# Official Journal C 103/2011

| | ISSN 1725-2423
  doi:10.3000/17252423.C_2011.103.eng |
| --- | --- |
| Official Journal
  of the European Union | C 103 |
| | |
| English edition | Information and Notices | Volume 542 April 2011 |

ISSN 1725-2423

doi:10.3000/17252423.C_2011.103.eng

Official Journal

of the European Union

C 103

English edition

Information and Notices

Volume 542 April 2011

---

| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | Court of Justice of the European Union |
| 2011/C 103/01 | Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 95, 26.3.2011 | 1 |

Notice No

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

2011/C 103/01

Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 95, 26.3.2011

Official Journal of the European Union

1

| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2011/C 103/02 | Joined Cases C-436/08 and C-4367/08: Judgment of the Court (Third Chamber) of 10 February 2011 (references for a preliminary ruling from the Unabhängiger Finanzsenat, Außenstelle Linz (Austria)) — Haribo Lakritzen Hans Riegel BetriebsgmbH (C-436/08), Österreichische Salinen AG (C-437/08) v Finanzamt Linz (Free movement of capital — Corporation tax — Exemption of nationally-sourced dividends — Exemption of foreign-sourced dividends only if certain conditions are complied with — Application of an imputation system to non-exempt foreign-sourced dividends — Proof required as to the foreign tax creditable) | 2 |
| 2011/C 103/03 | Case C-52/09: Judgment of the Court (First Chamber) of 17 February 2011 (reference for a preliminary ruling from the Stockholms tingsrätt — Sweden) — Konkurrensverket v TeliaSonera AB (Preliminary ruling — Article 102 TFEU — Abuse of dominant position — Prices applied by telecommunications operator — ADSL input services — Broadband connection services to end users — Margin squeeze on competitors) | 3 |
| 2011/C 103/04 | Case C-251/09: Judgment of the Court (Second Chamber) of 17 February 2011 — European Commission v Republic of Cyprus (Public works contracts and supply contracts — Water, energy, transport and telecommunications sectors — Directive 93/38/EEC — Contract notice — Award criteria — Equal treatment of tenderers — Principle of transparency — Directive 92/13/EEC — Review procedure — Requirement to state reasons for a decision to eliminate a tenderer) | 4 |
| 2011/C 103/05 | Case C-260/09 P: Judgment of the Court (First Chamber) of 10 February 2011 — Activision Blizzard Germany GmbH (formerly CD-Contact Data GmbH) v European Commission (Appeal — Article 81 EC and Article 53 of the EEA Agreement — Market for Nintendo video games consoles and games cartridges — Limitation of parallel exports in that market — Agreement between a manufacturer and an exclusive distributor — Distribution agreement allowing passive sales — Proof of a concurrence of wills in the absence of direct documentary evidence that passive sales were to be restricted — Standard of proof necessary to establish the existence of a vertical agreement) | 4 |
| 2011/C 103/06 | Case C-283/09: Judgment of the Court (First Chamber) of 17 February 2011 (reference for a preliminary ruling from the Sąd Rejonowy Warszawa — Republic of Poland) — Artur Weryński v Mediatel 4B Spółka z o.o. (Judicial cooperation in civil matters — Taking of evidence — Examination of a witness by the requested court upon application by the requesting court — Payment of witness expenses) | 5 |
| 2011/C 103/07 | Joined Cases C-307/09 to C-309/09: Judgment of the Court (Second Chamber) of 10 February 2011 (references for a preliminary ruling from the Raad van State (Netherlands)) — Vicoplus SC PUH (C-307/09), BAM Vermeer Contracting sp. zoo (C-308/09), Olbek Industrial Services sp. zoo (C-309/09) v Minister van Sociale Zaken en Werkgelegenheid (Freedom to provide services — Posting of workers — 2003 Act of Accession — Transitional measures — Access of Polish nationals to the labour market of States which were already Member States of the European Union at the time of the accession of the Republic of Poland — Requirement of a work permit for the making available of labour — Directive 96/71/EC — Article 1(3)) | 5 |
| 2011/C 103/08 | Case C-359/09: Judgment of the Court (Fourth Chamber) of 3 February 2011 (reference for a preliminary ruling from the Fővárosi Ítélőtábla (Hungary)) — Donat Cornelius Ebert v Budapesti Ügyvédi Kamara (Lawyers — Directive 89/48/EEC — Recognition of higher-education diplomas awarded on completion of professional education and training of at least three years’ duration — Directive 98/5/EC — Practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained — Use of the professional title of the host Member State — Conditions — Registration with the Bar Association of the host Member State) | 6 |
| 2011/C 103/09 | Case C-494/09: Judgment of the Court (Third Chamber) of 17 February 2011 (reference for a preliminary ruling from the Commissione tributaria provinciale di Alessandria — Italy) — Bolton Alimentari SpA v Agenzia Dogane Ufficio delle Dogane di Alessandria (Preliminary ruling — Admissibility — Customs duty — Tariff quota — Customs Code — Article 239 — Regulation (EEC) No 2454/93 — Articles 308a, 308b and 905 — Regulation (EC) No 975/2003 — Tuna — Exhaustion of quota — Date of opening — Sunday) | 6 |
| 2011/C 103/10 | Case C-11/10: Judgment of the Court (Fifth Chamber) of 17 February 2011 (reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands)) — Staatssecretaris van Financiën v Marishipping and Transport BV (Reference for a preliminary ruling — Regulation (EEC) No 2658/87 — Common Customs Tariff — Customs duties — Relief — Pharmaceutical substances — Composition — Restrictions) | 7 |
| 2011/C 103/11 | Case C-16/10: Judgment of the Court (Third Chamber) of 17 February 2011 (reference for a preliminary ruling from the Court of Appeal (England & Wales) (Civil Division) (United Kingdom)) — The Number Ltd, Conduit Enterprises Ltd v Office of Communications, British Telecommunications plc (Approximation of laws — Telecommunications — Networks and services — Directive 2002/22/EC — Designation of undertakings to provide universal service — Specific obligations imposed on the designated undertaking — Directory enquiry services and directories) | 8 |
| 2011/C 103/12 | Case C-25/10: Judgment of the Court (Second Chamber) of 10 February 2011 (reference for a preliminary ruling from the Tribunal de première instance de Liège (Belgium)) — Missionswerk Werner Heukelbach eV v État belge (Direct taxation — Free movement of capital — Inheritance tax — Legacies in favour of non-profit-making bodies — Refusal to apply a reduced rate where those bodies have their centre of operations in a Member State other than that in which the deceased had actually lived or worked — Restriction — Justification) | 8 |
| 2011/C 103/13 | Case C-30/10: Judgment of the Court (Eighth Chamber) of 10 February 2011 (reference for a preliminary ruling from the Linköpings tingsrätt — Sweden) — Lotta Andersson v Staten genom Kronofogdemyndigheten i Jönköping, Tillsynsmyndigheten (Reference for a preliminary ruling — Directive 80/987/EEC — Article 10(c) — National provision — Guarantee of payment of employees’ outstanding claims — Exclusion of persons who, more recently than six months before the lodgement of the application for the declaration of insolvency of the company which employed them, were owners of an essential part of that company and had considerable influence on it) | 9 |
| 2011/C 103/14 | Case C-78/10: Judgment of the Court (Fourth Chamber) of 17 February 2011 (reference for a preliminary ruling from the Cour d’appel de Rouen — France) — Marc Berel and Others v Administration des douanes de Rouen, Receveur principal des douanes du Havre, Administration des douanes du Havre (Community Customs Code — Articles 213, 233 and 239 — Joint and several liability of several debtors for the same customs debt — Remission of import duties — Extinction of the customs debt — No possibility for a jointly and severally liable debtor to rely on a remission granted to another debtor) | 9 |
| 2011/C 103/15 | Case C-321/10: Judgment of the Court (Seventh Chamber) of 17 February 2011 — European Commission v Kingdom of Belgium (Failure of a Member State to fulfil obligations — Directive 2007/2/EC — Environment policy — Infrastructure for Spatial Information in the European Community (INSPIRE) — Exchange and updates of data in electronic format — Incomplete transposition) | 10 |
| 2011/C 103/16 | Case C-391/10: Judgment of the Court (Sixth Chamber) of 3 February 2011 — European Commission v Kingdom of Belgium (Failure of a Member State to fulfil obligations — Directive 2007/36/EC — Exercise of certain rights of shareholders in listed companies — Failure to transpose completely within the prescribed period) | 10 |
| 2011/C 103/17 | Case C-395/10: Judgment of the Court (Sixth Chamber) of 3 February 2011 — European Commission v French Republic (Failure of a Member State to fulfil obligations — Directive 2007/2/EC — Environment policy — Infrastructure for Spatial Information — Exchange and update of data in electronic format — Failure to adopt national measures transposing the directive) | 11 |
| 2011/C 103/18 | Case C-143/10 P: Appeal brought on 29 January 2010 by Antoni Tomasz Uznański against the order of the Court of First Instance (Eighth Chamber) made on 27 November 2009 in Case T-348/09 Uznański v Poland | 11 |
| 2011/C 103/19 | Case C-611/10: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 23 December 2010 — Waldemar Hudzinski v Agentur für Arbeit Wesel — Familienkasse | 11 |
| 2011/C 103/20 | Case C-612/10: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 23 December 2010 — Jaroslaw Wawrzyniak v Agentur für Arbeit Mönchengladbach — Familienkasse | 11 |
| 2011/C 103/21 | Case C-625/10: Action brought on 29 December 2010 — European Commission v French Republic | 12 |
| 2011/C 103/22 | Case C-626/10P: Appeal brought on 28 December 2010 by Kalliope Agapiou Joséphidès against the judgment delivered by the General Court (Seventh Chamber) on 21 October 2010 in Case T-439/08 Agapiou Joséphidès v Commission and EACEA | 13 |
| 2011/C 103/23 | Case C-627/10: Action brought on 29 December 2010 — European Commission v Republic of Slovenia | 13 |
| 2011/C 103/24 | Case C-5/11: Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 6 January 2011 — Criminal Proceedings against Titus Alexander Jochen Donner | 14 |
| 2011/C 103/25 | Case C-25/11: Reference for a preliminary ruling from the Supremo Tribunal Administrativo (Portugal) lodged on 17 January 2011 — Varzim Sol — Turismo, Jogo e Animação, SA v Fazenda Pública | 14 |
| 2011/C 103/26 | Case C-34/11: Action brought on 21 January 2011 — European Commission v Portuguese Republic | 15 |
| 2011/C 103/27 | Case C-35/11: Reference for a preliminary ruling from High Court of Justice (England and Wales) (Chancery Division) (United Kingdom) made on 21 January 2011 — Test Claimants in the FII Group Litigation v Commissioners of Inland Revenue, Commissioners for Her Majesty's Revenue & Customs | 15 |
| 2011/C 103/28 | Case C-42/11: Reference for a preliminary ruling from the Cour D’Appel D’Amiens (France) lodged on 31 January 2011 — Criminal proceedings against João Pedro Lopes Da Silva Jorge | 16 |
| 2011/C 103/29 | Case C-46/11: Action brought on 1 February 2011 — European Commission v Republic of Poland | 16 |
| 2011/C 103/30 | Case C-48/11: Reference for a preliminary ruling from the Korkein hallinto-oikeus (Finland) lodged on 2 February 2011 — Veronsaajien oikeudenvalvontayksikkö | 17 |
| 2011/C 103/31 | Case C-52/11 P: Appeal brought on 4 February 2011 by Fernando Marcelino Victoria Sánchez against the order delivered by the General Court (Fourth Chamber) on 17 November 2010 in Case T-61/10 | 17 |
| | General Court |
| 2011/C 103/32 | Case T-118/07: Judgment of the General Court of 18 February 2011 — P.P.TV v OHIM — Rentrak (PPT) (Community trade mark — Opposition proceedings — Application for Community word mark PPT — Earlier national figurative mark PPTV — 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)) | 19 |
| 2011/C 103/33 | Case T-385/07: Judgment of the Court of 17 February 2011 — FIFA v Commission (Television broadcasting — Article 3a of Directive 89/552/EEC — Measures taken by the Kingdom of Belgium concerning events of major importance for Belgian society — Football World Cup — Decision declaring the measures compatible with Community law — Statement of reasons — Articles 43 EC and 49 EC — Right to property) | 19 |
| 2011/C 103/34 | Case T-55/08: Judgment of the General Court of 17 February 2011 — UEFA v Commission (Television broadcasting — Article 3a of Directive 89/552/EEC — Measures taken by the United Kingdom concerning events of major importance to United Kingdom society — European Football Championship — Decision declaring the measures compatible with Community law — Statement of reasons — Articles 49 EC and 86 EC — Right to property) | 20 |
| 2011/C 103/35 | Case T-68/08: Judgment of the General Court of 17 February 2011 — FIFA v Commission (Television broadcasting — Article 3a of Directive 89/552/EEC — Measures taken by the United Kingdom concerning events of major importance to United Kingdom society — Football World Cup — Decision declaring the measures compatible with Community law — Statement of reasons — Articles 43 EC, 49 EC and 86 EC — Right to property) | 20 |
| 2011/C 103/36 | Case T-10/09: Judgment of the General Court of 17 February 2011 — Formula One Licensing v OHIM — Global Sports Media (FI-LIVE) (Community trade mark — Opposition proceedings — Application for the Community figurative mark F1-LIVE — Earlier Community figurative marks, and national and international word marks, F1 and F1 Formula 1 — Opposition rejected by the Board of Appeal — Relative grounds for refusal — Article 8(1)(b) and (5) of Regulation (EC) No 40/94 (now Article 8(1)(b) and (5) of Regulation (EC) No 207/2009)) | 21 |
| 2011/C 103/37 | Case T-122/09: Judgment of the General Court of 17 February 2011 — Zhejiang Xinshiji Foods and Hubei Xinshiji Foods v Council (Dumping — Imports of prepared or preserved citrus fruits originating in the People’s Republic of China — Rights of the defence — Obligation to state reasons — Principle of sound administration — Article 15(2) and Article 20(4) and (5) of Regulation (EC) No 384/96 (now Article 15(2) and Article 20(4) and (5) of Regulation (EC) No 1225/2009)) | 21 |
| 2011/C 103/38 | Case T-324/09: Judgment of the General Court of 17 February 2011 — J & F Participações v OHIM — Plusfood Wrexham (Friboi) (Community trade mark — Opposition proceedings — Application for the Community figurative mark Friboi — Earlier national word mark FRIBO — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 — Genuine use of the earlier mark — Article 42(2) and (3) of Regulation No 207/2009) | 22 |
| 2011/C 103/39 | Case T-385/09: Judgment of the General Court of 17 February 2011 — Annco v OHIM — Freche et fils (ANN TAYLOR LOFT) (Community trade mark — Opposition proceedings — Application for the Community word mark ANN TAYLOR LOFT — Earlier national word mark LOFT — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009) | 22 |
| 2011/C 103/40 | Case T-471/10: Action brought on 28 September 2010 — Gill v Commission | 22 |
| 2011/C 103/41 | Case T-32/11: Action brought on 24 January 2011 — Verenigde Douaneagenten v Commission | 23 |
| 2011/C 103/42 | Case T-60/11: Action brought on 26 January 2011 — Kraft Foods Global Brands v OHIM — Fenaco (SUISSE PREMIUM) | 24 |
| 2011/C 103/43 | Case T-65/11: Action brought on 28 January 2011 — Recombined Dairy System v Commission | 25 |
| 2011/C 103/44 | Case T-78/11 P: Appeal brought on 7 February 2011 by Erika Lenz against the judgment of the Civil Service Tribunal delivered on 14 December 2010 in Case F-80/09 Lenz v Commission | 25 |
| 2011/C 103/45 | Case T-80/11: Action brought on 9 February 2011 — Nath Kalsi v OHIM — American Clothing Associates (RIDGE WOOD) | 26 |
| 2011/C 103/46 | Case T-85/11 P: Appeal brought on 11 February 2011 by Luigi Marcuccio against the judgment of the Civil Service Tribunal delivered on 23 November 2010 in Case F-65/09, Marcuccio v Commission | 27 |
| 2011/C 103/47 | Case T-88/11: Action brought on 18 February 2011 — BIA Separations v Commission | 27 |
| 2011/C 103/48 | Case T-92/11: Action brought on 18 February 2011 — Andersen v Commission | 28 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2011/C 103/02

Joined Cases C-436/08 and C-4367/08: Judgment of the Court (Third Chamber) of 10 February 2011 (references for a preliminary ruling from the Unabhängiger Finanzsenat, Außenstelle Linz (Austria)) — Haribo Lakritzen Hans Riegel BetriebsgmbH (C-436/08), Österreichische Salinen AG (C-437/08) v Finanzamt Linz (Free movement of capital — Corporation tax — Exemption of nationally-sourced dividends — Exemption of foreign-sourced dividends only if certain conditions are complied with — Application of an imputation system to non-exempt foreign-sourced dividends — Proof required as to the foreign tax creditable)

2

2011/C 103/03

Case C-52/09: Judgment of the Court (First Chamber) of 17 February 2011 (reference for a preliminary ruling from the Stockholms tingsrätt — Sweden) — Konkurrensverket v TeliaSonera AB (Preliminary ruling — Article 102 TFEU — Abuse of dominant position — Prices applied by telecommunications operator — ADSL input services — Broadband connection services to end users — Margin squeeze on competitors)

3

2011/C 103/04

Case C-251/09: Judgment of the Court (Second Chamber) of 17 February 2011 — European Commission v Republic of Cyprus (Public works contracts and supply contracts — Water, energy, transport and telecommunications sectors — Directive 93/38/EEC — Contract notice — Award criteria — Equal treatment of tenderers — Principle of transparency — Directive 92/13/EEC — Review procedure — Requirement to state reasons for a decision to eliminate a tenderer)

4

2011/C 103/05

Case C-260/09 P: Judgment of the Court (First Chamber) of 10 February 2011 — Activision Blizzard Germany GmbH (formerly CD-Contact Data GmbH) v European Commission (Appeal — Article 81 EC and Article 53 of the EEA Agreement — Market for Nintendo video games consoles and games cartridges — Limitation of parallel exports in that market — Agreement between a manufacturer and an exclusive distributor — Distribution agreement allowing passive sales — Proof of a concurrence of wills in the absence of direct documentary evidence that passive sales were to be restricted — Standard of proof necessary to establish the existence of a vertical agreement)

4

2011/C 103/06

Case C-283/09: Judgment of the Court (First Chamber) of 17 February 2011 (reference for a preliminary ruling from the Sąd Rejonowy Warszawa — Republic of Poland) — Artur Weryński v Mediatel 4B Spółka z o.o. (Judicial cooperation in civil matters — Taking of evidence — Examination of a witness by the requested court upon application by the requesting court — Payment of witness expenses)

