# Official Journal C 317/2010

| | ISSN 1725-2423
  doi:10.3000/17252423.C_2010.317.eng |
| --- | --- |
| Official Journal
  of the European Union | C 317 |
| | |
| English edition | Information and Notices | Volume 5320 November 2010 |

ISSN 1725-2423

doi:10.3000/17252423.C_2010.317.eng

Official Journal

of the European Union

C 317

English edition

Information and Notices

Volume 5320 November 2010

---

| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | Court of Justice of the European Union |
| 2010/C 317/01 | Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 301, 6.11.2010 | 1 |
| | Court of Justice |
| 2010/C 317/02 | Taking of the oath by a new Member of the Court of Justice | 2 |
| 2010/C 317/03 | Election of Presidents of Chambers | 2 |
| 2010/C 317/04 | Assignment of Judges to the Chambers | 2 |
| 2010/C 317/05 | Appointment of the First Advocate General | 3 |
| 2010/C 317/06 | Lists for the purposes of determining the composition of the formations of the Court | 3 |
| 2010/C 317/07 | Designation of the Chamber responsible for cases of the kind referred to in Article 104b of the Rules of Procedure of the Court of Justice | 4 |
| 2010/C 317/08 | Appointment of the Registrar | 4 |
| | General Court |
| 2010/C 317/09 | Taking of the oath by a new Member of the General Court | 5 |
| 2010/C 317/10 | Taking of the oath by a new Member of the General Court | 5 |
| 2010/C 317/11 | Assignment of Mr Gratsias to Chambers | 5 |

Notice No

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

2010/C 317/01

Last publication of the Court of Justice of the European Union in the Official Journal of the European UnionOJ C 301, 6.11.2010

Official Journal of the European Union

1

Court of Justice

2010/C 317/02

Taking of the oath by a new Member of the Court of Justice

2

2010/C 317/03

Election of Presidents of Chambers

2

2010/C 317/04

Assignment of Judges to the Chambers

2

2010/C 317/05

Appointment of the First Advocate General

3

2010/C 317/06

Lists for the purposes of determining the composition of the formations of the Court

3

2010/C 317/07

Designation of the Chamber responsible for cases of the kind referred to in Article 104b of the Rules of Procedure of the Court of Justice

4

2010/C 317/08

Appointment of the Registrar

4

General Court

2010/C 317/09

Taking of the oath by a new Member of the General Court

5

2010/C 317/10

Taking of the oath by a new Member of the General Court

5

2010/C 317/11

Assignment of Mr Gratsias to Chambers

5

| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2010/C 317/12 | Joined Cases C-514/07 P, C-528/07 P and C-532/07 P: Judgment of the Court (Grand Chamber) of 21 September 2010 — Kingdom of Sweden v Association de la presse internationale ASBL (API) and European Commission (C-514/07), Association de la presse internationale ASBL (API) v European Commission (C-528/07), European Commission v Association de la presse internationale ASBL (API) (C-532/07) (Appeals — Right of access to documents of the institutions — Regulation (EC) No 1049/2001 — Second and third indents of Article 4(2) — Pleadings lodged by the Commission in proceedings before the Court of Justice and the General Court — Decision of the Commission refusing access) | 6 |
| 2010/C 317/13 | Case C-581/08: Judgment of the Court (Third Chamber) of 30 September 2010 (reference for a preliminary ruling from the VAT and Duties Tribunal, London Tribunal Centre (United Kingdom)) — EMI Group Ltd v The Commissioners for Her Majesty’s Revenue and Customs (Sixth VAT Directive — Second sentence of Article 5(6) — Concept of samples — Concept of gifts of small value — Recorded music — Distribution free of charge for promotional purposes) | 7 |
| 2010/C 317/14 | Case C-104/09: Judgment of the Court (Second Chamber) of 30 September 2010 (reference for a preliminary ruling from the Tribunal Superior de Justicia de Galicia — Spain) — Pedro Manuel Roca Álvarez v Sesa Start España ETT SA (Social policy — Equal treatment for male and female workers — Directive 76/207/EEC — Articles 2 and 5 — Right to leave for employed mothers — Possible use by an employed mother or an employed father — Mother self-employed — Exclusion of the right to leave for an employed father) | 8 |
| 2010/C 317/15 | Case C-132/09: Judgment of the Court (Third Chamber) of 30 September 2010 — European Commission v Kingdom of Belgium (Failure of a Member State to fulfil obligations — Jurisdiction of the Court — Statute of the European Schools — Establishment Agreement of 1962 — Conventions of 1957 and 1994 — Arbitration clause — Article 10 EC — Financing of the European Schools — Costs of furniture and teaching equipment) | 8 |
| 2010/C 317/16 | Case C-133/09: Judgment of the Court (Fourth Chamber) of 30 September 2010 (reference for a preliminary ruling from the Fövárosi Bíróság — Republic of Hungary) — József Uzonyi v Mezőgazdasági és Vidékfejlesztési Hivatal Központi Szerve (Agriculture — Common agricultural policy — Support schemes — Regulation (EC) No 1782/2003 — Article 143ba — Separate sugar payment — Grant — Decision of the new Member States — Conditions — Objective and non-discriminatory criteria) | 9 |
| 2010/C 317/17 | Case C-314/09: Judgment of the Court (Third Chamber) of 30 September 2010 (reference for a preliminary ruling from the Oberster Gerichtshof — Austria) — Stadt Graz v Strabag AG, Teerag-Asdag AG, Bauunternehmung Granit GesmbH (Directive 89/665/EEC — Public procurement — Review procedures — Actions for damages — Unlawful award — National rule on liability based on a presumption that the contracting authority is at fault) | 9 |
| 2010/C 317/18 | Case C-392/09: Judgment of the Court (Third Chamber) of 30 September 2010 (reference for a preliminary ruling from the Baranya Megyei Bíróság — Republic of Hungary) — Uszodaépítő kft v APEH Központi Hivatal Hatósági Főosztály (Sixth VAT Directive — Directive 2006/112/EC — Right to deduct input tax — New national legislation — Requirements as to the content of an invoice — Retroactive application — Loss of the right to deduct) | 10 |
| 2010/C 317/19 | Case C-395/09: Judgment of the Court (Seventh Chamber) of 30 September 2010 (reference for a preliminary ruling from the Naczelny Sąd Administracyjny — Poland) — Oasis East sp. z o.o. v Minister Finansów (Sixth VAT Directive — Directive 2006/112/EC — Accession of a new Member State — Right to deduct input tax — National legislation excluding the right to deduct tax on the provision of certain services — Commercial partners established in a territory classified as a tax haven — Option for Member States to retain rules excluding the right to deduct at the time when the Sixth VAT Directive entered into force) | 10 |
| 2010/C 317/20 | Case C-479/09 P: Judgment of the Court (Fifth Chamber) of 30 September 2010 — Evets Corp. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Appeal — Community trade mark — Word mark DANELECTRO — Figurative mark QWIK TUNE — Request for renewal of registration of the trade mark — Application for restitutio in integrum — Failure to observe the time-limit for submitting the request for renewal of registration of the trade mark) | 11 |
| 2010/C 317/21 | Case C-481/09: Judgment of the Court (Fifth Chamber) of 30 September 2010 — European Commission v Czech Republic (Failure of a Member State to fulfil its obligations — Environment — Directive 2006/7/EC — Bathing water quality — Failure to transpose within the prescribed period) | 11 |
| 2010/C 317/22 | Case C-24/10: Judgment of the Court (Sixth Chamber) of 23 September 2010 — European Commission v Hellenic Republic (Failure of a Member State to fulfil its obligations — Directive 2006/46/EC — Company law — Annual accounts and consolidated accounts of companies — Failure to transpose within the prescribed period) | 12 |
| 2010/C 317/23 | Case C-36/10: Judgment of the Court (Seventh Chamber) of 30 September 2010 — European Commission v Kingdom of Belgium (Failure of a Member State to fulfil its obligations — Directives 96/82/EC and 2003/105/EC — Control of major-accident hazards involving dangerous substances — Second subparagraph of Article 12(1) — Incorrect transposition) | 12 |
| 2010/C 317/24 | Case C-344/09: Reference for a preliminary ruling from the Mora Kommun (Sweden) lodged on 21 August 2009 — Dan Bengtsson v Tele2 Sverige AB, Telenor Sverige AB, TeliaSonera Mobile Networks AB, Teracom | 13 |
| 2010/C 317/25 | Case C-378/10: Reference for a preliminary ruling from the Magyar Köztársaság Legfelsőbb Bírósága (Hungary) lodged on 28 July 2010 — VALE Építési Kft. | 13 |
| 2010/C 317/26 | Case C-384/10: Reference for a preliminary ruling from the Hof van Cassatie van België, lodged on 29 July 2010 — Jan Voogsgeerd v Navimer SA | 14 |
| 2010/C 317/27 | Case C-399/10 P: Appeal brought on 4 August 2010 by Bouygues SA and Bouygues Télécom SA against the judgment delivered on 21 May 2010 by the General Court (Third Chamber, Extended Composition) in Joined Cases T-425/04, T-444/04, T-450/04 and T-456/04 France and Others v Commission | 14 |
| 2010/C 317/28 | Case C-401/10 P: Appeal brought on 5 August 2010 by the European Commission against the judgment delivered on 21 May 2010 by the General Court (Third Chamber, Extended Composition) in Joined Cases T-425/04, T-444/04, T-450/04 and T-456/04 France and Others v Commission | 15 |
| 2010/C 317/29 | Case C-421/10: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 25 August 2010 — Finanzamt Deggendorf v Markus Stoppelkamp in his capacity as insolvency administrator of the assets of Harald Raab | 16 |
| 2010/C 317/30 | Case C-423/10: Reference for a preliminary ruling from the Finanzgericht Düsseldorf (Germany) lodged on 27 August 2010 — Delphi Deutschland GmbH v Hauptzollamt Düsseldorf | 16 |
| 2010/C 317/31 | Case C-434/10: Reference for a preliminary ruling from the Administrativen sad Sofia-grad — (Bulgaria) lodged on 6 September 2010 — Petar Aladzhov v Zamestnik direktor na Stolichna direktsia na vatreshnite raboti kam Ministerstvo na vatreshnite raboti | 16 |
| 2010/C 317/32 | Case C-435/10: Reference for a preliminary ruling from the Centrale Raad van Beroep (Netherlands) lodged on 13 September 2010 — J.C. van Ardennen v Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen | 18 |
| 2010/C 317/33 | Case C-437/10: Reference for a preliminary ruling from the Tribunal Judicial de Vieira do Minho (Portugal) lodged on 13 September 2010 — Manuel Afonso Esteves v Axa — Seguros de Portugal SA | 18 |
| 2010/C 317/34 | Case C-443/10: Reference for a preliminary ruling from the Tribunal administratif de Limoges (France) lodged on 14 September 2010 — Philippe Bonnarde v Agence de services et de paiement | 19 |
| 2010/C 317/35 | Case C-444/10: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 15 September 2010 — Finanzamt Lüdenscheid v Christel Schriever | 19 |
| 2010/C 317/36 | Case C-448/10 P: Appeal brought on 15 September 2010 by ThyssenKrupp Acciai Speciali Terni SpA against the judgment of the General Court (Fifth Chamber) delivered on 1 July 2010 in Case T-62/08 Thyssen Krupp Acciai Speciali Terni SpA v European Commission | 20 |
| 2010/C 317/37 | Case C-449/10 P: Appeal brought on 15 September 2010 by Cementir Italia Srl against the judgment delivered on 1 July 2010 by the General Court (Fifth Chamber) in Case T-63/08 Cementir Italia Srl v European Commission | 20 |
| 2010/C 317/38 | Case C-450/10 P: Appeal brought on 15 September 2010 by Nuova Terni Industrie Chimiche SpA against the judgment delivered by the General Court (Fifth Chamber) on 1 July 2010 in Case T-64/08 Nuova Terni Industrie Chimiche SpA v European Commission | 21 |
| 2010/C 317/39 | Case C-452/10 P: Appeal brought on 16 September 2010 by BNP Paribas and Banca Nazionale del Lavoro SpA (BNL) against the judgment of the General Court (Fifth Chamber) delivered on 1 July 2010 in Case T-335/08 BNP Paribas and BNL v Commission | 22 |
| 2010/C 317/40 | Case C-454/10: Reference for a preliminary ruling from the Bundesfinanzhof (Germany), lodged on 17 September 2010 — Oliver Jestel v Hauptzollamt Aachen | 22 |
| 2010/C 317/41 | Case C-459/10 P: Appeal brought on 20 September 2010 by Freistaat Sachsen and Land Sachsen- Anhalt against the judgment delivered by the General Court (Eighth Chamber) on 8 July 2010 in Case T-396/08 Freistaat Sachsen and Land Sachsen-Anhalt v European Commission | 23 |
| 2010/C 317/42 | Case C-461/10: Reference for a preliminary ruling from the Högsta domstolen (Sweden) lodged on 20 September 2010 — Bonnier Audio AB, Earbooks AB, Norstedts Förlagsgrupp AB, Piratförlaget Aktiebolag, Storyside AB v Perfect Communication Sweden AB | 24 |
| 2010/C 317/43 | Case C-462/10 P: Appeal brought on 24 September 2010 by Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE against the judgment of the General Court (Fifth Chamber) delivered on 8 July 2010 in Case T-331/06: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE v European Environmental Agency (EEA) | 24 |
| 2010/C 317/44 | Case C-466/10: Action brought on 27 September 2010 — European Commission v Hellenic Republic | 25 |
| | General Court |
| 2010/C 317/45 | Case T-378/07: Judgment of the General Court of 29 September 2010 — CNH Global v OHIM (Combination of the colours red, black and grey for a tractor) (Community trade mark — Application for a Community trade mark consisting of a combination of the colours red, black and grey applied to the exterior surfaces of a tractor — Absolute ground for refusal — No distinctive character acquired through use — Article 7(3) of Regulation (EC) No 40/94 (now Article 7(3) of Regulation (EC) No 207/2009)) | 26 |
| 2010/C 317/46 | Case T-200/08: Judgment of the General Court of 29 September 2010 — Interflon v OHIM — Illinois Tool Works (FOODLUBE) (Community trade mark — Invalidity proceedings — Community trade mark FOODLUBE — Absolute grounds for refusal — Descriptiveness — Distinctive character — Article 7(1)(b) and (c) and Article 51(1)(a) of Regulation (EC) No 40/94 (now Article 7(1)(b) and (c) and Article 52(1)(a) of Regulation (EC) No 207/2009)) | 26 |
| 2010/C 317/47 | Case T-201/08: Judgment of the General Court of 28 September 2010 — Market Watch v OHIM — Ares Trading SA (Seroslim) (Community trade mark — Opposition proceedings — Application for the Community word mark Seroslim — Earlier Community word mark SEROSTIM — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009)) | 27 |
| 2010/C 317/48 | Case T-247/08: Judgment of the General Court of 28 September 2010 — C-Content v Commission (Non-contractual liability — Public service contracts — Community tendering procedures — Electronic publication services — Irregularities and infringements of Community law allegedly committed by the Publications Office — Limitation periods — Causal link) | 27 |
| 2010/C 317/49 | Case T-452/08: Judgment of the General Court of 7 October 2010 — DHL Aviation and DHL Hub Leipzig v Commission (State aid — Air freight — Warranties relating to the operation of DHL’s new European hub at Leipzig-Halle Airport — Decision declaring the aid incompatible with the common market and ordering its recovery) | 28 |
| 2010/C 317/50 | Case T-534/08: Judgment of the General Court of 30 September 2010 — Granuband v OHIM — Granuflex (GRANUf lex) (Community trade mark — Invalidity proceedings — Community figurative mark GRANUf lex — Previous company name and business name GRANUFLEX — Relative ground for refusal — Article 8(4) and Article 52(1)(c) of Regulation (EC) No 40/94 (now Article 8(4) and Article 53(1) of Regulation (EC) No 207/2009)) | 28 |
| 2010/C 317/51 | Case T-47/09: Judgment of the General Court of 7 October 2010 — Deutsche Behindertenhilfe — Aktion Mensch v OHIM (diegesellschafter.de) (Community trade mark — Application for Community word mark diegesellschafter.de — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 40/94 (now Article 7(1)(b) of Regulation (EC) No 207/2009)) | 28 |
| 2010/C 317/52 | Case T-85/09: Judgment of the General Court of 30 September 2010 — Kadi v Commission (Common foreign and security policy — Restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban — Regulation (EC) No 881/2002 — Freezing of a person’s funds and economic resources as a result of his inclusion in a list drawn up by a body of the United Nations — Sanctions Committee — Subsequent inclusion in Annex I to Regulation No 881/2002 — Action for annulment — Fundamental rights — Right to be heard, right to effective judicial review and right to respect for property) | 29 |
| 2010/C 317/53 | Case T-92/09: Order of the General Court of 5 October 2010 — Strategi Group v OHIM — RBI (STRATEGI) (Community trade mark — Opposition proceedings — Application for the Community word mark STRATEGI — Earlier national word mark Stratégies — Relative ground for refusal — Proof of use of the earlier trade mark — Article 43(2) of Regulation (EC) No 40/94 (now Article 42(2) of Regulation (EC) No 207/2009) and Rule 22 of Regulation (EC) No 2868/95)) | 29 |
| 2010/C 317/54 | Case T-136/09: Judgment of the General Court of 7 October 2010 — Commission v Gal-Or (Arbitration clause — Contract for financial assistance concluded under a specific research and technological development programme in the field of non-nuclear energy — Failure to comply with the contract — Reimbursement of advance payments — Default interest — Default procedure) | 30 |
| 2010/C 317/55 | Case T-244/09: Judgment of the General Court of 7 October 2010 — Accenture Global Services v OHIM — Silver Creek Properties (ascensa) (Community trade mark — Opposition proceedings — Application for Community figurative mark acsensa — Earlier Community and national word and figurative marks ACCENTURE and accenture — Relative ground for refusal — No likelihood of confusion — No similarity of signs — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009) — Obligation to state reasons — Article 73 of Regulation No 40/94 (now Article 75 of Regulation No 207/2009)) | 30 |
| 2010/C 317/56 | Case T-270/09: Judgment of the General Court of 30 September 2010 — PVS v OHIM — MeDiTA Medizinische Kurierdienst (medidata) (Community trade mark — Opposition proceedings — Application for Community figurative mark medidata — Earlier national word mark MeDiTA — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Similarity of the services — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009)) | 31 |
| 2010/C 317/57 | Case T-388/09: Judgment of the General Court of 28 September 2010 — Rosenruist v OHIM (Representation of two curves on a pocket) (Community trade mark — Application for Community figurative mark representing two curves on a pocket — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009) | 31 |
| 2010/C 317/58 | Case T-365/08: Order of the General Court of 27 September 2010 — Hidalgo v OHIM — Bodegas Hidalgo — La Gitana (HIDALGO) (Community trade mark — Annulment of registration of the national mark which was the subject-matter of the opposition — No need to adjudicate) | 32 |
| 2010/C 317/59 | Case T-498/09 P: Order of the General Court of 24 September 2010 — Kerstens v Commission (Appeal — Civil service — Officials — Promotion — 2005 promotion year — Award of priority points — Burden of proof — Rights of the defence — Appeal in part manifestly inadmissible and in part manifestly unfounded) | 32 |
| 2010/C 317/60 | Case T-400/10: Action brought on 12 September 2010 — Hamas v Council | 32 |
| 2010/C 317/61 | Case T-407/10: Action brought on 14 September 2010 — Republic of Hungary v European Commission | 33 |
| 2010/C 317/62 | Case T-413/10: Action brought on 15 September 2010 — Socitrel v Commission | 34 |
| 2010/C 317/63 | Case T-414/10: Action brought on 15 September 2010 — Companhia Previdente v Commission | 35 |
| 2010/C 317/64 | Case T-422/10: Action brought on 15 September 2010 — Emme v Commission | 35 |
| 2010/C 317/65 | Case T-423/10: Action brought on 16 September 2010 — Redaelli Tecna v Commission | 36 |
| 2010/C 317/66 | Case T-424/10: Action brought on 18 September 2010 — Dosenbach-Ochsner v OHIM — Sisma (Representation of a rectangle with elephants) | 36 |
| 2010/C 317/67 | Case T-425/10: Action brought on 21 September 2010 — Häfele v OHIM (Mixfront) | 37 |
| 2010/C 317/68 | Case T-426/10: Action brought on 16 September 2010 — Moreda-Riviere Trefilerías SA v Commission | 37 |
| 2010/C 317/69 | Case T-427/10: Action brought on 16 September 2010 — Trefilerías Quijano v Commission | 38 |
| 2010/C 317/70 | Case T-428/10: Action brought on 16 September 2010 — Trenzas y Cables de Acero v European Commission | 38 |
| 2010/C 317/71 | Case T-430/10: Action brought on 17 September 2010 — Magnesitas de Rubián and Others v Commission | 39 |
| 2010/C 317/72 | Case T-431/10: Action brought on 24 September 2010 — Nencini v Parliament | 40 |
| 2010/C 317/73 | Case T-432/10: Action brought on 17 September 2010 — Vivendi v Commission | 40 |
| 2010/C 317/74 | Case T-433/10 P: Appeal brought on 20 September 2010 by Allen and Others against the Order of the European Union Civil Service Tribunal made on 13 July 2010 in case Allen and Others v Commission, F-103/09 | 41 |
| 2010/C 317/75 | Case T-436/10: Action brought on 15 September 2010 — Hit Groep BV v European Commission | 41 |
| 2010/C 317/76 | Case T-437/10: Action brought on 22 September 2010 — Gap SA granen & producten v Commission | 43 |
| 2010/C 317/77 | Case T-438/10: Action brought on 24 September 2010 — Forgital Italy v Council | 43 |
| 2010/C 317/78 | Case T-444/10: Action brought on 28 September 2010 — ESGE v OHIM — Kenwood Appliances Luxembourg (KMIX) | 44 |
| 2010/C 317/79 | Case T-445/10: Action brought on 28 September 2010 — HerkuPlast Kubern v OHIM — How (eco-pack) | 45 |
| 2010/C 317/80 | Case T-450/10 P: Appeal brought on 24 September 2010 by Luigi Marcuccio against the order of the Civil Service Tribunal delivered on 9 July 2010 in Case F-91/09, Marcuccio v Commission | 45 |
| 2010/C 317/81 | Case T-451/10: Action brought on 28 September 2010 — Fuchshuber Agrarhandel v Commission | 46 |
| | European Union Civil Service Tribunal |
| 2010/C 317/82 | Case F-43/09: Judgment of the Civil Service Tribunal (First Chamber) of 30 September 2010 — van Heuckelom v European Police Office (Europol) (Civil Service — Staff Regulations of Europol — Article 29 — Advancement in step granted on the basis of staff reports — Plea of illegality of the decision establishing the policy for determining grades and steps — Respective powers of Europol’s Director and Management Board — Europol’s Director’s discretion — Limits) | 47 |
| 2010/C 317/83 | Case F-52/09: Judgment of the Civil Service Tribunal (First Chamber) of 14 September 2010 — Da Silva Pinto Branco v Court of Justice (Civil Service — Officials — Recruitment — Probationary official — Dismissal at the end of the probationary period — Rights of the defence — Evaluation of abilities — Judicial review) | 47 |
| 2010/C 317/84 | Case F-79/09: Judgment of the Civil Service Tribunal (First Chamber) of 14 September 2010 — AE v Commission (Civil Service — Officials — Social security — Occupational sickness and accident insurance — Article 73 of the Staff Regulations — Refusal to recognise the occupational origin of a disease — Hypersensitivity to electro-magnetic fields) | 48 |
| 2010/C 317/85 | Case F-85/09: Judgment of the Civil Service Tribunal (First Chamber) of 14 September 2010 — Rossi Ferreras v Commission (Civil Service — Officials — 2001/2002 Appraisal — Career Development Report — Compliance with an annulling judgment — Effects of the withdrawal of an act — Establishment of the objectives) | 48 |
| 2010/C 317/86 | Case F-2/10: Order of the Civil Service Tribunal (First Chamber) of 6 October 2010 — Marcuccio v Commission (Civil Service — Officials — Social security — Sickness insurance — Applications for payment of medical expenses — No act adversely affecting an official — Action manifestly inadmissible and manifestly lacking any foundation in law — Article 94 of the Rules of Procedure) | 48 |
| 2010/C 317/87 | Case F-71/10: Action brought on 30 August 2010 — Cantisani v Commission | 49 |
| 2010/C 317/88 | Case F-72/10: Action brought on 2 September 2010 — da Silva Tenreiro v Commission | 49 |
| 2010/C 317/89 | Case F-86/10: Action brought on 24 September 2010 — Dubus v Parliament | 49 |
| 2010/C 317/90 | Case F-88/10: Action brought on 27 September 2010 — Van Asbroeck v Commission | 50 |
| 2010/C 317/91 | Joined Cases F-8/05 and F-10/05: Order of the Civil Service Tribunal of 16 September 2010 — Block and Others and Knaul and Others v Commission | 50 |
| 2010/C 317/92 | Case F-45/06: Order of the Civil Service Tribunal of 16 September 2010 — Avendano and Others v Commission | 50 |
| 2010/C 317/93 | Case F-70/06: Order of the Civil Service Tribunal of 16 September 2010 — Baele and Others v Commission | 50 |
| 2010/C 317/94 | Case F-103/06: Order of the Civil Service Tribunal of 16 September 2010 — Blank and Others v Commission | 51 |
| 2010/C 317/95 | Case F-90/09: Order of the Civil Service Tribunal of 16 September 2010 — Ernotte v Commission | 51 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2010/C 317/12

Joined Cases C-514/07 P, C-528/07 P and C-532/07 P: Judgment of the Court (Grand Chamber) of 21 September 2010 — Kingdom of Sweden v Association de la presse internationale ASBL (API) and European Commission (C-514/07), Association de la presse internationale ASBL (API) v European Commission (C-528/07), European Commission v Association de la presse internationale ASBL (API) (C-532/07) (Appeals — Right of access to documents of the institutions — Regulation (EC) No 1049/2001 — Second and third indents of Article 4(2) — Pleadings lodged by the Commission in proceedings before the Court of Justice and the General Court — Decision of the Commission refusing access)

6

2010/C 317/13

Case C-581/08: Judgment of the Court (Third Chamber) of 30 September 2010 (reference for a preliminary ruling from the VAT and Duties Tribunal, London Tribunal Centre (United Kingdom)) — EMI Group Ltd v The Commissioners for Her Majesty’s Revenue and Customs (Sixth VAT Directive — Second sentence of Article 5(6) — Concept of samples — Concept of gifts of small value — Recorded music — Distribution free of charge for promotional purposes)

7

2010/C 317/14

Case C-104/09: Judgment of the Court (Second Chamber) of 30 September 2010 (reference for a preliminary ruling from the Tribunal Superior de Justicia de Galicia — Spain) — Pedro Manuel Roca Álvarez v Sesa Start España ETT SA (Social policy — Equal treatment for male and female workers — Directive 76/207/EEC — Articles 2 and 5 — Right to leave for employed mothers — Possible use by an employed mother or an employed father — Mother self-employed — Exclusion of the right to leave for an employed father)

8

2010/C 317/15

Case C-132/09: Judgment of the Court (Third Chamber) of 30 September 2010 — European Commission v Kingdom of Belgium (Failure of a Member State to fulfil obligations — Jurisdiction of the Court — Statute of the European Schools — Establishment Agreement of 1962 — Conventions of 1957 and 1994 — Arbitration clause — Article 10 EC — Financing of the European Schools — Costs of furniture and teaching equipment)

8

2010/C 317/16

Case C-133/09: Judgment of the Court (Fourth Chamber) of 30 September 2010 (reference for a preliminary ruling from the Fövárosi Bíróság — Republic of Hungary) — József Uzonyi v Mezőgazdasági és Vidékfejlesztési Hivatal Központi Szerve (Agriculture — Common agricultural policy — Support schemes — Regulation (EC) No 1782/2003 — Article 143ba — Separate sugar payment — Grant — Decision of the new Member States — Conditions — Objective and non-discriminatory criteria)

9

2010/C 317/17

Case C-314/09: Judgment of the Court (Third Chamber) of 30 September 2010 (reference for a preliminary ruling from the Oberster Gerichtshof — Austria) — Stadt Graz v Strabag AG, Teerag-Asdag AG, Bauunternehmung Granit GesmbH (Directive 89/665/EEC — Public procurement — Review procedures — Actions for damages — Unlawful award — National rule on liability based on a presumption that the contracting authority is at fault)

9

2010/C 317/18

Case C-392/09: Judgment of the Court (Third Chamber) of 30 September 2010 (reference for a preliminary ruling from the Baranya Megyei Bíróság — Republic of Hungary) — Uszodaépítő kft v APEH Központi Hivatal Hatósági Főosztály (Sixth VAT Directive — Directive 2006/112/EC — Right to deduct input tax — New national legislation — Requirements as to the content of an invoice — Retroactive application — Loss of the right to deduct)

10

2010/C 317/19

Case C-395/09: Judgment of the Court (Seventh Chamber) of 30 September 2010 (reference for a preliminary ruling from the Naczelny Sąd Administracyjny — Poland) — Oasis East sp. z o.o. v Minister Finansów (Sixth VAT Directive — Directive 2006/112/EC — Accession of a new Member State — Right to deduct input tax — National legislation excluding the right to deduct tax on the provision of certain services — Commercial partners established in a territory classified as a tax haven — Option for Member States to retain rules excluding the right to deduct at the time when the Sixth VAT Directive entered into force)

10

2010/C 317/20

Case C-479/09 P: Judgment of the Court (Fifth Chamber) of 30 September 2010 — Evets Corp. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Appeal — Community trade mark — Word mark DANELECTRO — Figurative mark QWIK TUNE — Request for renewal of registration of the trade mark — Application for restitutio in integrum — Failure to observe the time-limit for submitting the request for renewal of registration of the trade mark)

11

2010/C 317/21

Case C-481/09: Judgment of the Court (Fifth Chamber) of 30 September 2010 — European Commission v Czech Republic (Failure of a Member State to fulfil its obligations — Environment — Directive 2006/7/EC — Bathing water quality — Failure to transpose within the prescribed period)

11

2010/C 317/22

Case C-24/10: Judgment of the Court (Sixth Chamber) of 23 September 2010 — European Commission v Hellenic Republic (Failure of a Member State to fulfil its obligations — Directive 2006/46/EC — Company law — Annual accounts and consolidated accounts of companies — Failure to transpose within the prescribed period)

12

2010/C 317/23

Case C-36/10: Judgment of the Court (Seventh Chamber) of 30 September 2010 — European Commission v Kingdom of Belgium (Failure of a Member State to fulfil its obligations — Directives 96/82/EC and 2003/105/EC — Control of major-accident hazards involving dangerous substances — Second subparagraph of Article 12(1) — Incorrect transposition)

12

2010/C 317/24

Case C-344/09: Reference for a preliminary ruling from the Mora Kommun (Sweden) lodged on 21 August 2009 — Dan Bengtsson v Tele2 Sverige AB, Telenor Sverige AB, TeliaSonera Mobile Networks AB, Teracom

13

2010/C 317/25

Case C-378/10: Reference for a preliminary ruling from the Magyar Köztársaság Legfelsőbb Bírósága (Hungary) lodged on 28 July 2010 — VALE Építési Kft.

