# Official Journal C 157/2012

| | ISSN 1977-091X
  doi:10.3000/1977091X.C_2012.157.eng |
| --- | --- |
| Official Journal
  of the European Union | C 157 |
| | |
| English edition | Information and Notices | Volume 552 June 2012 |

ISSN 1977-091X

doi:10.3000/1977091X.C_2012.157.eng

Official Journal

of the European Union

C 157

English edition

Information and Notices

Volume 552 June 2012

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| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | Court of Justice of the European Union |
| 2012/C 157/01 | Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 151, 26.5.2012 | 1 |

Notice No

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

2012/C 157/01

Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 151, 26.5.2012

Official Journal of the European Union

1

| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2012/C 157/02 | Case C-103/12: Action brought on 28 February 2012 — European Parliament v Council of the European Union | 2 |
| 2012/C 157/03 | Case C-112/12: Reference for a preliminary ruling from the Kúria (Hungary) lodged on 1 March 2012 — Franklin Templeton Investment Funds Sociéte d’Investissement à Capital Variable v Nemzeti Adó- és Vámhivatal Kiemelt Ügyek és Adózók Adó Főigazgatósága | 2 |
| 2012/C 157/04 | Case C-141/12: Reference for a preliminary ruling from the Rechtbank Middelburg (Netherlands) lodged on 20 March 2012 — Y.S. v Minister voor Immmmigratie, Integratie en Asiel | 3 |
| 2012/C 157/05 | Case C-146/12: Action brought on 26 March 2012 — European Commission v Federal Republic of Germany | 4 |
| 2012/C 157/06 | Case C-150/12: Reference for a preliminary ruling from the Högsta domstolen (Sweden) lodged on 29 March 2012 — Eva-Marie Brännström and Rune Brännström v Ryanair Holdings plc | 4 |
| 2012/C 157/07 | Case C-159/12: Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia (Italy) lodged on 2 April 2012 — Alessandra Venturini v A.S.L. Varese and Others | 5 |
| 2012/C 157/08 | Case C-160/12: Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia (Italy) lodged on 2 April 2012 — Maria Rosa Gramegna v A.S.L. Lodi and Others | 5 |
| 2012/C 157/09 | Case C-161/12: Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia (Italy) lodged on 2 April 2012 — Anna Muzzio v A.S.L. Pavia and Others | 5 |
| 2012/C 157/10 | Case C-165/12: Action brought on 3 April 2012 — European Commission v Council of the European Union | 6 |
| | General Court |
| 2012/C 157/11 | Case T-104/12: Action brought on 1 March 2012 — Verus v OHIM — Performance Industries Manufacturing (VORTEX) | 7 |
| 2012/C 157/12 | Case T-115/12: Action brought on 7 March 2012 — Buzil-Werk Wagner v OHIM — Roca Sanitario (Roca) | 7 |
| 2012/C 157/13 | Case T-123/12: Action brought on 15 March 2012 — Smartbook v OHIM (SMARTBOOK) | 8 |
| 2012/C 157/14 | Case T-126/12: Action brought on 20 March 2012 — Interroll v OHIM (Inspired by efficiency) | 8 |
| 2012/C 157/15 | Case T-128/12: Action brought on 21 March 2012 — HTTS v Council | 8 |
| 2012/C 157/16 | Case T-134/12: Action brought on 27 March 2012 — Investigación y Desarrollo en Soluciones y Servicios IT v Commission | 9 |
| 2012/C 157/17 | Case T-137/12: Action brought on 19 March 2012 — FunFactory v OHIM (three-dimensional mark in the shape of a vibrator) | 10 |
| 2012/C 157/18 | Case T-138/12: Action brought on 26 March 2012 — Geipel v OHIM — Reeh (BEST BODY NUTRITION) | 10 |
| 2012/C 157/19 | Case T-163/12: Action brought on 11 April 2012 — Ternavsky v Council | 11 |
| | European Union Civil Service Tribunal |
| 2012/C 157/20 | Case F-36/10: Judgment of the Civil Service Tribunal (First Chamber) of 28 March 2012 — Rapone v Commission (Civil service — Open competition — Successive applications for an open competition — Refusal to register) | 12 |
| 2012/C 157/21 | Case F-76/10: Order of the Civil Service Tribunal (Third Chamber) of 28 June 2011 — Colart and Others v Parliament (Civil Service — Annual adjustment of the remuneration and pensions of officials and other servants — No need to adjudicate) | 12 |
| 2012/C 157/22 | Case F-65/11: Order of the Civil Service Tribunal of 20 March 2012 — Schönberger v Parliament | 12 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2012/C 157/02

Case C-103/12: Action brought on 28 February 2012 — European Parliament v Council of the European Union

2

2012/C 157/03

Case C-112/12: Reference for a preliminary ruling from the Kúria (Hungary) lodged on 1 March 2012 — Franklin Templeton Investment Funds Sociéte d’Investissement à Capital Variable v Nemzeti Adó- és Vámhivatal Kiemelt Ügyek és Adózók Adó Főigazgatósága

2

2012/C 157/04

Case C-141/12: Reference for a preliminary ruling from the Rechtbank Middelburg (Netherlands) lodged on 20 March 2012 — Y.S. v Minister voor Immmmigratie, Integratie en Asiel

3

2012/C 157/05

Case C-146/12: Action brought on 26 March 2012 — European Commission v Federal Republic of Germany

4

2012/C 157/06

Case C-150/12: Reference for a preliminary ruling from the Högsta domstolen (Sweden) lodged on 29 March 2012 — Eva-Marie Brännström and Rune Brännström v Ryanair Holdings plc

4

2012/C 157/07

Case C-159/12: Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia (Italy) lodged on 2 April 2012 — Alessandra Venturini v A.S.L. Varese and Others

5

2012/C 157/08

Case C-160/12: Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia (Italy) lodged on 2 April 2012 — Maria Rosa Gramegna v A.S.L. Lodi and Others

5

2012/C 157/09

Case C-161/12: Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia (Italy) lodged on 2 April 2012 — Anna Muzzio v A.S.L. Pavia and Others

5

2012/C 157/10

Case C-165/12: Action brought on 3 April 2012 — European Commission v Council of the European Union

6

General Court

2012/C 157/11

Case T-104/12: Action brought on 1 March 2012 — Verus v OHIM — Performance Industries Manufacturing (VORTEX)

7

2012/C 157/12

Case T-115/12: Action brought on 7 March 2012 — Buzil-Werk Wagner v OHIM — Roca Sanitario (Roca)

7

2012/C 157/13

Case T-123/12: Action brought on 15 March 2012 — Smartbook v OHIM (SMARTBOOK)

8

2012/C 157/14

Case T-126/12: Action brought on 20 March 2012 — Interroll v OHIM (Inspired by efficiency)

8

2012/C 157/15

Case T-128/12: Action brought on 21 March 2012 — HTTS v Council

8

2012/C 157/16

Case T-134/12: Action brought on 27 March 2012 — Investigación y Desarrollo en Soluciones y Servicios IT v Commission

9

2012/C 157/17

Case T-137/12: Action brought on 19 March 2012 — FunFactory v OHIM (three-dimensional mark in the shape of a vibrator)

