regulation (EC) No 850/98 of 30 March 1998 for the conservation of fishery resources through technical measures for the protection of juveniles of marine organisms, as amended by Council Regulation (EC) No 2166/2005 of 20 December 2005, the Kingdom of the Netherlands has failed to fulfil its obligations under Article 23 of Council Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy and Article 2(1) of Council Regulation (EEC) No 2847/93 of 12 October 1993 establishing a control system applicable to the common fisheries policy, as amended by Council Regulation (EC) No 768/2005 of 26 April 2005; |
| --- | --- |

1.

Declares that, by allowing fishing vessels to have a higher engine power than permitted under Article 29(2) of Council Regulation (EC) No 850/98 of 30 March 1998 for the conservation of fishery resources through technical measures for the protection of juveniles of marine organisms, as amended by Council Regulation (EC) No 2166/2005 of 20 December 2005, the Kingdom of the Netherlands has failed to fulfil its obligations under Article 23 of Council Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy and Article 2(1) of Council Regulation (EEC) No 2847/93 of 12 October 1993 establishing a control system applicable to the common fisheries policy, as amended by Council Regulation (EC) No 768/2005 of 26 April 2005;

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

2.

orders the Kingdom of the Netherlands to pay the costs.

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(1)  OJ C 209, 15.08.2008.

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| 5.12.2009 | EN | Official Journal of the European Union | C 297/10 |
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5.12.2009

EN

Official Journal of the European Union

C 297/10

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Judgment of the Court (Fourth Chamber) of 22 October 2009 (reference for a preliminary ruling from the Bundesfinanzhof (Germany)) — Swiss Re Germany Holding GmbH v Finanzamt München für Körperschaften

(Case C-242/08) (1)

(Sixth VAT Directive - Articles 9(2)(e), fifth indent, and 13B(a), (c) and (d)(2) and (3) - Insurance and reinsurance transactions - Concept - Transfer of a portfolio of life reinsurance contracts, for consideration, to a person established in a third country - Determination of the place of that transfer - Exemptions)

2009/C 297/09

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: Swiss Re Germany Holding GmbH

Defendant: Finanzamt München für Körperschaften

Re:

Reference for a preliminary ruling — Bundesfinanzhof — Interpretation of the fifth indent of Article 9(2)(e) and Article 13B(a), (c) and (d)(2) and (3) of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p.1) — Transfer, for remuneration payable by the purchaser established in a third country, of a portfolio of life insurance contracts authorised by the policyholders and involving the transfer of all the rights and obligations arising from the contracts transferred but not involving any transfer of other economic goods — Determination of the place of supply for tax purposes — Applicability to the abovementioned transaction of one of the exemptions contained in the abovementioned provisions of Article 13B of Directive 77/388/EEC

Operative part of the judgment

| 1. | A transfer for consideration, by a company established in one Member State, to an insurance company established in a third State, of a portfolio of life reinsurance contracts, with the consequence that the transferee company assumes, with the consent of the insured persons, all the rights and obligations resulting from those contracts, does not constitute either a transaction falling under Article 9(2)(e), fifth indent, and Article 13B(a) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, or a transaction falling under a combination of Article 13B(d)(2) and (3) thereof. |
| --- | --- |

1.

A transfer for consideration, by a company established in one Member State, to an insurance company established in a third State, of a portfolio of life reinsurance contracts, with the consequence that the transferee company assumes, with the consent of the insured persons, all the rights and obligations resulting from those contracts, does not constitute either a transaction falling under Article 9(2)(e), fifth indent, and Article 13B(a) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, or a transaction falling under a combination of Article 13B(d)(2) and (3) thereof.

| 2. | In the context of a transfer for consideration of a portfolio of 195 life reinsurance contracts, the fact that it is not the transferee but the transferor who pays the consideration, in the present case the fixing of a negative value, for the acquisition of 18 of those contracts, does not affect the answer to the first question. |
| --- | --- |

2.

In the context of a transfer for consideration of a portfolio of 195 life reinsurance contracts, the fact that it is not the transferee but the transferor who pays the consideration, in the present case the fixing of a negative value, for the acquisition of 18 of those contracts, does not affect the answer to the first question.

| 3. | Article 13B(c) of Sixth Directive 77/388/EC must be interpreted as meaning that it does not apply to a transfer for consideration of a portfolio of life reinsurance contracts such as that at issue in the main proceedings. |
| --- | --- |

3.

Article 13B(c) of Sixth Directive 77/388/EC must be interpreted as meaning that it does not apply to a transfer for consideration of a portfolio of life reinsurance contracts such as that at issue in the main proceedings.

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(1)  OJ C 223, 30.8.2008.

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| 5.12.2009 | EN | Official Journal of the European Union | C 297/11 |
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5.12.2009

EN

Official Journal of the European Union

C 297/11

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Judgment of the Court (Sixth Chamber) of 15 October 2009 — Commission of the European Communities v Kingdom of the Netherlands

(Case C-255/08) (1)

(Failure of a Member State to fulfil obligations - Directive 85/337/EEC - Assessment of the effects of certain public and private projects on the environment - Determination of thresholds - Size of the project - Incomplete transposition)

2009/C 297/10

Language of the case: Dutch

Parties

Applicant: Commission of the European Communities (represented by: M. van Beek and J.-B. Laignelot, Agents)

Defendant: Kingdom of the Netherlands (represented by: C.M. Wissels and M. Noort, Agents)

Re:

Failure of a Member State to fulfil obligations — Incorrect transposition of Article 4(2) and (3) in conjunction with Annexes II and III 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 Directives 97/11/EC and 2003/35 (OJ 1985 L 175, p. 40)

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to adopt all the provisions necessary to ensure that projects likely to have significant effects on the environment are made subject to a consent procedure and to an assessment of those effects, in accordance with Article 4(2) and (3) 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 Council Directive 97/11/EC of 3 March 1997 and by Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003, in conjunction with Annexes II and III to Directive 85/337, the Kingdom of the Netherlands has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that, by failing to adopt all the provisions necessary to ensure that projects likely to have significant effects on the environment are made subject to a consent procedure and to an assessment of those effects, in accordance with Article 4(2) and (3) 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 Council Directive 97/11/EC of 3 March 1997 and by Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003, in conjunction with Annexes II and III to Directive 85/337, the Kingdom of the Netherlands has failed to fulfil its obligations under that directive;

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

2.

orders the Kingdom of the Netherlands to pay the costs.

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(1)  OJ C 223, 30.08.2008.

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| 5.12.2009 | EN | Official Journal of the European Union | C 297/12 |
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5.12.2009

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Official Journal of the European Union

C 297/12

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Judgment of the Court (Third Chamber) of 22 October 2009 (references for preliminary rulings from the Tribunal Superior de Justicia de Murcia (Spain)) — María Julia Zurita García (C-261/08), Aurelio Choque Cabrera (C-348/08) v Delegación del Gobierno en Murcia

(Joined Cases C-261/08 and C-348/08) (1)

(Visas, asylum and immigration - Measures concerning the crossing of external borders - Article 62(1) and (2)(a) EC - Convention implementing the Schengen Agreement - Articles 6b and 23 - Regulation (EC) No 562/2006 - Articles 5, 11 and 13 - Presumption concerning the duration of the stay - Unlawful presence of third-country nationals in the territory of a Member State - National legislation allowing for either a fine or expulsion, depending on the circumstances)

2009/C 297/11

Language of the cases: Spanish

Referring court

Tribunal Superior de Justicia de Murcia

Parties to the main proceedings

Appellants: María Julia Zurita García (C-261/08), Aurelio Choque Cabrera (C-348/08)

Respondent: Delegación del Gobierno en Murcia

Re:

Reference for a preliminary ruling — Tribunal Superior de Justicia de Murcia — Interpretation of Article 62(1) and (2)(a) EC and Articles 5, 11 and 13 of Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ 2006 L 105, p. 1) — National rules allowing the penalty of expulsion to be replaced by the payment of a fine

Operative part of the judgment

Articles 6b and 23 of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, signed at Schengen on 19 June 1990, as amended by Council Regulation (EC) No 2133/2004 of 13 December 2004 on the requirement for the competent authorities of the Member States to stamp systematically the travel documents of third-country nationals when they cross the external borders of the Member States and amending the provisions of the Convention implementing the Schengen agreement and the common manual to this end, and Article 11 of Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), must be interpreted as meaning that, where a third-country national is unlawfully present on the territory of a Member State because he or she does not fulfil, or no longer fulfils, the conditions of duration of stay applicable there, that Member State is not obliged to adopt a decision to expel that person.

---

(1)  OJ C 209, 15.8.2008.

OJ C 260, 11.10.2008.

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| 5.12.2009 | EN | Official Journal of the European Union | C 297/12 |
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5.12.2009

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Official Journal of the European Union

C 297/12

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Judgment of the Court (Second Chamber) of 15 October 2009 (reference for a preliminary ruling from the Högsta domstolen — Sweden) — Djurgården-Lilla Värtans Miljöskyddsförening v Stockholms kommun genom dess marknämnd

(Case C-263/08) (1)

(Directive 85/337/EEC - Public participation in environmental decision-making procedures - Right of access to a review procedure to challenge decisions authorising projects likely to have significant effects on the environment)

2009/C 297/12

Language of the case: Swedish

Referring court

Högsta domstolen

Parties to the main proceedings

Applicant: Djurgården-Lilla Värtans Miljöskyddsförening

Defendant: Stockholms kommun genom dess marknämnd

Re:

Reference for a preliminary ruling — Högsta domstolen — Interpretation of Articles 1(2), 6(4) and 10a and of point 10 of Annex II to Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40), as amended by Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 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 2003 L 156, p. 17) — Local non-profit-making association which participated in the preliminary planning consent proceedings for a project which may have significant effects on the environment — National legislation making the right of non-profit-making associations to appeal against planning consent decisions for such projects subject to the conditions that an association’s purpose under its statutes is environmental protection, that it has been active for at least three years and that it has at least 2 000 members

Operative part of the judgment

| 1. | A project such as that at issue in the main proceedings, concerning abstraction of water leaking into a tunnel which houses electric cables and its recharging into the ground or rock in order to compensate for any reduction in the amount of groundwater, and the construction and maintenance of facilities for the abstraction and recharging, are covered by point 10(l) in Annex II to 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, irrespective of the ultimate destination of the groundwater and, in particular, of whether or not it is put to a subsequent use. |
| --- | --- |

1.

A project such as that at issue in the main proceedings, concerning abstraction of water leaking into a tunnel which houses electric cables and its recharging into the ground or rock in order to compensate for any reduction in the amount of groundwater, and the construction and maintenance of facilities for the abstraction and recharging, are covered by point 10(l) in Annex II to 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, irrespective of the ultimate destination of the groundwater and, in particular, of whether or not it is put to a subsequent use.

| 2. | Members of the ‘public concerned’ within the meaning of Article 1(2) and 10a of Directive 85/337, as amended by Directive 2003/35, must be able to have access to a review procedure to challenge the decision by which a body attached to a court of law of a Member State has given a ruling on a request for development consent, regardless of the role they might have played in the examination of that request by taking part in the procedure before that body and by expressing their views. |
| --- | --- |

2.

Members of the ‘public concerned’ within the meaning of Article 1(2) and 10a of Directive 85/337, as amended by Directive 2003/35, must be able to have access to a review procedure to challenge the decision by which a body attached to a court of law of a Member State has given a ruling on a request for development consent, regardless of the role they might have played in the examination of that request by taking part in the procedure before that body and by expressing their views.

| 3. | Article 10a of Directive 85/337, as amended by Directive 2003/35, precludes a provision of national law which reserves the right to bring an appeal against a decision on projects which fall within the scope of that directive, as amended, solely to environmental protection associations which have at least 2 000 members. |
| --- | --- |

3.

Article 10a of Directive 85/337, as amended by Directive 2003/35, precludes a provision of national law which reserves the right to bring an appeal against a decision on projects which fall within the scope of that directive, as amended, solely to environmental protection associations which have at least 2 000 members.

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(1)  OJ C 209,15.08.2008.

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| 5.12.2009 | EN | Official Journal of the European Union | C 297/13 |
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5.12.2009

EN

Official Journal of the European Union

C 297/13

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Judgment of the Court (Fourth Chamber) of 15 October 2009 — Commission of the European Communities v Federal Republic of Germany

(Case C-275/08) (1)

(Failure of a Member State to fulfil obligations - Directive 93/36/EEC - Public supply contracts - Supply of software designed for motor vehicle registration - Negotiated procedure without prior publication of a contract notice)

2009/C 297/13

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: G. Wilms and D. Kukovec, Agents)

Defendant: Federal Republic of Germany (represented by: M. Lumma and N. Graf Vitzthum, Agents)

Re:

Failure of a Member State to fulfil obligations — Breach of Article 6, in conjunction with Article 9, of Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts (OJ 1993 L 199, p. 1) — Contract for the supply of a software application designed for motor vehicle registration concluded without contracting procedures between two bodies governed by public law responsible for data-processing on behalf of local authorities

Operative part of the judgment

The Court:

| 1. | Declares that, by reason of the fact that the Datenzentrale Baden-Württemberg (Central Data Office of Baden-Württemberg) awarded a contract for the supply of software designed for motor vehicle registration by a negotiated procedure without publication of a contract notice, the Federal Republic of Germany has failed to fulfil its obligations under Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts; |
| --- | --- |

1.

Declares that, by reason of the fact that the Datenzentrale Baden-Württemberg (Central Data Office of Baden-Württemberg) awarded a contract for the supply of software designed for motor vehicle registration by a negotiated procedure without publication of a contract notice, the Federal Republic of Germany has failed to fulfil its obligations under Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts;

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

2.

orders the Federal Republic of Germany to pay the costs.

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(1)  OJ C 223, 30.08.2008.