13

2010/C 317/26

Case C-384/10: Reference for a preliminary ruling from the Hof van Cassatie van België, lodged on 29 July 2010 — Jan Voogsgeerd v Navimer SA

14

2010/C 317/27

Case C-399/10 P: Appeal brought on 4 August 2010 by Bouygues SA and Bouygues Télécom SA against the judgment delivered on 21 May 2010 by the General Court (Third Chamber, Extended Composition) in Joined Cases T-425/04, T-444/04, T-450/04 and T-456/04 France and Others v Commission

14

2010/C 317/28

Case C-401/10 P: Appeal brought on 5 August 2010 by the European Commission against the judgment delivered on 21 May 2010 by the General Court (Third Chamber, Extended Composition) in Joined Cases T-425/04, T-444/04, T-450/04 and T-456/04 France and Others v Commission

15

2010/C 317/29

Case C-421/10: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 25 August 2010 — Finanzamt Deggendorf v Markus Stoppelkamp in his capacity as insolvency administrator of the assets of Harald Raab

16

2010/C 317/30

Case C-423/10: Reference for a preliminary ruling from the Finanzgericht Düsseldorf (Germany) lodged on 27 August 2010 — Delphi Deutschland GmbH v Hauptzollamt Düsseldorf

16

2010/C 317/31

Case C-434/10: Reference for a preliminary ruling from the Administrativen sad Sofia-grad — (Bulgaria) lodged on 6 September 2010 — Petar Aladzhov v Zamestnik direktor na Stolichna direktsia na vatreshnite raboti kam Ministerstvo na vatreshnite raboti

16

2010/C 317/32

Case C-435/10: Reference for a preliminary ruling from the Centrale Raad van Beroep (Netherlands) lodged on 13 September 2010 — J.C. van Ardennen v Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen

18

2010/C 317/33

Case C-437/10: Reference for a preliminary ruling from the Tribunal Judicial de Vieira do Minho (Portugal) lodged on 13 September 2010 — Manuel Afonso Esteves v Axa — Seguros de Portugal SA

18

2010/C 317/34

Case C-443/10: Reference for a preliminary ruling from the Tribunal administratif de Limoges (France) lodged on 14 September 2010 — Philippe Bonnarde v Agence de services et de paiement

19

2010/C 317/35

Case C-444/10: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 15 September 2010 — Finanzamt Lüdenscheid v Christel Schriever

19

2010/C 317/36

Case C-448/10 P: Appeal brought on 15 September 2010 by ThyssenKrupp Acciai Speciali Terni SpA against the judgment of the General Court (Fifth Chamber) delivered on 1 July 2010 in Case T-62/08 Thyssen Krupp Acciai Speciali Terni SpA v European Commission

20

2010/C 317/37

Case C-449/10 P: Appeal brought on 15 September 2010 by Cementir Italia Srl against the judgment delivered on 1 July 2010 by the General Court (Fifth Chamber) in Case T-63/08 Cementir Italia Srl v European Commission

20

2010/C 317/38

Case C-450/10 P: Appeal brought on 15 September 2010 by Nuova Terni Industrie Chimiche SpA against the judgment delivered by the General Court (Fifth Chamber) on 1 July 2010 in Case T-64/08 Nuova Terni Industrie Chimiche SpA v European Commission

21

2010/C 317/39

Case C-452/10 P: Appeal brought on 16 September 2010 by BNP Paribas and Banca Nazionale del Lavoro SpA (BNL) against the judgment of the General Court (Fifth Chamber) delivered on 1 July 2010 in Case T-335/08 BNP Paribas and BNL v Commission

22

2010/C 317/40

Case C-454/10: Reference for a preliminary ruling from the Bundesfinanzhof (Germany), lodged on 17 September 2010 — Oliver Jestel v Hauptzollamt Aachen

22

2010/C 317/41

Case C-459/10 P: Appeal brought on 20 September 2010 by Freistaat Sachsen and Land Sachsen- Anhalt against the judgment delivered by the General Court (Eighth Chamber) on 8 July 2010 in Case T-396/08 Freistaat Sachsen and Land Sachsen-Anhalt v European Commission

23

2010/C 317/42

Case C-461/10: Reference for a preliminary ruling from the Högsta domstolen (Sweden) lodged on 20 September 2010 — Bonnier Audio AB, Earbooks AB, Norstedts Förlagsgrupp AB, Piratförlaget Aktiebolag, Storyside AB v Perfect Communication Sweden AB

24

2010/C 317/43

Case C-462/10 P: Appeal brought on 24 September 2010 by Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE against the judgment of the General Court (Fifth Chamber) delivered on 8 July 2010 in Case T-331/06: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE v European Environmental Agency (EEA)

24

2010/C 317/44

Case C-466/10: Action brought on 27 September 2010 — European Commission v Hellenic Republic

25

General Court

2010/C 317/45

Case T-378/07: Judgment of the General Court of 29 September 2010 — CNH Global v OHIM (Combination of the colours red, black and grey for a tractor) (Community trade mark — Application for a Community trade mark consisting of a combination of the colours red, black and grey applied to the exterior surfaces of a tractor — Absolute ground for refusal — No distinctive character acquired through use — Article 7(3) of Regulation (EC) No 40/94 (now Article 7(3) of Regulation (EC) No 207/2009))

26

2010/C 317/46

Case T-200/08: Judgment of the General Court of 29 September 2010 — Interflon v OHIM — Illinois Tool Works (FOODLUBE) (Community trade mark — Invalidity proceedings — Community trade mark FOODLUBE — Absolute grounds for refusal — Descriptiveness — Distinctive character — Article 7(1)(b) and (c) and Article 51(1)(a) of Regulation (EC) No 40/94 (now Article 7(1)(b) and (c) and Article 52(1)(a) of Regulation (EC) No 207/2009))

26

2010/C 317/47

Case T-201/08: Judgment of the General Court of 28 September 2010 — Market Watch v OHIM — Ares Trading SA (Seroslim) (Community trade mark — Opposition proceedings — Application for the Community word mark Seroslim — Earlier Community word mark SEROSTIM — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))

27

2010/C 317/48

Case T-247/08: Judgment of the General Court of 28 September 2010 — C-Content v Commission (Non-contractual liability — Public service contracts — Community tendering procedures — Electronic publication services — Irregularities and infringements of Community law allegedly committed by the Publications Office — Limitation periods — Causal link)

27

2010/C 317/49

Case T-452/08: Judgment of the General Court of 7 October 2010 — DHL Aviation and DHL Hub Leipzig v Commission (State aid — Air freight — Warranties relating to the operation of DHL’s new European hub at Leipzig-Halle Airport — Decision declaring the aid incompatible with the common market and ordering its recovery)

28

2010/C 317/50

Case T-534/08: Judgment of the General Court of 30 September 2010 — Granuband v OHIM — Granuflex (GRANUf lex) (Community trade mark — Invalidity proceedings — Community figurative mark GRANUf lex — Previous company name and business name GRANUFLEX — Relative ground for refusal — Article 8(4) and Article 52(1)(c) of Regulation (EC) No 40/94 (now Article 8(4) and Article 53(1) of Regulation (EC) No 207/2009))

28

2010/C 317/51

Case T-47/09: Judgment of the General Court of 7 October 2010 — Deutsche Behindertenhilfe — Aktion Mensch v OHIM (diegesellschafter.de) (Community trade mark — Application for Community word mark diegesellschafter.de — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 40/94 (now Article 7(1)(b) of Regulation (EC) No 207/2009))

28

2010/C 317/52

Case T-85/09: Judgment of the General Court of 30 September 2010 — Kadi v Commission (Common foreign and security policy — Restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban — Regulation (EC) No 881/2002 — Freezing of a person’s funds and economic resources as a result of his inclusion in a list drawn up by a body of the United Nations — Sanctions Committee — Subsequent inclusion in Annex I to Regulation No 881/2002 — Action for annulment — Fundamental rights — Right to be heard, right to effective judicial review and right to respect for property)

29

2010/C 317/53

Case T-92/09: Order of the General Court of 5 October 2010 — Strategi Group v OHIM — RBI (STRATEGI) (Community trade mark — Opposition proceedings — Application for the Community word mark STRATEGI — Earlier national word mark Stratégies — Relative ground for refusal — Proof of use of the earlier trade mark — Article 43(2) of Regulation (EC) No 40/94 (now Article 42(2) of Regulation (EC) No 207/2009) and Rule 22 of Regulation (EC) No 2868/95))

29

2010/C 317/54

Case T-136/09: Judgment of the General Court of 7 October 2010 — Commission v Gal-Or (Arbitration clause — Contract for financial assistance concluded under a specific research and technological development programme in the field of non-nuclear energy — Failure to comply with the contract — Reimbursement of advance payments — Default interest — Default procedure)

30

2010/C 317/55

Case T-244/09: Judgment of the General Court of 7 October 2010 — Accenture Global Services v OHIM — Silver Creek Properties (ascensa) (Community trade mark — Opposition proceedings — Application for Community figurative mark acsensa — Earlier Community and national word and figurative marks ACCENTURE and accenture — Relative ground for refusal — No likelihood of confusion — No similarity of signs — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009) — Obligation to state reasons — Article 73 of Regulation No 40/94 (now Article 75 of Regulation No 207/2009))

30

2010/C 317/56

Case T-270/09: Judgment of the General Court of 30 September 2010 — PVS v OHIM — MeDiTA Medizinische Kurierdienst (medidata) (Community trade mark — Opposition proceedings — Application for Community figurative mark medidata — Earlier national word mark MeDiTA — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Similarity of the services — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))

31

2010/C 317/57

Case T-388/09: Judgment of the General Court of 28 September 2010 — Rosenruist v OHIM (Representation of two curves on a pocket) (Community trade mark — Application for Community figurative mark representing two curves on a pocket — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009)

31

2010/C 317/58

Case T-365/08: Order of the General Court of 27 September 2010 — Hidalgo v OHIM — Bodegas Hidalgo — La Gitana (HIDALGO) (Community trade mark — Annulment of registration of the national mark which was the subject-matter of the opposition — No need to adjudicate)

32

2010/C 317/59

Case T-498/09 P: Order of the General Court of 24 September 2010 — Kerstens v Commission (Appeal — Civil service — Officials — Promotion — 2005 promotion year — Award of priority points — Burden of proof — Rights of the defence — Appeal in part manifestly inadmissible and in part manifestly unfounded)

32

2010/C 317/60

Case T-400/10: Action brought on 12 September 2010 — Hamas v Council

32

2010/C 317/61

Case T-407/10: Action brought on 14 September 2010 — Republic of Hungary v European Commission

33

2010/C 317/62

Case T-413/10: Action brought on 15 September 2010 — Socitrel v Commission

34

2010/C 317/63

Case T-414/10: Action brought on 15 September 2010 — Companhia Previdente v Commission

35

2010/C 317/64

Case T-422/10: Action brought on 15 September 2010 — Emme v Commission

35

2010/C 317/65

Case T-423/10: Action brought on 16 September 2010 — Redaelli Tecna v Commission

36

2010/C 317/66

Case T-424/10: Action brought on 18 September 2010 — Dosenbach-Ochsner v OHIM — Sisma (Representation of a rectangle with elephants)

36

2010/C 317/67

Case T-425/10: Action brought on 21 September 2010 — Häfele v OHIM (Mixfront)

37

2010/C 317/68

Case T-426/10: Action brought on 16 September 2010 — Moreda-Riviere Trefilerías SA v Commission

37

2010/C 317/69

Case T-427/10: Action brought on 16 September 2010 — Trefilerías Quijano v Commission

38

2010/C 317/70

Case T-428/10: Action brought on 16 September 2010 — Trenzas y Cables de Acero v European Commission

38

2010/C 317/71

Case T-430/10: Action brought on 17 September 2010 — Magnesitas de Rubián and Others v Commission

39

2010/C 317/72

Case T-431/10: Action brought on 24 September 2010 — Nencini v Parliament

40

2010/C 317/73

Case T-432/10: Action brought on 17 September 2010 — Vivendi v Commission

40

2010/C 317/74

Case T-433/10 P: Appeal brought on 20 September 2010 by Allen and Others against the Order of the European Union Civil Service Tribunal made on 13 July 2010 in case Allen and Others v Commission, F-103/09

41

2010/C 317/75

Case T-436/10: Action brought on 15 September 2010 — Hit Groep BV v European Commission

41

2010/C 317/76

Case T-437/10: Action brought on 22 September 2010 — Gap SA granen & producten v Commission

43

2010/C 317/77

Case T-438/10: Action brought on 24 September 2010 — Forgital Italy v Council

43

2010/C 317/78

Case T-444/10: Action brought on 28 September 2010 — ESGE v OHIM — Kenwood Appliances Luxembourg (KMIX)

44

2010/C 317/79

Case T-445/10: Action brought on 28 September 2010 — HerkuPlast Kubern v OHIM — How (eco-pack)

45

2010/C 317/80

Case T-450/10 P: Appeal brought on 24 September 2010 by Luigi Marcuccio against the order of the Civil Service Tribunal delivered on 9 July 2010 in Case F-91/09, Marcuccio v Commission

45

2010/C 317/81

Case T-451/10: Action brought on 28 September 2010 — Fuchshuber Agrarhandel v Commission

46

European Union Civil Service Tribunal

2010/C 317/82

Case F-43/09: Judgment of the Civil Service Tribunal (First Chamber) of 30 September 2010 — van Heuckelom v European Police Office (Europol) (Civil Service — Staff Regulations of Europol — Article 29 — Advancement in step granted on the basis of staff reports — Plea of illegality of the decision establishing the policy for determining grades and steps — Respective powers of Europol’s Director and Management Board — Europol’s Director’s discretion — Limits)

47

2010/C 317/83

Case F-52/09: Judgment of the Civil Service Tribunal (First Chamber) of 14 September 2010 — Da Silva Pinto Branco v Court of Justice (Civil Service — Officials — Recruitment — Probationary official — Dismissal at the end of the probationary period — Rights of the defence — Evaluation of abilities — Judicial review)

47

2010/C 317/84

Case F-79/09: Judgment of the Civil Service Tribunal (First Chamber) of 14 September 2010 — AE v Commission (Civil Service — Officials — Social security — Occupational sickness and accident insurance — Article 73 of the Staff Regulations — Refusal to recognise the occupational origin of a disease — Hypersensitivity to electro-magnetic fields)

48

2010/C 317/85

Case F-85/09: Judgment of the Civil Service Tribunal (First Chamber) of 14 September 2010 — Rossi Ferreras v Commission (Civil Service — Officials — 2001/2002 Appraisal — Career Development Report — Compliance with an annulling judgment — Effects of the withdrawal of an act — Establishment of the objectives)

48

2010/C 317/86

Case F-2/10: Order of the Civil Service Tribunal (First Chamber) of 6 October 2010 — Marcuccio v Commission (Civil Service — Officials — Social security — Sickness insurance — Applications for payment of medical expenses — No act adversely affecting an official — Action manifestly inadmissible and manifestly lacking any foundation in law — Article 94 of the Rules of Procedure)

48

2010/C 317/87

Case F-71/10: Action brought on 30 August 2010 — Cantisani v Commission

49

2010/C 317/88

Case F-72/10: Action brought on 2 September 2010 — da Silva Tenreiro v Commission

49

2010/C 317/89

Case F-86/10: Action brought on 24 September 2010 — Dubus v Parliament

49

2010/C 317/90

Case F-88/10: Action brought on 27 September 2010 — Van Asbroeck v Commission

50

2010/C 317/91

Joined Cases F-8/05 and F-10/05: Order of the Civil Service Tribunal of 16 September 2010 — Block and Others and Knaul and Others v Commission

50

2010/C 317/92

Case F-45/06: Order of the Civil Service Tribunal of 16 September 2010 — Avendano and Others v Commission

50

2010/C 317/93

Case F-70/06: Order of the Civil Service Tribunal of 16 September 2010 — Baele and Others v Commission

50

2010/C 317/94

Case F-103/06: Order of the Civil Service Tribunal of 16 September 2010 — Blank and Others v Commission

51

2010/C 317/95

Case F-90/09: Order of the Civil Service Tribunal of 16 September 2010 — Ernotte v Commission

51

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

EN

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

| 20.11.2010 | EN | Official Journal of the European Union | C 317/1 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/1

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2010/C 317/01

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

OJ C 301, 6.11.2010

Past publications

OJ C 288, 23.10.2010

OJ C 274, 9.10.2010

OJ C 260, 25.9.2010

OJ C 246, 11.9.2010

OJ C 234, 28.8.2010

OJ C 221, 14.8.2010

These texts are available on:

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

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Court of Justice

| 20.11.2010 | EN | Official Journal of the European Union | C 317/2 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/2

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Taking of the oath by a new Member of the Court of Justice

2010/C 317/02

Following his appointment as Judge at the Court of Justice for the period from 7 October 2010 to 6 October 2012 by decision of the Representatives of the Governments of the Member States of the European Union of 29 September 2010, (1) Mr Jarašiūnas took the oath before the Court on 6 October 2010.

---

(1)  OJ L 261 of 5.10.2010, p. 5.

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| 20.11.2010 | EN | Official Journal of the European Union | C 317/2 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/2

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Election of Presidents of Chambers

2010/C 317/03

At a meeting on 5 October 2010, the Judges of the Court of Justice, pursuant to the second subparagraph of Article 10(1) of the Rules of Procedure, elected Mr Kasel, Mr Arabadjiev, Mr Šváby and Sir Konrad Schiemann as Presidents of the Fifth, Sixth, Seventh and Eighth Chambers of three Judges respectively, for a period of one year expiring on 6 October 2011.

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| 20.11.2010 | EN | Official Journal of the European Union | C 317/2 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/2

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Assignment of Judges to the Chambers

2010/C 317/04

At its meeting on 12 October 2010, the Court of Justice decided to assign Mr Jarašiūnas to the Fourth and Eighth Chambers.

Further to the election of the Presidents of Chambers of three Judges and the assignment of Mr Jarašiūnas to the Fourth and Eighth Chambers, the Fourth, Fifth, Sixth, Seventh and Eighth Chambers are thus composed as follows:

| | Fourth Chamber | Mr Bonichot, President, |
| --- | --- | --- |

Fourth Chamber

Mr Bonichot, President,

| | Sir Konrad Schiemann, Mr Bay Larsen, Ms Toader, Ms Prechal and Mr Jarašiūnas, Judges |
| --- | --- |

Sir Konrad Schiemann, Mr Bay Larsen, Ms Toader, Ms Prechal and Mr Jarašiūnas, Judges

| | Fifth Chamber | Mr Kasel, President, |
| --- | --- | --- |

Fifth Chamber

Mr Kasel, President,

| | Mr Borg Barthet, Mr Ilešič, Mr Levits, Mr Safjan and Ms Berger, Judges |
| --- | --- |

Mr Borg Barthet, Mr Ilešič, Mr Levits, Mr Safjan and Ms Berger, Judges

| | Sixth Chamber | Mr Arabadjiev, President, |
| --- | --- | --- |

Sixth Chamber

Mr Arabadjiev, President,

| | Mr Rosas, Mr Lõhmus, Mr Ó Caoimh and Ms Lindh, Judges |
| --- | --- |

Mr Rosas, Mr Lõhmus, Mr Ó Caoimh and Ms Lindh, Judges

| | Seventh Chamber | Mr Šváby, President, |
| --- | --- | --- |

Seventh Chamber

Mr Šváby, President,

| | Ms Silva de Lapuerta, Mr Juhász, Mr Arestis, Mr Malenovský and Mr von Danwitz, Judges |
| --- | --- |

Ms Silva de Lapuerta, Mr Juhász, Mr Arestis, Mr Malenovský and Mr von Danwitz, Judges

| | Eighth Chamber | Sir Konrad Schiemann, President, |
| --- | --- | --- |

Eighth Chamber

Sir Konrad Schiemann, President,

| | Mr Bay Larsen, Ms Toader, Ms Prechal and Mr Jarašiūnas, Judges |
| --- | --- |

Mr Bay Larsen, Ms Toader, Ms Prechal and Mr Jarašiūnas, Judges

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| 20.11.2010 | EN | Official Journal of the European Union | C 317/3 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/3

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Appointment of the First Advocate General

2010/C 317/05

The Court of Justice appointed Mr Bot as First Advocate General for a period of one year expiring on 6 October 2011, pursuant to the third subparagraph of Article 10(1) of the Rules of Procedure.

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| 20.11.2010 | EN | Official Journal of the European Union | C 317/3 |
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20.11.2010

EN

Official Journal of the European Union

C 317/3

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Lists for the purposes of determining the composition of the formations of the Court

2010/C 317/06

At its meeting on 12 October 2010, the Court drew up the list referred to in Article 11b(2) of the Rules of Procedure for the purposes of determining the composition of the Grand Chamber as follows:

| | Mr Rosas |
| --- | --- |

Mr Rosas

| | Mr Jarašiūnas |
| --- | --- |

Mr Jarašiūnas

| | Ms Silva de Lapuerta |
| --- | --- |

Ms Silva de Lapuerta

| | Ms Prechal |
| --- | --- |

Ms Prechal

| | Sir Konrad Schiemann |
| --- | --- |

Sir Konrad Schiemann

| | Ms Berger |
| --- | --- |

Ms Berger

| | Mr Juhász |
| --- | --- |

Mr Juhász

| | Mr Šváby |
| --- | --- |

Mr Šváby

| | Mr Arestis |
| --- | --- |

Mr Arestis

| | Mr Safjan |
| --- | --- |

Mr Safjan

| | Mr Borg Barthet |
| --- | --- |

Mr Borg Barthet

| | Mr Kasel |
| --- | --- |

Mr Kasel

| | Mr Ilešič |
| --- | --- |

Mr Ilešič

| | Ms Toader |
| --- | --- |

Ms Toader

| | Mr Malenovský |
| --- | --- |

Mr Malenovský

| | Mr Arabadjiev |
| --- | --- |

Mr Arabadjiev

| | Mr Lõhmus |
| --- | --- |

Mr Lõhmus

| | Mr von Danwitz |
| --- | --- |

Mr von Danwitz

| | Mr Levits |
| --- | --- |

Mr Levits

| | Ms Lindh |
| --- | --- |

Ms Lindh

| | Mr Ó Caoimh |
| --- | --- |

Mr Ó Caoimh

| | Mr Bay Larsen |
| --- | --- |

Mr Bay Larsen

At its meeting on 12 October 2010, the Court drew up the list referred to in the first subparagraph of Article 11c(2) of the Rules of Procedure for the purposes of determining the composition of the Fourth Chamber of five Judges as follows:

Fourth Chamber

| | Sir Konrad Schiemann |
| --- | --- |

Sir Konrad Schiemann

| | Mr Jarašiūnas |
| --- | --- |

Mr Jarašiūnas

| | Mr Bay Larsen |
| --- | --- |

Mr Bay Larsen

| | Ms Prechal |
| --- | --- |

Ms Prechal

| | Ms Toader |
| --- | --- |

Ms Toader

At its meeting on 12 October 2010, the Court drew up the lists referred to in the second subparagraph of Article 11c(2) of the Rules of Procedure for the purposes of determining the composition of the Chambers of three Judges as follows:

Fifth Chamber

| | Mr Borg Barthet |
| --- | --- |

Mr Borg Barthet

| | Mr Ilešič |
| --- | --- |

Mr Ilešič

| | Mr Levits |
| --- | --- |

Mr Levits

| | Mr Safjan |
| --- | --- |

Mr Safjan

| | Ms Berger |
| --- | --- |

Ms Berger

Sixth Chamber

| | Mr Rosas |
| --- | --- |

Mr Rosas

| | Mr Lõhmus |
| --- | --- |

Mr Lõhmus

| | Mr Ó Caoimh |
| --- | --- |

Mr Ó Caoimh

| | Ms Lindh |
| --- | --- |

Ms Lindh

Seventh Chamber

| | Ms Silva de Lapuerta |
| --- | --- |

Ms Silva de Lapuerta

| | Mr Juhász |
| --- | --- |

Mr Juhász

| | Mr Arestis |
| --- | --- |

Mr Arestis

| | Mr Malenovský |
| --- | --- |

Mr Malenovský

| | Mr von Danwitz |
| --- | --- |

Mr von Danwitz

Eighth Chamber

| | Mr Bay Larsen |
| --- | --- |

Mr Bay Larsen

| | Ms Toader |
| --- | --- |

Ms Toader

| | Ms Prechal |
| --- | --- |

Ms Prechal

| | Mr Jarašiūnas |
| --- | --- |

Mr Jarašiūnas

---

| 20.11.2010 | EN | Official Journal of the European Union | C 317/4 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/4

---

Designation of the Chamber responsible for cases of the kind referred to in Article 104b of the Rules of Procedure of the Court of Justice

2010/C 317/07

At its meeting on 28 September 2010, the Court of Justice designated the First Chamber of the Court as the Chamber which, in accordance with the second subparagraph of Article 9(1) of the Rules of Procedure, is responsible for cases of the kind referred to in Article 104b of the Rules of Procedure, for a period of one year expiring on 6 October 2011.

---

| 20.11.2010 | EN | Official Journal of the European Union | C 317/4 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/4

---

Appointment of the Registrar

2010/C 317/08

By letter dated 11 June 2010, Mr Roger Grass, Registrar of the Court of Justice of the European Union, requested that his term of office come to an end on 7 October 2010.

The Court of Justice, at its General Meeting on 14 September 2010, appointed as registrar Mr Alfredo Calot Escobar, in accordance with Article 12 of the Rules of Procedure, for the period from 7 October 2010 to 6 October 2016.

Mr Calot Escobar took the oath provided for in Article 10 of the Statute of the Court of Justice of the European Union at the formal sitting on 6 October 2010.

---

General Court

| 20.11.2010 | EN | Official Journal of the European Union | C 317/5 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/5

---

Taking of the oath by a new Member of the General Court

2010/C 317/09

Following his appointment as Judge at the General Court of the European Union for the period from 1 September 2010 to 31 August 2016 by decision of the Representatives of the Governments of the Member States of the European Union of 8 July 2010, (1) Mr van der Woude took the oath before the Court of Justice on 13 September 2010.

---

(1)  OJ L 186 of 20.7.2010.

---

| 20.11.2010 | EN | Official Journal of the European Union | C 317/5 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/5

---

Taking of the oath by a new Member of the General Court

2010/C 317/09

Following his appointment as Judge at the General Court of the European Union for the period from 1 September 2010 to 31 August 2016 by decision of the Representatives of the Governments of the Member States of the European Union of 8 July 2010, (1) Mr van der Woude took the oath before the Court of Justice on 13 September 2010.

---

(1)  OJ L 186 of 20.7.2010.