5

2011/C 103/07

Joined Cases C-307/09 to C-309/09: Judgment of the Court (Second Chamber) of 10 February 2011 (references for a preliminary ruling from the Raad van State (Netherlands)) — Vicoplus SC PUH (C-307/09), BAM Vermeer Contracting sp. zoo (C-308/09), Olbek Industrial Services sp. zoo (C-309/09) v Minister van Sociale Zaken en Werkgelegenheid (Freedom to provide services — Posting of workers — 2003 Act of Accession — Transitional measures — Access of Polish nationals to the labour market of States which were already Member States of the European Union at the time of the accession of the Republic of Poland — Requirement of a work permit for the making available of labour — Directive 96/71/EC — Article 1(3))

5

2011/C 103/08

Case C-359/09: Judgment of the Court (Fourth Chamber) of 3 February 2011 (reference for a preliminary ruling from the Fővárosi Ítélőtábla (Hungary)) — Donat Cornelius Ebert v Budapesti Ügyvédi Kamara (Lawyers — Directive 89/48/EEC — Recognition of higher-education diplomas awarded on completion of professional education and training of at least three years’ duration — Directive 98/5/EC — Practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained — Use of the professional title of the host Member State — Conditions — Registration with the Bar Association of the host Member State)

6

2011/C 103/09

Case C-494/09: Judgment of the Court (Third Chamber) of 17 February 2011 (reference for a preliminary ruling from the Commissione tributaria provinciale di Alessandria — Italy) — Bolton Alimentari SpA v Agenzia Dogane Ufficio delle Dogane di Alessandria (Preliminary ruling — Admissibility — Customs duty — Tariff quota — Customs Code — Article 239 — Regulation (EEC) No 2454/93 — Articles 308a, 308b and 905 — Regulation (EC) No 975/2003 — Tuna — Exhaustion of quota — Date of opening — Sunday)

6

2011/C 103/10

Case C-11/10: Judgment of the Court (Fifth Chamber) of 17 February 2011 (reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands)) — Staatssecretaris van Financiën v Marishipping and Transport BV (Reference for a preliminary ruling — Regulation (EEC) No 2658/87 — Common Customs Tariff — Customs duties — Relief — Pharmaceutical substances — Composition — Restrictions)

7

2011/C 103/11

Case C-16/10: Judgment of the Court (Third Chamber) of 17 February 2011 (reference for a preliminary ruling from the Court of Appeal (England & Wales) (Civil Division) (United Kingdom)) — The Number Ltd, Conduit Enterprises Ltd v Office of Communications, British Telecommunications plc (Approximation of laws — Telecommunications — Networks and services — Directive 2002/22/EC — Designation of undertakings to provide universal service — Specific obligations imposed on the designated undertaking — Directory enquiry services and directories)

8

2011/C 103/12

Case C-25/10: Judgment of the Court (Second Chamber) of 10 February 2011 (reference for a preliminary ruling from the Tribunal de première instance de Liège (Belgium)) — Missionswerk Werner Heukelbach eV v État belge (Direct taxation — Free movement of capital — Inheritance tax — Legacies in favour of non-profit-making bodies — Refusal to apply a reduced rate where those bodies have their centre of operations in a Member State other than that in which the deceased had actually lived or worked — Restriction — Justification)

8

2011/C 103/13

Case C-30/10: Judgment of the Court (Eighth Chamber) of 10 February 2011 (reference for a preliminary ruling from the Linköpings tingsrätt — Sweden) — Lotta Andersson v Staten genom Kronofogdemyndigheten i Jönköping, Tillsynsmyndigheten (Reference for a preliminary ruling — Directive 80/987/EEC — Article 10(c) — National provision — Guarantee of payment of employees’ outstanding claims — Exclusion of persons who, more recently than six months before the lodgement of the application for the declaration of insolvency of the company which employed them, were owners of an essential part of that company and had considerable influence on it)

9

2011/C 103/14

Case C-78/10: Judgment of the Court (Fourth Chamber) of 17 February 2011 (reference for a preliminary ruling from the Cour d’appel de Rouen — France) — Marc Berel and Others v Administration des douanes de Rouen, Receveur principal des douanes du Havre, Administration des douanes du Havre (Community Customs Code — Articles 213, 233 and 239 — Joint and several liability of several debtors for the same customs debt — Remission of import duties — Extinction of the customs debt — No possibility for a jointly and severally liable debtor to rely on a remission granted to another debtor)

9

2011/C 103/15

Case C-321/10: Judgment of the Court (Seventh Chamber) of 17 February 2011 — European Commission v Kingdom of Belgium (Failure of a Member State to fulfil obligations — Directive 2007/2/EC — Environment policy — Infrastructure for Spatial Information in the European Community (INSPIRE) — Exchange and updates of data in electronic format — Incomplete transposition)

10

2011/C 103/16

Case C-391/10: Judgment of the Court (Sixth Chamber) of 3 February 2011 — European Commission v Kingdom of Belgium (Failure of a Member State to fulfil obligations — Directive 2007/36/EC — Exercise of certain rights of shareholders in listed companies — Failure to transpose completely within the prescribed period)

10

2011/C 103/17

Case C-395/10: Judgment of the Court (Sixth Chamber) of 3 February 2011 — European Commission v French Republic (Failure of a Member State to fulfil obligations — Directive 2007/2/EC — Environment policy — Infrastructure for Spatial Information — Exchange and update of data in electronic format — Failure to adopt national measures transposing the directive)

11

2011/C 103/18

Case C-143/10 P: Appeal brought on 29 January 2010 by Antoni Tomasz Uznański against the order of the Court of First Instance (Eighth Chamber) made on 27 November 2009 in Case T-348/09 Uznański v Poland

11

2011/C 103/19

Case C-611/10: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 23 December 2010 — Waldemar Hudzinski v Agentur für Arbeit Wesel — Familienkasse

11

2011/C 103/20

Case C-612/10: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 23 December 2010 — Jaroslaw Wawrzyniak v Agentur für Arbeit Mönchengladbach — Familienkasse

11

2011/C 103/21

Case C-625/10: Action brought on 29 December 2010 — European Commission v French Republic

12

2011/C 103/22

Case C-626/10P: Appeal brought on 28 December 2010 by Kalliope Agapiou Joséphidès against the judgment delivered by the General Court (Seventh Chamber) on 21 October 2010 in Case T-439/08 Agapiou Joséphidès v Commission and EACEA

13

2011/C 103/23

Case C-627/10: Action brought on 29 December 2010 — European Commission v Republic of Slovenia

13

2011/C 103/24

Case C-5/11: Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 6 January 2011 — Criminal Proceedings against Titus Alexander Jochen Donner

14

2011/C 103/25

Case C-25/11: Reference for a preliminary ruling from the Supremo Tribunal Administrativo (Portugal) lodged on 17 January 2011 — Varzim Sol — Turismo, Jogo e Animação, SA v Fazenda Pública

14

2011/C 103/26

Case C-34/11: Action brought on 21 January 2011 — European Commission v Portuguese Republic

15

2011/C 103/27

Case C-35/11: Reference for a preliminary ruling from High Court of Justice (England and Wales) (Chancery Division) (United Kingdom) made on 21 January 2011 — Test Claimants in the FII Group Litigation v Commissioners of Inland Revenue, Commissioners for Her Majesty's Revenue & Customs

15

2011/C 103/28

Case C-42/11: Reference for a preliminary ruling from the Cour D’Appel D’Amiens (France) lodged on 31 January 2011 — Criminal proceedings against João Pedro Lopes Da Silva Jorge

16

2011/C 103/29

Case C-46/11: Action brought on 1 February 2011 — European Commission v Republic of Poland

16

2011/C 103/30

Case C-48/11: Reference for a preliminary ruling from the Korkein hallinto-oikeus (Finland) lodged on 2 February 2011 — Veronsaajien oikeudenvalvontayksikkö

17

2011/C 103/31

Case C-52/11 P: Appeal brought on 4 February 2011 by Fernando Marcelino Victoria Sánchez against the order delivered by the General Court (Fourth Chamber) on 17 November 2010 in Case T-61/10

17

General Court

2011/C 103/32

Case T-118/07: Judgment of the General Court of 18 February 2011 — P.P.TV v OHIM — Rentrak (PPT) (Community trade mark — Opposition proceedings — Application for Community word mark PPT — Earlier national figurative mark PPTV — 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))

19

2011/C 103/33

Case T-385/07: Judgment of the Court of 17 February 2011 — FIFA v Commission (Television broadcasting — Article 3a of Directive 89/552/EEC — Measures taken by the Kingdom of Belgium concerning events of major importance for Belgian society — Football World Cup — Decision declaring the measures compatible with Community law — Statement of reasons — Articles 43 EC and 49 EC — Right to property)

19

2011/C 103/34

Case T-55/08: Judgment of the General Court of 17 February 2011 — UEFA v Commission (Television broadcasting — Article 3a of Directive 89/552/EEC — Measures taken by the United Kingdom concerning events of major importance to United Kingdom society — European Football Championship — Decision declaring the measures compatible with Community law — Statement of reasons — Articles 49 EC and 86 EC — Right to property)

20

2011/C 103/35

Case T-68/08: Judgment of the General Court of 17 February 2011 — FIFA v Commission (Television broadcasting — Article 3a of Directive 89/552/EEC — Measures taken by the United Kingdom concerning events of major importance to United Kingdom society — Football World Cup — Decision declaring the measures compatible with Community law — Statement of reasons — Articles 43 EC, 49 EC and 86 EC — Right to property)

20

2011/C 103/36

Case T-10/09: Judgment of the General Court of 17 February 2011 — Formula One Licensing v OHIM — Global Sports Media (FI-LIVE) (Community trade mark — Opposition proceedings — Application for the Community figurative mark F1-LIVE — Earlier Community figurative marks, and national and international word marks, F1 and F1 Formula 1 — Opposition rejected by the Board of Appeal — Relative grounds for refusal — Article 8(1)(b) and (5) of Regulation (EC) No 40/94 (now Article 8(1)(b) and (5) of Regulation (EC) No 207/2009))

21

2011/C 103/37

Case T-122/09: Judgment of the General Court of 17 February 2011 — Zhejiang Xinshiji Foods and Hubei Xinshiji Foods v Council (Dumping — Imports of prepared or preserved citrus fruits originating in the People’s Republic of China — Rights of the defence — Obligation to state reasons — Principle of sound administration — Article 15(2) and Article 20(4) and (5) of Regulation (EC) No 384/96 (now Article 15(2) and Article 20(4) and (5) of Regulation (EC) No 1225/2009))

21

2011/C 103/38

Case T-324/09: Judgment of the General Court of 17 February 2011 — J & F Participações v OHIM — Plusfood Wrexham (Friboi) (Community trade mark — Opposition proceedings — Application for the Community figurative mark Friboi — Earlier national word mark FRIBO — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 — Genuine use of the earlier mark — Article 42(2) and (3) of Regulation No 207/2009)

22

2011/C 103/39

Case T-385/09: Judgment of the General Court of 17 February 2011 — Annco v OHIM — Freche et fils (ANN TAYLOR LOFT) (Community trade mark — Opposition proceedings — Application for the Community word mark ANN TAYLOR LOFT — Earlier national word mark LOFT — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

22

2011/C 103/40

Case T-471/10: Action brought on 28 September 2010 — Gill v Commission

22

2011/C 103/41

Case T-32/11: Action brought on 24 January 2011 — Verenigde Douaneagenten v Commission

23

2011/C 103/42

Case T-60/11: Action brought on 26 January 2011 — Kraft Foods Global Brands v OHIM — Fenaco (SUISSE PREMIUM)

24

2011/C 103/43

Case T-65/11: Action brought on 28 January 2011 — Recombined Dairy System v Commission

25

2011/C 103/44

Case T-78/11 P: Appeal brought on 7 February 2011 by Erika Lenz against the judgment of the Civil Service Tribunal delivered on 14 December 2010 in Case F-80/09 Lenz v Commission

25

2011/C 103/45

Case T-80/11: Action brought on 9 February 2011 — Nath Kalsi v OHIM — American Clothing Associates (RIDGE WOOD)

26

2011/C 103/46

Case T-85/11 P: Appeal brought on 11 February 2011 by Luigi Marcuccio against the judgment of the Civil Service Tribunal delivered on 23 November 2010 in Case F-65/09, Marcuccio v Commission

27

2011/C 103/47

Case T-88/11: Action brought on 18 February 2011 — BIA Separations v Commission

27

2011/C 103/48

Case T-92/11: Action brought on 18 February 2011 — Andersen v Commission

28

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

EN

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

| 2.4.2011 | EN | Official Journal of the European Union | C 103/1 |
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2.4.2011

EN

Official Journal of the European Union

C 103/1

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2011/C 103/01

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

OJ C 95, 26.3.2011

Past publications

OJ C 89, 19.3.2011

OJ C 80, 12.3.2011

OJ C 72, 5.3.2011

OJ C 63, 26.2.2011

OJ C 55, 19.2.2011

OJ C 46, 12.2.2011

These texts are available on:

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

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V Announcements

COURT PROCEEDINGS

Court of Justice

| 2.4.2011 | EN | Official Journal of the European Union | C 103/2 |
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2.4.2011

EN

Official Journal of the European Union

C 103/2

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Judgment of the Court (Third Chamber) of 10 February 2011 (references for a preliminary ruling from the Unabhängiger Finanzsenat, Außenstelle Linz (Austria)) — Haribo Lakritzen Hans Riegel BetriebsgmbH (C-436/08), Österreichische Salinen AG (C-437/08) v Finanzamt Linz

(Joined Cases C-436/08 and C-4367/08) (1)

(Free movement of capital - Corporation tax - Exemption of nationally-sourced dividends - Exemption of foreign-sourced dividends only if certain conditions are complied with - Application of an imputation system to non-exempt foreign-sourced dividends - Proof required as to the foreign tax creditable)

2011/C 103/02

Language of the case: German

Referring court

Unabhängiger Finanzsenat, Außenstelle Linz

Parties to the main proceedings

Applicants: Haribo Lakritzen Hans Riegel BetriebsgmbH (C-436/08), Österreichische Salinen AG (C-437/08)

Defendant: Finanzamt Linz

Re:

References for a preliminary ruling — Unabhängiger Finanzsenat — Interpretation of Community law — National legislation under which nationally-sourced dividends are subject to an exemption system, whereas that system applies to foreign-sourced dividends only where the threshold of a 25 % holding is reached — Administrative and judicial practice providing, in response to Community law requirements, for the application of an imputation system to foreign-sourced dividends from a holding below the 25 % threshold

Operative part of the judgment

| 1. | Article 63 TFEU must be interpreted as precluding legislation of a Member State under which portfolio dividends from holdings in resident companies are exempt from corporation tax and portfolio dividends from companies established in non-member States party to the Agreement on the European Economic Area of 2 May 1992 are so exempt only if a comprehensive agreement for mutual assistance with regard to administrative matters and enforcement exists between the Member State and non-member State concerned, since only the existence of an agreement for mutual assistance with regard to administrative matters proves necessary for the purpose of attaining the objectives of the legislation in question. |
| --- | --- |

1.

Article 63 TFEU must be interpreted as precluding legislation of a Member State under which portfolio dividends from holdings in resident companies are exempt from corporation tax and portfolio dividends from companies established in non-member States party to the Agreement on the European Economic Area of 2 May 1992 are so exempt only if a comprehensive agreement for mutual assistance with regard to administrative matters and enforcement exists between the Member State and non-member State concerned, since only the existence of an agreement for mutual assistance with regard to administrative matters proves necessary for the purpose of attaining the objectives of the legislation in question.

| 2. | Article 63 TFEU must be interpreted as not precluding legislation of a Member State under which portfolio dividends which a resident company receives from another resident company are exempt from corporation tax whilst portfolio dividends which a resident company receives from a company established in another Member State or in a non-member State party to the Agreement on the European Economic Area of 2 May 1992 are subject to that tax, provided, however, that the tax paid in the State in which the last-mentioned company is resident is credited against the tax payable in the Member State of the recipient company and the administrative burdens imposed on the recipient company in order to qualify for such a credit are not excessive. Information demanded by the national tax authority from the company receiving dividends that relates to the tax that has actually been charged on the profits of the company distributing dividends in the State in which the latter is resident is an intrinsic part of the very operation of the imputation method and cannot be regarded as an excessive administrative burden. |
| --- | --- |

2.

Article 63 TFEU must be interpreted as not precluding legislation of a Member State under which portfolio dividends which a resident company receives from another resident company are exempt from corporation tax whilst portfolio dividends which a resident company receives from a company established in another Member State or in a non-member State party to the Agreement on the European Economic Area of 2 May 1992 are subject to that tax, provided, however, that the tax paid in the State in which the last-mentioned company is resident is credited against the tax payable in the Member State of the recipient company and the administrative burdens imposed on the recipient company in order to qualify for such a credit are not excessive. Information demanded by the national tax authority from the company receiving dividends that relates to the tax that has actually been charged on the profits of the company distributing dividends in the State in which the latter is resident is an intrinsic part of the very operation of the imputation method and cannot be regarded as an excessive administrative burden.

| 3. | Article 63 TFEU must be interpreted as precluding national legislation which, in order to prevent economic double taxation, exempts portfolio dividends received by a resident company and distributed by another resident company from corporation tax and which, for dividends distributed by a company established in a non-member State other than a State party to the Agreement on the European Economic Area of 2 May 1992, provides neither for exemption of the dividends nor for a system under which a credit is granted for the tax that the company making the distribution pays in the State in which it is resident. |
| --- | --- |

3.

Article 63 TFEU must be interpreted as precluding national legislation which, in order to prevent economic double taxation, exempts portfolio dividends received by a resident company and distributed by another resident company from corporation tax and which, for dividends distributed by a company established in a non-member State other than a State party to the Agreement on the European Economic Area of 2 May 1992, provides neither for exemption of the dividends nor for a system under which a credit is granted for the tax that the company making the distribution pays in the State in which it is resident.

| 4. | Article 63 TFEU does not preclude the practice of a national tax authority which, for dividends from certain non-member States, applies the imputation method where the holding of the recipient company in the capital of the company making the distribution is below a certain threshold and the exemption method above that threshold, whilst it systematically applies the exemption method for nationally-sourced dividends, provided, however, that the mechanisms in question designed to prevent or mitigate distributed profits being liable to a series of charges to tax lead to equivalent results. The fact that the national tax authority demands information from the company receiving dividends relating to the tax that has actually been charged on the profits of the company distributing them in the non-member State in which the latter is resident is an intrinsic part of the very operation of the imputation method and does not affect, as such, the equivalence between the exemption and imputation methods. |
| --- | --- |

4.