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| 5.12.2009 | EN | Official Journal of the European Union | C 297/13 |
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5.12.2009

EN

Official Journal of the European Union

C 297/13

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Judgment of the Court (Fourth Chamber) of 22 October 2009 (reference for a preliminary ruling from the Cour de cassation (Luxembourg)) — Irène Bogiatzi, married name Ventouras v Deutscher Luftpool, Société Luxair, société luxembourgeoise de navigation aérienne SA, European Communities, Grand Duchy of Luxembourg, Foyer Assurances SA

(Case C-301/08) (1)

(Transport policy - Regulation (EC) No 2027/97 - Warsaw Convention - Air carrier liability in the event of accidents - Time-limit for bringing an action for damages in respect of harm suffered)

2009/C 297/14

Language of the case: French

Referring court

Cour de cassation

Parties to the main proceedings

Applicant: Irène Bogiatzi, married name Ventouras

Defendants: Deutscher Luftpool, Société Luxair, société luxembourgeoise de navigation aérienne SA, European Communities, Grand Duchy of Luxembourg, Foyer Assurances SA

Re:

Reference for a preliminary ruling — Court of Cassation (Luxembourg) — Interpretation of Article 5(1) and (3) of Council Regulation (EC) No 2027/97 of 9 October 1997 on air carrier liability in the event of accidents (OJ 1997 L 285, p. 1), in relation to Article 29 of the Convention for the Unification of Certain Rules Relating to International Carriage by Air, Signed at Warsaw on 12 October 1929, as amended at The Hague on 28 September 1955 — Time-limit for bringing an action for compensation for damage suffered — Effect of an advance payment by the carrier, even if without the temporal framework provided for by the regulation, on the recognition of that carrier’s liability

Operative part of the judgment

| 1. | The Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw on 12 October 1929, as amended by the four additional protocols signed at Montreal on 25 September 1975, does not form part of the rules of the Community legal order which the Court of Justice has jurisdiction to interpret under Article 234 EC. |
| --- | --- |

1.

The Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw on 12 October 1929, as amended by the four additional protocols signed at Montreal on 25 September 1975, does not form part of the rules of the Community legal order which the Court of Justice has jurisdiction to interpret under Article 234 EC.

| 2. | Council Regulation (EC) No 2027/97 of 9 October 1997 on air carrier liability in the event of accidents must be interpreted as not precluding the application of Article 29 of the Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw on 12 October 1929, as amended by the four additional protocols signed at Montreal on 25 September 1975, to a situation in which a passenger seeks to establish the liability of the air carrier on account of harm suffered by him when flying between Member States of the European Community. |
| --- | --- |

2.

Council Regulation (EC) No 2027/97 of 9 October 1997 on air carrier liability in the event of accidents must be interpreted as not precluding the application of Article 29 of the Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw on 12 October 1929, as amended by the four additional protocols signed at Montreal on 25 September 1975, to a situation in which a passenger seeks to establish the liability of the air carrier on account of harm suffered by him when flying between Member States of the European Community.

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(1)  OJ C 236, 13.9.2008.

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| 5.12.2009 | EN | Official Journal of the European Union | C 297/14 |
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5.12.2009

EN

Official Journal of the European Union

C 297/14

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Judgment of the Court (First Chamber) of 15 October 2009 (reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands)) — Makro Zelfbedieningsgroothandel C.V., Metro Cash & Carry B.V., Remo Zaandam B.V. v Diesel S.P.A.

(Case C-324/08) (1)

(Directive 89/104/EEC - Trade-mark law - Exhaustion of trade mark proprietor’s rights - Placing of goods on the market in the European Economic Area by a third party - Implied consent - Conditions)

2009/C 297/15

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicants: Makro Zelfbedieningsgroothandel C.V., Metro Cash & Carry B.V., Remo Zaandam B.V.

Defendant: Diesel S.P.A.

Re:

Reference for a preliminary ruling — Hoge Raad der Nederlanden Den Haag — Interpretation of Article 7(1) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1) — Exhaustion of the right conferred by the mark — Product placed on the market in the Community or the EEA by the trade mark proprietor or with his consent — Implied consent — Conditions

Operative part of the judgment

Article 7(1) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks, as amended by the Agreement on the European Economic Area of 2 May 1992, must be interpreted as meaning that the consent of the proprietor of a trade mark to the marketing of goods bearing that mark carried out directly in the European Economic Area by a third party who has no economic link to that proprietor may be implied, in so far as such consent is to be inferred from facts and circumstances prior to, simultaneous with or subsequent to the placing of the goods on the market in that area which, in the view of the national court, unequivocally demonstrate that the proprietor has renounced his exclusive rights.

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(1)  OJ C 272, 25.10.2008.

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| 5.12.2009 | EN | Official Journal of the European Union | C 297/14 |
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5.12.2009

EN

Official Journal of the European Union

C 297/14

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Judgment of the Court (Second Chamber) of 15 October 2009 (reference for a preliminary ruling from the Conseil d’État (Belgium)) — Enviro Tech (Europe) Ltd v État belge

(Case C-425/08) (1)

(Environment and consumer protection - Classification, packaging and labelling of n-propyl bromide as a dangerous substance - Directive 2004/73/EC - Directive 67/548/EEC - Duty to transpose)

2009/C 297/16

Language of the case: French

Referring court

Conseil d’État

Parties to the main proceedings

Applicant: Enviro Tech (Europe) Ltd

Defendant: État belge

Re:

Reference for a preliminary ruling — Conseil d’État (Belgium) — Validity, in the light of Framework Council Directive 67/548/EEC of 27 June 1967 on the approximation of laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances (OJ, English Special Edition 1967, p. 234), in particular Annex V (point A.9) and Annex VI (point 4.2.3) thereto, of Commission Directive 2004/73/EC of 29 April 2004 adapting to technical progress for the twenty-ninth time Framework Directive 67/548/EEC (OJ 2004 L 152, p. 1) — National provisions unlawful on the ground that they transpose a directive presumed to be contrary to the framework directive — Classification of the substance called n-propyl bromide as a highly flammable and toxic substance.

Operative part of the judgment

Examination of the questions referred has shown no factor capable of affecting the validity of Directive 2004/73/EC of 29 April 2004 adapting to technical progress for the 29th time Council Directive 67/548/EEC of 27 June 1967 on the approximation of the laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances, in that it classifies n-propyl bromide as a highly flammable substance (R11) and toxic for reproduction in category 2 (R60).

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(1)  OJ C 327, 20.10.2008.

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| 5.12.2009 | EN | Official Journal of the European Union | C 297/15 |
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5.12.2009

EN

Official Journal of the European Union

C 297/15

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Judgment of the Court (Fourth Chamber) of 22 October 2009 — Commission of the European Communities v Republic of Portugal

(Case C-438/08) (1)

(Failure of a Member State to fulfil obligations - Freedom of establishment - Directive 96/96/EC - National legislation - Restrictive conditions for access to the activity of vehicle inspection - Article 45 EC - Activities connected with the exercise of official authority - Road safety - Proportionality)

2009/C 297/17

Language of the case: Portuguese

Parties

Applicant: Commission of the European Communities (represented by: E. Traversa and M. Teles Romão, acting as Agents)

Defendant: Republic of Portugal (represented by: L. Fernandes and A. Pereira de Miranda, acting as Agents)

Re:

Failure of a Member State to fulfil obligations — Infringement of Article 43 EC — Legislation imposing restrictions on the freedom of establishment of entities wishing to carry on vehicle inspection activity in Portugal

Operative part of the judgment

The Court:

| 1. | Declares that, by imposing restrictions on the freedom of establishment of bodies of other Member States intending to carry on in Portugal the activity of vehicle inspection, namely, the making of the grant of authorisations subject to the public interest, the requirement of a minimum share capital of EUR 100 000, the limiting of the undertakings’ company objects and the imposition of incompatibility rules on members, managers and directors, the Portuguese Republic has failed to fulfil its obligations under Article 43 EC; |
| --- | --- |

1.

Declares that, by imposing restrictions on the freedom of establishment of bodies of other Member States intending to carry on in Portugal the activity of vehicle inspection, namely, the making of the grant of authorisations subject to the public interest, the requirement of a minimum share capital of EUR 100 000, the limiting of the undertakings’ company objects and the imposition of incompatibility rules on members, managers and directors, the Portuguese Republic has failed to fulfil its obligations under Article 43 EC;

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

2.

Orders the Portuguese Republic to pay the costs.

---

(1)  OJ C 313, 6.12.2008.

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| 5.12.2009 | EN | Official Journal of the European Union | C 297/15 |
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5.12.2009

EN

Official Journal of the European Union

C 297/15

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Judgment of the Court (Fifth Chamber) of 22 October 2009 (reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven (Netherlands)) — G. Elbertsen v Minister van Landbouw, Natuur en Voedselkwaliteit

(Case C-449/08) (1)

(Common agricultural policy - Integrated administration and control system for certain aid schemes - Regulation (EC) No 1782/2003 - Single payment scheme - Establishment of the reference amount - Farmers in a special situation - National reserve)

2009/C 297/18

Language of the case: Dutch

Referring court

College van Beroep voor het bedrijfsleven

Parties to the main proceedings

Applicant: G. Elbertsen

Defendant: Minister van Landbouw, Natuur en Voedselkwaliteit

Re:

Reference for a preliminary ruling — College van Beroep voor het bedrijfsleven — Interpretation of Article 42(4) of Council Regulation (EC) No 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers and amending Regulations (EEC) No 2019/93, (EC) No 1452/2001, (EC) No 1453/2001, (EC) No 1454/2001, (EC) No 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, (EC) No 1673/2000, (EEC) No 2358/71 and (EC) No 2529/2001 (OJ 2003 L 270, p. 1) and of Article 21 of Commission Regulation (EC) No 795/2004 of 21 April 2004 laying down detailed rules for the implementation of the single payment scheme provided for in Council Regulation (EC) No 1782/2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers (OJ 2004 L 141, p. 1) — Integrated administration and control system for certain aid schemes — Single payment scheme — Establishment of the reference amount — Entitlement to payment not granted in certain situations

Operative part of the judgment

| 1. | Article 42(4) of Council Regulation (EC) No 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers and amending Regulations (EEC) No 2019/93, (EC) No 1452/2001, (EC) No 1453/2001, (EC) No 1454/2001, (EC) No 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, (EC) No 1673/2000, (EEC) No 2358/71 and (EC) No 2529/2001 must be interpreted as giving the Member States such discretion as to permit them to establish a reference amount of EUR 0 and not to allocate any payment entitlements from the national reserve to a farmer who finds himself in a special situation as described in Article 21 of Commission Regulation (EC) No 795/2004 of 21 April 2004 laying down detailed rules for the implementation of the single payment scheme provided for in Regulation No 1782/2003, as amended by Commission Regulation (EC) No 1974/2004 of 29 October 2004, provided that that amount is based on objective criteria, does not prejudice the equal treatment of farmers and does not create market or competition distortions. |
| --- | --- |

1.

Article 42(4) of Council Regulation (EC) No 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers and amending Regulations (EEC) No 2019/93, (EC) No 1452/2001, (EC) No 1453/2001, (EC) No 1454/2001, (EC) No 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, (EC) No 1673/2000, (EEC) No 2358/71 and (EC) No 2529/2001 must be interpreted as giving the Member States such discretion as to permit them to establish a reference amount of EUR 0 and not to allocate any payment entitlements from the national reserve to a farmer who finds himself in a special situation as described in Article 21 of Commission Regulation (EC) No 795/2004 of 21 April 2004 laying down detailed rules for the implementation of the single payment scheme provided for in Regulation No 1782/2003, as amended by Commission Regulation (EC) No 1974/2004 of 29 October 2004, provided that that amount is based on objective criteria, does not prejudice the equal treatment of farmers and does not create market or competition distortions.

| 2. | Community law does not preclude the application of a national provision under which any increase in the amount of additional payments arising as a result of an investment in production capacity or a purchase of land is subject to a deduction of EUR 500 before a reference amount is established as the basis for the allocation of entitlements to payments from the national reserve. |
| --- | --- |

2.

Community law does not preclude the application of a national provision under which any increase in the amount of additional payments arising as a result of an investment in production capacity or a purchase of land is subject to a deduction of EUR 500 before a reference amount is established as the basis for the allocation of entitlements to payments from the national reserve.

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(1)  OJ C 6, 10.1.2009.

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| 5.12.2009 | EN | Official Journal of the European Union | C 297/16 |
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5.12.2009

EN

Official Journal of the European Union

C 297/16

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Judgment of the Court (Sixth Chamber) of 15 October 2009 — Commission of the European Communities v Portuguese Republic

(Case C-30/09) (1)

(Failure of a Member State to fulfil obligations - Directive 96/82/EC - Article 11 - External emergency plans)

2009/C 297/19

Language of the case: Portuguese

Parties

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

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

Re:

Failure of a Member State to fulfil obligations — Infringement of Article 11 of Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances (OJ 1997 L 10, p. 13), as amended by Directive 2003/105/EC of the European Parliament and of the Council (OJ 2003 L 345, p. 97) — Failure to draw up external emergency plans for certain establishments

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to ensure the implementation of the measures provided for under Article 11 of Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances, as amended by Directive 2003/105/EC of the European Parliament and of the Council of 16 December 2003, the Portuguese Republic has failed to fulfil its obligations under that article; |
| --- | --- |

1.

Declares that, by failing to ensure the implementation of the measures provided for under Article 11 of Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances, as amended by Directive 2003/105/EC of the European Parliament and of the Council of 16 December 2003, the Portuguese Republic has failed to fulfil its obligations under that article;

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

2.

orders the Portuguese Republic to pay the costs.

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(1)  OJ C 82, 04.04.2009.

