# Official Journal C 310/2006

| | ISSN 1725-2423 |
| --- | --- |
| Official Journal
  of the European Union | C 310 |
| | |
| English edition | Information and Notices | Volume 4916 December 2006 |

ISSN 1725-2423

Official Journal

of the European Union

C 310

English edition

Information and Notices

Volume 4916 December 2006

---

| Notice No | Contents | page |
| --- | --- | --- |
| | I   Information |
| | Court of Justice |
| | COURT OF JUSTICE |
| 2006/C 310/1 | Case C-149/06: Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 20 March 2006 — Ministero dell'Economia e delle Finanze and Agenzia delle Entrate v Porto Antico di Genova SPA | 1 |
| 2006/C 310/2 | Case C-360/06: Reference for a preliminary ruling from the Finanzgericht Hamburg lodged on 5 September 2006 — Heinrich Bauer Verlag BeteiligungsGmbH v Finanzamt für Großunternehmen in Hamburg | 1 |
| 2006/C 310/3 | Case C-383/06: Reference for a preliminary ruling from the Raad van State (Netherlands) lodged on 18 September 2006 — Vereniging Nationaal Overlegorgaan Sociale Werkvoorziening v Minister van Sociale Zaken en Werkgelegenheid | 1 |
| 2006/C 310/4 | Case C-384/06: Reference for a preliminary ruling from the Raad van State (Netherlands) lodged on 18 September 2006 — Gemeente Rotterdam v Minister van Sociale Zaken en Werkgelegenheid | 2 |
| 2006/C 310/5 | Case C-385/06: Reference for a preliminary ruling from the Raad van State (Netherlands) lodged on 18 September 2006 — Sociaal Economische Samenwerking West-Brabant v Algemeene Directie voor de Arbeidsvoorziening | 3 |
| 2006/C 310/6 | Case C-393/06: Reference for a preliminary ruling from the Vergabekontrollsenat des Landes Wien (Austria) lodged on 22 September 2006 — Ing. Aigner, Wasser-Wärme-Umwelt GmbH v Fernwärme Wien GmbH | 4 |
| 2006/C 310/7 | Case C-400/06: Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 26 September 2006 — Codirex Expeditie BV v Staatssecretaris van Financiën | 4 |
| 2006/C 310/8 | Case C-402/06: Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 27 September 2006 — Op- en Overslagbedrijf Van der Vaart B.V. v Staatssecretaris van Financiën | 5 |
| 2006/C 310/9 | Case C-404/06: Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 28 September 2006 — Quelle AG v Bundesverband der Verbraucherzentralen und Verbraucherverbände | 5 |
| 2006/C 310/0 | Case C-405/06 P: Appeal brought on 2 October 2006 by Miguel Torres S.A against the judgment of the Court of First Instance (Second Chamber) delivered on 11 July 2006 in Case T-247/03 Miguel Torres S.A v OHIM and Bodegas Muga S.A. | 6 |
| 2006/C 310/1 | Case C-408/06: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 5 October 2006 — Landesanstalt für Landwirtschaft, Abteilung Förderwesen und Fachrecht v Franz Götz | 6 |
| 2006/C 310/2 | Case C-412/06: Reference for a preliminary ruling from the Oberlandesgericht Stuttgart (Germany) lodged on 10 October 2006 — Annelore Hamilton v Volksbank Filder eG | 7 |
| 2006/C 310/3 | Case C-417/06 P: Appeal brought on 12 October 2006 by the Italian Republic against the judgment delivered by the Court of First Instance (Fourth Chamber) on 13 July 2006 in Case T-225/04 Italian Republic v Commission of the European Communities | 7 |
| 2006/C 310/4 | Case C-419/06: Action brought on 13 October 2006 — Commission of the European Communities v Hellenic Republic | 8 |
| 2006/C 310/5 | Case C-424/06: Action brought on 6 October 2006 — Commission of the European Communities v Italian Republic | 8 |
| 2006/C 310/6 | Case C-440/06: Action brought on 24 October 2006 — Commission of the European Communities v Hellenic Republic | 9 |
| 2006/C 310/7 | Case C-441/06: Action brought on 25 October 2006 — Commission of the European Communities v French Republic | 9 |
| | COURT OF FIRST INSTANCE |
| 2006/C 310/8 | Case T-274/02: Judgment of the Court of First Instance of 24 October 2006 — Ritek and Prodisc Technology v Council (Dumping — Recordable compact discs originating in Taiwan — Determination of the dumping margin — Choice of the asymmetrical method of calculation — Pattern of export prices which differ according to the purchasers, regions or periods — Zeroing technique) | 11 |
| 2006/C 310/9 | Case T-302/03: Judgment of the Court of First Instance of 10 October 2006 — PTV v OHIM (map&guide) (Community trade mark — Application for the Community word mark map&guide — Absolute grounds for refusal — Descriptive character — Lack of distinctive character — Article 7(1)(b) and (c) of Regulation (EC) No 40/94) | 11 |
| 2006/C 310/0 | Joined Cases T-432/03 and T-95/05: Judgment of the Court of First Instance of 17 October 2006 — Dehon v Parliament (Officials — Vacant post — Compliance with a judgment of the Court of First Instance annulling an appointment decision — Article 29(1) of the Staff Regulations — Organisation of an internal competition) | 11 |
| 2006/C 310/1 | Case T-87/04: Judgment of the Court of First Instance of 10 October 2006 — Arranz Benitez v Parliament (Officials — Remuneration — Actual shared maintenance of the children following the divorce of two officials — Taken into consideration in order to calculate the tax allowance) | 12 |
| 2006/C 310/2 | Case T-173/04: Judgment of the Court of First Instance of 25 October 2006 — Carius v Commission (Officials — Career Development Report — 2001/2002 appraisal procedure — Action for annulment — Plea of illegality — Rights of the defence — Obligation to state reasons — Manifest error of assessment) | 12 |
| 2006/C 310/3 | Case T-182/04: Judgment of the Court of First Instance of 10 October 2006 — Van der Spree v Commission (Officials — Career Development Report — 2001/2002 appraisal period — Articles 26 and 43 of the Staff Regulations — Rights of the defence — Annulment ) | 12 |
| 2006/C 310/4 | Case T-281/04: Judgment of the Court of First Instance of 25 October 2006 — Staboli v Commission (Staff case — Pursuit of an outside activity — Participation in conferences as a speaker — Agreement — Application for the grant of special leave for training purposes — Refusal) | 13 |
| 2006/C 310/5 | Case T-311/04: Judgment of the Court of First Instance of 19 October 2006 — Buendía Sierra v Commission (Officials — Promotion — 2003 promotion procedure — Allocation of priority points) | 13 |
| 2006/C 310/6 | Joined Cases T-350/04 to T-352/04: Judgment of the Court of First Instance of 19 October 2006 — Bitburger Brauerei v OHIM — Anheuser-Busch (BUD, American Bud and Anheuser Busch Bud) (Community trade mark — Opposition proceedings — Application for registration of the Community word mark BUD — Applications for registration of the Community figurative marks American Bud and Anheuser Busch Bud — Earlier national word and figurative marks including the term bit — Article 8(1)(b) of Regulation No 40/94) | 14 |
| 2006/C 310/7 | Case T-406/04: Judgment of the Court of First Instance 17 October 2006 — Bonnet v Court of Justice (Officials — Recruitment — Member of the temporary staff — Reader of judgments — Article 2(c) of the Conditions of Employment of Other Servants — Measure adversely affecting an official — Relationship of trust) | 14 |
| 2006/C 310/8 | Case T-483/04: Judgment of the Court of First Instance of 17 October 2006 — Armour Pharmaceutical v OHIM — Teva Pharmaceutical Industries Ltd (GALZIN) (Community trade mark — Opposition proceedings — Application for Community word mark GALZIN — Earlier national word mark CALSYN — Relative ground for refusal — Likelihood of confusion — Similarity of goods and signs — Article 8(1)(b) of Regulation (EC) No 40/94 — Article 43(2) and (3) of Regulation No 40/94 — Findings of OHIM — Admissibility) | 15 |
| 2006/C 310/9 | Case T-499/04: Judgment of the Court of First Instance of 17 October 2006 — Hammarplast v OHIM — Steninge Slott (STENINGE SLOTT) (Community trade mark — Opposition proceedings — Application for Community word mark STENINGE SLOTT — Earlier word mark STENINGE KERAMIK — Likelihood of confusion) | 15 |
| 2006/C 310/0 | Case T-503/04: Judgment of the Court of First Instance of 19 October 2006 — Pessoa e Costa v Commission (Compliance with a judgment of the Court of First Instance — Interinstitutional transfer to the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) — Refusal — Effect on disciplinary proceedings) | 15 |
| 2006/C 310/1 | Case T-13/05: Judgment of the Court of First Instance of 25 October 2006 — Castell del Remei v OHIM — Bodegas Roda (ODA) (Community trade mark — Opposition proceedings — Earlier international word mark RODA and earlier national word marks BODEGAS RODA, RODA I and RODA II — Application for a Community word mark ODA — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94) | 16 |
| 2006/C 310/2 | Case T-172/05: Judgment of the Court of First Instance of 10 October 2006 — Armacell v OHIM — nmc (ARMAFOAM) (Community trade mark — Opposition proceedings — Application to register Community word mark ARMAFOAM — Earlier Community word mark NOMAFOAM — Relative ground for refusal — Likelihood of confusion — Similarity of products and signs — Argument concerning the similarity of goods raised for the first time before the Court of First Instance) | 16 |
| 2006/C 310/3 | Case T-366/04: Order of the Court of First Instance of 6 September 2006 — Hensotherm v OHIM — Hensel (HENSOTHERM) (Community trade mark — Cancellation proceedings — Community figurative and word mark HENSOTHERM — National word mark HENSOTHERM — Inadmissibility of the appeal against the decision conferring the cancellation — Time-limits — Restitutio in integrum) | 17 |
| 2006/C 310/4 | Case T-420/05 R II: Order of the President of the Court of First Instance of 13 October 2006 — Vischim v Commission (Application for interim measures — Application for suspension of operation — Directive 91/414/EEC — Fresh application — Urgency — None) | 17 |
| 2006/C 310/5 | Case T-442/05: Order of the Court of First Instance of 6 October 2006 — Biofarma v OHIM — Anca Health Care (CAFON) (Community trade mark — Withdrawal of the application for registration — No need to adjudicate) | 17 |
| 2006/C 310/6 | Case T-49/06: Action brought on 17 February 2006 — González Sánchez v OHIM — Bankinter (ENCUENTA) | 18 |
| 2006/C 310/7 | Case T-243/06: Action brought on 4 September 2006 — Promat v OHIM — Puertas Proma (PROMAT) | 18 |
| 2006/C 310/8 | Case T-285/06: Action brought on 11 October 2006 — TORRES v OHIM — Bodegas Cándido (TORRE DE FRIAS) | 19 |
| 2006/C 310/9 | Case T-286/06: Action brought on 11 October 2006 — TORRES v OHIM — Vinícola de Tomelloso (TORRES DE GAZATE) | 19 |
| 2006/C 310/0 | Case T-287/06: Action brought on 11 October 2006 — TORRES v OHIM — Bodegas Peñalba Lόpez (Torre Albéniz) | 20 |
| 2006/C 310/1 | Case T-289/06: Action brought on 11 October 2006 — CESD-Communautaire v Commission | 20 |
| 2006/C 310/2 | Case T-290/06: Action brought on 9 October 2006 — Italian Republic v Commission | 21 |
| 2006/C 310/3 | Case T-291/06: Action brought on 18 October 2006 — Operator ARP v Commission | 22 |
| 2006/C 310/4 | Case T-293/06: Action brought on 19 October 2006 — NBC Fourth Realty v OHIM — Regalado Pareja and Pedrol (PK MAX) | 23 |
| 2006/C 310/5 | Case T-294/06: Action brought on 20 October 2006 — Nordmilch v OHIM (Vitality) | 23 |
| 2006/C 310/6 | Case T-295/06: Action brought on 19 October 2006 — BASE v Commission | 24 |
| 2006/C 310/7 | Case T-296/06: Action brought on 19 October 2006 — Dongguan Nanzha Leco Stationery v Council | 25 |
| 2006/C 310/8 | Case T-297/06: Action brought on 17 October 2006 — Majątek Hutniczy v Commission | 25 |
| 2006/C 310/9 | Case T-298/06: Action brought on 18 October 2006 — Agencja Wydawnicza Technopol v OHIM (1000) | 26 |
| 2006/C 310/0 | Case T -300/06: Action brought on 4 September 2006 — Promat v OHIM — Puertas Proma (Promat) | 27 |
| 2006/C 310/1 | Case T-302/06: Action brought on 6 November 2006 — Hartmann v OHIM (E) | 27 |
| 2006/C 310/2 | Case T-274/99: Order of the Court of First Instance of 16 October 2006 — Self Service Station Borne v Commission | 28 |
| 2006/C 310/3 | Case T-275/99: Order of the Court of First Instance of 16 October 2006 — Self Service de Bleek v Commission | 28 |
| 2006/C 310/4 | Case T-276/99: Order of the Court of First Instance of 16 October 2006 — Self Service Station Hasselerbaan v Commission | 28 |
| 2006/C 310/5 | Case T-277/99: Order of the Court of First Instance of 16 October 2006 — Self Service Station Weghorst v Commission | 28 |
| 2006/C 310/6 | Case T-278/99: Order of the Court of First Instance of 16 October 2006 — Shell Hengelo Zuid v Commission | 28 |
| 2006/C 310/7 | Case T-281/99: Order of the Court of First Instance of 16 October 2006 — Visser's Oliehandel Horst v Commission | 28 |
| 2006/C 310/8 | Case T-282/99: Order of the Court of First Instance of 16 October 2006 — Visser's Tankstations v Commission | 29 |
| 2006/C 310/9 | Case T-286/99: Order of the Court of First Instance of 16 October 2006 — Tankstation en Automobielbedrijf Tromp v Commission | 29 |
| 2006/C 310/0 | Case T-287/99: Order of the Court of First Instance of 16 October 2006 — Autobedrijf Nelissen St. Geertruid v Commission | 29 |
| 2006/C 310/1 | Case T-309/99: Order of the Court of First Instance of 16 October 2006 — Snijders Olie v Commission | 29 |
| 2006/C 310/2 | Case T-314/99: Order of the Court of First Instance of 16 October 2006 — Weghorst-Oliko v Commission | 29 |
| 2006/C 310/3 | Case T-315/99: Order of the Court of First Instance of 16 October 2006 — Autobedrijf Geve v Commission | 29 |
| 2006/C 310/4 | Case T-316/99: Order of the Court of First Instance of 16 October 2006 — Pierik-Bomers v Commission | 30 |
| 2006/C 310/5 | Case T-339/99: Order of the Court of First Instance of 16 October 2006 — Achten v Commission | 30 |
| | EUROPEAN UNION CIVIL SERVICE TRIBUNAL |
| 2006/C 310/6 | Case F-120/06: Action brought on 26 October 2006 — Dálnoky v Commission | 31 |
| 2006/C 310/7 | Case F-122/06: Action brought on 23 October 2006 — Roodhuijzen v Commission | 31 |
| 2006/C 310/8 | Case F-125/06: Action brought on 30 October 2006 — Deffaa v Commission | 32 |
| 2006/C 310/9 | Case F-126/06: Action brought on 30 October 2006 — Mangazzù v Commission | 32 |

Notice No

Contents

page

I   Information

Court of Justice

COURT OF JUSTICE

2006/C 310/1

Case C-149/06: Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 20 March 2006 — Ministero dell'Economia e delle Finanze and Agenzia delle Entrate v Porto Antico di Genova SPA

1

2006/C 310/2

Case C-360/06: Reference for a preliminary ruling from the Finanzgericht Hamburg lodged on 5 September 2006 — Heinrich Bauer Verlag BeteiligungsGmbH v Finanzamt für Großunternehmen in Hamburg

1

2006/C 310/3

Case C-383/06: Reference for a preliminary ruling from the Raad van State (Netherlands) lodged on 18 September 2006 — Vereniging Nationaal Overlegorgaan Sociale Werkvoorziening v Minister van Sociale Zaken en Werkgelegenheid

1

2006/C 310/4

Case C-384/06: Reference for a preliminary ruling from the Raad van State (Netherlands) lodged on 18 September 2006 — Gemeente Rotterdam v Minister van Sociale Zaken en Werkgelegenheid

2

2006/C 310/5

Case C-385/06: Reference for a preliminary ruling from the Raad van State (Netherlands) lodged on 18 September 2006 — Sociaal Economische Samenwerking West-Brabant v Algemeene Directie voor de Arbeidsvoorziening

3

2006/C 310/6

Case C-393/06: Reference for a preliminary ruling from the Vergabekontrollsenat des Landes Wien (Austria) lodged on 22 September 2006 — Ing. Aigner, Wasser-Wärme-Umwelt GmbH v Fernwärme Wien GmbH

4

2006/C 310/7

Case C-400/06: Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 26 September 2006 — Codirex Expeditie BV v Staatssecretaris van Financiën

4

2006/C 310/8

Case C-402/06: Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 27 September 2006 — Op- en Overslagbedrijf Van der Vaart B.V. v Staatssecretaris van Financiën

5

2006/C 310/9

Case C-404/06: Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 28 September 2006 — Quelle AG v Bundesverband der Verbraucherzentralen und Verbraucherverbände

5

2006/C 310/0

Case C-405/06 P: Appeal brought on 2 October 2006 by Miguel Torres S.A against the judgment of the Court of First Instance (Second Chamber) delivered on 11 July 2006 in Case T-247/03 Miguel Torres S.A v OHIM and Bodegas Muga S.A.