Article 63 TFEU does not preclude the practice of a national tax authority which, for dividends from certain non-member States, applies the imputation method where the holding of the recipient company in the capital of the company making the distribution is below a certain threshold and the exemption method above that threshold, whilst it systematically applies the exemption method for nationally-sourced dividends, provided, however, that the mechanisms in question designed to prevent or mitigate distributed profits being liable to a series of charges to tax lead to equivalent results. The fact that the national tax authority demands information from the company receiving dividends relating to the tax that has actually been charged on the profits of the company distributing them in the non-member State in which the latter is resident is an intrinsic part of the very operation of the imputation method and does not affect, as such, the equivalence between the exemption and imputation methods.

| 5. | Article 63 TFEU must be interpreted as:






  — | precluding national legislation which grants resident companies the possibility of carrying losses suffered in a tax year forward to subsequent tax years and which prevents the economic double taxation of dividends by applying the exemption method to nationally-sourced dividends, whereas it applies the imputation method to dividends distributed by companies established in another Member State or in a non-member State, in so far as, when the imputation method is applied, such legislation does not allow the credit for the corporation tax paid in the State where the company distributing dividends is established to be carried forward to the following tax years if the recipient company has recorded an operating loss for the tax year in which it received the foreign-sourced dividends, and |
| --- | --- | --- |

5.

Article 63 TFEU must be interpreted as:

—

precluding national legislation which grants resident companies the possibility of carrying losses suffered in a tax year forward to subsequent tax years and which prevents the economic double taxation of dividends by applying the exemption method to nationally-sourced dividends, whereas it applies the imputation method to dividends distributed by companies established in another Member State or in a non-member State, in so far as, when the imputation method is applied, such legislation does not allow the credit for the corporation tax paid in the State where the company distributing dividends is established to be carried forward to the following tax years if the recipient company has recorded an operating loss for the tax year in which it received the foreign-sourced dividends, and

| — | not obliging a Member State to provide, in its tax legislation, that a credit is to be granted for the withholding tax levied on dividends in another Member State or in a non-member State in order to prevent the juridical double taxation — resulting from the parallel exercise by the States concerned of their respective powers of taxation — of the dividends received by a company established in the first Member State. |
| --- | --- |

—

not obliging a Member State to provide, in its tax legislation, that a credit is to be granted for the withholding tax levied on dividends in another Member State or in a non-member State in order to prevent the juridical double taxation — resulting from the parallel exercise by the States concerned of their respective powers of taxation — of the dividends received by a company established in the first Member State.

---

(1)  OJ C 19, 24.1.2009.

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| 2.4.2011 | EN | Official Journal of the European Union | C 103/3 |
| --- | --- | --- | --- |

2.4.2011

EN

Official Journal of the European Union

C 103/3

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Judgment of the Court (First Chamber) of 17 February 2011 (reference for a preliminary ruling from the Stockholms tingsrätt — Sweden) — Konkurrensverket v TeliaSonera AB

(Case C-52/09) (1)

(Preliminary ruling - Article 102 TFEU - Abuse of dominant position - Prices applied by telecommunications operator - ADSL input services - Broadband connection services to end users - Margin squeeze on competitors)

2011/C 103/03

Language of the case: Swedish

Referring court

Stockholms tingsrätt

Parties to the main proceedings

Applicant: Konkurrensverket

Defendant: TeliaSonera Sverige AB

Intervening party: Tele2 Sverige AB

Re:

Reference for a preliminary ruling — Stockholms tingsrätt — Interpretation of Article 82 EC — Margin squeeze — Prices applied by a telecommunications operator which formerly held a historical monopoly for ADSL access — Spread between the prices invoiced by the operator to intermediate operators for the wholesale supply of ADSL access and the tariffs applied by the operator to consumers for ADSL access not sufficient to cover the additional costs borne by the operator itself for the supply of those retail services

Operative part of the judgment

In the absence of any objective justification, the fact that a vertically integrated undertaking, holding a dominant position on the wholesale market in asymmetric digital subscriber line input services, applies a pricing practice of such a kind that the spread between the prices applied on that market and those applied in the retail market for broadband connection services to end users is not sufficient to cover the specific costs which that undertaking must incur in order to gain access to that retail market may constitute an abuse within the meaning of Article 102 TFEU.

When assessing whether such a practice is abusive, all of the circumstances of each individual case should be taken into consideration. In particular:

| — | as a general rule, primarily the prices and costs of the undertaking concerned on the retail services market should be taken into consideration. Only where it is not possible, in particular circumstances, to refer to those prices and costs should those of competitors on the same market be examined, and |
| --- | --- |

—

as a general rule, primarily the prices and costs of the undertaking concerned on the retail services market should be taken into consideration. Only where it is not possible, in particular circumstances, to refer to those prices and costs should those of competitors on the same market be examined, and

| — | it is necessary to demonstrate that, taking particular account of whether the wholesale product is indispensable, that practice produces an anti-competitive effect, at least potentially, on the retail market, and that the practice is not in any way economically justified. |
| --- | --- |

—

it is necessary to demonstrate that, taking particular account of whether the wholesale product is indispensable, that practice produces an anti-competitive effect, at least potentially, on the retail market, and that the practice is not in any way economically justified.

The following factors are, as a general rule, not relevant to such an assessment:

| — | the absence of any regulatory obligation on the undertaking concerned to supply asymmetric digital subscriber line input services on the wholesale market in which it holds a dominant position; |
| --- | --- |

—

the absence of any regulatory obligation on the undertaking concerned to supply asymmetric digital subscriber line input services on the wholesale market in which it holds a dominant position;

| — | the degree of dominance held by that undertaking in that market; |
| --- | --- |

—

the degree of dominance held by that undertaking in that market;

| — | the fact that that undertaking does not also hold a dominant position in the retail market for broadband connection services to end users; |
| --- | --- |

—

the fact that that undertaking does not also hold a dominant position in the retail market for broadband connection services to end users;

| — | whether the customers to whom such a pricing practice is applied are new or existing customers of the undertaking concerned; |
| --- | --- |

—

whether the customers to whom such a pricing practice is applied are new or existing customers of the undertaking concerned;

| — | the fact that the dominant undertaking is unable to recoup any losses which the establishment of such a pricing practice might cause, or |
| --- | --- |

—

the fact that the dominant undertaking is unable to recoup any losses which the establishment of such a pricing practice might cause, or

| — | the extent to which the markets concerned are mature markets and whether they involve new technology, requiring high levels of investment |
| --- | --- |

—

the extent to which the markets concerned are mature markets and whether they involve new technology, requiring high levels of investment

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(1)  OJ C 90, 18.04.2009.

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| 2.4.2011 | EN | Official Journal of the European Union | C 103/4 |
| --- | --- | --- | --- |

2.4.2011

EN

Official Journal of the European Union

C 103/4

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Judgment of the Court (Second Chamber) of 17 February 2011 — European Commission v Republic of Cyprus

(Case C-251/09) (1)

(Public works contracts and supply contracts - Water, energy, transport and telecommunications sectors - Directive 93/38/EEC - Contract notice - Award criteria - Equal treatment of tenderers - Principle of transparency - Directive 92/13/EEC - Review procedure - Requirement to state reasons for a decision to eliminate a tenderer)

2011/C 103/04

Language of the case: Greek

Parties

Applicant: European Commission (represented by: C. Zadra, I. Chatzigiannis and M. Patakia, agents, agents)

Defendant: Republic of Cyprus (represented by: K. Likourgos and A. Patanzi-Lamprou, agents)

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 4(2) and 31(1) of Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1993 L 199, p. 84) — Infringement of Article 1(1) of Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1992 L 76, p. 14) — Requirement to state reasons for a decision to eliminate a tenderer — Requirement to ensure that decisions taken by the contracting authorities may be reviewed effectively and as rapidly as possible — Principles of equal treatment and transparency

Operative part of the judgment

The Court:

| 1. | dismisses the action; |
| --- | --- |

1.

dismisses the action;

| 2. | orders the European Commission to pay the costs. |
| --- | --- |

2.

orders the European Commission to pay the costs.

---

(1)  OJ C 233, 26.9.2009.

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| 2.4.2011 | EN | Official Journal of the European Union | C 103/4 |
| --- | --- | --- | --- |

2.4.2011

EN

Official Journal of the European Union

C 103/4

---

Judgment of the Court (First Chamber) of 10 February 2011 — Activision Blizzard Germany GmbH (formerly CD-Contact Data GmbH) v European Commission

(Case C-260/09 P) (1)

(Appeal - Article 81 EC and Article 53 of the EEA Agreement - Market for Nintendo video games consoles and games cartridges - Limitation of parallel exports in that market - Agreement between a manufacturer and an exclusive distributor - Distribution agreement allowing passive sales - Proof of a concurrence of wills in the absence of direct documentary evidence that passive sales were to be restricted - Standard of proof necessary to establish the existence of a vertical agreement)

2011/C 103/05

Language of the case: English

Parties

Appellant: Activision Blizzard Germany GmbH (formerly CD-Contact Data GmbH) (represented by: J.K. de Pree and E.N.M. Raedts, advocaten)

Other party to the proceedings: European Commission (represented by: S. Noë and F. Ronkes Agerbeek, acting as Agents)

Re:

Appeal brought against the judgment of the Court of First Instance (Eighth Chamber) of 30 April 2009 in Case T-18/03 CD-Contact Data GmbH v Commission of the European Communities by which the Court reduced the fine imposed on the appellant and dismissed as to the remainder an action for annulment of Commission Decision 2003/675/EC of 30 October 2002 relating to a proceeding pursuant to Article 81 of the EC Treaty (COMP/35.587 PO Video Games, COMP/35.706 PO Nintendo Distribution and COMP/36.321 Omega — Nintendo) concerning a complex of agreements and concerted practices in the markets for Nintendo consoles and video games cartridges compatible with Nintendo consoles designed to restrict parallel exports of those consoles and cartridges

Operative part of the judgment

The Court:

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

1.

Dismisses the appeal;

| 2. | Orders Activision Blizzard Germany GmbH to pay the costs. |
| --- | --- |

2.

Orders Activision Blizzard Germany GmbH to pay the costs.

---

(1)  OJ C 220, 12.9.2009.

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| 2.4.2011 | EN | Official Journal of the European Union | C 103/5 |
| --- | --- | --- | --- |

2.4.2011

EN

Official Journal of the European Union

C 103/5

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Judgment of the Court (First Chamber) of 17 February 2011 (reference for a preliminary ruling from the Sąd Rejonowy Warszawa — Republic of Poland) — Artur Weryński v Mediatel 4B Spółka z o.o.

(Case C-283/09) (1)

(Judicial cooperation in civil matters - Taking of evidence - Examination of a witness by the requested court upon application by the requesting court - Payment of witness expenses)

2011/C 103/06

Language of the case: Polish

Referring court

Sąd Rejonowy Warszawa

Parties to the main proceedings

Applicant: Artur Weryński

Defendant: Mediatel 4B Spółka z o.o.

Re:

Reference for a preliminary ruling — Interpretation of Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters (OJ 2001 L 174, p. 1) — Hearing of a witness by a court of a Member State at the request of a court of another Member State — Witness expenses — Possibility for the requested court to demand from the requesting court payment of an advance for the witness heard

Operative part of the judgment

Articles 14 and 18 of Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters must be interpreted as meaning that a requesting court is not obliged to pay an advance to the requested court for the expenses of a witness or to reimburse the expenses paid to the witness examined.

---

(1)  OJ C 244, 10.10.2009.

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| 2.4.2011 | EN | Official Journal of the European Union | C 103/5 |
| --- | --- | --- | --- |

2.4.2011

EN

Official Journal of the European Union

C 103/5

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Judgment of the Court (Second Chamber) of 10 February 2011 (references for a preliminary ruling from the Raad van State (Netherlands)) — Vicoplus SC PUH (C-307/09), BAM Vermeer Contracting sp. zoo (C-308/09), Olbek Industrial Services sp. zoo (C-309/09) v Minister van Sociale Zaken en Werkgelegenheid

(Joined Cases C-307/09 to C-309/09) (1)

(Freedom to provide services - Posting of workers - 2003 Act of Accession - Transitional measures - Access of Polish nationals to the labour market of States which were already Member States of the European Union at the time of the accession of the Republic of Poland - Requirement of a work permit for the making available of labour - Directive 96/71/EC - Article 1(3))

2011/C 103/07

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Applicants: Vicoplus SC PUH (C-307/09), BAM Vermeer Contracting sp. zoo (C-308/09), Olbek Industrial Services sp. zoo (C-309/09)

Defendant: Minister van Sociale Zaken en Werkgelegenheid

Re:

Reference for a preliminary ruling — Raad van State (Netherlands) — Interpretation of Articles 49 EC and 50 EC and of Article 1(3)(c) of Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services (OJ 1997 L 18, p. 1) — National legislation under which a work permit is required for the making available of workers

Operative part of the judgment

| 1. | Articles 56 TFEU and 57 TFEU do not preclude a Member State from making, during the transitional period provided for in Chapter 2, paragraph 2, of Annex XII to the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded, the hiring-out, within the meaning of Article 1(3)(c) of Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services, on its territory, of workers who are Polish nationals subject to the obtaining of a work permit. |
| --- | --- |

1.

Articles 56 TFEU and 57 TFEU do not preclude a Member State from making, during the transitional period provided for in Chapter 2, paragraph 2, of Annex XII to the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded, the hiring-out, within the meaning of Article 1(3)(c) of Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services, on its territory, of workers who are Polish nationals subject to the obtaining of a work permit.

| 2. | The hiring-out of workers, within the meaning of Article 1(3)(c) of Directive 96/71, is a service provided for remuneration in respect of which the worker who has been hired out remains in the employ of the undertaking providing the service, no contract of employment being entered into with the user undertaking. It is characterised by the fact that the movement of the worker to the host Member State constitutes the very purpose of the provision of services effected by the undertaking providing the services and that that worker carries out his tasks under the control and direction of the user undertaking. |
| --- | --- |

2.

The hiring-out of workers, within the meaning of Article 1(3)(c) of Directive 96/71, is a service provided for remuneration in respect of which the worker who has been hired out remains in the employ of the undertaking providing the service, no contract of employment being entered into with the user undertaking. It is characterised by the fact that the movement of the worker to the host Member State constitutes the very purpose of the provision of services effected by the undertaking providing the services and that that worker carries out his tasks under the control and direction of the user undertaking.

---

(1)  OJ C 267, 7.11.2009.

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| 2.4.2011 | EN | Official Journal of the European Union | C 103/6 |
| --- | --- | --- | --- |

2.4.2011

EN

Official Journal of the European Union

C 103/6

---

Judgment of the Court (Fourth Chamber) of 3 February 2011 (reference for a preliminary ruling from the Fővárosi Ítélőtábla (Hungary)) — Donat Cornelius Ebert v Budapesti Ügyvédi Kamara

(Case C-359/09) (1)

(Lawyers - Directive 89/48/EEC - Recognition of higher-education diplomas awarded on completion of professional education and training of at least three years’ duration - Directive 98/5/EC - Practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained - Use of the professional title of the host Member State - Conditions - Registration with the Bar Association of the host Member State)

2011/C 103/08

Language of the case: Hungarian

Referring court

Fővárosi Ítélőtábla

Parties to the main proceedings

Applicant: Donat Cornelius Ebert

Defendant: Budapesti Ügyvédi Kamara

Re:

Reference for a preliminary ruling — Fővárosi Ítélőtábla — Interpretation of Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years' duration (OJ 1989 L 19, p. 16) and Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained (OJ 1998 L 77, p. 36) — Legislation of a Member State reserving the possibility of practising law, using the professional lawyer’s title of that State, to lawyers who are registered with the Bar Association in that Member State

Operative part of the judgment

| 1. | Neither Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years’ duration, as amended by Directive 2001/19/EC of the European Parliament and of the Council of 14 May 2001, nor Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained preclude national rules laying down the requirement to be a member of a body such as a Bar Association in order to practise the profession of lawyer under the title of lawyer of the host Member State. |
| --- | --- |

1.

Neither Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years’ duration, as amended by Directive 2001/19/EC of the European Parliament and of the Council of 14 May 2001, nor Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained preclude national rules laying down the requirement to be a member of a body such as a Bar Association in order to practise the profession of lawyer under the title of lawyer of the host Member State.

| 2. | Directives 89/48 and 98/5 complement one another by establishing two means by which lawyers from Member States may gain admission to the profession of lawyer in a host Member State under the professional title of that Member State. |
| --- | --- |

2.

Directives 89/48 and 98/5 complement one another by establishing two means by which lawyers from Member States may gain admission to the profession of lawyer in a host Member State under the professional title of that Member State.

---

(1)  OJ C 312, 19.12.2009.

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| 2.4.2011 | EN | Official Journal of the European Union | C 103/6 |
| --- | --- | --- | --- |

2.4.2011

EN

Official Journal of the European Union

C 103/6

---

Judgment of the Court (Third Chamber) of 17 February 2011 (reference for a preliminary ruling from the Commissione tributaria provinciale di Alessandria — Italy) — Bolton Alimentari SpA v Agenzia Dogane Ufficio delle Dogane di Alessandria

(Case C-494/09) (1)

(Preliminary ruling - Admissibility - Customs duty - Tariff quota - Customs Code - Article 239 - Regulation (EEC) No 2454/93 - Articles 308a, 308b and 905 - Regulation (EC) No 975/2003 - Tuna - Exhaustion of quota - Date of opening - Sunday)

2011/C 103/09

Language of the case: Italian

Referring court

Commissione tributaria provinciale di Alessandria

Parties to the main proceedings

Applicant: Bolton Alimentari SpA

Defendant: Agenzia Dogane Ufficio delle Dogane di Alessandria

Re:

Reference for a preliminary ruling — Commissione Tributaria Provinciale di Alessandria — Interpretation of Article 239 of Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1992 L 302, p. 1) — Interpretation of Articles 308a to 308c of Regulation (EC) No 2454/93 laying down provisions for the implementation of the Community Customs Code (OJ 1993 L 253, p. 1) — Reimbursement or repayment of import duties — Possibility for a Member State itself to rule on a claim for reimbursement — Concept of ‘special situation’ within the meaning of Art. 239(1) of Regulation No 2913/92 — Community importer excluded from a tariff quota opened on a Sunday due to the closure of national customs offices

Operative part of the judgment

| 1. | Articles 308a to 308c of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code, as amended by Commission Regulation (EC) No 214/2007 of 28 February 2007, must be interpreted as not precluding the European Commission from being able to adopt a decision excluding an operator from a tariff quota by reason of the fact that that quota was exhausted on the day on which it was opened, namely a Sunday, that being a day on which the customs offices in the Member State in which the operator in question is established are closed; |
| --- | --- |

1.