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| 5.12.2009 | EN | Official Journal of the European Union | C 297/16 |
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5.12.2009

EN

Official Journal of the European Union

C 297/16

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Reference for a preliminary ruling from the Sofiyski gradski sad (Bulgaria) lodged on 19 May 2009 — Canon Kabushiki Kaisha v IPN Bulgaria OOD

(Case C-181/09)

2009/C 297/20

Language of the case: Bulgarian

Referring court

Sofiyski gradski sad (Bulgaria)

Parties to the main proceedings

Applicant: Canon Kabushiki Kaisha

Defendant: IPN Bulgaria OOD

By decision of 17 September 2009, the Court of Justice (Fifth Chamber) declared the reference for a preliminary ruling to be manifestly inadmissible.

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| 5.12.2009 | EN | Official Journal of the European Union | C 297/17 |
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5.12.2009

EN

Official Journal of the European Union

C 297/17

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Action brought on 14 August 2009 — Commission of the European Communities v Republic of Estonia

(Case C-328/09)

2009/C 297/21

Language of the case: Estonian

Parties

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

Defendant: Republic of Estonia

Form of order sought

| — | declare that, by failing to adopt all the necessary laws, regulations and administrative provisions for fully transposing Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services, (1) or in any event by failing to notify the Commission of the adoption of the necessary provisions for fully transposing the directive, the Republic of Estonia has failed to fulfil its obligations under Article 17 of the directive; |
| --- | --- |

—

declare that, by failing to adopt all the necessary laws, regulations and administrative provisions for fully transposing Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services, (1) or in any event by failing to notify the Commission of the adoption of the necessary provisions for fully transposing the directive, the Republic of Estonia has failed to fulfil its obligations under Article 17 of the directive;

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

—

order the Republic of Estonia to pay the costs.

Pleas in law and main arguments

The period for transposing the directive into national law expired on 21 December 2007.

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(1)  OJ 2004 L 373, p. 37.

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| 5.12.2009 | EN | Official Journal of the European Union | C 297/17 |
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5.12.2009

EN

Official Journal of the European Union

C 297/17

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Appeal brought on 7 September 2009 by DSV Road NV against the judgment of the Court of First Instance (Fourth Chamber) of 8 July 2009 in Case T-219/07 DSV Road NV v Commission

(Case C-358/09 P)

2009/C 297/22

Language of the case: Dutch

Parties

Appellant: DSV Road NV (represented by: A. Poelmans and G. Preckler, advocaten)

Other party to the proceedings: Commission of the European Communities

Form of order sought

| — | Declare the appellant’s appeal admissible and well founded; |
| --- | --- |

—

Declare the appellant’s appeal admissible and well founded;

| — | Set aside in full the judgment of the Court of First Instance of 8 July 2008 in Case T-219/07; |
| --- | --- |

—

Set aside in full the judgment of the Court of First Instance of 8 July 2008 in Case T-219/07;

| — | And in so far as, in the event of setting aside the judgment, the Court decides to rule in the case itself:
  Annul the Decision of the Commission of the European Communities of 24 April 2007 concerning the request of the Kingdom of Belgium, notified under REC 05/02, C (2007) 1776, which found that the import duties of EUR 168 004,65 which were the subject of the Kingdom of Belgium’s request of 12 August 2002 had to be recovered, and that there was no justification for remission of the import duties of EUR 168 004,65 which were the subject of the Kingdom of Belgium’s request of 12 August 2002. |
| --- | --- |

—

And in so far as, in the event of setting aside the judgment, the Court decides to rule in the case itself:

Annul the Decision of the Commission of the European Communities of 24 April 2007 concerning the request of the Kingdom of Belgium, notified under REC 05/02, C (2007) 1776, which found that the import duties of EUR 168 004,65 which were the subject of the Kingdom of Belgium’s request of 12 August 2002 had to be recovered, and that there was no justification for remission of the import duties of EUR 168 004,65 which were the subject of the Kingdom of Belgium’s request of 12 August 2002.

Pleas in law and main arguments

| 1. | With regard to Article 220(2)(b) of the Customs Code (1)

  First ground of appeal: When applying Article 220(2)(b) of the Customs Code, the Court of First Instance failed to take account of the interpretation of that article by the Court of Justice in its judgment of 9 March 2006, (2) in particular with regard to the substance of the burden of proving that incorrect certificates had been issued because of an incorrect account of the facts by the exporter, a burden which, according to that judgment, is not only unequivocally that of the customs authority seeking recovery but must also be satisfied by means of objective, original documentary evidence.
  The Court of First Instance thereby misapplied Article 220(2)(b) of the Customs Code and thus misapplied, and therefore infringed, Community law.
  Second ground of appeal: The Court of First Instance, when appraising the evidence submitted to it, misconstrued that evidence in all respects, as that evidence does not satisfy the requirements of Article 220(2)(b) of the Customs Code, as interpreted and clarified by the Court of Justice in its judgment of 9 March 2006. (3)

  The Court of First Instance thereby erred in law in its characterisation of the evidence and therefore infringed Community law. (4)

  Moreover, when appraising the evidence, the Court of First Instance did not rule coherently, but inconsistently in that, on the one hand, it regarded that evidence as sufficient to satisfy the Commission’s burden of proving that incorrect certificates had been issued because of an incorrect account of the facts by the exporter but, on the other hand, in regard to the same rules, rejected it as insufficient to satisfy the proof required of the appellant that the Thai customs authorities knew, or at least reasonably ought to have known, that the goods were not eligible for preferential treatment.
  The Court of Justice should rule that the errors of the Court of First Instance when considering and appraising the documents adduced as evidence constitute a failure to state reasons. (5) |
| --- | --- |

1.

With regard to Article 220(2)(b) of the Customs Code (1)

First ground of appeal: When applying Article 220(2)(b) of the Customs Code, the Court of First Instance failed to take account of the interpretation of that article by the Court of Justice in its judgment of 9 March 2006, (2) in particular with regard to the substance of the burden of proving that incorrect certificates had been issued because of an incorrect account of the facts by the exporter, a burden which, according to that judgment, is not only unequivocally that of the customs authority seeking recovery but must also be satisfied by means of objective, original documentary evidence.

The Court of First Instance thereby misapplied Article 220(2)(b) of the Customs Code and thus misapplied, and therefore infringed, Community law.

Second ground of appeal: The Court of First Instance, when appraising the evidence submitted to it, misconstrued that evidence in all respects, as that evidence does not satisfy the requirements of Article 220(2)(b) of the Customs Code, as interpreted and clarified by the Court of Justice in its judgment of 9 March 2006. (3)

The Court of First Instance thereby erred in law in its characterisation of the evidence and therefore infringed Community law. (4)

Moreover, when appraising the evidence, the Court of First Instance did not rule coherently, but inconsistently in that, on the one hand, it regarded that evidence as sufficient to satisfy the Commission’s burden of proving that incorrect certificates had been issued because of an incorrect account of the facts by the exporter but, on the other hand, in regard to the same rules, rejected it as insufficient to satisfy the proof required of the appellant that the Thai customs authorities knew, or at least reasonably ought to have known, that the goods were not eligible for preferential treatment.

The Court of Justice should rule that the errors of the Court of First Instance when considering and appraising the documents adduced as evidence constitute a failure to state reasons. (5)

| 2. | With regard to Article 239 of the Customs Code
  Sole ground of appeal: On the basis of a misapplication of Article 220(2)(b) of the Customs Code and/or the errors in appraising the documents submitted as evidence, the Court of First Instance wrongly held that the circumstances in which the appellant finds itself is not a special situation for the purposes of Article 239 of the Customs Code. |
| --- | --- |

2.

With regard to Article 239 of the Customs Code

Sole ground of appeal: On the basis of a misapplication of Article 220(2)(b) of the Customs Code and/or the errors in appraising the documents submitted as evidence, the Court of First Instance wrongly held that the circumstances in which the appellant finds itself is not a special situation for the purposes of Article 239 of the Customs Code.

---

(1)  Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p.1).

(2)  Case C-293/04 Beemsterboer [2006] ECR I-2263.

(3)  Ibid.

(4)  Order in Case C-325/94 P An Taisce and WWF UK v Commission [1996] ECR I-3739, paras. 28 and 30.

(5)  Case C-32/95 P Commission v Lisrestal and Others [1996] ECR I-5399, para 40.

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| 5.12.2009 | EN | Official Journal of the European Union | C 297/18 |
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Reference for a preliminary ruling from the Amtsgericht Bonn (Germany) lodged on 9 September 2009 — Pfleiderer AG v Bundeskartellamt

(Case C-360/09)

2009/C 297/23

Language of the case: German

Referring court

Amtsgericht Bonn

Parties to the main proceedings

Applicant: Pfleiderer AG

Defendant: Bundeskartellamt

Question referred

Are the provisions of Community competition law — in particular Articles 11 and 12 of Regulation No 1/2003 (1) and the second paragraph of Article 10 EC, in conjunction with Article 3(1)(g) EC — to be interpreted as meaning that parties adversely affected by a cartel may not, for the purpose of bringing civil-law claims, be given access to leniency applications or to information and documents voluntarily provided in that connection by applicants for leniency which the national competition authority of a Member State has received, pursuant to a national leniency programme, within the framework of proceedings for the imposition of fines which are (also) intended to enforce Article 81 EC?

---

(1)  OJ 2003 L 1, p. 1.

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| 5.12.2009 | EN | Official Journal of the European Union | C 297/18 |
| --- | --- | --- | --- |

5.12.2009

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Official Journal of the European Union

C 297/18

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Reference for a preliminary ruling from the Hof van beroep te Antwerpen (Belgium) of 8 September 2009 — Belgisch Interventie- en Restitutiebureau v SGS Belgium NV, Firme Derwa NV and Centraal Beheer Achmea NV

(Case C-367/09)

2009/C 297/24

Language of the case: Dutch

Referring court

Hof van beroep te Antwerpen

Parties to the main proceedings

| Appellant | : | Belgisch Interventie- en Restitutiebureau |
| --- | --- | --- |
| Respondents | : | | SGS Belgium NV |

Appellant

:

Belgisch Interventie- en Restitutiebureau

Respondents

:

SGS Belgium NV

| | Firme Derwa NV |
| --- | --- |

Firme Derwa NV

| | Centraal Beheer Achmea NV |
| --- | --- |

Centraal Beheer Achmea NV

Questions referred

| 1. | Do the provisions of Articles 5 and 7 of Council Regulation (EC, Euratom) No 2988/95 (1) of 18 December 1995 on the protection of the European Communities’ financial interests have direct effect in the national legal orders of the Member States without any discretion on the part of those Member States and without the national authorities being required to adopt any measures for their implementation? |
| --- | --- |

1.

Do the provisions of Articles 5 and 7 of Council Regulation (EC, Euratom) No 2988/95 (1) of 18 December 1995 on the protection of the European Communities’ financial interests have direct effect in the national legal orders of the Member States without any discretion on the part of those Member States and without the national authorities being required to adopt any measures for their implementation?

| 2. | Can an international control and supervisory agency approved by the Member State in which the export declaration was accepted — in this case, Belgium — which has submitted a false certificate of unloading within the meaning of Article 18(2)(c) of Regulation (EEC) No 3665/87 (2) be deemed to be an economic operator within the meaning of Article 1 of Regulation No 2988/95, or a person who has taken part in the irregularity or is under a duty to take responsibility for the irregularity or to ensure that it is not committed, within the meaning of Article 7 of Regulation No 2988/95? |
| --- | --- |

2.

Can an international control and supervisory agency approved by the Member State in which the export declaration was accepted — in this case, Belgium — which has submitted a false certificate of unloading within the meaning of Article 18(2)(c) of Regulation (EEC) No 3665/87 (2) be deemed to be an economic operator within the meaning of Article 1 of Regulation No 2988/95, or a person who has taken part in the irregularity or is under a duty to take responsibility for the irregularity or to ensure that it is not committed, within the meaning of Article 7 of Regulation No 2988/95?

| 3. | Can a communication derived from an investigative report drawn up by the Economic Inspection Board, or a letter requesting the production of additional documents as evidence of the release for consumption, or a registered letter imposing a sanction, be deemed to be investigation or legal proceedings within the meaning of the third subparagraph of Article 3(1) of Regulation No 2988/95? |
| --- | --- |

3.

Can a communication derived from an investigative report drawn up by the Economic Inspection Board, or a letter requesting the production of additional documents as evidence of the release for consumption, or a registered letter imposing a sanction, be deemed to be investigation or legal proceedings within the meaning of the third subparagraph of Article 3(1) of Regulation No 2988/95?

---

(1)  OJ 1995 L 312, p. 1.

(2)  Commission Regulation (EEC) No 3665/87 of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products.

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| 5.12.2009 | EN | Official Journal of the European Union | C 297/19 |
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5.12.2009

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Official Journal of the European Union

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Reference for a preliminary ruling from the Sąd Najwyższy (Republic of Poland), lodged on 23 September 2009 — Prezes Urzędu Ochrony Konkurencji i Konsumentów v Tele2 Polska sp. z o.o., now Netia S.A.

(Case C-375/09)

2009/C 297/25

Language of the case: Polish

Referring court

Sąd Najwyższy

Parties to the main proceedings

Appellant: Prezes Urzędu Ochrony Konkurencji i Konsumentów

Respondent: Tele2 Polska sp. z o.o., now Netia S.A.

Questions referred

| 1. | Is Article 5 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (1) to be interpreted as meaning that a national competition authority cannot take a decision stating that a practice does not restrict competition within the meaning of Article 82 EC in a case in which it has found, after conducting proceedings, that the undertaking did not breach the prohibition of abuse of a dominant position under that Treaty provision? |
| --- | --- |

1.