6

2006/C 310/1

Case C-408/06: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 5 October 2006 — Landesanstalt für Landwirtschaft, Abteilung Förderwesen und Fachrecht v Franz Götz

6

2006/C 310/2

Case C-412/06: Reference for a preliminary ruling from the Oberlandesgericht Stuttgart (Germany) lodged on 10 October 2006 — Annelore Hamilton v Volksbank Filder eG

7

2006/C 310/3

Case C-417/06 P: Appeal brought on 12 October 2006 by the Italian Republic against the judgment delivered by the Court of First Instance (Fourth Chamber) on 13 July 2006 in Case T-225/04 Italian Republic v Commission of the European Communities

7

2006/C 310/4

Case C-419/06: Action brought on 13 October 2006 — Commission of the European Communities v Hellenic Republic

8

2006/C 310/5

Case C-424/06: Action brought on 6 October 2006 — Commission of the European Communities v Italian Republic

8

2006/C 310/6

Case C-440/06: Action brought on 24 October 2006 — Commission of the European Communities v Hellenic Republic

9

2006/C 310/7

Case C-441/06: Action brought on 25 October 2006 — Commission of the European Communities v French Republic

9

COURT OF FIRST INSTANCE

2006/C 310/8

Case T-274/02: Judgment of the Court of First Instance of 24 October 2006 — Ritek and Prodisc Technology v Council (Dumping — Recordable compact discs originating in Taiwan — Determination of the dumping margin — Choice of the asymmetrical method of calculation — Pattern of export prices which differ according to the purchasers, regions or periods — Zeroing technique)

11

2006/C 310/9

Case T-302/03: Judgment of the Court of First Instance of 10 October 2006 — PTV v OHIM (map&guide) (Community trade mark — Application for the Community word mark map&guide — Absolute grounds for refusal — Descriptive character — Lack of distinctive character — Article 7(1)(b) and (c) of Regulation (EC) No 40/94)

11

2006/C 310/0

Joined Cases T-432/03 and T-95/05: Judgment of the Court of First Instance of 17 October 2006 — Dehon v Parliament (Officials — Vacant post — Compliance with a judgment of the Court of First Instance annulling an appointment decision — Article 29(1) of the Staff Regulations — Organisation of an internal competition)

11

2006/C 310/1

Case T-87/04: Judgment of the Court of First Instance of 10 October 2006 — Arranz Benitez v Parliament (Officials — Remuneration — Actual shared maintenance of the children following the divorce of two officials — Taken into consideration in order to calculate the tax allowance)

12

2006/C 310/2

Case T-173/04: Judgment of the Court of First Instance of 25 October 2006 — Carius v Commission (Officials — Career Development Report — 2001/2002 appraisal procedure — Action for annulment — Plea of illegality — Rights of the defence — Obligation to state reasons — Manifest error of assessment)

12

2006/C 310/3

Case T-182/04: Judgment of the Court of First Instance of 10 October 2006 — Van der Spree v Commission (Officials — Career Development Report — 2001/2002 appraisal period — Articles 26 and 43 of the Staff Regulations — Rights of the defence — Annulment )

12

2006/C 310/4

Case T-281/04: Judgment of the Court of First Instance of 25 October 2006 — Staboli v Commission (Staff case — Pursuit of an outside activity — Participation in conferences as a speaker — Agreement — Application for the grant of special leave for training purposes — Refusal)

13

2006/C 310/5

Case T-311/04: Judgment of the Court of First Instance of 19 October 2006 — Buendía Sierra v Commission (Officials — Promotion — 2003 promotion procedure — Allocation of priority points)

13

2006/C 310/6

Joined Cases T-350/04 to T-352/04: Judgment of the Court of First Instance of 19 October 2006 — Bitburger Brauerei v OHIM — Anheuser-Busch (BUD, American Bud and Anheuser Busch Bud) (Community trade mark — Opposition proceedings — Application for registration of the Community word mark BUD — Applications for registration of the Community figurative marks American Bud and Anheuser Busch Bud — Earlier national word and figurative marks including the term bit — Article 8(1)(b) of Regulation No 40/94)

14

2006/C 310/7

Case T-406/04: Judgment of the Court of First Instance 17 October 2006 — Bonnet v Court of Justice (Officials — Recruitment — Member of the temporary staff — Reader of judgments — Article 2(c) of the Conditions of Employment of Other Servants — Measure adversely affecting an official — Relationship of trust)

14

2006/C 310/8

Case T-483/04: Judgment of the Court of First Instance of 17 October 2006 — Armour Pharmaceutical v OHIM — Teva Pharmaceutical Industries Ltd (GALZIN) (Community trade mark — Opposition proceedings — Application for Community word mark GALZIN — Earlier national word mark CALSYN — Relative ground for refusal — Likelihood of confusion — Similarity of goods and signs — Article 8(1)(b) of Regulation (EC) No 40/94 — Article 43(2) and (3) of Regulation No 40/94 — Findings of OHIM — Admissibility)

15

2006/C 310/9

Case T-499/04: Judgment of the Court of First Instance of 17 October 2006 — Hammarplast v OHIM — Steninge Slott (STENINGE SLOTT) (Community trade mark — Opposition proceedings — Application for Community word mark STENINGE SLOTT — Earlier word mark STENINGE KERAMIK — Likelihood of confusion)

15

2006/C 310/0

Case T-503/04: Judgment of the Court of First Instance of 19 October 2006 — Pessoa e Costa v Commission (Compliance with a judgment of the Court of First Instance — Interinstitutional transfer to the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) — Refusal — Effect on disciplinary proceedings)

15

2006/C 310/1

Case T-13/05: Judgment of the Court of First Instance of 25 October 2006 — Castell del Remei v OHIM — Bodegas Roda (ODA) (Community trade mark — Opposition proceedings — Earlier international word mark RODA and earlier national word marks BODEGAS RODA, RODA I and RODA II — Application for a Community word mark ODA — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94)

16

2006/C 310/2

Case T-172/05: Judgment of the Court of First Instance of 10 October 2006 — Armacell v OHIM — nmc (ARMAFOAM) (Community trade mark — Opposition proceedings — Application to register Community word mark ARMAFOAM — Earlier Community word mark NOMAFOAM — Relative ground for refusal — Likelihood of confusion — Similarity of products and signs — Argument concerning the similarity of goods raised for the first time before the Court of First Instance)

16

2006/C 310/3

Case T-366/04: Order of the Court of First Instance of 6 September 2006 — Hensotherm v OHIM — Hensel (HENSOTHERM) (Community trade mark — Cancellation proceedings — Community figurative and word mark HENSOTHERM — National word mark HENSOTHERM — Inadmissibility of the appeal against the decision conferring the cancellation — Time-limits — Restitutio in integrum)

17

2006/C 310/4

Case T-420/05 R II: Order of the President of the Court of First Instance of 13 October 2006 — Vischim v Commission (Application for interim measures — Application for suspension of operation — Directive 91/414/EEC — Fresh application — Urgency — None)

17

2006/C 310/5

Case T-442/05: Order of the Court of First Instance of 6 October 2006 — Biofarma v OHIM — Anca Health Care (CAFON) (Community trade mark — Withdrawal of the application for registration — No need to adjudicate)

17

2006/C 310/6

Case T-49/06: Action brought on 17 February 2006 — González Sánchez v OHIM — Bankinter (ENCUENTA)

18

2006/C 310/7

Case T-243/06: Action brought on 4 September 2006 — Promat v OHIM — Puertas Proma (PROMAT)

18

2006/C 310/8

Case T-285/06: Action brought on 11 October 2006 — TORRES v OHIM — Bodegas Cándido (TORRE DE FRIAS)

19

2006/C 310/9

Case T-286/06: Action brought on 11 October 2006 — TORRES v OHIM — Vinícola de Tomelloso (TORRES DE GAZATE)

19

2006/C 310/0

Case T-287/06: Action brought on 11 October 2006 — TORRES v OHIM — Bodegas Peñalba Lόpez (Torre Albéniz)

20

2006/C 310/1

Case T-289/06: Action brought on 11 October 2006 — CESD-Communautaire v Commission

20

2006/C 310/2

Case T-290/06: Action brought on 9 October 2006 — Italian Republic v Commission

21

2006/C 310/3

Case T-291/06: Action brought on 18 October 2006 — Operator ARP v Commission

22

2006/C 310/4

Case T-293/06: Action brought on 19 October 2006 — NBC Fourth Realty v OHIM — Regalado Pareja and Pedrol (PK MAX)

23

2006/C 310/5

Case T-294/06: Action brought on 20 October 2006 — Nordmilch v OHIM (Vitality)

23

2006/C 310/6

Case T-295/06: Action brought on 19 October 2006 — BASE v Commission

24

2006/C 310/7

Case T-296/06: Action brought on 19 October 2006 — Dongguan Nanzha Leco Stationery v Council

25

2006/C 310/8

Case T-297/06: Action brought on 17 October 2006 — Majątek Hutniczy v Commission

25

2006/C 310/9

Case T-298/06: Action brought on 18 October 2006 — Agencja Wydawnicza Technopol v OHIM (1000)

26

2006/C 310/0

Case T -300/06: Action brought on 4 September 2006 — Promat v OHIM — Puertas Proma (Promat)

27

2006/C 310/1

Case T-302/06: Action brought on 6 November 2006 — Hartmann v OHIM (E)

27

2006/C 310/2

Case T-274/99: Order of the Court of First Instance of 16 October 2006 — Self Service Station Borne v Commission

28

2006/C 310/3

Case T-275/99: Order of the Court of First Instance of 16 October 2006 — Self Service de Bleek v Commission

28

2006/C 310/4

Case T-276/99: Order of the Court of First Instance of 16 October 2006 — Self Service Station Hasselerbaan v Commission

28

2006/C 310/5

Case T-277/99: Order of the Court of First Instance of 16 October 2006 — Self Service Station Weghorst v Commission

28

2006/C 310/6

Case T-278/99: Order of the Court of First Instance of 16 October 2006 — Shell Hengelo Zuid v Commission

28

2006/C 310/7

Case T-281/99: Order of the Court of First Instance of 16 October 2006 — Visser's Oliehandel Horst v Commission

28

2006/C 310/8

Case T-282/99: Order of the Court of First Instance of 16 October 2006 — Visser's Tankstations v Commission

29

2006/C 310/9

Case T-286/99: Order of the Court of First Instance of 16 October 2006 — Tankstation en Automobielbedrijf Tromp v Commission

29

2006/C 310/0

Case T-287/99: Order of the Court of First Instance of 16 October 2006 — Autobedrijf Nelissen St. Geertruid v Commission

29

2006/C 310/1

Case T-309/99: Order of the Court of First Instance of 16 October 2006 — Snijders Olie v Commission

29

2006/C 310/2

Case T-314/99: Order of the Court of First Instance of 16 October 2006 — Weghorst-Oliko v Commission

29

2006/C 310/3

Case T-315/99: Order of the Court of First Instance of 16 October 2006 — Autobedrijf Geve v Commission

29

2006/C 310/4

Case T-316/99: Order of the Court of First Instance of 16 October 2006 — Pierik-Bomers v Commission

30

2006/C 310/5

Case T-339/99: Order of the Court of First Instance of 16 October 2006 — Achten v Commission

30

EUROPEAN UNION CIVIL SERVICE TRIBUNAL

2006/C 310/6

Case F-120/06: Action brought on 26 October 2006 — Dálnoky v Commission

31

2006/C 310/7

Case F-122/06: Action brought on 23 October 2006 — Roodhuijzen v Commission

31

2006/C 310/8

Case F-125/06: Action brought on 30 October 2006 — Deffaa v Commission

32

2006/C 310/9

Case F-126/06: Action brought on 30 October 2006 — Mangazzù v Commission

32

| | III   Notices |
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| 2006/C 310/0 | Last publication of the Court of Justice in the Official Journal of the European Union
  OJ C 294, 2.12.2006 | 34 |

III   Notices

2006/C 310/0

Last publication of the Court of Justice in the Official Journal of the European Union
  OJ C 294, 2.12.2006

Official Journal of the European Union

34

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EN

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I Information

Court of Justice

COURT OF JUSTICE

| 16.12.2006 | EN | Official Journal of the European Union | C 310/1 |
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Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 20 March 2006 — Ministero dell'Economia e delle Finanze and Agenzia delle Entrate v Porto Antico di Genova SPA

(Case C-149/06)

(2006/C 310/01)

Language of the case: Italian

Referring court

The Corte Suprema di Cassazione

Parties to the main proceedings

Appellants: Ministero dell'Economia e delle Finanze and Agenzia delle Entrate

Respondant: Porto Antico di Genova SPA

Questions referred

| 1. | Must the second sentence of Article 21(3) of Regulation (EEC) No 4253/88, as amended by Regulation (EEC) No 2082/93 (1), under which payments of funds to final beneficiaries are to be made without any deduction or retention which could reduce the final amount of financial assistance to which they are entitled, be interpreted as meaning that such funds cannot be taken into account even for the purposes of determining income tax or any other tax subsequently owing by the beneficiaries under national tax legislation? |
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1.

Must the second sentence of Article 21(3) of Regulation (EEC) No 4253/88, as amended by Regulation (EEC) No 2082/93 (1), under which payments of funds to final beneficiaries are to be made without any deduction or retention which could reduce the final amount of financial assistance to which they are entitled, be interpreted as meaning that such funds cannot be taken into account even for the purposes of determining income tax or any other tax subsequently owing by the beneficiaries under national tax legislation?

| 2. | If the answer to the first question is 'yes': does that exemption scheme apply solely to the part of the funds payable by Community bodies or also to the part granted, in the course of the same development programme, by national, regional or local authorities? |
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2.

If the answer to the first question is 'yes': does that exemption scheme apply solely to the part of the funds payable by Community bodies or also to the part granted, in the course of the same development programme, by national, regional or local authorities?

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(1)  OJ L 193, p. 20.

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Reference for a preliminary ruling from the Finanzgericht Hamburg lodged on 5 September 2006 — Heinrich Bauer Verlag BeteiligungsGmbH v Finanzamt für Großunternehmen in Hamburg

(Case C-360/06)

(2006/C 310/02)

Language of the case: German

Referring court

Finanzgericht Hamburg

Parties to the main proceedings

Applicant: Heinrich Bauer Verlag BeteiligungsGmbH

Defendant: Finanzamt für Großunternehmen in Hamburg

Question referred

Is it incompatible with Article 52 in conjunction with Article 58 of the EEC Treaty (now Article 43 in conjunction with Article 48 EC) that, when unlisted shares in a capital company are valued, a financial interest in a German partnership is given a lower value than a financial interest in a partnership established in another Member State?

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Reference for a preliminary ruling from the Raad van State (Netherlands) lodged on 18 September 2006 — Vereniging Nationaal Overlegorgaan Sociale Werkvoorziening v Minister van Sociale Zaken en Werkgelegenheid

(Case C-383/06)

(2006/C 310/03)

Language of the case: Dutch

Referring court

Raad van State (Netherlands)

Parties to the main proceedings

Applicant: Vereniging Nationaal Overlegorgaan Sociale Werkvoorziening

Defendant: Minister van Sociale Zaken en Werkgelegenheid

Question(s) referred

| 1. | a) | Can a Member State or an administrative authority of that State derive a power directly — that is to say without a basis in national law — from a regulation? |
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1.

a)

Can a Member State or an administrative authority of that State derive a power directly — that is to say without a basis in national law — from a regulation?

| b) | If so, does Article 23(1) of Regulation No 4253/88 (1) of 19 December 1988 laying down provisions for implementing Regulation No 2052/88 as regards coordination of the activities of the different Structural Funds between themselves and with the operations of the European Investment Bank and the other existing financial instruments, as amended by Regulation No 2082/93 (‘the coordination regulation’), confer the power, having regard to the fixing of the subsidy, to recover amounts of subsidy unduly paid, on the basis that Article 23 of the coordination regulation requires the Member States to do so where there is irregularity or negligence within the meaning of that article? |
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b)

If so, does Article 23(1) of Regulation No 4253/88 (1) of 19 December 1988 laying down provisions for implementing Regulation No 2052/88 as regards coordination of the activities of the different Structural Funds between themselves and with the operations of the European Investment Bank and the other existing financial instruments, as amended by Regulation No 2082/93 (‘the coordination regulation’), confer the power, having regard to the fixing of the subsidy, to recover amounts of subsidy unduly paid, on the basis that Article 23 of the coordination regulation requires the Member States to do so where there is irregularity or negligence within the meaning of that article?

| 2. | If not, does Article 10 EC, read in conjunction with Article 249 thereof, mean that a national provision such as Article 4.57 of the Algemene Wet Bestuursrecht (General Law on Administrative Law) — under which amounts of subsidy or advances unduly paid may be recovered — must be interpreted in conformity with the regulation? |
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2.

If not, does Article 10 EC, read in conjunction with Article 249 thereof, mean that a national provision such as Article 4.57 of the Algemene Wet Bestuursrecht (General Law on Administrative Law) — under which amounts of subsidy or advances unduly paid may be recovered — must be interpreted in conformity with the regulation?

| 3. | If so, is that interpretation limited by general legal principles which form part of Community law, in particular the principles of legal certainty and the protection of legitimate expectations? |
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3.

If so, is that interpretation limited by general legal principles which form part of Community law, in particular the principles of legal certainty and the protection of legitimate expectations?

| 4. | a) | If the answer to the third question is in the affirmative, the question arises in relation to that limitation whether national principles of legal certainty and the protection of legitimate expectations can be more far-reaching than general principles of Community law, especially the principles of legal certainty and the protection of legitimate interests which are to be complied with when applying the coordination regulation. |
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4.

a)

If the answer to the third question is in the affirmative, the question arises in relation to that limitation whether national principles of legal certainty and the protection of legitimate expectations can be more far-reaching than general principles of Community law, especially the principles of legal certainty and the protection of legitimate interests which are to be complied with when applying the coordination regulation.

| b) | In applying the Community legal principles of legal certainty and legitimate expectations, is it of significance that the Member State granting the subsidy is itself responsible for the fact that the subsidy recipient has failed to fulfil the subsidy obligations which flow from the relevant part of Community law? |
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b)

In applying the Community legal principles of legal certainty and legitimate expectations, is it of significance that the Member State granting the subsidy is itself responsible for the fact that the subsidy recipient has failed to fulfil the subsidy obligations which flow from the relevant part of Community law?

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(1)  OJ L 374, p. 1.

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| 16.12.2006 | EN | Official Journal of the European Union | C 310/2 |
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Reference for a preliminary ruling from the Raad van State (Netherlands) lodged on 18 September 2006 — Gemeente Rotterdam v Minister van Sociale Zaken en Werkgelegenheid

(Case C-384/06)

(2006/C 310/04)

Language of the case: Dutch

Referring court

Raad van State (Netherlands)

Parties to the main proceedings

Applicant: Gemeente Rotterdam

Defendant: Minister van Sociale Zaken en Werkgelegenheid

Question(s) referred

| 1. | a) | Can the Member State or one of its authorities derive a competence directly from a regulation — without a basis in national law? |
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1.

a)

Can the Member State or one of its authorities derive a competence directly from a regulation — without a basis in national law?

| b) | If so, does Article 23(1) of Council Regulation (EEC) No 4253/88 (1) of 19 December 1988, laying down provisions for implementing Regulation (EEC) No 2052/88 as regards coordination of the activities of the different Structural Funds between themselves and with the operations of the European Investment Bank and the other existing financial instruments, as amended by Council Regulation No 2082/93 of 20 July 1993 ('the coordination regulation') confer authority to withdraw an order on the granting of a subsidy and to claim back the sum paid, on the basis that Article 23 of the coordination regulation requires the Member State to do that in so far as irregularities or negligence within the meaning of the said Article 23 are involved? |
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b)

If so, does Article 23(1) of Council Regulation (EEC) No 4253/88 (1) of 19 December 1988, laying down provisions for implementing Regulation (EEC) No 2052/88 as regards coordination of the activities of the different Structural Funds between themselves and with the operations of the European Investment Bank and the other existing financial instruments, as amended by Council Regulation No 2082/93 of 20 July 1993 ('the coordination regulation') confer authority to withdraw an order on the granting of a subsidy and to claim back the sum paid, on the basis that Article 23 of the coordination regulation requires the Member State to do that in so far as irregularities or negligence within the meaning of the said Article 23 are involved?

| 2. | If not, is a national legal provision like Article 4.49.1 of the Algemene Wet Bestuursrecht (General Law on Administrative Law), on the basis of which the authority may withdraw the determination of the subsidy or amend it to the detriment of the beneficiary if (a) there are facts or circumstances of which it could not reasonably have been aware at the time the subsidy was determined and which would have resulted in a lower subsidy being determined than that in the order on the granting of the subsidy, (b) the determination of the subsidy was made in error and the beneficiary knew this or should have known it, or (c) after the determination of the subsidy, the beneficiary has not fulfilled the obligations attached thereto, to be interpreted, pursuant to Article 10 EC in conjunction with Article 249 EC, in a manner that conforms to the regulation? |
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2.