Articles 308a to 308c of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code, as amended by Commission Regulation (EC) No 214/2007 of 28 February 2007, must be interpreted as not precluding the European Commission from being able to adopt a decision excluding an operator from a tariff quota by reason of the fact that that quota was exhausted on the day on which it was opened, namely a Sunday, that being a day on which the customs offices in the Member State in which the operator in question is established are closed;

| 2. | Articles 308a to 308c of Regulation No 2454/93, as amended by Regulation No 214/2007, must be interpreted as not requiring a Member State to request the European Commission to suspend a tariff quota in order to ensure fair and non-discriminatory treatment of importers in cases where the opening of that tariff quota falls on a Sunday, that being a day on which the customs offices in the Member State in question are closed, and where that quota is liable to be exhausted on the day on which it is opened, given that the customs offices in other Member States are open on Sundays; |
| --- | --- |

2.

Articles 308a to 308c of Regulation No 2454/93, as amended by Regulation No 214/2007, must be interpreted as not requiring a Member State to request the European Commission to suspend a tariff quota in order to ensure fair and non-discriminatory treatment of importers in cases where the opening of that tariff quota falls on a Sunday, that being a day on which the customs offices in the Member State in question are closed, and where that quota is liable to be exhausted on the day on which it is opened, given that the customs offices in other Member States are open on Sundays;

| 3. | In circumstances other than those contemplated in Article 899(1) of Regulation No 2454/93, as amended by Regulation No 214/2007, the customs authority of a Member State has the power itself to rule on the application for repayment referred to in Article 239(2) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Council Regulation (EC) No 1791/2006 of 20 November 2006, if that authority takes the view that no irregularity can be attributed to the European Commission and that the application in question does not come within any of the other circumstances contemplated in Article 905(1) of Regulation No 2454/93; |
| --- | --- |

3.

In circumstances other than those contemplated in Article 899(1) of Regulation No 2454/93, as amended by Regulation No 214/2007, the customs authority of a Member State has the power itself to rule on the application for repayment referred to in Article 239(2) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Council Regulation (EC) No 1791/2006 of 20 November 2006, if that authority takes the view that no irregularity can be attributed to the European Commission and that the application in question does not come within any of the other circumstances contemplated in Article 905(1) of Regulation No 2454/93;

| 4. | Article 239 of Regulation No 2913/92, as amended by Regulation No 1791/2006, must be interpreted as meaning that it can refer to the exclusion of a European Union importer from a tariff quota, the opening date of which falls on a Sunday, by reason of the Sunday closing of the customs offices in the Member State in which that importer is established. |
| --- | --- |

4.

Article 239 of Regulation No 2913/92, as amended by Regulation No 1791/2006, must be interpreted as meaning that it can refer to the exclusion of a European Union importer from a tariff quota, the opening date of which falls on a Sunday, by reason of the Sunday closing of the customs offices in the Member State in which that importer is established.

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(1)  OJ C 24, 30.1.2010.

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| 2.4.2011 | EN | Official Journal of the European Union | C 103/7 |
| --- | --- | --- | --- |

2.4.2011

EN

Official Journal of the European Union

C 103/7

---

Judgment of the Court (Fifth Chamber) of 17 February 2011 (reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands)) — Staatssecretaris van Financiën v Marishipping and Transport BV

(Case C-11/10) (1)

(Reference for a preliminary ruling - Regulation (EEC) No 2658/87 - Common Customs Tariff - Customs duties - Relief - Pharmaceutical substances - Composition - Restrictions)

2011/C 103/10

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicant: Staatssecretaris van Financiën

Defendant: Marishipping and Transport BV

Re:

Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) — Interpretation of Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1) — Pharmaceutical substances exempted from customs duties — Substance not presented in its pure form — Restrictions

Operative part of the judgment

Part One, Section II, C, 1(i) of Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Commission Regulations (EC) Nos 2031/2001 of 6 August 2001 and 1832/2002 of 1 August 2002, must be interpreted as meaning that a pharmaceutical substance listed in Annex 3 of Part Three of Annex I, to which other substances have been added, in particular pharmaceutical substances, no longer qualifies for the duty-free treatment which would have applied if such a substance had been in its pure form.

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(1)  OJ C 80, 27.3.2010.

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| 2.4.2011 | EN | Official Journal of the European Union | C 103/8 |
| --- | --- | --- | --- |

2.4.2011

EN

Official Journal of the European Union

C 103/8

---

Judgment of the Court (Third Chamber) of 17 February 2011 (reference for a preliminary ruling from the Court of Appeal (England & Wales) (Civil Division) (United Kingdom)) — The Number Ltd, Conduit Enterprises Ltd v Office of Communications, British Telecommunications plc

(Case C-16/10) (1)

(Approximation of laws - Telecommunications - Networks and services - Directive 2002/22/EC - Designation of undertakings to provide universal service - Specific obligations imposed on the designated undertaking - Directory enquiry services and directories)

2011/C 103/11

Language of the case: English

Referring court

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

Parties to the main proceedings

Applicants: The Number Ltd, Conduit Enterprises Ltd

Defendants: Office of Communications, British Telecommunications plc

Re:

Reference for a preliminary ruling — Court of Appeal (England & Wales) (Civil Division) — Interpretation of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) (OJ 2002 L 108, p. 21), Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ 2002 L 108, p. 33) and Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (OJ 2002 L 108, p. 51) — Designation of undertakings to provide universal service — Specific obligations which may be imposed on the designated undertaking

Operative part of the judgment

Article 8(1) of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) permits Member States, where they decide to designate one or more undertakings under that provision to guarantee the provision of universal service, or different elements of universal service, as identified in Articles 4 to 7 and 9(2) of that same directive, to impose on such undertakings only the specific obligations, provided for in the directive, which are associated with the provision of that service, or elements thereof, to end-users by the designated undertakings themselves.

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(1)  OJ C 63, 13.3.2010.

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| 2.4.2011 | EN | Official Journal of the European Union | C 103/8 |
| --- | --- | --- | --- |

2.4.2011

EN

Official Journal of the European Union

C 103/8

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Judgment of the Court (Second Chamber) of 10 February 2011 (reference for a preliminary ruling from the Tribunal de première instance de Liège (Belgium)) — Missionswerk Werner Heukelbach eV v État belge

(Case C-25/10) (1)

(Direct taxation - Free movement of capital - Inheritance tax - Legacies in favour of non-profit-making bodies - Refusal to apply a reduced rate where those bodies have their centre of operations in a Member State other than that in which the deceased had actually lived or worked - Restriction - Justification)

2011/C 103/12

Language of the case: French

Referring court

Tribunal de première instance de Liège

Parties to the main proceedings

Applicant: Missionswerk Werner Heukelbach eV

Defendant: Belgian State

Re:

Reference for a preliminary ruling — Tribunal de première instance de Liège — Interpretation of Articles 18, 45, 49 and 54 TFEU — Succession duties — Refusal to apply the reduced rate applicable to legacies to non-profit-making associations and ‘public-interest foundations’ in cases where those associations and foundations have their seat in a Member State other than that in which the deceased person resided or worked — Discrimination on grounds of nationality — Restriction of the freedom of establishment

Operative part of the judgment

Article 63 TFEU precludes legislation of a Member State which reserves application of succession duties at the reduced rate to non-profit-making bodies which have their centre of operations in that Member State or in the Member State in which, at the time of death, the deceased actually resided or had his place of work, or in which he had previously actually resided or had his place of work.

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(1)  OJ C 100, 17.4.2010.

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| 2.4.2011 | EN | Official Journal of the European Union | C 103/9 |
| --- | --- | --- | --- |

2.4.2011

EN

Official Journal of the European Union

C 103/9

---

Judgment of the Court (Eighth Chamber) of 10 February 2011 (reference for a preliminary ruling from the Linköpings tingsrätt — Sweden) — Lotta Andersson v Staten genom Kronofogdemyndigheten i Jönköping, Tillsynsmyndigheten

(Case C-30/10) (1)

(Reference for a preliminary ruling - Directive 80/987/EEC - Article 10(c) - National provision - Guarantee of payment of employees’ outstanding claims - Exclusion of persons who, more recently than six months before the lodgement of the application for the declaration of insolvency of the company which employed them, were owners of an essential part of that company and had considerable influence on it)

2011/C 103/13

Language of the case: Swedish

Referring court

Linköpings tingsrätt

Parties to the main proceedings

Applicant: Lotta Andersson

Defendant: Staten genom Kronofogdemyndigheten i Jönköping, Tillsynsmyndigheten

Re:

Reference for a preliminary ruling — Linköpings tingsrätt — Interpretation of Article 10(c) of 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, as amended by Directive 2002/74/EC — National legislation excluding from the guarantee of payment of employees’ outstanding claims persons who, more recently than six months before the lodgement of the application for the declaration of insolvency of the company which employed them, were owners of an essential part of that company and had considerable influence on it

Operative part of the judgment

Article 12(c) of Directive 2008/94/EC of the European Parliament and of the Council of 22 October 2008 relating to the protection of employees in the event of the insolvency of their employer (Codified version) must be interpreted as not precluding a provision of national law which excludes an employee from entitlement under the guarantee of payment of employees’ outstanding claims on the ground that the employee, alone or together with close relatives, within the six months preceding the application for a declaration of insolvency, was the owner of an essential part of the undertaking or business concerned and had a considerable influence on its activities.

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(1)  OJ C 100, 17.4.2010.

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| 2.4.2011 | EN | Official Journal of the European Union | C 103/9 |
| --- | --- | --- | --- |

2.4.2011

EN

Official Journal of the European Union

C 103/9

---

Judgment of the Court (Fourth Chamber) of 17 February 2011 (reference for a preliminary ruling from the Cour d’appel de Rouen — France) — Marc Berel and Others v Administration des douanes de Rouen, Receveur principal des douanes du Havre, Administration des douanes du Havre

(Case C-78/10) (1)

(Community Customs Code - Articles 213, 233 and 239 - Joint and several liability of several debtors for the same customs debt - Remission of import duties - Extinction of the customs debt - No possibility for a jointly and severally liable debtor to rely on a remission granted to another debtor)

2011/C 103/14

Language of the case: French

Referring court

Cour d’appel de Rouen

Parties to the main proceedings

Applicants: Marc Berel, acting as agent of the company Port Angot Développement, Emmanuel Hess, acting as court-appointed administrator of the company Port Angot Développement, Rijn Schelde Mondia France SA, Receveur principal des douanes de Rouen Port, Administration des douanes — Havre port, Société Port Angot Développement, successor to Manutention de Produits Chimiques et Miniers Maprochim SAS, Asia Pulp & Paper France EURL

Defendants: Administration des douanes de Rouen, Receveur principal des douanes du Havre, Administration des douanes du Havre

Re:

Reference for a preliminary ruling — Cour d’appel de Rouen — Interpretation of Articles 213, 233 and 239 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1) — Remission of import duties — Whether a co-debtor of a customs debt may rely on joint and several liability for customs obligations in order to benefit from a remission of import duties previously accorded to another co-debtor

Operative part of the judgment

Articles 213, 233 and 239 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Regulation (EC) No 82/97 of the European Parliament and of the Council of 19 December 1996, must be interpreted as precluding the application, in the context of joint and several liability for a customs debt within the meaning of Article 213 such as that at issue in the main proceedings, of a principle of national law which has the effect that a partial remission of duty granted on the basis of Article 239 to one of the debtors may be relied on by all the other debtors, so that the extinction of the debt provided for in point (b) of Article 233 of that Code relates to the debt as such and thus releases all the jointly and severally liable debtors from payment of the debt to the extent of the amount remitted.

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(1)  OJ C 113, 01. 05. 2010.

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| 2.4.2011 | EN | Official Journal of the European Union | C 103/10 |
| --- | --- | --- | --- |

2.4.2011

EN

Official Journal of the European Union

C 103/10

---

Judgment of the Court (Seventh Chamber) of 17 February 2011 — European Commission v Kingdom of Belgium

(Case C-321/10) (1)

(Failure of a Member State to fulfil obligations - Directive 2007/2/EC - Environment policy - Infrastructure for Spatial Information in the European Community (INSPIRE) - Exchange and updates of data in electronic format - Incomplete transposition)

2011/C 103/15

Language of the case: French

Parties

Applicant: European Commission (represented by: J. Sénéchal, Agent)

Defendant: Kingdom of Belgium (represented by: T. Materne and M. Jacobs, Agents)

Re:

Failure of a Member State to fulfil obligations — Failure to adopt or to communicate, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Directive 2007/2/EC of the European Parliament and of the Council of 14 March 2007 establishing an Infrastructure for Spatial Information in the European Community (INSPIRE) (OJ 2007 L 108, p. 1)

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Directive 2007/2/EC of the European Parliament and of the Council of 14 March 2007 establishing an Infrastructure for Spatial Information in the European Community (INSPIRE), the Kingdom of Belgium has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Directive 2007/2/EC of the European Parliament and of the Council of 14 March 2007 establishing an Infrastructure for Spatial Information in the European Community (INSPIRE), the Kingdom of Belgium has failed to fulfil its obligations under that directive;

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

2.

Orders the Kingdom of Belgium to pay the costs.

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(1)  OJ C 246, 11.9.2010.

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| 2.4.2011 | EN | Official Journal of the European Union | C 103/10 |
| --- | --- | --- | --- |

2.4.2011

EN

Official Journal of the European Union

C 103/10

---

Judgment of the Court (Sixth Chamber) of 3 February 2011 — European Commission v Kingdom of Belgium

(Case C-391/10) (1)

(Failure of a Member State to fulfil obligations - Directive 2007/36/EC - Exercise of certain rights of shareholders in listed companies - Failure to transpose completely within the prescribed period)

2011/C 103/16

Language of the case: French

Parties

Applicant: European Commission (represented by: G. Braun and L. de Schietere de Lophem, Agents)

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

Re:

Failure of a Member State to fulfil obligations — Failure to take or to communicate within the prescribed period the measures necessary to comply with Directive 2007/36/EC of the European Parliament and of the Council of 11 July 2007 on the exercise of certain rights of shareholders in listed companies (OJ 2007 L 184, p. 17)

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to adopt, within the prescribed period, all the laws, regulations and administrative provisions necessary to comply with Directive 2007/36/EC of the European Parliament and of the Council of 11 July 2007 on the exercise of certain rights of shareholders in listed companies, the Kingdom of Belgium has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that, by failing to adopt, within the prescribed period, all the laws, regulations and administrative provisions necessary to comply with Directive 2007/36/EC of the European Parliament and of the Council of 11 July 2007 on the exercise of certain rights of shareholders in listed companies, the Kingdom of Belgium has failed to fulfil its obligations under that directive;

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

2.

Orders the Kingdom of Belgium to pay the costs.

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(1)  OJ C 274 of 9.10.2010.

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| 2.4.2011 | EN | Official Journal of the European Union | C 103/11 |
| --- | --- | --- | --- |

2.4.2011

EN

Official Journal of the European Union

C 103/11

---

Judgment of the Court (Sixth Chamber) of 3 February 2011 — European Commission v French Republic

(Case C-395/10) (1)

(Failure of a Member State to fulfil obligations - Directive 2007/2/EC - Environment policy - Infrastructure for Spatial Information - Exchange and update of data in electronic format - Failure to adopt national measures transposing the directive)

2011/C 103/17

Language of the case: French

Parties

Applicant: European Commission (represented by: A. Alcover San Pedro and V. Peere, Agents)

Defendant: French Republic (represented by: G. de Bergues and S. Menez, Agents)

Re:

Failure of a Member State to fulfil obligations — Failure to take within the prescribed period the measures necessary to comply with Directive 2007/2/EC of the European Parliament and of the Council of 14 March 2007 establishing an Infrastructure for Spatial Information in the European Community (INSPIRE) (OJ 2007 L 108, p. 1)

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to adopt, within the prescribed period, all the laws, regulations and administrative provisions necessary to comply with Directive 2007/2/EC of the European Parliament and of the Council of 14 March 2007 establishing an Infrastructure for Spatial Information in the European Community (INSPIRE), the French Republic has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that, by failing to adopt, within the prescribed period, all the laws, regulations and administrative provisions necessary to comply with Directive 2007/2/EC of the European Parliament and of the Council of 14 March 2007 establishing an Infrastructure for Spatial Information in the European Community (INSPIRE), the French Republic has failed to fulfil its obligations under that directive;

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

2.

Orders the French Republic to pay the costs.

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(1)  OJ C 274 of 9.10.2010.

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| 2.4.2011 | EN | Official Journal of the European Union | C 103/11 |
| --- | --- | --- | --- |

2.4.2011

EN

Official Journal of the European Union

C 103/11

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Appeal brought on 29 January 2010 by Antoni Tomasz Uznański against the order of the Court of First Instance (Eighth Chamber) made on 27 November 2009 in Case T-348/09 Uznański v Poland

(Case C-143/10 P)

2011/C 103/18

Language of the case: Polish

Parties

Appellant: Antoni Tomasz Uznański (represented by: A. Nowak, adwokat)

Other party to the proceedings: Republic of Poland

By order of 19 November 2010, the Court of Justice (Seventh Chamber) dismissed the appeal.

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| 2.4.2011 | EN | Official Journal of the European Union | C 103/11 |
| --- | --- | --- | --- |

2.4.2011

EN

Official Journal of the European Union

C 103/11

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Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 23 December 2010 — Waldemar Hudzinski v Agentur für Arbeit Wesel — Familienkasse

(Case C-611/10)

2011/C 103/19

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: Waldemar Hudzinski

Defendant: Agentur für Arbeit Wesel — Familienkasse

Question referred

Is Article 14a(1)(a) of Regulation (EC) No 1408/71 (1) to be interpreted as meaning that a Member State which lacks jurisdiction under that Article is in any event deprived of the authority to grant family benefit under national law to a worker only temporarily employed in its territory, if neither the worker himself nor his children are domiciled or habitually resident in that Member State?

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

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| 2.4.2011 | EN | Official Journal of the European Union | C 103/11 |
| --- | --- | --- | --- |

2.4.2011

EN

Official Journal of the European Union

C 103/11

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Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 23 December 2010 — Jaroslaw Wawrzyniak v Agentur für Arbeit Mönchengladbach — Familienkasse

(Case C-612/10)

2011/C 103/20

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: Jaroslaw Wawrzyniak

Defendant: Agentur für Arbeit Mönchengladbach — Familienkasse

Questions referred

| 1. | Must Article 14(1)(a) of Regulation No 1408/71 (1) be interpreted as meaning that it deprives a Member State, which under that provision is not the competent Member State, on whose territory a worker is posted and which is also not the Member State of residence of the worker’s children of the right to grant family benefits to the posted worker at any rate where that worker does not suffer any legal disadvantage as a result of his posting to that Member State? |
| --- | --- |

1.