10

2012/C 157/18

Case T-138/12: Action brought on 26 March 2012 — Geipel v OHIM — Reeh (BEST BODY NUTRITION)

10

2012/C 157/19

Case T-163/12: Action brought on 11 April 2012 — Ternavsky v Council

11

European Union Civil Service Tribunal

2012/C 157/20

Case F-36/10: Judgment of the Civil Service Tribunal (First Chamber) of 28 March 2012 — Rapone v Commission (Civil service — Open competition — Successive applications for an open competition — Refusal to register)

12

2012/C 157/21

Case F-76/10: Order of the Civil Service Tribunal (Third Chamber) of 28 June 2011 — Colart and Others v Parliament (Civil Service — Annual adjustment of the remuneration and pensions of officials and other servants — No need to adjudicate)

12

2012/C 157/22

Case F-65/11: Order of the Civil Service Tribunal of 20 March 2012 — Schönberger v Parliament

12

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EN

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

| 2.6.2012 | EN | Official Journal of the European Union | C 157/1 |
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2.6.2012

EN

Official Journal of the European Union

C 157/1

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2012/C 157/01

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

OJ C 151, 26.5.2012

Past publications

OJ C 138, 12.5.2012

OJ C 133, 5.5.2012

OJ C 126, 28.4.2012

OJ C 118, 21.4.2012

OJ C 109, 14.4.2012

OJ C 89, 24.3.2012

These texts are available on:

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

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V Announcements

COURT PROCEEDINGS

Court of Justice

| 2.6.2012 | EN | Official Journal of the European Union | C 157/2 |
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2.6.2012

EN

Official Journal of the European Union

C 157/2

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Action brought on 28 February 2012 — European Parliament v Council of the European Union

(Case C-103/12)

2012/C 157/02

Language of the case: French

Parties

Applicant: European Parliament (represented by: L.G. Knudsen, I. Díez Parra and I. Liukkonen, acting as Agents)

Defendant: Council of the European Union

Form of order sought

| — | Annul Council Decision 2012/19/EU (1) of 16 December 2011 on the approval, on behalf of the European Union, of the Declaration on the granting of fishing opportunities in EU waters to fishing vessels flying the flag of the Bolivarian Republic of Venezuela in the exclusive economic zone off the coast of French Guiana; |
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Annul Council Decision 2012/19/EU (1) of 16 December 2011 on the approval, on behalf of the European Union, of the Declaration on the granting of fishing opportunities in EU waters to fishing vessels flying the flag of the Bolivarian Republic of Venezuela in the exclusive economic zone off the coast of French Guiana;

| — | Order the Council of the European Union to pay the costs. |
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—

Order the Council of the European Union to pay the costs.

Pleas in law and main arguments

By its action, the European Parliament seeks annulment of Council Decision 2012/19/EU of 16 December 2011 on the approval, on behalf of the European Union, of the Declaration on the granting of fishing opportunities in EU waters to fishing vessels flying the flag of the Bolivarian Republic of Venezuela in the exclusive economic zone off the coast of French Guiana. The Parliament challenges the legal basis chosen. It submits, principally, that Article 43(3) TFEU, together with Article 218(6)(b) TFEU, cannot be the correct legal basis, since the measure in question equates to an international agreement concerning access to European Union waters for the purposes of fishing activities by a non-member country. Accordingly, the measure ought to have been adopted on the basis of Articles 43(2) and 218(6)(a) TFEU and thus after approval by the Parliament.

In the alternative, the Parliament takes the view that the Council, having used the procedure laid down in Article 218(6)(b) TFEU, has given an incorrect interpretation to Article 218(6)(a) TFEU. Even if Article 43(3) TFEU could constitute the appropriate legal basis for an internal measure of the European Union with the same content as the measure challenged, which the Parliament disputes, the fact remains that the Common Fisheries Policy forms, for the purposes of the EU entering into international commitments, an indissociable whole from a procedural point of view. Accordingly, any agreement in that field is an ‘agreement covering fields to which either the ordinary legislative procedure applies’ within the meaning of Article 218(6)(a) TFEU. Thus, in any event the measure ought to have been adopted in observance of the consent procedure laid down in Article 218(6)(a) TFEU.

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(1)  OJ 2012 L 6, p. 8.

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| 2.6.2012 | EN | Official Journal of the European Union | C 157/2 |
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2.6.2012

EN

Official Journal of the European Union

C 157/2

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Reference for a preliminary ruling from the Kúria (Hungary) lodged on 1 March 2012 — Franklin Templeton Investment Funds Sociéte d’Investissement à Capital Variable v Nemzeti Adó- és Vámhivatal Kiemelt Ügyek és Adózók Adó Főigazgatósága

(Case C-112/12)

2012/C 157/03

Language of the case: Hungarian

Referring court

Kúria

Parties to the main proceedings

Applicant: Franklin Templeton Investment Funds Sociéte d’Investissement à Capital Variable

Defendant: Nemzeti Adó- és Vámhivatal Kiemelt Ügyek és Adózók Adó Főigazgatósága (Hungary)

Questions referred

| 1. | Is the exemption from tax on dividends granted by the Hungarian legislation to a recipient of dividends resident in Hungary compatible with the provisions of the EU Treaties on the principle of freedom of establishment (Article 49 TFEU), the principle of equal treatment (Article 54 TFEU) and the principle of free movement of capital (Article 56 TFEU (sic)), given that






  (a) | a non-resident recipient of dividends is exempt from tax on dividends only if it meets certain legal requirements, namely that its holding (in the case of shares, the proportion of its registered shares) in the company capital of the resident company at the time of distribution (allocation) of dividends amounted permanently to at least 20 % for at least two consecutive years, taking account of the fact that, in the event that the permanent holding of 20 % is maintained for less than two consecutive years, the company distributing the dividends is not obliged to withhold the tax on the dividends and the company which receives the dividends or, in the event of non-monetary allocations, the company which distributes them are not obliged to pay that tax on submission of their tax return if another person or the party distributing the dividends has guaranteed the payment of the tax; |
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1.

Is the exemption from tax on dividends granted by the Hungarian legislation to a recipient of dividends resident in Hungary compatible with the provisions of the EU Treaties on the principle of freedom of establishment (Article 49 TFEU), the principle of equal treatment (Article 54 TFEU) and the principle of free movement of capital (Article 56 TFEU (sic)), given that