---

| 20.11.2010 | EN | Official Journal of the European Union | C 317/5 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/5

---

Assignment of Mr Gratsias to Chambers

2010/C 317/11

On 26 October 2010 the Plenary Meeting of the General Court decided, further to Mr Gratsias’ taking up of his duties as Judge, to amend as follows the decision of the Plenary Meeting of 20 September 2010 on the assignment of Judges to Chambers.

For the period from 26 October 2010 until the date of the taking up of his duties by the Bulgarian Judge, the Judges will be assigned as follows:

| | To the First Chamber (Extended Composition), sitting with five Judges:


  Mr Azizi, President of the Chamber, Ms Cremona, Ms Labucka, Mr Frimodt Nielsen and Mr Gratsias, Judges. |
| --- | --- |

To the First Chamber (Extended Composition), sitting with five Judges:

Mr Azizi, President of the Chamber, Ms Cremona, Ms Labucka, Mr Frimodt Nielsen and Mr Gratsias, Judges.

| | To the Third Chamber (Extended Composition), sitting with five Judges:


  Mr Czúcz, President of the Chamber, Ms Cremona, Ms Labucka, Mr Frimodt Nielsen and Mr Gratsias, Judges. |
| --- | --- |

To the Third Chamber (Extended Composition), sitting with five Judges:

Mr Czúcz, President of the Chamber, Ms Cremona, Ms Labucka, Mr Frimodt Nielsen and Mr Gratsias, Judges.

| | To the Third Chamber, sitting with three Judges: | Mr Czúcz, President of the Chamber; |
| --- | --- | --- |

To the Third Chamber, sitting with three Judges:

Mr Czúcz, President of the Chamber;

| | Ms Labucka, Judge; |
| --- | --- |

Ms Labucka, Judge;

| | Mr Gratsias, Judge. |
| --- | --- |

Mr Gratsias, Judge.

---

V Announcements

COURT PROCEEDINGS

Court of Justice

| 20.11.2010 | EN | Official Journal of the European Union | C 317/6 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/6

---

Judgment of the Court (Grand Chamber) of 21 September 2010 — Kingdom of Sweden v Association de la presse internationale ASBL (API) and European Commission (C-514/07), Association de la presse internationale ASBL (API) v European Commission (C-528/07), European Commission v Association de la presse internationale ASBL (API) (C-532/07)

(Joined Cases C-514/07 P, C-528/07 P and C-532/07 P) (1)

(Appeals - Right of access to documents of the institutions - Regulation (EC) No 1049/2001 - Second and third indents of Article 4(2) - Pleadings lodged by the Commission in proceedings before the Court of Justice and the General Court - Decision of the Commission refusing access)

2010/C 317/12

Language of the case: English

Parties

(C-514/07)

Appellant: Kingdom of Sweden (represented by: S. Johannesson, A. Falk, K. Wistrand and K. Petkovska, Agents)

Other parties to the proceedings: Association de la presse internationale ASBL (API), (represented by: S. Völcker and Heithecker, Rechtsanwälte, F. Louis, avocat, C. O’Daly, Solicitor), European Commission (represented by: C. Docksey, V. Kreuschitz and P. Aalto, acting as Agents)

Intervener in support of the applicant: Kingdom of Denmark (represented by: B. Weis Fogh, Agent), Republic of Finland (represented by: J. Heliskoski, Agent)

(C-528/07)

Appellant: Association de la presse internationale ASBL (API) (represented by: S. Völcker, Rechtsanwalt, F. Louis, avocat, C. O’Daly, Solicitor)

Other party to the proceedings: European Commission (represented by: C. Docksey, V. Kreuschitz and P. Aalto, acting as Agents)

Intervener in support of the defendant: United Kingdom of Great Britain and Northern Ireland (represented by: E. Jenkinson and S. Behzadi-Spencer, Agents and by J. Coppel, Barrister)

(C-532/07)

Appellant: European Commission (represented by: C. Docksey, V. Kreuschitz and P. Aalto, acting as Agents)

Other party to the proceedings: Association de la presse internationale ASBL (API) (represented by: S. Völcker, Rechtsanwalt, F. Louis, avocat, C. O’Daly, Solicitor)

Intervener in support of the applicant: United Kingdom of Great Britain and Northern Ireland (represented by: E. Jenkinson and S. Behzadi-Spencer, Agents and J. Coppel, Barrister)

Re:

Appeal lodged against the judgment of the Court of First Instance (Grand Chamber) of 12 September 2007 in Case T-36/04 Association de la presse internationale ASBL (API) v Commission of the European Communities by which the Court of First Instance annulled in part the Commission’s decision of 20 November 2003 rejecting an application made by the applicant for access to the pleadings lodged by the Commission in certain cases pending before the Court of Justice and the Court of First Instance

Operative part of the judgment

The Court:

| 1. | Dismisses the appeals; |
| --- | --- |

1.

Dismisses the appeals;

| 2. | Orders the Kingdom of Sweden to bear its own costs and to pay those incurred by the European Commission in connection with the appeal in Case C-514/07 P; |
| --- | --- |

2.

Orders the Kingdom of Sweden to bear its own costs and to pay those incurred by the European Commission in connection with the appeal in Case C-514/07 P;

| 3. | Orders the Association de la presse internationale ASBL (API) to bear its own costs and to pay those incurred by the European Commission in connection with the appeal in Case C-528/07 P; |
| --- | --- |

3.

Orders the Association de la presse internationale ASBL (API) to bear its own costs and to pay those incurred by the European Commission in connection with the appeal in Case C-528/07 P;

| 4. | Orders the European Commission to bear its own costs and to pay those incurred by the Association de la presse internationale ASBL (API) in connection with the appeal in Case C-532/07 P; |
| --- | --- |

4.

Orders the European Commission to bear its own costs and to pay those incurred by the Association de la presse internationale ASBL (API) in connection with the appeal in Case C-532/07 P;

| 5. | Orders the Kingdom of Denmark, the Republic of Finland and the United Kingdom of Great Britain and Northern Ireland to bear their own costs in connection with the appeals. |
| --- | --- |

5.

Orders the Kingdom of Denmark, the Republic of Finland and the United Kingdom of Great Britain and Northern Ireland to bear their own costs in connection with the appeals.

---

(1)  OJ C 51, 23.2.2008.

OJ C 22, 26.1.2008.

OJ C 32, 7.2.2009.

---

| 20.11.2010 | EN | Official Journal of the European Union | C 317/7 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/7

---

Judgment of the Court (Third Chamber) of 30 September 2010 (reference for a preliminary ruling from the VAT and Duties Tribunal, London Tribunal Centre (United Kingdom)) — EMI Group Ltd v The Commissioners for Her Majesty’s Revenue and Customs

(Case C-581/08) (1)

(Sixth VAT Directive - Second sentence of Article 5(6) - Concept of ‘samples’ - Concept of ‘gifts of small value’ - Recorded music - Distribution free of charge for promotional purposes)

2010/C 317/13

Language of the case: English

Referring court

VAT and Duties Tribunal, London Tribunal Centre

Parties to the main proceedings

Applicant: EMI Group Ltd

Defendant: The Commissioners for Her Majesty’s Revenue and Customs

Re:

Reference for a preliminary ruling — VAT and Duties Tribunal, London — Interpretation of Article 5(6) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — Applications of goods for the giving of samples or the making of gifts of small value for the purposes of the taxable person’s business — Concept of ‘sample’ — Essential characteristics — Music recordings in the form of CDs provided free for promotional purposes

Operative part of the judgment

| 1. | A ‘sample’, within the meaning of the second sentence of Article 5(6) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, is a specimen of a product which is intended to promote the sales of that product and which allows the characteristics and qualities of that product to be assessed without resulting in final consumption, other than where final consumption is inherent in such promotional transactions. That term cannot be limited, in a general way, by national legislation to specimens presented in a form which is not available for sale or to the first of a series of identical specimens given by a taxable person to the same recipient, unless that legislation allows account to be taken of the nature of the product represented and of the specific business context of each transaction in which those specimens are distributed. |
| --- | --- |

1.

A ‘sample’, within the meaning of the second sentence of Article 5(6) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, is a specimen of a product which is intended to promote the sales of that product and which allows the characteristics and qualities of that product to be assessed without resulting in final consumption, other than where final consumption is inherent in such promotional transactions. That term cannot be limited, in a general way, by national legislation to specimens presented in a form which is not available for sale or to the first of a series of identical specimens given by a taxable person to the same recipient, unless that legislation allows account to be taken of the nature of the product represented and of the specific business context of each transaction in which those specimens are distributed.

| 2. | The concept of ‘gifts of small value’, within the meaning of the second sentence of Article 5(6) of Sixth Directive 77/388, must be interpreted as not precluding national legislation which fixes a monetary ceiling of the order of that established by the legislation at issue in the main proceedings, namely GBP 50, for gifts made to the same person in the course of a 12-month period or forming part of a series or succession of gifts. |
| --- | --- |

2.

The concept of ‘gifts of small value’, within the meaning of the second sentence of Article 5(6) of Sixth Directive 77/388, must be interpreted as not precluding national legislation which fixes a monetary ceiling of the order of that established by the legislation at issue in the main proceedings, namely GBP 50, for gifts made to the same person in the course of a 12-month period or forming part of a series or succession of gifts.

| 3. | The second sentence of Article 5(6) of Sixth Directive 77/388 precludes national legislation which establishes a presumption that goods constituting ‘gifts of small value’ within the meaning that provision, distributed by a taxable person to different individuals having the same employer, are to be treated as having been made to the same person. |
| --- | --- |

3.

The second sentence of Article 5(6) of Sixth Directive 77/388 precludes national legislation which establishes a presumption that goods constituting ‘gifts of small value’ within the meaning that provision, distributed by a taxable person to different individuals having the same employer, are to be treated as having been made to the same person.

| 4. | The tax status of the recipient of samples has no bearing on the answers given to the other questions. |
| --- | --- |

4.

The tax status of the recipient of samples has no bearing on the answers given to the other questions.

---

(1)  OJ C 55, 7.3.2009.

---

| 20.11.2010 | EN | Official Journal of the European Union | C 317/8 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/8

---

Judgment of the Court (Second Chamber) of 30 September 2010 (reference for a preliminary ruling from the Tribunal Superior de Justicia de Galicia — Spain) — Pedro Manuel Roca Álvarez v Sesa Start España ETT SA

(Case C-104/09) (1)

(Social policy - Equal treatment for male and female workers - Directive 76/207/EEC - Articles 2 and 5 - Right to leave for employed mothers - Possible use by an employed mother or an employed father - Mother self-employed - Exclusion of the right to leave for an employed father)

2010/C 317/14

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia de Galicia

Parties to the main proceedings

Applicant: Pedro Manuel Roca Álvarez

Defendant: Sesa Start España ETT SA

Re:

Reference for a preliminary ruling — Tribunal Superior de Justicia de Galicia — Interpretation of Article 13 EC and Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (OJ 1976 L 39, p. 40), as amended by Directive 2002/73 (OJ 2002 L 269, p. 25) — National legislation conferring on mothers who are employees a right to leave for feeding an unweaned child, which may be exercised by the mother or the father in the form of a reduction in working time — Exclusion where the mother is self-employed and the father is an employee — Principle of equal treatment

Operative part of the judgment

Article 2(1), (3) and (4) and Article 5 of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, must be interpreted as precluding a national measure such as the one at issue in the main proceedings, which provides that female workers who are mothers and whose status is that of an employed person are entitled, in various ways, to take leave during the first nine months following the child’s birth, whereas male workers who are fathers with that same status are not entitled to the same leave unless the child’s mother is also an employed person.

---

(1)  OJ C 141, 20.06.2009.

---

| 20.11.2010 | EN | Official Journal of the European Union | C 317/8 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/8

---

Judgment of the Court (Third Chamber) of 30 September 2010 — European Commission v Kingdom of Belgium

(Case C-132/09) (1)

(Failure of a Member State to fulfil obligations - Jurisdiction of the Court - Statute of the European Schools - Establishment Agreement of 1962 - Conventions of 1957 and 1994 - Arbitration clause - Article 10 EC - Financing of the European Schools - Costs of furniture and teaching equipment)

2010/C 317/15

Language of the case: French

Parties

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

Defendant: Kingdom of Belgium (represented by: J.-C. Halleux, acting as Agent)

Re:

Failure of a Member State to fulfil obligations — Failure to have regard to the third paragraph of Article 1 of the Agreement signed on 12 October 1962 between the Board of Governors of the European Schools and the Kingdom of Belgium (‘the Establishment Agreement’) and of Article 10 EC — Refusal by the Belgian authorities to pay the expenses for teaching equipment and materials for the European Schools — Justified on the basis of the internal legal order — Absence of a succession of established acts or declarations of the parties, within the meaning of Article 31(3)(a) and (b) of the Vienna Convention on the Law of Treaties, calling into question the Establishment Agreement

Operative part of the judgment

The Court:

| 1. | Declares that the Court of Justice of the European Union does not have jurisdiction to rule on the action of the European Commission, brought on the basis of Article 226 EC, on the ground that the Kingdom of Belgium has failed to fulfil its obligations under the Establishment Agreement concluded on 12 October 1962 between the Board of Governors of the European School and the Government of the Kingdom of Belgium, read in conjunction with Article 10 EC; |
| --- | --- |

1.

Declares that the Court of Justice of the European Union does not have jurisdiction to rule on the action of the European Commission, brought on the basis of Article 226 EC, on the ground that the Kingdom of Belgium has failed to fulfil its obligations under the Establishment Agreement concluded on 12 October 1962 between the Board of Governors of the European School and the Government of the Kingdom of Belgium, read in conjunction with Article 10 EC;

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

2.

Orders the European Commission to pay the costs.

---

(1)  OJ C 153, 04.07.2009.

---

| 20.11.2010 | EN | Official Journal of the European Union | C 317/9 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/9

---

Judgment of the Court (Fourth Chamber) of 30 September 2010 (reference for a preliminary ruling from the Fövárosi Bíróság — Republic of Hungary) — József Uzonyi v Mezőgazdasági és Vidékfejlesztési Hivatal Központi Szerve

(Case C-133/09) (1)

(Agriculture - Common agricultural policy - Support schemes - Regulation (EC) No 1782/2003 - Article 143ba - Separate sugar payment - Grant - Decision of the new Member States - Conditions - Objective and non-discriminatory criteria)

2010/C 317/16

Language of the case: Hungarian

Referring court

Fövárosi Bíróság

Parties to the main proceedings

Applicant: József Uzonyi

Defendant: Mezőgazdasági és Vidékfejlesztési Hivatal Központi Szerve

Re:

Reference for a preliminary ruling — Fővárosi Bíróság — Interpretation of Article 143ba(1) of Council Regulation (EC) No 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers and amending Regulations (EEC) No 2019/93, (EC) No 1452/2001, (EC) No 1453/2001, (EC) No 1454/2001, (EC) 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, (EC) No 1673/2000, (EEC) No 2358/71 and (EC) No 2529/2001 — Obligation on Member States to grant a separate sugar payment on the basis of objective and non-discriminatory criteria — National legislation reserving that payment to producers holding a supply contract for sugar beet concluded directly with a sugar refinery

Operative part of the judgment

Article 143ba(1) of Council Regulation (EC) No 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers and amending Regulations (EEC) No 2019/93, (EC) No 1452/2001, (EC) No 1453/2001, (EC) No 1454/2001, (EC) No 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, (EC) No 1673/2000, (EEC) No 2358/71 and (EC) No 2529/2001, as amended by Council Regulation (EC) No 319/2006 of 20 February 2006, must be interpreted as precluding national provisions such as those at issue in the main proceedings which exclude from entitlement to a separate sugar payment a farmer not having delivery rights who delivers sugar beet to a sugar manufacturer through an integrátor which does have such rights, although those provisions grant a separate payment to a farmer having delivery rights who delivers sugar beet direct to a sugar manufacturer, and to a farmer not having delivery rights who is a member of a producer group which does have delivery rights and who delivers sugar beet to a sugar manufacturer through that group.

---

(1)  OJ C 153, 4.7.2009.

---

| 20.11.2010 | EN | Official Journal of the European Union | C 317/9 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/9

---

Judgment of the Court (Third Chamber) of 30 September 2010 (reference for a preliminary ruling from the Oberster Gerichtshof — Austria) — Stadt Graz v Strabag AG, Teerag-Asdag AG, Bauunternehmung Granit GesmbH

(Case C-314/09) (1)

(Directive 89/665/EEC - Public procurement - Review procedures - Actions for damages - Unlawful award - National rule on liability based on a presumption that the contracting authority is at fault)

2010/C 317/17

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Applicant: Stadt Graz

Defendants: Strabag AG, Teerag-Asdag AG, Bauunternehmung Granit GesmbH

In the presence of: Land Steiermark

Re:

Reference for a preliminary ruling — Oberster Gerichtshof — Interpretation of Articles 1(1) and 2(1)(c) and (7) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ 1989 L 395, p. 33) — Award of a public contract in accordance with a decision of the appeal court which binds the contracting authority — Unlawfulness of the award of the public contract in consequence of an infringement of national legislation — Necessary conditions for an action for damages and interest — Principle of effectiveness

Operative part of the judgment

Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Council Directive 92/50/EEC of 18 June 1992, must be interpreted as precluding national legislation which makes the right to damages for an infringement of public procurement law by a contracting authority conditional on that infringement being culpable, including where the application of that legislation rests on a presumption that the contracting authority is at fault and on the fact that the latter cannot rely on a lack of individual abilities, hence on the defence that it cannot be held accountable for the alleged infringement.

---

(1)  OJ C 267, 07.11.2009.

---

| 20.11.2010 | EN | Official Journal of the European Union | C 317/10 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/10

---

Judgment of the Court (Third Chamber) of 30 September 2010 (reference for a preliminary ruling from the Baranya Megyei Bíróság — Republic of Hungary) — Uszodaépítő kft v APEH Központi Hivatal Hatósági Főosztály

(Case C-392/09) (1)

(Sixth VAT Directive - Directive 2006/112/EC - Right to deduct input tax - New national legislation - Requirements as to the content of an invoice - Retroactive application - Loss of the right to deduct)

2010/C 317/18

Language of the case: Hungarian

Referring court

Baranya Megyei Bíróság

Parties to the main proceedings

Applicant: Uszodaépítő kft

Defendant: APEH Központi Hivatal Hatósági Főosztály

Re:

Interpretation of Articles 17 and 20 of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1), and the general principles of Community law — New national legislation on VAT giving taxable persons the right to opt for its application, even retroactively, to cases in progress on the date of its entry into force — Application with retroactive effect, failing which the right to deduct is lost, of the new provisions regarding the requirements as to the contents of the invoice

Operative part of the judgment

Articles 167, 168 and 178 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as precluding the retroactive application of national legislation which, in the context of a reverse charge regime, makes the deduction of value added tax relating to construction works conditional upon the amendment of invoices for those services and the submission of a supplementary, amending tax declaration, while the tax authority concerned has all the information necessary to establish that the taxable person is, as the recipient of the supply of services at issue, liable to value added tax, and to ascertain the amount of tax deductible.

---

(1)  OJ C 11, 16.1.2010.

---

| 20.11.2010 | EN | Official Journal of the European Union | C 317/10 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/10

---

Judgment of the Court (Seventh Chamber) of 30 September 2010 (reference for a preliminary ruling from the Naczelny Sąd Administracyjny — Poland) — Oasis East sp. z o.o. v Minister Finansów

(Case C-395/09) (1)

(Sixth VAT Directive - Directive 2006/112/EC - Accession of a new Member State - Right to deduct input tax - National legislation excluding the right to deduct tax on the provision of certain services - Commercial partners established in a territory classified as a ‘tax haven’ - Option for Member States to retain rules excluding the right to deduct at the time when the Sixth VAT Directive entered into force)

2010/C 317/19

Language of the case: Polish

Referring court

Naczelny Sąd Administracyjny

Parties to the main proceedings

Applicant: Oasis East sp. z o.o.

Defendant: Minister Finansów

Re:

Reference for a preliminary ruling — Naczelny Sąd Administracyjny — Interpretation of Article 17(6) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) and of Article 176 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — National legislation, already in force prior to accession, which excluded a right to a reduction of tax relating to the provision of services in respect of which payment is made in favour of a person having its place of residence, registered office or central management in a territory regarded as being a ‘tax haven’

Operative part of the judgment

Article 17(6) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended by Council Directive 95/7/EC of 10 April 1995, the provisions of which have, in essence, been reproduced in Article 176 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, must be construed as not authorising the retention of national legislation, applicable when Sixth Directive 77/388 entered into force in the Member State concerned, which excludes in general the right to deduct input value added tax paid at the time of the purchase of imported services, the price of which is directly or indirectly paid to a person established in a State or territory classified as a ‘tax haven’ by that national legislation.

---

(1)  OJ C 312, 19.12.2009.

---

| 20.11.2010 | EN | Official Journal of the European Union | C 317/11 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/11

---

Judgment of the Court (Fifth Chamber) of 30 September 2010 — Evets Corp. v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-479/09 P) (1)

(Appeal - Community trade mark - Word mark DANELECTRO - Figurative mark QWIK TUNE - Request for renewal of registration of the trade mark - Application for restitutio in integrum - Failure to observe the time-limit for submitting the request for renewal of registration of the trade mark)

2010/C 317/20

Language of the case: English

Parties

Appellant: Evets Corp. (represented by: S. Ryan, Solicitor)

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

Re:

Appeal against the judgment of the Court of First Instance (First Chamber) of 23 September 2009 in Joined Cases T-20/08 and T-21/08 Evets v OHIM, by which that Court dismissed an action for annulment of the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 5 November 2007 in Case R 603/2007-4 dismissing the appeal against the decision of the Administration of Trade Marks and Legal Division and declaring that the application for restitutio in integrum filed by the appellant with a view to having its rights regarding the renewal of the word mark ‘DANELECTRO’ re-established was deemed not to have been filed on account of lateness — Failure to observe the time-limit for submitting the request for renewal of the trade marks

Operative part of the judgment

The Court:

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

1.

Dismisses the appeal;

| 2. | Orders Evets Corp. to pay the costs. |
| --- | --- |

2.

Orders Evets Corp. to pay the costs.

---

(1)  OJ C 24, 30.01.2010.

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| 20.11.2010 | EN | Official Journal of the European Union | C 317/11 |
| --- | --- | --- | --- |

20.11.2010

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Official Journal of the European Union

C 317/11

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Judgment of the Court (Fifth Chamber) of 30 September 2010 — European Commission v Czech Republic

(Case C-481/09) (1)

(Failure of a Member State to fulfil its obligations - Environment - Directive 2006/7/EC - Bathing water quality - Failure to transpose within the prescribed period)

2010/C 317/21

Language of the case: Czech

Parties

Applicant: European Commission (represented by: S. Pardo Quintillán and M. Thomannová-Körnerová, acting as Agents)

Defendant: Czech Republic (represented by: M. Smolek and J. Jirkalová, acting as Agents)

Re:

Failure of a Member State to fulfil its obligations — Failure to adopt or communicate within the prescribed period the measures necessary to comply with Directive 2006/7/EC of the European Parliament and of the Council of 15 February 2006 concerning the management of bathing water quality and repealing Directive 76/160/EEC, (OJ 2006 L 64, p. 37)

Operative part of the judgment

The Court:

| 1. | Declares that by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2006/7/EC of the European Parliament and of the Council of 15 February 2006 concerning the management of bathing water quality and repealing Directive 76/160/EEC, the Czech Republic has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2006/7/EC of the European Parliament and of the Council of 15 February 2006 concerning the management of bathing water quality and repealing Directive 76/160/EEC, the Czech Republic has failed to fulfil its obligations under that directive;

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

2.

Orders Czech Republic to pay the costs.

---

(1)  OJ C 24, 30.01.2010.

---

| 20.11.2010 | EN | Official Journal of the European Union | C 317/12 |
| --- | --- | --- | --- |

20.11.2010

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Official Journal of the European Union

C 317/12

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Judgment of the Court (Sixth Chamber) of 23 September 2010 — European Commission v Hellenic Republic

(Case C-24/10) (1)

(Failure of a Member State to fulfil its obligations - Directive 2006/46/EC - Company law - Annual accounts and consolidated accounts of companies - Failure to transpose within the prescribed period)

2010/C 317/22

Language of the case: Greek

Parties

Applicant: European Commission (represented by: M. Karanasou Apostolopoulou and G. Braun, acting as Agents)

Defendant: Hellenic Republic (represented by: N. Dafniou, acting as Agent)

Re:

Failure of a Member State to fulfil its obligations — Failure to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Directive 2006/46/EC of the European Parliament and of the Council of 14 June 2006 amending Council Directives 78/660/EEC on the annual accounts of certain types of companies, 83/349/EEC on consolidated accounts, 86/635/EEC on the annual accounts and consolidated accounts of banks and other financial institutions and 91/674/EEC on the annual accounts and consolidated accounts of insurance undertakings (OJ 2006 L 224, p. 1)

Operative part of the judgment

The Court:

| 1. | Declares that by not adopting within the prescribed period the laws, regulations and administrative provisions necessary to comply with Directive 2006/46/EC of the European Parliament and of the Council of 14 June 2006 amending Council Directives 78/660/EEC on the annual accounts of certain types of companies, 83/349/EEC on consolidated accounts, 86/635/EEC on the annual accounts and consolidated accounts of banks and other financial institutions and 91/674/EEC on the annual accounts and consolidated accounts of insurance undertakings, the Hellenic Republic has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that by not adopting within the prescribed period the laws, regulations and administrative provisions necessary to comply with Directive 2006/46/EC of the European Parliament and of the Council of 14 June 2006 amending Council Directives 78/660/EEC on the annual accounts of certain types of companies, 83/349/EEC on consolidated accounts, 86/635/EEC on the annual accounts and consolidated accounts of banks and other financial institutions and 91/674/EEC on the annual accounts and consolidated accounts of insurance undertakings, the Hellenic Republic has failed to fulfil its obligations under that directive;

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

2.

Orders the Hellenic Republic to pay the costs.

---

(1)  OJ C 63, 13.03.2010.

---

| 20.11.2010 | EN | Official Journal of the European Union | C 317/12 |
| --- | --- | --- | --- |

20.11.2010

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Official Journal of the European Union

C 317/12

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Judgment of the Court (Seventh Chamber) of 30 September 2010 — European Commission v Kingdom of Belgium

(Case C-36/10) (1)

(Failure of a Member State to fulfil its obligations - Directives 96/82/EC and 2003/105/EC - Control of major-accident hazards involving dangerous substances - Second subparagraph of Article 12(1) - Incorrect transposition)

2010/C 317/23

Language of the case: French

Parties

Applicant: European Commission (represented by: A. Sipos and J.-B. Laignelot, acting as Agents)

Defendant: Kingdom of Belgium (represented by: T. Materne, acting as Agent.)

Re:

Failure of a Member State to fulfil its obligations — Failure to adopt all the measures to comply with Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances (OJ 1997, L 10, p. 13), as amended by Directive 2003/105/EC of the European Parliament and of the Council of 16 December 2003 (OJ 2003 L 345, p. 97)

Operative part of the judgment

The Court:

| 1. | Declares that by failing to adopt within the prescribed period all the measures to correctly transpose the second subparagraph of Article 12(1) of Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances, as amended by Directive 2003/105/EC of the European Parliament and of the Council of 16 December 2003, the Kingdom of Belgium has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that by failing to adopt within the prescribed period all the measures to correctly transpose the second subparagraph of Article 12(1) of Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances, as amended by Directive 2003/105/EC of the European Parliament and of the Council of 16 December 2003, the Kingdom of Belgium has failed to fulfil its obligations under that directive;

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

2.

Orders the Kingdom of Belgium to pay the costs.

---

(1)  OJ C 80, 27.03.2010.

---

| 20.11.2010 | EN | Official Journal of the European Union | C 317/13 |
| --- | --- | --- | --- |

20.11.2010

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Official Journal of the European Union

C 317/13

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Reference for a preliminary ruling from the Mora Kommun (Sweden) lodged on 21 August 2009 — Dan Bengtsson v Tele2 Sverige AB, Telenor Sverige AB, TeliaSonera Mobile Networks AB, Teracom

(Case C-344/09)

()

2010/C 317/24

Language of the case: Swedish

Referring court

Mora Kommun

Parties to the main proceedings

Applicant: Dan Bengtsson

Defendants: Tele2 Sverige AB, Telenor Sverige AB, TeliaSonera Mobile Networks AB, Teracom

Question referred

The environment and health committee of the Municipality of Mora seeks a preliminary ruling on the interpretation of Council Recommendation 1999/519/EC (1) in relation to Article 174(2) EC. The question is whether the reference levels for electromagnetic fields set out in the Recommendation are to be interpreted as guidelines for the application of the precautionary principle, or whether that principle constitutes a complement to the Recommendation?

---

(1)  Council Recommendation of 12 July 1999 on the limitation of exposure of the general public to electromagnetic fields (0 Hz to 300 GHz) (OJ 1999 L 199, p. 59).