Must Article 14(1)(a) of Regulation No 1408/71 (1) be interpreted as meaning that it deprives a Member State, which under that provision is not the competent Member State, on whose territory a worker is posted and which is also not the Member State of residence of the worker’s children of the right to grant family benefits to the posted worker at any rate where that worker does not suffer any legal disadvantage as a result of his posting to that Member State?

| 2. | If the answer to the first question is in the negative:
  Must Article 14(1)(a) of Regulation No 1408/71 be interpreted as meaning that under all circumstances a State which is not the competent Member State on whose territory a worker is posted has the right to grant family benefits only where it has been determined that in the other Member State no entitlement to comparable family benefits exists? |
| --- | --- |

2.

If the answer to the first question is in the negative:

Must Article 14(1)(a) of Regulation No 1408/71 be interpreted as meaning that under all circumstances a State which is not the competent Member State on whose territory a worker is posted has the right to grant family benefits only where it has been determined that in the other Member State no entitlement to comparable family benefits exists?

| 3. | If the answer to that question is also in the negative:
  Do Community law or European Union law provisions preclude a provision of national law such as the first part of point 2 of Paragraph 65(1) of the EStG in conjunction with Paragraph 65(2) of the EStG which excludes entitlement to family benefits where a comparable benefit is paid outside Germany or would be due if an application to that effect were made? |
| --- | --- |

3.

If the answer to that question is also in the negative:

Do Community law or European Union law provisions preclude a provision of national law such as the first part of point 2 of Paragraph 65(1) of the EStG in conjunction with Paragraph 65(2) of the EStG which excludes entitlement to family benefits where a comparable benefit is paid outside Germany or would be due if an application to that effect were made?

| 4. | If the answer to that question is in the affirmative:
  How should the overlap thus arising between the entitlement in the competent State which is also the Member State of residence of the children and the entitlement in the State which is neither the competent State nor the State of residence of the children be resolved? |
| --- | --- |

4.

If the answer to that question is in the affirmative:

How should the overlap thus arising between the entitlement in the competent State which is also the Member State of residence of the children and the entitlement in the State which is neither the competent State nor the State of residence of the children be resolved?

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

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| 2.4.2011 | EN | Official Journal of the European Union | C 103/12 |
| --- | --- | --- | --- |

2.4.2011

EN

Official Journal of the European Union

C 103/12

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Action brought on 29 December 2010 — European Commission v French Republic

(Case C-625/10)

2011/C 103/21

Language of the case: French

Parties

Applicant: European Commission (represented by: J.-P. Keppenne and H. Støvlbæk, acting as Agents)

Defendant: French Republic

Form of order sought

| — | Declare that, as a result of the inadequacy of the measures adopted to implement the first railway package, the French Republic has failed to fulfil its obligations under:






  — | Article 6(3) of and Annex II to Directive 91/440/EEC, as amended, (1) and Article 14(2) of Directive 2001/14/EC; (2) |
| --- | --- | --- |

—

Declare that, as a result of the inadequacy of the measures adopted to implement the first railway package, the French Republic has failed to fulfil its obligations under:

—

Article 6(3) of and Annex II to Directive 91/440/EEC, as amended, (1) and Article 14(2) of Directive 2001/14/EC; (2)

| — | Article 6(2) to (5) of Directive 2001/14/EC; |
| --- | --- |

—

Article 6(2) to (5) of Directive 2001/14/EC;

| — | Article 11 of Directive 2001/14/EC; |
| --- | --- |

—

Article 11 of Directive 2001/14/EC;

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

—

order French Republic to pay the costs.

Pleas in law and main arguments

The Commission relies on two pleas in support of its action.

First, it criticises the defendant for failing to comply with all the obligations laid down in the first railway package, which requires not only the separation of the entities responsible for operating rail transport services (in France, the SNCF) from those responsible for managing the infrastructure (in France, RFF) but also that the ‘essential’ functions of the allocation of railway capacity, the setting of charges for the use of the infrastructure and the issuing of licences be carried out by independent bodies. However, the SNCF has responsibility for certain essential functions relating to the allocation of train paths which it performs via the Direction des Circulations Ferroviaires (DCF). That specialist service is not legally independent of the SNCF and nor is it independent in terms of organisation or decision making.

Second, the Commission submits that the national legislation does not transpose correctly or fully the requirements under Directive 2001/14/EC concerning the establishment of a performance scheme relating to the charges made for access to the railway infrastructure. A further difficulty with the French legislation is that it fails to provide sufficient incentives to reduce the costs of provision of infrastructure and the level of access charges.

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(1)  Council Directive 91/440/EEC of 29 July 1991 on the development of the Community’s railways (OJ 1991 L 237, p. 25).

(2)  Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification (OJ 2001 L 75, p. 29).

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| 2.4.2011 | EN | Official Journal of the European Union | C 103/13 |
| --- | --- | --- | --- |

2.4.2011

EN

Official Journal of the European Union

C 103/13

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Appeal brought on 28 December 2010 by Kalliope Agapiou Joséphidès against the judgment delivered by the General Court (Seventh Chamber) on 21 October 2010 in Case T-439/08 Agapiou Joséphidès v Commission and EACEA

(Case C-626/10P)

2011/C 103/22

Language of the case: French

Parties

Appellant: Kalliope Agapiou Joséphidès (represented by: C. Joséphidès and H. Joséphidès, avocats)

Other parties to the proceedings: European Commission and Education, Audiovisual and Culture Executive Agency (EACEA)

Form of order sought

| — | Set aside the judgment of the General Court delivered on 21 October 2010 in Case T-439/08; |
| --- | --- |

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Set aside the judgment of the General Court delivered on 21 October 2010 in Case T-439/08;

| — | Annul the decision of the Education, Audiovisual and Culture Executive Agency (EACEA) of 1 August 2008 refusing to grant the appellant access to certain documents in File No 07/0122 relating to the award of a Jean Monnet Centre of Excellence to the University of Cyprus; |
| --- | --- |

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Annul the decision of the Education, Audiovisual and Culture Executive Agency (EACEA) of 1 August 2008 refusing to grant the appellant access to certain documents in File No 07/0122 relating to the award of a Jean Monnet Centre of Excellence to the University of Cyprus;

| — | Annul Commission Decision C(2007) 3749 of 8 August 2008 relating to an individual decision to award a subsidy within the framework of the Lifelong Learning Programme, Jean Monnet sub-programme; |
| --- | --- |

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Annul Commission Decision C(2007) 3749 of 8 August 2008 relating to an individual decision to award a subsidy within the framework of the Lifelong Learning Programme, Jean Monnet sub-programme;

| — | Order the respondents to pay the costs of both sets of proceedings. |
| --- | --- |

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Order the respondents to pay the costs of both sets of proceedings.

Pleas in law and main arguments

The appellant relies on a number of grounds in support of her appeal.

Kalliope Agapiou Joséphidès submits that the General Court infringed her personal general right of access to documents concerning her, the principle of transparency contained in the second paragraph of Article 1 and Article 6 TFEU, Article 255 EC and the Charter of Fundamental Rights of the European Union (Articles 8, 41(2)(b), 42 and 52(6)). The General Court thus committed a procedural error in disregarding the references provided by the appellant at the hearing to the Charter of Fundamental Rights and in disregarding the opinion of the Ombudsman for the Republic of Cyprus of 3 June 2009 concerning the refusal of the University of Cyprus to grant access to the same documents at issue as those held by the respondents.

The appellant also claims that the General Court erred in law in deciding, first, that the Education, Audiovisual and Culture Executive Agency (EACEA) was competent to process the confirmatory request for access to documents and, second, to reject the appellant’s plea that the decision of the management committee of the EACEA was unlawful.

Moreover, the appellant alleges infringement of a number of provisions of Regulation (EC) No 1049/2001, (1) which the General Court interpreted too restrictively and in breach of the principles established by case-law.

The appellant also relies on a plea alleging infringement of the principles of good faith, consistency and sound administration and of the duty to state reasons.

Lastly, the appellant submits that the General Court erred in law in failing to annul Commission Decision C(2007) 3749 of 8 August 2008.

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(1)  Regulation of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).

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| 2.4.2011 | EN | Official Journal of the European Union | C 103/13 |
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2.4.2011

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Official Journal of the European Union

C 103/13

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Action brought on 29 December 2010 — European Commission v Republic of Slovenia

(Case C-627/10)

2011/C 103/23

Language of the case: Slovene

Parties

Applicant: European Commission (represented by: H. Stølvlbæk and D. Kukovec, Agents)

Defendant: Republic of Slovenia

Form of order sought

The applicant claims that the Court should:

| — | declare that, with regard to implementation of the first railway package, the Republic of Slovenia has failed to fulfil its obligations under Article 6(3) of and Annex II to Council Directive 91/440/EEC, (1) as amended, Article 14(2) of Directive 2001/14/EC, (2) and Articles 6(2) to (5), 7(3), 8(1), 11 and 30(1) of Directive 2001/14/EC; |
| --- | --- |

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declare that, with regard to implementation of the first railway package, the Republic of Slovenia has failed to fulfil its obligations under Article 6(3) of and Annex II to Council Directive 91/440/EEC, (1) as amended, Article 14(2) of Directive 2001/14/EC, (2) and Articles 6(2) to (5), 7(3), 8(1), 11 and 30(1) of Directive 2001/14/EC;

| — | order the Republic of Slovenia to pay the costs. |
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order the Republic of Slovenia to pay the costs.

Pleas in law and main arguments

The Commission maintains that, because it is the infrastructure manager, which alone supplies railway transport services, that organises the running of the trains and is, therefore, included in the adoption of decisions concerning the allocation of train paths or in the allocation of infrastructure capacity, the Republic of Slovenia has failed to satisfy the requirements of Article 6(3) of, and Annex II to, Directive 91/440/EEC, as amended, or those of Article 14(2) of Directive 2001/14/EC.

By failing to ensure a mechanism of incentives to reduce the costs of providing infrastructure and the level of charges for access, the Republic of Slovenia has failed to fulfil its obligations under Article 6(2) to (5) of Directive 2001/14/EC.

The Commission considers, therefore, that by failing to provide a method of calculation that ensures that the charges imposed for the minimum access package and track access to service facilities are equal to the costs directly incurred as a result of operating the service, the Republic of Slovenia has failed to fulfil its obligations under Article 7(3) of Directive 2001/14/EC.

By failing to adopt a performance scheme encouraging railway undertakings and the infrastructure manager to minimise disruption and improve the performance of the railway network, the Republic of Slovenia has failed to fulfil its obligations under Article 11 of Directive 2001/14/EC.

By failing to make provision, in its domestic legislation, for ascertaining whether a particular sector of the market can bear ‘mark-ups’ in order to obtain full recovery of the manager’s costs, the Republic of Slovenia has failed to fulfil its obligations under Article 8(1) of Directive 2001/14/EC.

By failing to establish a regulatory body, independent in its decision-making of any manager of the railway infrastructure or any applicant, the Republic of Slovenia has failed to fulfil its obligations under Article 30(1) of Directive 2001/14/EC.

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(1)  OJ 1991 L 237, p. 25.

(2)  OJ 2001 L 75, p. 29.

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| 2.4.2011 | EN | Official Journal of the European Union | C 103/14 |
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2.4.2011

EN

Official Journal of the European Union

C 103/14

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Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 6 January 2011 — Criminal Proceedings against Titus Alexander Jochen Donner

(Case C-5/11)

2011/C 103/24

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Titus Alexander Jochen Donner

Other party to the proceedings: Generalbundesanwalt beim Bundesgerichtshof

Question referred

Are Articles 34 and 36 TFEU governing the free movement of goods to be interpreted as precluding the criminal offence of aiding and abetting the prohibited distribution of copyright-protected works resulting from the application of national criminal law where, on a cross-border sale of a work that is copyright protected in Germany

| — | that work is taken to Germany from a Member State of the European Union and de facto power of disposal thereof is transferred in Germany, |
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that work is taken to Germany from a Member State of the European Union and de facto power of disposal thereof is transferred in Germany,

| — | but the transfer of ownership took place in the other Member State in which copyright protection for the work did not exist or was unenforceable? |
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but the transfer of ownership took place in the other Member State in which copyright protection for the work did not exist or was unenforceable?

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| 2.4.2011 | EN | Official Journal of the European Union | C 103/14 |
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2.4.2011

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Official Journal of the European Union

C 103/14

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Reference for a preliminary ruling from the Supremo Tribunal Administrativo (Portugal) lodged on 17 January 2011 — Varzim Sol — Turismo, Jogo e Animação, SA v Fazenda Pública

(Case C-25/11)

2011/C 103/25

Language of the case: Portuguese

Referring court

Supremo Tribunal Administrativo

Parties to the main proceedings

Applicant: Varzim Sol — Turismo, Jogo e Animação, SA

Defendant: Fazenda Pública

Questions referred

| 1. | Is Article 23 of the CIVA compatible with Article 17(2) and (5) and Article 19 of Sixth Council Directive 77/388/EEC (1) of 17 May 1977? |
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1.

Is Article 23 of the CIVA compatible with Article 17(2) and (5) and Article 19 of Sixth Council Directive 77/388/EEC (1) of 17 May 1977?

| 2. | If so, is the establishment of a specific deductible proportion of the value added tax paid by taxable persons carrying out taxable transactions only, albeit by actual use, based on non-taxable subsidies to that sector (‘inputs’), under Article 23, compatible with Article 17(2) and (5) and Article 19 of that Directive? |
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2.

If so, is the establishment of a specific deductible proportion of the value added tax paid by taxable persons carrying out taxable transactions only, albeit by actual use, based on non-taxable subsidies to that sector (‘inputs’), under Article 23, compatible with Article 17(2) and (5) and Article 19 of that Directive?

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(1)  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).

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| 2.4.2011 | EN | Official Journal of the European Union | C 103/15 |
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2.4.2011

EN

Official Journal of the European Union

C 103/15

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Action brought on 21 January 2011 — European Commission v Portuguese Republic

(Case C-34/11)

2011/C 103/26

Language of the case: Portuguese

Parties

Applicant: European Commission (represented by: P. Guerra e Andrade and A. Alcover San Pedro, Agents)

Defendant: Portuguese Republic

Form of order sought

| — | Declare that, by failing to ensure that the concentrations of PM10 in ambient air do not exceed the limit values required under Article 13 of 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, (1) the Portuguese Republic has failed to fulfil its obligations under Article 13 of Directive 2008/50/EC. |
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Declare that, by failing to ensure that the concentrations of PM10 in ambient air do not exceed the limit values required under Article 13 of 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, (1) the Portuguese Republic has failed to fulfil its obligations under Article 13 of Directive 2008/50/EC.

| — | Order the Portuguese Republic to pay the costs. |
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Order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

In view of the objections raised by the Commission in its decision of 26 November 2009, and in the light of the reports submitted by Portugal, which show that the PM10 limit values continue to be exceeded in various zones and agglomerations and indicate in some cases a trend towards the long-term exceedance of the limits, the Commission takes the view that for the agglomerations and zones of Braga, Porto literal, Área Metropolitana de Lisboa Norte and Área Metropolitana de Lisboa Sul the Portuguese State has failed to fulfil the requirements of Article 13 of Directive 2008/50/EC.

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(1)  OJ 2008 L 152, p. 1.

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| 2.4.2011 | EN | Official Journal of the European Union | C 103/15 |
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2.4.2011

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Official Journal of the European Union

C 103/15

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Reference for a preliminary ruling from High Court of Justice (England and Wales) (Chancery Division) (United Kingdom) made on 21 January 2011 — Test Claimants in the FII Group Litigation v Commissioners of Inland Revenue, Commissioners for Her Majesty's Revenue & Customs

(Case C-35/11)

2011/C 103/27

Language of the case: English

Referring court

High Court of Justice (England and Wales) (Chancery Division)

Parties to the main proceedings

Applicants: Test Claimants in the FII Group Litigation

Defendants: Commissioners of Inland Revenue, Commissioners for Her Majesty's Revenue & Customs

Questions referred

| 1. | Do the references to ‘tax rates’ and ‘different levels of taxation’ at paragraph 56 of the Court's judgment of 12 December 2006 in Case C-446/04 Test Claimants in the FII Group Litigation v Commissioners of Inland Revenue [2006] ECR 1-11753:






  (a) | refer solely to statutory or nominal rates of tax; or |
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1.

Do the references to ‘tax rates’ and ‘different levels of taxation’ at paragraph 56 of the Court's judgment of 12 December 2006 in Case C-446/04 Test Claimants in the FII Group Litigation v Commissioners of Inland Revenue [2006] ECR 1-11753:

(a)

refer solely to statutory or nominal rates of tax; or

| (b) | refer to the effective rates of tax paid as well as the statutory or nominal rates of tax; or |
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(b)

refer to the effective rates of tax paid as well as the statutory or nominal rates of tax; or

| (c) | do the phrases referred to have some different meaning and, if so, what? |
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(c)

do the phrases referred to have some different meaning and, if so, what?

| 2. | Does it make any difference to the Court's answer to Questions 2 and 4 of the reference in Case C-446/04 if:






  (a) | foreign corporation tax is not (or not wholly) paid by the non-resident company paying the dividend to the resident company, but that dividend is paid from profits comprising dividends paid by its direct or indirect subsidiary resident in a Member State and which were paid out of profits on which tax has been paid in that State; and/or |
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2.

Does it make any difference to the Court's answer to Questions 2 and 4 of the reference in Case C-446/04 if:

(a)

foreign corporation tax is not (or not wholly) paid by the non-resident company paying the dividend to the resident company, but that dividend is paid from profits comprising dividends paid by its direct or indirect subsidiary resident in a Member State and which were paid out of profits on which tax has been paid in that State; and/or

| (b) | advance corporation tax (‘ACT’) is not paid by the resident company which receives the dividend from a non-resident company, but is paid by its direct or indirect resident parent company upon the further distribution of the profits of the recipient company that directly or indirectly comprise the dividend? |
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(b)

advance corporation tax (‘ACT’) is not paid by the resident company which receives the dividend from a non-resident company, but is paid by its direct or indirect resident parent company upon the further distribution of the profits of the recipient company that directly or indirectly comprise the dividend?

| 3. | In the circumstances described in Question 2(b) above does the company paying the ACT have a claim for the repayment of the tax unduly levied (San Giorgio (1)) or only a claim for damages (Brasserie du Pêcheur and Factortame (2))? |
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3.