(a)

a non-resident recipient of dividends is exempt from tax on dividends only if it meets certain legal requirements, namely that its holding (in the case of shares, the proportion of its registered shares) in the company capital of the resident company at the time of distribution (allocation) of dividends amounted permanently to at least 20 % for at least two consecutive years, taking account of the fact that, in the event that the permanent holding of 20 % is maintained for less than two consecutive years, the company distributing the dividends is not obliged to withhold the tax on the dividends and the company which receives the dividends or, in the event of non-monetary allocations, the company which distributes them are not obliged to pay that tax on submission of their tax return if another person or the party distributing the dividends has guaranteed the payment of the tax;

| (b) | further, a non-resident recipient of dividends does not meet the requirements of the national legislation for exemption from tax when its holding (in the case of shares the proportion of its registered shares) in the company capital of a resident company at the time of distribution (allocation) of dividends is below the minimum level of 20 % required by law, or when it has not maintained that percentage permanently for at least two consecutive years, or, in the event that the permanent holding of 20 % has been maintained for less than two consecutive years, if payment of the tax was not guaranteed by any third party or by the party distributing the dividends; |
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(b)

further, a non-resident recipient of dividends does not meet the requirements of the national legislation for exemption from tax when its holding (in the case of shares the proportion of its registered shares) in the company capital of a resident company at the time of distribution (allocation) of dividends is below the minimum level of 20 % required by law, or when it has not maintained that percentage permanently for at least two consecutive years, or, in the event that the permanent holding of 20 % has been maintained for less than two consecutive years, if payment of the tax was not guaranteed by any third party or by the party distributing the dividends;

| 2. | Would the answer to question 1(b) be different, that is to say, would there be any effect on the answer, if:






  (a) | while a resident recipient of dividends is exempt from tax on dividends under the Hungarian legislation, the tax burden of a non-resident recipient of dividends depends on the applicability to it of [Council Directive 90/435/EEC of 23 July 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States] or the [Convention between the Republic of Hungary and the Grand Duchy of Luxembourg for the avoidance of double taxation with respect to taxes on income and on capital, done at Budapest on 15 January 1990], |
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2.

Would the answer to question 1(b) be different, that is to say, would there be any effect on the answer, if:

(a)

while a resident recipient of dividends is exempt from tax on dividends under the Hungarian legislation, the tax burden of a non-resident recipient of dividends depends on the applicability to it of [Council Directive 90/435/EEC of 23 July 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States] or the [Convention between the Republic of Hungary and the Grand Duchy of Luxembourg for the avoidance of double taxation with respect to taxes on income and on capital, done at Budapest on 15 January 1990],

| (b) | while a resident recipient of dividends is exempt from tax on dividends under the Hungarian legislation, a non-resident recipient of dividends may either offset such tax against its national tax or bear the final burden, depending on the provisions of its national law. |
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(b)

while a resident recipient of dividends is exempt from tax on dividends under the Hungarian legislation, a non-resident recipient of dividends may either offset such tax against its national tax or bear the final burden, depending on the provisions of its national law.

| 3. | May the national tax authority invoke Article 65(1) TFEU (formerly Article 58(1) EC) and the former Article 220 EC in order to disapply Community law of its own motion? |
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3.

May the national tax authority invoke Article 65(1) TFEU (formerly Article 58(1) EC) and the former Article 220 EC in order to disapply Community law of its own motion?

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| 2.6.2012 | EN | Official Journal of the European Union | C 157/3 |
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2.6.2012

EN

Official Journal of the European Union

C 157/3

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Reference for a preliminary ruling from the Rechtbank Middelburg (Netherlands) lodged on 20 March 2012 — Y.S. v Minister voor Immmmigratie, Integratie en Asiel

(Case C-141/12)

2012/C 157/04

Language of the case: Dutch

Referring court

Rechtbank Middelburg

Parties to the main proceedings

Applicant: Y.S.

Defendant: Minister voor Immmmigratie, Integratie en Asiel

Questions referred

| 1. | Are the data reproduced in the minute concerning the data subject and which relate to the data subject, personal data within the meaning of Article 2(a) of the Privacy Directive? (1) |
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1.

Are the data reproduced in the minute concerning the data subject and which relate to the data subject, personal data within the meaning of Article 2(a) of the Privacy Directive? (1)

| 2. | Does the legal analysis included in the minute constitute personal data within the meaning of the aforementioned provision? |
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2.

Does the legal analysis included in the minute constitute personal data within the meaning of the aforementioned provision?

| 3. | If the Court of Justice confirms that the data described above are personal data, should the processor/government body grant access to those personal data pursuant to Article 12 of the Privacy Directive and Article 8(2) of the EU Charter? (2) |
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3.

If the Court of Justice confirms that the data described above are personal data, should the processor/government body grant access to those personal data pursuant to Article 12 of the Privacy Directive and Article 8(2) of the EU Charter? (2)

| 4. | In that context, may the data subject rely directly on Article 41(2)(b) of the EU Charter, and if so, must the phrase ‘while respecting the legitimate interests of confidentiality [in decision-making]’ included therein be interpreted in such a way that the right of access to the minute may be refused on that ground? |
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4.

In that context, may the data subject rely directly on Article 41(2)(b) of the EU Charter, and if so, must the phrase ‘while respecting the legitimate interests of confidentiality [in decision-making]’ included therein be interpreted in such a way that the right of access to the minute may be refused on that ground?

| 5. | When the data subject requests access to the minute, should the processor/government body provide a copy of that document in order to do justice to the right of access? |
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5.

When the data subject requests access to the minute, should the processor/government body provide a copy of that document in order to do justice to the right of access?

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(1)  Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ L 281, 23.11.1995, p. 31).

(2)  Charter of fundamental rights of the European Union (OJ 2000 C 364, p. 1).

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| 2.6.2012 | EN | Official Journal of the European Union | C 157/4 |
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2.6.2012

EN

Official Journal of the European Union

C 157/4

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Action brought on 26 March 2012 — European Commission v Federal Republic of Germany

(Case C-146/12)

2012/C 157/05

Language of the case: German

Parties

Applicant: European Commission (represented by: P. Hetsch and G. Braun, Agents)

Defendant: Federal Republic of Germany

Form of order sought

The applicant claims that the Court should:

| — | declare that the Federal Republic of Germany has failed to bring into force or to communicate to the Commission the laws, regulations and administrative provisions necessary to comply with Article 1, Article 2, Article 4(2), Article 5(2), (5), (6) and (8), Article 6(1), (2), (3), (9) and (10), Articles 7, 8 and 9, Article 11(4) and (5), Article 12, Article 13(5), Articles 15, 16 and 17, Article 18(1), (2), (4) and (5), Article 19(3), Articles 20 to 27, Article 28(4) and (6), Articles 32 to 35 and Annexes I to IX of Directive 2008/57/EC of the European Parliament and of the Council of 17 June 2008 on the interoperability of the rail system within the Community; (1) |
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declare that the Federal Republic of Germany has failed to bring into force or to communicate to the Commission the laws, regulations and administrative provisions necessary to comply with Article 1, Article 2, Article 4(2), Article 5(2), (5), (6) and (8), Article 6(1), (2), (3), (9) and (10), Articles 7, 8 and 9, Article 11(4) and (5), Article 12, Article 13(5), Articles 15, 16 and 17, Article 18(1), (2), (4) and (5), Article 19(3), Articles 20 to 27, Article 28(4) and (6), Articles 32 to 35 and Annexes I to IX of Directive 2008/57/EC of the European Parliament and of the Council of 17 June 2008 on the interoperability of the rail system within the Community; (1)

| — | order the Federal Republic of Germany, pursuant to Article 260(3) TFEU, to pay a daily penalty payment in the sum of EUR 215 409,60, payable to the own resources account of the European Union, on account of its failure to fulfil its obligation to notify transposing measures; |
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order the Federal Republic of Germany, pursuant to Article 260(3) TFEU, to pay a daily penalty payment in the sum of EUR 215 409,60, payable to the own resources account of the European Union, on account of its failure to fulfil its obligation to notify transposing measures;

| — | order the Federal Republic of Germany to pay the costs of the proceedings. |
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—

order the Federal Republic of Germany to pay the costs of the proceedings.