If not, is a national legal provision like Article 4.49.1 of the Algemene Wet Bestuursrecht (General Law on Administrative Law), on the basis of which the authority may withdraw the determination of the subsidy or amend it to the detriment of the beneficiary if (a) there are facts or circumstances of which it could not reasonably have been aware at the time the subsidy was determined and which would have resulted in a lower subsidy being determined than that in the order on the granting of the subsidy, (b) the determination of the subsidy was made in error and the beneficiary knew this or should have known it, or (c) after the determination of the subsidy, the beneficiary has not fulfilled the obligations attached thereto, to be interpreted, pursuant to Article 10 EC in conjunction with Article 249 EC, in a manner that conforms to the regulation?

| 3. | If so, is that interpretation limited by general legal principles which form part of Community law, in particular the principles of legal certainty and the protection of legitimate expectations? |
| --- | --- |

3.

If so, is that interpretation limited by general legal principles which form part of Community law, in particular the principles of legal certainty and the protection of legitimate expectations?

| 4. | If the answer to the third question is in the affirmative, the question arises in relation to that limitation whether the national principles of legal certainty and the protection of legitimate expectations which underlie Article 4.49.1 of the Algemene Wet Bestuursrecht (General Law on Administrative Law) can be more far-reaching than general principles of Community law, especially the principles of legal certainty and the protection of legitimate expectations which are to be complied with when applying the coordination regulation. |
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4.

If the answer to the third question is in the affirmative, the question arises in relation to that limitation whether the national principles of legal certainty and the protection of legitimate expectations which underlie Article 4.49.1 of the Algemene Wet Bestuursrecht (General Law on Administrative Law) can be more far-reaching than general principles of Community law, especially the principles of legal certainty and the protection of legitimate expectations which are to be complied with when applying the coordination regulation.

| 5. | Is it of any relevance, having regard to Article 10 EC when applying the Community law principles of legal certainty and the protection of legitimate expectations, that the beneficiary is a legal person under public law? |
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5.

Is it of any relevance, having regard to Article 10 EC when applying the Community law principles of legal certainty and the protection of legitimate expectations, that the beneficiary is a legal person under public law?

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(1)  OJ L 374, p. 1.

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| 16.12.2006 | EN | Official Journal of the European Union | C 310/3 |
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16.12.2006

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Official Journal of the European Union

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Reference for a preliminary ruling from the Raad van State (Netherlands) lodged on 18 September 2006 — Sociaal Economische Samenwerking West-Brabant v Algemeene Directie voor de Arbeidsvoorziening

(Case C-385/06)

(2006/C 310/05)

Language of the case: Dutch

Referring court

Raad van State (Netherlands)

Parties to the main proceedings

Applicant: Sociaal Economische Samenwerking West-Brabant

Defendant: Algemeene Directie voor de Arbeidsvoorziening

Question(s) referred

| 1. | a) | Can the Member State or one of its authorities derive a competence directly from a regulation — without a basis in national law? |
| --- | --- | --- |

1.

a)

Can the Member State or one of its authorities derive a competence directly from a regulation — without a basis in national law?

| b) | If so, does Article 23(1) of Council Regulation (EEC) No 4253/88 (1) of 19 December 1988, laying down provisions for implementing Regulation (EEC) No 2052/88 as regards coordination of the activities of the different Structural Funds between themselves and with the operations of the European Investment Bank and the other existing financial instruments, as amended by Council Regulation No 2082/93 of 20 July 1993 (‘the coordination regulation’) confer authority to withdraw an order on the granting of a subsidy and to claim back the sum paid, on the basis that Article 23 of the coordination regulation requires the Member State to do that in so far as irregularities or negligence within the meaning of the said Article 23 are involved? |
| --- | --- |

b)

If so, does Article 23(1) of Council Regulation (EEC) No 4253/88 (1) of 19 December 1988, laying down provisions for implementing Regulation (EEC) No 2052/88 as regards coordination of the activities of the different Structural Funds between themselves and with the operations of the European Investment Bank and the other existing financial instruments, as amended by Council Regulation No 2082/93 of 20 July 1993 (‘the coordination regulation’) confer authority to withdraw an order on the granting of a subsidy and to claim back the sum paid, on the basis that Article 23 of the coordination regulation requires the Member State to do that in so far as irregularities or negligence within the meaning of the said Article 23 are involved?

| 2. | If not, is a national legal provision like Article 4.49.1 of the Algemene Wet Bestuursrecht (General Law on Administrative Law), on the basis of which the authority may withdraw the determination of the subsidy or amend it to the detriment of the beneficiary if (a) there are facts or circumstances of which it could not reasonably have been aware at the time the subsidy was determined and which would have resulted in a lower subsidy being determined than that in the order on the granting of the subsidy, (b) the determination of the subsidy was made in error and the beneficiary knew this or should have known it, or (c) after the determination of the subsidy, the beneficiary has not fulfilled the obligations attached thereto, to be interpreted, pursuant to Article 10 EC in conjunction with Article 249 EC, in a manner that conforms to the regulation? |
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2.

If not, is a national legal provision like Article 4.49.1 of the Algemene Wet Bestuursrecht (General Law on Administrative Law), on the basis of which the authority may withdraw the determination of the subsidy or amend it to the detriment of the beneficiary if (a) there are facts or circumstances of which it could not reasonably have been aware at the time the subsidy was determined and which would have resulted in a lower subsidy being determined than that in the order on the granting of the subsidy, (b) the determination of the subsidy was made in error and the beneficiary knew this or should have known it, or (c) after the determination of the subsidy, the beneficiary has not fulfilled the obligations attached thereto, to be interpreted, pursuant to Article 10 EC in conjunction with Article 249 EC, in a manner that conforms to the regulation?

| 3. | If so, is that interpretation limited by general legal principles which form part of Community law, in particular the principles of legal certainty and the protection of legitimate expectations? |
| --- | --- |

3.

If so, is that interpretation limited by general legal principles which form part of Community law, in particular the principles of legal certainty and the protection of legitimate expectations?

| 4. | If the answer to the third question is in the affirmative, the question arises in relation to that limitation whether the national principles of legal certainty and the protection of legitimate expectations which underlie Article 4.49.1 of the Algemene Wet Bestuursrecht (General Law on Administrative Law) can be more far-reaching than general principles of Community law, especially the principles of legal certainty and the protection of legitimate expectations which are to be complied with when applying the coordination regulation. |
| --- | --- |

4.

If the answer to the third question is in the affirmative, the question arises in relation to that limitation whether the national principles of legal certainty and the protection of legitimate expectations which underlie Article 4.49.1 of the Algemene Wet Bestuursrecht (General Law on Administrative Law) can be more far-reaching than general principles of Community law, especially the principles of legal certainty and the protection of legitimate expectations which are to be complied with when applying the coordination regulation.

| 5. | Is it of any relevance, having regard to Article 10 EC when applying the Community law principles of legal certainty and the protection of legitimate expectations, that the beneficiary is a legal person under public law? |
| --- | --- |

5.

Is it of any relevance, having regard to Article 10 EC when applying the Community law principles of legal certainty and the protection of legitimate expectations, that the beneficiary is a legal person under public law?

| 6. | Does it follow from Article 23(1) of the coordination regulation that the determination of the subsidy is to be withdrawn and the sums paid are to be recovered if it is established that the Member State has already repaid an unduly granted subsidy to the European Social Fund, or has in any event made a ruling to that effect, if, either on the basis of Article 23(1) of the coordination regulation or on the basis of Article 4.49.1 of the Alegemene Wet Bestuursrecht interpreted in accordance with the regulation, the determination of the subsidy is to be withdrawn and the sums paid are to be recovered? |
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6.

Does it follow from Article 23(1) of the coordination regulation that the determination of the subsidy is to be withdrawn and the sums paid are to be recovered if it is established that the Member State has already repaid an unduly granted subsidy to the European Social Fund, or has in any event made a ruling to that effect, if, either on the basis of Article 23(1) of the coordination regulation or on the basis of Article 4.49.1 of the Alegemene Wet Bestuursrecht interpreted in accordance with the regulation, the determination of the subsidy is to be withdrawn and the sums paid are to be recovered?

| 7. | If there is no duty to withdraw and recover under Article 23(1) of the coordination regulation, are there other provisions of Community law, such as for example Article 4(1) of Regulation No 2988/95 (2) of 18 December 1995 on the protection of the European Communities' financial interests, which contain a suggestion as to the legal basis on which the Member State is obliged, directly or through interpretation in conformity with the regulation of Article 4.49.1 of the Algemene Wet Bestuursrecht, to withdraw the determination of, and claim repayment of, subsidies granted in breach of Community law, such as that in dispute here? |
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7.

If there is no duty to withdraw and recover under Article 23(1) of the coordination regulation, are there other provisions of Community law, such as for example Article 4(1) of Regulation No 2988/95 (2) of 18 December 1995 on the protection of the European Communities' financial interests, which contain a suggestion as to the legal basis on which the Member State is obliged, directly or through interpretation in conformity with the regulation of Article 4.49.1 of the Algemene Wet Bestuursrecht, to withdraw the determination of, and claim repayment of, subsidies granted in breach of Community law, such as that in dispute here?

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(1)  OJ L 374, p. 1.

(2)  OJ L 312, p. 1.

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| 16.12.2006 | EN | Official Journal of the European Union | C 310/4 |
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16.12.2006

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Official Journal of the European Union

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Reference for a preliminary ruling from the Vergabekontrollsenat des Landes Wien (Austria) lodged on 22 September 2006 — Ing. Aigner, Wasser-Wärme-Umwelt GmbH v Fernwärme Wien GmbH

(Case C-393/06)

(2006/C 310/06)

Language of the case: German

Referring court

Vergabekontrollsenat des Landes Wien

Parties to the main proceedings

Applicant: Ing. Aigner, Wasser-Wärme-Umwelt GmbH

Defendant: Fernwärme Wien GmbH

Questions referred

| 1. | Must Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (1) (OJ 2004 L 134, p. 1) (‘Directive 2004/17/EC’) be interpreted as meaning that a contracting entity which pursues one of the sectoral activities referred to in Article 3 of that directive also falls within the scope of that directive in relation to an activity pursued in parallel under competitive conditions? |
| --- | --- |

1.

Must Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (1) (OJ 2004 L 134, p. 1) (‘Directive 2004/17/EC’) be interpreted as meaning that a contracting entity which pursues one of the sectoral activities referred to in Article 3 of that directive also falls within the scope of that directive in relation to an activity pursued in parallel under competitive conditions?

| 2. | In the event that this is the case only in respect of contracting authorities: must an undertaking such as Fernwärme Wien GmbH. be characterised as a body governed by public law within the meaning of Directive 2004/17/EC or Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (2) (OJ 2004 L 134, p. 114) (‘Directive 2004/18/EC’) if it provides district heating in a given area without any real competition, or must the market for domestic heating, which also includes energy sources such as gas, oil, coal etc., be taken into account? |
| --- | --- |

2.

In the event that this is the case only in respect of contracting authorities: must an undertaking such as Fernwärme Wien GmbH. be characterised as a body governed by public law within the meaning of Directive 2004/17/EC or Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (2) (OJ 2004 L 134, p. 114) (‘Directive 2004/18/EC’) if it provides district heating in a given area without any real competition, or must the market for domestic heating, which also includes energy sources such as gas, oil, coal etc., be taken into account?

| 3. | Must an activity pursued under competitive conditions by a company which also pursues activities of a non-industrial or non-commercial nature be included within the scope of Directive 2004/17/EC or Directive 2004/18/EC if, through effective precautions such as separate balance sheets and accounts, cross-financing of the activities pursued under competitive conditions can be excluded? |
| --- | --- |

3.

Must an activity pursued under competitive conditions by a company which also pursues activities of a non-industrial or non-commercial nature be included within the scope of Directive 2004/17/EC or Directive 2004/18/EC if, through effective precautions such as separate balance sheets and accounts, cross-financing of the activities pursued under competitive conditions can be excluded?

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(1)  OJ L, 134, p. 1.

(2)  OJ L, 134, p. 114.

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| 16.12.2006 | EN | Official Journal of the European Union | C 310/4 |
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16.12.2006

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Official Journal of the European Union

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Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 26 September 2006 — Codirex Expeditie BV v Staatssecretaris van Financiën

(Case C-400/06)

(2006/C 310/07)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Appellant: Codirex Expeditie BV

Respondent: Staatssecretaris van Financiën

Questions referred

| 1. | Must subheading 0202 30 50 of the Combined Nomenclature (CN) be interpreted as meaning that frozen (boned) meat derived from the part of the forequarter of the bovine animal referred to in Additional Note 1.A.(h)(11) to Chapter 2 of the CN may qualify for classification under that subheading only if the cut of meat in question is a connected cut? |
| --- | --- |

1.

Must subheading 0202 30 50 of the Combined Nomenclature (CN) be interpreted as meaning that frozen (boned) meat derived from the part of the forequarter of the bovine animal referred to in Additional Note 1.A.(h)(11) to Chapter 2 of the CN may qualify for classification under that subheading only if the cut of meat in question is a connected cut?

| 2. | If the answer to Question 1 means that meat in loose portions may also qualify for classification under subheading 0202 30 50, is it sufficient for classification under that subheading that it has been established that the imported consignment of meat consists of cuts of frozen meat all of which are derived from the part of the forequarter referred to in Additional Note 1.A.(h)(11) to Chapter 2 of the CN, or must that consignment of meat, as a whole, or the individual constituent parts thereof (cartons) also satisfy other criteria or have other additional characteristics? |
| --- | --- |

2.

If the answer to Question 1 means that meat in loose portions may also qualify for classification under subheading 0202 30 50, is it sufficient for classification under that subheading that it has been established that the imported consignment of meat consists of cuts of frozen meat all of which are derived from the part of the forequarter referred to in Additional Note 1.A.(h)(11) to Chapter 2 of the CN, or must that consignment of meat, as a whole, or the individual constituent parts thereof (cartons) also satisfy other criteria or have other additional characteristics?

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| 16.12.2006 | EN | Official Journal of the European Union | C 310/5 |
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16.12.2006

EN

Official Journal of the European Union

C 310/5

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Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 27 September 2006 — Op- en Overslagbedrijf Van der Vaart B.V. v Staatssecretaris van Financiën

(Case C-402/06)

(2006/C 310/08)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicant: Op- en Overslagbedrijf Van der Vaart B.V.

Defendant: Staatssecretaris van Financiën

Questions referred

| 1. | Must the heading 0406 of the CN be interpreted in such a way that it can accommodate the classification of a product obtained from curdled milk from which (a great deal of) the serum has been extracted, of a whey-albumin content, by weight, not exceeding 2 percent, and of which the albumins were broken down during a drying process lasting 24 to 36 hours through the action of an added enzyme?
  If question 1 is answered in the affirmative: |
| --- | --- |

1.

Must the heading 0406 of the CN be interpreted in such a way that it can accommodate the classification of a product obtained from curdled milk from which (a great deal of) the serum has been extracted, of a whey-albumin content, by weight, not exceeding 2 percent, and of which the albumins were broken down during a drying process lasting 24 to 36 hours through the action of an added enzyme?

If question 1 is answered in the affirmative:

| 2. | What criteria are to be used with regard to fat content and appearance to determine whether a product should be classified as grated cheese or as powdered cheese under the subheading 0406 20, in other words:






  a) | Can a product which is fat free or virtually fat free, be classified under this subheading? |
| --- | --- | --- |

2.

What criteria are to be used with regard to fat content and appearance to determine whether a product should be classified as grated cheese or as powdered cheese under the subheading 0406 20, in other words:

a)

Can a product which is fat free or virtually fat free, be classified under this subheading?

| b) | Can a product which consists of casein and more than 50 % moisture (serum/whey) and having the appearance of regular granules 2 to 4 mm in size, be classified under this subheading? |
| --- | --- |

b)

Can a product which consists of casein and more than 50 % moisture (serum/whey) and having the appearance of regular granules 2 to 4 mm in size, be classified under this subheading?

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| 16.12.2006 | EN | Official Journal of the European Union | C 310/5 |
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16.12.2006

EN

Official Journal of the European Union

C 310/5

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Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 28 September 2006 — Quelle AG v Bundesverband der Verbraucherzentralen und Verbraucherverbände

(Case C-404/06)

(2006/C 310/09)

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Defendant, appellant and respondent: Quelle AG

Plaintiff, respondent and appellant: Bundesverband der Verbraucherzentralen und Verbraucherbände

Question referred

Are the provisions of Article 3(2) in conjunction with the first subparagraph of Article 3(3) and Article 3(4), or of the third subparagraph of Article 3(3) of Directive 1999/44/EC (1) of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees to be interpreted as precluding national legislation which provides that, where consumer goods are brought into conformity with the contract by means of delivery of replacement goods, the seller may require compensation from the consumer for use of the goods originally delivered, which were not in conformity with the contract?

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(1)  OJ 1999 L 171, p. 12.

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| 16.12.2006 | EN | Official Journal of the European Union | C 310/6 |
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Official Journal of the European Union

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Appeal brought on 2 October 2006 by Miguel Torres S.A against the judgment of the Court of First Instance (Second Chamber) delivered on 11 July 2006 in Case T-247/03 Miguel Torres S.A v OHIM and Bodegas Muga S.A.

(Case C-405/06 P)

(2006/C 310/10)

Language of the case: Spanish

Parties

Appellant: Miguel Torres S.A (represented by: E. Armijo Chávarri, M. A. Baz de San Ceferino and A. Castán Pérez Gόmez, abogados)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) and Bodegas Muga S.A.

Form of order sought

| — | annul the judgment under appeal in so far as it dismisses the action for annulment brought against the contested decision; |
| --- | --- |

—

annul the judgment under appeal in so far as it dismisses the action for annulment brought against the contested decision;

| — | annul the contested decision in so far as it was not annulled by the judgment under appeal; and |
| --- | --- |

—

annul the contested decision in so far as it was not annulled by the judgment under appeal; and

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

—

order OHIM to pay the costs.

Pleas in law and main arguments

| 1. | Infringement of the rights of defence of Miguel Torres S.A., by reason of the fact that the judgment under appeal dismissed the first of the pleas in law in the action for annulment before the Court of First Instance based on the infringement of the appellant's rights of defence. The refusal by the First Board of Appeal of OHIM to accept the documents produced by Miguel Torres S.A. and its statement of grounds for the appeal, of 25 January 2002, which sought to prove that the mark TORRES is well known throughout the EU is, in the appellant's view, a substantive irregularity on the basis of which the Court of First Instance should have annulled the contested decision. By failing to do so the Court of First Instance also infringed the appellant's rights of defence, undermining the principle of functional continuity and Article 8(1)(b) of the Regulation on the Community trade mark. (1) |
| --- | --- |

1.

Infringement of the rights of defence of Miguel Torres S.A., by reason of the fact that the judgment under appeal dismissed the first of the pleas in law in the action for annulment before the Court of First Instance based on the infringement of the appellant's rights of defence. The refusal by the First Board of Appeal of OHIM to accept the documents produced by Miguel Torres S.A. and its statement of grounds for the appeal, of 25 January 2002, which sought to prove that the mark TORRES is well known throughout the EU is, in the appellant's view, a substantive irregularity on the basis of which the Court of First Instance should have annulled the contested decision. By failing to do so the Court of First Instance also infringed the appellant's rights of defence, undermining the principle of functional continuity and Article 8(1)(b) of the Regulation on the Community trade mark. (1)

| 2. | Infringement of Article 8(1)(b) of the Regulation on the Community trade mark on account of incorrect interpretation of that provision by the Court of First Instance. The application by the Court of First Instance of that principle contains an error of law because of incorrect application of the criterion of the perception of the relevant public for the purpose of the assessment of the likelihood of confusion between the two conflicting marks. The appellant submits that the Court of First Instance does not take as its starting point the test relating to the perception of the average European consumer, but with the test relating to the perception of the Spanish, Portuguese and Italian consumer. |
| --- | --- |

2.