In the circumstances described in Question 2(b) above does the company paying the ACT have a claim for the repayment of the tax unduly levied (San Giorgio (1)) or only a claim for damages (Brasserie du Pêcheur and Factortame (2))?

| 4. | Where the national legislation in question does not apply exclusively to situations in which the parent company exercises decisive influence over the dividend paying company, can a resident company rely upon Article 63 TFEU (formerly Article 56 EC) in respect of dividends received from a subsidiary over which it exercises decisive influence and which is resident in a third country? |
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4.

Where the national legislation in question does not apply exclusively to situations in which the parent company exercises decisive influence over the dividend paying company, can a resident company rely upon Article 63 TFEU (formerly Article 56 EC) in respect of dividends received from a subsidiary over which it exercises decisive influence and which is resident in a third country?

| 5. | Does the Court's answer to Question 3 of the reference in Case C-446/04 also apply where the non-resident subsidiaries to which no surrender could be made are not subject to tax in the Member State of the parent company? |
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5.

Does the Court's answer to Question 3 of the reference in Case C-446/04 also apply where the non-resident subsidiaries to which no surrender could be made are not subject to tax in the Member State of the parent company?

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(1)  Case 199/82 Amministrazione delle Finanze della Stata v SpA San Giorgio [1983] ECR 3595.

(2)  Joint Cases C-46/93 and C-48/93 Brasserie du Pêcheu: SA v Federal Republic of Germany and The Queen v Secretary of State far Transport, ex parte Factortame Ltd and Others [1996] ECR 1-1029.

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| 2.4.2011 | EN | Official Journal of the European Union | C 103/16 |
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2.4.2011

EN

Official Journal of the European Union

C 103/16

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Reference for a preliminary ruling from the Cour D’Appel D’Amiens (France) lodged on 31 January 2011 — Criminal proceedings against João Pedro Lopes Da Silva Jorge

(Case C-42/11)

2011/C 103/28

Language of the case: French

Referring court

Cour D’Appel D’Amiens

Party/parties to the main proceedings

João Pedro Lopes Da Silva Jorge

Questions referred

| 1. | Does the principle of non discrimination laid down by Article 12 EC preclude national legislation such as Article 695-24 of the Code of Criminal Procedure which restricts the power to refuse to execute a European arrest warrant issued for the purposes of enforcing a penalty involving deprivation of liberty to cases where the person whose extradition is sought is of French nationality and the competent French authorities undertake to proceed with such enforcement? |
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1.

Does the principle of non discrimination laid down by Article 12 EC preclude national legislation such as Article 695-24 of the Code of Criminal Procedure which restricts the power to refuse to execute a European arrest warrant issued for the purposes of enforcing a penalty involving deprivation of liberty to cases where the person whose extradition is sought is of French nationality and the competent French authorities undertake to proceed with such enforcement?

| 2. | Is the principle of the implementation in domestic law of the grounds for non enforcement provided for in Article 4(6) of the framework decision (1) a matter for the discretion of the Member States or is it compulsory, and in particular may a Member State adopt a measure involving discrimination based on nationality? |
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2.

Is the principle of the implementation in domestic law of the grounds for non enforcement provided for in Article 4(6) of the framework decision (1) a matter for the discretion of the Member States or is it compulsory, and in particular may a Member State adopt a measure involving discrimination based on nationality?

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(1)  2002/584/JHA: Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States — Statements made by certain Member States on the adoption of the Framework Decision (OJ 2002 L 190, p. 1).

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| 2.4.2011 | EN | Official Journal of the European Union | C 103/16 |
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2.4.2011

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Official Journal of the European Union

C 103/16

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Action brought on 1 February 2011 — European Commission v Republic of Poland

(Case C-46/11)

2011/C 103/29

Language of the case: Polish

Parties

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

Defendant: Republic of Poland

Form of order sought

| — | declare that, by carrying out an improper transposition of the conditions for establishing derogations within the terms of Article 16(1) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, (1) the Republic of Poland has failed to fulfil its obligations under that provision; |
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declare that, by carrying out an improper transposition of the conditions for establishing derogations within the terms of Article 16(1) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, (1) the Republic of Poland has failed to fulfil its obligations under that provision;

| — | order the Republic of Poland to pay the costs. |
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order the Republic of Poland to pay the costs.

Pleas in law and main arguments

The Commission alleges that the Republic of Poland has failed correctly to transpose into Polish law the conditions governing derogations from the prohibitions connected with the protection of bird and animal species as set out in Article 16(1) of Council Directive 92/43/EEC.

First, in two regulations of the Minister for the Environment in relation to protected species of plants and animals occurring in the wild, paragraphs 7(1) and 8 respectively allow for a general derogation from the prohibitions serving the protection of species (as, for example, the prohibition of intentional killing, capture, and so forth) in connection with activities linked to the operation of rational agricultural or forestry holdings or of fisheries. Article 16(1) of Directive 92/43/EEC, however, does not provide for any possibility of such a derogation.

Second, in Article 52(2)(5) of the Law on the protection of nature, the possibility of providing for a derogation, for purposes of the ‘prevention of serious damage, in particular in agricultural or forestry holdings or in fisheries’, from the obligations connected to the protection of animal species is more extensive in scope than the derogation provided for in Article 16(1)(b) of Directive 92/43/EEC.

Third, the possibility, provided for under Article 56(4)(2) of the Law on the protection of nature, of a derogation from the prohibitions concerning species protection in the case where this ‘results from the need to restrict serious damage on a holding, in particular an agricultural farm, forestry holding or a fish farm’ is more extensive than that provided for in Article 16(1)(b) of the habitats directive.

Fourth, the regulation of 28 September 2004 concerning protected species of animals living in the wild permits the killing, capture and so forth of otters (Lutra Lutra) living in the environs of fish ponds designated as breeding areas, notwithstanding the fact that the otter is a species in need of strict protection under the terms of Annex IV to Directive 92/43/EEC.

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(1)  OJ 1992 L 206, p. 7.

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| 2.4.2011 | EN | Official Journal of the European Union | C 103/17 |
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2.4.2011

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Official Journal of the European Union

C 103/17

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Reference for a preliminary ruling from the Korkein hallinto-oikeus (Finland) lodged on 2 February 2011 — Veronsaajien oikeudenvalvontayksikkö

(Case C-48/11)

2011/C 103/30

Language of the case: Finnish

Referring court

Korkein hallinto-oikeus

Parties to the main proceedings

Applicant: Veronsaajien oikeudenvalvontayksikkö

Defendant: A Oy

Question referred

Is an exchange of shares in which a Finnish limited company transfers to a Norwegian company (in the corporate form of an aksjeselskap [public limited company]) shares of a company which it owns and receives as consideration shares issued by the Norwegian company to be treated in taxation (taking account of Articles 31 and 40 of the EEA Agreement) neutrally in the same way as if the exchange of shares were between domestic companies or companies with their seat in Member States of the European Union?

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| 2.4.2011 | EN | Official Journal of the European Union | C 103/17 |
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2.4.2011

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Official Journal of the European Union

C 103/17

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Appeal brought on 4 February 2011 by Fernando Marcelino Victoria Sánchez against the order delivered by the General Court (Fourth Chamber) on 17 November 2010 in Case T-61/10

(Case C-52/11 P)

2011/C 103/31

Language of the case: Spanish

Parties

Appellant: Fernando Marcelino Victoria Sánchez (represented by: P. Suarez Plácido, lawyer)

Other parties to the proceedings: European Parliament and European Commission

Form of order sought

The appellant claims that the Court of Justice should:

| — | Annul the order of 17 November 2010 of the Fourth Chamber of the General Court and the decision relating to costs, and declare that the action for failure to act brought by Mr Victoria Sánchez is admissible and not manifestly unfounded; |
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Annul the order of 17 November 2010 of the Fourth Chamber of the General Court and the decision relating to costs, and declare that the action for failure to act brought by Mr Victoria Sánchez is admissible and not manifestly unfounded;

| — | Consequently, take a decision on the substance of the case, or in the alternative, after declaring the case admissible and founded, refer the case back to the General Court for judgment and order the respondent institutions to pay the costs. |
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Consequently, take a decision on the substance of the case, or in the alternative, after declaring the case admissible and founded, refer the case back to the General Court for judgment and order the respondent institutions to pay the costs.

Grounds of appeal and main arguments

The appellant raises the following grounds of appeal:

| 1. | Infringement of Article 44 of the Rules of Procedure of the General Court since the application initiating the proceedings contains the subject-matter of the proceedings, a summary of the grounds of appeal raised and, finally, the form of order sought by the action, which is set out very clearly in the application as follows: ‘A declaration that the failure of the European Parliament and of the Commission to respond to the application made by way of letters on 6 October 2009 is contrary to European Union law and an order for those institutions to remedy the situation’. |
| --- | --- |

1.

Infringement of Article 44 of the Rules of Procedure of the General Court since the application initiating the proceedings contains the subject-matter of the proceedings, a summary of the grounds of appeal raised and, finally, the form of order sought by the action, which is set out very clearly in the application as follows: ‘A declaration that the failure of the European Parliament and of the Commission to respond to the application made by way of letters on 6 October 2009 is contrary to European Union law and an order for those institutions to remedy the situation’.

| 2. | Infringement of Articles 20(2)(d) of the Treaty on the Functioning of the European Union (TFEU) (formerly Article 17 EC), Article 24 TFEU (formerly Article 21 EC), Article 227 TFEU (formerly Article 194 EC), in conjunction with Article 58 of the Statue of the Court of Justice. That infringement relates to the petition which Mr Victoria Sánchez sent to the European Parliament in 2008 in which it drew that institution's attention to the risks incurred by Spanish citizens who dare to denounce the political corruption and tax fraud taking place in Spain. Together with the petition sent to the Parliament he submitted a contract signed by important Spanish personalities — including a named lawyer who works for the largest law firm in Spain and Portugal — which recounted how all of those persons were defrauding the State Treasury and Spanish citizens by means of fictitious undertakings opaque to the Spanish State. The petition was shelved without being granted any attention and no Spanish MEP responded to the subsequent requests for support made by the appellant — in the form of 10 emails — in which he requested the cooperation of his representatives to ensure his physical integrity in the light of the threats which he had received. |
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2.

Infringement of Articles 20(2)(d) of the Treaty on the Functioning of the European Union (TFEU) (formerly Article 17 EC), Article 24 TFEU (formerly Article 21 EC), Article 227 TFEU (formerly Article 194 EC), in conjunction with Article 58 of the Statue of the Court of Justice. That infringement relates to the petition which Mr Victoria Sánchez sent to the European Parliament in 2008 in which it drew that institution's attention to the risks incurred by Spanish citizens who dare to denounce the political corruption and tax fraud taking place in Spain. Together with the petition sent to the Parliament he submitted a contract signed by important Spanish personalities — including a named lawyer who works for the largest law firm in Spain and Portugal — which recounted how all of those persons were defrauding the State Treasury and Spanish citizens by means of fictitious undertakings opaque to the Spanish State. The petition was shelved without being granted any attention and no Spanish MEP responded to the subsequent requests for support made by the appellant — in the form of 10 emails — in which he requested the cooperation of his representatives to ensure his physical integrity in the light of the threats which he had received.

| 3. | Infringement, by the respondent institutions, of the fundamental rights laid down in Article 6 EU, Articles 20 and 21 of the Charter of Fundamental Rights of the European Union. The European Commission's failure to act in response to the letter sent on 6 October 2009 constitutes a serious infringement of Article 6 EU since that institution is required to ensure a democratic area of co-existence for all Europeans, equal access of European citizens to the European Union institutions and effective legal protection, unless tax fraud falls within the jurisdiction of the European Court of Human Rights and that court regards tax payers as indirectly harmed by it. In addition, the appellant draws attention to the legal uncertainty for Community law brought about by successive Spanish court decisions which ignore the observations made by the appellant's legal representatives regarding compliance with European law, in particular compliance with the judgment of the Court of Justice in Joined Cases C-570/07 and C-571/07 (1) on the freedom of establishment of pharmacies in Spain. |
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3.

Infringement, by the respondent institutions, of the fundamental rights laid down in Article 6 EU, Articles 20 and 21 of the Charter of Fundamental Rights of the European Union. The European Commission's failure to act in response to the letter sent on 6 October 2009 constitutes a serious infringement of Article 6 EU since that institution is required to ensure a democratic area of co-existence for all Europeans, equal access of European citizens to the European Union institutions and effective legal protection, unless tax fraud falls within the jurisdiction of the European Court of Human Rights and that court regards tax payers as indirectly harmed by it. In addition, the appellant draws attention to the legal uncertainty for Community law brought about by successive Spanish court decisions which ignore the observations made by the appellant's legal representatives regarding compliance with European law, in particular compliance with the judgment of the Court of Justice in Joined Cases C-570/07 and C-571/07 (1) on the freedom of establishment of pharmacies in Spain.

| 4. | An infringement of Articles 265 and 266 TFEU since what was sought in the proceedings before the General Court was a declaration that the failure on the part of the Parliament and the Commission to respond to the application made on 6 October 2009 is contrary to Community law and an order for those institutions to remedy that error, ex lege, pursuant to Article 266 TFEU. In order to remedy that error the body from which the annulled act emanated or which failed to take action contrary to the Treaties should be required to adopt the measures necessary to comply with the judgment of the Court of Justice of the European Union and, in this instance, remedy its failure to act by responding to the application made by way of a letter on 6 October 2009. |
| --- | --- |

4.

An infringement of Articles 265 and 266 TFEU since what was sought in the proceedings before the General Court was a declaration that the failure on the part of the Parliament and the Commission to respond to the application made on 6 October 2009 is contrary to Community law and an order for those institutions to remedy that error, ex lege, pursuant to Article 266 TFEU. In order to remedy that error the body from which the annulled act emanated or which failed to take action contrary to the Treaties should be required to adopt the measures necessary to comply with the judgment of the Court of Justice of the European Union and, in this instance, remedy its failure to act by responding to the application made by way of a letter on 6 October 2009.

---

(1)  Judgment of 1 June 2010, not yet published in the ECR.

---

General Court

| 2.4.2011 | EN | Official Journal of the European Union | C 103/19 |
| --- | --- | --- | --- |

2.4.2011

EN

Official Journal of the European Union

C 103/19

---

Judgment of the General Court of 18 February 2011 — P.P.TV v OHIM — Rentrak (PPT)

(Case T-118/07) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark PPT - Earlier national figurative mark PPTV - 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))

2011/C 103/32

Language of the case: English

Parties

Applicant: P.P.TV — Publicidade de Portugal e Televisão, SA (Lisbon, Portugal) (represented by: I. de Carvalho Simões and J.M. Conceição Pimenta, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Rentrak Corp. (Portland, Oregon, United States)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 17 January 2007 (Case R 1040/2005-1) concerning opposition proceedings between P.P.TV — Publicidade de Portugal e Televisão, SA and Rentrak Corp.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders P.P.TV — Publicidade de Portugal e Televisão, SA, to pay the costs. |
| --- | --- |

2.

Orders P.P.TV — Publicidade de Portugal e Televisão, SA, to pay the costs.

---

(1)  OJ C 155, 7.7.2007.

---

| 2.4.2011 | EN | Official Journal of the European Union | C 103/19 |
| --- | --- | --- | --- |

2.4.2011

EN

Official Journal of the European Union

C 103/19

---

Judgment of the Court of 17 February 2011 — FIFA v Commission

(Case T-385/07) (1)

(Television broadcasting - Article 3a of Directive 89/552/EEC - Measures taken by the Kingdom of Belgium concerning events of major importance for Belgian society - Football World Cup - Decision declaring the measures compatible with Community law - Statement of reasons - Articles 43 EC and 49 EC - Right to property)

2011/C 103/33

Language of the case: English

Parties

Applicant: Fédération Internationale de Football Association (FIFA) (Zurich, Switzerland) (represented initially by: R. Denton, E. Batchelor, F. Young, Solicitors, and A. Barav, lawyer, and subsequently by E. Batchelor, A. Barav, D. Reymond, lawyer, and F. Carlin, Barrister)

Defendant: European Commission (represented by: E. Montaguti and N. Yerrell, Agents, assisted by J. Flynn, QC, and L. Maya, Barrister)

Interveners in support of the defendant: Kingdom of Belgium (represented by: L. Van den Broeck and C. Pochet, Agents, assisted by J. Stuyck, A. Berenboom and A. Joachimowicz, lawyers); Federal Republic of Germany (represented by: M. Lumma and J. Möller, Agents); and United Kingdom of Great Britain and Northern Ireland (represented by: S. Behzadi-Spencer, E. Jenkinson and L. Seeboruth, Agents, assisted initially by T. de la Mare, and subsequently by B. Kennelly, Barristers)

Re:

Application for partial annulment of Commission Decision 2007/479/EC of 25 June 2007 on the compatibility with Community law of measures taken by Belgium pursuant to Article 3a(1) of Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (OJ 2007 L 180, p. 24).

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders the Fédération Internationale de Football Association (FIFA) to bear its own costs and to pay those incurred by the European Commission; |
| --- | --- |

2.

Orders the Fédération Internationale de Football Association (FIFA) to bear its own costs and to pay those incurred by the European Commission;

| 3. | Orders the Kingdom of Belgium, the Federal Republic of Germany and the United Kingdom of Great Britain and Northern Ireland to bear their own costs. |
| --- | --- |

3.

Orders the Kingdom of Belgium, the Federal Republic of Germany and the United Kingdom of Great Britain and Northern Ireland to bear their own costs.

---

(1)  OJ C 315, 22.12.2007.

---

| 2.4.2011 | EN | Official Journal of the European Union | C 103/20 |
| --- | --- | --- | --- |

2.4.2011

EN

Official Journal of the European Union

C 103/20

---

Judgment of the General Court of 17 February 2011 — UEFA v Commission

(Case T-55/08) (1)

(Television broadcasting - Article 3a of Directive 89/552/EEC - Measures taken by the United Kingdom concerning events of major importance to United Kingdom society - European Football Championship - Decision declaring the measures compatible with Community law - Statement of reasons - Articles 49 EC and 86 EC - Right to property)

2011/C 103/34

Language of the case: English

Parties

Applicant: Union des associations européennes de football (UEFA) (Nyon, Switzerland) (represented by: A. Bell, K. Learoyd, Solicitors, D. Anderson QC and B. Keane, Solicitor)

Defendant: European Commission (represented by: F. Benyon and E. Montaguti, Agents, assisted by J. Flynn QC and M. Lester, Barrister)

Interveners in support of the defendant: Kingdom of Belgium (represented by: C. Pochet, Agent, assisted by J. Stuyck, lawyer); United Kingdom of Great Britain and Northern Ireland (represented initially by: S. Behzadi-Spencer and V. Jackson, and subsequently by S. Behzadi-Spencer and L. Seeboruth, Agents, assisted by T. de la Mare and B. Kennelly, Barristers)

Re:

APPLICATION for partial annulment of Commission Decision 2007/730/EC of 16 October 2007 on the compatibility with Community law of measures taken by the United Kingdom pursuant to Article 3a(1) of Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (OJ 2007 L 295, p. 12).