Pleas in law and main arguments

The period prescribed for transposing the directive expired on 19 July 2010.

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(1)  OJ 2008 L 191, p. 1.

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| 2.6.2012 | EN | Official Journal of the European Union | C 157/4 |
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2.6.2012

EN

Official Journal of the European Union

C 157/4

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Reference for a preliminary ruling from the Högsta domstolen (Sweden) lodged on 29 March 2012 — Eva-Marie Brännström and Rune Brännström v Ryanair Holdings plc

(Case C-150/12)

2012/C 157/06

Language of the case: Swedish

Referring court

Högsta domstolen

Parties to the main proceedings

Applicants: Eva-Marie Brännström and Rune Brännström

Defendant: Ryanair Holdings plc

Questions referred

| 1. | Does the carrier’s liability for damage caused by delay under Article 19 of the Montreal Convention also include cases where the passengers’ arrival at the destination is delayed as a result of non-operation of a flight? Does any importance attach to the stage at which the flight was cancelled, for example, after check-in? |
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1.

Does the carrier’s liability for damage caused by delay under Article 19 of the Montreal Convention also include cases where the passengers’ arrival at the destination is delayed as a result of non-operation of a flight? Does any importance attach to the stage at which the flight was cancelled, for example, after check-in?

| 2. | Can a technical problem with the airport, which alone or together with weather conditions makes landing impossible, constitute an ‘extraordinary circumstance’ under Article 5(3) of Regulation (EC) No 261/2004? (1) Can the assessment of what constitutes such a circumstance be affected by the fact that the airline was already aware of the technical problem? |
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2.

Can a technical problem with the airport, which alone or together with weather conditions makes landing impossible, constitute an ‘extraordinary circumstance’ under Article 5(3) of Regulation (EC) No 261/2004? (1) Can the assessment of what constitutes such a circumstance be affected by the fact that the airline was already aware of the technical problem?

| 3. | If the answer to the first question in point 2 is in the affirmative, what measures must the airline take in order to avoid the obligation to pay compensation under Article 5(3) of the regulation?






  — | Can the airline be required, and if so on what conditions and to what extent, to have extra resources in the form of, for example, aircraft or crew available to operate a flight which would otherwise have had to be cancelled, or in order to be able to operate a flight in the place of a flight which has been cancelled? |
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3.

If the answer to the first question in point 2 is in the affirmative, what measures must the airline take in order to avoid the obligation to pay compensation under Article 5(3) of the regulation?

—

Can the airline be required, and if so on what conditions and to what extent, to have extra resources in the form of, for example, aircraft or crew available to operate a flight which would otherwise have had to be cancelled, or in order to be able to operate a flight in the place of a flight which has been cancelled?

| — | Can an airline be required to offer passengers re-routing under Article 8(1)(b) [of the regulation]? In that case what is the obligation as regards carriage, for example, in respect of time of departure and the use of other carriers? |
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—

Can an airline be required to offer passengers re-routing under Article 8(1)(b) [of the regulation]? In that case what is the obligation as regards carriage, for example, in respect of time of departure and the use of other carriers?

| 4. | If the answer to the question in point 1 is in the affirmative, is there any difference between the measures which an airline must take to avoid the obligation to pay compensation under Article 5(3) of the regulation and the measures which it must take to avoid liability for damage under Article 19 of the Montreal Convention? |
| --- | --- |

4.

If the answer to the question in point 1 is in the affirmative, is there any difference between the measures which an airline must take to avoid the obligation to pay compensation under Article 5(3) of the regulation and the measures which it must take to avoid liability for damage under Article 19 of the Montreal Convention?

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(1)  Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1).

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| 2.6.2012 | EN | Official Journal of the European Union | C 157/5 |
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2.6.2012

EN

Official Journal of the European Union

C 157/5

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Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia (Italy) lodged on 2 April 2012 — Alessandra Venturini v A.S.L. Varese and Others

(Case C-159/12)

2012/C 157/07

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per la Lombardia

Parties to the main proceedings

Applicant: Alessandra Venturini

Defendants: ASL Varese and Others

Question referred

Do the principles of freedom of establishment, non-discrimination and the preservation of competition under Article 49 et seq TFEU preclude national legislation which does not allow a pharmacist, who is qualified and entered in the relevant professional register but does not own a pharmacy on the ‘pianta organica’ [territorial grid], also to offer for retail sale, in the para-pharmacy owned by that pharmacist, pharmaceutical products which are subject to a prescription in the form of a ‘ricetta bianca’ — that is to say, pharmaceutical products the cost of which is borne not by the [national health service] but wholly by the citizen — and which accordingly also establishes in that sector a prohibition on the sale of certain categories of pharmaceutical product, as well as a quota in relation to the number of commercial outlets which may be established in the national territory?

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| 2.6.2012 | EN | Official Journal of the European Union | C 157/5 |
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2.6.2012

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Official Journal of the European Union

C 157/5

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Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia (Italy) lodged on 2 April 2012 — Maria Rosa Gramegna v A.S.L. Lodi and Others

(Case C-160/12)

2012/C 157/08

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per la Lombardia

Parties to the main proceedings

Applicant: Maria Rosa Gramegna

Defendants: A.S.L. Lodi and Others

Question referred

Do the principles of freedom of establishment, non-discrimination and the preservation of competition under Article 49 et seq TFEU preclude national legislation which does not allow a pharmacist, who is qualified and entered in the relevant professional register but does not own a pharmacy on the ‘pianta organica’ [territorial grid], also to offer for retail sale, in the para-pharmacy owned by that pharmacist, pharmaceutical products which are subject to a prescription in the form of a ‘ricetta bianca’ — that is to say, pharmaceutical products the cost of which is borne not by the [national health service] but wholly by the citizen — and which accordingly also establishes in that sector a prohibition on the sale of certain categories of pharmaceutical product, as well as a quota in relation to the number of commercial outlets which may be established in the national territory?

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| 2.6.2012 | EN | Official Journal of the European Union | C 157/5 |
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2.6.2012

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Official Journal of the European Union

C 157/5

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Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia (Italy) lodged on 2 April 2012 — Anna Muzzio v A.S.L. Pavia and Others

(Case C-161/12)

2012/C 157/09

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per la Lombardia

Parties to the main proceedings

Applicant: Anna Muzzio

Defendants: A.S.L. Pavia and Others

Question referred

Do the principles of freedom of establishment, non-discrimination and the preservation of competition under Article 49 et seq TFEU preclude national legislation which does not allow a pharmacist, who is qualified and entered in the relevant professional register but does not own a pharmacy on the ‘pianta organica’ [territorial grid], also to offer for retail sale, in the para-pharmacy owned by that pharmacist, pharmaceutical products which are subject to a prescription in the form of a ‘ricetta bianca’ — that is to say, pharmaceutical products the cost of which is borne not by the [national health service] but wholly by the citizen — and which accordingly also establishes in that sector a prohibition on the sale of certain categories of pharmaceutical product, as well as a quota in relation to the number of commercial outlets which may be established in the national territory?