---

| 20.11.2010 | EN | Official Journal of the European Union | C 317/13 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/13

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Reference for a preliminary ruling from the Magyar Köztársaság Legfelsőbb Bírósága (Hungary) lodged on 28 July 2010 — VALE Építési Kft.

(Case C-378/10)

()

2010/C 317/25

Language of the case: Hungarian

Referring court

Magyar Köztársaság Legfelsőbb Bírósága

Parties to the main proceedings

Applicant: VALE Építési Kft.

Questions referred

| 1. | Must the host Member State pay due regard to Articles 43 and 48 EC when a company established in another Member State (the Member State of origin) transfers its seat to that host Member State and, at the same time and for this purpose, deletes the entry regarding it in the commercial register in the Member State of origin, and the company’s owners adopt a new instrument of constitution under the laws of the host Member State, and the company applies for registration in the commercial register of the host Member State under the laws of the host Member State? |
| --- | --- |

1.

Must the host Member State pay due regard to Articles 43 and 48 EC when a company established in another Member State (the Member State of origin) transfers its seat to that host Member State and, at the same time and for this purpose, deletes the entry regarding it in the commercial register in the Member State of origin, and the company’s owners adopt a new instrument of constitution under the laws of the host Member State, and the company applies for registration in the commercial register of the host Member State under the laws of the host Member State?

| 2. | If the answer to the first question is yes, must Articles 43 and 48 EC be interpreted in such a case as meaning that they preclude legislation or practices of such a (host) Member State which prohibit a company established lawfully in any other Member State (the Member State of origin) from transferring its seat to the host Member State and continuing to operate under the laws of that State? |
| --- | --- |

2.

If the answer to the first question is yes, must Articles 43 and 48 EC be interpreted in such a case as meaning that they preclude legislation or practices of such a (host) Member State which prohibit a company established lawfully in any other Member State (the Member State of origin) from transferring its seat to the host Member State and continuing to operate under the laws of that State?

| 3. | With regard to the response to the second question, is the basis on which the host Member State prohibits the company from registration of any relevance, specifically:






  — | if, in its instrument of constitution adopted in the host Member State, the company designates as its predecessor the company established and deleted from the commercial register in the Member State of origin, and applies for the predecessor to be registered as its own predecessor in the commercial register of the host Member State? |
| --- | --- | --- |

3.

With regard to the response to the second question, is the basis on which the host Member State prohibits the company from registration of any relevance, specifically:

—

if, in its instrument of constitution adopted in the host Member State, the company designates as its predecessor the company established and deleted from the commercial register in the Member State of origin, and applies for the predecessor to be registered as its own predecessor in the commercial register of the host Member State?

| — | in the event of international conversion within the Community, when deciding on the company’s application for registration, must the host Member State take into consideration the instrument recording the fact of the transfer of company seat in the commercial register of the Member State of origin , and, if so, to what extent? |
| --- | --- |

—

in the event of international conversion within the Community, when deciding on the company’s application for registration, must the host Member State take into consideration the instrument recording the fact of the transfer of company seat in the commercial register of the Member State of origin , and, if so, to what extent?

| 4. | Is the host Member State entitled to decide on the application for company registration lodged in the host Member State by the company carrying out international conversion within the Community in accordance with the rules of company law of the host Member State as they relate to the conversion of domestic companies, and to require the company to fulfil all the conditions (e.g. drawing up lists of assets and liabilities and property inventories) laid down by the company law of the host Member State in respect of domestic conversion, or is the host Member State obliged under Articles 43 and 48 EC to distinguish international conversion within the Community from domestic conversion and, if so, to what extent? |
| --- | --- |

4.

Is the host Member State entitled to decide on the application for company registration lodged in the host Member State by the company carrying out international conversion within the Community in accordance with the rules of company law of the host Member State as they relate to the conversion of domestic companies, and to require the company to fulfil all the conditions (e.g. drawing up lists of assets and liabilities and property inventories) laid down by the company law of the host Member State in respect of domestic conversion, or is the host Member State obliged under Articles 43 and 48 EC to distinguish international conversion within the Community from domestic conversion and, if so, to what extent?

---

| 20.11.2010 | EN | Official Journal of the European Union | C 317/14 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/14

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Reference for a preliminary ruling from the Hof van Cassatie van België, lodged on 29 July 2010 — Jan Voogsgeerd v Navimer SA

(Case C-384/10)

()

2010/C 317/26

Language of the case: Dutch

Referring court

Hof van Cassatie van België

Parties to the main proceedings

Appellant: Jan Voogsgeerd

Respondent: Navimer SA

Questions referred

| 1. | Must the country in which the place of business is situated through which an employee was engaged, within the meaning of Article 6(2)(b) of the Convention on the law applicable to contractual obligations, opened for signature in Rome on 19 June 1980, (1) be taken to mean the country in which the place of business of the employer is situated through which, according to the contract of employment, the employee was engaged, or the country in which the place of business of the employer is situated with which the employee is connected for his actual employment, even though that employee does not habitually carry out his work in any one country? |
| --- | --- |

1.

Must the country in which the place of business is situated through which an employee was engaged, within the meaning of Article 6(2)(b) of the Convention on the law applicable to contractual obligations, opened for signature in Rome on 19 June 1980, (1) be taken to mean the country in which the place of business of the employer is situated through which, according to the contract of employment, the employee was engaged, or the country in which the place of business of the employer is situated with which the employee is connected for his actual employment, even though that employee does not habitually carry out his work in any one country?

| 2. | Must the place to which an employee who does not habitually carry out his work in any one country is obliged to report and where he receives administrative briefings, as well as instructions for the performance of his work, be deemed to be the place of actual employment within the meaning of the first question? |
| --- | --- |

2.

Must the place to which an employee who does not habitually carry out his work in any one country is obliged to report and where he receives administrative briefings, as well as instructions for the performance of his work, be deemed to be the place of actual employment within the meaning of the first question?

| 3. | Must the place of business with which the employee is connected for his actual employment within the meaning of the first question satisfy certain formal requirements such as, inter alia, the possession of legal personality, or does the existence of a de facto place of business suffice for that purpose? |
| --- | --- |

3.

Must the place of business with which the employee is connected for his actual employment within the meaning of the first question satisfy certain formal requirements such as, inter alia, the possession of legal personality, or does the existence of a de facto place of business suffice for that purpose?

| 4. | Can the place of business of another company, with which the corporate employer is connected, serve as the place of business within the meaning of the third question, even though the authority of the employer has not been transferred to that other company? |
| --- | --- |

4.

Can the place of business of another company, with which the corporate employer is connected, serve as the place of business within the meaning of the third question, even though the authority of the employer has not been transferred to that other company?

---

(1)  OJ 1980 L 266, p. 1.

---

| 20.11.2010 | EN | Official Journal of the European Union | C 317/14 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/14

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Appeal brought on 4 August 2010 by Bouygues SA and Bouygues Télécom SA against the judgment delivered on 21 May 2010 by the General Court (Third Chamber, Extended Composition) in Joined Cases T-425/04, T-444/04, T-450/04 and T-456/04 France and Others v Commission

(Case C-399/10 P)

()

2010/C 317/27

Language of the case: French

Parties

Appellants: Bouygues SA and Bouygues Télécom SA (represented by: J. Vogel, F. Sureau, D. Theophile, avocats)

Other parties to the proceedings: European Commission, French Republic, France Télécom SA, Association française des opérateurs de réseaux et services de télécommunications (AFORS Télécom)

Form of order sought

| — | set aside the judgment of the General Court of 21 May 2010 in Joined Cases T-425/04, T-444/04, T-450/04 and T-456/04; |
| --- | --- |

—

set aside the judgment of the General Court of 21 May 2010 in Joined Cases T-425/04, T-444/04, T-450/04 and T-456/04;

| — | ruling again, allow the forms of order sought by Bouygues SA and Bouygues Télécom SA, namely: (i) annulment of Article 1 of Commission Decision 2006/621/, (1) solely in so far as it implicitly but necessarily refused to categorise as aid the declarations made by the French State in July, September and October 2002; and (ii) annulment of Article 2 of the decision, as a consequence of which the French State will be bound to recover the aid established to have been granted to France Telécom; |
| --- | --- |

—

ruling again, allow the forms of order sought by Bouygues SA and Bouygues Télécom SA, namely: (i) annulment of Article 1 of Commission Decision 2006/621/, (1) solely in so far as it implicitly but necessarily refused to categorise as aid the declarations made by the French State in July, September and October 2002; and (ii) annulment of Article 2 of the decision, as a consequence of which the French State will be bound to recover the aid established to have been granted to France Telécom;

| — | in the alternative, should the Court consider that the state of the proceedings is not fit for judgment, refer the case back to the General Court for reconsideration in T-425/04, T-444/04, T-450/04 and T-456/04, taking into account the legal viewpoint developed by the Court; |
| --- | --- |

—

in the alternative, should the Court consider that the state of the proceedings is not fit for judgment, refer the case back to the General Court for reconsideration in T-425/04, T-444/04, T-450/04 and T-456/04, taking into account the legal viewpoint developed by the Court;

| — | order the Commission, France Télécom and the French State to pay the costs. |
| --- | --- |

—

order the Commission, France Télécom and the French State to pay the costs.

Pleas in law and main arguments

Bouygues and Bouygues Télécom put forward three grounds in support of their appeal.

By their first ground, which comprises three parts, the appellants argue that the General Court erred in law in upholding the Commission’s analysis to the effect that the declarations made by the French State in July, September and October 2002 did not, separately or taken together, constitute one or more forms of State aid. The General Court thus disregarded the concept of use of State resources for the purposes of Article 107(1) TFEU in holding that declarations of support could entail a use of resources only if the form and amount of the support envisaged were specified, were to be of immediate and certain application and were legally binding (first part). The General Court furthermore distorted the rules of national law presented to the Commission in stating that those rules in turn require, in order for promises of support to have binding effect, be specified as to their details of application and the amount of support promised and not conditional on default by the debtor, whereas under national law, the promise of a result is sufficient to bind the party making the promise. The condition requiring the occurrence of financial difficulties is not an obstacle to a commitment of guarantee and the fact the State conducts itself in such a way as to give the impression that it will act in a certain way is such as engage its liability (second part). Lastly, the General Court disregarded the concept of use of State resources for the purposes of Article 107(1) TFEU in holding that such a use cannot be the result of the reaction of the markets entailing, for the State, a factual obligation to remedy France Télécom’s financing problems (third part).

By its second ground, which comprises two parts, the appellants allege an error of law by the General Court as regards the categorisation as aid of the shareholder loan granted by the State to France Télécom in the form of an opening of a line of credit of EUR 9 billion in December 2002. In that regard, Bouygues and Bouygues Télécom state, first, that the General Court disregarded the concept of aid for the purposes of Article 107(1) TFEU in holding that the advantage resulting from the announcement of an opening of a line of credit is not sufficiently closely linked to the transfer of resources resulting from that opening for it to be possible to establish a finding of State aid. The appellants argue that the General Court required, incorrectly, that the advantage and the use of resources become closely merged.

The appellants argue, second, that the General Court disregarded the concept of advantage for the purposes of Article 107(1) TFEU in considering separately the making available of the amount of EUR 9 billion to France Télécom to find that it did not entail any separate advantage in the form of an increase in the financial means available to France Télécom, without taking into account, in order to determine whether there was such an advantage, the reassuring effect which resulted from those same measures.

---

(1)  Commission Decision 2006/621/EC of 2 August 2004 on the State Aid implemented by France for France Télécom (OJ 2006 L 257, p. 11).

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| 20.11.2010 | EN | Official Journal of the European Union | C 317/15 |
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Official Journal of the European Union

C 317/15

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Appeal brought on 5 August 2010 by the European Commission against the judgment delivered on 21 May 2010 by the General Court (Third Chamber, Extended Composition) in Joined Cases T-425/04, T-444/04, T-450/04 and T-456/04 France and Others v Commission

(Case C-401/10 P)

()

2010/C 317/28

Language of the case: French

Parties

Appellant: European Commission (represented by: C. Giolito and D. Grespan and S. Thomas, Agents)

Other parties to the proceedings: French Republic, France Télécom SA, Bouygues SA, Bouygues Télécom SA, Association française des opérateurs de réseaux et services de télécommunications (AFORS Télécom)

Form of order sought

| — | set aside the judgment of the General Court of the European Union (Third Chamber, Extended Composition) of 21 May 2010 in Joined Cases T-425/04, T-444/04, T-450/04 and T-456/04, notified by fax to the Commission on 25 May 2010, in so far as it:






  — | annulled Article 1 of Commission Decision 2006/621/EC of 2 August 2004 on the State Aid implemented by France for France Télécom; (1) |
| --- | --- | --- |

—

set aside the judgment of the General Court of the European Union (Third Chamber, Extended Composition) of 21 May 2010 in Joined Cases T-425/04, T-444/04, T-450/04 and T-456/04, notified by fax to the Commission on 25 May 2010, in so far as it:

—

annulled Article 1 of Commission Decision 2006/621/EC of 2 August 2004 on the State Aid implemented by France for France Télécom; (1)

| — | ordered the Commission to bear its own costs and to pay those incurred by the French Republic and by France Télécom in Cases T-425/04 and T-444/04; |
| --- | --- |

—

ordered the Commission to bear its own costs and to pay those incurred by the French Republic and by France Télécom in Cases T-425/04 and T-444/04;

| — | refer the case back to the General Court for reconsideration; |
| --- | --- |

—

refer the case back to the General Court for reconsideration;

| — | reserve costs. |
| --- | --- |

—

reserve costs.

Pleas in law and main arguments

The Commission puts forward three grounds in support of its appeal.

By its first ground, the Commission argues that the General Court’s judgment contains contradictory reasoning on a number of points. This is the case, inter alia, when the General Court considers in the judgment under appeal that the declarations, including the announcement of a shareholder loan on 4 December 2002, may be considered together in the determination of whether France Télécom enjoyed an advantage, whereas it considers that, for the purpose of determining the commitment of State resources, there was a significant lapse of time between the announcement of the shareholder loan and the various State declarations made earlier.

By its second ground, which comprises four parts, the Commission argues that the General Court disregarded Article 87(1) EC, read in conjunction with Article 230 EC, on a number of points. The General Court misapplied the concept of aid in requiring that there be a close nexus between the advantage and the commitment of State resources (first part), in refusing to recognise the commitment of State resources in the announcement and offer of a shareholder contract by the French State to France Télécom (second part) and in failing to apply the criterion of prudent private investor in order to determine whether or not France Télécom enjoyed an advantage (third part). The General Court, moreover, disregarded the discretion the Commission has when it carries out complex economic analyses and conducted a review of the appropriateness of the contested decision (fourth part).

By its third ground, the Commission argues that the General Court distorted the contested decision in holding that it should have contained a more detailed statement of reasons as to why there was a distinct advantage resulting from the offer of a line of credit of EUR 9 billion to France Télécom and by holding that there was a significant lapse of time between the declarations beginning in July 2002 and the announcement of a shareholder loan contract on 4 December 2002.

---

(1)  OJ 2006 L 257, p. 11.

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| 20.11.2010 | EN | Official Journal of the European Union | C 317/16 |
| --- | --- | --- | --- |

20.11.2010

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Official Journal of the European Union

C 317/16

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Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 25 August 2010 — Finanzamt Deggendorf v Markus Stoppelkamp in his capacity as insolvency administrator of the assets of Harald Raab

(Case C-421/10)

()

2010/C 317/29

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Appellant: Finanzamt Deggendorf

Respondent: Markus Stoppelkamp in his capacity as insolvency administrator of the assets of Harald Raab

Question referred

Is a taxable person to be regarded as ‘a taxable person established abroad’ within the meaning of Article 21(1)(b) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes (1) simply because the place where he has established his business is abroad, or is it an additional requirement that his personal residence also be abroad?

---

(1)  OJ 1977 L 145, p. 1

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| 20.11.2010 | EN | Official Journal of the European Union | C 317/16 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/16

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Reference for a preliminary ruling from the Finanzgericht Düsseldorf (Germany) lodged on 27 August 2010 — Delphi Deutschland GmbH v Hauptzollamt Düsseldorf

(Case C-423/10)

()

2010/C 317/30

Language of the case: German

Referring court

Finanzgericht Düsseldorf

Parties to the main proceedings

Applicant: Delphi Deutschland GmbH

Defendant: Hauptzollamt Düsseldorf

Question referred

Do the electrical connectors described in this Order come under subheading 8536 69 of the Combined Nomenclature in the version resulting from Commission Regulation (EC) No 1810/2004 of 7 September 2004, (1) Commission Regulation (EC) No 1719/2005 of 27 October 2005 (2) and Commission Regulation (EC) No 1549/2006 of 17 October 2006, (3) which were adopted to amend Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff?

---

(1)  OJ 2004 L 327, p. 1.

(2)  OJ 2005 L 286, p. 1.

(3)  OJ 2006 L 301, p. 1.

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| 20.11.2010 | EN | Official Journal of the European Union | C 317/16 |
| --- | --- | --- | --- |

20.11.2010

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Official Journal of the European Union

C 317/16

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Reference for a preliminary ruling from the Administrativen sad Sofia-grad — (Bulgaria) lodged on 6 September 2010 — Petar Aladzhov v Zamestnik direktor na Stolichna direktsia na vatreshnite raboti kam Ministerstvo na vatreshnite raboti

(Case C-434/10)

()

2010/C 317/31

Language of the case: Bulgarian

Referring court

Administrativen sad Sofia-grad

Parties to the main proceedings

Applicant: Petar Aladzhov

Defendant: Zamestnik direktor na Stolichna direktsia na vatreshnite raboti kam Ministerstvo na vatreshnite raboti

Questions referred

| 1. | Must the prohibition on leaving the territory of a Member State of the European Union which has been imposed on a national of that State as the director of a commercial company registered under the law of the State concerned on account of unpaid public-law debts owed by that company be regarded as falling within the scope of the ground of protection of ‘public policy’ provided for in Article 27(1) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (1) in the circumstances of the main proceedings and where the following circumstances also obtain:






  1.1. | the constitution of that Member State makes no provision for restricting the freedom of movement of natural persons for the purpose of protecting public policy; |
| --- | --- | --- |

1.

Must the prohibition on leaving the territory of a Member State of the European Union which has been imposed on a national of that State as the director of a commercial company registered under the law of the State concerned on account of unpaid public-law debts owed by that company be regarded as falling within the scope of the ground of protection of ‘public policy’ provided for in Article 27(1) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (1) in the circumstances of the main proceedings and where the following circumstances also obtain:

1.1.

the constitution of that Member State makes no provision for restricting the freedom of movement of natural persons for the purpose of protecting public policy;

| 1.2. | the ground of ‘public policy’ as a basis for imposing the aforementioned prohibition is contained in a national law which was adopted in order to transpose another legislative act of the European Union; |
| --- | --- |

1.2.

the ground of ‘public policy’ as a basis for imposing the aforementioned prohibition is contained in a national law which was adopted in order to transpose another legislative act of the European Union;

| 1.3. | the ground of ‘public policy’ within the meaning of the aforementioned provision of the directive also includes the ground of ‘protection of the rights of other citizens’ where a measure is adopted to secure the budgetary revenue of the Member State by means of the settlement of public-law debts? |
| --- | --- |

1.3.

the ground of ‘public policy’ within the meaning of the aforementioned provision of the directive also includes the ground of ‘protection of the rights of other citizens’ where a measure is adopted to secure the budgetary revenue of the Member State by means of the settlement of public-law debts?

| 2. | In the circumstances of the main proceedings, does it follow from the limitations and conditions laid down in respect of the exercise of freedom of movement for Union citizens and from the measures adopted in accordance with EU law to give them effect that a national rule of law under which the Member State imposes on one of its nationals, in his capacity as director of a commercial company registered under the law of the Member State concerned, an administrative coercive measure in the form of a ‘prohibition on leaving the country’ on account of unpaid public-law debts owed to that State which are classified as ‘considerable’ under its law is permissible where the procedure for cooperation between the Member States under Council Directive 2008/55/EC of 26 May 2008 on mutual assistance for the recovery of claims relating to certain levies, duties, taxes and other measures (2) and Commission Regulation (EC) No 1179/2008 laying down detailed rules for implementing certain provisions of Directive 2008/55 (3) may be applied for the purpose of settling the debt? |
| --- | --- |

2.

In the circumstances of the main proceedings, does it follow from the limitations and conditions laid down in respect of the exercise of freedom of movement for Union citizens and from the measures adopted in accordance with EU law to give them effect that a national rule of law under which the Member State imposes on one of its nationals, in his capacity as director of a commercial company registered under the law of the Member State concerned, an administrative coercive measure in the form of a ‘prohibition on leaving the country’ on account of unpaid public-law debts owed to that State which are classified as ‘considerable’ under its law is permissible where the procedure for cooperation between the Member States under Council Directive 2008/55/EC of 26 May 2008 on mutual assistance for the recovery of claims relating to certain levies, duties, taxes and other measures (2) and Commission Regulation (EC) No 1179/2008 laying down detailed rules for implementing certain provisions of Directive 2008/55 (3) may be applied for the purpose of settling the debt?

| 3. | In the circumstances of the main proceedings, are the principle of proportionality and the limitations and conditions laid down in respect of the exercise of freedom of movement for Union citizens and the measures adopted in accordance with EU law to give them effect, or as the case may be the criteria contained in Article 27(1) and (2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family Members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, to be interpreted as meaning that, where a commercial company registered under the law of a Member State owes a public-law debt classified as a ‘considerable debt’ under the law of that State, they allow a natural person who is the director of the company concerned to be prohibited from leaving that Member State where the following circumstances obtain:






  3.1. | the existence of a ‘considerable’ public-law debt is regarded as a genuine, present and sufficiently serious threat affecting a fundamental interest of society, an assessment which the legislature has made by introducing the specific administrative measure of a ‘prohibition on leaving the country’; |
| --- | --- | --- |

3.

In the circumstances of the main proceedings, are the principle of proportionality and the limitations and conditions laid down in respect of the exercise of freedom of movement for Union citizens and the measures adopted in accordance with EU law to give them effect, or as the case may be the criteria contained in Article 27(1) and (2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family Members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, to be interpreted as meaning that, where a commercial company registered under the law of a Member State owes a public-law debt classified as a ‘considerable debt’ under the law of that State, they allow a natural person who is the director of the company concerned to be prohibited from leaving that Member State where the following circumstances obtain:

3.1.

the existence of a ‘considerable’ public-law debt is regarded as a genuine, present and sufficiently serious threat affecting a fundamental interest of society, an assessment which the legislature has made by introducing the specific administrative measure of a ‘prohibition on leaving the country’;

| 3.2. | no provision is made for an assessment of circumstances connected with the personal conduct of the director or with an infringement of his fundamental rights, such as his right to pursue an occupational activity involving travelling abroad under a separate legal relationship; |
| --- | --- |

3.2.

no provision is made for an assessment of circumstances connected with the personal conduct of the director or with an infringement of his fundamental rights, such as his right to pursue an occupational activity involving travelling abroad under a separate legal relationship;

| 3.3. | the consequences for the commercial activities of the debtor company and the possibilities of settling the public-law debt are not assessed after the prohibition has been imposed; |
| --- | --- |

3.3.

the consequences for the commercial activities of the debtor company and the possibilities of settling the public-law debt are not assessed after the prohibition has been imposed;

| 3.4. | the prohibition is imposed on the basis of an application which is binding if it certifies that a ‘considerable’ public-law debt exists which is owed by a specific commercial company, that the debt is not secured to an extent sufficient to cover the principal and the interest, and that the person against whom the imposition of the prohibition is applied for is a member of an executive body of that commercial company; |
| --- | --- |

3.4.

the prohibition is imposed on the basis of an application which is binding if it certifies that a ‘considerable’ public-law debt exists which is owed by a specific commercial company, that the debt is not secured to an extent sufficient to cover the principal and the interest, and that the person against whom the imposition of the prohibition is applied for is a member of an executive body of that commercial company;

| 3.5. | the prohibition lasts until such time as the public-law debt is fully settled or secured, but no provision is made for a review of that prohibition on application by the addressee to the authority which imposed the prohibion or for account to be taken of the limitation period applicable to the debt? |
| --- | --- |

3.5.

the prohibition lasts until such time as the public-law debt is fully settled or secured, but no provision is made for a review of that prohibition on application by the addressee to the authority which imposed the prohibion or for account to be taken of the limitation period applicable to the debt?

---

(1)  OJ L 158, p. 77.

(2)  OJ L 150, p. 28.

(3)  OJ L 319, p. 21.

---

| 20.11.2010 | EN | Official Journal of the European Union | C 317/18 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/18

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Reference for a preliminary ruling from the Centrale Raad van Beroep (Netherlands) lodged on 13 September 2010 — J.C. van Ardennen v Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen

(Case C-435/10)

()

2010/C 317/32

Language of the case: Dutch

Referring court

Centrale Raad van Beroep

Parties to the main proceedings

Applicant: J.C. van Ardennen

Defendant: Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen (UWV)

Questions referred

| 1. | Must the Insolvency Directive, (1) in particular Articles 4, 5 and 10 thereof, be interpreted in such a way as to render generally incompatible with it a national rule which obliges employees, in the event of the insolvency of their employer, in order to (fully) validate their right to have their outstanding wage claims met, to register as job-seekers at the latest on the first working day after the day on which the employment relationship ended or should reasonably have ended? If not: |
| --- | --- |

1.

Must the Insolvency Directive, (1) in particular Articles 4, 5 and 10 thereof, be interpreted in such a way as to render generally incompatible with it a national rule which obliges employees, in the event of the insolvency of their employer, in order to (fully) validate their right to have their outstanding wage claims met, to register as job-seekers at the latest on the first working day after the day on which the employment relationship ended or should reasonably have ended? If not:

| 2. | Must the Insolvency Directive, in particular Articles 4, 5 and 10 thereof, be interpreted in such a way as to render incompatible with it a national rule which also imposes that registration obligation on employees who engaged in activities in their own business or profession during the notice period? |
| --- | --- |

2.

Must the Insolvency Directive, in particular Articles 4, 5 and 10 thereof, be interpreted in such a way as to render incompatible with it a national rule which also imposes that registration obligation on employees who engaged in activities in their own business or profession during the notice period?

| 3. | Must the Insolvency Directive, in particular Articles 4, 5 and 10 thereof, be interpreted in such a way as to render incompatible with it a national rule on the basis of which failure to comply (timeously) with that registration obligation can result in the partial non-payment of the insolvency benefit, where the level and the duration of the partial non-payment measure taken are partly determined by the date of compliance with that obligation? |
| --- | --- |

3.

Must the Insolvency Directive, in particular Articles 4, 5 and 10 thereof, be interpreted in such a way as to render incompatible with it a national rule on the basis of which failure to comply (timeously) with that registration obligation can result in the partial non-payment of the insolvency benefit, where the level and the duration of the partial non-payment measure taken are partly determined by the date of compliance with that obligation?

---

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

---

| 20.11.2010 | EN | Official Journal of the European Union | C 317/18 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/18

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Reference for a preliminary ruling from the Tribunal Judicial de Vieira do Minho (Portugal) lodged on 13 September 2010 — Manuel Afonso Esteves v Axa — Seguros de Portugal SA

(Case C-437/10)

()

2010/C 317/33

Language of the case: Portuguese

Referring court

Tribunal Judicial de Vieira do Minho

Parties to the main proceedings

Applicant: Manuel Afonso Esteves

Defendant: Axa — Seguros de Portugal SA

Question referred

In a motor-vehicle collision in which none of the drivers is liable for the accident on the basis of fault, and which has caused personal injury and material loss to one of the drivers (the injured party claiming compensation), is it contrary to Community law, in particular Article 3(1) of the First Directive (72/166/EEC), (1) Article 2(1) of the Second Directive (84/5/EEC) (2) and Article 1 of the Third Directive (90/232/EEC), (3) as those provisions have been interpreted by the Court of Justice of the European Communities, for it to be possible to apportion liability for risk (Article 506(1) and (2) of the Portuguese Civil Code) with a direct impact on the amount of compensation to be awarded to the injured party for the material and non-material loss resulting from the personal injuries suffered (since that apportionment of liability for risk will entail a commensurate reduction in the amount of compensation)?

---

(1)  Council Directive 72/166/EEC of 24 April 1972 on the approximation of the laws of Member States relating to insurance against civil liability in respect of the use of motor vehicles, and to the enforcement of the obligation to insure against such liability (OJ, English Special Edition 1972(II), p. 360).

(2)  Second Council Directive 84/5/EEC of 30 December 1983 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles (OJ 1984 L 8, p. 17).

(3)  Third Council Directive 90/232/EEC of 14 May 1990 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles (OJ 1990 L 129, p. 33).