Infringement of Article 8(1)(b) of the Regulation on the Community trade mark on account of incorrect interpretation of that provision by the Court of First Instance. The application by the Court of First Instance of that principle contains an error of law because of incorrect application of the criterion of the perception of the relevant public for the purpose of the assessment of the likelihood of confusion between the two conflicting marks. The appellant submits that the Court of First Instance does not take as its starting point the test relating to the perception of the average European consumer, but with the test relating to the perception of the Spanish, Portuguese and Italian consumer.

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(1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).

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Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 5 October 2006 — Landesanstalt für Landwirtschaft, Abteilung Förderwesen und Fachrecht v Franz Götz

(Case C-408/06)

(2006/C 310/11)

Language of the case: German

Referring court

Bundesfinanzhof (Germany)

Parties to the main proceedings

Applicant: Landesanstalt für Landwirtschaft, Abteilung Förderwesen und Fachrecht

Defendant: Franz Götz

Questions referred

| 1. | Is a ‘Milchquoten-Verkaufsstelle’ (milk-quota sales point) set up by a German Land which transfers delivery reference quantities to milk producers for consideration






  a) | an agricultural intervention agency within the meaning of the third subparagraph of Article 4(5) of and Annex D (7) to the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes (1) (‘the Sixth Directive’) which carries out transactions in respect of agricultural products pursuant to regulations on the common organisation of the market in these products, or |
| --- | --- | --- |

1.

Is a ‘Milchquoten-Verkaufsstelle’ (milk-quota sales point) set up by a German Land which transfers delivery reference quantities to milk producers for consideration

a)

an agricultural intervention agency within the meaning of the third subparagraph of Article 4(5) of and Annex D (7) to the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes (1) (‘the Sixth Directive’) which carries out transactions in respect of agricultural products pursuant to regulations on the common organisation of the market in these products, or

| b) | a Verkaufsstelle (staff shop) within the meaning of the third subparagraph of Article 4(5) of and Annex D (12) of the Sixth Directive? |
| --- | --- |

b)

a Verkaufsstelle (staff shop) within the meaning of the third subparagraph of Article 4(5) of and Annex D (12) of the Sixth Directive?

| 2. | If Question 1 is to be answered in the negative:






  a) | In circumstances such as those in the main proceedings, where in a Member State both public and private milk-quota sales points transfer delivery reference quantities for consideration, is it the case that when assessing whether the treatment of a Milchquoten-Verkaufsstelle of a body governed by public law as a non-taxable person would lead to ‘significant distortions of competition’ within the meaning of the second subparagraph of Article 4(5) of the Sixth Directive the relevant geographic market is the transfer area defined by the Member State? |
| --- | --- | --- |

2.

If Question 1 is to be answered in the negative:

a)

In circumstances such as those in the main proceedings, where in a Member State both public and private milk-quota sales points transfer delivery reference quantities for consideration, is it the case that when assessing whether the treatment of a Milchquoten-Verkaufsstelle of a body governed by public law as a non-taxable person would lead to ‘significant distortions of competition’ within the meaning of the second subparagraph of Article 4(5) of the Sixth Directive the relevant geographic market is the transfer area defined by the Member State?

| b) | When assessing whether the treatment of a public Milchquoten-Verkaufsstelle as a non-taxable person would lead to such ‘significant distortions of competition’ is only the normal case of transfers independently of the land (by a Verkaufsstelle) to be taken into consideration, or are other types of transfers independently of the land (by farmers as taxable persons) also to be included even though they are only exceptional cases? |
| --- | --- |

b)

When assessing whether the treatment of a public Milchquoten-Verkaufsstelle as a non-taxable person would lead to such ‘significant distortions of competition’ is only the normal case of transfers independently of the land (by a Verkaufsstelle) to be taken into consideration, or are other types of transfers independently of the land (by farmers as taxable persons) also to be included even though they are only exceptional cases?

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(1)  OJ 1977 L 145, p. 1.

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| 16.12.2006 | EN | Official Journal of the European Union | C 310/7 |
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Reference for a preliminary ruling from the Oberlandesgericht Stuttgart (Germany) lodged on 10 October 2006 — Annelore Hamilton v Volksbank Filder eG

(Case C-412/06)

(2006/C 310/12)

Language of the case: German

Referring court

Oberlandesgericht Stuttgart

Parties to the main proceedings

Applicant: Annelore Hamilton

Defendant: Volksbank Filder eG

Question referred

| 1. | May the first paragraph of Article 4 and Article 5(1) of Council Directive 85/577/EEC of 20 December 1985 (1) be interpreted as meaning that the national legislature is not precluded from placing a time-limit on the right of cancellation given by Article 5 of the Directive, despite the consumer having been given defective notice, so that it expires one month after both parties have performed their obligations under the agreement in full?
  In the event that the Court answers the first question referred in the negative: |
| --- | --- |

1.

May the first paragraph of Article 4 and Article 5(1) of Council Directive 85/577/EEC of 20 December 1985 (1) be interpreted as meaning that the national legislature is not precluded from placing a time-limit on the right of cancellation given by Article 5 of the Directive, despite the consumer having been given defective notice, so that it expires one month after both parties have performed their obligations under the agreement in full?

In the event that the Court answers the first question referred in the negative:

| 2. | Should Directive 85/577/EEC be interpreted as meaning that the right of renunciation cannot be forfeited by the consumer — in particular after the completion of the contract — if he has not been given notice in accordance with the first paragraph of Article 4 of the Directive? |
| --- | --- |

2.

Should Directive 85/577/EEC be interpreted as meaning that the right of renunciation cannot be forfeited by the consumer — in particular after the completion of the contract — if he has not been given notice in accordance with the first paragraph of Article 4 of the Directive?

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(1)  OJ L 372, p. 31.

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Appeal brought on 12 October 2006 by the Italian Republic against the judgment delivered by the Court of First Instance (Fourth Chamber) on 13 July 2006 in Case T-225/04 Italian Republic v Commission of the European Communities

(Case C-417/06 P)

(2006/C 310/13)

Language of the case: Italian

Parties

Appellant: Italian Republic (represented by: I.M. Braguglia, Agent, and D. Del Gaizo, avvocato dello Stato)

Other party to the proceedings: Commission of the European Communities

Form of order sought

| — | Annul the judgment of the Court of First Instance (Fourth Chamber) of 13 July 2006 in Case T-225/04 dismissing the action brought by the Italian Republic against the Commission for annulment of Commission Decision No C (2003) 3971 final of 26 November 2003 establishing indicative allocations between the Member States of the commitment appropriations under Community initiatives for the period 1994-1999; |
| --- | --- |

—

Annul the judgment of the Court of First Instance (Fourth Chamber) of 13 July 2006 in Case T-225/04 dismissing the action brought by the Italian Republic against the Commission for annulment of Commission Decision No C (2003) 3971 final of 26 November 2003 establishing indicative allocations between the Member States of the commitment appropriations under Community initiatives for the period 1994-1999;

| — | grant the form of order sought at first instance in full pursuant to Article 113 of the Rules of Procedure of the Court of First Instance of the European Communities, as amended, and annul the Commission Decision; |
| --- | --- |

—

grant the form of order sought at first instance in full pursuant to Article 113 of the Rules of Procedure of the Court of First Instance of the European Communities, as amended, and annul the Commission Decision;

| — | order the Commission to pay the costs of the proceedings and the costs in the proceedings before the Court of First Instance. |
| --- | --- |

—

order the Commission to pay the costs of the proceedings and the costs in the proceedings before the Court of First Instance.

Pleas in law and main arguments

| 1. | infringement of the law by reason of misstatement of the legal basis, inconsistent application and misapplication of rules and inadequate statement of grounds in relation to the first part of the first plea in the action before the Court of First Instance (paragraphs 70, 71, 72, 73, 75, 76 and 77 of the judgment); |
| --- | --- |

1.

infringement of the law by reason of misstatement of the legal basis, inconsistent application and misapplication of rules and inadequate statement of grounds in relation to the first part of the first plea in the action before the Court of First Instance (paragraphs 70, 71, 72, 73, 75, 76 and 77 of the judgment);

| 2. | infringement of the law by reason of inadequate and contradictory statement of grounds in relation to the second part of the first plea in the action before the Court of First Instance (paragraphs 91, 92, 93, 94 and 95 of the judgment); |
| --- | --- |

2.

infringement of the law by reason of inadequate and contradictory statement of grounds in relation to the second part of the first plea in the action before the Court of First Instance (paragraphs 91, 92, 93, 94 and 95 of the judgment);

| 3. | infringement of the law by reason of the lack of legal basis and inadequate and contradictory statement of grounds in relation to the first part of second plea in the action before the Court of First Instance (paragraphs 110 — 123 of the judgment); |
| --- | --- |

3.

infringement of the law by reason of the lack of legal basis and inadequate and contradictory statement of grounds in relation to the first part of second plea in the action before the Court of First Instance (paragraphs 110 — 123 of the judgment);

| 4. | infringement of the law by reason of inadequate and contradictory statement of grounds in relation to the second, third and fourth parts of the second plea in the action before the Court of First Instance (paragraphs 147, 148, 149, 151, 153, 154 and 155 of the judgment). |
| --- | --- |

4.

infringement of the law by reason of inadequate and contradictory statement of grounds in relation to the second, third and fourth parts of the second plea in the action before the Court of First Instance (paragraphs 147, 148, 149, 151, 153, 154 and 155 of the judgment).

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| 16.12.2006 | EN | Official Journal of the European Union | C 310/8 |
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Action brought on 13 October 2006 — Commission of the European Communities v Hellenic Republic

(Case C-419/06)

(2006/C 310/14)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (represented by: M. Konstantinidis and E. Righini)

Defendant: Hellenic Republic

Form of order sought

The Court is asked to:

| — | declare, that, by failing to take the necessary measures, within the prescribed period,






  — | to abolish aid found to be unlawful and incompatible with the common market by Commission Decision C(2005)2706 of 14 September 2005 relating to State aid granted by Greece to Olympic Airways and Olympic Airlines (notified on 15 September 2005 by document SG Greffe (2005) D/205062), and |
| --- | --- | --- |

—

declare, that, by failing to take the necessary measures, within the prescribed period,

—

to abolish aid found to be unlawful and incompatible with the common market by Commission Decision C(2005)2706 of 14 September 2005 relating to State aid granted by Greece to Olympic Airways and Olympic Airlines (notified on 15 September 2005 by document SG Greffe (2005) D/205062), and

| — | to recover that aid from the recipients, |
| --- | --- |

—

to recover that aid from the recipients,

and in any event by failing to inform the Commission of such specific measures, the Hellenic Republic has failed to fulfil its obligations under Articles 2, 3 and 4 of the above decision and the EC Treaty;

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

—

order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

The Commission decision requires Greece to recover the aid referred to in Article 1 from the recipients and to suspend without delay each payment of aid to Olympic Airways and Olympic Airlines. Greece was also required to inform the Commission, within two months of the date of the decision, of the measures it took to comply.

The above period allowed for compliance expired on 15 November 2005.

According to settled case law, the only justification that can be put forward by a Member State in the context of the Article 88(2) EC procedure is the absolute impossibility of proper implementation of the decision. The Commission would, moreover, point out that, in accordance with the above case-law, the Greek authorities could not rely on absolute impossibility without having attempted to recover the amount, and no such attempt has been made.

The Greek authorities have not relied on extraordinary or unforeseeable difficulties rendering implementation of the decision impossible. Nor have they proposed alternative means of applying the decision which would enable the difficulties to be overcome. The Greek authorities have confined themselves to challenging the validity of the decision and of the quantitative calculation of the aid by the Commission, a fact which shows that they have not applied the slightest measure to suspend or recover the aid.

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Action brought on 6 October 2006 — Commission of the European Communities v Italian Republic

(Case C-424/06)

(2006/C 310/15)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: E. Montaguti and N. Yerrell, Agents)

Defendant: Italian Republic

Form of order sought

| — | Declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2005/15/EC of the European Parliament and of the Council of 11 March 2002 on the organisation of the working time of persons performing mobile road transport activities or, in any event, by failing to communicate such measures to the Commission, the Italian Republic has failed to fulfil its obligations under that directive; |
| --- | --- |

—

Declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2005/15/EC of the European Parliament and of the Council of 11 March 2002 on the organisation of the working time of persons performing mobile road transport activities or, in any event, by failing to communicate such measures to the Commission, the Italian Republic has failed to fulfil its obligations under that directive;

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

—

order the Italian Republic to pay the costs.

Pleas in law and main arguments

The time-limit for transposition of Directive 2002/15/EC into domestic law expired on 23 March 2005.

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| 16.12.2006 | EN | Official Journal of the European Union | C 310/9 |
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Action brought on 24 October 2006 — Commission of the European Communities v Hellenic Republic

(Case C-440/06)

(2006/C 310/16)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (represented by: S. Pardo Quintillán and M. Konstantinidis)

Defendant: Hellenic Republic

Form of order sought

The Court is asked to:

| — | declare that the Hellenic Republic has failed to fulfil its obligations under Articles 3 and 4 of Directive 91/271/EEC (1) concerning urban waste-water treatment by failing to ensure that 24 agglomerations are provided with collecting systems for urban waste water meeting the requirements of Article 3 and/or urban waste water treatment systems satisfying the requirements of Article 4; |
| --- | --- |

—

declare that the Hellenic Republic has failed to fulfil its obligations under Articles 3 and 4 of Directive 91/271/EEC (1) concerning urban waste-water treatment by failing to ensure that 24 agglomerations are provided with collecting systems for urban waste water meeting the requirements of Article 3 and/or urban waste water treatment systems satisfying the requirements of Article 4;

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

—

order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

Article 3 of Directive 91/271/EEC requires Member States to ensure that all agglomerations of a certain size are provided with collecting systems for urban waste water. Article 4 of the Directive also provides that Member States are to ensure that urban waste water entering collecting systems is subject to secondary treatment (or an equivalent treatment) within the meaning of Article 2(8) of the Directive.

This case concerns the breach of two specific obligations on the part of the Hellenic Republic, provided for in Articles 3 and 4 of Directive 91/271/EEC: first, the requirement that there should be a collecting system for urban waste water by 31 December 2000 in all agglomerations with a population of more than 15 000 before 31 December 2000 in accordance with Article 3 of the Directive; second, the requirement that all urban waste water discharged into collecting systems should be subject to secondary treatment by 31 December 2000 in agglomerations with a population of more than 15 000.

By the end of the period laid down by the Commission in the statement of reasons in its opinion (13 September 2005), 24 agglomerations in Greece did not have a collecting system for urban waste water and/or a treatment system for urban waste water as required by the Directive.

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(1)  OJ L 135 of 30.05.1991, p. 40.

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Action brought on 25 October 2006 — Commission of the European Communities v French Republic

(Case C-441/06)

(2006/C 310/17)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: C. Giolito, Agent)

Defendant: French Republic

Form of order sought

| — | declare that, by failing to give effect, within the prescribed period, to the Commission Decision of 2 August 2004 on the State aid implemented by France for France Télécom (State Aid C 13/b/2003) (1), the French Republic has failed to fulfil its obligations under Articles 2 and 3 of that decision, the fourth paragraph of Article 249 EC and Article 10 EC; |
| --- | --- |

—

declare that, by failing to give effect, within the prescribed period, to the Commission Decision of 2 August 2004 on the State aid implemented by France for France Télécom (State Aid C 13/b/2003) (1), the French Republic has failed to fulfil its obligations under Articles 2 and 3 of that decision, the fourth paragraph of Article 249 EC and Article 10 EC;

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

—

order the French Republic to pay the costs.

Pleas in law and main arguments

Pointing out, as a preliminary point, that the cancellation of unlawful aid by means of its recovery is the logical consequence of the finding that it is unlawful, the applicant invokes the defendant's failure to observe that case-law inasmuch as, more than two years after the adoption of the decision in question, no repayment of the aid granted to France Télécom has yet been made and no repayment procedure has even been commenced at national level. Consequently, several essential provisions of Community law have been infringed, in particular Article 10 EC and the fourth paragraph of Article 249 EC.

The applicant notes in that respect that, pursuant to the case-law of the Court, no provision of Community law requires the Commission to fix the exact amount of the unlawful aid to be recovered. It is sufficient that the decision ordering the recovery of aid declared incompatible with the common market includes information enabling the addressee to work that amount out himself, without undue difficulty. If that decision were, none the less, to cause practical problems, the Commission and the Member State in question would be required, in any event, to work together, pursuant to the obligation of genuine cooperation set out in Article 10 EC, in order to overcome those difficulties.

That being so, the applicant contests the defendant's claim that it is impossible to give a sufficiently reliable estimate of the amount of aid to be recovered, particularly inasmuch as the decision of 2 August 2004, in its grounds, refers expressly to two estimates provided by the French authorities during the administrative procedure, on the basis of which the sum of the range to be recovered was fixed by the Commission in its decision. It thus follows clearly from that decision that the aid to be recovered is equivalent to the difference between the amount of business tax that France Télécom should have paid pursuant to ordinary law and the amount of tax actually paid by that company.

The applicant also observes that, during the recovery procedure, the Commission made several specific proposals as to the amount of aid to be recovered even though, pursuant to the case-law of the Court, it is in general primarily a matter for the Member State concerned to make those proposals in the event of difficulties. Furthermore, the defendant never put forward any suggestions seeking to improve the Commission's proposals.

The applicant concludes by observing that it also follows from the case-law that the fact that there is an appeal against a Commission decision declaring aid to be unlawful does not suspend the obligation to implement that decision and therefore to secure repayment of the unlawful and incompatible aid, except in the event of temporary measures granted by the Court of First Instance under Article 242 EC.

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(1)  OJ 2005 L 269, p. 30.

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COURT OF FIRST INSTANCE

| 16.12.2006 | EN | Official Journal of the European Union | C 310/11 |
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Judgment of the Court of First Instance of 24 October 2006 — Ritek and Prodisc Technology v Council

(Case T-274/02) (1)

(Dumping - Recordable compact discs originating in Taiwan - Determination of the dumping margin - Choice of the asymmetrical method of calculation - Pattern of export prices which differ according to the purchasers, regions or periods - ‘Zeroing’ technique)

(2006/C 310/18)

Language of the case: English

Parties

Applicant: Ritek Corp (Hsin-Chu, Taiwan) and Prodisc Technology Inc. (Taipei Hsien, Taiwan) (represented by: first, K. Adamantopoulos, V. Akritidis and D. De Notaris, lawyers, and subsequently by K. Adamantopoulos and J. Branton, Solicitor)

Defendant: Council of the European Union (represented by S. Marquardt, acting as Agent, and G. Berrisch, lawyer)

Intervener in support of the defendant: Commission of the European Communities (represented by T. Scharf and S. Meany, Agents)

Re:

Annulment of Council Regulation (EC) No 1050/2002 of 13 June 2002 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of recordable compact discs originating in Taiwan (OJ 2002 L 160, p. 2).

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Ritek Corp. and Prodisc Technology Inc. to bear their own costs and those incurred by the Council; |
| --- | --- |

2.

Orders Ritek Corp. and Prodisc Technology Inc. to bear their own costs and those incurred by the Council;

| 3. | Orders the Commission to bear its own costs |
| --- | --- |

3.

Orders the Commission to bear its own costs

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(1)  OJ C 289, 23.11.2002.