Is Article 5 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (1) to be interpreted as meaning that a national competition authority cannot take a decision stating that a practice does not restrict competition within the meaning of Article 82 EC in a case in which it has found, after conducting proceedings, that the undertaking did not breach the prohibition of abuse of a dominant position under that Treaty provision?

| 2. | If the answer to the first question is in the affirmative: in a situation in which, under national competition law — if it should be established that the practice of an undertaking does not infringe the prohibition in Article 82 EC — a national competition authority may bring cartel proceedings to an end only by taking a decision which states that the practice does not restrict competition, is the third sentence of Article 5 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty to be interpreted as constituting a direct legal basis for that authority to ‘decide that there are no grounds for action on [its] part’? |
| --- | --- |

2.

If the answer to the first question is in the affirmative: in a situation in which, under national competition law — if it should be established that the practice of an undertaking does not infringe the prohibition in Article 82 EC — a national competition authority may bring cartel proceedings to an end only by taking a decision which states that the practice does not restrict competition, is the third sentence of Article 5 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty to be interpreted as constituting a direct legal basis for that authority to ‘decide that there are no grounds for action on [its] part’?

---

(1)  OJ 2003 L 1, p. 1.

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| 5.12.2009 | EN | Official Journal of the European Union | C 297/19 |
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Reference for a preliminary ruling from the Augstākās tiesas Senāta Administratīvo lietu departaments lodged on 28 September 2009 — Stils Met SIA v Valsts ieņēmumu dienests

(Case C-382/09)

2009/C 297/26

Language of the case: Latvian

Referring court

Augstākās tiesas Senāta Administratīvo lietu departaments

Parties to the main proceedings

Applicant: Stils Met SIA

Defendant: Valsts ieņēmumu dienests

Questions referred

| 1. | Are TARIC codes 7312108219, 7312108419 and 7312108619 to be interpreted as meaning that, in 2004 and 2005, steel articles –ropes and cables not coated or only plated or coated with zinc– and, in particular, alloy steel not consigned from Moldova or Morocco, ought to have been classified under these codes, depending on their cross-sectional dimensions, irrespective of their chemical composition (excluding stainless steel)? |
| --- | --- |

1.

Are TARIC codes 7312108219, 7312108419 and 7312108619 to be interpreted as meaning that, in 2004 and 2005, steel articles –ropes and cables not coated or only plated or coated with zinc– and, in particular, alloy steel not consigned from Moldova or Morocco, ought to have been classified under these codes, depending on their cross-sectional dimensions, irrespective of their chemical composition (excluding stainless steel)?

| 2. | Is Article 14(1) of Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community to be interpreted as precluding a penalty (fine) calculated on the amount of anti-dumping duties which is imposed on the basis of national legislation (Article 32(2) of the Law ‘Par nodokļiem un nodevām’) governing breaches of tax law? |
| --- | --- |

2.

Is Article 14(1) of Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community to be interpreted as precluding a penalty (fine) calculated on the amount of anti-dumping duties which is imposed on the basis of national legislation (Article 32(2) of the Law ‘Par nodokļiem un nodevām’) governing breaches of tax law?

---

Court of First Instance

| 5.12.2009 | EN | Official Journal of the European Union | C 297/20 |
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Judgment of the Court of First Instance of 28 October 2009 — Juwel Aquarium v OHIM — Potschak (Panorama)

(Case T-339/07) (1)

(Community trade mark - Invalidity proceedings - Community word mark Panorama - Absolute ground for refusal - Descriptive character - Article 7(1)(c) and Article 51(1)(a) of Regulation (EC) No 40/94 (now Article 7(1)(c) and Article 52(1)(a) of Regulation (EC) No 207/2009))

2009/C 297/27

Language of the case: German

Parties

Applicant: Juwel Aquarium GmbH & Co. KG (Rotenburg, Germany) (represented by: P. Mes, C. Graf von der Groeben, G. Rother, J. Bühling, A. Verhauwen, J. Künzel, D. Jestaedt and M. Bergermann, 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, intervener before the Court of First Instance: Christian Potschak (Bobingen, Germany) (represented by: D. Donath, lawyer)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 28 June 2007 (Case R 214/2006-1) relating to invalidity proceedings between Christian Potschak and Juwel Aquarium GmbH & Co. KG.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Juwel Aquarium GmbH & Co. KG to pay the costs. |
| --- | --- |

2.

Orders Juwel Aquarium GmbH & Co. KG to pay the costs.

---

(1)  OJ C 269, 10.11.2007.

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| 5.12.2009 | EN | Official Journal of the European Union | C 297/20 |
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5.12.2009

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Official Journal of the European Union

C 297/20

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Judgment of the Court of First Instance of 28 October 2009 — CureVac v OHIM — Qiagen (RNAiFect)

(Case T-80/08) (1)

(Community trade mark - Opposition proceedings - Application for the Community word mark RNAiFect - Earlier Community word mark RNActive - Relative ground for refusal - No likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))

2009/C 297/28

Language of the case: German

Parties

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

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: M. Kicia and S. Schäffner, Agents)

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the Court of First Instance: Qiagen GmbH (Hilden, Germany) (represented by: initially E. Krings, and subsequently V. von Bomhard, A. Renck and T. Dolde, lawyers)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 11 December 2007 (Case R 1219/2006-1) relating to opposition proceedings between CureVac GmbH and Qiagen GmbH.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

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

2.

Orders CureVac GmbH to pay the costs.

---

(1)  OJ C 107, 26.4.2008.

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| 5.12.2009 | EN | Official Journal of the European Union | C 297/21 |
| --- | --- | --- | --- |

5.12.2009

EN

Official Journal of the European Union

C 297/21

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Judgment of the Court of First Instance of 28 October 2009 — BCS v OHIM — Deere (Combination of the colours green and yellow)

(Case T-137/08) (1)

(Community trade mark - Invalidity proceedings - Community trade mark consisting of a combination of the colours green and yellow - Absolute ground for refusal - Distinctive character acquired through use - Article 7(3) and Article 51(1)(a) of Regulation (EC) No 40/94 (now Article 7(3) and Article 52(1)(a) of Regulation (EC) No 207/2009) - Relative ground for refusal - Earlier unregistered national mark consisting of a combination of the colours green and yellow - Article 8(4) and Article 52(1)(c) of Regulation No 40/94 (now Article 8(4) and Article 53(1)(c) of Regulation No 207/2009) - Obligation to state reasons - Article 73 of Regulation No 40/94 (now Article 75 of Regulation No 207/2009))

2009/C 297/29

Language of the case: English

Parties

Applicant: BCS SpA (Milan, Italy) (represented by: M. Franzosi, V. Jandoli and F. Santonocito, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Deere & Company (Wilmington, United States) (represented by: J. Gray, Solicitor, and A. Tornato, lawyer)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 16 January 2008 (Case R 222/2007-2) relating to invalidity proceedings between BCS SpA and Deere & Company.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders BCS SpA to pay the costs. |
| --- | --- |

2.

Orders BCS SpA to pay the costs.

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(1)  OJ C 142, 7.6.2008.

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| 5.12.2009 | EN | Official Journal of the European Union | C 297/21 |
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5.12.2009

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Official Journal of the European Union

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Judgment of the Court of First Instance of 20 October 2009 — Aldi Einkauf v OHIM — Goya Importaciones y Distribuciones (4 OUT Living)

(Case T-307/08) (1)

(Community trade mark - Opposition proceedings - Application for figurative Community mark 4 OUT Living - Earlier national figurative mark Living & Co - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))

2009/C 297/30

Language of the case: English

Parties

Applicant: Aldi Einkauf GmbH & Co. OHG (Essen, Germany) (represented by: N. Lützenrath, U. Rademacher, L. Kolks and C. Fürsen, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Goya Importaciones y Distribuciones, SL (Cuarte de Huerva, Spain)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 7 May 2008 (Case R 1199/2007-1) relating to opposition proceedings between Goya Importaciones y Distribuciones, SL and Aldi Einkauf GmbH & Co. OHG.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Aldi Einkauf GmbH & Co. OHG to pay the costs. |
| --- | --- |

2.

Orders Aldi Einkauf GmbH & Co. OHG to pay the costs.

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(1)  OJ C 260, 11.10.2008.

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| 5.12.2009 | EN | Official Journal of the European Union | C 297/21 |
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5.12.2009

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Official Journal of the European Union

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Action brought on 27 March 2009 — Phoenix-Reisen and DRV v Commission

(Case T-120/09)

2009/C 297/31

Language of the case: German

Parties

Applicants: Phoenix-Reisen GmbH (Bonn, Germany) and Deutscher Reiseverband eV (DRV) (Berlin, Germany) (represented by: R. Gerharz and A. Funke, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul the defendant’s decision of 13 February 2009 by which it refused to take action against State aid granted by the Federal Republic of Germany in the form of insolvency payments; |
| --- | --- |

—

Annul the defendant’s decision of 13 February 2009 by which it refused to take action against State aid granted by the Federal Republic of Germany in the form of insolvency payments;

| — | In the alternative, reinterpret the action for annulment as an action for failure to act, in the event that the Court should take the view that the present proceedings must take the form of an action for failure to act. |
| --- | --- |

—

In the alternative, reinterpret the action for annulment as an action for failure to act, in the event that the Court should take the view that the present proceedings must take the form of an action for failure to act.

Pleas in law and main arguments

The applicants’ action is directed against the Commission’s letter (reference D/50594) of 13 February 2009 concerning its complaint in connection with insolvency benefit payments to undertakings and with the financing of the payment of insolvency benefit in the Federal Republic of Germany (CP 79/2007 — Alleged State Aid in the form of insolvency benefit payments). In that letter the Commission states repeatedly that there is in its view no infringement of the provisions on State aid.

In support of their claim, the applicants maintain that the contested measures cannot be justified under Directive 80/987/EEC. (1) Furthermore, the Commission’s refusal to take action against the alleged wrongdoing infringes Community law. That rejection also cannot be justified by the decisions of the Bundessozialgericht (Federal Social Court).

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(1)  Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer (OJ 1980 L 283, p. 23)

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| 5.12.2009 | EN | Official Journal of the European Union | C 297/22 |
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5.12.2009

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Official Journal of the European Union

C 297/22

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Action brought on 22 September 2009 — Sociedade Quinta do Portal SA v OHIM — Vallegre–Vinhos do Porto (PORTO ALEGRE)

(Case T-369/09)

2009/C 297/32

Language in which the application was lodged: Portuguese

Parties

Applicant: Sociedade Quinta do Portal SA (Lisbon, Portugal) (represented by: B. Belchior, lawyer)

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

Other party to the proceedings before the Board of Appeal: Vallegre–Vinhos do Porto SA (Sabrosa, Portugal)

Form of order sought

| — | Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 18 June 2009 in Case R 1012/2008–1, dismissing the appeal brought by the applicant against the decision of the Cancellation Division which declared the Community word mark PORTO ALEGRE invalid; and |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 18 June 2009 in Case R 1012/2008–1, dismissing the appeal brought by the applicant against the decision of the Cancellation Division which declared the Community word mark PORTO ALEGRE invalid; and

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

—

Order OHIM to pay the costs.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: word mark PORTO ALEGRE, for goods in Class 33

Proprietor of the Community trade mark: the applicant

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

Trade mark right of applicant for the declaration: earlier Portuguese word mark VISTA ALEGRE, for goods in Class 33

Decision of the Cancellation Division: Community word mark PORTO ALEGRE declared invalid

Decision of the Board of Appeal: appeal dismissed

Plea in law: Infringement of Article 8(1)(b) of Regulation No 207/2009 in so far as the Board of Appeal misinterpreted that provision and, consequently, wrongly held that there was a likelihood of confusion between the marks in question.

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| 5.12.2009 | EN | Official Journal of the European Union | C 297/22 |
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5.12.2009

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Official Journal of the European Union

C 297/22

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Action brought on 25 September 2009 — RWE Transgas v Commission

(Case T-381/09)

2009/C 297/33

Language of the case: German

Parties

Applicant: RWE Transgas a.s. (Prague, Czech Republic) (represented by: W. Deselaers, D. Seeliger and S. Einhaus, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Declare invalid the third sentence of Point 89(a) of Commission Decision C(2009) 4694 of 12 June 2009, insofar as it finds that the applicant and Gazprom — to be considered for this purpose jointly — may together account for no more than 50 % of capacity as long as substantial long-term gas supply agreements exist between them; |
| --- | --- |

—

Declare invalid the third sentence of Point 89(a) of Commission Decision C(2009) 4694 of 12 June 2009, insofar as it finds that the applicant and Gazprom — to be considered for this purpose jointly — may together account for no more than 50 % of capacity as long as substantial long-term gas supply agreements exist between them;

| — | in the alternative, annul the decision in its entirety; |
| --- | --- |

—

in the alternative, annul the decision in its entirety;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

The applicant, an importer of gas into the Czech Republic, has brought an action against the letter of 12 June 2009 sent by the Commission to the German energy regulator, the Bundesnetzagentur (Federal Network Agency) in which the Commission asks the Bundesnetzagentur to amend certain aspects of the exemption it has granted, pursuant to Article 22 of Directive 2003/55/EC, (1) for the gas pipeline project Ostseepipeline-Anbindungsleitung (Baltic Sea Pipeline Link) (‘OPAL’). The applicant complains that one of the Commission’s conditions would have the effect of restricting or, as the case may be, preventing the applicant’s access to OPAL’s transport/release capacities in the Czech Republic.

In support of its action, the applicant claims, first, that the defendant infringed its right to a fair hearing by denying it any opportunity to comment on the condition imposing a burden on it before it was adopted.

Second, the applicant contends that the defendant infringed the applicant’s right of access to documents, by denying it any access to the file of the proceedings.

Finally, the applicant complains that the defendant misapplied Article 22(4) of Directive 2003/55/EC and the principle of proportionality, the principle of equal treatment and the duty to state reasons (Article 253 EC).

---

(1)  Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC (OJ 2003 L 176, p. 57).