---

| 20.11.2010 | EN | Official Journal of the European Union | C 317/19 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/19

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Reference for a preliminary ruling from the Tribunal administratif de Limoges (France) lodged on 14 September 2010 — Philippe Bonnarde v Agence de services et de paiement

(Case C-443/10)

()

2010/C 317/34

Language of the case: French

Referring court

Tribunal administratif de Limoges

Parties to the main proceedings

Applicant: Philippe Bonnarde

Defendant: Agence de services et de paiement

Questions referred

| 1. | Are the provisions of European Union law, in particular those of the Treaty on the Functioning of the European Union intended to ensure freedom of movement, and those of the abovementioned directives concerning vehicle registration documents, to be interpreted as precluding a Member State’s legislation from introducing, for the registration of vehicles, a specific document, such as a vehicle registration document on which must be stated ‘demonstration vehicle’, which could be regarded as not intended to constitute temporary registration within the meaning of Council Directive 1999/37/EC of 29 April 1999 on the registration documents for vehicles, (1) amended by Directive 2003/127/EC, (2) and consequently as precluding the grant of an advantage from being linked to production of such a document? |
| --- | --- |

1.

Are the provisions of European Union law, in particular those of the Treaty on the Functioning of the European Union intended to ensure freedom of movement, and those of the abovementioned directives concerning vehicle registration documents, to be interpreted as precluding a Member State’s legislation from introducing, for the registration of vehicles, a specific document, such as a vehicle registration document on which must be stated ‘demonstration vehicle’, which could be regarded as not intended to constitute temporary registration within the meaning of Council Directive 1999/37/EC of 29 April 1999 on the registration documents for vehicles, (1) amended by Directive 2003/127/EC, (2) and consequently as precluding the grant of an advantage from being linked to production of such a document?

| 2. | If the answer to the first question is in the negative, do those provisions imply that, where a vehicle is purchased in another Member State, national legislation making the grant of a subsidy for the purchase of clean vehicles which have already been registered subject to the condition that the registration certificate bear, by virtue of the legislation of the Member State, the statement ‘demonstration vehicle’ must be disapplied, where the seller of the vehicle has not himself been able to benefit from that subsidy and where:






  — | either the purchaser produces a vehicle registration document issued in the other Member State and specific to vehicles intended for use for the purposes of demonstration, |
| --- | --- | --- |

2.

If the answer to the first question is in the negative, do those provisions imply that, where a vehicle is purchased in another Member State, national legislation making the grant of a subsidy for the purchase of clean vehicles which have already been registered subject to the condition that the registration certificate bear, by virtue of the legislation of the Member State, the statement ‘demonstration vehicle’ must be disapplied, where the seller of the vehicle has not himself been able to benefit from that subsidy and where:

—

either the purchaser produces a vehicle registration document issued in the other Member State and specific to vehicles intended for use for the purposes of demonstration,

| — | or the vehicle has the characteristics, relating in particular to the date of its first entry into service, required by national legislation for it to be classified as a demonstration vehicle? |
| --- | --- |

—

or the vehicle has the characteristics, relating in particular to the date of its first entry into service, required by national legislation for it to be classified as a demonstration vehicle?

---

(1)  OJ L 138, p. 57.

(2)  Commission Directive of 23 December 2003, amending Council Directive 1999/37/EC on the registration documents for vehicles (OJ 2004 L 10, p. 29).

---

| 20.11.2010 | EN | Official Journal of the European Union | C 317/19 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/19

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Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 15 September 2010 — Finanzamt Lüdenscheid v Christel Schriever

(Case C-444/10)

()

2010/C 317/35

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: Finanzamt Lüdenscheid

Defendant: Christel Schriever

Questions referred

| 1. | Is there a ‘transfer’ of a totality of assets within the meaning of Article 5(8) of Sixth Council Directive 77/388/EEC (1) of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment in the case where a trader transfers ownership of the stock and shop installations of his retail outlet to a purchaser and merely leases the premises which he owns to the purchaser? |
| --- | --- |

1.

Is there a ‘transfer’ of a totality of assets within the meaning of Article 5(8) of Sixth Council Directive 77/388/EEC (1) of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment in the case where a trader transfers ownership of the stock and shop installations of his retail outlet to a purchaser and merely leases the premises which he owns to the purchaser?

| 2. | Is it relevant in that regard whether the premises were leased on the basis of a long-term lease contract for use or whether the lease contract is concluded for an indefinite period and may be terminated by either party at short notice? |
| --- | --- |

2.

Is it relevant in that regard whether the premises were leased on the basis of a long-term lease contract for use or whether the lease contract is concluded for an indefinite period and may be terminated by either party at short notice?

---

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

---

| 20.11.2010 | EN | Official Journal of the European Union | C 317/20 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/20

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Appeal brought on 15 September 2010 by ThyssenKrupp Acciai Speciali Terni SpA against the judgment of the General Court (Fifth Chamber) delivered on 1 July 2010 in Case T-62/08 Thyssen Krupp Acciai Speciali Terni SpA v European Commission

(Case C-448/10 P)

()

2010/C 317/36

Language of the case: Italian

Parties

Appellant: ThyssenKrupp Acciai Speciali Terni SpA (represented by: T. Salonico, G. Barone and A. Marega, avvocati)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

| — | set aside the judgment under appeal (1) and annul the contested decision (2) in so far as they declare that the disputed measure is not compensatory in nature, and hold it, on the contrary, to be unlawful and incompatible State aid; and/or |
| --- | --- |

—

set aside the judgment under appeal (1) and annul the contested decision (2) in so far as they declare that the disputed measure is not compensatory in nature, and hold it, on the contrary, to be unlawful and incompatible State aid; and/or

| — | set aside the judgment under appeal in so far as it declares that the recovery order contained in the contested decision is not contrary to the principle of the protection of legitimate expectations and, accordingly, annul the contested decision in so far as it orders Italy to proceed without delay with the recovery of the aid and interest; and |
| --- | --- |

—

set aside the judgment under appeal in so far as it declares that the recovery order contained in the contested decision is not contrary to the principle of the protection of legitimate expectations and, accordingly, annul the contested decision in so far as it orders Italy to proceed without delay with the recovery of the aid and interest; and

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

—

order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The appellant submits that the judgment under appeal is flawed and must therefore be set aside on the following grounds:

| 1. | infringement of Articles 107 and 108 TFEU, and contradictory reasoning and manifest error as a result of the distortion of the evidence provided in relation to the interpretation of the disputed measure as State aid and not as a compensatory measure in favour of the appellant. The General Court erred in interpreting restrictively the rules and the national case-law relied on at first instance by the appellant, which demonstrate that the disputed measure does not constitute State aid but a continuation of the compensation strategy originally provided for by the Italian legislature in 1962 and acknowledged by the Commission and the General Court; |
| --- | --- |

1.

infringement of Articles 107 and 108 TFEU, and contradictory reasoning and manifest error as a result of the distortion of the evidence provided in relation to the interpretation of the disputed measure as State aid and not as a compensatory measure in favour of the appellant. The General Court erred in interpreting restrictively the rules and the national case-law relied on at first instance by the appellant, which demonstrate that the disputed measure does not constitute State aid but a continuation of the compensation strategy originally provided for by the Italian legislature in 1962 and acknowledged by the Commission and the General Court;

| 2. | infringement of Article 14(1) of Regulation (EC) No 659/1999, (3) and contradictory and insufficient reasoning, in that the General Court found that the recovery order contained in the contested decision is not contrary to the principle of the protection of legitimate expectations. The judgment of the General Court is flawed and inadequately reasoned in so far as it found that the Commission’s lengthy silence vis-à-vis the clarifications provided by the Italian authorities at the end of 1991 — concerning the fact that the first temporal extension of the Terni tariff was a continuation of the original compensation strategy — is not a sufficient basis for the creation of a legitimate expectation on the part of the appellant that the temporal extensions of the Terni tariff, including the disputed measure, do not constitute State aid. |
| --- | --- |

2.

infringement of Article 14(1) of Regulation (EC) No 659/1999, (3) and contradictory and insufficient reasoning, in that the General Court found that the recovery order contained in the contested decision is not contrary to the principle of the protection of legitimate expectations. The judgment of the General Court is flawed and inadequately reasoned in so far as it found that the Commission’s lengthy silence vis-à-vis the clarifications provided by the Italian authorities at the end of 1991 — concerning the fact that the first temporal extension of the Terni tariff was a continuation of the original compensation strategy — is not a sufficient basis for the creation of a legitimate expectation on the part of the appellant that the temporal extensions of the Terni tariff, including the disputed measure, do not constitute State aid.

---

(1)  Judgment of the General Court of the European Union (Fifth Chamber) of 1 July 2010 in Case T-62/08.

(2)  Commission Decision 2008/408/EC of 20 November 2007 on the State aid C 36/A/06 (ex NN 38/06) implemented by Italy in favour of ThyssenKrupp, Cementir and Nuova Terni Industrie Chimiche (OJ 2008 L 144, p. 37).

(3)  Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88 EC] (OJ 1999 L 83, p. 1).

---

| 20.11.2010 | EN | Official Journal of the European Union | C 317/20 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/20

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Appeal brought on 15 September 2010 by Cementir Italia Srl against the judgment delivered on 1 July 2010 by the General Court (Fifth Chamber) in Case T-63/08 Cementir Italia Srl v European Commission

(Case C-449/10 P)

()

2010/C 317/37

Language of the case: Italian

Parties

Appellant: Cementir Italia Srl (represented by: T. Salonico, G. Barone and A. Marega, avvocati)

Other party to the proceedings: European Commission

Form of order sought

| — | set aside the judgment under appeal (1) and the decision (2) in so far as they find that the contested measure is not indemnifying and compensatory in nature and instead take the view that that measure constitutes unlawful and incompatible State aid; and/or |
| --- | --- |

—

set aside the judgment under appeal (1) and the decision (2) in so far as they find that the contested measure is not indemnifying and compensatory in nature and instead take the view that that measure constitutes unlawful and incompatible State aid; and/or

| — | set aside the judgment under appeal in so far as it finds that the order for recovery contained in the decision is not contrary to the principle of the protection of legitimate expectations and, accordingly, set aside the decision in so far as it orders Italy to proceed immediately to recover the aid plus interest; and |
| --- | --- |

—

set aside the judgment under appeal in so far as it finds that the order for recovery contained in the decision is not contrary to the principle of the protection of legitimate expectations and, accordingly, set aside the decision in so far as it orders Italy to proceed immediately to recover the aid plus interest; and

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

—

order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The appellant submits that the judgment under appeal is defective and must therefore be set aside for the following reasons:

| 1. | Breach of Articles 107 TFEU and 108 TFEU, inconsistent reasoning and manifest error by reason of the distortion of the evidence submitted with regard to the interpretation of the contested measure as State aid and not as a compensatory measure in favour of the appellant. The General Court erred in interpreting restrictively the rules and national case-law which were invoked by the appellant at first instance and which indicate that the contested measure does not constitute State aid but has retained the compensatory purpose originally intended by the Italian legislature in 1962 and recognised by the Commission and by the General Court. |
| --- | --- |

1.

Breach of Articles 107 TFEU and 108 TFEU, inconsistent reasoning and manifest error by reason of the distortion of the evidence submitted with regard to the interpretation of the contested measure as State aid and not as a compensatory measure in favour of the appellant. The General Court erred in interpreting restrictively the rules and national case-law which were invoked by the appellant at first instance and which indicate that the contested measure does not constitute State aid but has retained the compensatory purpose originally intended by the Italian legislature in 1962 and recognised by the Commission and by the General Court.

| 2. | Breach of Article 14(1) of Regulation (EC) No 659/1999 (3) and inconsistent and inadequate reasoning in that the General Court concluded that the order for recovery contained in the decision is not contrary to the principle of the protection of legitimate expectations. The General Court’s judgment is defective and inadequately reasoned inasmuch as it held that the prolonged silence on the Commission’s part with regard to the points of clarification provided by the Italian authorities at the end of 1991 concerning the fact that the first prolongation of the Terni tariff retained the original compensatory function did not constitute a circumstance which was such as to create legitimate grounds for the appellant to believe that the prolongations of the Terni tariff, including the contested measure, did not amount to State aid. |
| --- | --- |

2.

Breach of Article 14(1) of Regulation (EC) No 659/1999 (3) and inconsistent and inadequate reasoning in that the General Court concluded that the order for recovery contained in the decision is not contrary to the principle of the protection of legitimate expectations. The General Court’s judgment is defective and inadequately reasoned inasmuch as it held that the prolonged silence on the Commission’s part with regard to the points of clarification provided by the Italian authorities at the end of 1991 concerning the fact that the first prolongation of the Terni tariff retained the original compensatory function did not constitute a circumstance which was such as to create legitimate grounds for the appellant to believe that the prolongations of the Terni tariff, including the contested measure, did not amount to State aid.

---

(1)  Judgment of 1 July 2010 of the General Court of the European Union (Fifth Chamber) in Case T-63/08.

(2)  Commission Decision 2008/408/EC of 20 November 2007 on the State aid C 36/A/06 (ex NN 38/06) implemented by Italy in favour of ThyssenKrupp, Cementir and Nuova Terni Industrie Chimiche (OJ 2008 L 144, p. 37).

(3)  Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty [Article 88 EC] (OJ 1999 L 83, p. 1).

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| 20.11.2010 | EN | Official Journal of the European Union | C 317/21 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/21

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Appeal brought on 15 September 2010 by Nuova Terni Industrie Chimiche SpA against the judgment delivered by the General Court (Fifth Chamber) on 1 July 2010 in Case T-64/08 Nuova Terni Industrie Chimiche SpA v European Commission

(Case C-450/10 P)

()

2010/C 317/38

Language of the case: Italian

Parties

Appellant: Nuova Terni Industrie Chimiche SpA (represented by T. Salonico, G. Barone and A. Marea, avvocati)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should

| — | set aside the judgment under appeal (1) and annul the decision (2) in that they find that the contested measure is not in the nature of indemnification or compensation, but instead consider it to be unlawful and incompatible State aid; and/or |
| --- | --- |

—

set aside the judgment under appeal (1) and annul the decision (2) in that they find that the contested measure is not in the nature of indemnification or compensation, but instead consider it to be unlawful and incompatible State aid; and/or

| — | set aside the judgment under appeal in so far as it does not hold that the order for recovery contained in the decision conflicts with the principle of the protection of legitimate expectations and, in consequence, annul the decision in so far as it order Italy to take steps forthwith to recover the aid together with interest; and |
| --- | --- |

—

set aside the judgment under appeal in so far as it does not hold that the order for recovery contained in the decision conflicts with the principle of the protection of legitimate expectations and, in consequence, annul the decision in so far as it order Italy to take steps forthwith to recover the aid together with interest; and

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

The appellant maintains that the judgment under appeal is incorrect and must, therefore, be set aside on the following grounds:

| 1. | infringement of Articles 107 and 108 of the EC Treaty, contradictory reasoning and manifest error of assessment in that it distorts the clear sense of the evidence produced in relation to the interpretation of the contested measure as being State aid and not as being a measure to compensate the appellant. The General Court erred in interpreting restrictively the legislation and national case-law invoked by the appellant at first instance, which establish that the contested measure does not constitute State aid but has instead continued to pursue the aim of compensation originally envisaged by the Italian legislature in 1962 and recognised by the Commission and the General Court; |
| --- | --- |

1.

infringement of Articles 107 and 108 of the EC Treaty, contradictory reasoning and manifest error of assessment in that it distorts the clear sense of the evidence produced in relation to the interpretation of the contested measure as being State aid and not as being a measure to compensate the appellant. The General Court erred in interpreting restrictively the legislation and national case-law invoked by the appellant at first instance, which establish that the contested measure does not constitute State aid but has instead continued to pursue the aim of compensation originally envisaged by the Italian legislature in 1962 and recognised by the Commission and the General Court;

| 2. | infringement of Article 14(1) of Regulation (EC) No 659/1999, (3) and contradictory and insufficient reasoning, in so far as the General Court concluded that the order for recovery contained in the decision was not contrary to the principle of protection of legitimate expectations. The General Court’s judgment is wrong and wants adequate reasoning in so far as it denies that the Commission’s long silence on the explanations offered by the Italian authorities at the end of 1991 concerning the fact that the first extension of the Terni tariff continued to pursue the original aim of compensation was a circumstance capable of engendering a legitimate expectation on the part of the appellant with regard to the fact that the extensions of the Terni tariff, including the contested measure, do not constitute State aid. |
| --- | --- |

2.

infringement of Article 14(1) of Regulation (EC) No 659/1999, (3) and contradictory and insufficient reasoning, in so far as the General Court concluded that the order for recovery contained in the decision was not contrary to the principle of protection of legitimate expectations. The General Court’s judgment is wrong and wants adequate reasoning in so far as it denies that the Commission’s long silence on the explanations offered by the Italian authorities at the end of 1991 concerning the fact that the first extension of the Terni tariff continued to pursue the original aim of compensation was a circumstance capable of engendering a legitimate expectation on the part of the appellant with regard to the fact that the extensions of the Terni tariff, including the contested measure, do not constitute State aid.

---

(1)  Judgment of the General Court (Fifth Chamber) of the European Union of 1 July 2010 in Case T-64/08.

(2)  Commission Decision 2008/408/EC of 20 November 2007 on the State aid C 36/A/06 (ex NN 38/06) implemented by Italy in favour of ThyssenKrupp, Cementir and Nuova Terni Industrie Chimiche (OJ 2008 L 144, p. 37).

(3)  Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 88 [now Article 93] of the EC Treaty (OJ 1999 L 83, p. 1).

---

| 20.11.2010 | EN | Official Journal of the European Union | C 317/22 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/22

---

Appeal brought on 16 September 2010 by BNP Paribas and Banca Nazionale del Lavoro SpA (BNL) against the judgment of the General Court (Fifth Chamber) delivered on 1 July 2010 in Case T-335/08 BNP Paribas and BNL v Commission

(Case C-452/10 P)

()

2010/C 317/39

Language of the case: Italian

Parties

Appellants: BNP Paribas, Banca Nazionale del Lavoro SpA (BNL) (represented by: R. Silvestri, G. Escalar and M. Todino, avvocati)

Other party to the proceedings: European Commission

Form of order sought

The appellants claim that the Court should:

| — | set aside in its entirety the judgment of the General Court of the European Union (Fifth Chamber) delivered on 1 July 2010 in Case T-335/08 BNP Paribas and Banca Nazionale del Lavoro v European Commission, notified by fax on 1 July 2010 (OJ 2010 C 221, p. 39) and, accordingly:






  (i) | uphold the form of order sought in the application initiating proceedings at first instance for the annulment in its entirety of Commission Decision 2008/711/EC of 11 March 2008 (C(2008) 869 final) on State aid C 15/07 (ex NN 20/07) implemented by Italy ‘on the tax incentives in favour of certain restructured banks’ (OJ 2008 L 237, p. 70); or |
| --- | --- | --- |

—

set aside in its entirety the judgment of the General Court of the European Union (Fifth Chamber) delivered on 1 July 2010 in Case T-335/08 BNP Paribas and Banca Nazionale del Lavoro v European Commission, notified by fax on 1 July 2010 (OJ 2010 C 221, p. 39) and, accordingly:

(i)

uphold the form of order sought in the application initiating proceedings at first instance for the annulment in its entirety of Commission Decision 2008/711/EC of 11 March 2008 (C(2008) 869 final) on State aid C 15/07 (ex NN 20/07) implemented by Italy ‘on the tax incentives in favour of certain restructured banks’ (OJ 2008 L 237, p. 70); or

| (ii) | in the alternative, refer the case back to the General Court for reconsideration in the light of the judgment of the Court of Justice; |
| --- | --- |

(ii)

in the alternative, refer the case back to the General Court for reconsideration in the light of the judgment of the Court of Justice;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

| 1. | The appellants submit that the General Court did not carry out a thorough review of the Commission’s decision, refusing to ascertain whether it was lawful for the Commission to decide not to take into account the situation of the transferring entities for the purposes of determining whether the contested scheme was selective; |
| --- | --- |

1.

The appellants submit that the General Court did not carry out a thorough review of the Commission’s decision, refusing to ascertain whether it was lawful for the Commission to decide not to take into account the situation of the transferring entities for the purposes of determining whether the contested scheme was selective;

| 2. | The appellants submit that, by adopting as the criteria for its own assessment only the data proposed by the Commission in its decision, the General Court misinterpreted the case-law of the Court of Justice, which allows the specific nature of a fiscal measure to be justified in the light of the logic of the general tax system; |
| --- | --- |

2.

The appellants submit that, by adopting as the criteria for its own assessment only the data proposed by the Commission in its decision, the General Court misinterpreted the case-law of the Court of Justice, which allows the specific nature of a fiscal measure to be justified in the light of the logic of the general tax system;

| 3. | The appellants submit that the General Court misinterpreted the case-law on the requirement for State aid to be selective, according to which, in order to determine whether a fiscal measure is selective, regard must be had simply to the effects which it is likely to produce in terms of taxation; |
| --- | --- |

3.

The appellants submit that the General Court misinterpreted the case-law on the requirement for State aid to be selective, according to which, in order to determine whether a fiscal measure is selective, regard must be had simply to the effects which it is likely to produce in terms of taxation;

| 4. | The appellants submit that the General Court distorted the facts, by holding mistakenly that the general realignment scheme did not allow undertakings to realign the tax cost of the assets relating to undertakings received by way of transfer with the higher values recorded on the balance sheet; |
| --- | --- |

4.

The appellants submit that the General Court distorted the facts, by holding mistakenly that the general realignment scheme did not allow undertakings to realign the tax cost of the assets relating to undertakings received by way of transfer with the higher values recorded on the balance sheet;

| 5. | Lastly, the appellants submit that the General Court wrongly substituted its own reasoning for that of the Commission, developing afresh reasons in support of the contested decision of the Commission. |
| --- | --- |

5.

Lastly, the appellants submit that the General Court wrongly substituted its own reasoning for that of the Commission, developing afresh reasons in support of the contested decision of the Commission.

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| 20.11.2010 | EN | Official Journal of the European Union | C 317/22 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/22

---

Reference for a preliminary ruling from the Bundesfinanzhof (Germany), lodged on 17 September 2010 — Oliver Jestel v Hauptzollamt Aachen

(Case C-454/10)

()

2010/C 317/40

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Appellant: Oliver Jestel

Respondent: Hauptzollamt Aachen

Questions referred

| 1. | Does a person become a debtor liable to pay customs duties because of ‘participation’ in the unlawful introduction of goods into the customs territory of the European Union according to the second indent of Article 202(3) of Regulation (EEC) No 2913/92 establishing the Community Customs Code, (1) where that person, without being directly involved in the introduction of goods, arranges the conclusion of the contracts to purchase the goods concerned and therefore envisages that the seller will possibly deliver the goods or part of the goods in such a way as to evade import duties? |
| --- | --- |

1.

Does a person become a debtor liable to pay customs duties because of ‘participation’ in the unlawful introduction of goods into the customs territory of the European Union according to the second indent of Article 202(3) of Regulation (EEC) No 2913/92 establishing the Community Customs Code, (1) where that person, without being directly involved in the introduction of goods, arranges the conclusion of the contracts to purchase the goods concerned and therefore envisages that the seller will possibly deliver the goods or part of the goods in such a way as to evade import duties?

| 2. | If appropriate, is it sufficient that he considers this to be conceivable, or does he only become a debtor if he fully expects that this will happen? |
| --- | --- |

2.

If appropriate, is it sufficient that he considers this to be conceivable, or does he only become a debtor if he fully expects that this will happen?

---

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

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| 20.11.2010 | EN | Official Journal of the European Union | C 317/23 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/23

---

Appeal brought on 20 September 2010 by Freistaat Sachsen and Land Sachsen-Anhalt against the judgment delivered by the General Court (Eighth Chamber) on 8 July 2010 in Case T-396/08 Freistaat Sachsen and Land Sachsen-Anhalt v European Commission

(Case C-459/10 P)

()

2010/C 317/41

Language of the case: German

Parties

Appellants: Freistaat Sachsen (Free State of Saxony) and Land Sachsen-Anhalt (Land of Saxony-Anhalt) (represented by: A. Rosenfeld and I. Liebach, Rechtsanwälte)

Other party to the proceedings: European Commission

Form of order sought

The appellants claim that the Court should:

| 1. | set aside the judgment of the General Court of the European Union of 8 July 2010 in Case T-396/08 Freistaat Sachsen and Land Sachsen-Anhalt v European Commission, concerning the partial annulment of Commission Decision 2008/878/EC of 2 July 2008 on State aid which Germany is planning to implement for DHL, and annul the first paragraph of Article 1 of Commission Decision 2008/878/EC of 2 July 2008; |
| --- | --- |

1.

set aside the judgment of the General Court of the European Union of 8 July 2010 in Case T-396/08 Freistaat Sachsen and Land Sachsen-Anhalt v European Commission, concerning the partial annulment of Commission Decision 2008/878/EC of 2 July 2008 on State aid which Germany is planning to implement for DHL, and annul the first paragraph of Article 1 of Commission Decision 2008/878/EC of 2 July 2008;

| 2. | in the alternative, set aside the judgment of the General Court of the European Union referred to in 1. and refer the case back to the General Court; |
| --- | --- |

2.

in the alternative, set aside the judgment of the General Court of the European Union referred to in 1. and refer the case back to the General Court;

| 3. | order the respondent to pay the costs. |
| --- | --- |

3.

order the respondent to pay the costs.

Pleas in law and main arguments

The appeal is against the judgment of the General Court by which the appellants’ action for partial annulment of Commission Decision 2008/878/EC of 2 July 2008 was dismissed. By that decision the Commission had declared that a large part of the notified training aid which Freistaat Sachsen and Land Sachsen-Anhalt wanted to grant to DHL was incompatible with the common market.

By the appeal the appellants complain of the following infringements of European Union law by the General Court:

| — | The General Court has infringed Regulation No 68/2001, the former Article 87(3)(c) EC and the principle of equal treatment because the examination of the necessity of the aid is incorrect in law. The infringement of Regulation No 68/2001 results from the fact that substantive criteria not laid down in the regulation are examined, which is permissible, by way of exception, only where the specific features of an individual case so justify. The former Article 87(3) EC has been infringed because the General Court erred in law in not finding that training aid serves or can serve the objectives of the former Article 87(3)(c) EC and that this is to be taken into account by the Commission in the balancing test under Article 87(3) EC. Finally, there is an infringement of the principle of equal treatment since in previous decisions involving comparable facts the Commission neither examined nor established the necessity of training aid. No objective justification for this unequal treatment is apparent. |
| --- | --- |

—

The General Court has infringed Regulation No 68/2001, the former Article 87(3)(c) EC and the principle of equal treatment because the examination of the necessity of the aid is incorrect in law. The infringement of Regulation No 68/2001 results from the fact that substantive criteria not laid down in the regulation are examined, which is permissible, by way of exception, only where the specific features of an individual case so justify. The former Article 87(3) EC has been infringed because the General Court erred in law in not finding that training aid serves or can serve the objectives of the former Article 87(3)(c) EC and that this is to be taken into account by the Commission in the balancing test under Article 87(3) EC. Finally, there is an infringement of the principle of equal treatment since in previous decisions involving comparable facts the Commission neither examined nor established the necessity of training aid. No objective justification for this unequal treatment is apparent.

| — | Even if it is to be assumed that the criterion of necessity was rightly used, there is an error of law. The appellants plead in this regard that the General Court did not have regard to Regulation No 68/2001, the Commission guidelines on regional aid and the former Article 87(3)(c) EC because, acting incorrectly in law, it failed to include the incentive effects on the choice of site in the examination of necessity. It is apparent from the wording of Regulation No 68/2001 that training aid can at least comprise regional aspects too. The General Court’s assumption that the promotion of enterprises in disadvantaged areas and the establishment of new undertakings can result only from regional aid is incorrect. |
| --- | --- |

—

Even if it is to be assumed that the criterion of necessity was rightly used, there is an error of law. The appellants plead in this regard that the General Court did not have regard to Regulation No 68/2001, the Commission guidelines on regional aid and the former Article 87(3)(c) EC because, acting incorrectly in law, it failed to include the incentive effects on the choice of site in the examination of necessity. It is apparent from the wording of Regulation No 68/2001 that training aid can at least comprise regional aspects too. The General Court’s assumption that the promotion of enterprises in disadvantaged areas and the establishment of new undertakings can result only from regional aid is incorrect.

| — | Furthermore, the General Court has also infringed Regulation No 68/2001, the former Article 87(3)(c) EC and the principle of equal treatment in that it erred in law in applying improper criteria when assessing the necessity of the aid. First, it should not have taken account of the business practice and strategy of the recipient of the aid, as undertakings which, on the basis of internal standards, establish a high level of training are thereby placed at a disadvantage for the purposes of the law on aid vis-à-vis undertakings which have a low training level. Second, the aid should not have been regarded as unnecessary solely because it is prescribed in national legal rules. This has the effect that undertakings from Member States with a high training level prescribed by statute are placed at a disadvantage vis-à-vis undertakings from Member States with a comparatively low training level. |
| --- | --- |

—

Furthermore, the General Court has also infringed Regulation No 68/2001, the former Article 87(3)(c) EC and the principle of equal treatment in that it erred in law in applying improper criteria when assessing the necessity of the aid. First, it should not have taken account of the business practice and strategy of the recipient of the aid, as undertakings which, on the basis of internal standards, establish a high level of training are thereby placed at a disadvantage for the purposes of the law on aid vis-à-vis undertakings which have a low training level. Second, the aid should not have been regarded as unnecessary solely because it is prescribed in national legal rules. This has the effect that undertakings from Member States with a high training level prescribed by statute are placed at a disadvantage vis-à-vis undertakings from Member States with a comparatively low training level.

| — | Finally, the General Court has also infringed the former Article 87(3)(c) EC in that, acting incorrectly in law, it failed to take account of the positive external effects of the training measure at issue. |
| --- | --- |

—

Finally, the General Court has also infringed the former Article 87(3)(c) EC in that, acting incorrectly in law, it failed to take account of the positive external effects of the training measure at issue.