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Judgment of the Court of First Instance of 10 October 2006 — PTV v OHIM (map&guide)

(Case T-302/03) (1)

(Community trade mark - Application for the Community word mark map&guide - Absolute grounds for refusal - Descriptive character - Lack of distinctive character - Article 7(1)(b) and (c) of Regulation (EC) No 40/94)

(2006/C 310/19)

Language of the case: German

Parties

Applicant: PTV Planung Transport Verkehr AG (Karlsruhe, Germany) (represented by: F. Nielsen, lawyer)

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

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 1 July 2003 (Case R 1046/2001-2), concerning an application for registration of the word mark map&guide as a Community trade mark.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

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

2.

Orders the applicant to pay the costs.

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(1)  OJ C 264, 1.11.2003.

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Judgment of the Court of First Instance of 17 October 2006 — Dehon v Parliament

(Joined Cases T-432/03 and T-95/05) (1)

(Officials - Vacant post - Compliance with a judgment of the Court of First Instance annulling an appointment decision - Article 29(1) of the Staff Regulations - Organisation of an internal competition)

(2006/C 310/20)

Language of the case: French

Parties

Applicant: Jean Dehon (Hagen, Luxembourg) (represented by: S. Orlandi, X. Martin, A. Coolen, J.-N. Louis and E. Marchal, lawyers)

Defendant: European Parliament (represented by: H. von Hertzen, A. Bencomo Weber and A. Lukosiute, Agents)

Re:

In Case T-432/03, application for annulment of the European Parliament's decision to organise an internal competition to fill the post of deputy head of the French translation division advertised in vacancy notice No 9192 and, in Case T-95/05, application for annulment of the Parliament's decision of 29 April 2004 appointing M.S. to that post.

Operative part of the judgment

The Court:

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

1.

Dismisses the actions;

| 2. | Orders each party to bear its own costs. |
| --- | --- |

2.

Orders each party to bear its own costs.

---

(1)  OJ C 47, 21.2.2004.

---

| 16.12.2006 | EN | Official Journal of the European Union | C 310/12 |
| --- | --- | --- | --- |

16.12.2006

EN

Official Journal of the European Union

C 310/12

---

Judgment of the Court of First Instance of 10 October 2006 — Arranz Benitez v Parliament

(Case T-87/04) (1)

(Officials - Remuneration - Actual shared maintenance of the children following the divorce of two officials - Taken into consideration in order to calculate the tax allowance)

(2006/C 310/21)

Language of the case: French

Parties

Applicant: Milagros Irène Arranz Benitez (Brussels, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers)

Defendant: European Parliament (represented by: M. Mustapha-Pascha and L. Knudsen, Agents)

Re:

Annulment of the Parliament's decision of 15 April 2003 in so far as that decision alters, as from 1 May 2003, the applicant's right to the tax allowance in respect of dependent children.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders each party to bear its own costs. |
| --- | --- |

2.

Orders each party to bear its own costs.

---

(1)  OJ C 106, 30.4.2004.

---

| 16.12.2006 | EN | Official Journal of the European Union | C 310/12 |
| --- | --- | --- | --- |

16.12.2006

EN

Official Journal of the European Union

C 310/12

---

Judgment of the Court of First Instance of 25 October 2006 — Carius v Commission

(Case T-173/04) (1)

(Officials - Career Development Report - 2001/2002 appraisal procedure - Action for annulment - Plea of illegality - Rights of the defence - Obligation to state reasons - Manifest error of assessment)

(2006/C 310/22)

Language of the case: French

Parties

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

Defendant: Commission of the European Communities (represented by: H. Tserepa-Lacombe and M. Velardo, Agents)

Re:

Application for annulment of the decision of 21 May 2003 drawing up the definitive version of the applicant's Career Development Report for the period from 1 July 2001 to 31 December 2002 and, so far as necessary, of the decision of 23 December 2003 rejecting the applicant's complaint.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders each party to bear its own costs. |
| --- | --- |

2.

Orders each party to bear its own costs.

---

(1)  OJ C 179, 10.7.2004.

---

| 16.12.2006 | EN | Official Journal of the European Union | C 310/12 |
| --- | --- | --- | --- |

16.12.2006

EN

Official Journal of the European Union

C 310/12

---

Judgment of the Court of First Instance of 10 October 2006 — Van der Spree v Commission

(Case T-182/04) (1)

(Officials - Career Development Report - 2001/2002 appraisal period - Articles 26 and 43 of the Staff Regulations - Rights of the defence - Annulment )

(2006/C 310/23)

Language of the case: French

Parties

Applicant: Daniel Van der Spree (Overijse, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers)

Defendant: Commission of the European Communities (represented by: G. Berscheid and H. Krämer, Agents)

Re:

Annulment of the decision of 25 June 2003 drawing up the definitive version of the applicant's Career Development Report for the period from 1 July 2001 to 31 December 2002.

Operative part of the judgment

The Court:

| 1. | Annuls the decision of 25 June 2003 drawing up the definitive version of Daniel Van der Spree's Career Development Report for the period from 1 July 2001 to 31 December 2002; |
| --- | --- |

1.

Annuls the decision of 25 June 2003 drawing up the definitive version of Daniel Van der Spree's Career Development Report for the period from 1 July 2001 to 31 December 2002;

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

2.

Orders the Commission to pay the costs.

---

(1)  OJ C 179, 10.7.2004.

---

| 16.12.2006 | EN | Official Journal of the European Union | C 310/13 |
| --- | --- | --- | --- |

16.12.2006

EN

Official Journal of the European Union

C 310/13

---

Judgment of the Court of First Instance of 25 October 2006 — Staboli v Commission

(Case T-281/04) (1)

(Staff case - Pursuit of an outside activity - Participation in conferences as a speaker - Agreement - Application for the grant of special leave for training purposes - Refusal)

(2006/C 310/24)

Language of the case: French

Parties

Applicant: Paola Staboli (Brussels, Belgium) (represented by: L. Vogel, lawyer)

Defendant: Commission of the European Communities (represented by: G. Berscheid and H. Tserepa-Lacombe, Agents)

Re:

Application for annulment of the Commission's decisions of 12 March and 6 April 2004 rejecting her complaint brought against the decision of 9 May 2003, in so far as the institution refused to grant her special leave for training purposes to enable her to pursue an outside activity, which was moreover authorised by that decision, and, so far as necessary, annulment of the abovementioned decision of 9 May 2003.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders each party to bear its own costs. |
| --- | --- |

2.

Orders each party to bear its own costs.

---

(1)  OJ C 262, 23.10.2004.

---

| 16.12.2006 | EN | Official Journal of the European Union | C 310/13 |
| --- | --- | --- | --- |

16.12.2006

EN

Official Journal of the European Union

C 310/13

---

Judgment of the Court of First Instance of 19 October 2006 — Buendía Sierra v Commission

(Case T-311/04) (1)

(Officials - Promotion - 2003 promotion procedure - Allocation of priority points)

(2006/C 310/25)

Language of the case: French

Parties

Applicant: José Luis Buendía Sierra (Brussels, Belgium) (represented by: M. van der Woude and V. Landes, lawyers)

Defendant: Commission of the European Communities (represented by: G. Berscheid and V. Joris, Agents, assisted by D. Waelbroeck, lawyer)

Re:

Annulment:

| — | of the decision of the Director General of the Commission's legal service to allocate only one Directorate General priority point to the applicant under the 2003 promotion procedure, communicated on 2 July 2003, confirmed by a decision of the Appointing Authority, notified on 16 December 2003; |
| --- | --- |

—

of the decision of the Director General of the Commission's legal service to allocate only one Directorate General priority point to the applicant under the 2003 promotion procedure, communicated on 2 July 2003, confirmed by a decision of the Appointing Authority, notified on 16 December 2003;

| — | of the Appointing Authority's decision not to allocate any special priority points for additional activities in the interests of the institution to the applicant under the 2003 promotion procedure, notified by means of the Sysper 2 system on 16 December 2003; |
| --- | --- |

—

of the Appointing Authority's decision not to allocate any special priority points for additional activities in the interests of the institution to the applicant under the 2003 promotion procedure, notified by means of the Sysper 2 system on 16 December 2003;

| — | of the following decisions: the Appointing Authority's decision to allocate a total of 20 points to the applicant under the 2003 promotion procedure; the merit list of Grade A5 officials under the 2003 procedure, published in Administrative Notice No 69-2003 of 13 November 2003; the list of officials promoted to Grade A4 under the 2003 procedure, published in Administrative Notice No 73-2003 of 27 November 2003; in any event, the decision not to include the applicant's name on those lists; |
| --- | --- |

—

of the following decisions: the Appointing Authority's decision to allocate a total of 20 points to the applicant under the 2003 promotion procedure; the merit list of Grade A5 officials under the 2003 procedure, published in Administrative Notice No 69-2003 of 13 November 2003; the list of officials promoted to Grade A4 under the 2003 procedure, published in Administrative Notice No 73-2003 of 27 November 2003; in any event, the decision not to include the applicant's name on those lists;

| — | so far as necessary, of the Appointing Authority's decision of 15 June 2004 rejecting his complaint brought on 12 February 2004. |
| --- | --- |

—

so far as necessary, of the Appointing Authority's decision of 15 June 2004 rejecting his complaint brought on 12 February 2004.

Operative part of the judgment

The Court:

| 1. | Annuls the Commission's decisions setting the applicant's total promotion points at 20 and refusing to include his name on the list of officials promoted to Grade A4 under the 2003 promotion procedure; |
| --- | --- |

1.

Annuls the Commission's decisions setting the applicant's total promotion points at 20 and refusing to include his name on the list of officials promoted to Grade A4 under the 2003 promotion procedure;

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

2.

Dismisses the action as to the remainder;

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

3.

Orders the Commission to pay the costs.

---

(1)  OJ C 262, 23.10.2004.

---

| 16.12.2006 | EN | Official Journal of the European Union | C 310/14 |
| --- | --- | --- | --- |

16.12.2006

EN

Official Journal of the European Union

C 310/14

---

Judgment of the Court of First Instance of 19 October 2006 — Bitburger Brauerei v OHIM — Anheuser-Busch (BUD, American Bud and Anheuser Busch Bud)

(Joined Cases T-350/04 to T-352/04) (1)

(Community trade mark - Opposition proceedings - Application for registration of the Community word mark BUD - Applications for registration of the Community figurative marks American Bud and Anheuser Busch Bud - Earlier national word and figurative marks including the term ‘bit’ - Article 8(1)(b) of Regulation No 40/94)

(2006/C 310/26)

Language of the case: English

Parties

Applicant: Bitburger Brauerei Th. Simon GmbH (Bitburg Germany) (represented by M. Huth-Dierig, lawyer,)

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

Other party/ to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Anheuser-Busch, Inc., (Saint Louis, Missouri, United States (represented by: A. Renck, V. von Bomhard, A. Pohlmann, D. Ohlgart and B. Goebel, lawyers,)

Re:

Three applications brought against the decision of the Second Board of Appeal of OHIM of 22 June 2004 in cases R447/2002-2, R451/2002-2 and R453/2002-2, concerning opposition proceedings between Bitburger Brauerei Th. Simon and Anheuser-Busch, Inc.

Operative part of the judgment

The Court:

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

1.

Dismisses the actions;

| 2. | Orders Bitburger Brauerei Th. Simon GmbH to pay the costs |
| --- | --- |

2.

Orders Bitburger Brauerei Th. Simon GmbH to pay the costs

---

(1)  OJ C 19,22.1.2005.

---

| 16.12.2006 | EN | Official Journal of the European Union | C 310/14 |
| --- | --- | --- | --- |

16.12.2006

EN

Official Journal of the European Union

C 310/14

---

Judgment of the Court of First Instance 17 October 2006 — Bonnet v Court of Justice

(Case T-406/04) (1)

(Officials - Recruitment - Member of the temporary staff - Reader of judgments - Article 2(c) of the Conditions of Employment of Other Servants - Measure adversely affecting an official - Relationship of trust)

(2006/C 310/27)

Language of the case: French

Parties

Applicant: André Bonnet (Saint-Pierre-de-Vassols, France) (represented by: H. de Lepinau, lawyer)

Defendant: Court of Justice of the European Communities (represented by: M. Schauss, Agent)

Re:

First, application for annulment of the Court of Justice's measures of 11 February and 4 March 2004 ending, as regards the applicant, the procedure for recruitment to the post of reader of judgments at the Chambers of the President of the Court and of the decision making an appointment to the post at issue, and, secondly, an application for damages.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders each party to bear its own costs. |
| --- | --- |

2.

Orders each party to bear its own costs.

---

(1)  OJ C 300, 4.12.2004.

---

| 16.12.2006 | EN | Official Journal of the European Union | C 310/15 |
| --- | --- | --- | --- |

16.12.2006

EN

Official Journal of the European Union

C 310/15

---

Judgment of the Court of First Instance of 17 October 2006 — Armour Pharmaceutical v OHIM — Teva Pharmaceutical Industries Ltd (GALZIN)

(Case T-483/04) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark GALZIN - Earlier national word mark CALSYN - Relative ground for refusal - Likelihood of confusion - Similarity of goods and signs - Article 8(1)(b) of Regulation (EC) No 40/94 - Article 43(2) and (3) of Regulation No 40/94 - Findings of OHIM - Admissibility)

(2006/C 310/28)

Language of the case: French

Parties

Applicant: Armour Pharmaceutical Co. (Bridgewater, New Jersey United States) (represented by: R. Gilbey, lawyer)

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

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

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 7 September 2004 (Case R 295/2003-4) relating to opposition proceedings between Armour Pharmaceutical Co. and Teva Pharmaceutical Industries Ltd

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 7 September 2004 (Case R 295/2003-4); |
| --- | --- |

1.

Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 7 September 2004 (Case R 295/2003-4);

| 2. | Orders OHIM to bear its own costs and to pay those incurred by the applicant. |
| --- | --- |

2.

Orders OHIM to bear its own costs and to pay those incurred by the applicant.

---

(1)  OJ C 69, 19.3.2005.

---

| 16.12.2006 | EN | Official Journal of the European Union | C 310/15 |
| --- | --- | --- | --- |

16.12.2006

EN

Official Journal of the European Union

C 310/15

---

Judgment of the Court of First Instance of 17 October 2006 — Hammarplast v OHIM — Steninge Slott (STENINGE SLOTT)

(Case T-499/04) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark STENINGE SLOTT - Earlier word mark STENINGE KERAMIK - Likelihood of confusion)

(2006/C 310/29)

Language of the case: English

Parties

Applicant: Hammarplast AB (Tingsryd, Sweden) (represented by: R. Almaraz Palmero, 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, intervener before the Court of First Instance: Steninge Slott AB (Märast, Sweden) (represented by: M. Björkenfeldt, lawyer)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 25 October 2004 (Case R 394/2003-2) concerning the opposition filed by the holder of the national trade mark STENINGE KERAMIK against registration of the Community trade mark STENINGE SLOTT.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

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

2.

Orders the applicant to pay the costs.

---

(1)  OJ C 57 of 05.03.2005.

---

| 16.12.2006 | EN | Official Journal of the European Union | C 310/15 |
| --- | --- | --- | --- |

16.12.2006

EN

Official Journal of the European Union

C 310/15

---

Judgment of the Court of First Instance of 19 October 2006 — Pessoa e Costa v Commission

(Case T-503/04) (1)

(Compliance with a judgment of the Court of First Instance - Interinstitutional transfer to the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) - Refusal - Effect on disciplinary proceedings)

(2006/C 310/30)

Language of the case: French

Parties

Applicant: José Pedro Pessoa e Costa (Brussels, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal)

Defendant: Commission of the European Communities (represented by: J. Currall and F. Clotuche-Duvieusart, Agents)

Re:

Application for annulment of the decision of 9 October 2003 by which the Director General of the Commission 'Personnel and administration' Directorate General refused to transfer the applicant to the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA).

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders each party to bear its own costs. |
| --- | --- |

2.

Orders each party to bear its own costs.

---

(1)  OJ C 57, 5.3.2005.

---

| 16.12.2006 | EN | Official Journal of the European Union | C 310/16 |
| --- | --- | --- | --- |

16.12.2006

EN

Official Journal of the European Union

C 310/16

---

Judgment of the Court of First Instance of 25 October 2006 — Castell del Remei v OHIM — Bodegas Roda (ODA)

(Case T-13/05) (1)

(Community trade mark - Opposition proceedings - Earlier international word mark RODA and earlier national word marks BODEGAS RODA, RODA I and RODA II - Application for a Community word mark ODA - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94)

(2006/C 310/31)

Language of the case: Spanish

Parties

Applicant: Castell del Remei, SL (Castell del Remei, Spain) (represented by: J. Grau Mora, A. Angulo, M. Baylos Morales, A. Velázquez Ibánez, F. de Visscher, E. Cornu, É. De Gryse, D. Moreau and P. Merino Baylos, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the Court of First Instance: Bodegas Roda, SA (La Rioja, Spain) (represented by: M. López Camba, lawyer)

Re:

Application for annulment of the decision of the First Board of Appeal of OHIM of 27 October 2004 (Case R 691/2003-1), concerning opposition proceedings between Bodegas Roda SA and Castell del Remei, SL.

Operative part of the judgment

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

1.

The action is dismissed;

| 2. | The applicant is ordered to pay the costs. |
| --- | --- |

2.

The applicant is ordered to pay the costs.

---

(1)  OJ C 69, 19.3.2005.

---

| 16.12.2006 | EN | Official Journal of the European Union | C 310/16 |
| --- | --- | --- | --- |

16.12.2006

EN

Official Journal of the European Union

C 310/16

---

Judgment of the Court of First Instance of 10 October 2006 — Armacell v OHIM — nmc (ARMAFOAM)

(Case T-172/05) (1)

(Community trade mark - Opposition proceedings - Application to register Community word mark ARMAFOAM - Earlier Community word mark NOMAFOAM - Relative ground for refusal - Likelihood of confusion - Similarity of products and signs - Argument concerning the similarity of goods raised for the first time before the Court of First Instance)

(2006/C 310/32)

Language of the case: English

Parties

Applicant: Armacell Enterprise GmbH (Münster, Germany) (represented by: O. Spuhler, lawyer,)

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

Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: nmc SA (Raeren-Eynatten, Belgium) (represented by: P. Péters and T. de Haan, lawyers)

Re:

Action against the decision of the First Board of Appeal of OHIM of 23 February 2005 (Case R 552/2004-1) concerning opposition proceedings between nmc SA and Armacell Enterprise GmbH.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Armacell Enterprise GmbH to bear its own costs and to pay those incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) and nmc SA. |
| --- | --- |

2.

Orders Armacell Enterprise GmbH to bear its own costs and to pay those incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) and nmc SA.

---

(1)  OJ C 171, 9.7.2005.

---

| 16.12.2006 | EN | Official Journal of the European Union | C 310/17 |
| --- | --- | --- | --- |

16.12.2006

EN

Official Journal of the European Union

C 310/17

---

Order of the Court of First Instance of 6 September 2006 — Hensotherm v OHIM — Hensel (HENSOTHERM)

(Case T-366/04) (1)

(Community trade mark - Cancellation proceedings - Community figurative and word mark HENSOTHERM - National word mark HENSOTHERM - Inadmissibility of the appeal against the decision conferring the cancellation - Time-limits - Restitutio in integrum)

(2006/C 310/33)

Language of the case: Swedish

Parties

Applicant: Hensotherm AB (Trelleborg, Sweden) (represented by: S. Hallbäck, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the Court of First Instance: Rudolf Hensel GmbH (Börnsen, Germany) (represented by: M. Zöbisch, lawyer)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 12 July 2004 (Case R 614/2003-1), concerning proceedings for invalidity of the Community figurative mark HENSOTHERM.