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| 5.12.2009 | EN | Official Journal of the European Union | C 297/23 |
| --- | --- | --- | --- |

5.12.2009

EN

Official Journal of the European Union

C 297/23

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Action brought on 30 September 2009 — ERGO Versicherungsgruppe v OHIM — DeguDent (ERGO)

(Case T-382/09)

2009/C 297/34

Language in which the application was lodged: German

Parties

Applicant: ERGO Versicherungsgruppe AG (Düsseldorf, Germany) (represented by: V. von Bomhard, A. Renck, T. Dolde and J. Pause, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: DeguDent GmbH (Hanau on Main, Germany)

Forms of order sought

| — | Annulment of the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 23 July 2009 in Case R 44/2008-4; |
| --- | --- |

—

Annulment of the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 23 July 2009 in Case R 44/2008-4;

| — | Order the defendant or, in the case of an intervention by the other party to the proceedings before the defendant, the intervener to pay the costs. |
| --- | --- |

—

Order the defendant or, in the case of an intervention by the other party to the proceedings before the defendant, the intervener to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: ERGO Versicherungsgruppe AG

Community trade mark concerned: The word mark ‘ERGO’ for goods and services in Classes 1 to 45 (Application No 3 292 638)

Proprietor of the mark or sign cited in the opposition proceedings: DeguDent GmbH

Mark or sign cited in opposition: The German word mark No 39 832 880 and the Community trade mark No 1 064 674‘CERGO’ for goods in Class 10, the opposition being brought only against the registration for goods in Classes 5 and 10

Decision of the Opposition Division: Opposition upheld

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: Infringement of the first sentence of Article 42(5) in conjunction with the first sentence of Article 64(1) and Article 76(1) of Regulation (EC) No 207/2009 (1), since the Board of Appeal did not fully decide on the appeal;

Infringement of Article 8(1)(b) of Regulation No 207/2009, since there is no likelihood of confusion between the opposing marks.

---

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

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| 5.12.2009 | EN | Official Journal of the European Union | C 297/23 |
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5.12.2009

EN

Official Journal of the European Union

C 297/23

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Action brought on 1 October 2009 — SKW Stahl-Metallurgie Holding and SKW Stahl-Metallurgie v Commission

(Case T-384/09)

2009/C 297/35

Language of the case: German

Parties

Applicants: SKW Stahl-Metallurgie Holding AG (Unterneukirchen, Germany) and SKW Stahl-Metallurgie GmbH (Unterneukirchen, Germany) (represented by: A. Birnstiel, S. Janka and S. Dierckens, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul the contested decision, insofar as it concerns the applicants; |
| --- | --- |

—

Annul the contested decision, insofar as it concerns the applicants;

| — | in the alternative, amend Article 2 of the contested decision, which imposes a fine on the applicants, to the effect that the fine is lifted or at least substantially reduced; |
| --- | --- |

—

in the alternative, amend Article 2 of the contested decision, which imposes a fine on the applicants, to the effect that the fine is lifted or at least substantially reduced;

| — | order the defendant to bear its own costs and to pay those incurred by the applicants. |
| --- | --- |

—

order the defendant to bear its own costs and to pay those incurred by the applicants.

Pleas in law and main arguments

The applicants have brought an action against Commission Decision C(2009) 5791 final of 22 July 2009 in Case COMP/39.396 — Calcium Carbide and magnesium based reagents for the steel and gas industries. The contested decision imposes a fine on the applicants and other undertakings in respect of an infringement of Article 81 EC as well as Article 53 of the EEA Agreement. According to the Commission, the applicants participated in a single and continuous infringement in the calcium carbide and magnesium sectors in the whole of the European Economic Area, with the exception of Spain, Portugal, Ireland and the United Kingdom, taking the form of market sharing, agreements on quotas, customer allocation, price fixing and the exchange of confidential information relating to prices, customers and sales volumes.

In support of their actions, the applicants have submitted six pleas.

First, the applicants claim that the defendant infringed the applicants’ rights of defence when it failed to give the applicants the opportunity of a hearing for the submission of oral arguments.

Second, the applicants claim that the Commission committed an error of law in the application of Article 81(1) EC. In this respect, the applicants claim that the Commission wrongly attributed the actions of SKW Stahl-Metallurgie GmbH to SKW Stahl-Metallurgie Holding AG. Further, the applicants claim that it is impossible to meet the conditions for the rebuttal of the presumption that a parent company has decisive influence over its subsidiary. At the same time, the defendant’s conduct breached the principle of ex officio investigation.

Third, the applicant claims that the Commission infringed its obligation to state reasons pursuant to Article 253 EC, since it did not explain why the applicants’ submission did not suffice to refute the presumption that SKW Stahl-Metallurgie Holding AG had decisive influence over SKW Stahl-Metallurgie GmbH.

Fourth, the applicants claim that, as regards the calculation of the fines, the Commission in several respects infringed the principle of equal treatment.

Fifth, the applicants claim that, as regards the calculation of the fines, the Commission infringed Articles 7 and 23 of Regulation (EC) No 1/2003 (1) as well as the principle of proportionality and the principle that penalties must have a proper legal basis.

Finally, the applicants claim that there has been an infringement of Article 23(2) of Regulation (EC) No 1/2003, since the fine the Commission imposed on SKW Stahl-Metallurgie GmbH exceeded 10 % of the turnover of that company.

---

(1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p.1).

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| 5.12.2009 | EN | Official Journal of the European Union | C 297/24 |
| --- | --- | --- | --- |

5.12.2009

EN

Official Journal of the European Union

C 297/24

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Action brought on 5 October 2009 — Evonik Degussa and AlzChem Hart v Commission

(Case T-391/09)

2009/C 297/36

Language of the case: German

Parties

Applicants: Evonik Degussa GmbH (Essen, Germany) and AlzChem Hart GmbH (Trostberg, Germany) (represented by: C. Steinle, O. Andresen and I. Hermeneit, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul Commission Decision C (2009) 5791 final of 22 July 2009 (Case COMP/39.396 — Calcium carbide and magnesium based reagents for the steel and gas industries) in so far as it concerns the applicants; |
| --- | --- |

—

Annul Commission Decision C (2009) 5791 final of 22 July 2009 (Case COMP/39.396 — Calcium carbide and magnesium based reagents for the steel and gas industries) in so far as it concerns the applicants;

| — | in the alternative, reduce the fine imposed on the applicants under Article 2(g) and (h) of the decision referred to; |
| --- | --- |

—

in the alternative, reduce the fine imposed on the applicants under Article 2(g) and (h) of the decision referred to;

| — | in the alternative, in the event that point 1 of the application is dismissed, amend Article 2(g) and (h) of the decision in such a way as to make SKW Stahl-Metallurgie GmbH jointly and severally liable for the full amount of the fine imposed on the applicants; |
| --- | --- |

—

in the alternative, in the event that point 1 of the application is dismissed, amend Article 2(g) and (h) of the decision in such a way as to make SKW Stahl-Metallurgie GmbH jointly and severally liable for the full amount of the fine imposed on the applicants;

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

—

order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The applicants contest Commission Decision C (2009) 5791 final of 22 July 2009 in case COMP/39.396 — Calcium carbide and magnesium based reagents for the steel and gas industries. The contested decision imposed a fine on the applicants and on other undertakings for infringement of Article 81 EC and Article 53 of the EEA Agreement. According to the Commission, the applicants participated in a single and continuous infringement in the calcium carbide and magnesium sector in the EEA, except in Spain, Portugal, Ireland and the United Kingdom, which consisted in market sharing, agreements on quotas, customer allocations, price fixing and exchange of sensitive information relating to prices, customers and sales volumes.

In support of their action, the applicants submit, first, that they have not infringed Article 81 EC. In that regard, they submit, in particular, that they cannot be held liable for an infringement committed by their former subsidiary, SKW Stahl-Metallurgie GmbH, since neither they nor their legal predecessors formed an economic unit with that company. Instead, the applicants have proved that their legal predecessors did not exercise decisive influence over SKW Stahl-Metallurgie GmbH. Accordingly, the defendant has also infringed the principle of personal responsibility, the presumption of innocence, the fault principle and the fault requirement.

Furthermore, the applicants also object to the fine imposed on them. In that regard, they submit that the contested decision is contrary to Article 23(3) of Regulation (EC) No 1/2003 (1) and to the Guidelines on setting fines, (2) as well as to the Leniency Notice, (3) the principle of equal treatment and the principle of proportionality.

Finally, the applicants submit that the Commission failed to fulfil its obligation to state reasons in accordance with Article 253 EC in respect of its findings concerning the joint and several liability of SKW Stahl-Metallurgie GmbH.

---

(1)  Council Regulation No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).

(2)  Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2).

(3)  Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3).

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| 5.12.2009 | EN | Official Journal of the European Union | C 297/25 |
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5.12.2009

EN

Official Journal of the European Union

C 297/25

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Action brought on 2 October 2009 — 1. garantovaná v Commission

(Case T-392/09)

2009/C 297/37

Language of the case: English

Parties

Applicant: 1. garantovaná a.s. (Bratislava, Slovak Republic) (represented by: M. Powell, Solicitor, A. Sutton and G. Forwood, Barristers)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul the Commission’s decision of 22 July 2009 relating to a proceeding under Article 81 EC and Article 53 EEA in case COMP/F/39.396 — Calcium carbide and magnesium based reagents for the steel and gas industries, in whole or in part, in so far as it is addressed to the applicant; |
| --- | --- |

—

Annul the Commission’s decision of 22 July 2009 relating to a proceeding under Article 81 EC and Article 53 EEA in case COMP/F/39.396 — Calcium carbide and magnesium based reagents for the steel and gas industries, in whole or in part, in so far as it is addressed to the applicant;

| — | in the alternative, reduce the fine imposed on the applicant in Article 2 of the decision relating to a proceeding under Article 81 EC and Article 53 EEA in case COMP/F/39.396 — Calcium carbide and magnesium based reagents for the steel and gas industries, |
| --- | --- |

—

in the alternative, reduce the fine imposed on the applicant in Article 2 of the decision relating to a proceeding under Article 81 EC and Article 53 EEA in case COMP/F/39.396 — Calcium carbide and magnesium based reagents for the steel and gas industries,

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

By means of its application, the applicant seeks the partial annulment of Commission’s Decision C (2009) 5791 final of 22 July 2009, finding the existence of a cartel in the calcium carbide and magnesium sectors, giving rise to an infringement of Article 81 EC for which the applicant was held liable jointly and severally, with the company Novácke chemické závody a.s. (“NCHZ”).

The application is based on two broad submissions.

First, the applicant submits that the Commission erred in law and in fact in imputing NCHZ’s conduct to the applicant, both by unlawfully reversing the burden of proof onto the applicant and by failing to discharge the burden of proof itself. The applicant claims that the Commission wrongly applied the presumption applicable to parents with wholly-owned subsidiaries to the applicant, which was a majority shareholder in a company that was directly involved in a competition law infringement. In any event, the applicant contends that the Commission failed to show that the applicant actually and effectively exercised decisive influence over NCHZ during the period of the infringement.

Second, and in the alternative, should the Court uphold the attribution of liability to the applicant, the latter seeks a reduction of the fine imposed on it, jointly and severally with NCHZ, pursuant to the Court’s unlimited jurisdiction under Article 229 EC read in conjunction with Article 31 of Regulation (EC) No 1/2003 (1), on the basis that the Commission incorrectly applied the 10 % turnover limit contained in Article 23 of Regulation (EC) No 1/2003. According to the applicant, the Commission manifestly erred in using the 2007 as the reference year for calculating the 10 % turnover limit, instead of 2008.

In addition, the applicant claims that the Commission’s decision to depart from the general rule contained in Article 23(2) of Regulation (EC) No 1/2003 amounts to a breach of an essential procedural requirement, since the Commission had a duty to respect the applicant’s right to be heard before doing so.

Moreover, the applicant submits that the contested decision is vitiated by Commission’s failure to state reasons for departing from the general rule of taking the preceding business year in order to calculate the 10 % turnover limit.

In respect of the level of the fine, the applicant claims that it is disproportionate in relation to the legitimate objective pursued, namely, to ensure competition in the internal market is not distorted. According to the applicant, the level of the fine will reduce the number of competitors and reinforce the market strength of the major company, Akzo Nobel, running thus counter to the objective enshrined in Article 3 EC.

Finally, the applicant claims that the Commission erred in failing to take account of its own Guidelines (2) with respect to the applicant’s ability to pay the fine. The applicant submits, in particular, that the rejection of its submissions on its inability to pay is vitiated by the fact that it is insufficiently reasoned and is manifestly unreasonable, since the Commission allegedly failed to take into account of the objective evidence that was provided to it, that imposition of the fine would irretrievably jeopardise the economic viability of the applicant and cause its assets to lose all their value.