---

| 20.11.2010 | EN | Official Journal of the European Union | C 317/24 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/24

---

Reference for a preliminary ruling from the Högsta domstolen (Sweden) lodged on 20 September 2010 — Bonnier Audio AB, Earbooks AB, Norstedts Förlagsgrupp AB, Piratförlaget Aktiebolag, Storyside AB v Perfect Communication Sweden AB

(Case C-461/10)

()

2010/C 317/42

Language of the case: Swedish

Referring court

Högsta domstolen

Parties to the main proceedings

Applicants: Bonnier Audio AB, Earbooks AB, Norstedts Förlagsgrupp AB, Piratförlaget Aktiebolag, Storyside AB

Defendant: Perfect Communication Sweden AB

Questions referred

| 1. | Does Directive 2006/24/EC (1) of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC (the data storage directive), and in particular Articles 3, 4, 5 and 11 thereof, preclude the application of a national provision which is based on Article 8 of Directive 2004/48/EC (2) of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights and which permits an internet service provider in civil proceedings, in order to identify a particular subscriber, to be ordered to give a copyright holder or its representative information on the subscriber to whom the internet service provider provided a specific IP address, which address, it is claimed, was used in the infringement? The question is based on the assumption that the applicant has adduced evidence of the infringement of a particular copyright and that the measure is proportionate. |
| --- | --- |

1.

Does Directive 2006/24/EC (1) of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC (the data storage directive), and in particular Articles 3, 4, 5 and 11 thereof, preclude the application of a national provision which is based on Article 8 of Directive 2004/48/EC (2) of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights and which permits an internet service provider in civil proceedings, in order to identify a particular subscriber, to be ordered to give a copyright holder or its representative information on the subscriber to whom the internet service provider provided a specific IP address, which address, it is claimed, was used in the infringement? The question is based on the assumption that the applicant has adduced evidence of the infringement of a particular copyright and that the measure is proportionate.

| 2. | Is the answer to Question 1 affected by the fact that the Member State has not implemented the data storage directive despite the fact that the period prescribed for implementation has expired? |
| --- | --- |

2.

Is the answer to Question 1 affected by the fact that the Member State has not implemented the data storage directive despite the fact that the period prescribed for implementation has expired?

---

(1)  OJ L 105, p. 54.

(2)  OJ L 157, p. 45.

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| 20.11.2010 | EN | Official Journal of the European Union | C 317/24 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/24

---

Appeal brought on 24 September 2010 by Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE against the judgment of the General Court (Fifth Chamber) delivered on 8 July 2010 in Case T-331/06: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE v European Environmental Agency (EEA)

(Case C-462/10 P)

()

2010/C 317/43

Language of the case: English

Parties

Appellant: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (represented by: N. Korogiannakis, Δικηγόρος)

Other party to the proceedings: European Environmental Agency (EEA)

Form of order sought

The appellant claims that the Court should:

| — | set aside the decision of the General Court |
| --- | --- |

—

set aside the decision of the General Court

| — | annul the decision of the EEA to evaluate the Appellant's bid as not successful and award the contract to the successful contractor; |
| --- | --- |

—

annul the decision of the EEA to evaluate the Appellant's bid as not successful and award the contract to the successful contractor;

| — | order EEA to pay the Appellant's legal expenses incurred in connection with the Application in case T-331/06 and this Appeal, even if the current Appeal is rejected. |
| --- | --- |

—

order EEA to pay the Appellant's legal expenses incurred in connection with the Application in case T-331/06 and this Appeal, even if the current Appeal is rejected.

Pleas in law and main arguments

| 1. | The Appellant argues that the General Court committed an error in law by adopting a wrong interpretation or by not applying Art.97 of the Financial Regulation (1) and Art.138 of the Implementing Rules, since the announcement of the sub-criteria before the submission of the tenders is essential so that tenderers can present their best offer. The General Court erroneously rejected the Appellant's argument concerning the mixing of the selection and award-criteria on the grounds that it was introduced out of time. It is submitted that even if the approach of the General Court was correct it misinterpreted the content of the tender specifications when examining whether the use of the individual CVs in the award phase infringed the tender specifications. |
| --- | --- |

1.

The Appellant argues that the General Court committed an error in law by adopting a wrong interpretation or by not applying Art.97 of the Financial Regulation (1) and Art.138 of the Implementing Rules, since the announcement of the sub-criteria before the submission of the tenders is essential so that tenderers can present their best offer. The General Court erroneously rejected the Appellant's argument concerning the mixing of the selection and award-criteria on the grounds that it was introduced out of time. It is submitted that even if the approach of the General Court was correct it misinterpreted the content of the tender specifications when examining whether the use of the individual CVs in the award phase infringed the tender specifications.

| 2. | Furthermore, the Appellant argues that the fact that the Evaluation Report is drafted in such way as not to demonstrate how the Evaluation Committee arrived at its conclusions cannot be attributed to the Appellant. If the EEA did not apply further weighting to the sub-criteria this should have resulted directly in the annulment of the attacked decision for insufficient motivation since the fact that ‘it is not apparent’ what kind of criteria were used is part of the obligation to state reasons. |
| --- | --- |

2.

Furthermore, the Appellant argues that the fact that the Evaluation Report is drafted in such way as not to demonstrate how the Evaluation Committee arrived at its conclusions cannot be attributed to the Appellant. If the EEA did not apply further weighting to the sub-criteria this should have resulted directly in the annulment of the attacked decision for insufficient motivation since the fact that ‘it is not apparent’ what kind of criteria were used is part of the obligation to state reasons.

| 3. | Concerning environmental policy, it is submitted that the General Court erred in finding that an award criterion worded in such a general way is fulfilled by the simple submission certification which is just one of the ways of providing evidence. The General Court also erred in ignoring the fact that the Environmental Policy can only be examined in the selection phase. |
| --- | --- |

3.

Concerning environmental policy, it is submitted that the General Court erred in finding that an award criterion worded in such a general way is fulfilled by the simple submission certification which is just one of the ways of providing evidence. The General Court also erred in ignoring the fact that the Environmental Policy can only be examined in the selection phase.

| 4. | The General Court failed to find that EEA infringed Art. 100(2) of the Financial Regulation and Art. 149(2) of the Implementing Rules by not disclosing the full evaluation report to tenderers that submit such a request in order to be in position to assess the reasons for the rejection of their bids. |
| --- | --- |

4.

The General Court failed to find that EEA infringed Art. 100(2) of the Financial Regulation and Art. 149(2) of the Implementing Rules by not disclosing the full evaluation report to tenderers that submit such a request in order to be in position to assess the reasons for the rejection of their bids.

| 5. | Furthermore, the reasoning of the General Court, apart from being wrong, is not only contrary to the general and pre-existing duty to state reasons, but also to the Lisbon Treaty which gives EU Charter of fundamental rights equal legal force to the Treaties, in particular article 41. |
| --- | --- |

5.

Furthermore, the reasoning of the General Court, apart from being wrong, is not only contrary to the general and pre-existing duty to state reasons, but also to the Lisbon Treaty which gives EU Charter of fundamental rights equal legal force to the Treaties, in particular article 41.

| 6. | Finally the Appellant submits that the contested judgment not only did not sufficiently motivate the rejection of the individual pleas concerning the manifest error of assessment but did not even examine them individually. |
| --- | --- |

6.

Finally the Appellant submits that the contested judgment not only did not sufficiently motivate the rejection of the individual pleas concerning the manifest error of assessment but did not even examine them individually.

---

(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 L 248, p. 1

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| 20.11.2010 | EN | Official Journal of the European Union | C 317/25 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/25

---

Action brought on 27 September 2010 — European Commission v Hellenic Republic

(Case C-466/10)

()

2010/C 317/44

Language of the case: Greek

Parties

Applicant: European Commission (represented by: M. Patakia and D. Kukovec, acting as Agents)

Defendant: Hellenic Republic

Form of order sought

The Court is asked to:

| — | declare that, by applying a negotiated procedure, without prior publication of a contract notice, in connection with the handling of dangerous medical waste of an infectious nature from health establishments falling under the responsibility of the First D.Y.P.E. (Regional Health Authority) of Attiki, the Hellenic Republic has infringed its obligations under Article 28 of Directive 2004/18/EC [of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts] inasmuch as none of the conditions governing the derogations provided for in Article 31 of the Directive is satisfied, in particular the conditions of Article 31(1)(c), which justify a departure from the general rule and application of the exceptional procedure provided for by the said article; |
| --- | --- |

—

declare that, by applying a negotiated procedure, without prior publication of a contract notice, in connection with the handling of dangerous medical waste of an infectious nature from health establishments falling under the responsibility of the First D.Y.P.E. (Regional Health Authority) of Attiki, the Hellenic Republic has infringed its obligations under Article 28 of Directive 2004/18/EC [of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts] inasmuch as none of the conditions governing the derogations provided for in Article 31 of the Directive is satisfied, in particular the conditions of Article 31(1)(c), which justify a departure from the general rule and application of the exceptional procedure provided for by the said article;

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

—

order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

| 1. | Following a complaint submitted to it, the European Commission examined the invitation issued by the Committee for Health Supplies regarding participation in a negotiated tendering procedure, without prior publication of a contract notice, in connection with the handling of dangerous medical waste of an infectious nature from health establishments falling under the responsibility of the First Regional Health Authority of Attiki. |
| --- | --- |

1.

Following a complaint submitted to it, the European Commission examined the invitation issued by the Committee for Health Supplies regarding participation in a negotiated tendering procedure, without prior publication of a contract notice, in connection with the handling of dangerous medical waste of an infectious nature from health establishments falling under the responsibility of the First Regional Health Authority of Attiki.

| 2. | The Commission points out that the publication of a contract notice with clearly defined conditions is required as a general rule, whereas the negotiated procedure without prior publication of a contract notice is allowed only as an exception, in very specific circumstances which are defined in Articles 30 and 31 of Directive 2004/18/EC and which should be interpreted restrictively, while the burden of proving that there are actually exceptional circumstances justifying a derogation is borne by those relying on the provisions in question. |
| --- | --- |

2.

The Commission points out that the publication of a contract notice with clearly defined conditions is required as a general rule, whereas the negotiated procedure without prior publication of a contract notice is allowed only as an exception, in very specific circumstances which are defined in Articles 30 and 31 of Directive 2004/18/EC and which should be interpreted restrictively, while the burden of proving that there are actually exceptional circumstances justifying a derogation is borne by those relying on the provisions in question.

| 3. | In that connection, the Commission considers that, on the basis of the invitation in question, it appears that, although the contracting authority availed itself of the exceptional procedure provided for in Article 31(1)(c) of Directive 2004/18/EC, it has not shown that the conditions laid down in that provision were satisfied and justified application of the procedure in question. |
| --- | --- |

3.

In that connection, the Commission considers that, on the basis of the invitation in question, it appears that, although the contracting authority availed itself of the exceptional procedure provided for in Article 31(1)(c) of Directive 2004/18/EC, it has not shown that the conditions laid down in that provision were satisfied and justified application of the procedure in question.

| 4. | The Commission considers that by, applying the negotiated procedure without prior publication of a contract notice, the contracting authority infringed its obligations under Article 28 of the directive, in so far as none of the conditions governing the derogation provided for in Article 31 of the directive was satisfied and in particular the conditions of Article 31(1)(c), which justify a departure from the general rule and application of the exceptional procedure provided for in the said article. |
| --- | --- |

4.

The Commission considers that by, applying the negotiated procedure without prior publication of a contract notice, the contracting authority infringed its obligations under Article 28 of the directive, in so far as none of the conditions governing the derogation provided for in Article 31 of the directive was satisfied and in particular the conditions of Article 31(1)(c), which justify a departure from the general rule and application of the exceptional procedure provided for in the said article.

---

General Court

| 20.11.2010 | EN | Official Journal of the European Union | C 317/26 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/26

---

Judgment of the General Court of 29 September 2010 — CNH Global v OHIM (Combination of the colours red, black and grey for a tractor)

(Case T-378/07) (1)

(Community trade mark - Application for a Community trade mark consisting of a combination of the colours red, black and grey applied to the exterior surfaces of a tractor - Absolute ground for refusal - No distinctive character acquired through use - Article 7(3) of Regulation (EC) No 40/94 (now Article 7(3) of Regulation (EC) No 207/2009))

2010/C 317/45

Language of the case: English

Parties

Applicant: CNH Global NV (Amsterdam, Netherlands) (represented by: M. Edenborough, Barrister, and R. Harrison, Solicitor)

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

Re:

Action against the decision of the First Board of Appeal of OHIM of 5 July 2007 (Case R 1642/2006-1), relating to an application for registration as a Community trade mark of a sign representing a tractor in red, black and grey

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders CNH Global NV to pay the costs. |
| --- | --- |

2.

Orders CNH Global NV to pay the costs.

---

(1)  OJ C 297, 8.12.2007.

---

| 20.11.2010 | EN | Official Journal of the European Union | C 317/26 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/26

---

Judgment of the General Court of 29 September 2010 — Interflon v OHIM — Illinois Tool Works (FOODLUBE)

(Case T-200/08) (1)

(Community trade mark - Invalidity proceedings - Community trade mark FOODLUBE - Absolute grounds for refusal - Descriptiveness - Distinctive character - Article 7(1)(b) and (c) and Article 51(1)(a) of Regulation (EC) No 40/94 (now Article 7(1)(b) and (c) and Article 52(1)(a) of Regulation (EC) No 207/2009))

2010/C 317/46

Language of the case: English

Parties

Applicant: Interflon BV (Rosendaal, Netherlands) (represented by: S. Wertwijn, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Illinois Tool Works, Inc. (Glenview, Illinois, United States)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 3 March 2008 (Case R 638/2007-2) concerning invalidity proceedings between Interflon BV and Illinois Tool Works, Inc.

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 3 March 2008 (Case R 638/2007-2) in so far as it dismisses the appeal with regard to chemicals used in industry in Class 1, and industrial oils and greases and lubricants in Class 4; |
| --- | --- |

1.

Annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 3 March 2008 (Case R 638/2007-2) in so far as it dismisses the appeal with regard to chemicals used in industry in Class 1, and industrial oils and greases and lubricants in Class 4;

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

2.

Dismisses the action as to the remainder;

| 3. | Orders each party to bear its own costs. |
| --- | --- |

3.

Orders each party to bear its own costs.

---

(1)  OJ C 183, 19.7.2008.

---

| 20.11.2010 | EN | Official Journal of the European Union | C 317/27 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/27

---

Judgment of the General Court of 28 September 2010 — Market Watch v OHIM — Ares Trading SA (Seroslim)

(Case T-201/08) (1)

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

2010/C 317/47

Language of the case: English

Parties

Applicant: Market Watch Franchise & Consulting, Inc. (Freeport, Bahamas) (represented by: J. Korab, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Ares Trading SA (Aubonne, Switzerland) (represented by: M. De Justo Bailey and M. De Justo Vazquez, lawyers)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 6 March 2008 (Case R 805/2007-2) relating to opposition proceedings between Ares Trading SA and Market Watch Franchise & Consulting, Inc.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Market Watch Franchise & Consulting, Inc. to pay the costs. |
| --- | --- |

2.

Orders Market Watch Franchise & Consulting, Inc. to pay the costs.

---

(1)  OJ C 197, 2.8.2008.

---

| 20.11.2010 | EN | Official Journal of the European Union | C 317/27 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/27

---

Judgment of the General Court of 28 September 2010 — C-Content v Commission

(Case T-247/08) (1)

(Non-contractual liability - Public service contracts - Community tendering procedures - Electronic publication services - Irregularities and infringements of Community law allegedly committed by the Publications Office - Limitation periods - Causal link)

2010/C 317/48

Language of the case: English

Parties

Applicant: C-Content BV (’s-Hertogenbosch, Netherlands) (represented by: M. Meulenbelt, lawyer)

Defendant: European Commission (represented by: initially by E. Manhaeve and N. Bambara, acting as Agents, assisted by O. Soudry, adviser, and A. Nucara, lawyer, and subsequently by E. Manhaeve and N. Bambara, assisted by O. Soudry and E. Petritsi, lawyer)

Re:

Application for damages for the loss allegedly suffered by the applicant as a consequence of irregularities and infringements of Community law committed by the Office for Official Publications of the European Communities in connection with a number of Community tender procedures for electronic publication services.

Operative part of the judgment

The Court:

| 1. | Dismisses the action as in part inadmissible and in part unfounded; |
| --- | --- |

1.

Dismisses the action as in part inadmissible and in part unfounded;

| 2. | Orders C-Content BV to pay the costs. |
| --- | --- |

2.

Orders C-Content BV to pay the costs.

---

(1)  OJ C 209, 15.8.2008.

---

| 20.11.2010 | EN | Official Journal of the European Union | C 317/28 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/28

---

Judgment of the General Court of 7 October 2010 — DHL Aviation and DHL Hub Leipzig v Commission

(Case T-452/08) (1)

(State aid - Air freight - Warranties relating to the operation of DHL’s new European hub at Leipzig-Halle Airport - Decision declaring the aid incompatible with the common market and ordering its recovery)

2010/C 317/49

Language of the case: English

Parties

Applicants: DHL Aviation SA/NV (Zaventem, Belgium) and DHL Hub Leipzig GmbH (Schkeuditz, Germany) (represented by: A. Burnside, Solicitor, and B. van de Walle de Ghelcke, of the Brussels Bar)

Defendant: European Commission (represented by: K. Gross, B. Martenczuk and E. Righini, Agents)

Re:

Application for the partial annulment of Commission Decision 2008/948/EC of 23 July 2008 on measures by Germany to assist DHL and Leipzig-Halle Airport (OJ 2008 L 346, p. 1)

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders DHL Aviation SA/NV and DHL Hub Leipzig GmbH to pay the costs. |
| --- | --- |

2.

Orders DHL Aviation SA/NV and DHL Hub Leipzig GmbH to pay the costs.

---

(1)  OJ C 6, 10.1.2009.

---

| 20.11.2010 | EN | Official Journal of the European Union | C 317/28 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/28

---

Judgment of the General Court of 30 September 2010 — Granuband v OHIM — Granuflex (GRANUflex)

(Case T-534/08) (1)

(Community trade mark - Invalidity proceedings - Community figurative mark GRANUflex - Previous company name and business name GRANUFLEX - Relative ground for refusal - Article 8(4) and Article 52(1)(c) of Regulation (EC) No 40/94 (now Article 8(4) and Article 53(1) of Regulation (EC) No 207/2009))

2010/C 317/50

Language of the case: Dutch

Parties

Applicant: Granuband BV (Krommenie, Netherlands) (represented by: M. Ellens, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Granuflex Ipari és Kereskedelmi Kft (Budapest, Hungary) (represented by: K. Szamosi, lawyer)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 15 September 2008 (Case R 1277/2007-2) relating to invalidity proceedings between Granuflex Ipari és Kereskedelmi Kft and Granuband BV.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Granuband BV to pay the costs. |
| --- | --- |

2.

Orders Granuband BV to pay the costs.

---

(1)  OJ C 44 of 21.2.2009.

---

| 20.11.2010 | EN | Official Journal of the European Union | C 317/28 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/28

---

Judgment of the General Court of 7 October 2010 — Deutsche Behindertenhilfe — Aktion Mensch v OHIM (diegesellschafter.de)

(Case T-47/09) (1)

(Community trade mark - Application for Community word mark diegesellschafter.de - Absolute ground for refusal - Lack of distinctive character - Article 7(1)(b) of Regulation (EC) No 40/94 (now Article 7(1)(b) of Regulation (EC) No 207/2009))

2010/C 317/51

Language of the case: German

Parties

Applicant: Deutsche Behindertenhilfe — Aktion Mensch eV (Mayence, Germany) (represented by: V. Töbelmann and A. Piltz, lawyers)

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

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 27 November 2008 (Case R 1094/2008-1), concerning an application for registration of the word sign diegesellschafter.de as a Community trade mark.

Operative part of the judgment

The Court:

| 1. | Dismisses the application; |
| --- | --- |

1.

Dismisses the application;

| 2. | Orders Deutsche Behindertenhilfe — Aktion Mensch eV to pay the costs. |
| --- | --- |

2.

Orders Deutsche Behindertenhilfe — Aktion Mensch eV to pay the costs.

---

(1)  OJ C 102 of 1.5.2009.

---

| 20.11.2010 | EN | Official Journal of the European Union | C 317/29 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/29

---

Judgment of the General Court of 30 September 2010 — Kadi v Commission

(Case T-85/09) (1)

(Common foreign and security policy - Restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban - Regulation (EC) No 881/2002 - Freezing of a person’s funds and economic resources as a result of his inclusion in a list drawn up by a body of the United Nations - Sanctions Committee - Subsequent inclusion in Annex I to Regulation No 881/2002 - Action for annulment - Fundamental rights - Right to be heard, right to effective judicial review and right to respect for property)

2010/C 317/52

Language of the case: English

Parties

Applicant: Yassin Abdullah Kadi (Jeddah, Saudi Arabia) (represented by: D. Anderson QC, M. Lester, Barrister and G. Martin, Solicitor)

Defendant: European Commission (represented initially by: P. Hetsch, P. Aalto and F. Hoffmeister, and, subsequently, by P. Hetsch, F. Hoffmeister and E. Paasivirta, Agents)

Interveners in support of the defendant: Council of the European Union (represented by: M. Bishop, E. Finnegan and R. Szostak, Agents), French Republic (represented by: G. de Bergues and L. Butel, Agents), United Kingdom of Great Britain and Northern Ireland (represented by: S. Behzadi-Spencer and E. Jenkinson, Agents, assisted by D. Beard, Barrister)

Re:

Application for annulment of Commission Regulation (EC) No 1190/2008 of 28 November 2008 amending for the 101st time Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban (OJ 2008 L 322, p. 25), in so far as it concerns the applicant

Operative part of the judgment

The Court:

| 1. | Annuls Commission Regulation (EC) No 1190/2008 of 28 November 2008 amending for the 101st time Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban, in so far as it concerns Mr Yassin Abdullah Kadi; |
| --- | --- |

1.

Annuls Commission Regulation (EC) No 1190/2008 of 28 November 2008 amending for the 101st time Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban, in so far as it concerns Mr Yassin Abdullah Kadi;

| 2. | Orders the European Commission, in addition to bearing its own costs, to pay those incurred by Mr Kadi; |
| --- | --- |

2.

Orders the European Commission, in addition to bearing its own costs, to pay those incurred by Mr Kadi;

| 3. | Orders the Council of the European Union, the French Republic and the United Kingdom of Great Britain and Northern Ireland to bear their own costs. |
| --- | --- |

3.

Orders the Council of the European Union, the French Republic and the United Kingdom of Great Britain and Northern Ireland to bear their own costs.

---

(1)  OJ C 90, 18.4.2009.

---

| 20.11.2010 | EN | Official Journal of the European Union | C 317/29 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/29

---

Order of the General Court of 5 October 2010 — Strategi Group v OHIM — RBI (STRATEGI)

(Case T-92/09) (1)

(Community trade mark - Opposition proceedings - Application for the Community word mark STRATEGI - Earlier national word mark Stratégies - Relative ground for refusal - Proof of use of the earlier trade mark - Article 43(2) of Regulation (EC) No 40/94 (now Article 42(2) of Regulation (EC) No 207/2009) and Rule 22 of Regulation (EC) No 2868/95))

2010/C 317/53

Language of the case: English

Parties

Applicant: Strategi Group Ltd (Manchester, United Kingdom) (represented by: N. Saunders, Barrister)

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

Other party to the proceedings before the Board of Appeal of OHIM intervening before the General Court: Reed Business Information (RBI) (Issy-les-Moulineaux, France) (represented by: A. Messas, lawyer)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 18 December 2008 (Case R 1581/2007-2), relating to opposition proceedings between Reed Business Information (RBI) and Strategi Group Ltd.

Operative part of the order

The Court:

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

1.

Dismisses the action;

| 2. | Orders Strategi Group Ltd to pay the costs. |
| --- | --- |

2.

Orders Strategi Group Ltd to pay the costs.

---

(1)  OJ C 113, 16.5.2009.

---

| 20.11.2010 | EN | Official Journal of the European Union | C 317/30 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/30

---

Judgment of the General Court of 7 October 2010 — Commission v Gal-Or

(Case T-136/09) (1)

(Arbitration clause - Contract for financial assistance concluded under a specific research and technological development programme in the field of non-nuclear energy - Failure to comply with the contract - Reimbursement of advance payments - Default interest - Default procedure)

2010/C 317/54

Language of the case: English

Parties

Applicant: European Commission (represented by: A.-M. Rouchaud-Joët and F. Mirza, Agents, by B. Katan and M. van der Woude, lawyers, and subsequently by B. Katan)

Defendant: Benjamin Gal-Or (Jupiter, Florida, United States)

Re:

Action on the basis of an arbitration clause, seeking an order that Mr Gal-Or reimburse the amount of EUR 205 611 advanced to him by the Commission in the context of contract IN/0042/97, together with default interest, and for payment of default interest on the amount of EUR 9 231,25, which is the amount of the costs incurred in an action brought by Mr Gal-Or against the Commission before the courts in the Netherlands.

Operative part of the judgment

The Court:

| 1. | Orders Mr Benjamin Gal-Or to pay to the European Commission the principal amount owing of EUR 205 611, together with interest at the rate of:






  — | 2,75 % from 2 March 2003; |
| --- | --- | --- |

1.

Orders Mr Benjamin Gal-Or to pay to the European Commission the principal amount owing of EUR 205 611, together with interest at the rate of:

—

2,75 % from 2 March 2003;

| — | 2,50 % from 7 March 2003; |
| --- | --- |

—

2,50 % from 7 March 2003;

| — | 2,00 % from 6 June 2003; |
| --- | --- |

—

2,00 % from 6 June 2003;

| — | 2,25 % from 6 December 2005; |
| --- | --- |

—

2,25 % from 6 December 2005;

| — | 2,50 % from 8 March 2006; |
| --- | --- |

—

2,50 % from 8 March 2006;

| — | 2,75 % from 15 June 2006; |
| --- | --- |

—

2,75 % from 15 June 2006;

| — | 3,00 % from 9 August 2006; |
| --- | --- |

—

3,00 % from 9 August 2006;

| — | 3,25 % from 11 October 2006; |
| --- | --- |

—

3,25 % from 11 October 2006;

| — | 3,50 % from 13 December 2006; |
| --- | --- |

—

3,50 % from 13 December 2006;

| — | 3,75 % from 14 March 2007; |
| --- | --- |

—

3,75 % from 14 March 2007;

| — | 4,00 % from 13 June 2007; |
| --- | --- |

—

4,00 % from 13 June 2007;

| — | 4,25 % from 9 July 2008; |
| --- | --- |

—

4,25 % from 9 July 2008;

| — | 3,75 % from 15 October 2008; |
| --- | --- |

—

3,75 % from 15 October 2008;

| — | 3,25 % from 12 November 2008; |
| --- | --- |

—

3,25 % from 12 November 2008;

| — | 2,50 % from 10 December 2008; |
| --- | --- |

—

2,50 % from 10 December 2008;

| — | 2,00 % from 21 January 2009; |
| --- | --- |

—

2,00 % from 21 January 2009;

| — | 1,50 % from 11 March 2009; |
| --- | --- |

—

1,50 % from 11 March 2009;

| — | 1,25 % from 8 April 2009; |
| --- | --- |

—

1,25 % from 8 April 2009;

| — | 1,00 % from 13 May 2009; |
| --- | --- |

—

1,00 % from 13 May 2009;

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

2.

Dismisses the action as to the remainder;

| 3. | Orders Mr Gal-Or to pay the costs. |
| --- | --- |

3.

Orders Mr Gal-Or to pay the costs.

---

(1)  OJ C 141, 20.6.2009.

---

| 20.11.2010 | EN | Official Journal of the European Union | C 317/30 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/30

---

Judgment of the General Court of 7 October 2010 — Accenture Global Services v OHIM — Silver Creek Properties (ascensa)

(Case T-244/09) (1)

(Community trade mark - Opposition proceedings - Application for Community figurative mark acsensa - Earlier Community and national word and figurative marks ACCENTURE and accenture - Relative ground for refusal - No likelihood of confusion - No similarity of signs - Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009) - Obligation to state reasons - Article 73 of Regulation No 40/94 (now Article 75 of Regulation No 207/2009))

2010/C 317/55

Language of the case: English

Parties

Applicant: Accenture Global Services GmbH (Schaffhausen, Switzerland) (represented by: R. Niebel, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Silver Creek Properties SA (Panama, Panama)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 20 March 2009 (Case R 802/2008-2), relating to opposition proceedings between Accenture Global Services GmbH and Silver Creek Properties SA

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Accenture Global Services GmbH to pay the costs. |
| --- | --- |

2.