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| 2.6.2012 | EN | Official Journal of the European Union | C 157/6 |
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2.6.2012

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Official Journal of the European Union

C 157/6

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Action brought on 3 April 2012 — European Commission v Council of the European Union

(Case C-165/12)

2012/C 157/10

Language of the case: French

Parties

Applicant: European Commission (represented by: A. Bouquet and E. Paasivirta, acting as Agents)

Defendant: Council of the European Union

Form of order sought

| — | Annul Council Decision 2012/19/EU (1) of 16 December 2011 on the approval, on behalf of the European Union, of the Declaration on the granting of fishing opportunities in EU waters to fishing vessels flying the flag of the Bolivarian Republic of Venezuela in the exclusive economic zone off the coast of French Guiana, inasmuch as it is based on Article 218(6)(b) TFEU in conjunction with Article 43(3) TFEU; |
| --- | --- |

—

Annul Council Decision 2012/19/EU (1) of 16 December 2011 on the approval, on behalf of the European Union, of the Declaration on the granting of fishing opportunities in EU waters to fishing vessels flying the flag of the Bolivarian Republic of Venezuela in the exclusive economic zone off the coast of French Guiana, inasmuch as it is based on Article 218(6)(b) TFEU in conjunction with Article 43(3) TFEU;

| — | Maintain the effects of the annulled decision until the entry into force of a new decision adopted, within a reasonable period, on an appropriate legal basis, namely Article 218(6)(a) TFEU in conjunction with Article 43(2) TFEU, or, in the event of a refusal by the Parliament to give its approval, until expiry of a reasonable short period after the Parliament’s decision refusing approval, and |
| --- | --- |

—

Maintain the effects of the annulled decision until the entry into force of a new decision adopted, within a reasonable period, on an appropriate legal basis, namely Article 218(6)(a) TFEU in conjunction with Article 43(2) TFEU, or, in the event of a refusal by the Parliament to give its approval, until expiry of a reasonable short period after the Parliament’s decision refusing approval, and

| — | order the Council of the European Union to pay the costs. |
| --- | --- |

—

order the Council of the European Union to pay the costs.

Pleas in law and main arguments

The Commission seeks the annulment, with maintenance of its effects until adoption of a new measure, of Council Decision 2012/19/EU, inasmuch as the choice of legal basis departs fundamentally from that proposed by the Commission, namely Article 218(6)(a) TFEU (in conjunction with Article 43(2) TFEU), with the approval of the Parliament.

The Commission submits that, by so acting, the Council has erred and that, in accordance with the Commission’s proposal, it should seek the approval of the Parliament before adopting the measure in question.

In support of its action, the Commission puts forward three pleas in law: the first plea in law, split into three parts, alleging, firstly, infringement of Article 218(6)(a) TFEU and Article 43(2) TFEU in that the Council has used Article 218(6)(b) TFEU and Article 43(3) TFEU as the legal basis for the contested measure and, secondly, infringement of the second paragraph of Article 296 TFEU in that the Council has given contradictory reasons for its choice of legal basis.

The second plea in law, following from the first, also alleges infringement of Article 218(6)(a) TFEU in that the Council has disregarded the institutional prerogatives of the European Parliament by failing to obtain its approval despite the fact that that approval is required by the article in question.

The third plea in law alleges infringement of Articles 17 TEU and 218(6) TFEU in that the Council has distorted the Commission’s proposal.

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(1)  OJ 2012 L 6, p. 8.

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General Court

| 2.6.2012 | EN | Official Journal of the European Union | C 157/7 |
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Action brought on 1 March 2012 — Verus v OHIM — Performance Industries Manufacturing (VORTEX)

(Case T-104/12)

2012/C 157/11

Language in which the application was lodged: German

Parties

Applicant: Verus Eood (Sofia, Bulgaria) (represented by: S. Vykydal, lawyer)

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

Other party to the proceedings before the Board of Appeal: Performance Industries Manufacturing, Inc. (Odessa, Florida, United States)

Form of order sought

The applicant claims that the Court should:

| — | annul the Decision of the Fourth Board of Appeal of 21 December 2011 in Case R 512/2011-4, VORTEX/VORTEX, and refer the case back to the Board of Appeal; |
| --- | --- |

—

annul the Decision of the Fourth Board of Appeal of 21 December 2011 in Case R 512/2011-4, VORTEX/VORTEX, and refer the case back to the Board of Appeal;

| — | order the defendant to pay the costs of the proceedings before the Court and the Board of Appeal. |
| --- | --- |

—

order the defendant to pay the costs of the proceedings before the Court and the Board of Appeal.

Pleas in law and main arguments

Applicant for a Community trade mark: Performance Industries Manufacturing Inc.

Community trade mark concerned: word mark ‘VORTEX’ for goods in Classes 7 and 12 (Registration No 5 375 324).

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

Mark or sign cited in opposition: Community word mark ‘VORTEX’, registered for services in Classes 35 and 39 (mark No 5 514 104).

Decision of the Opposition Division: rejection of the opposition.

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

Pleas in law: infringement of Article 8(2)(a) and (b) of Regulation No 207/2009, as there is a likelihood of confusion between the marks at issue.

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| 2.6.2012 | EN | Official Journal of the European Union | C 157/7 |
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2.6.2012

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C 157/7

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Action brought on 7 March 2012 — Buzil-Werk Wagner v OHIM — Roca Sanitario (Roca)

(Case T-115/12)

2012/C 157/12

Language in which the application was lodged: German

Parties

Applicant: Buzil-Werk Wagner GmbH & Co. KG (Memmingen, Germany) (represented by: D. Waldhauser, lawyer)

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

Other party to the proceedings before the Board of Appeal: Roca Sanitario, SA (Barcelona, Spain)

Form of order sought

The applicant claims that the Court should:

| — | annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 9 January 2012 (Case No R 1907/2010-4) and reject the opposition brought by Roca Sanitario, SA, Av. Diagonal, 513, E-08029 Barcelona (Spain). |
| --- | --- |

—

annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 9 January 2012 (Case No R 1907/2010-4) and reject the opposition brought by Roca Sanitario, SA, Av. Diagonal, 513, E-08029 Barcelona (Spain).

Pleas in law and main arguments

Applicant for a Community trade mark: the applicant

Community trade mark concerned: the word mark ‘Roca’ for goods in Class 3 (application No 6 800 726)

Proprietor of the mark or sign cited in the opposition proceedings: Roca Sanitario, SA

Mark or sign cited in opposition: the Spanish trade marks ‘Roca’ (trade mark Nos 1 020 043, 2 543 451, 424 875 and 915 635) for certain goods in Classes 19 and 21 and the international trade mark ‘Roca’ (trade mark No 905 212) for certain goods in Classes 11, 19, 20 and 21

Decision of the Opposition Division: partial rejection of the opposition

Decision of the Board of Appeal: annulment of the Opposition Division’s decision and rejection of the Community trade mark application in respect of all the goods applied for

Pleas in law: There is no likelihood of confusion between the marks at issue.