Operative part of the order

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

1.

The action is dismissed;

| 2. | The applicant is ordered to pay its own costs as well as those of the Office for Harmonisation in the Internal Market (Trade Marks and Designs); |
| --- | --- |

2.

The applicant is ordered to pay its own costs as well as those of the Office for Harmonisation in the Internal Market (Trade Marks and Designs);

| 3. | The intervener is ordered to pay its own costs. |
| --- | --- |

3.

The intervener is ordered to pay its own costs.

---

(1)  OJ C 31, 5.2.2005.

---

| 16.12.2006 | EN | Official Journal of the European Union | C 310/17 |
| --- | --- | --- | --- |

16.12.2006

EN

Official Journal of the European Union

C 310/17

---

Order of the President of the Court of First Instance of 13 October 2006 — Vischim v Commission

(Case T-420/05 R II)

(Application for interim measures - Application for suspension of operation - Directive 91/414/EEC - Fresh application - Urgency - None)

(2006/C 310/34)

Language of the case: English

Parties

Applicant: Vischim Srl (Cesano Maderno, Italy), (represented by C. Mereu and K. Van Maldegem, lawyers)

Defendant Commission of the European Communities (represented by B. Doherty and L. Parpala, lawyers)

Re:

Application for suspension of the deadline of 31 August 2006 set by Article 3 of Commission Directive 2005/53/EC of 16 September 2005 amending Council Directive 91/414/EEC to include chlorothalonil, chlorotoluron, cypermethrin, daminozide and thiophanate-methyl as active substances (OJ 2005 L 241, p.51)

Operative part of the order

| 1. | The application for interim measures is dismissed. |
| --- | --- |

1.

The application for interim measures is dismissed.

| 2. | Costs are reserved. |
| --- | --- |

2.

Costs are reserved.

---

| 16.12.2006 | EN | Official Journal of the European Union | C 310/17 |
| --- | --- | --- | --- |

16.12.2006

EN

Official Journal of the European Union

C 310/17

---

Order of the Court of First Instance of 6 October 2006 — Biofarma v OHIM — Anca Health Care (CAFON)

(Case T-442/05) (1)

(Community trade mark - Withdrawal of the application for registration - No need to adjudicate)

(2006/C 310/35)

Language of the case: Spanish

Parties

Applicant: Biofarma (Madrid, Spain) (represented by: V. Gil Vega and A. Ruiz López, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM intervener before the Court of First Instance: Anca Health Care Limited (London, United Kingdom) (represented by: Mathys & Squire)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 26 September 2005 (Case R 0098/2005-1), concerning opposition proceedings relating to the application for registration of the word mark ‘CAFON’ as a Community trade mark.

Operative part of the order

| 1. | It is no longer necessary to adjudicate on the action. |
| --- | --- |

1.

It is no longer necessary to adjudicate on the action.

| 2. | The applicant shall bear the costs. |
| --- | --- |

2.

The applicant shall bear the costs.

---

(1)  OJ C 74, 25.3.2006.

---

| 16.12.2006 | EN | Official Journal of the European Union | C 310/18 |
| --- | --- | --- | --- |

16.12.2006

EN

Official Journal of the European Union

C 310/18

---

Action brought on 17 February 2006 — González Sánchez v OHIM — Bankinter (ENCUENTA)

(Case T-49/06)

(2006/C 310/36)

Language in which the application was lodged: Spanish

Parties

Applicant: Francisco Javier González Sánchez (Madrid, Spain) (represented by: G. Justicia González, 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: BANKINTER S.A.

Form of order sought

| — | annul the decision of the Second Board of Appeal of OHIM of 16 December 2005, notified on 21 December 2005, in Case R 1116/2005-2, granting the applicant time within which to bring an appeal against the opposition to the mark applied for, which had been refused by OHIM on the ground that its appeal was out of time. |
| --- | --- |

—

annul the decision of the Second Board of Appeal of OHIM of 16 December 2005, notified on 21 December 2005, in Case R 1116/2005-2, granting the applicant time within which to bring an appeal against the opposition to the mark applied for, which had been refused by OHIM on the ground that its appeal was out of time.

Pleas in law and main arguments

Applicant for a Community trade mark: Confederaciόn Española de Cajas de Ahorro.

Community trade mark concerned: Word mark ‘ENCUENTA’ for goods and services in Classes 16, 36 and 38 — Application No 2 534 584.

Proprietor of the mark or sign cited in the opposition proceedings: BANKINTER S.A.

Mark or sign cited in opposition: Community figurative mark ‘ecuenta — ebankinter’ for goods and services in Classes 16, 36 and 38 — Trade mark No 2 396 760.

Decision of the Opposition Division: Opposition refusing the application for registration upheld.

Decision of the Board of Appeal: Appeal inadmissible.

Pleas in law: Infringement of Rules 61 to 69 on notifications in Regulation (EC) No 2869/95 (1).

---

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

---

| 16.12.2006 | EN | Official Journal of the European Union | C 310/18 |
| --- | --- | --- | --- |

16.12.2006

EN

Official Journal of the European Union

C 310/18

---

Action brought on 4 September 2006 — Promat v OHIM — Puertas Proma (PROMAT)

(Case T-243/06)

(2006/C 310/37)

Language in which the application was lodged: German

Parties

Applicant: Promat GmbH (Ratingen, Germany) (represented by: J. Krenzel)

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

Other party to the proceedings before the Board of Appeal of OHIM: Puertas Proma, S.A.L.

Form of order sought

| — | amend the defendant's decision of 4 May 2006 (Ref. R 1059/2005-1) so as to allow the appeal in full; |
| --- | --- |

—

amend the defendant's decision of 4 May 2006 (Ref. R 1059/2005-1) so as to allow the appeal in full;

| — | 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: the applicant.

Community trade mark concerned: the word mark ‘PROMAT’ for goods and services in Classes 1, 3, 6 to 12, 14, 16 to 17, 20 to 22, 25 and 37 (Application No 932 202).

Proprietor of the mark or sign cited in the opposition proceedings: Puertas Proma, S.A.L

Mark or sign cited in opposition: in particular, the figurative mark ‘PROMA’ for goods and services in Classes 6, 20 and 39 (Community trade mark No 239 384), the opposition being directed against the application in respect of Classes 6 and 20.

Decision of the Opposition Division: Opposition partially upheld.

Decision of the Board of Appeal: Appeal partially dismissed.

Pleas in law: breach of Article 8(1)(a) and (b) of Regulation (EC) No 40/94 (1), on the ground that neither the opposing signs nor the opposing goods are similar. Therefore there is no likelihood of confusion between the opposing marks.

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(1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).

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| 16.12.2006 | EN | Official Journal of the European Union | C 310/19 |
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Action brought on 11 October 2006 — TORRES v OHIM — Bodegas Cándido (TORRE DE FRIAS)

(Case T-285/06)

(2006/C 310/38)

Language in which the application was lodged: Spanish

Parties

Applicant: Miguel Torres S.A. (Barcelona, Spain) (represented by: E. Armijo Chávarri, M. A. Baz de San Ceferino and A. Castán Pérez-Gόmez, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Bodegas Cándido S.A.

Form of order sought

| — | annul the decision of the Second Board of Appeal of OHIM of 27 July 2006 in Case R 1069/2000-2 and order OHIM to pay the costs. |
| --- | --- |

—

annul the decision of the Second Board of Appeal of OHIM of 27 July 2006 in Case R 1069/2000-2 and order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Bodegas Cándido S.A.

Community trade mark concerned: Word mark TORRE DE FRIAS for goods in Class 33 — Application No 305 151.

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

Mark or sign cited in opposition: National word marks TORRES, international word mark TORRES, and international word mark LAS TORRES for goods in Class 33.

Decision of the Opposition Division: Opposition dismissed.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 40/94 (1) since the word TORRE is the dominant component in the overall impression produced by the mark applied for there are aural and visual similarities between the conflicting marks, and there is a likelihood of confusion between them which makes it impossible for them to coexist on the market.

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(1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).

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| 16.12.2006 | EN | Official Journal of the European Union | C 310/19 |
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Action brought on 11 October 2006 — TORRES v OHIM — Vinícola de Tomelloso (TORRES DE GAZATE)

(Case T-286/06)

(2006/C 310/39)

Language in which the application was lodged: Spanish

Parties

Applicant: Miguel Torres S.A. (Barcelona, Spain) (represented by: E. Armijo Chávarri, M. A. Baz de San Ceferino and A. Castán Pérez-Gόmez, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Vinícola de Tomelloso S.C.L.

Form of order sought

| — | annul the decision of the Second Board of Appeal of OHIM of 27 July 2006 in Case R 421/2004-2 and order OHIM to pay the costs. |
| --- | --- |

—

annul the decision of the Second Board of Appeal of OHIM of 27 July 2006 in Case R 421/2004-2 and order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Vinícola de Tomelloso S.C.L.

Community trade mark concerned: Word mark TORRE DE GAZATE in respect of goods in Class 33 — Application No 1 632 017.

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

Mark or sign cited in opposition: National word marks TORRES, international word mark TORRES, and international word mark LAS TORRES in respect of goods in Class 33.

Decision of the Opposition Division: Opposition dismissed.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 40/94 (1) because the word TORRE is a dominant component in the overall impression produced by the mark applied for, there are aural and visual similarities between the conflicting marks and there is a likelihood of confusion making it impossible for them to coexist on the market.

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(1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).

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| 16.12.2006 | EN | Official Journal of the European Union | C 310/20 |
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Action brought on 11 October 2006 — TORRES v OHIM — Bodegas Peñalba Lόpez (Torre Albéniz)

(Case T-287/06)

(2006/C 310/40)

Language in which the application was lodged: Spanish

Parties

Applicant: Miguel Torres S.A. (Barcelona, Spain) (represented by: E. Armijo Chávarri, M. A. Baz de San Ceferino and A. Castán Pérez-Gόmez, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Bodegas Peñalba Lόpez S.L.

Form of order sought

| — | annul the decision of the Second Board of Appeal of OHIM of 27 July 2006 in Case R 597/2004-2 and order OHIM to pay the costs. |
| --- | --- |

—

annul the decision of the Second Board of Appeal of OHIM of 27 July 2006 in Case R 597/2004-2 and order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Bodegas Peñalba Lόpez S.L.

Community trade mark concerned: Figurative mark Torre Albéniz, in respect of goods in Classes 32, 33 and 39 — Application No 1 191 683.

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

Mark or sign cited in opposition: A number of Community figurative and word marks and national figurative marks for goods in Class 33.

Decision of the Opposition Division: Opposition upheld and application for registration of the mark dismissed in part.

Decision of the Board of Appeal: Application upheld and contested decision refusing registration of the mark applied for annulled in respect of goods in Class 33.

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 40/94 (1) since the word TORRE is the dominant component in the overall impression produced by the mark applied for, there are aural and visual similarities between the conflicting marks, and a likelihood of confusion exists between the marks which makes it impossible for them to coexist on the market.

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(1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1)

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| 16.12.2006 | EN | Official Journal of the European Union | C 310/20 |
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Action brought on 11 October 2006 — CESD-Communautaire v Commission

(Case T-289/06)

(2006/C 310/41)

Language of the case: French

Parties

Applicant: Centre Européen pour la Statistique et le Développement ASBL — CESD-Communautaire ASBL (Luxembourg, Grand Duchy of Luxembourg) (represented by: D. Grisay and D. Piccininno, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Admit this application for annulment based on Article 230 EC, lodged against the Commission decision of 11 August 2006, |
| --- | --- |

—

Admit this application for annulment based on Article 230 EC, lodged against the Commission decision of 11 August 2006,

| — | Declare the application admissible, |
| --- | --- |

—

Declare the application admissible,

| — | Principally, declare the application well-founded and rule that the Commission decision of 11 August 2006 is void since it is the consequence of a misuse of powers, and/or is affected by defects in its reasoning and by a manifest error of assessment, |
| --- | --- |

—

Principally, declare the application well-founded and rule that the Commission decision of 11 August 2006 is void since it is the consequence of a misuse of powers, and/or is affected by defects in its reasoning and by a manifest error of assessment,

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

—

Order the Commission to pay the costs.

Pleas in law and main arguments

By its decision of 11 August 2006, the Commission found the applicant, under Article 93(1)(f) of the Financial Regulation (1), to be in serious breach of three contracts concluded with Eurostat relating to technical cooperation in the sphere of statistics (PHARE programme), which was the result of its refusal to make available to the Commission information allowing an audit of the performance of the contracts in issue. Furthermore, the contested decision states that the Commission reserves the right to seek the enforcement of the contractual provisions which have not been applied, by all appropriate means, including by way of legal proceedings, and, if necessary, to recover the sums which are established as being payable.

In support of its application for the annulment of the contested decision, the applicant puts forward three pleas in law.

The first plea relates to an alleged misuse of powers, analysed from the perspective of a misuse of procedure, to the extent that the contested decision is not subject to the particular procedures for dispute resolution laid down by each contract concluded by the applicant with the Commission and based on the application of Article 57 of Financial Regulation No 1605/2002, and substitutes for those procedures the unilateral method of a decision based on Article 93(1)(f) of that regulation. The applicant maintains that the Commission misuses the procedure laid down in Article 93(1)(f) given the article's primary objective which is, according to the applicant, to exclude tenderers who are declared to be in serious breach of contract in an earlier procurement procedure from participating in a later procedure, and terminates contracts which each lay down different methods of dispute resolution by determining the competent courts and the law which applies to those contracts.

The second plea relied on by the applicant is based on defects in reasoning. The applicant claims that the reasons for the contested decision are not properly stated either in law, in that the decision contains inadequate reasoning to the extent that it applies, in the contractual domain, a provision relating to the sound management of Community public procurement, or in fact, in that the criticisms of the applicant made by the Commission are without foundation, the applicant having shown a willingness to cooperate with the audit services of the Commission.

In its third plea, the applicant claims that the Commission made a manifest error of assessment to the extent that the contested decision states the facts alleged against the applicant without first characterising them as a serious breach of contract by following the contractual procedures under Article 57(2) of Regulation No 1605/2002.

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(1)  Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1).

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| 16.12.2006 | EN | Official Journal of the European Union | C 310/21 |
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Action brought on 9 October 2006 — Italian Republic v Commission

(Case T-290/06)

(2006/C 310/42)

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: P. Gentili, Avvocato di Stato)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

| — | annul Memorandum No 06863 of 27 July 2006 of the European Commission, Directorate-General for Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands — concerning payments made by the Commission which differ from the amount requested. Ref. Programme POR Puglia (No CCI 1999 IT 161 PO 009) |
| --- | --- |

—

annul Memorandum No 06863 of 27 July 2006 of the European Commission, Directorate-General for Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands — concerning payments made by the Commission which differ from the amount requested. Ref. Programme POR Puglia (No CCI 1999 IT 161 PO 009)

| — | annul Memorandum No 07231 of 3 August 2003 of the European Commission, Directorate-General for Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands — concerning payments made by the Commission which differ from the amount requested. Ref. DOCUP Toscana Ob. 2 (No CCI 2000 IT 162 DO 001) |
| --- | --- |

—

annul Memorandum No 07231 of 3 August 2003 of the European Commission, Directorate-General for Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands — concerning payments made by the Commission which differ from the amount requested. Ref. DOCUP Toscana Ob. 2 (No CCI 2000 IT 162 DO 001)

| — | annul Memorandum No 07248 of 3 August 2006 of the European Commission, Directorate-General for Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands — concerning certification and the intermediate statement of expenses and the claim for payment. Ref. DOCUP Veneto Ob. 2 2000-2006 (No CCI 2000 IT 162 DO 005) |
| --- | --- |

—

annul Memorandum No 07248 of 3 August 2006 of the European Commission, Directorate-General for Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands — concerning certification and the intermediate statement of expenses and the claim for payment. Ref. DOCUP Veneto Ob. 2 2000-2006 (No CCI 2000 IT 162 DO 005)

| — | annul Memorandum No 07473 of 10 August 2006 of the European Commission, Directorate-General for Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands — concerning payments made by the Commission which differ from the amount requested. Ref. PON Sviluppo Imprenditoriale Locale 2000-2006 (No CCI 1999 IT 161 PO 002) |
| --- | --- |

—

annul Memorandum No 07473 of 10 August 2006 of the European Commission, Directorate-General for Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands — concerning payments made by the Commission which differ from the amount requested. Ref. PON Sviluppo Imprenditoriale Locale 2000-2006 (No CCI 1999 IT 161 PO 002)

| — | annul Memorandum No 07755 of 22 August 2006 of the European Commission, Directorate-General for Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands — concerning payments made by the Commission which differ from the amount requested. Ref. POR Campania 2000-2006 (No CCI 1999 IT 161 PO 007) |
| --- | --- |

—

annul Memorandum No 07755 of 22 August 2006 of the European Commission, Directorate-General for Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands — concerning payments made by the Commission which differ from the amount requested. Ref. POR Campania 2000-2006 (No CCI 1999 IT 161 PO 007)

| — | annul Memorandum No 07768 of 23 August 2006 of the European Commission, Directorate-General for Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands — concerning payments made by the Commission which differ from the amount requested. Ref. POR Campania 2000-2006 (No CCI 1999 IT 161 PO 007) |
| --- | --- |

—

annul Memorandum No 07768 of 23 August 2006 of the European Commission, Directorate-General for Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands — concerning payments made by the Commission which differ from the amount requested. Ref. POR Campania 2000-2006 (No CCI 1999 IT 161 PO 007)

| — | annul Memorandum No 08861 of 20 September 2006 of the European Commission, Directorate-General for Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands — concerning payments made by the Commission which differ from the amount requested. Ref. POR Programme Sardinia 2000-2006 (No CCI 1999 IT 161 PO 010) |
| --- | --- |

—

annul Memorandum No 08861 of 20 September 2006 of the European Commission, Directorate-General for Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands — concerning payments made by the Commission which differ from the amount requested. Ref. POR Programme Sardinia 2000-2006 (No CCI 1999 IT 161 PO 010)

| — | annul all related and prior acts and, consequently, order the Commission of the European Communities to pay the costs. |
| --- | --- |

—

annul all related and prior acts and, consequently, order the Commission of the European Communities to pay the costs.

Pleas in law and main arguments

The pleas in law and main arguments are similar to those relied on in Case T-345/04 Italian Republic v Commission
   (1)

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(1)  OJ C 262, 23.10.2004, p. 55.

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| 16.12.2006 | EN | Official Journal of the European Union | C 310/22 |
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Action brought on 18 October 2006 — Operator ARP v Commission

(Case T-291/06)

(2006/C 310/43)

Language of the case: Polish

Parties

Claimant:‘Operator ARP’ Sp. z o.o. (represented by: J. Szymanowska, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | Declare partially invalid the Commission decision of 5 July 2005 in Case No C 20/04 (ex. NN 25/04) concerning State aid for the benefit of Huta Częstochowa S.A., that is to say, set aside Article 3(2) of that decision in so far as it obligates Poland to take all requisite steps to recover from Operator Sp. z o.o. the State aid granted to Huta Częstochowa S.A. in a manner inconsistent with the common market; |
| --- | --- |

—

Declare partially invalid the Commission decision of 5 July 2005 in Case No C 20/04 (ex. NN 25/04) concerning State aid for the benefit of Huta Częstochowa S.A., that is to say, set aside Article 3(2) of that decision in so far as it obligates Poland to take all requisite steps to recover from Operator Sp. z o.o. the State aid granted to Huta Częstochowa S.A. in a manner inconsistent with the common market;

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

—

Order the Commission to pay the costs.