Orders Accenture Global Services GmbH to pay the costs.

---

(1)  OJ C 193, 15.8.2009.

---

| 20.11.2010 | EN | Official Journal of the European Union | C 317/31 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/31

---

Judgment of the General Court of 30 September 2010 — PVS v OHIM — MeDiTA Medizinische Kurierdienst (medidata)

(Case T-270/09) (1)

(Community trade mark - Opposition proceedings - Application for Community figurative mark medidata - Earlier national word mark MeDiTA - Relative ground for refusal - Likelihood of confusion - Similarity of the signs - Similarity of the services - Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))

2010/C 317/56

Language of the case: German

Parties

Applicant: PVS — Privatärztliche Verrechnungsstelle Rhein-Ruhr GmbH (Mülheim an der Ruhr, Germany) (represented by: F. Lindberg, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervening before the General Court: MeDiTA Medizinische Kurierdienst- und Handelsgesellschaft mbH (Düsseldorf, Germany) (represented by: T. Schulte-Beckmann, lawyer)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 14 May 2009 (Case R 1724/2007-4) relating to opposition proceedings between MeDiTA Medizinische Kurierdienst- und Handelsgesellschaft mbH and PVS — Privatärztliche Verrechnungsstelle Rhein-Ruhr GmbH.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Privatärztliche Verrechnungsstelle Rhein-Ruhr GmbH to pay the costs. |
| --- | --- |

2.

Orders Privatärztliche Verrechnungsstelle Rhein-Ruhr GmbH to pay the costs.

---

(1)  OJ C 220 of 12.9.2009.

---

| 20.11.2010 | EN | Official Journal of the European Union | C 317/31 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/31

---

Judgment of the General Court of 28 September 2010 — Rosenruist v OHIM (Representation of two curves on a pocket)

(Case T-388/09) (1)

(Community trade mark - Application for Community figurative mark representing two curves on a pocket - Absolute ground for refusal - Lack of distinctive character - Article 7(1)(b) of Regulation (EC) No 207/2009)

2010/C 317/57

Language of the case: English

Parties

Applicant: Rosenruist — Gestão e serviços, Lda (Funchal, Portugal) (represented by: S. Rizzo and S. González Malabia, lawyers)

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

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 18 June 2009 (Case R 237/2009-2) concerning an application for registration as a Community trade mark of a figurative sign representing two curves on a pocket.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Rosenruist — Gestão e serviços, Lda to pay the costs. |
| --- | --- |

2.

Orders Rosenruist — Gestão e serviços, Lda to pay the costs.

---

(1)  OJ C 282, 21.11.2009.

---

| 20.11.2010 | EN | Official Journal of the European Union | C 317/32 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/32

---

Order of the General Court of 27 September 2010 — Hidalgo v OHIM — Bodegas Hidalgo — La Gitana (HIDALGO)

(Case T-365/08) (1)

(Community trade mark - Annulment of registration of the national mark which was the subject-matter of the opposition - No need to adjudicate)

2010/C 317/58

Language of the case: Spanish

Parties

Applicant: Emilio Hidalgo SA (Jerez de la Frontera, Spain) (represented by: M. Esteve Sanz, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM intervening before the General Court: Bodegas Hidalgo — La Gitana SA (Sanlucar de Barrameda, Spain) (represented by: S. Rivero Galán and J.M. Sanjuán de Coca, lawyers)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 11 June 2008 (Case R 1329/2007-4) relating to opposition proceedings between Emilio Hidalgo SA and Bodegas Hidalgo — La Gitana SA.

Operative part of the order

| 1. | There is no longer any need to adjudicate on the action. |
| --- | --- |

1.

There is no longer any need to adjudicate on the action.

| 2. | Each of the parties is to bear its own costs. |
| --- | --- |

2.

Each of the parties is to bear its own costs.

---

(1)  OJ C 272 of 25.10.2008.

---

| 20.11.2010 | EN | Official Journal of the European Union | C 317/32 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/32

---

Order of the General Court of 24 September 2010 — Kerstens v Commission

(Case T-498/09 P) (1)

(Appeal - Civil service - Officials - Promotion - 2005 promotion year - Award of priority points - Burden of proof - Rights of the defence - Appeal in part manifestly inadmissible and in part manifestly unfounded)

2010/C 317/59

Language of the case: French

Parties

Appellant: Petrus Kerstens (Overijse, Belgium) (represented by: C. Mourato, lawyer)

Other party to the proceedings: European Commission (represented by: C. Berardis-Kayser and G. Berscheid, acting as Agents, and B. Wägenbaur, lawyer)

Re:

Appeal brought against the judgment of the European Union Civil Service Tribunal (Second Chamber) of 29 September 2009 in Case F-102/07 Kerstens v Commission ECR-SC I-A-1-0000 and I-A-2-0000, seeking the setting aside of that judgment.

Operative part of the order

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

The appeal is dismissed.

| 2. | Mr Petrus Kerstens is ordered to bear his own costs and to pay those incurred by the European Commission in the appeal proceedings. |
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2.

Mr Petrus Kerstens is ordered to bear his own costs and to pay those incurred by the European Commission in the appeal proceedings.

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(1)  OJ C 51, 27.2.2010.

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| 20.11.2010 | EN | Official Journal of the European Union | C 317/32 |
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Action brought on 12 September 2010 — Hamas v Council

(Case T-400/10)

()

2010/C 317/60

Language of the case: French

Parties

Applicant: Hamas (represented by: L. Glock, lawyer)

Defendants: Council of the European Union

Form of order sought

| — | Annul Council Act C 188/13 of 13 July 2010; |
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Annul Council Act C 188/13 of 13 July 2010;

| — | annul Council Decision 2010/386/CFSP of 12 July 2010; |
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annul Council Decision 2010/386/CFSP of 12 July 2010;

| — | annul Council Implementing Regulation (EU) No 610/2010 of 12 July 2010; |
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—

annul Council Implementing Regulation (EU) No 610/2010 of 12 July 2010;

| — | order the Council to pay all the costs and expenses. |
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—

order the Council to pay all the costs and expenses.

Pleas in law and main arguments

The applicant seeks the annulment of Council Act 2010/C 188/09, (1) of Council Decision 2010/386/CFSP (2) and also Council Implementing Regulation No 610/2010, (3) in so far as the applicant’s name was retained on the list of persons, groups and entities whose funds and economic resources are frozen pursuant to Articles 2, 3 and 4 of Council Common Position 2001/931/CFSP (4) and Article 2(3) of Regulation No 2580/2001 with a view to combating terrorism.

The applicant puts forward seven pleas in law in support of its action. With respect to Council Act 2010/C 188/09 it alleges:

| — | infringement of the third subparagraph of Article 297(2) TFEU in that the applicant did not receive notification of that act and mere publication in the Official Journal of the European Union cannot be deemed to be notification of such an act; |
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—

infringement of the third subparagraph of Article 297(2) TFEU in that the applicant did not receive notification of that act and mere publication in the Official Journal of the European Union cannot be deemed to be notification of such an act;

| — | infringement of the second indent of Article 41(2) of the Charter of Fundamental Rights of the European Union in that that act was virtually inaccessible for the applicant; |
| --- | --- |

—

infringement of the second indent of Article 41(2) of the Charter of Fundamental Rights of the European Union in that that act was virtually inaccessible for the applicant;

| — | infringement of Article 6(3)(a) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) concerning the right of an accused person to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; |
| --- | --- |

—

infringement of Article 6(3)(a) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) concerning the right of an accused person to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

With respect to Decision 2010/386/CFSP and Regulation No 610/2010 the applicant alleges:

| — | manifest error of assessment, as Hamas is a legitimately elected government and, in accordance with the principle of non-interference in the internal matters of a State, cannot be placed on lists of terrorists; |
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—

manifest error of assessment, as Hamas is a legitimately elected government and, in accordance with the principle of non-interference in the internal matters of a State, cannot be placed on lists of terrorists;

| — | infringement of the applicant’s fundamental rights through the infringement of:






  — | its rights of defence, and the right to good administration, as the decision to retain the applicant on the list of persons, groups and entities whose funds and economic resources are frozen was not preceded by a notification of the evidence held against it and the applicant was not given the opportunity to present duly its submissions on that evidence; |
| --- | --- | --- |

—

infringement of the applicant’s fundamental rights through the infringement of:

—

its rights of defence, and the right to good administration, as the decision to retain the applicant on the list of persons, groups and entities whose funds and economic resources are frozen was not preceded by a notification of the evidence held against it and the applicant was not given the opportunity to present duly its submissions on that evidence;

| — | property rights, in that the freezing of the applicant’s funds is an unjustified restriction on its property rights; |
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property rights, in that the freezing of the applicant’s funds is an unjustified restriction on its property rights;

| — | infringement of the obligation to state reasons pursuant to Article 296 TFEU, in that the Council did not provide a specific statement of reasons either in Decision 2010/386/CFSP or in Regulation No 610/2010. |
| --- | --- |

—

infringement of the obligation to state reasons pursuant to Article 296 TFEU, in that the Council did not provide a specific statement of reasons either in Decision 2010/386/CFSP or in Regulation No 610/2010.

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(1)  Council Act 2010/C 188/09 of 13 July 2010: Notice for the attention of the persons, groups and entities on the list provided for in Article 2(3) of Council Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism (OJ 2010 C 188, p. 13).

(2)  Council Decision 2010/386/CFSP of 12 July 2010 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism (OJ 2010 L 178, p. 28).

(3)  Council Implementing Regulation (EU) No 610/2010 of 12 July 2010 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Implementing Regulation (EU) No 1285/2009 (OJ 2010 L 178, p. 1).

(4)  Council Common Position 2001/931/CFSP of 27 December 2001 on the application of specific measures to combat terrorism (OJ 2001 L 344, p. 93).

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| 20.11.2010 | EN | Official Journal of the European Union | C 317/33 |
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Action brought on 14 September 2010 — Republic of Hungary v European Commission

(Case T-407/10)

()

2010/C 317/61

Language of the case: Hungarian

Parties

Applicant: Republic of Hungary (represented by: M. Fehér and K. Szíjjártó, Agents)

Defendant: European Commission

Form of order sought

| — | Annulment of Article 1(3) and (4) of and Annex 2 to Commission Decision C(2010) 4593 of 8 July 2010 concerning the major project for ‘reconstruction of the Budapest-Kelenföld Székesfehérvár-Boba railway line, Section I, phase 1’ forming part of the ‘Transport’ operational programme for financial structural aid granted by the European Regional Development Fund and the Cohesion Fund, in so far as those provisions lay down the maximum quantity to which the co-financing rate should be applied in such a way as to exclude payments of VAT from eligible expenditure. |
| --- | --- |

—

Annulment of Article 1(3) and (4) of and Annex 2 to Commission Decision C(2010) 4593 of 8 July 2010 concerning the major project for ‘reconstruction of the Budapest-Kelenföld Székesfehérvár-Boba railway line, Section I, phase 1’ forming part of the ‘Transport’ operational programme for financial structural aid granted by the European Regional Development Fund and the Cohesion Fund, in so far as those provisions lay down the maximum quantity to which the co-financing rate should be applied in such a way as to exclude payments of VAT from eligible expenditure.

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

Order the Commission to pay the costs.

Pleas in law and main arguments

The applicant contests in part Commission Decision C(2010)4593 of 8 July 2010 concerning the major project for ‘reconstruction of the Budapest-Kelenföld Székesfehérvár-Boba railway line, section I, phase 1’ forming part of the ‘Transport’ operational programme for financial structural aid granted by the European Regional Development Fund and the Cohesion Fund under the Convergence objective. In that Decision, the Commission authorises the payment of a contribution to that major project from the European Regional Development Fund and the Cohesion Fund. In addition, the Commission takes the view that recoverable VAT could not be included in the maximum quantity to which the priority co-financing rate of the operational programme for the major project in question was to be applied.

In the grounds for its application, the applicant claims that the Commission adopted the contested Decision in breach of the provisions of European Union law applicable in this area and Article 56(4) of Regulation (EC) No 1083/2006 (1) and Article 3 of Regulation (EC) No 1084/2006, (2) in particular.

The applicant considers that Article 3(e) of Regulation No 1084/2006 clearly establishes that recoverable value added tax is not eligible for support in the form of a contribution from the Cohesion Fund. In the opinion of the applicant it follows unequivocally from that provision, on the other hand, that non-recoverable value added tax is eligible for support. Accordingly, having regard to the fact that, under European Union or national law on value added tax the beneficiary of the major project which is the subject of the contested Decision (Nemzeti Infrastruktúra Fejlesztő Zrt.) is not a taxable person, so that it cannot claim back the input value added tax charged to it, the applicant argues that, in the contested Decision, it is not open to the Commission to exclude expenditure arising from that tax.

Furthermore, the applicant complains that, given that the Commission did not consider to be eligible expenditure which Regulation No 1084/2006 did not include under expenditure which was not eligible and which the equivalent national legislation expressly described as eligible expenditure, by the contested Decision, the Commission was depriving the Member States of the powers devolved on them by Article 56(4) of Regulation No 1083/2006.

The applicant also alleges that the Commission’s assertion that the value added tax charged to the beneficiary will be ‘recoverable’ through the value added tax paid on the fee collected by the management of the infrastructure built by the beneficiary is a very wide interpretation of the concept of ‘recoverable value added tax’ used in Article 3(e) of Regulation No 1084/2006, which the wording of that provision does not support, and is, moreover, contrary to the legislation of the European Union on value added tax. According to the applicant, the beneficiary which carries out the construction work and the bodies managing the built infrastructure are independent of one another and have only an indirect relationship, as a result of the relevant legal provisions and, therefore, not through commercial transactions. In those circumstances, the applicant claims that the beneficiary is in fact obliged to bear the final burden of the VAT charged.

Finally, the applicant states that neither Regulation No 1083/2006 nor Regulation No 1084/2006 allows an interpretation to the effect that the Commission, when assessing eligible expenditure, including eligible value added tax, could base its decision on the fact that the Member State could have opted for a different legal solution as regards the organisation of the project and the management of the infrastructure. In that regard, the applicant takes the view that running the administration of national infrastructures and related public services is, essentially, the task of the Member States. Similarly, the applicant considers that, provided that they comply with the requirements laid down by European Union law, the Commission has to accept the option chosen by the Member State, together with the consequences for the assessment of eligible expenditure entailed by the beneficiary’s status as a taxable person or non-taxable person.

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(1)  Council Regulation (EC) No 1083/2006 of 11 July 2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1260/1999 (OJ 2006 L 210, p. 25).

(2)  Council Regulation (EC) No 1084/2006 of 11 July 2006 establishing a Cohesion Fund and repealing Regulation (EC) No 1164/94 (OJ 2006 210, p. 79).

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| 20.11.2010 | EN | Official Journal of the European Union | C 317/34 |
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Action brought on 15 September 2010 — Socitrel v Commission

(Case T-413/10)

()

2010/C 317/62

Language of the case: Portuguese

Parties

Applicant: Sociedade Industrial de Trefilaria, SA (São Romão de Coronado, Portugal) (represented by: F. Proença de Carvalho and T. de Faria, lawyers)

Defendant: European Commission.

Form of order sought

| — | partially annul Article 1 and Article 2 of the Commission decision of 30 June 2010 relating to a proceeding under the terms of Article 101 of the TFEU and Article 53 of the EEA Agreement (Case COMP/38.344 — Pre-stressing Steel) with regard to the Applicant; |
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partially annul Article 1 and Article 2 of the Commission decision of 30 June 2010 relating to a proceeding under the terms of Article 101 of the TFEU and Article 53 of the EEA Agreement (Case COMP/38.344 — Pre-stressing Steel) with regard to the Applicant;

| — | reduce the fine; |
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—

reduce the fine;

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

order the Commission to pay the costs.

Pleas in law and main arguments

The decision contested by the applicant is the same decision contested in Case T-385/10 ArcelorMittal Wire France and Others v Commission.

The applicant submits to the Court:

| (i) | Serious failure to state reasons in the contested decision, in breach of Article 296 of the TFEU, and breach of the principle of legitimate expectation in the application of the fine, infringing the rights of defence of the applicant when calculating the fine imposed on it. |
| --- | --- |

(i)

Serious failure to state reasons in the contested decision, in breach of Article 296 of the TFEU, and breach of the principle of legitimate expectation in the application of the fine, infringing the rights of defence of the applicant when calculating the fine imposed on it.

| (ii) | Breach of the rights of defence of SOCITREL by virtue of the excessive duration of the administrative procedure of the European Commission, undermining the right to a hearing within a reasonable time, pursuant to Article 6(1) of the European Convention on Human Rights. |
| --- | --- |

(ii)

Breach of the rights of defence of SOCITREL by virtue of the excessive duration of the administrative procedure of the European Commission, undermining the right to a hearing within a reasonable time, pursuant to Article 6(1) of the European Convention on Human Rights.

Alternatively,

| (iii) | Breach of Article 101 of the TFEU and manifest error of assessment in finding that SOCITREL was not operating autonomously in the market. |
| --- | --- |

(iii)

Breach of Article 101 of the TFEU and manifest error of assessment in finding that SOCITREL was not operating autonomously in the market.

| (iv) | The applicant also submits that the European Commission committed a manifest error by considering in the turnover, for the purposes of determining the 10 % limit of turnover applied to the calculation of fines, the combined turnover of the companies Emesa, Galycas and ITC, which did not form part of the PREVIDENTE Group at the time when the infringement was committed. |
| --- | --- |

(iv)

The applicant also submits that the European Commission committed a manifest error by considering in the turnover, for the purposes of determining the 10 % limit of turnover applied to the calculation of fines, the combined turnover of the companies Emesa, Galycas and ITC, which did not form part of the PREVIDENTE Group at the time when the infringement was committed.

| (v) | Breach of the principle of proportionality, non-discrimination and legitimate expectation when fixing the fine. |
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(v)

Breach of the principle of proportionality, non-discrimination and legitimate expectation when fixing the fine.

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| 20.11.2010 | EN | Official Journal of the European Union | C 317/35 |
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Action brought on 15 September 2010 — Companhia Previdente v Commission

(Case T-414/10)

()

2010/C 317/63

Language of the case: Portuguese

Parties

Applicant: Companhia Previdente — Sociedade De Controle de Participações Financeiras, SA (Lisbon, Portugal) (represented by: D. Proença de Carvalho and J. Caimoto Duarte, lawyers)

Defendant: European Commission

Form of order sought

| — | Annul in part Article 1 and Article 2 of Commission Decision C(2010) 4387 final of 30 June 2010 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case COMP/38.344 — Pre-stressing steel) in so far as they relate to the applicant; |
| --- | --- |

—

Annul in part Article 1 and Article 2 of Commission Decision C(2010) 4387 final of 30 June 2010 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case COMP/38.344 — Pre-stressing steel) in so far as they relate to the applicant;

| — | Declare that any reduction in the fine imposed on Socitrel, in the context of other actions concerning infringements for which Companhia Previdente may be jointly and severally liable, automatically gives rise to an equivalent reduction in the fine for which Companhia Previdente is jointly and severally liable. |
| --- | --- |

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Declare that any reduction in the fine imposed on Socitrel, in the context of other actions concerning infringements for which Companhia Previdente may be jointly and severally liable, automatically gives rise to an equivalent reduction in the fine for which Companhia Previdente is jointly and severally liable.

Pleas in law and main arguments

The decision contested by the applicant is the same as that contested in Case T-385/10 ArcelorMittal Wire France and Others v Commission.

The applicant alleges:

| (i) | Infringement of Article 101 TFEU and of the principle of individual responsibility for infringements, in relation to Article 6 of the European Convention on Human Rights, and of Article 23(2) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty. (1) A manifest error of assessment was made in the Decision, in determining that COMPANHIA PREVIDENTE was jointly and severally liable for the infringements committed by SOCITREL, and exceeding the maximum amount of fine under Article 23(2) of Regulation 1/2003. |
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(i)

Infringement of Article 101 TFEU and of the principle of individual responsibility for infringements, in relation to Article 6 of the European Convention on Human Rights, and of Article 23(2) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty. (1) A manifest error of assessment was made in the Decision, in determining that COMPANHIA PREVIDENTE was jointly and severally liable for the infringements committed by SOCITREL, and exceeding the maximum amount of fine under Article 23(2) of Regulation 1/2003.

| (ii) | Infringement of Article 296 TFEU, since the applicant’s arguments were not refuted and the presumption that COMPANHIA PREVIDENTE exercised decisive influence over SOCITREL, for the purposes of attributing joint and several liability and calculating the fine during the period between 1998 and 2002, was not rebutted in a reasoned manner, and the grounds on which it was concluded that there was a decisive influence during the previous period, between 1994 and 1998, in which the presumption did not appear to apply, were not properly set out. |
| --- | --- |

(ii)

Infringement of Article 296 TFEU, since the applicant’s arguments were not refuted and the presumption that COMPANHIA PREVIDENTE exercised decisive influence over SOCITREL, for the purposes of attributing joint and several liability and calculating the fine during the period between 1998 and 2002, was not rebutted in a reasoned manner, and the grounds on which it was concluded that there was a decisive influence during the previous period, between 1994 and 1998, in which the presumption did not appear to apply, were not properly set out.

Alternatively,

| (iii) | Infringement of Article 101(1) TFEU, Article 53 of the EEA Agreement, Article 23(2) of Regulation (EC) No 1/2003 and of the principle of proportionality, since the maximum amount of fine that could have been imposed on COMPANHIA PREVIDENTE was exceeded. |
| --- | --- |

(iii)

Infringement of Article 101(1) TFEU, Article 53 of the EEA Agreement, Article 23(2) of Regulation (EC) No 1/2003 and of the principle of proportionality, since the maximum amount of fine that could have been imposed on COMPANHIA PREVIDENTE was exceeded.

| (iv) | Infringement of the principles of proportionality and of non-discrimination, since no account was taken of the economic context of the current crisis and the inability of COMPANHIA PREVIDENTE to pay. |
| --- | --- |

(iv)

Infringement of the principles of proportionality and of non-discrimination, since no account was taken of the economic context of the current crisis and the inability of COMPANHIA PREVIDENTE to pay.

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

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| 20.11.2010 | EN | Official Journal of the European Union | C 317/35 |
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Action brought on 15 September 2010 — Emme v Commission

(Case T-422/10)

()

2010/C 317/64

Language of the case: Italian

Parties

Applicant: Emme Holding SpA (Pescara, Italy) (represented by: G. Visconti, E. Vassallo di Castiglione, M. Siragusa, M. Beretta and P. Ferrari, lawyers)

Defendant: European Commission

Form of order sought

| — | Annul or reduce the fine imposed by the Commission on Emme Holding by decision of 30 June 2010 (Case COMP/38.344 — Pre-stressing steel). |
| --- | --- |

—

Annul or reduce the fine imposed by the Commission on Emme Holding by decision of 30 June 2010 (Case COMP/38.344 — Pre-stressing steel).

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

—

Order the Commission to pay the costs.

Pleas in law and main arguments

The decision contested in the present case is the same as that in Case T-385/10 ArcellorMittal Wire France and Others v Commission.

In particular, the applicant submits that:

| — | the attribution to the applicant of a single and continuous infringement instituted by all the European cartels (Club Europa) and all the national/regional cartels (Club Italiano, Club España and the Accordo Meridionale) is unjustified. The applicant has never in fact participated (actively or passively) at European level in the alleged infringement. Similarly, Trame was unaware of any regional or national cartels operating in countries other than Italy. |
| --- | --- |

—

the attribution to the applicant of a single and continuous infringement instituted by all the European cartels (Club Europa) and all the national/regional cartels (Club Italiano, Club España and the Accordo Meridionale) is unjustified. The applicant has never in fact participated (actively or passively) at European level in the alleged infringement. Similarly, Trame was unaware of any regional or national cartels operating in countries other than Italy.

| — | the decision takes account of both stranded wire (7 strands) and braided wire (2-3 strands). However, the applicant submits that braided wire has never been the subject of a cartel in connection with Club Italia. The turnover generated by that product should therefore not be taken into account in calculating the fine. |
| --- | --- |

—

the decision takes account of both stranded wire (7 strands) and braided wire (2-3 strands). However, the applicant submits that braided wire has never been the subject of a cartel in connection with Club Italia. The turnover generated by that product should therefore not be taken into account in calculating the fine.

The applicant also seeks a reduction of the fine, on the ground that its participation in the alleged infringement was marginal, and on account of its inability to pay.

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| 20.11.2010 | EN | Official Journal of the European Union | C 317/36 |
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Action brought on 16 September 2010 — Redaelli Tecna v Commission

(Case T-423/10)

()

2010/C 317/65

Language of the case: Italian

Parties

Applicant: Redaelli Tecna SpA (Milan, Italy) (represented by: R. Zaccà, M. Todino and E. Cruellas Sada, lawyers)

Defendant: European Commission

Form of order sought

| — | Annul the contested decision in so far as it finds that Redaelli participated in the cartel referred to in the decision throughout the period 1984-1992. |
| --- | --- |

—

Annul the contested decision in so far as it finds that Redaelli participated in the cartel referred to in the decision throughout the period 1984-1992.

| — | Annul the contested decision in so far as it rejected Redaelli’s request for leniency and, consequently, grant an appropriate reduction in the amount of the fine, on account of the cooperation given by Redaelli in the Commission’s investigation by means of that request. |
| --- | --- |

—

Annul the contested decision in so far as it rejected Redaelli’s request for leniency and, consequently, grant an appropriate reduction in the amount of the fine, on account of the cooperation given by Redaelli in the Commission’s investigation by means of that request.

| — | Further reduce, on ground of equity, the fine imposed on Redaelli by way of compensation for the unreasonable length of the procedure. |
| --- | --- |

—

Further reduce, on ground of equity, the fine imposed on Redaelli by way of compensation for the unreasonable length of the procedure.

Pleas in law and main arguments

The decision contested in the present case is the same as that in Case T-385/10 ArcellorMittal Wire France and Others v Commission.

In particular, the applicant submits that:

| — | The Commission committed a serious infringement of the principle of equal treatment by applying stricter standards only to Redaelli and refusing to grant it leniency, which, conversely, was granted to other undertakings whose requests for leniency contributed little in terms of ‘added value’, and considerably less than the added value contributed by the applicant. In so doing, the Commission also infringed the principle of protection of legitimate expectations because, essentially, it disregarded the applicant’s legitimate expectation that its own request would be assessed in the light of the criteria developed in the Commission’s practice at the time of the request, which were laid down in the 2002 Notice. |
| --- | --- |

—

The Commission committed a serious infringement of the principle of equal treatment by applying stricter standards only to Redaelli and refusing to grant it leniency, which, conversely, was granted to other undertakings whose requests for leniency contributed little in terms of ‘added value’, and considerably less than the added value contributed by the applicant. In so doing, the Commission also infringed the principle of protection of legitimate expectations because, essentially, it disregarded the applicant’s legitimate expectation that its own request would be assessed in the light of the criteria developed in the Commission’s practice at the time of the request, which were laid down in the 2002 Notice.

| — | The Commission claimed incorrectly that the parties were involved in the cartel during the period 1984-1992 but has failed to adduce sufficient evidence concerning the existence of the cartel throughout the period in question. |
| --- | --- |

—

The Commission claimed incorrectly that the parties were involved in the cartel during the period 1984-1992 but has failed to adduce sufficient evidence concerning the existence of the cartel throughout the period in question.

| — | The unreasonable length of the administrative procedure adversely affected the applicant’s rights of defence, as a result of which it was required to obtain exculpatory evidence after it had ceased to be available, and also had a negative impact on the actual assessment of the applicant’s request for leniency. |
| --- | --- |

—

The unreasonable length of the administrative procedure adversely affected the applicant’s rights of defence, as a result of which it was required to obtain exculpatory evidence after it had ceased to be available, and also had a negative impact on the actual assessment of the applicant’s request for leniency.

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| 20.11.2010 | EN | Official Journal of the European Union | C 317/36 |
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Action brought on 18 September 2010 — Dosenbach-Ochsner v OHIM — Sisma (Representation of a rectangle with elephants)

(Case T-424/10)

()

2010/C 317/66

Language in which the application was lodged: German

Parties

Applicant: Dosenbach-Ochsner AG Schuhe und Sport (Dietikon, Switzerland) (represented by: O. Rauscher, 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: Sisma SpA (Mantova, Italy)

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 15 July 2010 in Case R 1638/2008-4; |
| --- | --- |

—

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 July 2010 in Case R 1638/2008-4;

| — | Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs. |
| --- | --- |

—

Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: The figurative mark representing a rectangle with elephants for goods in Classes 10, 16, 21, 24 and 25

Proprietor of the Community trade mark: SISMA S.p.A.