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders the Union des associations européennes de football (UEFA) to bear its own costs and to pay those incurred by the European Commission; |
| --- | --- |

2.

Orders the Union des associations européennes de football (UEFA) to bear its own costs and to pay those incurred by the European Commission;

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

3.

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

---

(1)  OJ C 107, 26.4.2008.

---

| 2.4.2011 | EN | Official Journal of the European Union | C 103/20 |
| --- | --- | --- | --- |

2.4.2011

EN

Official Journal of the European Union

C 103/20

---

Judgment of the General Court of 17 February 2011 — FIFA v Commission

(Case T-68/08) (1)

(Television broadcasting - Article 3a of Directive 89/552/EEC - Measures taken by the United Kingdom concerning events of major importance to United Kingdom society - Football World Cup - Decision declaring the measures compatible with Community law - Statement of reasons - Articles 43 EC, 49 EC and 86 EC - Right to property)

2011/C 103/35

Language of the case: English

Parties

Applicant: Fédération Internationale de Football Association (FIFA) (Zurich, Switzerland) (represented by: initially by E. Batchelor, F. Young, Solicitors, A. Barav, D. Reymond, lawyers and F. Carlin, Barrister, and subsequently by E. Batchelor, A. Barav, D. Reymond, lawyers and F. Carlin, Barrister)

Defendant: European Commission (represented by: initially by F. Benyon, E. Montaguti and N. Yerrell and subsequently by F. Benyon and E. Montaguti, Agents, assisted by J. Flynn QC and M. Lester, Barrister)

Interveners in support of the defendants: Kingdom of Belgium (represented by C. Pochet, Agent, assisted by J. Stuyck and A. Joachimowicz, lawyers); and United Kingdom of Great Britain and Northern Ireland (represented initially by S. Behzadi-Spencer and V. Jackson and subsequently by S. Behzadi-Spencer and L. Seeboruth, Agents, assisted initially by T. de la Mare and subsequently by B. Kennelly, Barristers)

Re:

Partial annulment of Commission Decision 2007/730/EC of 16 October 2007 on the compatibility with Community law of measures taken by the United Kingdom pursuant to Article 3a(1) of Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (OJ 2007 L 295, p. 12).

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders the Fédération Internationale de Football Association (FIFA) to bear its own costs and to pay those incurred by the European Commission; |
| --- | --- |

2.

Orders the Fédération Internationale de Football Association (FIFA) to bear its own costs and to pay those incurred by the European Commission;

| 3. | Orders the Kingdom of Belgium, the Federal Republic of Germany and the United Kingdom of Great Britain and Northern Ireland to bear their own costs. |
| --- | --- |

3.

Orders the Kingdom of Belgium, the Federal Republic of Germany and the United Kingdom of Great Britain and Northern Ireland to bear their own costs.

---

(1)  OJ C 107, 26.4.2008.

---

| 2.4.2011 | EN | Official Journal of the European Union | C 103/21 |
| --- | --- | --- | --- |

2.4.2011

EN

Official Journal of the European Union

C 103/21

---

Judgment of the General Court of 17 February 2011 — Formula One Licensing v OHIM — Global Sports Media (FI-LIVE)

(Case T-10/09) (1)

(Community trade mark - Opposition proceedings - Application for the Community figurative mark F1-LIVE - Earlier Community figurative marks, and national and international word marks, F1 and F1 Formula 1 - Opposition rejected by the Board of Appeal - Relative grounds for refusal - Article 8(1)(b) and (5) of Regulation (EC) No 40/94 (now Article 8(1)(b) and (5) of Regulation (EC) No 207/2009))

2011/C 103/36

Language of the case: English

Parties

Applicant: Formula One Licensing BV (Rotterdam, Netherlands) (represented by: B. Klingberg and K. Sandberg, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Global Sports Media Ltd (Hamilton, Bermuda) (represented by: T. de Haan and J.-J. Evrard, and subsequently by T. de Haan, lawyer)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 16 October 2008 (Case R 7/2008-1) concerning opposition proceedings between Racing-Live SAS and Formula One Licensing BV.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Formula One Licensing BV to pay the costs. |
| --- | --- |

2.

Orders Formula One Licensing BV to pay the costs.

---

(1)  OJ C 55, 7.3.2009.

---

| 2.4.2011 | EN | Official Journal of the European Union | C 103/21 |
| --- | --- | --- | --- |

2.4.2011

EN

Official Journal of the European Union

C 103/21

---

Judgment of the General Court of 17 February 2011 — Zhejiang Xinshiji Foods and Hubei Xinshiji Foods v Council

(Case T-122/09) (1)

(Dumping - Imports of prepared or preserved citrus fruits originating in the People’s Republic of China - Rights of the defence - Obligation to state reasons - Principle of sound administration - Article 15(2) and Article 20(4) and (5) of Regulation (EC) No 384/96 (now Article 15(2) and Article 20(4) and (5) of Regulation (EC) No 1225/2009))

2011/C 103/37

Language of the case: English

Parties

Applicants: Zhejiang Xinshiji Foods Co. Ltd (Liuao Town, Sanmen County, China) and Hubei Xinshiji Foods Co. Ltd (Dangyang City, China)) (represented by: F. Carlin, Barrister, A. MacGregor, Solicitor and N. Niejahr and Q. Azau, lawyers)

Defendant: Council of the European Union (represented by: J.-P. Hix and R. Szostak, Agents, assisted initially by G. Berrisch and G. Wolf, and subsequently by G. Berrisch, lawyers)

Intervener in support of the defendant: European Commission (represented by: H. van Vliet and C. Clyne, Agents)

Re:

Application for annulment of Council Regulation (EC) No 1355/2008 of 18 December 2008 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain prepared or preserved citrus fruits (namely mandarins etc.) originating in the People’s Republic of China (OJ 2008 L 350, p. 35) in so far as it concerns the applicants.

Operative part of the judgment

The Court:

| 1. | Annuls Council Regulation (EC) No 1355/2008 of 18 December 2008 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain prepared or preserved citrus fruits (namely mandarins etc.) originating in the People’s Republic of China in so far as it concerns Zhejiang Xinshiji Foods Co. Ltd and Hubei Xinshiji Foods Co. Ltd;; |
| --- | --- |

1.

Annuls Council Regulation (EC) No 1355/2008 of 18 December 2008 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain prepared or preserved citrus fruits (namely mandarins etc.) originating in the People’s Republic of China in so far as it concerns Zhejiang Xinshiji Foods Co. Ltd and Hubei Xinshiji Foods Co. Ltd;;

| 2. | Orders Zhejiang Xinshiji Foods and Hubei Xinshiji Foods to bear half of their own costs; |
| --- | --- |

2.

Orders Zhejiang Xinshiji Foods and Hubei Xinshiji Foods to bear half of their own costs;

| 3. | Orders the Council of the European Union to bear its own costs and to pay half of the costs incurred by Zhejiang Xinshiji Foods and Hubei Xinshiji Foods; |
| --- | --- |

3.

Orders the Council of the European Union to bear its own costs and to pay half of the costs incurred by Zhejiang Xinshiji Foods and Hubei Xinshiji Foods;

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

4.

Orders the European Commission to bear its own costs.

---

(1)  OJ C 141, 20.6.2009.

---

| 2.4.2011 | EN | Official Journal of the European Union | C 103/22 |
| --- | --- | --- | --- |

2.4.2011

EN

Official Journal of the European Union

C 103/22

---

Judgment of the General Court of 17 February 2011 — J & F Participações v OHIM — Plusfood Wrexham (Friboi)

(Case T-324/09) (1)

(Community trade mark - Opposition proceedings - Application for the Community figurative mark Friboi - Earlier national word mark FRIBO - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009 - Genuine use of the earlier mark - Article 42(2) and (3) of Regulation No 207/2009)

2011/C 103/38

Language of the case: English

Parties

Applicant: J & F Participações SA (Sorocaba, Brazil) (represented by: A. Fernández Fernández-Pacheco, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Plusfood Wrexham Ltd (Llay, Wrexham, United Kingdom) (represented by: G. van Roeyen, lawyer)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 22 April 2009 (Case R 824/2008-1), concerning opposition proceedings between Fribo Foods Ltd and Agropecuaria Friboi, Ltda.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders J & F Participações SA to pay the costs. |
| --- | --- |

2.

Orders J & F Participações SA to pay the costs.

---

(1)  OJ C 256, 24.10.2009.

---

| 2.4.2011 | EN | Official Journal of the European Union | C 103/22 |
| --- | --- | --- | --- |

2.4.2011

EN

Official Journal of the European Union

C 103/22

---

Judgment of the General Court of 17 February 2011 — Annco v OHIM — Freche et fils (ANN TAYLOR LOFT)

(Case T-385/09) (1)

(Community trade mark - Opposition proceedings - Application for the Community word mark ANN TAYLOR LOFT - Earlier national word mark LOFT - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009)

2011/C 103/39

Language of the case: English

Parties

Applicant: Annco, Inc. (Wilmington, Delaware, United States) (represented by: G. Triet, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Freche et fils associés (Paris, France)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 1 July 2009 (Case R 1485/2008-1), relating to opposition proceedings between Freche et fils associés and Annco, Inc.

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 1 July 2009 (Case R 1485/2008-1); |
| --- | --- |

1.

Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 1 July 2009 (Case R 1485/2008-1);

| 2. | Declares that the remainder of the action is inadmissible; |
| --- | --- |

2.

Declares that the remainder of the action is inadmissible;

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

3.

Orders OHIM to pay the costs.

---

(1)  OJ C 282, 21.11.2009.

---

| 2.4.2011 | EN | Official Journal of the European Union | C 103/22 |
| --- | --- | --- | --- |

2.4.2011

EN

Official Journal of the European Union

C 103/22

---

Action brought on 28 September 2010 — Gill v Commission

(Case T-471/10)

2011/C 103/40

Language of the case: English

Parties

Applicant: Brendan Gill (Lifford, Ireland) (represented by: A.M. Collins SC, N.J. Travers, Barrister and D.P. Barry, Solicitor)

Defendant: European Commission

Form of order sought

| — | Annul Commission Decision notified under document C(2010) 4752 of 13 July 2010 as a letter to Ireland, and which was notified to the applicant on 16 July 2010, to reject safety capacity applications to lengthen the MFV Brendelen and to replace the lengthened MFV Brendelen with a proposed new pelagic fishing vessel, and to replace the decision regarding the said applications contained in Commission Decision No 2003/245 of 4 April 2003 on the requests received by the Commission to increase in MAGP IV objectives to take into account improvements on safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12m in length overall (OJ 2003 L 90, p. 48), which was annulled, in so far as the applicant is concerned, by judgment of the General Court delivered on 13 June 2006 in Joined Cases T-218/03 to T-240/03 Boyle and Others v Commission [2006] ECR II-1699; and |
| --- | --- |

—

Annul Commission Decision notified under document C(2010) 4752 of 13 July 2010 as a letter to Ireland, and which was notified to the applicant on 16 July 2010, to reject safety capacity applications to lengthen the MFV Brendelen and to replace the lengthened MFV Brendelen with a proposed new pelagic fishing vessel, and to replace the decision regarding the said applications contained in Commission Decision No 2003/245 of 4 April 2003 on the requests received by the Commission to increase in MAGP IV objectives to take into account improvements on safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12m in length overall (OJ 2003 L 90, p. 48), which was annulled, in so far as the applicant is concerned, by judgment of the General Court delivered on 13 June 2006 in Joined Cases T-218/03 to T-240/03 Boyle and Others v Commission [2006] ECR II-1699; and

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

By means of the present application, the applicant seeks, pursuant to Article 263 TFUE, the annulment of Commission Decision notified under document C(2010) 4752 of 13 July 2010 as a letter to Ireland, and which was notified to the applicant on 16 July 2010, to reject safety capacity applications to lengthen the MFV Brendelen and to replace the lengthened MFV Brendelen with a proposed new pelagic fishing vessel, and to replace the decision regarding the said applications contained in Commission Decision No 2003/245 of 4 April 2003 on the requests received by the Commission to increase in MAGP IV objectives to take into account improvements on safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12m in length overall (OJ 2003 L 90, p. 48), which was annulled, in so far as the applicant is concerned, by judgment of the General Court delivered on 13 June 2006 in Joined Cases T-218/03 to T-240/03 Boyle and Others v Commission [2006] ECR II-1699.

In support of his application, the applicant submits the following pleas in law:

| | Firstly, the applicant submits that the defendant acted without a legal basis. Article 4(2) of Council Decision No 97/413/EC of 26 June 1997 concerning the objectives and detailed rules for restructuring the Community fisheries sector for the period from 1 January 1997 to 31 December 2001 with the view to achieving a balance on a sustainable basis between resources and exploitation (OJ 1997 L 175, p. 27) continues to provide the appropriate legal basis for the impugned decision and, thus, the Commission lacked a legal basis purportedly to adopt the decision as an ad hoc decision. |
| --- | --- |

Firstly, the applicant submits that the defendant acted without a legal basis. Article 4(2) of Council Decision No 97/413/EC of 26 June 1997 concerning the objectives and detailed rules for restructuring the Community fisheries sector for the period from 1 January 1997 to 31 December 2001 with the view to achieving a balance on a sustainable basis between resources and exploitation (OJ 1997 L 175, p. 27) continues to provide the appropriate legal basis for the impugned decision and, thus, the Commission lacked a legal basis purportedly to adopt the decision as an ad hoc decision.

| | Secondly, the applicant submits that the Commission breached an essential procedural requirement. The applicant submits that the impugned decision, under Council Decision No 97/413/EC, should have been adopted pursuant to the management committee procedure and that, in choosing to adopt the decision on an ad hoc basis, the Commission acted in breach of essential procedural requirements. |
| --- | --- |

Secondly, the applicant submits that the Commission breached an essential procedural requirement. The applicant submits that the impugned decision, under Council Decision No 97/413/EC, should have been adopted pursuant to the management committee procedure and that, in choosing to adopt the decision on an ad hoc basis, the Commission acted in breach of essential procedural requirements.

| | Thirdly, the applicant submits that by misinterpreting Article 4(2) of Council Decision No 97/413/EC, the Commission exceeded its powers, in particular in relying upon irrelevant criteria and ignoring the definition of “fishing effort” provided in Council Decision No 97/413/EC and in Community fisheries legislation applicable at the time of the applicant’s application for safety tonnage in December 2001. |
| --- | --- |

Thirdly, the applicant submits that by misinterpreting Article 4(2) of Council Decision No 97/413/EC, the Commission exceeded its powers, in particular in relying upon irrelevant criteria and ignoring the definition of “fishing effort” provided in Council Decision No 97/413/EC and in Community fisheries legislation applicable at the time of the applicant’s application for safety tonnage in December 2001.

| | In addition, it is submitted that the impugned decision contains a number of manifest errors in the assessment of the applicant’s application for safety tonnage. It particular, it is submitted that the Commission’s decision to refuse the applicant’s application because of the greater volume under the main deck of the proposed new vessel compared to the Brendelen is manifestly flawed, as is its assumption that the proposed new vessel’s “fishing effort” will be greater than that of the original and the lengthened Brendelen. |
| --- | --- |

In addition, it is submitted that the impugned decision contains a number of manifest errors in the assessment of the applicant’s application for safety tonnage. It particular, it is submitted that the Commission’s decision to refuse the applicant’s application because of the greater volume under the main deck of the proposed new vessel compared to the Brendelen is manifestly flawed, as is its assumption that the proposed new vessel’s “fishing effort” will be greater than that of the original and the lengthened Brendelen.

| | Finally, the applicant alleges that the Commission breached the applicant’s right to equal treatment. The applicant submits that Commission’s rejection of his application because of the greater volume under the main deck of his proposed new vessel constitutes gross difference in treatment amounting to impermissible discrimination against him compared to the wholly different approach adopted regarding the treatment of some of the applications for additional safety tonnage accepted in Decision No 2003/245, as well as regarding one of the applications initially rejected in that decision but then accepted in the decision contained in Commission Document C(2010) 4765 of 13 July 2010. |
| --- | --- |

Finally, the applicant alleges that the Commission breached the applicant’s right to equal treatment. The applicant submits that Commission’s rejection of his application because of the greater volume under the main deck of his proposed new vessel constitutes gross difference in treatment amounting to impermissible discrimination against him compared to the wholly different approach adopted regarding the treatment of some of the applications for additional safety tonnage accepted in Decision No 2003/245, as well as regarding one of the applications initially rejected in that decision but then accepted in the decision contained in Commission Document C(2010) 4765 of 13 July 2010.

---

| 2.4.2011 | EN | Official Journal of the European Union | C 103/23 |
| --- | --- | --- | --- |

2.4.2011

EN

Official Journal of the European Union

C 103/23

---

Action brought on 24 January 2011 — Verenigde Douaneagenten v Commission

(Case T-32/11)

2011/C 103/41

Language of the case: Dutch

Parties

Applicant: Verenigde Douaneagenten (Rotterdam, Netherlands) (represented by: J. van der Meché, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul the Decision for the reasons set out below. |
| --- | --- |

—

Annul the Decision for the reasons set out below.

Pleas in law and main arguments

The applicant seeks a declaration annulling the decision of the European Commission of 1 October 2010, reference REC 02/09.

On the basis of Article 220(2)(b) of Regulation No 2913/92 (1) and Article 871 of Regulation No 2454/93, (2) the Commission found that the applicant acted in good faith and complied with all the provisions laid down by the legislation in force, but that there was no question of an error on the part of the competent authorities and thus post-clearance recovery could not be dispensed with.

The applicant submits that in the present case there is an error on the basis of the second subparagraph of Article 220(2)(b) of Regulation No 2913/92. That subparagraph provides that where the preferential status of goods is established on the basis of a system of administrative cooperation involving the authorities of a third country, the issue of an incorrect certificate by those authorities is regarded as an error. The applicant submits that this is the case here.

Moreover, the applicant considers that in the event of post-clearance recovery the Netherlands authorities must prove that the issue of the incorrect certificate is attributable to an incorrect statement of the facts by the exporter.

The applicant submits that the conclusion must be that the issue of incorrect certificates by the customs authority on Curacao is an error pursuant to the second subparagraph of Article 220(2)(b) of Regulation No 2913/92.