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| 2.6.2012 | EN | Official Journal of the European Union | C 157/8 |
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2.6.2012

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Official Journal of the European Union

C 157/8

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Action brought on 15 March 2012 — Smartbook v OHIM (SMARTBOOK)

(Case T-123/12)

2012/C 157/13

Language of the case: German

Parties

Applicant: Smartbook AG (Offenburg, Germany) (represented by C. Milbradt and A. Schwarz, lawyers)

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

Form of order sought

The applicant claims that the Court should:

| — | annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 December 2011 (Case R 799/2011-2); |
| --- | --- |

—

annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 December 2011 (Case R 799/2011-2);

| — | order the defendant to pay the costs including the costs incurred in the course of the appeal procedure. |
| --- | --- |

—

order the defendant to pay the costs including the costs incurred in the course of the appeal procedure.

Pleas in law and main arguments

Community trade mark concerned: the word mark ‘SMARTBOOK’ (application No 8 426 348) for goods in Classes 9, 16 and 28

Decision of the Examiner: rejection of the application

Decision of the Board of Appeal: dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation No 207/2009 as the mark applied for has distinctive character and is not descriptive of the goods at issue.

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| 2.6.2012 | EN | Official Journal of the European Union | C 157/8 |
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2.6.2012

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Official Journal of the European Union

C 157/8

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Action brought on 20 March 2012 — Interroll v OHIM (Inspired by efficiency)

(Case T-126/12)

2012/C 157/14

Language of the case: German

Parties

Applicant: Interroll Holding AG (Sant’ Antonino, Switzerland) (represented by R. Böhm, lawyer)

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

Form of order sought

| — | Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 12 January 2012 (Case R 1280/2011-1); |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 12 January 2012 (Case R 1280/2011-1);

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

—

Order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘Inspired by efficiency’ (application No 9 725 359) for goods and services in classes 6, 7, 9, 20, 35, 39 and 42.

Decision of the Examiner: Registration refused.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation No 207/2009 as the trade mark applied for has distinctive character and is not descriptive of the goods and services at issue in the proceedings.

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| 2.6.2012 | EN | Official Journal of the European Union | C 157/8 |
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2.6.2012

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Official Journal of the European Union

C 157/8

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Action brought on 21 March 2012 — HTTS v Council

(Case T-128/12)

2012/C 157/15

Language of the case: German

Parties

Applicant: HTTS Hanseatic Trade Trust & Shipping GmbH (Hamburg, Germany) (represented by: J. Kienzle and M. Schlingmann, lawyers)

Defendant: Council of the European Union

Form of order sought

| — | Annul Council Decision 2012/35/CFSP of 23 January 2012 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (1) and Council Implementing Regulation (EU) No 54/2012 of 23 January 2012 implementing Regulation (EU) No 961/2010 on restrictive measures against Iran (2) in so far as they concern the applicant; |
| --- | --- |

—

Annul Council Decision 2012/35/CFSP of 23 January 2012 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (1) and Council Implementing Regulation (EU) No 54/2012 of 23 January 2012 implementing Regulation (EU) No 961/2010 on restrictive measures against Iran (2) in so far as they concern the applicant;

| — | Order the Council to pay the costs of the proceedings, in particular the applicant’s expenses. |
| --- | --- |

—

Order the Council to pay the costs of the proceedings, in particular the applicant’s expenses.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging infringement of the applicant’s rights of defence






  — | The applicant submits in this context that the Council infringed the applicant’s right to effective legal protection and, in particular, the obligation to state reasons by failing to supply sufficient grounds for the renewed inclusion of the applicant in the lists of persons, bodies and entities subject to restrictive measures in accordance with Articles 19 and 20 of Decision 2010/413/CFSP (3) and with Article 16 of Regulation (EU) No 961/2010. (4) |
| --- | --- | --- |

1.

First plea in law, alleging infringement of the applicant’s rights of defence

—

The applicant submits in this context that the Council infringed the applicant’s right to effective legal protection and, in particular, the obligation to state reasons by failing to supply sufficient grounds for the renewed inclusion of the applicant in the lists of persons, bodies and entities subject to restrictive measures in accordance with Articles 19 and 20 of Decision 2010/413/CFSP (3) and with Article 16 of Regulation (EU) No 961/2010. (4)

| — | Furthermore the Council failed, in spite of the applicant’s request, to review its decision to renew the applicant’s inclusion in the sanctions lists. |
| --- | --- |

—

Furthermore the Council failed, in spite of the applicant’s request, to review its decision to renew the applicant’s inclusion in the sanctions lists.

| — | In addition the Council infringed the applicant’s right to be heard by not giving the applicant the opportunity to comment beforehand on its renewed inclusion in the sanctions lists and thereby to trigger a review by the Council. |
| --- | --- |

—

In addition the Council infringed the applicant’s right to be heard by not giving the applicant the opportunity to comment beforehand on its renewed inclusion in the sanctions lists and thereby to trigger a review by the Council.

| 2. | Second plea in law, alleging the absence of any legal basis for the contested regulation
  In the applicant’s view, the contested implementing regulation has no legal basis as Regulation No 961/2010 was annulled by the General Court by its judgment of 7 December 2011 in Case T-562/10 in so far as it concerns the applicant; despite the fact that the effects of Regulation No 961/2010 were maintained for a period of two months, that regulation cannot, with regard to the applicant, constitute an effective legal basis for the adoption of an implementing regulation. |
| --- | --- |

2.

Second plea in law, alleging the absence of any legal basis for the contested regulation

In the applicant’s view, the contested implementing regulation has no legal basis as Regulation No 961/2010 was annulled by the General Court by its judgment of 7 December 2011 in Case T-562/10 in so far as it concerns the applicant; despite the fact that the effects of Regulation No 961/2010 were maintained for a period of two months, that regulation cannot, with regard to the applicant, constitute an effective legal basis for the adoption of an implementing regulation.

| 3. | Third plea in law, alleging infringement of Article 266 TFEU
  The applicant further submits that the Council did not adopt any measures to give effect to the judgment of the General Court of 7 December 2011 in Case T-562/10; instead it renewed the applicant’s inclusion in the sanctions lists, contrary to the Court’s judgment. |
| --- | --- |

3.

Third plea in law, alleging infringement of Article 266 TFEU

The applicant further submits that the Council did not adopt any measures to give effect to the judgment of the General Court of 7 December 2011 in Case T-562/10; instead it renewed the applicant’s inclusion in the sanctions lists, contrary to the Court’s judgment.

| 4. | Fourth plea in law, alleging the absence of any basis for the applicant’s inclusion in the sanctions lists
  The applicant submits, moreover, that the reasons given by the Council for the inclusion of the applicant in the sanctions lists are largely inapplicable and do not justify the applicant’s inclusion in the sanctions lists. |
| --- | --- |

4.