Pleas in law and main arguments

The claimant seeks a declaration of invalidity in regard to the European Commission decision of 5 July 2005 in State aid Case No C 20/04 (ex. NN 25/04), Article 3(1) of which declares incompatible with the common market the aid which Poland accorded to Huta Częstochowa S.A. over the period from 1997 to May 2002 in the form of operating aid and aid for employment restructuring. The decision was notified to the claimant on 21 August 2006. In Article 3(2) of the contested decision the Commission imposed an obligation on Poland to take all requisite steps to recover the wrongfully granted aid from the undertakings named in that provision, which include the claimant. Pursuant to that decision, all the undertakings mentioned in Article 3(2) are jointly and severally liable for the recovery of that aid, which is to be effected without delay and in accordance with the procedures under national law. Interest is payable in respect of the entire period from the date of receipt of the aid up to the date on which it is actually repaid, in accordance with the provisions contained in Chapter V of Commission Regulation (EC) No 794/2004. (1)

In its claim that the contested decision is invalid, the claimant states that it is not itself a beneficiary of the aid granted to Huta Częstochowa S.A. over the period from 1997 to 2002, and therefore cannot be a debtor jointly and severally liable for the return of the aid, with the result, according to the claimant, that the obligation placed on Poland to take all requisite steps to recover that aid from the claimant serves no purpose.

In support of its action, the claimant raises the following heads of complaint:

| — | Infringement of the rights of defence through breach of Article 88 EC by reason of defective compliance with the obligation to enable interested parties to set out their views in the framework of the formal investigative procedure relating to the aid in question. The claimant submits that, as it did not take part in the formal investigative procedure conducted by the Commission, it did not have an opportunity to set out its views or submit legal argument in the context of that procedure, which would, in its view, have led the Commission to draft differently the operative part of the decision with regard to the definition of the group of aid beneficiaries (exclusion of ‘Operator’ Sp. z o.o. from that group); |
| --- | --- |

—

Infringement of the rights of defence through breach of Article 88 EC by reason of defective compliance with the obligation to enable interested parties to set out their views in the framework of the formal investigative procedure relating to the aid in question. The claimant submits that, as it did not take part in the formal investigative procedure conducted by the Commission, it did not have an opportunity to set out its views or submit legal argument in the context of that procedure, which would, in its view, have led the Commission to draft differently the operative part of the decision with regard to the definition of the group of aid beneficiaries (exclusion of ‘Operator’ Sp. z o.o. from that group);

| — | Breach of Article 253 EC, that is to say, lack of proper reasoning for the decision. The claimant submits that, inasmuch as it is named as a beneficiary of the aid, the grounds of the decision are terse and incoherent in that the Commission, in those grounds, does not treat the claimant as an individual capable of being recognised as a beneficiary of the aid, but at the same time refers to it in the operative part as an individual obligated to return the aid. The claimant also points out that the contested decision fails to cast light on the factual circumstances concerning the aid granted to Huta Częstochowa in a manner, according to the decision, at variance with the common market; in particular, the decision does not contain any analysis, within the context of an extension of the group of beneficiaries, of the issue of a possible transfer of benefits accruing from the aid obtained in favour of individuals assuming the assets and liabilities of Huta Częstochowa; |
| --- | --- |

—

Breach of Article 253 EC, that is to say, lack of proper reasoning for the decision. The claimant submits that, inasmuch as it is named as a beneficiary of the aid, the grounds of the decision are terse and incoherent in that the Commission, in those grounds, does not treat the claimant as an individual capable of being recognised as a beneficiary of the aid, but at the same time refers to it in the operative part as an individual obligated to return the aid. The claimant also points out that the contested decision fails to cast light on the factual circumstances concerning the aid granted to Huta Częstochowa in a manner, according to the decision, at variance with the common market; in particular, the decision does not contain any analysis, within the context of an extension of the group of beneficiaries, of the issue of a possible transfer of benefits accruing from the aid obtained in favour of individuals assuming the assets and liabilities of Huta Częstochowa;

| — | Misconstruction of Articles 87 EC and 88 EC and of Article 14 of Council Regulation (EC) No 659/1999 (2) by reason of the mention of the claimant as a beneficiary of the aid. The claimant submits that, by designating it as an aid beneficiary, the Commission exceeded the limits of its discretion inasmuch as the claimant does not belong to the group of individuals which in fact benefited from the aid; |
| --- | --- |

—

Misconstruction of Articles 87 EC and 88 EC and of Article 14 of Council Regulation (EC) No 659/1999 (2) by reason of the mention of the claimant as a beneficiary of the aid. The claimant submits that, by designating it as an aid beneficiary, the Commission exceeded the limits of its discretion inasmuch as the claimant does not belong to the group of individuals which in fact benefited from the aid;

| — | Infringement of the principles of legal certainty and proportionality by reason of the designation of the claimant as an individual obligated to return the aid declared incompatible with the common market, notwithstanding the fact that the claimant was not a beneficiary of that aid. |
| --- | --- |

—

Infringement of the principles of legal certainty and proportionality by reason of the designation of the claimant as an individual obligated to return the aid declared incompatible with the common market, notwithstanding the fact that the claimant was not a beneficiary of that aid.

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(1)  Commission Regulation (EC) No 794/2004 of 21 April 2004 implementing Council Regulation (EC) No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 2004 L 140, p. 1).

(2)  Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).

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| 16.12.2006 | EN | Official Journal of the European Union | C 310/23 |
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Action brought on 19 October 2006 — NBC Fourth Realty v OHIM — Regalado Pareja and Pedrol (PK MAX)

(Case T-293/06)

(2006/C 310/44)

Language in which the application was lodged: English

Parties

Applicant: NBC Fourth Realty Corp. (Las Vegas, USA) (represented by: A. Woodgate, A. Smith, Solicitors)

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

Other parties to the proceedings before the Board of Appeal: Miguel Isaias Regalado Pareja and Bibiana Pedrol, trading as Rosell (Alicante, Spain)

Form of order sought

| — | Annulment of the contested decision of the First Board of Appeal, of 5 July 2006, in Case R 397/2005-1; |
| --- | --- |

—

Annulment of the contested decision of the First Board of Appeal, of 5 July 2006, in Case R 397/2005-1;

| — | order the Office for Harmonisation in the Internal Market to pay the costs of this application and also the costs of the proceedings before the Board of Appeal. |
| --- | --- |

—

order the Office for Harmonisation in the Internal Market to pay the costs of this application and also the costs of the proceedings before the Board of Appeal.

Pleas in law and main arguments

Applicant for the Community trade mark: Miguel Isaias Regalado Pareja and Bibiana Pedrol, trading as Rosell.

Community trade mark concerned: The figurative Community Trademark PK MAX, claiming the colour navy blue for goods and services in classes 3, 25 and 28 in Case R 397/2005-1.

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

Mark or sign cited: The national word marks T.K. MAXX for goods and services in class 35, the Community word mark T.K. MAX, for goods and services in classes 3, 14, 18, 25, 28 and 35, as well as earlier non-registered national word marks of the same denomination, used in the course of trade in Ireland, the United Kingdom and the Netherlands.

Decision of the Opposition Division: Opposition upheld in its entirety.

Decision of the Board of Appeal: Appeal upheld and case remitted to the Opposition Division for the remaining grounds of opposition.

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94.

The applicant claims that the Board of Appeal erred in law, by concluding there was no likelihood of confusion between the earlier and the contested mark. In particular, the applicant submits the Board of Appeal incorrectly interpreted the ‘consumer’ of the protected services while it manifestly erred in the assessment of the visual, phonetic and conceptual similarities between the respective trade marks. Moreover, the Board of Appeal allegedly failed to correctly assess the scope of protection enjoyed by the earlier mark, as a result of its reputation and/or inherent distinctiveness. Finally, the applicant submits the Board has incorrectly introduced additional requirements into the provisions of Article 8(1)(b) of Council Regulation No 40/94.

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| 16.12.2006 | EN | Official Journal of the European Union | C 310/23 |
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Action brought on 20 October 2006 — Nordmilch v OHIM (Vitality)

(Case T-294/06)

(2006/C 310/45)

Language of the case: German

Parties

Applicant: Nordmilch eG (Zeven, Germany) (represented by R. Schneider, lawyer)

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

Form of order sought

| — | annul the decision of the Fourth Board of Appeal of OHIM of 9 August 2006 in Case R 746/2004-4 in so far as it dismisses the applicant's appeal |
| --- | --- |

—

annul the decision of the Fourth Board of Appeal of OHIM of 9 August 2006 in Case R 746/2004-4 in so far as it dismisses the applicant's appeal

| — | order OHIM to bear its own costs and to pay the applicant's costs. |
| --- | --- |

—

order OHIM to bear its own costs and to pay the applicant's costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘Vitality’ for goods and services in Classes 29, 30, 32, 33 and 43 (Application No 2 835 684).

Decision of the Examiner: Partial refusal to register

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: The ground for denying the mark protection which is given in Article 7(1)(b) of Regulation (EC) No 40/94 (1) does not preclude registration as the mark for which registration is sought makes it immediately possible for the relevant public to recognise the origin of the goods protected by that mark and to distinguish them from the goods of other enterprises.

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(1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1)

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| 16.12.2006 | EN | Official Journal of the European Union | C 310/24 |
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16.12.2006

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Official Journal of the European Union

C 310/24

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Action brought on 19 October 2006 — BASE v Commission

(Case T-295/06)

(2006/C 310/46)

Language of the case: French

Parties

Applicant: BASE NV (Brussels, Belgium) (represented by: A. Verheyden, Y. Desmedt and F. Bimont, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Declare that the Commission infringed the rules of procedure set out in Article 7(4) of the Framework Directive (1) by wrongly failing to open a detailed investigation procedure into the draft regulatory measures that were communicated to it by the Institut Belge des Services Postaux (IBPT); |
| --- | --- |

—

Declare that the Commission infringed the rules of procedure set out in Article 7(4) of the Framework Directive (1) by wrongly failing to open a detailed investigation procedure into the draft regulatory measures that were communicated to it by the Institut Belge des Services Postaux (IBPT);

| — | Declare that the Commission committed a number of manifest errors of assessment in its analysis of the draft measures communicated by the IBPT in finding, wrongly, that BASE had significant power on the market for voice call termination on its own individual mobile network in Belgium; |
| --- | --- |

—

Declare that the Commission committed a number of manifest errors of assessment in its analysis of the draft measures communicated by the IBPT in finding, wrongly, that BASE had significant power on the market for voice call termination on its own individual mobile network in Belgium;

| — | Declare that the Commission acted in breach of the general principles and the fundamental objectives laid down in the New Regulatory Framework by wrongly approving the remedies proposed by the IBPT, when the imposition of each one of those remedies was manifestly disproportionate and excessive. In particular, the Commission infringed both the general principles and the fundamental objectives laid down in the New Regulatory Framework by postulating the application of symmetrical termination charges in the short term, without considering the concrete implications of this symmetry for BASE, the third entrant on the market; |
| --- | --- |

—

Declare that the Commission acted in breach of the general principles and the fundamental objectives laid down in the New Regulatory Framework by wrongly approving the remedies proposed by the IBPT, when the imposition of each one of those remedies was manifestly disproportionate and excessive. In particular, the Commission infringed both the general principles and the fundamental objectives laid down in the New Regulatory Framework by postulating the application of symmetrical termination charges in the short term, without considering the concrete implications of this symmetry for BASE, the third entrant on the market;

| — | Annul, for all of the reasons outlined above, the Commission decision in its entirety; |
| --- | --- |

—

Annul, for all of the reasons outlined above, the Commission decision in its entirety;

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

—

Order the Commission to pay all of the costs.

Pleas in law and main arguments

By the contested decision of 4 August 2006 (Case BE/2006/0433), the Commission approved, at the end of the first phase of enquiry prescribed in Article 7(3) of Directive 2002/21/EC, a draft decision that the national regulatory authority of Belgium, the IBPT, had communicated to it on 7 July 2006 concerning the wholesale market for call termination on individual mobile networks in Belgium and under which the IBPT had provisionally decided that each of the three mobile network operators in Belgium, including the applicant, had significant market power on the wholesale market for voice call termination on their individual mobile networks, and to impose on them, on that basis, certain obligations. The draft decision communicated by the IBPT also contained a decision to put in place a ‘glide path’ mechanism which aims gradually to reduce the levels of termination charges of Belgian mobile operators until 2008.

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

In its first plea, the applicant claims that the Commission infringed the rules for the consultation procedure laid down in Article 7 of Directive 2002/21/EC by wrongly failing to open a detailed investigation procedure under Article 7(4) of that directive, when, according to the applicant, the draft measures communicated by the IBPT could not, by reference to the evidence and reasoning contained in the notification file, justify the designation of the applicant as an operator having significant power on the wholesale market for mobile call termination in Belgium.

In its second plea, the applicant claims that the Commission made a number of manifest errors of assessment in its assessment of the significant power held by the applicant on the market for voice call termination in Belgium, as outlined by the Belgian national authority.

In its third plea, the applicant claims that the Commission failed to have regard, in its assessment of the justified and appropriate nature of the remedies proposed by the IBPT, to the principles and objectives of the New Regulatory Framework for electronic communications. In particular, the applicant claims that the fact that the Commission postulated the application of symmetrical termination charges is a manifest infringement of the principles of proportionality and non-discrimination in that the Commission failed to have sufficient regard to the applicant's position and the objective differences that pertained between it and the other mobile operators. Furthermore, the applicant submits that the tariff rules approved by the Commission constitute a misuse of powers and infringe Article 2 of Directive 2002/77/EC. (2)

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(1)  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).

(2)  Commission Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic communications networks and services (OJ 2002 L 249, p. 21).

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| 16.12.2006 | EN | Official Journal of the European Union | C 310/25 |
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Action brought on 19 October 2006 — Dongguan Nanzha Leco Stationery v Council

(Case T-296/06)

(2006/C 310/47)

Language of the case: English

Parties

Applicant: Dongguan Nanzha Leco Stationery Mfg. Co., Ltd (Dongguan City, China) (represented by: A. P. Bentley, QC)

Defendant: Council of the European Union

Form of order sought

| — | Annul Council Regulation (EC) No 1136/2006 in so far as it applies to the applicant; and |
| --- | --- |

—

Annul Council Regulation (EC) No 1136/2006 in so far as it applies to the applicant; and

| — | order the Council to bear the costs of the present proceedings. |
| --- | --- |

—

order the Council to bear the costs of the present proceedings.

Pleas in law and main arguments

The applicant, who is a Chinese producer of lever arch mechanisms, seeks the annulment of Council Regulation (EC) No 1136/2006 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of lever arch mechanisms originating in the People's Republic of China (1), in so far as the regulation affects the applicant.

In support of its application, the applicant invokes an infringement of Article 2(10) of the Basic Regulation (2) in that the Community institutions determined the applicant's export price at a level ex factory in China which did not include sales, general and administrative expenses, whereas the normal value did include such expenses.

The applicant further invokes an infringement of the principles of good administration and diligent investigation in that the Community institutions failed to verify data relating to the sales, general and administrative expenses of the sales company through which the applicant sells its products in order to determine whether the applicant's export price should be determined at the price level of this sales company instead of at the price level of the applicant's factory in China.

Finally, the applicant invokes an infringement of Article 2(7) of the Basic Regulation and the principles of good administration and objectivity in that the Community institutions changed their methodology for determining the normal value without any apparent objective justification.

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(1)  OJ 2006 L 205, p. 1.

(2)  Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1).

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| 16.12.2006 | EN | Official Journal of the European Union | C 310/25 |
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Action brought on 17 October 2006 — Majątek Hutniczy v Commission

(Case T-297/06)

(2006/C 310/48)

Language of the case: French

Parties

Applicant: Majątek Hutniczy sp. z o.o. (Częstochowa, Poland) (represented by: C. Rapin and E. Van den Haute, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | declare this action admissible; |
| --- | --- |

—

declare this action admissible;

| — | annul Articles 3 and 4 of the Commission Decision of 5 July 2005 concerning the aid granted by Poland to Huta Częstochowa S.A. (notified under document number C (2005) 1962); |
| --- | --- |

—

annul Articles 3 and 4 of the Commission Decision of 5 July 2005 concerning the aid granted by Poland to Huta Częstochowa S.A. (notified under document number C (2005) 1962);

| — | in the alternative, declare that on the date on which this action is brought there is no obligation on Poland to recover the aid and interest referred to in Article 3 of the decision and that the amounts of that aid and interest are therefore not payable; |
| --- | --- |

—

in the alternative, declare that on the date on which this action is brought there is no obligation on Poland to recover the aid and interest referred to in Article 3 of the decision and that the amounts of that aid and interest are therefore not payable;

| — | in the further alternative, annul the second subparagraph of Article 3(2) of the decision and refer the question of interest back to the Commission for a fresh decision in accordance with Annex A to this application or with such other consideration as the Court may indicate in the grounds of its judgment; |
| --- | --- |

—

in the further alternative, annul the second subparagraph of Article 3(2) of the decision and refer the question of interest back to the Commission for a fresh decision in accordance with Annex A to this application or with such other consideration as the Court may indicate in the grounds of its judgment;

| — | in any event, order the Commission to pay all of the costs; |
| --- | --- |

—

in any event, order the Commission to pay all of the costs;

| — | if the Court should decide that there is no need to adjudicate, order the Commission to pay the costs pursuant to the combined provisions of Article 87(6) and Article 90(a) of the Rules of Procedure of the Court of First Instance. |
| --- | --- |

—

if the Court should decide that there is no need to adjudicate, order the Commission to pay the costs pursuant to the combined provisions of Article 87(6) and Article 90(a) of the Rules of Procedure of the Court of First Instance.

Pleas in law and main arguments

By its decision C (2005) 1962 final of 5 July 2005 (State Aid No C 20/04, ex NN 25/04) the Commission declared certain restructuring aid granted by Poland to the steel producer Huta Częstochowa S.A. to be incompatible with the common market and ordered its recovery. The applicant is one of the successors to the aid beneficiary which, in the context of the restructuring of Huta Częstochowa S.A., received certain assets and liabilities from that company to be bought up subsequently by the company Industrial Union of Donbass through its subsidiary ISD Polska. The applicant is included in the contested decision among the companies required jointly and severally to repay the aid declared incompatible with the common market.

In support of its action for the partial annulment of the decision, the applicant relies on four pleas in law.

By its first plea, it claims that the Commission made a manifest error of assessment of the facts decisive for the outcome of the investigation. It maintains that, once the assets of the original beneficiary of the incompatible aid are sold, those assets having been bought by ISD Polska (and Donbass), it is the vendor of the original aid beneficiary that retains the benefit of that aid and must ensure that it is repaid. The applicant claims that in this case, if the Commission had correctly established the relevant facts concerning the sale of the assets of Huta Częstochowa, through, among others, Majątek Hutniczy, to ISD Polska (and Donbass), it would have come to the view that, because the means of production of Huta Częstochowa were acquired at a price reflecting the market price, restitution of the aid would thereby already have been made to the vendor. According to the applicant, the Commission was therefore in breach of its obligation to examine, carefully and impartially, all the relevant facts of the case.