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(1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (Text with EEA relevance) (OJ L 1, p. 1)

(2)  Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ C 210, p. 2)

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| 5.12.2009 | EN | Official Journal of the European Union | C 297/26 |
| --- | --- | --- | --- |

5.12.2009

EN

Official Journal of the European Union

C 297/26

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Action brought on 2 October 2009 — NEC Display Solutions Europe v OHIM — Nokia (NaViKey)

(Case T-393/09)

2009/C 297/38

Language in which the application was lodged: English

Parties

Applicant: NEC Display Solutions Europe GmbH (Munich, Germany) (represented by: P. Munzinger, lawyer)

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

Other party to the proceedings before the Board of Appeal: Nokia Corp. (Helsinki, Finland)

Form of order sought

| — | Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 16 June 2009 in case R 1143/2008-2; |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 16 June 2009 in case R 1143/2008-2;

| — | Dismiss the opposition filed by the other party to the proceedings before the Board of Appeal against the registration of the Community trade mark concerned; |
| --- | --- |

—

Dismiss the opposition filed by the other party to the proceedings before the Board of Appeal against the registration of the Community trade mark concerned;

| — | Order OHIM to pay the costs, including those incurred by the applicant before the Board of Appeal; and |
| --- | --- |

—

Order OHIM to pay the costs, including those incurred by the applicant before the Board of Appeal; and

| — | Order the other party to the proceedings before the Board of Appeal to pay the costs, including those incurred by the applicant before the Board of Appeal, should it become an intervener in this case. |
| --- | --- |

—

Order the other party to the proceedings before the Board of Appeal to pay the costs, including those incurred by the applicant before the Board of Appeal, should it become an intervener in this case.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark “NaViKey” for goods in class 9

Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

Mark or sign cited: Community trade mark registration of the word mark “NAVI” for goods and services in classes 9 and 38; Finish trade mark registration of the word mark “NAVI” for goods in class 9

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

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009 as the Board of Appeal: (i) erred when determining the relevant public whose perception must be taken into account; (ii) erred when assessing the similarity between the trade marks concerned and the goods covered; and (iii) failed to take into account that the other party to the proceedings before the Board of Appeal is not entitled to prohibit the use of later trade marks containing the element “NAVI”, as a result of the lack of distinctiveness of such or of low degree of distinctiveness, and therefore not entitled to rely on Article 8(1)(b) of Council Regulation 207/2009 to obtain the rejection of the application for the Community trade mark concerned; infringement of Article 75 of Council Regulation No 207/2009 as the Board of Appeal failed to state reasons for its finding that there was a likelihood of confusion between the trade marks concerned.

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| 5.12.2009 | EN | Official Journal of the European Union | C 297/26 |
| --- | --- | --- | --- |

5.12.2009

EN

Official Journal of the European Union

C 297/26

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Action brought on 5 October 2009 — General Bearing v OHIM (GENERAL BEARING CORPORATION)

(Case T-394/09)

2009/C 297/39

Language of the case: English

Parties

Applicant(s): General Bearing Corp. (West Nyack, United States) (represented by: A. Dellmeier-Beschorner, lawyer)

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

Form of order sought

| — | Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 16 July 2009 in case R 73/2009-1; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 16 July 2009 in case R 73/2009-1;

| — | Order the defendant to register the Community trade mark concerned; |
| --- | --- |

—

Order the defendant to register the Community trade mark concerned;

| — | Order the defendant to pay the costs incurred in the proceedings before the court; and |
| --- | --- |

—

Order the defendant to pay the costs incurred in the proceedings before the court; and

| — | Set a date for an oral hearing if such is deemed necessary. |
| --- | --- |

—

Set a date for an oral hearing if such is deemed necessary.

Pleas in law and main arguments

Community trade mark concerned: The word mark “GENERAL BEARING CORPORATION” for goods in classes 7 and 12

Decision of the examiner: Refused the application for a Community trade mark

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 7(1)(b), 7(1)(c) and 7(2) of Council Regulation 207/2009, as well as of general principles of trademark law, as the Board of Appeal wrongly found that the Community trade mark concerned is not eligible for registration due to the fact that it is a purely descriptive term.

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| 5.12.2009 | EN | Official Journal of the European Union | C 297/27 |
| --- | --- | --- | --- |

5.12.2009

EN

Official Journal of the European Union

C 297/27

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Action brought on 6 October 2009 — Arques Industries v Commission

(Case T-395/09)

2009/C 297/40

Language of the case: German

Parties

Applicant: Arques Industries AG (Starnberg, Germany) (represented by: C. Grave, B. Meyring and A. Scheidtmann, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul Articles 1, 2, 3 and 4 of Commission Decision C (2009) 5791 final of 22 July 2009 in Case COMP/39.396 — Calcium carbide etc in so far as the decision is addressed to the applicant; |
| --- | --- |

—

Annul Articles 1, 2, 3 and 4 of Commission Decision C (2009) 5791 final of 22 July 2009 in Case COMP/39.396 — Calcium carbide etc in so far as the decision is addressed to the applicant;

| — | in the alternative, reduce the fine imposed on the applicant under Article 2(f) of the decision; |
| --- | --- |

—

in the alternative, reduce the fine imposed on the applicant under Article 2(f) of the decision;

| — | in the alternative, annul Articles 1 and 3 of the decision in so far as they concern the applicant; and |
| --- | --- |

—

in the alternative, annul Articles 1 and 3 of the decision in so far as they concern the applicant; and

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

The applicant contests Commission Decision C (2009) 5791 final of 22 July 2009 in case COMP/39.396 — Calcium carbide and magnesium based reagents for the steel and gas industries. The contested decision imposed a fine on the applicant and on other undertakings for infringement of Article 81 EC and Article 53 of the EEA Agreement. According to the Commission, the applicant participated in a single and continuous infringement in the calcium carbide and magnesium sector in the EEA, except in Spain, Portugal, Ireland and the United Kingdom, which consisted in market sharing, agreements on quotas, customer allocations, price fixing and exchange of sensitive information relating to prices, customers and sales volumes.

The applicant puts forward eight pleas in law in support of its action, which are set out in three parts.

By the first part, the applicant seeks to have the contested decision annulled in so far as the applicant was found jointly and severally liable for the conduct of SKW Stahl-Metallurgie GmbH, and relies in that respect on the following pleas in law:

| — | erroneous application of Article 81(1) EC and of Article 23(2) of Regulation (EC) No 1/2003 (1) in that the Commission deemed the applicant to be jointly and severally liable with SKW Stahl-Metallurgie GmbH; |
| --- | --- |

—

erroneous application of Article 81(1) EC and of Article 23(2) of Regulation (EC) No 1/2003 (1) in that the Commission deemed the applicant to be jointly and severally liable with SKW Stahl-Metallurgie GmbH;

| — | infringement of Article 253 EC since the Commission did not give reasons for the exercise of its discretion in relation to the applicant’s liability as a former parent company; |
| --- | --- |

—

infringement of Article 253 EC since the Commission did not give reasons for the exercise of its discretion in relation to the applicant’s liability as a former parent company;

| — | erroneous application of Article 81, since the defendant erred in law in its assumption as to the existence of a single and continuous infringement. |
| --- | --- |

—

erroneous application of Article 81, since the defendant erred in law in its assumption as to the existence of a single and continuous infringement.

By the second part, the applicant seeks, in the alternative, a reduction of the amount of the fine imposed on it, and relies in that respect on the following pleas in law:

| — | infringement of Article 253 EC since the contested decision is inherently contradictory as regards the level of the fine; |
| --- | --- |

—

infringement of Article 253 EC since the contested decision is inherently contradictory as regards the level of the fine;

| — | infringement of Article 23 of Regulation No 1/2003 since the Commission erred in its assessment of the gravity and duration of the infringement; |
| --- | --- |

—

infringement of Article 23 of Regulation No 1/2003 since the Commission erred in its assessment of the gravity and duration of the infringement;

| — | infringement of the general principle of equal treatment in relation to the gravity and duration of the infringement assumed by the Commission; |
| --- | --- |

—

infringement of the general principle of equal treatment in relation to the gravity and duration of the infringement assumed by the Commission;

| — | infringement of Article 23 of Regulation No 1/2003 since the Commission failed to take account of the mitigating circumstance that the applicant expressly did not dispute the Commission’s findings in the administrative procedure. |
| --- | --- |

—

infringement of Article 23 of Regulation No 1/2003 since the Commission failed to take account of the mitigating circumstance that the applicant expressly did not dispute the Commission’s findings in the administrative procedure.

In the third part, the applicant applies, in the alternative, for Articles 1 and 3 of the contested decision to be annulled in so far as they concern the applicant, since they are based on the erroneous application of Article 81 EC and Article 7 of Regulation No 1/2003 and are contrary to Article 253 EC.

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(1)  Council Regulation No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).

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| 5.12.2009 | EN | Official Journal of the European Union | C 297/28 |
| --- | --- | --- | --- |

5.12.2009

EN

Official Journal of the European Union

C 297/28

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Action brought on 6 October 2009 — Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht v Commission

(Case T-396/09)

2009/C 297/41

Language of the case: Dutch

Parties

Applicants: Vereniging Milieudefensie (Amsterdam, Netherlands) and Stichting Stop Luchtverontreiniging Utrecht (Utrecht, Netherlands) (represented by: A. van den Biesen, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | declare the action brought by the applicants to be well founded; |
| --- | --- |

—

declare the action brought by the applicants to be well founded;

| — | set aside Commission Decision C(2009) 6121 of 28 July 2009, which is contested in this case; |
| --- | --- |

—

set aside Commission Decision C(2009) 6121 of 28 July 2009, which is contested in this case;

| — | order the Commission to examine, as to its substance, the request for an internal review within a period to be determined by the Court of First Instance; |
| --- | --- |

—

order the Commission to examine, as to its substance, the request for an internal review within a period to be determined by the Court of First Instance;

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

—

order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The applicants are two Netherlands environmental organisations which, on the basis of Article 10(1) of Regulation No 1367/2006, (1) requested the defendant to carry out a review of the earlier Commission Decision C(2009) 2560 of 7 April 2009, by which the Commission had authorised the Netherlands to defer to a later date compliance with its obligations under Directive 2008/50/EC (2) in respect of improvements to air quality. The applicants are challenging the Commission’s decision to declare inadmissible their request for a review of the earlier decision addressed to the Netherlands.

In support of their application, the applicants submit, first, that, in the contested decision, the Commission did not invoke the restriction of the scope of Regulation No 1367/2006 set out in Article 2(1)(c) and that, as a consequence, it did not adopt the decision of 7 April 2009 while acting in a legislative capacity.

The applicants also contend that the decision of 7 April 2009 is individual, and not general, in its scope.

The applicants conclude by submitting that, if secondary Community legislation does not comply with the Aarhus Convention approved by the Council, (3) the legislation in question must be interpreted in accordance with that convention, and that, if this is not possible, the Convention must be applied directly by the organs and institutions of the Community. Article 2(1)(g) of Regulation No 1367/2006 should for that reason, according to the applicants, not be applied.

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(1)  Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ 2006 L 264, p. 13).

(2)  Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe (OJ 2008 L 152, p. 1).

(3)  Council Decision 2005/370/EC of 17 February 2005 on the conclusion, on behalf of the European Community, of the Convention on access to information, public participation in decision-making and access to justice in environmental matters (OJ 2005 L 124, p. 1).

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| 5.12.2009 | EN | Official Journal of the European Union | C 297/29 |
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Action brought on 6 October 2009 — Ernst August Prinz von Hannover Herzog zu Braunschweig und Lüneburg v OHIM (Figurative mark representing a coat of arms)

(Case T-397/09)

2009/C 297/42

Language in which the application was lodged: German

Parties

Applicant: Ernst August Prinz von Hannover Herzog zu Braunschweig und Lüneburg (Hanover, Germany) (represented by R. Stötzel and J. Hilger, lawyers)

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

Forms of order sought

| — | Annulment of the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 23 July 2009 in Case R 1361/2008-1 concerning the application for Community trade mark No 5 627 245 and admission of the application for Community trade mark No 5 627 245 for publication in the Community Trade Marks Bulletin; |
| --- | --- |

—

Annulment of the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 23 July 2009 in Case R 1361/2008-1 concerning the application for Community trade mark No 5 627 245 and admission of the application for Community trade mark No 5 627 245 for publication in the Community Trade Marks Bulletin;

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

—

Order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The colour figurative mark representing a coat of arms for goods and services in Classes 16, 25, 28, 2, 33, 35, 39, 41 and 43 (Application No 5 627 245)

Decision of the Examiner: Application refused

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: Inter alia, infringement of Article 7(1)(h) of Regulation No 207/2009 (1), since the mark applied for is neither identical with the opposing royal emblem nor a heraldic immitation thereof.

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

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| 5.12.2009 | EN | Official Journal of the European Union | C 297/29 |
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Action brought on 6 October 2009 — ECKA Granulate and non ferrum Metallpulver v Commission

(Case T-400/09)

2009/C 297/43

Language of the case: German

Parties

Applicants: ECKA Granulate GmbH & Co. KG (Fürth, Germany) and non ferrum Metallpulver GmbH & Co. KG (St Georgen bei Salzburg, Austria) (represented by: H. Janssen and M. Franz, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul the contested decision in so far as it concerns the applicants; |
| --- | --- |

—

Annul the contested decision in so far as it concerns the applicants;

| — | in the alternative, reduce appropriately the fine imposed on the applicants by the contested decision; |
| --- | --- |

—

in the alternative, reduce appropriately the fine imposed on the applicants by the contested decision;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

The applicants contest Commission Decision C (2009) 5791 final of 22 July 2009 in case COMP/39.396 — Calcium carbide and magnesium based reagents for the steel and gas industry. The contested decision imposed a fine on the applicants and on other undertakings for infringement of Article 81 EC and Article 53 of the EEA Agreement. According to the Commission, the applicants participated in a single and continuous infringement in the calcium carbide and magnesium sector in the EEA, except in Spain, Portugal, Ireland and the United Kingdom, which consisted in market sharing, agreements on quotas, customer allocations, price fixing and exchange of sensitive information relating to prices, customers and sales volumes.