Fourth plea in law, alleging the absence of any basis for the applicant’s inclusion in the sanctions lists

The applicant submits, moreover, that the reasons given by the Council for the inclusion of the applicant in the sanctions lists are largely inapplicable and do not justify the applicant’s inclusion in the sanctions lists.

| 5. | Fifth plea in law, alleging infringement of the applicant’s fundamental right to respect for property
  The applicant’s renewed inclusion in the sanctions lists represents unjustified interference with its fundamental right to property as the applicant cannot, given the Council’s inadequate reasoning, understand on what grounds it has been included in the sanctions lists. The applicant’s renewed inclusion in the sanctions lists is in addition based on a manifestly erroneous assessment by the Council of the applicant’s situation and of its activities and is, moreover, disproportionate. |
| --- | --- |

5.

Fifth plea in law, alleging infringement of the applicant’s fundamental right to respect for property

The applicant’s renewed inclusion in the sanctions lists represents unjustified interference with its fundamental right to property as the applicant cannot, given the Council’s inadequate reasoning, understand on what grounds it has been included in the sanctions lists. The applicant’s renewed inclusion in the sanctions lists is in addition based on a manifestly erroneous assessment by the Council of the applicant’s situation and of its activities and is, moreover, disproportionate.

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(1)  Council Decision 2012/35/CFSP of 23 January 2012 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2012 L 19, p. 22).

(2)  Council Implementing Regulation (EU) No 54/2012 of 23 January 2012 implementing Regulation (EU) No 961/2010 on restrictive measures against Iran (OJ 2012 L 19, p. 1).

(3)  2010/413/CFSP: Council Decision of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP (OJ 2010 L 195, p. 39).

(4)  Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran and repealing Regulation (EC) No 423/2007 (OJ 2010 L 281, p. 1).

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| 2.6.2012 | EN | Official Journal of the European Union | C 157/9 |
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Official Journal of the European Union

C 157/9

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Action brought on 27 March 2012 — Investigación y Desarrollo en Soluciones y Servicios IT v Commission

(Case T-134/12)

2012/C 157/16

Language of the case: Spanish

Parties

Applicant: Investigación y Desarrollo en Soluciones y Servicios IT, SA (Alicante, Spain) (represented by: M. Jiménez Perona, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul the decision of the European Commission Ref. Ares (2012) 39854 of 19January 2012 in so far as it provides for the reimbursement of the debit notes corresponding to audit 09-INFS-001/041; |
| --- | --- |

—

annul the decision of the European Commission Ref. Ares (2012) 39854 of 19January 2012 in so far as it provides for the reimbursement of the debit notes corresponding to audit 09-INFS-001/041;

| — | order the Commission to compensate the harm suffered by the applicant as a result of the Commission’s unlawful conduct at issue in the amount of EUR 732 788. |
| --- | --- |

—

order the Commission to compensate the harm suffered by the applicant as a result of the Commission’s unlawful conduct at issue in the amount of EUR 732 788.

Pleas in law and main arguments

The applicant in these proceedings has entered into a number of contracts with the Commission in relation to R&D, all regulated on the basis of Commission Decision C(2003) 3834 of 23 October 2003, which provides for a core contract of the type FP 5 or FP 6 and for the general conditions FP 5 and FP 6.

In relation to those contracts, and on the basis of the results of an investigation carried out by OLAF and an audit performed by the Commission, the Commission adopted a decision revoking subsidies.

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

| 1. | First plea in law, alleging an infringement of the rights of the defence, as a result of the means of execution of the said audit. |
| --- | --- |

1.

First plea in law, alleging an infringement of the rights of the defence, as a result of the means of execution of the said audit.

| 2. | Second plea in law, alleging an infringement of the principle of legal certainty, by denying the applicant the applicable legal framework throughout the procedure. |
| --- | --- |

2.

Second plea in law, alleging an infringement of the principle of legal certainty, by denying the applicant the applicable legal framework throughout the procedure.

| 3. | Third plea in law, alleging a failure on the part of the Commission to comply with its duty to state reasons. |
| --- | --- |

3.

Third plea in law, alleging a failure on the part of the Commission to comply with its duty to state reasons.

| 4. | Fourth plea in law, alleging an infringement of the principle of the presumption of innocence, as a result of the tone adopted by DG INFSO in its audit report. |
| --- | --- |

4.

Fourth plea in law, alleging an infringement of the principle of the presumption of innocence, as a result of the tone adopted by DG INFSO in its audit report.

| 5. | Fifth plea in law, alleging a failure to have regard for the right to good administration, as a result of failure on the part of the auditors to comply with their duty of impartiality and equality. |
| --- | --- |

5.

Fifth plea in law, alleging a failure to have regard for the right to good administration, as a result of failure on the part of the auditors to comply with their duty of impartiality and equality.

| 6. | Sixth plea in law, infringement of the principle of legitimate expectations, particularly with regard to the lack of accreditation of the external auditors and the origin of the audit process itself. |
| --- | --- |

6.

Sixth plea in law, infringement of the principle of legitimate expectations, particularly with regard to the lack of accreditation of the external auditors and the origin of the audit process itself.

| 7. | Seventh plea in law, infringement of the principle of proportionality. |
| --- | --- |

7.

Seventh plea in law, infringement of the principle of proportionality.

| 8. | Eighth plea in law, alleging an infringement of the right to privacy. |
| --- | --- |

8.

Eighth plea in law, alleging an infringement of the right to privacy.

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| 2.6.2012 | EN | Official Journal of the European Union | C 157/10 |
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2.6.2012

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Action brought on 19 March 2012 — FunFactory v OHIM (three-dimensional mark in the shape of a vibrator)

(Case T-137/12)

2012/C 157/17

Language of the case: German

Parties

Applicant: FunFactory GmbH (Bremen, Germany) (represented by K.-D. Franzen, lawyer)

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

Form of order sought

The applicant claims that the Court should:

| — | annul the contested decision (R 1436/2011-4) of the Fourth Board of Appeal of OHIM of 19 January 2012; |
| --- | --- |

—

annul the contested decision (R 1436/2011-4) of the Fourth Board of Appeal of OHIM of 19 January 2012;

| — | order OHIM to pay the costs of the proceedings, including those incurred in the proceedings before the Board of Appeal. |
| --- | --- |

—

order OHIM to pay the costs of the proceedings, including those incurred in the proceedings before the Board of Appeal.

Pleas in law and main arguments

Community trade mark concerned: three-dimensional mark in the shape of a vibrator (application No 9 390 691) for goods in Class 10

Decision of the Examiner: refusal to register

Decision of the Board of Appeal: dismissal of the appeal

Pleas in law: incorrect interpretation and application of Article 7(1)(b) of Regulation No 207/2009, since the mark applied for is distinctive and is not descriptive of the goods in respect of which registration is sought. Infringement of the duty to state reasons laid down in Article 73(1) of Regulation No 207/2009 and of the right to be heard.