In its investigation the Commission also established that the applicant must be regarded as not having performed any fraudulent acts or displayed any obvious negligence but that it is not a case of special circumstances and therefore remission of duties is not justified.

The applicant submits in that connection that the ruling in the contested decision on remission under Article 239 of Regulation No 2913/92 was not given within the period laid down in Article 907 of Regulation No 2454/93. Therefore it submits that the Netherlands customs authority should grant the application for remission of duties.

In its investigation the Commission also failed to follow the correct procedure in that it failed to hear the applicant or place it in a position to make its views known properly, which, the applicant submits, is contrary to the principle of defence in Article 41 of the Charter of Fundamental Rights of the European Union.

Furthermore the applicant states that there is a special circumstance because of the fact that in relying on Article 220(2)(b) of Regulation No 2913/92 it is dependent on documents that it does not, and did not have to, possess.

---

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

(2)  Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1993 L 253, p. 1).

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| 2.4.2011 | EN | Official Journal of the European Union | C 103/24 |
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2.4.2011

EN

Official Journal of the European Union

C 103/24

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Action brought on 26 January 2011 — Kraft Foods Global Brands v OHIM — Fenaco (SUISSE PREMIUM)

(Case T-60/11)

2011/C 103/42

Language of the case: Spanish

Parties

Applicant: Kraft Foods Global Brands LLC (Northfield, USA) (represented by M. de Justo Bailey, lawyer)

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

Other party to the proceedings before the Board of Appeal: Fenaco Genossenschaft (Berne, Switzerland)

Form of order sought

| — | Annul the decision of the First Board of Appeal of the Office for Harmonization in the Internal Market (Trade Marks and Designs) of 11 November 2010, in Case R 522/2010-1, and |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonization in the Internal Market (Trade Marks and Designs) of 11 November 2010, in Case R 522/2010-1, and

| — | Order the defendant and the co-defendant to bear the cost of the procedure. |
| --- | --- |

—

Order the defendant and the co-defendant to bear the cost of the procedure.

Pleas in law and main arguments

Applicant for the Community trade mark: Fenaco Genossenschaft.

Community trade mark applied for: Figurative mark ‘SUISSE PREMIUM’ for goods and services of Classes 30, 31 and 42.

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

Mark or sign cited in opposition: Figurative mark ‘PREMIUM’ for goods of Class 30.

Decision of the Opposition Division: Opposition dismissed.

Decision of the Board of Appeal: Dismissal of the appeal.

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

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

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| 2.4.2011 | EN | Official Journal of the European Union | C 103/25 |
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2.4.2011

EN

Official Journal of the European Union

C 103/25

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Action brought on 28 January 2011 — Recombined Dairy System v Commission

(Case T-65/11)

2011/C 103/43

Language of the case: Danish

Parties

Applicant: Recombined Dairy System (Horsens, Denmark) (represented by: T.K. Kristjánsson and T. Gønge, lawyers)

Defendant: European Commission

Form of order sought

| — | Annul Article 1(2) and (4) of the European Commission’s Decision of 12 November 2010 (Case C(2010) 7692 (REC 03/08), addressed to the Danish tax authorities, finding that post-clearance entry of an amount of EUR 1 406 486,06 (DKK 10 492 385,99) in the accounts of import duties, referred to in the Kingdom of Denmark’s request of 6 October 2008, is justified, and that a waiver of import duties in the amount of EUR1 234 365,24 (DKK 9 208 364,69), referred to in the Kingdom of Denmark’s request of 6 October 2008, is not justified. |
| --- | --- |

—

Annul Article 1(2) and (4) of the European Commission’s Decision of 12 November 2010 (Case C(2010) 7692 (REC 03/08), addressed to the Danish tax authorities, finding that post-clearance entry of an amount of EUR 1 406 486,06 (DKK 10 492 385,99) in the accounts of import duties, referred to in the Kingdom of Denmark’s request of 6 October 2008, is justified, and that a waiver of import duties in the amount of EUR1 234 365,24 (DKK 9 208 364,69), referred to in the Kingdom of Denmark’s request of 6 October 2008, is not justified.

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

—

Order the Commission to pay the costs.

Pleas in law and main arguments

The Commission’s finding that a post-clearance entry is justified and that a waiver of the import duties in question is not justified is based on an assessment of whether there was error on the part of the authorities under Article 236, cf. Article 220(2)(b), and particular circumstances under Article 239 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing a Community Customs Code. (1)

In the contested decision, the Commission found that:

| — | there was no error on the part of the authorities in relation to two products for which the applicant had obtained Binding Tariff Information (BTI); |
| --- | --- |

—

there was no error on the part of the authorities in relation to two products for which the applicant had obtained Binding Tariff Information (BTI);

| — | there was error on the part of the authorities in relation to one product, in respect of which the tax authorities had informed the applicant that a BTI was not necessary, as the applicant was in possession of a BTI for a product which was identical for customs duty purposes; |
| --- | --- |

—

there was error on the part of the authorities in relation to one product, in respect of which the tax authorities had informed the applicant that a BTI was not necessary, as the applicant was in possession of a BTI for a product which was identical for customs duty purposes;

| — | there was no error on the part of the authorities for two other products, for which the applicant had not requested BTIs, as the products were identical for customs duty purposes to products for which the applicant had obtained BTIs. |
| --- | --- |

—

there was no error on the part of the authorities for two other products, for which the applicant had not requested BTIs, as the products were identical for customs duty purposes to products for which the applicant had obtained BTIs.

The Commission further found that there were particular circumstances for the two products for which BTIs had been issued and for the product for which it had been decided that a BTI was not necessary, but that there were no particular circumstances for the last two products, as the applicant had not requested BTIs for those products.

The applicant puts forward the following in support of its application:

| 1. | First plea: there was an error on the part of the authorities in respect of all five products for the entire period, since the customs authorities’ classification under heading 3504 in the BTIs issued caused the applicant to have a legitimate expectation that that classification was correct. |
| --- | --- |

1.

First plea: there was an error on the part of the authorities in respect of all five products for the entire period, since the customs authorities’ classification under heading 3504 in the BTIs issued caused the applicant to have a legitimate expectation that that classification was correct.

| 2. | Second plea: there are particular circumstances concerning the two products in respect of which BTIs were not requested, as it is beyond the scope of normal business risk that the customs authorities will, after many years, change their interpretation of the Customs Tariff with retroactive effect. (2) |
| --- | --- |

2.

Second plea: there are particular circumstances concerning the two products in respect of which BTIs were not requested, as it is beyond the scope of normal business risk that the customs authorities will, after many years, change their interpretation of the Customs Tariff with retroactive effect. (2)

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(1)  OJ 1992 L 302, p. 1.

(2)  Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1).

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| 2.4.2011 | EN | Official Journal of the European Union | C 103/25 |
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2.4.2011

EN

Official Journal of the European Union

C 103/25

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Appeal brought on 7 February 2011 by Erika Lenz against the judgment of the Civil Service Tribunal delivered on 14 December 2010 in Case F-80/09 Lenz v Commission

(Case T-78/11 P)

2011/C 103/44

Language of the case: German

Parties

Appellant: Erika Lenz (Osnabruck, Germany) (represented by V. Lenz and J. Römer. lawyers)

Other party to the proceedings: European Commission

Form of order sought by the appellant

| — | Set aside in full the judgment of the Civil Service Tribunal of 14 December 2010 in Case F-80/09; |
| --- | --- |

—

Set aside in full the judgment of the Civil Service Tribunal of 14 December 2010 in Case F-80/09;

| — | Uphold in full the forms of order sought at first instance; |
| --- | --- |

—

Uphold in full the forms of order sought at first instance;

| — | Order the European Commission to pay the costs of the appeal. |
| --- | --- |

—

Order the European Commission to pay the costs of the appeal.

Pleas in law and main arguments

In support of its appeal the appellant relies on four pleas in law.

1.   First plea in law: misrepresentation of the facts in paragraph 29 of the judgment appealed against and infringement of the Rules of Procedure

The appellant criticises the Civil Service Tribunal for having described the ‘Reasoning’ of the Commission in the contested decision as such and for having accepted it, although it was not available in German and was therefore expressly not acknowledged by the appellant. The Civil Service Tribunal thereby infringed both Article 29 of its Rules of Procedure and Council Regulation No 1 of 15 April 1958 determining the language to be used by the European Economic Community (OJ, English Special Edition, 1952-1958, p. 59). According to the appellant, paragraph 29 of the judgment appealed against contains not only a procedural error but also a misrepresentation of the facts.

2.   Second plea in law: misrepresentation of the profession of natural health professional (‘Heilpraktiker’) in Germany

It is claimed that the Civil Service Tribunal’s description of the medical therapeutic profession of natural health professional in Germany was factually incorrect.

3.   Third plea in law: misrepresentation of the facts concerning the summoning of a witness

The appellant claims that the Civil Service Tribunal misrepresented the facts with regard to the summoning of a witness. The Civil Service Tribunal, in paragraphs 20 and 45 of the judgment appealed against, incorrectly stated that what was at issue in the written submissions was the reimbursement of the costs of the witness concerned. According to the appellant what was at issue was in fact the proof of events during the period when the witness was employed by the Joint Sickness Insurance Scheme of the institutions of the European Union.

4.   Fourth plea in law: facts missing from the judgment

The appellant also complains that certain statements by the parties in the oral hearing were not restated by the Civil Service Tribunal in the judgment appealed against and therefore also could not be assessed.

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| 2.4.2011 | EN | Official Journal of the European Union | C 103/26 |
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2.4.2011

EN

Official Journal of the European Union

C 103/26

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Action brought on 9 February 2011 — Nath Kalsi v OHIM — American Clothing Associates (RIDGE WOOD)

(Case T-80/11)

2011/C 103/45

Language in which the application was lodged: German

Parties

Applicant: Dwarka Nath Kalsi and Ajit Nath Kalsi (Agra, India) (represented by: J. Schmidt, 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: American Clothing Associates NV (Evergem, Belgium)

Forms of order sought

| — | Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 19 November 2010 in Case R 599/2010-1; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 19 November 2010 in Case R 599/2010-1;

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Dwarka Nath Kalsi and Ajit Nath Kalsi.

Community trade mark concerned: Figurative marks containing the word element ‘RIDGE WOOD’ for goods and services in Classes 18, 24 and 25.

Proprietor of the mark or sign cited in the opposition proceedings: American Clothing Associates NV.

Mark or sign cited in opposition: Word mark ‘RIVER WOODS’ and figurative marks containing the word element ‘RIVER WOODS’ und ‘River Woods’ for goods and services in Classes 18, 25 and 40.

Decision of the Opposition Division: Opposition dismissed.

Decision of the Board of Appeal: Appeal allowed.

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009, (1) since there is no likelihood of confusion between the two marks at issue; Infringement of Article 15(1) und Article 42 of Regulation (EC) No 207/2009 on account of failure to prove use of the earlier marks, and infringement of Article 8(5) of Regulation (EC) No 207/2009, since the facts presented by American Clothing Associates were insufficient to establish a reputation within the meaning of this Article.

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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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| 2.4.2011 | EN | Official Journal of the European Union | C 103/27 |
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2.4.2011

EN

Official Journal of the European Union

C 103/27

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Appeal brought on 11 February 2011 by Luigi Marcuccio against the judgment of the Civil Service Tribunal delivered on 23 November 2010 in Case F-65/09, Marcuccio v Commission

(Case T-85/11 P)

2011/C 103/46

Language of the case: Italian

Parties

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

Other party to the proceedings: European Commission

Form of order sought by the appellant

The appellant claims that the General Court should:

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

—

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

| — | declare that the document produced by the Commission on the day of the hearing has always been and remains totally inadmissible in hanc litem; |
| --- | --- |

—

declare that the document produced by the Commission on the day of the hearing has always been and remains totally inadmissible in hanc litem;

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

—

allow in its entirety and without any exception whatsoever the relief sought 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 judgment of the Civil Service Tribunal of 23 November 2010. That judgment dismissed an action for annulment of the decision of 5 August 2008, adopted pursuant to the judgment delivered by the Court of First Instance on 10 June 2008 in Case T-18/04 Marcuccio v Commission (not published in the ECR), annulment of the decision to reject the complaint against that decision and an order that the Commission pay the appellant a certain sum by way of compensation for the damage purportedly suffered as a result of those decisions.

The appellant relies on four grounds of appeal.

| 1. | First ground, alleging certain procedural errors and errors in judicando on the grounds, inter alia, of breach of the rights of the defence. |
| --- | --- |

1.

First ground, alleging certain procedural errors and errors in judicando on the grounds, inter alia, of breach of the rights of the defence.

| 2. | Second ground, alleging that the author of the decision annulment of which was sought at first instance lacked competence. |
| --- | --- |

2.

Second ground, alleging that the author of the decision annulment of which was sought at first instance lacked competence.

| 3. | Third ground, alleging absolute failure to state reasons in connection with the annulment sought at first instance. |
| --- | --- |

3.

Third ground, alleging absolute failure to state reasons in connection with the annulment sought at first instance.

| 4. | Fourth ground, alleging that a large number of the statements in the judgment under appeal are unlawful on account, inter alia, of the following defects: (a) breach and incorrect and unreasonable interpretation and application of legal rules; (b) breach of the principle patere legem quam ipse fecisti; (c) misuse of power, including abuse of process; (d) absolute failure to state reasons. |
| --- | --- |

4.

Fourth ground, alleging that a large number of the statements in the judgment under appeal are unlawful on account, inter alia, of the following defects: (a) breach and incorrect and unreasonable interpretation and application of legal rules; (b) breach of the principle patere legem quam ipse fecisti; (c) misuse of power, including abuse of process; (d) absolute failure to state reasons.

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| 2.4.2011 | EN | Official Journal of the European Union | C 103/27 |
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2.4.2011

EN

Official Journal of the European Union

C 103/27

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Action brought on 18 February 2011 — BIA Separations v Commission

(Case T-88/11)

2011/C 103/47

Language of the case: English

Parties

Applicant: BIA Separations d.o.o. (Ljubljana, Slovenia) (represented by: G. Berrisch, lawyer, and N. Chesaites, Barrister)

Defendant: European Commission

Form of order sought

| — | annul the Commission’s implicit decision of 10 December 2010 rejecting the applicant’s confirmatory application for access to Commission Decision on the Co-operation Agreement between the European Community and the European Investment Bank in respect of the Risk-sharing Finance Facility (C(2008) 2181) and the Draft Commission Decision on amending the Co-operation Agreement between the European Community and the European Investment Bank in respect of the Risk-sharing Finance Facility (C(2008) 8058); |
| --- | --- |

—

annul the Commission’s implicit decision of 10 December 2010 rejecting the applicant’s confirmatory application for access to Commission Decision on the Co-operation Agreement between the European Community and the European Investment Bank in respect of the Risk-sharing Finance Facility (C(2008) 2181) and the Draft Commission Decision on amending the Co-operation Agreement between the European Community and the European Investment Bank in respect of the Risk-sharing Finance Facility (C(2008) 8058);

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

—

order the Commission to pay the costs of these proceedings.

Pleas in law and main arguments

In support of the action, the applicant relies on a single plea in law alleging that the Commission violated Article 296 TFEU by failing to respond to the applicant’s confirmatory request for access to information within the prescribed time-limit laid down in Article 8(1) and (2) of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (1).

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(1)  OJ 2001 L 145, p. 43

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| 2.4.2011 | EN | Official Journal of the European Union | C 103/28 |
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2.4.2011

EN

Official Journal of the European Union

C 103/28

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Action brought on 18 February 2011 — Andersen v Commission

(Case T-92/11)

2011/C 103/48

Language of the case: English

Parties

Applicant: Jørgen Andersen (Ballerup, Denmark) (represented by: M. F. Nissen and G. Van de Walle de Ghelcke, lawyers)

Defendant: European Commission

Form of order sought

| — | Annul Article 1(2) of the Decision of the Commission dated 24 February 2010 in State Aid case C 41/08 (NN 35/08) — Public service contracts between the Danish Ministry of Transport and Danske Statsbaner (DSB) (OJ 2011 L 7, p. 1); |
| --- | --- |

—

Annul Article 1(2) of the Decision of the Commission dated 24 February 2010 in State Aid case C 41/08 (NN 35/08) — Public service contracts between the Danish Ministry of Transport and Danske Statsbaner (DSB) (OJ 2011 L 7, p. 1);

| — | Order that the Commission pay the cost incurred by the applicant. |
| --- | --- |

—

Order that the Commission pay the cost incurred by the applicant.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging that the Commission manifestly erred in law in concluding that the Danish government did not commit a manifest error of appreciation with regard to the classification of the Copenhagen-Ystad route as a public service and in including it in the scheme of public service contracts. The applicant considers that this route has efficiently been operated by market participants without subsidies and therefore should not be included in a public service contract. |
| --- | --- |

1.

First plea in law, alleging that the Commission manifestly erred in law in concluding that the Danish government did not commit a manifest error of appreciation with regard to the classification of the Copenhagen-Ystad route as a public service and in including it in the scheme of public service contracts. The applicant considers that this route has efficiently been operated by market participants without subsidies and therefore should not be included in a public service contract.

| 2. | Second plea in law, alleging that the Commission manifestly erred in law by not ordering recovery of the incompatible overcompensation paid to DSB due to the dividends paid to its shareholder, the Danish State. The applicant considers that payment of dividends from a wholly State-owned company to the State is not a legitimate mechanism for off-setting incompatible overcompensation. |
| --- | --- |

2.

Second plea in law, alleging that the Commission manifestly erred in law by not ordering recovery of the incompatible overcompensation paid to DSB due to the dividends paid to its shareholder, the Danish State. The applicant considers that payment of dividends from a wholly State-owned company to the State is not a legitimate mechanism for off-setting incompatible overcompensation.

| 3. | Third plea in law, alleging the Commission manifestly erred in law by applying Regulation No 1370/2007 (1) instead of Regulation No 1191/69 (2). The applicant considers that, regarding unlawful State aid, the Commission should apply the law as applicable at the time that aid was granted. |
| --- | --- |

3.

Third plea in law, alleging the Commission manifestly erred in law by applying Regulation No 1370/2007 (1) instead of Regulation No 1191/69 (2). The applicant considers that, regarding unlawful State aid, the Commission should apply the law as applicable at the time that aid was granted.

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(1)  Regulation (EC) No 1370/2007 of the European Parliament and of the Council of 23 October 2007 on public passenger transport services by rail and by road and repealing Council Regulations (EEC) Nos 1191/69 and 1107/70 (OJ 2007 L 315, p. 1)

(2)  Regulation (EEC) No 1191/69 of the Council of 26 June 1969 on action by Member States concerning the obligations inherent in the concept of a public service in transport by rail, road and inland waterway (OJ 1969 L 156, p. 1)

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