In support of their action, the applicants submit the following pleas in law:

| — | Infringement of the principle of legal certainty by Article 23 of Regulation (EC) No 1/2003 (1) since the Commission has an almost unfettered discretion in relation to setting the fine; |
| --- | --- |

—

Infringement of the principle of legal certainty by Article 23 of Regulation (EC) No 1/2003 (1) since the Commission has an almost unfettered discretion in relation to setting the fine;

| — | unlawful setting of the fine since the Guidelines on setting fines (2) grant the Commission an almost unfettered discretion in relation to setting the amount of the fine; |
| --- | --- |

—

unlawful setting of the fine since the Guidelines on setting fines (2) grant the Commission an almost unfettered discretion in relation to setting the amount of the fine;

| — | disproportionality of the amount of the fine since the defendant failed to take account of the applicants’ effective cooperation; |
| --- | --- |

—

disproportionality of the amount of the fine since the defendant failed to take account of the applicants’ effective cooperation;

| — | disproportionality of the amount of the fine since the defendant failed to take account of the fact that the applicants have no experience of infringements of the law relating to cartels; |
| --- | --- |

—

disproportionality of the amount of the fine since the defendant failed to take account of the fact that the applicants have no experience of infringements of the law relating to cartels;

| — | disproportionality of the amount of the fine since the defendant failed to take into account as a mitigating circumstance the applicants’ introduction of ‘compliance measures’ and the fact that, on personnel grounds also, there is no risk of repetition; |
| --- | --- |

—

disproportionality of the amount of the fine since the defendant failed to take into account as a mitigating circumstance the applicants’ introduction of ‘compliance measures’ and the fact that, on personnel grounds also, there is no risk of repetition;

| — | disproportionality of the amount of the fine since the defendant failed to take into account as a mitigating circumstance the fact that the applicants did not stint in the supply of magnesium; |
| --- | --- |

—

disproportionality of the amount of the fine since the defendant failed to take into account as a mitigating circumstance the fact that the applicants did not stint in the supply of magnesium;

| — | disproportionality of the amount of the fine since no account was taken of the applicants’ lack of resources. |
| --- | --- |

—

disproportionality of the amount of the fine since no account was taken of the applicants’ lack of resources.

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(1)  Council Regulation No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).

(2)  Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2).

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| 5.12.2009 | EN | Official Journal of the European Union | C 297/30 |
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Action brought on 5 October 2009 — Marcuccio v Court of Justice of the European Communities

(Case T-401/09)

2009/C 297/44

Language of the case: Italian

Parties

Applicant: Luigi Marcuccio (Tricase, Italy) (represented by: G. Cipressa, lawyer)

Defendant: Court of Justice of the European Communities

Form of order sought

| — | Annul the decision, however framed, which constituted rejection by the defendant of the request of 24 May 2009 submitted by the applicant to the defendant; |
| --- | --- |

—

Annul the decision, however framed, which constituted rejection by the defendant of the request of 24 May 2009 submitted by the applicant to the defendant;

| — | annul the note dated 15 June 2009 from the Registry of the Court of Justice; |
| --- | --- |

—

annul the note dated 15 June 2009 from the Registry of the Court of Justice;

| — | order the defendant to pay to the applicant the sum of EUR 10 000,00 (ten thousand Euro), or such greater or lesser sum as the Court may consider just and fair, by way of compensation for the damage suffered; |
| --- | --- |

—

order the defendant to pay to the applicant the sum of EUR 10 000,00 (ten thousand Euro), or such greater or lesser sum as the Court may consider just and fair, by way of compensation for the damage suffered;

| — | order the defendant to pay all the costs, disbursements and fees incurred in the proceedings. |
| --- | --- |

—

order the defendant to pay all the costs, disbursements and fees incurred in the proceedings.

Pleas in law and main arguments

The present action concerns the defendant’s refusal to accede to the request for compensation for the alleged damage arising from the fact that a lawyer who was no longer authorised to receive it was notified of the Commission’s appeal against a decision of the Civil Service Tribunal granting in part the form of order sought by the applicant.

In support of his claims, the applicant alleges a total failure to state reasons, breach of the duty of sound administration, infringement of provisions of law and a manifest error of assessment.

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| 5.12.2009 | EN | Official Journal of the European Union | C 297/30 |
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Appeal brought on 7 October 2009 by Luigi Marcuccio against the order of 20 July 2009 of the Civil Service Tribunal in Case F-86/07, Marcuccio v Commission

(Case T-402/09 P)

2009/C 297/45

Language of the case: Italian

Parties

Appellant: Luigi Marcuccio (Tricase, Italy) (represented by G. Cipressa, lawyer)

Other party to the proceedings: Commission of the European Communities

Form of order sought by the appellant

| — | In any event, set aside in its entirety and without exception the order under appeal; |
| --- | --- |

—

In any event, set aside in its entirety and without exception the order under appeal;

| — | declare that the action at first instance, in relation to which the order under appeal was made, was perfectly admissible in its entirety and without any exception whatsoever; |
| --- | --- |

—

declare that the action at first instance, in relation to which the order under appeal was made, was perfectly admissible in its entirety and without any exception whatsoever;

| — | allow in its entirety and without any exception whatsoever the relief sought by the appellant at first instance; |
| --- | --- |

—

allow in its entirety and without any exception whatsoever the relief sought by the appellant at first instance;

| — | order the Commission to reimburse the appellant in respect of all costs, disbursements and fees incurred by him in relation to both the proceedings at first instance and the present appeal proceedings; |
| --- | --- |

—

order the Commission to reimburse the appellant in respect of all costs, disbursements and fees incurred by him in relation to both the proceedings at first instance and the present appeal proceedings;

| — | in the alternative, refer the case back to the Civil Service Tribunal, sitting in a different formation, for a fresh decision. |
| --- | --- |

—

in the alternative, refer the case back to the Civil Service Tribunal, sitting in a different formation, for a fresh decision.

Pleas in law and main arguments

The present appeal is brought against the order made by the Civil Service Tribunal (CST) on 20 July 2009 in Case F-86/07 Marcuccio v Commission. That order dismissed, as partly manifestly inadmissible and partly manifestly unfounded, an action for annulment of the Commission’s decision refusing the appellant’s request for an investigation into the psychological harassment suffered by the appellant during the period in which he was on secondment to the Commission’s delegation in Angola, and for an order that the defendant pay compensation for the damage resulting from the psychological harassment alleged.

In support of his claims, the appellant relies on the following pleas:

| — | incorrect and inappropriate interpretation of the concept of investigation in Article 17(2) of the Common Rules on insurance against the risk of accident and of occupational diseases of officials of the European Communities and the concept of inquiry for the purpose of establishing whether an official of an institution has been subjected to psychological harassment; |
| --- | --- |

—

incorrect and inappropriate interpretation of the concept of investigation in Article 17(2) of the Common Rules on insurance against the risk of accident and of occupational diseases of officials of the European Communities and the concept of inquiry for the purpose of establishing whether an official of an institution has been subjected to psychological harassment;

| — | the Tribunal erred in law in declaring inadmissible the application for annulment of the decision rejecting the request for an inquiry, by reason, inter alia, of misinterpretation in rejecting that application as unfounded; |
| --- | --- |

—

the Tribunal erred in law in declaring inadmissible the application for annulment of the decision rejecting the request for an inquiry, by reason, inter alia, of misinterpretation in rejecting that application as unfounded;

| — | the Tribunal erred in law in declaring inadmissible the application for annulment of the report drawn up by the Investigation and Disciplinary Office (IDOC), by reason, inter alia, of a total failure to state reasons, failure to rule on a fundamental aspect of the dispute and misapplication of the concept of a preparatory act in the circumstances of the case; |
| --- | --- |

—

the Tribunal erred in law in declaring inadmissible the application for annulment of the report drawn up by the Investigation and Disciplinary Office (IDOC), by reason, inter alia, of a total failure to state reasons, failure to rule on a fundamental aspect of the dispute and misapplication of the concept of a preparatory act in the circumstances of the case;

| — | misinterpretation of the concept of psychological harassment and of the burden of proof of the psychological harassment on the person claiming such harassment; |
| --- | --- |

—

misinterpretation of the concept of psychological harassment and of the burden of proof of the psychological harassment on the person claiming such harassment;

| — | total failure to state reasons with regard to the assertions made by way of alleged justification of the rejection of the claim for damages. |
| --- | --- |

—

total failure to state reasons with regard to the assertions made by way of alleged justification of the rejection of the claim for damages.

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| 5.12.2009 | EN | Official Journal of the European Union | C 297/31 |
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C 297/31

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Action brought on 7 October 2009 — Tecnoprocess v Delegation of the European Commission to Morocco and Others

(Case T-403/09)

2009/C 297/46

Language of the case: Italian

Parties

Applicant: Tecnoprocess Srl (Rome, Italy) (represented by: A. Majoli, lawyer)

Defendants: Delegation of the European Commission to Morocco, Delegation of the European Commission to the Republic of Nigeria and Commission of the European Communities

Form of order sought

| — | Declare that the Delegation to Abuja, the Delegation to Rabat and the European Commission have been unjusfiably enriched. |
| --- | --- |

—

Declare that the Delegation to Abuja, the Delegation to Rabat and the European Commission have been unjusfiably enriched.

| — | Consequently, order the Delegation to Abuja, the Delegation to Rabat and the European Community jointly and severally to pay the applicant the sum of EUR 114 069,94, together with interest until payment in full, or such other amount as the Court of First Instance may find to be appropriate, together with interest on that amount until payment in full. |
| --- | --- |

—

Consequently, order the Delegation to Abuja, the Delegation to Rabat and the European Community jointly and severally to pay the applicant the sum of EUR 114 069,94, together with interest until payment in full, or such other amount as the Court of First Instance may find to be appropriate, together with interest on that amount until payment in full.

| — | Order that the Delegation to Abuja, the Delegation to Rabat and the European Commission be jointly and severally liable to pay the costs of the present proceedings. |
| --- | --- |

—

Order that the Delegation to Abuja, the Delegation to Rabat and the European Commission be jointly and severally liable to pay the costs of the present proceedings.

Pleas in law and main arguments

The applicant in the present proceedings, which is the same party as the applicant in Case T-264/09 Tecnoprocess v Commission and Delegation of the European Commission to the Kingdom of Morocco and in Case T-367/09 Tecnoprocess v Commission and Delegation of the European Commission to the Republic of Nigeria, claims that in the performance of the contracts concluded with the Moroccan and Nigerian authorities that are the subject-matter of those cases the abovementioned Delegations and the European Commission have unjustifiably refused to enter into negotiations for the settlement of a number of issues that arise in relation to the execution of the contracts in question; and that notwithstanding that the applicant has, on several occasions, proposed to the Community institutions that the gains and losses arising under those contracts should be offset.

The result of that state of affairs is that the Delegations and the Commission have unjustifiably withheld payment of very significant sums which should have been transferred to the applicant, thereby giving rise to a situation which constitutes unjustified enrichment.

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| 5.12.2009 | EN | Official Journal of the European Union | C 297/31 |
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Action brought on 9 October 2009 — Deutsche Bahn v OHIM (Combination of the colours grey and red)

(Case T-404/09)

2009/C 297/47

Language in which the application was lodged: German

Parties

Applicant: Deutsche Bahn AG (Berlin, Germany) (represented by U. Hildebrandt, K. Schmidt-Hern and B. Weichhaus, lawyers)

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

Forms of order sought

| — | Annulment of the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 23 July 2009 (Case R 379/2009-1); |
| --- | --- |

—

Annulment of the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 23 July 2009 (Case R 379/2009-1);

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: A trade mark consisting of the combination of the colours grey and red for services in Class 39 (Application No 6 733 315)

Decision of the Examiner: Application refused

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: In its assessment of the mark applied for, the Office for Harmonisation in the Internal Market applied criteria which are inconsistent with the case-law of the Court of First Instance; it was, in particular, ignored that different criteria are applicable to the registration of colour marks for services than for goods.

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| 5.12.2009 | EN | Official Journal of the European Union | C 297/32 |
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5.12.2009

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C 297/32

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Action brought on 9 October 2009 — Deutsche Bahn v OHIM (Combination of the colours grey and red)

(Case T-405/09)

2009/C 297/48

Language in which the application was lodged: German

Parties

Applicant: Deutsche Bahn AG (represented by U. Hildebrandt, K. Schmidt-Hern and B. Weichhaus)

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

Forms of order sought

| — | Annulment of the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 23 July 2009 (Case R 379/2009-1); |
| --- | --- |

—

Annulment of the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 23 July 2009 (Case R 379/2009-1);

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: A trade mark consisting of the combination of the colours grey and red for services in Class 39 (Application No 6 735 401)

Decision of the Examiner: Application refused

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: In its assessment of the mark applied for, the Office for Harmonisation in the Internal Market applied criteria which are inconsistent with the case-law of the Court of First Instance; it was, in particular, ignored that different criteria are applicable to the registration of colour marks for services than for goods.

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| 5.12.2009 | EN | Official Journal of the European Union | C 297/32 |
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5.12.2009

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Official Journal of the European Union

C 297/32

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Action brought on 14 October 2009 — New Yorker SHK Jeans v OHIM — Vallis K — Vallis A (FISHBONE)

(Case T-415/09)

2009/C 297/49

Language in which the application was lodged: English

Parties

Applicant: New Yorker SHK Jeans GmbH (Braunschweig, Germany) (represented by: A. Gaul, T. Golda, S. Kirschstein-Freund and V. Spitz lawyers)

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

Other party to the proceedings before the Board of Appeal: Vallis K — Vallis A & Co. OE (Athens, Greece)

Form of order sought

| — | Amend the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 July 2009 in case R 1051/2008-1 and rule that the appeal is justified and the opposition is rejected for goods in class 25; |
| --- | --- |

—

Amend the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 July 2009 in case R 1051/2008-1 and rule that the appeal is justified and the opposition is rejected for goods in class 25;

| — | Alternatively, annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 July 2009 in case R 1051/2008-1 in so far as the appeal is dismissed and the rejection of the application for goods in class 25 is confirmed; |
| --- | --- |

—

Alternatively, annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 July 2009 in case R 1051/2008-1 in so far as the appeal is dismissed and the rejection of the application for goods in class 25 is confirmed;

| — | Order the defendant to pay the costs, including those incurred by the applicant before the Board of Appeal. |
| --- | --- |

—

Order the defendant to pay the costs, including those incurred by the applicant before the Board of Appeal.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark “FISHBONE” for goods in classes 18 and 25

Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

Mark or sign cited: Greek trade mark registration of the mark “FISHBONE BEACHWEAR” for goods in class 25; earlier sign “Fishbone” (word and device) used in the course of trade in Greece for “garments in general, footwear, and headgear”

Decision of the Opposition Division: Upheld the opposition

Decision of the Board of Appeal: Allowed the appeal in part and dismissed the appeal for the reminder

Pleas in law: Infringement of Articles 43(2) and 74(2) of Council Regulation No 40/94 (which became Articles 42(2) and 76(2) of Council Regulation No 207/2009), as well as of Rule 22(2) of Commission Regulation No 2868/95 (1) as the Board of Appeal wrongly concluded that it was entitled to take into account the catalogues submitted on 15 January 2007; infringement of Article 73 of Council Regulation No 40/94 (which became Article 75 of Council Regulation No 207/2009) as the Board of Appeal did not state the reasons for taking into account the catalogues submitted on 15 January 2007; infringement of Articles 43(2) and (5), as well as 15(1) and (2)(a) of Council Regulation No 40/94 (which became Articles 42(2), (5) and 15(1), first and second subparagraph, point a of Council Regulation No 207/2009) as the Board of Appeal wrongly stated that the genuine use of the opposition mark was shown; infringement of Article 8(1)(b) of Council Regulation No 40/94 (which became Article 8(1)(b) of Council Regulation No 207/2009) as the Board of Appeal wrongly assumed that there was a likelihood of confusion between the trade marks concerned.