By its second plea, the applicant claims that the Commission infringed Protocol No 8 to the Treaty of Accession, on the restructuring of the Polish steel industry (1), by interpreting purely literally certain of its provisions which, in the view of the applicant, it should have interpreted in the light of the objectives pursued by that protocol and in consideration of the background to its adoption. That allegedly incorrect interpretation led the Commission to require, by its decision, repayment of State aid received before the adoption of Protocol No 8 by companies not included in Annex 1, which designates eight beneficiary companies which are eligible for aid from Poland in derogation from Articles 87 EC and 88 EC. It also claims that, as Protocol No 8 does not expressly state that it applies retroactively for a specific period, the Commission's interpretation of that protocol infringed several general principles such as those of non-retroactivity and of legal certainty. The applicant claims that Protocol No 8, on a correct interpretation, does not empower the Commission to call for the repayment of State aid received before its adoption by companies not referred to in Annex 1. It thus concludes that, having acted in that way without a legal basis, the Commission encroached upon the temporal competence of other Community institutions.

The third plea, invoked as an alternative plea if the Court should find that the Commission has properly established the facts and correctly interpreted Protocol No 8, alleges infringement of Article 14(1) of Regulation No 659/1999 (2). The applicant submits that, by adopting the decision to recover the aid, the Commission is acting at variance with the principles of equal treatment, legitimate expectations and legal certainty.

By its fourth plea, the applicant submits, in support of its alternative request for annulment of the second subparagraph of Article 3(2) of the contested decision, that the Commission infringed Regulation No 794/2004 (3) when calculating the interest rate applicable to the recovery of the aid in the present case.

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(1)  OJ 2003 L 236, p. 948.

(2)  Council Regulation (EC) No 659/1999 of 22 March 1999, laying down detailed rules for the application of Article 93 of the EC Treaty, (OJ 1999 L 83, p.1).

(3)  Commission Regulation (EC) No 794/2004 of 21 April 2004 implementing Council Regulation (EC) No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty, (OJ L 140 of 30.4.2004, p. 1).

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| 16.12.2006 | EN | Official Journal of the European Union | C 310/26 |
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Action brought on 18 October 2006 — Agencja Wydawnicza Technopol v OHIM (1000)

(Case T-298/06)

(2006/C 310/49)

Language of the case: English

Parties

Applicant: Agencja Wydawnicza Technopol sp. z o.o. (Częstochowa, Poland) (represented by: V. von Bomhard, A. Renck and T. Dolde, lawyers)

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

Form of order sought

| — | Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 7 August 2006 in case No R 447/2006-4; and |
| --- | --- |

—

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 7 August 2006 in case No R 447/2006-4; and

| — | order that the costs of the proceedings be borne by the defendant. |
| --- | --- |

—

order that the costs of the proceedings be borne by the defendant.

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘1 000’ for goods and services in classes 16, 28 and 41 — application No 4 372 264

Decision of the examiner: Refusal of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Violation of Article 7(1)(b) of Council Regulation No 40/94 as numerals in principle, according to the applicant, are not devoid of distinctive character and can function as an indication of origin in the same way as words.

Violation of Article 7(1)(c) of the regulation as the trade mark applied for is not descriptive since consumers confronted with the trade mark ‘1 000’ on printed articles will not be able to deduct any information about the characteristics of the goods concerned.

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| 16.12.2006 | EN | Official Journal of the European Union | C 310/27 |
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Action brought on 4 September 2006 — Promat v OHIM — Puertas Proma (Promat)

(Case T -300/06)

(2006/C 310/50)

Language in which the application was lodged: German

Parties

Applicant: Promat GmbH (Ratingen, Germany) (represented by: J.Krenzel)

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

Other party to the proceedings before the Board of Appeal of OHIM: Puertas Proma, S.A.L.

Form of order sought

| — | amend the defendant's decision of 4 May 2006 (Ref. R 1058/2005-1) so as to allow the appeal in full; |
| --- | --- |

—

amend the defendant's decision of 4 May 2006 (Ref. R 1058/2005-1) so as to allow the appeal in full;

| — | 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: the applicant.

Community trade mark concerned: the word mark ‘Promat’ for goods and services in Classes 1, 2, 6, 17, 19, 20 and 42 (Application No 803 825).

Proprietor of the mark or sign cited in the opposition proceedings: Puertas Proma, S.A.L.

Mark or sign cited in opposition: in particular, the figurative mark ‘PROMA’ for goods and services in Classes 6, 20 and 39 (Community trade mark No 239 384), the opposition being directed against the application in respect of Classes 6, 19 and 20.

Decision of the Opposition Division: Opposition upheld.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: breach of Article 8(1)(a) and (b) of Regulation (EC) No 40/94 (1), on the ground that neither the opposing signs nor the opposing goods are similar. Therefore there is no likelihood of confusion between the opposing marks.

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(1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).

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| 16.12.2006 | EN | Official Journal of the European Union | C 310/27 |
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Action brought on 6 November 2006 — Hartmann v OHIM (E)

(Case T-302/06)

(2006/C 310/51)

Language of the case: German

Parties

Applicant: Paul Hartmann Aktiengesellschaft (Heidenheim, Germany) (represented by K. Gründig-Schnelle, lawyer)

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

Form of order sought

| — | annul the contested decision |
| --- | --- |

—

annul the contested decision

| — | order the Office for Harmonisation in the Internal Market to pay the costs of the proceedings |
| --- | --- |

—

order the Office for Harmonisation in the Internal Market to pay the costs of the proceedings

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘E’ for goods in Classes 5, 10 and 25 — Application No 4 316 949

Decision of the Examiner: Refusal of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) of Regulation No 40/94.

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| 16.12.2006 | EN | Official Journal of the European Union | C 310/28 |
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Order of the Court of First Instance of 16 October 2006 — Self Service Station Borne v Commission

(Case T-274/99) (1)

(2006/C 310/52)

Language of the case: Dutch

The President of the Second Chamber Extended Composition has ordered that the case be removed from the register.

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(1)  OJ C 47, 19.2.2000.

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| 16.12.2006 | EN | Official Journal of the European Union | C 310/28 |
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Order of the Court of First Instance of 16 October 2006 — Self Service de Bleek v Commission

(Case T-275/99) (1)

(2006/C 310/53)

Language of the case: Dutch

The President of the Second Chamber Extended Composition has ordered that the case be removed from the register.

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(1)  OJ C 47, 19.2.2000.

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| 16.12.2006 | EN | Official Journal of the European Union | C 310/28 |
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Order of the Court of First Instance of 16 October 2006 — Self Service Station Hasselerbaan v Commission

(Case T-276/99) (1)

(2006/C 310/54)

Language of the case: Dutch

The President of the Second Chamber Extended Composition has ordered that the case be removed from the register.

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(1)  OJ C 47, 19.2.2000.

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| 16.12.2006 | EN | Official Journal of the European Union | C 310/28 |
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Order of the Court of First Instance of 16 October 2006 — Self Service Station Weghorst v Commission

(Case T-277/99) (1)

(2006/C 310/55)

Language of the case: Dutch

The President of the Second Chamber Extended Composition has ordered that the case be removed from the register.

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(1)  OJ C 47, 19.2.2000.

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Order of the Court of First Instance of 16 October 2006 — Shell Hengelo Zuid v Commission

(Case T-278/99) (1)

(2006/C 310/56)

Language of the case: Dutch

The President of the Second Chamber Extended Composition has ordered that the case be removed from the register.

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(1)  OJ C 47, 19.2.2000.

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Order of the Court of First Instance of 16 October 2006 — Visser's Oliehandel Horst v Commission

(Case T-281/99) (1)

(2006/C 310/57)

Language of the case: Dutch

The President of the Second Chamber Extended Composition has ordered that the case be removed from the register.

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(1)  OJ C 47, 19.2.2000.

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| 16.12.2006 | EN | Official Journal of the European Union | C 310/29 |
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Order of the Court of First Instance of 16 October 2006 — Visser's Tankstations v Commission

(Case T-282/99) (1)

(2006/C 310/58)

Language of the case: Dutch

The President of the Second Chamber Extended Composition has ordered that the case be removed from the register.

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(1)  OJ C 47, 19.2.2000.

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Order of the Court of First Instance of 16 October 2006 — Tankstation en Automobielbedrijf Tromp v Commission

(Case T-286/99) (1)

(2006/C 310/59)

Language of the case: Dutch

The President of the Second Chamber Extended Composition has ordered that the case be removed from the register.

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(1)  OJ C 47, 19.2.2000.

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Order of the Court of First Instance of 16 October 2006 — Autobedrijf Nelissen St. Geertruid v Commission

(Case T-287/99) (1)

(2006/C 310/60)

Language of the case: Dutch

The President of the Second Chamber Extended Composition has ordered that the case be removed from the register.

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(1)  OJ C 63, 4.3.2000.

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Order of the Court of First Instance of 16 October 2006 — Snijders Olie v Commission

(Case T-309/99) (1)

(2006/C 310/61)

Language of the case: Dutch

The President of the Second Chamber Extended Composition has ordered that the case be removed from the register.

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(1)  OJ C 63, 4.3.2000.

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Order of the Court of First Instance of 16 October 2006 — Weghorst-Oliko v Commission

(Case T-314/99) (1)

(2006/C 310/62)

Language of the case: Dutch

The President of the Second Chamber Extended Composition has ordered that the case be removed from the register.

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(1)  OJ C 63, 4.3.2000.

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Order of the Court of First Instance of 16 October 2006 — Autobedrijf Geve v Commission

(Case T-315/99) (1)

(2006/C 310/63)

Language of the case: Dutch

The President of the Second Chamber Extended Composition has ordered that the case be removed from the register.

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(1)  OJ C 63, 4.3.2000.

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| 16.12.2006 | EN | Official Journal of the European Union | C 310/30 |
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Order of the Court of First Instance of 16 October 2006 — Pierik-Bomers v Commission

(Case T-316/99) (1)

(2006/C 310/64)

Language of the case: Dutch

The President of the Second Chamber Extended Composition has ordered that the case be removed from the register.

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(1)  OJ C 63, 4.3.2000.

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Order of the Court of First Instance of 16 October 2006 — Achten v Commission

(Case T-339/99) (1)

(2006/C 310/65)

Language of the case: Dutch

The President of the Second Chamber Extended Composition has ordered that the case be removed from the register.

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(1)  OJ C 63, 4.3.2000.

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EUROPEAN UNION CIVIL SERVICE TRIBUNAL

| 16.12.2006 | EN | Official Journal of the European Union | C 310/31 |
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Action brought on 26 October 2006 — Dálnoky v Commission

(Case F-120/06)

(2006/C 310/66)

Language of the case: English

Parties

Applicant: Noémi Dálnoky (Brussels, Belgium) (represented by: P. Horváth, lawyer)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Tribunal should:

| — | annul Notice of Open Competition EPSO/AD/47/06 (1) published by the European Personnel Selection Office (EPSO) for the recruitment of administrators with — inter alia — Romanian citizenship; |
| --- | --- |

—

annul Notice of Open Competition EPSO/AD/47/06 (1) published by the European Personnel Selection Office (EPSO) for the recruitment of administrators with — inter alia — Romanian citizenship;

| — | order the defendant not to publish in future any competition, and not to conduct any published competition with the requirement to have a thorough knowledge of just one specified Community language, but with the requirement to have a thorough knowledge on any of the Community languages, unless a particular language is required in view of the specific nature of the posts to be filled; |
| --- | --- |

—

order the defendant not to publish in future any competition, and not to conduct any published competition with the requirement to have a thorough knowledge of just one specified Community language, but with the requirement to have a thorough knowledge on any of the Community languages, unless a particular language is required in view of the specific nature of the posts to be filled;

| — | if the abovementioned open competition was partially or fully conducted prior to its annulment by the Tribunal, order the defendant to eliminate any disadvantage suffered by the applicant or other persons due to the discriminatory provision applied in the competition, including the provision of another possibility to apply for the posts that were to be filled by Competition EPSO/AD/47/06 for those citizens who might have been discouraged from applying due to the abovementioned discriminatory provision; |
| --- | --- |

—

if the abovementioned open competition was partially or fully conducted prior to its annulment by the Tribunal, order the defendant to eliminate any disadvantage suffered by the applicant or other persons due to the discriminatory provision applied in the competition, including the provision of another possibility to apply for the posts that were to be filled by Competition EPSO/AD/47/06 for those citizens who might have been discouraged from applying due to the abovementioned discriminatory provision;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

The applicant, a Romanian citizen of Hungarian ethnicity and mother tongue, claims that the Notice of Open Competition EPSO/AD/47/06 is, by requiring that applicants must have a thorough knowledge of Romanian language, in breach of EC law on several points:

| — | it violates the applicant's rights to equal treatment and non-discrimination on the basis of ethnic origin, since Romanian citizens on Romanian mother tongue are in an unfair advantage; |
| --- | --- |

—

it violates the applicant's rights to equal treatment and non-discrimination on the basis of ethnic origin, since Romanian citizens on Romanian mother tongue are in an unfair advantage;

| — | it constitutes a discrimination on the grounds of nationality which is forbidden by the Staff Regulations and Article 12 EC, insofar as, in earlier competitions, candidates were allowed to prove a thorough knowledge of a Community language which was not the most widely spoken language in their Member State; |
| --- | --- |

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it constitutes a discrimination on the grounds of nationality which is forbidden by the Staff Regulations and Article 12 EC, insofar as, in earlier competitions, candidates were allowed to prove a thorough knowledge of a Community language which was not the most widely spoken language in their Member State;

| — | it poses a requirement that is not permitted by the Staff Regulations, which only allows requiring the thorough knowledge of a particular Community language, as opposed to any one of them, if there is a specific job-related need or this is justified by some other objective and legitimate policy. |
| --- | --- |

—

it poses a requirement that is not permitted by the Staff Regulations, which only allows requiring the thorough knowledge of a particular Community language, as opposed to any one of them, if there is a specific job-related need or this is justified by some other objective and legitimate policy.

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(1)  OJ C 145 A, 21.6.2006

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| 16.12.2006 | EN | Official Journal of the European Union | C 310/31 |
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16.12.2006

EN

Official Journal of the European Union

C 310/31

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Action brought on 23 October 2006 — Roodhuijzen v Commission

(Case F-122/06)

(2006/C 310/67)

Language of the case: French

Parties

Applicant: Anton Pieter Roodhuijzen (Luxembourg, Luxembourg) (represented by: E. Boigelot, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | annul the decision of the Appointing Authority of 28 February 2006, confirmed on 20 March 2006, not to recognise the applicant's partnership with Ms H as a non-marital partnership for the purposes of the sickness insurance scheme; |
| --- | --- |

—

annul the decision of the Appointing Authority of 28 February 2006, confirmed on 20 March 2006, not to recognise the applicant's partnership with Ms H as a non-marital partnership for the purposes of the sickness insurance scheme;

| — | annul the decision of the Appointing Authority of 12 July 2006 rejecting the complaint brought by the applicant on 27 March 2006 under Number R/230/06; |
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—

annul the decision of the Appointing Authority of 12 July 2006 rejecting the complaint brought by the applicant on 27 March 2006 under Number R/230/06;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

The applicant, a Commission official of Dutch nationality, requested that his partnership with Ms H, a cohabitation agreement drawn up before a notary and recognised under Dutch law, be taken into consideration in order that his partner could benefit from the Community sickness insurance scheme. The administration rejected the request, even after the applicant produced a certificate from his country's Embassy in Luxembourg, which stated that the contract in question does indeed confer the status of stable non-marital partners on the applicant and his companion.

In support of his action, the applicant relies on a plea of infringement of Article 72 of the Staff Regulations, of Article 1(2)(c)(i) of Annex VII thereof, and of Article 12 of the Rules on the insurance of officials of the European Communities against the risk of accident and of occupational disease. He also pleads a manifest error of assessment, breach of the obligation to give reasons and failure to observe general principles of law, in particular the principle of non-discrimination and equal treatment between officials.

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| 16.12.2006 | EN | Official Journal of the European Union | C 310/32 |
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16.12.2006

EN

Official Journal of the European Union

C 310/32

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Action brought on 30 October 2006 — Deffaa v Commission

(Case F-125/06)

(2006/C 310/68)

Language of the case: French

Parties

Applicant: Walter Deffaa (Brussels, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | annul the decision of the President of the Commission of 12 January 2006 in so far as it classifies the applicant, who was promoted to Director-General of DG Internal Audit Service, at Grade A*15, step 4, with effect from 1 August 2004; |
| --- | --- |

—

annul the decision of the President of the Commission of 12 January 2006 in so far as it classifies the applicant, who was promoted to Director-General of DG Internal Audit Service, at Grade A*15, step 4, with effect from 1 August 2004;

| — | in the alternative, annul that decision in that it refuses the applicant the advance in step provided for in Article 44(2) of the Staff Regulations; |
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—

in the alternative, annul that decision in that it refuses the applicant the advance in step provided for in Article 44(2) of the Staff Regulations;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

When he was Director of the DG for Budget and classed at Grade A2 (now A*15), the applicant applied for the position of Director-General (Grade A1) of DG Internal Audit Service, advertised in vacancy notice COM/228/03 (1). His application being successful, he was promoted to the abovementioned position and classed in Grade A*15, step 4.

In support of his action, the applicant first submits that the contested decision infringes both Article 45 of the Staff Regulations, according to which promotion entails the appointment of the official to the next higher grade in the function group to which he belongs, and the vacancy notice which forms, according to Community case-law, the legal framework within which the procedure must be carried out.

The applicant also pleads that the case-law according to which it is the vacancy notice which sets the precise level at which the post will be filled, and Article 31 of the Staff Regulations were disregarded.

Finally, in the alternative, the applicant submits that the Commission, by refusing the advancement in step provided for in Article 44(2) of the Staff Regulations, wrongly restricted the scope of that provision, on the basis in particular of a mistaken interpretation of Article 7(4) of Annex XIII to the Staff Regulations, which provides for an increase in the monthly salary which, according to the applicant, is not connected to the advancement in step.

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(1)  OJ C 301 A, 12.12.2003, p. 1.

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| 16.12.2006 | EN | Official Journal of the European Union | C 310/32 |
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16.12.2006

EN

Official Journal of the European Union

C 310/32

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Action brought on 30 October 2006 — Mangazzù v Commission

(Case F-126/06)

(2006/C 310/69)

Language of the case: French

Parties

Applicant: Salvatore Mangazzù (Brussels, Belgium) (represented by: T. Bontinck and J. Feld, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | annul the individual decision concerning a transfer from temporary staff status to official status contained in an instrument of appointment taking effect on 1 January 2005, notified on 13 January 2006; |
| --- | --- |

—

annul the individual decision concerning a transfer from temporary staff status to official status contained in an instrument of appointment taking effect on 1 January 2005, notified on 13 January 2006;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

The applicant, after having worked at the Commission for several years as a temporary agent in Grade A5, then A*11, was successful in open competition COM/A/18/04, published on 21 April 2004, to draw up a reserve list for administrators in career bracket A7/A6. As a result, he was appointed as an official in the same post he had occupied as a member of the temporary staff and classified in Grade A*6, step 2, in accordance with Annex XIII of the Staff Regulations.

In support of his action, the applicant invokes infringement of Articles 31 and 62 of the Staff Regulations and Articles 5 and 2 of Annex XIII to the Staff Regulations.

The applicant moreover submits infringement of the principle of the protection of legitimate expectations, the principle of the protection of acquired rights and the principle of equal treatment.

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III Notices

| 16.12.2006 | EN | Official Journal of the European Union | C 310/34 |
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16.12.2006

EN

Official Journal of the European Union

C 310/34

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(2006/C 310/70)

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

OJ C 294, 2.12.2006

Past publications

OJ C 281, 18.11.2006

OJ C 261, 28.10.2006

OJ C 249, 14.10.2006

OJ C 237, 30.9.2006

OJ C 224, 16.9.2006

OJ C 212, 2.9.2006

These texts are available on:

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

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