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| 2.6.2012 | EN | Official Journal of the European Union | C 157/10 |
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2.6.2012

EN

Official Journal of the European Union

C 157/10

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Action brought on 26 March 2012 — Geipel v OHIM — Reeh (BEST BODY NUTRITION)

(Case T-138/12)

2012/C 157/18

Language in which the application was lodged: German

Parties

Applicant: Yves Geipel (Auerbach, Germany) (represented by: J. Sachs, lawyer)

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

Other party to the proceedings before the Board of Appeal: Jörg Reeh (Buxtehude, Germany)

Form of order sought

| — | Annul the contested decision of the First Board of Appeal of OHIM of 12 January 2012 and reject the opposition of 24 July 2009; |
| --- | --- |

—

Annul the contested decision of the First Board of Appeal of OHIM of 12 January 2012 and reject the opposition of 24 July 2009;

| — | Order OHIM to pay the costs of the proceedings, including the costs incurred in the appeal proceedings. |
| --- | --- |

—

Order OHIM to pay the costs of the proceedings, including the costs incurred in the appeal proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: Yves Geipel

Community trade mark concerned: Figurative mark ‘BEST BODY NUTRITION’ (international registration No W 982 101, naming the European Union) for goods in classes 25, 28, 29, 30 and 32.

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

Mark or sign cited in opposition: Community trade mark No 4 020 161‘BEST4BODY’ for goods in class 25.

Decision of the Opposition Division: Opposition allowed.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: There is no likelihood of confusion between the marks at issue.

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| 2.6.2012 | EN | Official Journal of the European Union | C 157/11 |
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C 157/11

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Action brought on 11 April 2012 — Ternavsky v Council

(Case T-163/12)

2012/C 157/19

Language of the case: French

Parties

Applicant: Anatoly Ternavsky (Moscow, Russia) (represented by: C. Rapin and E. Van den Haute, lawyers)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

| — | declare the present action admissible; |
| --- | --- |

—

declare the present action admissible;

| — | annul point 2 of Annex II to Council Implementing Decision 2012/171/CFSP of 23 March 2012 implementing Decision 2010/639/CFSP concerning restrictive measures against Belarus, and point 2 of Annex II to Council Implementing Regulation (EU) No 265/2012 of 23 March 2012 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus; |
| --- | --- |

—

annul point 2 of Annex II to Council Implementing Decision 2012/171/CFSP of 23 March 2012 implementing Decision 2010/639/CFSP concerning restrictive measures against Belarus, and point 2 of Annex II to Council Implementing Regulation (EU) No 265/2012 of 23 March 2012 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus;

| — | order the Council to pay the costs in their entirety; |
| --- | --- |

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order the Council to pay the costs in their entirety;

| — | order the Council to pay the costs under Article 87(6) in conjunction with Article 90(a) of the Rules of Procedure of the General Court if the Court decides that there is no need to adjudicate. |
| --- | --- |

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order the Council to pay the costs under Article 87(6) in conjunction with Article 90(a) of the Rules of Procedure of the General Court if the Court decides that there is no need to adjudicate.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging a manifestly incorrect establishment of the facts as regards the reasons which resulted in the inclusion of the applicant’s name in the list of persons subject to sanctions, mentioned by the Council’s acts. |
| --- | --- |

1.

First plea in law, alleging a manifestly incorrect establishment of the facts as regards the reasons which resulted in the inclusion of the applicant’s name in the list of persons subject to sanctions, mentioned by the Council’s acts.

| 2. | Second plea in law, alleging that there is an insufficient statement of reasons for the contested acts inasmuch as the reasons stated are of no help in understanding the necessity for that inclusion. |
| --- | --- |

2.

Second plea in law, alleging that there is an insufficient statement of reasons for the contested acts inasmuch as the reasons stated are of no help in understanding the necessity for that inclusion.

| 3. | Third plea in law, alleging infringement of Decision 2010/639/CFSP and of Regulation (EC) No 765/2006, as amended, and of the principle of the prohibition of discrimination, first, in so far as the scope of those acts was extended to a businessman without establishing the conduct in support of the regime of President Lukashenko which may be attributed to him and, secondly, in so far as other businessmen, whom the Council also regards as close to the Belarusian authorities, have not, unlike the applicant, been included in the European sanctions lists. |
| --- | --- |

3.

Third plea in law, alleging infringement of Decision 2010/639/CFSP and of Regulation (EC) No 765/2006, as amended, and of the principle of the prohibition of discrimination, first, in so far as the scope of those acts was extended to a businessman without establishing the conduct in support of the regime of President Lukashenko which may be attributed to him and, secondly, in so far as other businessmen, whom the Council also regards as close to the Belarusian authorities, have not, unlike the applicant, been included in the European sanctions lists.

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European Union Civil Service Tribunal

| 2.6.2012 | EN | Official Journal of the European Union | C 157/12 |
| --- | --- | --- | --- |

2.6.2012

EN

Official Journal of the European Union

C 157/12

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Judgment of the Civil Service Tribunal (First Chamber) of 28 March 2012 — Rapone v Commission

(Case F-36/10) (1)

(Civil service - Open competition - Successive applications for an open competition - Refusal to register)

2012/C 157/20

Language of the case: Italian

Parties

Applicant: Chiara Rapone (Rome, Italy) (represented initially by A. Rapone, lawyer and subsequently by L. Rapone, lawyer)

Defendant: European Commission (represented by: J. Currall and B. Eggers, Agents and A. Dal Ferro, lawyer)

Re:

Application to annul the decision of EPSO not to register the application to take part in open competition EPSO/AD/177/10 submitted by the applicant.

Operative part of the judgment

The Tribunal:

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

1.

The application is dismissed;

| 2. | Ms Rapone is to bear her own costs and to pay those incurred by the European Commission. |
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2.

Ms Rapone is to bear her own costs and to pay those incurred by the European Commission.

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(1)  OJ C 209, 31.7.2010, p. 54.

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| 2.6.2012 | EN | Official Journal of the European Union | C 157/12 |
| --- | --- | --- | --- |

2.6.2012

EN

Official Journal of the European Union

C 157/12

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Order of the Civil Service Tribunal (Third Chamber) of 28 June 2011 — Colart and Others v Parliament

(Case F-76/10) (1)

(Civil Service - Annual adjustment of the remuneration and pensions of officials and other servants - No need to adjudicate)

2012/C 157/21

Language of the case: French

Parties

Applicants: Philippe Colart and Others (Bastogne, Belgium) (represented by: C. Mourato, lawyer)

Defendant: European Parliament (represented by: S. Seyr and K. Zejdová, Agents)

Re:

Claim for annulment of the applicants’ salary adjustment slips for the period from July to December 2009 and in the salary slips issued since 1 January 2010 within the framework of the annual adjustment of the remuneration and pensions of officials and other servants pursuant to Council Regulation (EU, Euratom) No 1296/2009 of 23 December 2009.

Operative part of the order

| 1. | There is no need to adjudicate on case F-76/10 Colart and Others v Parliament. |
| --- | --- |

1.

There is no need to adjudicate on case F-76/10 Colart and Others v Parliament.

| 2. | Each party is ordered to bear its own costs. |
| --- | --- |

2.

Each party is ordered to bear its own costs.

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(1)  OJ C 301. 6.11.2010, p. 64.

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| 2.6.2012 | EN | Official Journal of the European Union | C 157/12 |
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2.6.2012

EN

Official Journal of the European Union

C 157/12

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Order of the Civil Service Tribunal of 20 March 2012 — Schönberger v Parliament

(Case F-65/11) (1)

2012/C 157/22

Language of the case: German

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

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(1)  OJ C 252, 27.8.2011, p. 57.

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