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

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| 5.12.2009 | EN | Official Journal of the European Union | C 297/33 |
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Action brought on 16 October 2009 — Poslovni Sistem Mercator v OHIM — Mercator Multihull (MERCATOR STUDIOS)

(Case T-417/09)

2009/C 297/50

Language in which the application was lodged: English

Parties

Applicants: Poslovni Sistem Mercator, d.d. (Ljubljana, Slovenia) (represented by: M. Curell Aguila and J. Güell Serra, lawyers)

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

Other party to the proceedings before the Board of Appeal: Mercator Multihull, Inc. (Vancouver, Canada)

Form of order sought

| — | Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 16 July 2009 in case R 1031/2008-1; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 16 July 2009 in case R 1031/2008-1;

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

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

Community trade mark concerned: The word mark “MERCATOR STUDIOS”, for goods in class 42

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

Mark or sign cited: Slovenian trade mark registrations of the figurative mark “Mercator” registered for services in classes 35, 36, 39, 41 and 42, and for goods in classes 1-6, 8-11, 13-34; Slovenian trade mark registration of the figurative marks “Mercator Slovenska Košarica” registered for goods and services in classes 1-6, 8-11, 13-34, 39, 41, 43 and 44; International registrations of the mark “Mercator”, for goods in classes 1-6, 8-11, 13, 14, 16-18, 20-33, and for services in classes 36, 41 and 42

Decision of the Opposition Division: Rejected the opposition

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Articles 8(1)(b) and 8(5) of Council Regulation No 40/94 (which became Articles 8(1)(b) and 8(5) of Council Regulation No 207/2009) as the Board of Appeal failed to make a global analysis of the relevant factors and instead rejected the opposition on the basis that the services are different, and incorrectly assessed the ground of opposition based on the latter legal provision.

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| 5.12.2009 | EN | Official Journal of the European Union | C 297/33 |
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5.12.2009

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Official Journal of the European Union

C 297/33

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Action brought on 19 October 2009 — São Paulo Alpargatas v OHIM — Fischer (BAHANIAS LAS ORIGINALES)

(Case T-422/09)

2009/C 297/51

Language in which the application was lodged: Spanish

Parties

Applicant: São Paulo Alpargatas, SA (represented by: P. Merino Baylos, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Enrique Fischer

Form of order sought

| — | uphold the application and annul the decision of the Second Board of Appeal of OHIM of 17 August 2009, with all the appropriate consequences under Community law; |
| --- | --- |

—

uphold the application and annul the decision of the Second Board of Appeal of OHIM of 17 August 2009, with all the appropriate consequences under Community law;

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

—

order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Enrique Fischer

Community trade mark concerned: Figurative mark containing the verbal component “BAHIANAS (LAS ORIGINALES)” (Application No 5 024 591) for goods in class 25.

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

Mark or sign cited in opposition: Community figurative mark containing the verbal component “havaianas” (No 3 772 431), Spanish figurative mark containing the verbal component “havaianas” (M 2 341 904) and Spanish word mark “HAVAIANAS” (M 2 341 905), all for goods in class 25.

Decision of the Opposition Division: Refusal of the application for a Community mark in its entirety.

Decision of the Board of Appeal: Annulment of the contested decision.

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

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European Union Civil Service Tribunal

| 5.12.2009 | EN | Official Journal of the European Union | C 297/35 |
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5.12.2009

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Official Journal of the European Union

C 297/35

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Judgment of the Civil Service Tribunal (Second Chamber) of 10 September 2009 — Behmer v European Parliament

(Case F-16/08) (1)

(Officials - Procedure for the award of merit points at the European Parliament - Infringement of the obligation to state reasons - Statement of reasons given in the course of the procedure)

2009/C 297/52

Language of the case: French

Parties

Applicant: Joachim Behmer (Brussels, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal, lawyers)

Defendant: European Parliament (represented by: C. Burgos and R. Ignătescu, Agents)

Re:

Action for annulment of the decision to award the applicant two merit points for the years 2004 and 2006.

Operative part of the judgment

The Tribunal:

| 1. | Declares that it is not necessary to rule on the action in so far as it is directed against the decision of the European Parliament of 4 June 2007 awarding Mr Behmer two merit points in respect of the year 2004; |
| --- | --- |

1.

Declares that it is not necessary to rule on the action in so far as it is directed against the decision of the European Parliament of 4 June 2007 awarding Mr Behmer two merit points in respect of the year 2004;

| 2. | annuls the decision of the European Parliament of 26 June 2007 awarding Mr Behmer two merit points in respect of the year 2006; |
| --- | --- |

2.

annuls the decision of the European Parliament of 26 June 2007 awarding Mr Behmer two merit points in respect of the year 2006;

| 3. | orders the European Parliament to bear its own costs and to pay one half of the costs incurred by Mr Behmer; |
| --- | --- |

3.

orders the European Parliament to bear its own costs and to pay one half of the costs incurred by Mr Behmer;

| 4. | orders Mr Behmer to bear one half of his own costs. |
| --- | --- |

4.

orders Mr Behmer to bear one half of his own costs.

---

(1)  OJ C 116, of 09.05.2008 p. 32.

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| 5.12.2009 | EN | Official Journal of the European Union | C 297/35 |
| --- | --- | --- | --- |

5.12.2009

EN

Official Journal of the European Union

C 297/35

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Judgment of the Civil Service Tribunal (Third Chamber) of 7 October 2009 — Y v Commission

(Case F-29/08) (1)

(Contract staff - Dismissal for obviously inadequate work - Conduct in the service inadequate)

2009/C 297/53

Language of the case: French

Parties

Applicant: Y (Brussels, Belgium) (represented by: N. Lhoëst, lawyer)

Defendant: Commission of the European Communities (represented by: J.-P. Keppenne and L. Lozano Palacios, Agents)

Re:

Annulment of the decision of the authority authorised to conclude contracts of employment of 24 May 2007 to dismiss the applicant as a member of the contract staff on account of the applicant’s allegedly inadequate conduct in the service and compensation for the material and non-material damage suffered

Operative part of the judgment

The Tribunal:

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

1.

Dismisses the action;

| 2. | orders Y to pay all the costs. |
| --- | --- |

2.

orders Y to pay all the costs.

---

(1)  OJ C 116, of 09.05.2008 p. 35.

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| 5.12.2009 | EN | Official Journal of the European Union | C 297/35 |
| --- | --- | --- | --- |

5.12.2009

EN

Official Journal of the European Union

C 297/35

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Judgment of the Civil Service Tribunal (First Chamber) of 21 October 2009 — V v Commission

(Case F-33/08) (1)

(Staff case - Members of the contract staff - Recruitment - Refusal to employ the applicant for physical unfitness to perform her duties - Validity of the procedure - Validity of the medical examination prior to appointment - Preparatory acts)

2009/C 297/54

Language of the case: French

Parties

Applicant: V (Brussels, Belgium) (represented by: C. Ronzi, A. Grauling and É. Boigelot, lawyers)

Defendant: Commission of the European Communities (represented by: L. Lozano Palacios and D. Martin, Agents)

Re:

Staff case — Annulment of the Commission decision of 15 May 2007 informing the applicant that she did not fulfil the physically fitness requirements necessary for her to perform her duties and a claim for damages for material and non-material loss.

Operative part of the judgment

The Tribunal:

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

1.

Dismisses the action;

| 2. | Orders the Commission of the European Communities to bear its own costs and to pay half of V’s costs; |
| --- | --- |

2.

Orders the Commission of the European Communities to bear its own costs and to pay half of V’s costs;

| 3. | Orders V to bear half of her own costs. |
| --- | --- |

3.

Orders V to bear half of her own costs.

---

(1)  OJ C 158, 21.6.2008, p. 26.

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| 5.12.2009 | EN | Official Journal of the European Union | C 297/36 |
| --- | --- | --- | --- |

5.12.2009

EN

Official Journal of the European Union

C 297/36

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Judgment of the Civil Service Tribunal (Third Chamber) of 21 October 2009 — Ramaekers-Jørgensen v Commission

(Case F-74/08) (1)

(Officials - Community tax - Calculation - Combining the amount of personal remuneration and the survivor’s pension - Rules for collecting the tax - Date of levy)

2009/C 297/55

Language of the case: French

Parties

Applicant: Dominique Ramaekers-Jørgensen (Genval, Belgium) (represented by: L. Vogel, lawyer)

Defendant: Commission of the European Communities (represented by: J. Currall and D. Martin, Agents)

Intervener in support of the defendant: Council of the European Union (represented by K. Zieleśkiewicz and M. Bauer, Agents)

Re:

First, annulment of the decision of the appointing authority to calculate the applicant’s Community tax by combining the amount of personal remuneration and the survivor’s pension, and of the decision rejecting the application for the Community tax on her survivor’s pension not to be deducted in advance, prior to the payment thereof, from her remuneration. Second, a finding that Articles 3 and 4 of Regulation No 260/68, are unlawful.

Operative part of the judgment

The Tribunal:

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

1.

Dismisses the action;

| 2. | Orders Ms Ramaekers-Jørgensen to bear her own costs and to pay the cost of the Commission of the European Communities; |
| --- | --- |

2.

Orders Ms Ramaekers-Jørgensen to bear her own costs and to pay the cost of the Commission of the European Communities;

| 3. | Orders the Council of the European Union to bear its own costs. |
| --- | --- |

3.

Orders the Council of the European Union to bear its own costs.

---

(1)  OJ C 272, 25.10.2008, p. 52.

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| 5.12.2009 | EN | Official Journal of the European Union | C 297/36 |
| --- | --- | --- | --- |

5.12.2009

EN

Official Journal of the European Union

C 297/36

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Action brought on 14 September 2009 — Cusack-Gard'ner v Commission

(Case F-76/09)

2009/C 297/56

Language of the case: English

Parties

Applicant: Carolyn Cusack-Gard'ner (Wavre, Belgium) (represented by: J. Temple Lang, Solicitor)

Defendant: Commission of the European Communities

Subject-matter and description of the proceedings

Action for annulment of the decision of 22 June 2009 rejecting the applicant’s request to be able to benefit from a full reimbursement of the costs resulting from the treatment of her illness.

Form of order sought

| — | annul the decision of 22 June 2009 rejecting the applicant’s request; |
| --- | --- |

—

annul the decision of 22 June 2009 rejecting the applicant’s request;

| — | declare that Chapter 3 of Title II of the Commission Decision of 2 July 2007 laying down General Implementing Provisions for the reimbursement of medical expenses is inapplicable in accordance with Article 241 of the EC Treaty:






  — | insofar as it provides that the cost of providing ‘board and lodging’ for an essential living-in carer is not refundable, and, |
| --- | --- | --- |

—

declare that Chapter 3 of Title II of the Commission Decision of 2 July 2007 laying down General Implementing Provisions for the reimbursement of medical expenses is inapplicable in accordance with Article 241 of the EC Treaty:

—

insofar as it provides that the cost of providing ‘board and lodging’ for an essential living-in carer is not refundable, and,

| — | in so far as it imposes a limit on the amount of the repayment that may be made for the cost of an essential living-in care; |
| --- | --- |

—

in so far as it imposes a limit on the amount of the repayment that may be made for the cost of an essential living-in care;

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

—

order the defendant to pay the costs.

---

| 5.12.2009 | EN | Official Journal of the European Union | C 297/37 |
| --- | --- | --- | --- |

5.12.2009

EN

Official Journal of the European Union

C 297/37

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Action brought on 16 October 2009 — Nolin v Commission

(Case F-82/09)

2009/C 297/57

Language of the case: French

Parties

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

Defendant: Commission of the European Communities

Subject-matter and description of the proceedings

Application for annulment of the decision of the appointing authority of 19 December 2008 concerning the withdrawal of the applicant’s promotion points and priority points.

Form of order sought

| — | Annul the decision of the Director General of DG Admin of 19 December 2008; |
| --- | --- |

—

Annul the decision of the Director General of DG Admin of 19 December 2008;

| — | Order the Commission to pay to the applicant the sum of EUR 3 000 as damages to make good the non-material loss which he suffered as a result of its injurious and vexatious behaviour and the infringement of the principle of legitimate expectations which led to a failure to take account of his right to an effective remedy; |
| --- | --- |

—

Order the Commission to pay to the applicant the sum of EUR 3 000 as damages to make good the non-material loss which he suffered as a result of its injurious and vexatious behaviour and the infringement of the principle of legitimate expectations which led to a failure to take account of his right to an effective remedy;

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

—

Order the defendant to pay the costs.

---