Applicant for the declaration of invalidity: the applicant

Trade mark right of applicant for the declaration: international and national figurative marks representing an elephant and the national word mark ‘elefanten’ for goods in Classes 24 and 25

Decision of the Cancellation Division: rejection of the application for a declaration of invalidity

Decision of the Board of Appeal: dismissal of the appeal

Pleas in law: Infringement of Article 53(1)(a) in conjunction with Article 8(1)(b) and (2)(a) of Regulation (EC) No 207/2009 (1) as the marks at issue are conceptually, visually and aurally similar and the applicant has expressly submitted that its trade marks have acquired a highly distinctive character as a result of intensive use or their reputation.

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

---

| 20.11.2010 | EN | Official Journal of the European Union | C 317/37 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/37

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Action brought on 21 September 2010 — Häfele v OHIM (Mixfront)

(Case T-425/10)

()

2010/C 317/67

Language in which the application was lodged: German

Parties

Applicant: Häfele GmbH & Co. KG (Nagold, Germany) (represented by M. Eck and J. Dönch, lawyers)

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 30 June 2010 in Case R 338/2010-1; |
| --- | --- |

—

Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 June 2010 in Case R 338/2010-1;

| — | order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs. |
| --- | --- |

—

order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘Mixfront’ for goods in Classes 6 and 20.

Decision of the Examiner: Application refused.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Article 7(1)(b), (c) and (d) of Regulation (EC) No 207/2009, (1) as the Community trade mark concerned is distinctive, is not descriptive and is not a name that has become customary.

---

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

---

| 20.11.2010 | EN | Official Journal of the European Union | C 317/37 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/37

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Action brought on 16 September 2010 — Moreda-Riviere Trefilerías SA v Commission

(Case T-426/10)

()

2010/C 317/68

Language of the case: Spanish

Parties

Applicant: Moreda-Riviere Trefilerías SA (Gijón, Spain) (represented by F. González Díaz and A. Tresandi Blanco, lawyers)

Defendant: European Commission

Form of order sought

| — | Annulment pursuant to Article 263 of the Treaty on the functioning of the European Union of the decision of the European Commission of 30 June 2010 C(2010) 4387 final on a proceeding under Article 101 TFEU in Case COMP/38.344 — Prestressing steel; |
| --- | --- |

—

Annulment pursuant to Article 263 of the Treaty on the functioning of the European Union of the decision of the European Commission of 30 June 2010 C(2010) 4387 final on a proceeding under Article 101 TFEU in Case COMP/38.344 — Prestressing steel;

| — | or, in the alternative, annulment or reduction pursuant to Article 261 of the Treaty on the functioning of the European Union of the amount of the fine imposed by that decision; |
| --- | --- |

—

or, in the alternative, annulment or reduction pursuant to Article 261 of the Treaty on the functioning of the European Union of the amount of the fine imposed by that decision;

| — | an order that the Commission should pay the costs. |
| --- | --- |

—

an order that the Commission should pay the costs.

Pleas in law and main arguments

The decision that is the subject of these proceedings is the same as that challenged in Case T-385/10 ArcelorMittal v Commission.

The applicant specifically alleges:

| — | misapplication of Article 101 TFEU so far as concerns the attribution of liability to MRT by reason of the alleged infringement of that article given that, on the one hand, it was not MRT but TYCSA (PSC) that was responsible for the supposed participation of TYCSA S.L. in the conduct described in the decision and, on the other, TYCSA S.L. did not form part of an economic entity with GSW/TYCSA. There are, therefore, no grounds for attributing to MRT any liability for the conduct of TYCSA S.L. and TYCSA PSC. |
| --- | --- |

—

misapplication of Article 101 TFEU so far as concerns the attribution of liability to MRT by reason of the alleged infringement of that article given that, on the one hand, it was not MRT but TYCSA (PSC) that was responsible for the supposed participation of TYCSA S.L. in the conduct described in the decision and, on the other, TYCSA S.L. did not form part of an economic entity with GSW/TYCSA. There are, therefore, no grounds for attributing to MRT any liability for the conduct of TYCSA S.L. and TYCSA PSC.

| — | commission of errors of fact and of law in assessing the conduct at issue, for the European Commission erred when it considered that all the agreements and meetings, taken as a whole, which took place in various Member States at different times, with different participants and different aims, constituted a single continuous infringement contrary to Article 101 TFEU. Moreover, the agreements identified do not amount to a coherent whole intended to attain a single aim; |
| --- | --- |

—

commission of errors of fact and of law in assessing the conduct at issue, for the European Commission erred when it considered that all the agreements and meetings, taken as a whole, which took place in various Member States at different times, with different participants and different aims, constituted a single continuous infringement contrary to Article 101 TFEU. Moreover, the agreements identified do not amount to a coherent whole intended to attain a single aim;

| — | alternatively, the applicant seeks annulment or reduction of the fine for failure to observe the principles of proportionality, protection of legitimate expectations, non-retroactive effect and legal certainty, because the guidelines of 1998 were not applied in the computing of the fines, certain mitigating circumstances were not taken into account and because of infringement of the right to a fair hearing and lack of reasoning. |
| --- | --- |

—

alternatively, the applicant seeks annulment or reduction of the fine for failure to observe the principles of proportionality, protection of legitimate expectations, non-retroactive effect and legal certainty, because the guidelines of 1998 were not applied in the computing of the fines, certain mitigating circumstances were not taken into account and because of infringement of the right to a fair hearing and lack of reasoning.

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| 20.11.2010 | EN | Official Journal of the European Union | C 317/38 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/38

---

Action brought on 16 September 2010 — Trefilerías Quijano v Commission

(Case T-427/10)

()

2010/C 317/69

Language of the case: Spanish

Parties

Applicant: Trefilerías Quijano (Los Corrales de Buelna, Spain) (represented by E. González Díaz and A. Tresandri Blanco, lawyers)

Defendant: European Commission

Form of order sought

| — | Annulment pursuant to Article 263 of the Treaty on the functioning of the European Union of the decision of the European Commission of 30 June 2010 C(2010) 4387 final on a proceeding under Article 101 TFEU in Case COMP/38.344 — Prestressing steel; |
| --- | --- |

—

Annulment pursuant to Article 263 of the Treaty on the functioning of the European Union of the decision of the European Commission of 30 June 2010 C(2010) 4387 final on a proceeding under Article 101 TFEU in Case COMP/38.344 — Prestressing steel;

| — | or, in the alternative, annulment or reduction pursuant to Article 261 of the Treaty on the functioning of the European Union of the amount of the fine imposed by that decision; |
| --- | --- |

—

or, in the alternative, annulment or reduction pursuant to Article 261 of the Treaty on the functioning of the European Union of the amount of the fine imposed by that decision;

| — | an order that the Commission should pay the costs. |
| --- | --- |

—

an order that the Commission should pay the costs.

Pleas in law and main arguments

The decision challenged in these proceedings is the same as that in Case T-426/10 Moreda-Riviere Trefilerías v Commission.

The pleas in law and main arguments are similar to those raised in that case.

The applicant denies that it should be held liable for the alleged infringement of Article 101 TFEU.

---

| 20.11.2010 | EN | Official Journal of the European Union | C 317/38 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/38

---

Action brought on 16 September 2010 — Trenzas y Cables de Acero v European Commission

(Case T-428/10)

()

2010/C 317/70

Language of the case: Spanish

Parties

Applicant: Trenzas y Cables de Acero (Santander, Spain) (represented by E. González Díaz and A. Tresandí Blanco, lawyers))

Defendant: European Commission

Form of order sought

| — | Annulment pursuant to Article 263 of the Treaty on the functioning of the European Union of the decision of the European Commission of 30 June 2010 C(2010) 4387 final on a proceeding under Article 101 TFEU in Case COMP/38.344 — Prestressing steel; |
| --- | --- |

—

Annulment pursuant to Article 263 of the Treaty on the functioning of the European Union of the decision of the European Commission of 30 June 2010 C(2010) 4387 final on a proceeding under Article 101 TFEU in Case COMP/38.344 — Prestressing steel;

| — | or, in the alternative, annulment or reduction pursuant to Article 261 of the Treaty on the functioning of the European Union of the amount of the fine imposed by that decision; |
| --- | --- |

—

or, in the alternative, annulment or reduction pursuant to Article 261 of the Treaty on the functioning of the European Union of the amount of the fine imposed by that decision;

| — | an order that the Commission should pay the costs. |
| --- | --- |

—

an order that the Commission should pay the costs.

Pleas in law and main arguments

The decision challenged in these proceedings is the same as that in Case T-426/10 Moreda-Riviere Trefilerías v Commission.

The pleas in law and main arguments are similar to those raised in that case.

The applicant claims that the Commission made an error of fact and of law by applying Article 101 TFEU Article 101 TFEU so far as concerns the attribution of liability to TYCSA PSC by reason of the alleged infringement of that article in that the Commission attributes liability for the conduct described in the Decision to TYCSA PSC as an alleged member of an economic entity made up of various legal entities (GSW, TQ, MRT and TYCSA PSA itself) from 30 November 1992 to 19 September 2002.

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| 20.11.2010 | EN | Official Journal of the European Union | C 317/39 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/39

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Action brought on 17 September 2010 — Magnesitas de Rubián and Others v Commission

(Case T-430/10)

()

2010/C 317/71

Language of the case: Spanish

Parties

Applicants: Magnesitas de Rubián SA (Incio, Spain), Magnesitas Navarras SA (Zubiri, Spain), Ellinikoi Lefkolithoi Anonimos Metalleftiki Viomichaniki Naftiliaki kai Emporiki Etaireria (Athens, Greece) (represented by: H. Brokelmann and P. Martínez-Lage, lawyers)

Defendant: European Commission

Form of order sought

| — | principally delete paragraph 3 of the Reference Document on Best Available Techniques in the Cement, Lime and Magnesium Oxide Manufacturing Industries (OJ C 166 of 25 June 2010), and the references to the magnesium oxide industry which appear in the other paragraphs of that document; |
| --- | --- |

—

principally delete paragraph 3 of the Reference Document on Best Available Techniques in the Cement, Lime and Magnesium Oxide Manufacturing Industries (OJ C 166 of 25 June 2010), and the references to the magnesium oxide industry which appear in the other paragraphs of that document;

| — | in the alternative, and in the event that the General Court does not delete paragraph 3 of the reference document in its entirety, annul in any event paragraph 3.5.5.4, including in particular the emission levels in Table 3.11, and |
| --- | --- |

—

in the alternative, and in the event that the General Court does not delete paragraph 3 of the reference document in its entirety, annul in any event paragraph 3.5.5.4, including in particular the emission levels in Table 3.11, and

| — | in any event, order the Commission to pay the costs. |
| --- | --- |

—

in any event, order the Commission to pay the costs.

Pleas in law and main arguments

This action is directed against an act adopted by the Commission in the framework of Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control (1) that establishes a system of pollution control and provides for an authorisation mechanism for certain industrial installations.

That act considers the best available technique (BAT) is the reduction of SOx derived from the gases produced and fixes emission levels for SOx that, apart from being lower than in any other sector, are only achievable in the applicants’ opinion by the use of techniques which cause serious environmental damage. Furthermore, the applicants argue that the emission levels are to be determined on the basis of the data supplied by a single undertaking and disregarding the procedure established for that.

In support of its application, the applicants raise four pleas in law.

| — | Lack of competence by the Commission
  The applicants assert in that connection that the Commission lacks competence to include the manufacture of magnesium oxide in the contested act. |
| --- | --- |

—

Lack of competence by the Commission

The applicants assert in that connection that the Commission lacks competence to include the manufacture of magnesium oxide in the contested act.

| — | Infringement of essential procedural requirements
  According to the applicants, the contested act contains three infringements of essential procedural requirements:






  — | Failure to communicate to the applicants the opening of the drafting procedure for the contested act and their delayed participation in the latter; |
| --- | --- | --- |

—

Infringement of essential procedural requirements

According to the applicants, the contested act contains three infringements of essential procedural requirements:

—

Failure to communicate to the applicants the opening of the drafting procedure for the contested act and their delayed participation in the latter;

| — | the absence in the contested act of the ‘split views’ presented by the applicants, and |
| --- | --- |

—

the absence in the contested act of the ‘split views’ presented by the applicants, and

| — | failure to observe the period laid down for the analysis of the final draft of the contested act. |
| --- | --- |

—

failure to observe the period laid down for the analysis of the final draft of the contested act.

| — | Infringement of Article 1 of Directive 2008/1 relating to the integrated prevention and control of pollution, in so far as the contested act violates the objective set out in Article 1 thereof, consistent with environmental protection considered as a whole. |
| --- | --- |

—

Infringement of Article 1 of Directive 2008/1 relating to the integrated prevention and control of pollution, in so far as the contested act violates the objective set out in Article 1 thereof, consistent with environmental protection considered as a whole.

| — | Infringement of the general principle of equal treatment.
  The applicants take the view that the contested act infringes the principle of equal treatment by treating in the same way undertakings which are in different situations. |
| --- | --- |

—

Infringement of the general principle of equal treatment.

The applicants take the view that the contested act infringes the principle of equal treatment by treating in the same way undertakings which are in different situations.

---

(1)  OJ 2008 L 24, p. 8.

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| 20.11.2010 | EN | Official Journal of the European Union | C 317/40 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/40

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Action brought on 24 September 2010 — Nencini v Parliament

(Case T-431/10)

()

2010/C 317/72

Language of the case: Italian

Parties

Applicant: Riccardo Nencini (Florence, Italy) (represented by: F. Bertini, lawyer)

Defendant: European Parliament

Form of order sought

| — | Annul, on the grounds set out in the application, the decision of the Secretary-General of the European Parliament of 16 July 2010, addressed to Mr Riccardo Nencini, Communication No 312331 of the Director General of the European Parliament’s Directorate-General for Finances of 4 August 2010, addressed to Mr Riccardo Nencini and, in so far as necessary, any other related and/or prior acts challenged in these proceedings. |
| --- | --- |

—

Annul, on the grounds set out in the application, the decision of the Secretary-General of the European Parliament of 16 July 2010, addressed to Mr Riccardo Nencini, Communication No 312331 of the Director General of the European Parliament’s Directorate-General for Finances of 4 August 2010, addressed to Mr Riccardo Nencini and, in so far as necessary, any other related and/or prior acts challenged in these proceedings.

| — | In the alternative, annul the contested decision and refer the matter back to the Secretary-General of the European Parliament for a fair reassessment of the sum at issue. |
| --- | --- |

—

In the alternative, annul the contested decision and refer the matter back to the Secretary-General of the European Parliament for a fair reassessment of the sum at issue.

| — | In any event, order the defendant to pay the costs. |
| --- | --- |

—

In any event, order the defendant to pay the costs.

Pleas in law and main arguments

In support of his action, the applicant, a Member of the European Parliament who served during the period 1994 — 1999, relies on the following grounds:

| — | Infringement of the language regime of the European Community and consequent infringement of the rights of due process and the principle of effective protection, in so far as the two contested measures should have been written in Italian, the language of the Member State of which the applicant is a national. |
| --- | --- |

—

Infringement of the language regime of the European Community and consequent infringement of the rights of due process and the principle of effective protection, in so far as the two contested measures should have been written in Italian, the language of the Member State of which the applicant is a national.

| — | The claim for the sum purportedly owing is inadmissible, since the right to claim that sum is time-barred. |
| --- | --- |

—

The claim for the sum purportedly owing is inadmissible, since the right to claim that sum is time-barred.

| — | Infringement of the principle that both parties must be heard and the principle of effective protection. It is submitted in this connection that, in the case of the applicant, the Secretary-General of the European Parliament adopted the final decision on the basis of facts and legal grounds which are, in part, different from those previously relied on and made known to the applicant. |
| --- | --- |

—

Infringement of the principle that both parties must be heard and the principle of effective protection. It is submitted in this connection that, in the case of the applicant, the Secretary-General of the European Parliament adopted the final decision on the basis of facts and legal grounds which are, in part, different from those previously relied on and made known to the applicant.

| — | Infringement of the rules governing parliamentary allowances for Members of the European Parliament, with reference to travel allowances, by failing to take account of the fact that, during the period in which the applicant served as an MEP, his place of residence was Rome. In that city, which is capital of Italy and the centre of national political life, Mr Nencini was continually engaged in political activities as the national leader of his political party. |
| --- | --- |

—

Infringement of the rules governing parliamentary allowances for Members of the European Parliament, with reference to travel allowances, by failing to take account of the fact that, during the period in which the applicant served as an MEP, his place of residence was Rome. In that city, which is capital of Italy and the centre of national political life, Mr Nencini was continually engaged in political activities as the national leader of his political party.

| — | Infringement of the rules governing parliamentary allowances for Members of the European Parliament, with reference to the allowance for secretarial assistance. The applicant states he transferred to the persons employed as his personal secretaries all the allowances received for that purpose and did not retain any sum for himself. |
| --- | --- |

—

Infringement of the rules governing parliamentary allowances for Members of the European Parliament, with reference to the allowance for secretarial assistance. The applicant states he transferred to the persons employed as his personal secretaries all the allowances received for that purpose and did not retain any sum for himself.

| — | Finally, the applicant claims infringement of the general principle of proportionality. |
| --- | --- |

—

Finally, the applicant claims infringement of the general principle of proportionality.

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| 20.11.2010 | EN | Official Journal of the European Union | C 317/40 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/40

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Action brought on 17 September 2010 — Vivendi v Commission

(Case T-432/10)

()

2010/C 317/73

Language of the case: French

Parties

Applicant: Vivendi (Paris, France) (represented by: M. Struys, O. Fréget and J.-Y. Ollier, lawyers)

Defendant: European Commission

Form of order sought

| — | Annulment of the Commission’s Decision of 2 July 2010 in Case COMP/C-1/39.653 — Vivendi & Iliad/France Télécom, by which the European Commission rejected Vivendi’s complaint of 2 March 2009 under Article 7 of Council Regulation (EC) No 1/2003, relating to practices of France Télécom considered to be contrary to Article 102 of the TFEU; |
| --- | --- |

—

Annulment of the Commission’s Decision of 2 July 2010 in Case COMP/C-1/39.653 — Vivendi & Iliad/France Télécom, by which the European Commission rejected Vivendi’s complaint of 2 March 2009 under Article 7 of Council Regulation (EC) No 1/2003, relating to practices of France Télécom considered to be contrary to Article 102 of the TFEU;

| — | An order that the Commission pay the costs incurred by the applicant before the General Court. |
| --- | --- |

—

An order that the Commission pay the costs incurred by the applicant before the General Court.

Pleas in law and main arguments

The applicant seeks the annulment of Commission Decision C(2010) 4730 of 2 July 2010 rejecting, for lack of Community interest, the complaint lodged by the applicant against France Télécom relating to its alleged abuse of a dominant position, in breach of Article 102 of the TFEU, on the French broadband and telephone subscription market, alleging that France Télécom practised structural discrimination in the tariffs for its wholesale supplies to the advantage of its retail division and maintained too high a tariff for recurrent access to the local loop.

In support of its action, the applicant puts forward a number of pleas in law alleging, among other things:

| — | errors in law, manifest errors of assessment and breaches of its duty to examine carefully damage by the practices complained of to the functioning of the internal market, on the ground that the Commission confined itself to (i) examining only the mean level of prices for broadband on retail markets without inquiring whether that level of prices was actually likely to reveal the practices complained of, and (ii) a subjective assessment of the obsolete nature of the provision of a telephone subscription service; |
| --- | --- |

—

errors in law, manifest errors of assessment and breaches of its duty to examine carefully damage by the practices complained of to the functioning of the internal market, on the ground that the Commission confined itself to (i) examining only the mean level of prices for broadband on retail markets without inquiring whether that level of prices was actually likely to reveal the practices complained of, and (ii) a subjective assessment of the obsolete nature of the provision of a telephone subscription service;

| — | an insufficient statement of reasons, errors in law and of fact and manifest errors of assessment on the ground that the Commission concluded that the possibility of establishing the existence of an infringement was very limited, since the Commission:






  — | did not seek to examine the question of the discriminatory character of the prices actually invoiced by reference to the services actually supplied and wrongly asserted that the preliminary investigation had not revealed any documentary or other evidence; |
| --- | --- | --- |

—

an insufficient statement of reasons, errors in law and of fact and manifest errors of assessment on the ground that the Commission concluded that the possibility of establishing the existence of an infringement was very limited, since the Commission:

—

did not seek to examine the question of the discriminatory character of the prices actually invoiced by reference to the services actually supplied and wrongly asserted that the preliminary investigation had not revealed any documentary or other evidence;

| — | decided that the calculation method used by France Télécom to set its tariffs for access to the local loop was validated by the Autorité de régulation des communications électroniques et des postes (Electronic Communications and Postal Regulation Authority) (ARCEP) and considered that the fact that France Télécom had sent it erroneous information without seeking to correct it was irrelevant in view of the method used; |
| --- | --- |

—

decided that the calculation method used by France Télécom to set its tariffs for access to the local loop was validated by the Autorité de régulation des communications électroniques et des postes (Electronic Communications and Postal Regulation Authority) (ARCEP) and considered that the fact that France Télécom had sent it erroneous information without seeking to correct it was irrelevant in view of the method used;

| — | distorted the object of the eviction tests submitted by the applicant, which was to establish the effects of the practices complained of; |
| --- | --- |

—

distorted the object of the eviction tests submitted by the applicant, which was to establish the effects of the practices complained of;

| — | disregard of the guarantees which apply to the investigation of complaints and to decisions to take no action in respect of abuse of a dominant position, the applicant (i) not having been given immediate access to adverse documents or to the documents in the file and (ii) not having been given sufficient time to submit its comments on those documents. |
| --- | --- |

—

disregard of the guarantees which apply to the investigation of complaints and to decisions to take no action in respect of abuse of a dominant position, the applicant (i) not having been given immediate access to adverse documents or to the documents in the file and (ii) not having been given sufficient time to submit its comments on those documents.

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| 20.11.2010 | EN | Official Journal of the European Union | C 317/41 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/41

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Appeal brought on 20 September 2010 by Allen and Others against the Order of the European Union Civil Service Tribunal made on 13 July 2010 in case Allen and Others v Commission, F-103/09

(Case T-433/10 P)

()

2010/C 317/74

Language of the case: English

Parties

Appellant: John Allen (Horspath, United Kingdom) and Others (represented by: K. Lasok, QC and B. Lask, Barrister)

Other party to the appeal proceedings: European Commission

Form of order sought by the appellant

| — | Allow the appeal; |
| --- | --- |

—

Allow the appeal;

| — | Quash the Order of the European Union Civil Service Tribunal (First Chamber), dated 13 July 2010 in case F-103/09; |
| --- | --- |

—

Quash the Order of the European Union Civil Service Tribunal (First Chamber), dated 13 July 2010 in case F-103/09;

| — | Dismiss the first and second plea of admissibility raised by the defendant; and |
| --- | --- |

—

Dismiss the first and second plea of admissibility raised by the defendant; and

| — | Order the costs of this appeal to be paid by the defendant. |
| --- | --- |

—

Order the costs of this appeal to be paid by the defendant.

Pleas in law and main arguments

By the present appeal, the appellants seek to have set aside the Order to the European Union Civil Service Tribunal (EUCST) of 13 July 2010, delivered in case F-103/09 Allen and Others v Commission, by which the EUCST dismissed as inadmissible the action by which the appellants have sought damages and the annulment of a decision refusing to pay damages in respect of the loss suffered by each applicant as a result of the fact that they were not recruited as temporary servants of the Communities during the time they worked at the Joint European Torus (JET) Joint Undertaking.

In support of their appeal, the appellants submit that by concluding that an obligation to act within a reasonable period applied in the present context and, even if it did, by its approach to the duration and start point of that period, the EUCST acted contrary to the case law of the Court of Justice and to fundamental principles of European Union law.

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| 20.11.2010 | EN | Official Journal of the European Union | C 317/41 |
| --- | --- | --- | --- |

20.11.2010

EN

Official Journal of the European Union

C 317/41

---

Action brought on 15 September 2010 — Hit Groep BV v European Commission

(Case T-436/10)

()

2010/C 317/75

Language of the case: Dutch

Parties

Applicant: Hit Groep BV (Haarlem, Netherlands) (represented by: G. van der Wal, G. Oosterhuis and H. Albers, lawyers)

Defendant: European Commission

Form of order sought

| — | Annul the Decision in so far as it is directed against the applicant, in particular Article 1(9)(b), Article 2(9) and Article 4(22), in the alternative, set the fine imposed on the applicant in Article 2(9) at nil or reduce it equitably; |
| --- | --- |

—

Annul the Decision in so far as it is directed against the applicant, in particular Article 1(9)(b), Article 2(9) and Article 4(22), in the alternative, set the fine imposed on the applicant in Article 2(9) at nil or reduce it equitably;

| — | Order the Commission to pay the applicant’s costs in these proceedings, including its costs of legal assistance. |
| --- | --- |

—

Order the Commission to pay the applicant’s costs in these proceedings, including its costs of legal assistance.

Pleas in law and main arguments

The applicant’s application is directed at the Commission’s Decision of 30 June 2010 in Case COMP/38.344 — Prestressing steel.

In support of its application the applicant puts forward five pleas in law:

| — | First, the Commission found in Article 1 of the Decision, wrongly and contrary to law, or without stating sufficient reasons, that the applicant infringed Article 101 TFEU and Article 53 EEA from 1 January 1998 to 17 January 2002.
  According to the applicant, the Commission has given insufficient reasons as to why it infringed Article 101 TFEU and has been drawn into this case by the Commission, otherwise than as a shareholder with ‘decisive influence’ in the period from 1 January 1998 to 17 January 2002. |
| --- | --- |

—

First, the Commission found in Article 1 of the Decision, wrongly and contrary to law, or without stating sufficient reasons, that the applicant infringed Article 101 TFEU and Article 53 EEA from 1 January 1998 to 17 January 2002.

According to the applicant, the Commission has given insufficient reasons as to why it infringed Article 101 TFEU and has been drawn into this case by the Commission, otherwise than as a shareholder with ‘decisive influence’ in the period from 1 January 1998 to 17 January 2002.

| — | Second, the Commission, wrongly and contrary to law, imposed a fine on the applicant. According to the applicant, the fine imposed by the Decision of 30 June 2010 on an undertaking such as the applicant which has not been economically active since 1 November 2004 is contrary to the aims of Article 101 TFEU, Community policy on fines, and the principle of proportionality. |
| --- | --- |

—

Second, the Commission, wrongly and contrary to law, imposed a fine on the applicant. According to the applicant, the fine imposed by the Decision of 30 June 2010 on an undertaking such as the applicant which has not been economically active since 1 November 2004 is contrary to the aims of Article 101 TFEU, Community policy on fines, and the principle of proportionality.

| — | Third, the Commission, wrongly and contrary to law, found in Article 1(9) of the contested decision that the applicant had infringed Article 101 TFEU and Article 53 EEA and on that basis imposed a fine on it of EUR 6 934 000 because the applicant was, in the Commission’s opinion, jointly liable with Nedri Spanstaal BV for the period from 1 January 1998 to 17 January 2002.
  The applicant submits that from 1 January 1998 to 17 January 2002 it was a private equity company which had no “decisive influence” over Nedri Spanstaal and for that reason cannot be held responsible for the infringement by Nedri Spanstaal of competition law. |
| --- | --- |

—

Third, the Commission, wrongly and contrary to law, found in Article 1(9) of the contested decision that the applicant had infringed Article 101 TFEU and Article 53 EEA and on that basis imposed a fine on it of EUR 6 934 000 because the applicant was, in the Commission’s opinion, jointly liable with Nedri Spanstaal BV for the period from 1 January 1998 to 17 January 2002.

The applicant submits that from 1 January 1998 to 17 January 2002 it was a private equity company which had no “decisive influence” over Nedri Spanstaal and for that reason cannot be held responsible for the infringement by Nedri Spanstaal of competition law.

| — | Fourth, and in the alternative, the applicant submits that the Commission, wrongly and contrary to law, imposed a fine on the applicant of EUR 6 934 000 and should have imposed no fine or a considerably lower fine on it.






  — | According to the applicant, the Commission should not have taken its 2003 turnover into account as the criterion for the purposes of fixing the 10 % ceiling for its fine; in any event, if the main rule in Article 23(2) of Regulation (EC) No 1/2003 was not applied, the Commission should have considered its consequences in the specific case in the light of the purpose of that provision. The fine is therefore not proportionate to the size of the undertaking and does not fulfil the requirements of the case-law. |
| --- | --- | --- |

—

Fourth, and in the alternative, the applicant submits that the Commission, wrongly and contrary to law, imposed a fine on the applicant of EUR 6 934 000 and should have imposed no fine or a considerably lower fine on it.

—

According to the applicant, the Commission should not have taken its 2003 turnover into account as the criterion for the purposes of fixing the 10 % ceiling for its fine; in any event, if the main rule in Article 23(2) of Regulation (EC) No 1/2003 was not applied, the Commission should have considered its consequences in the specific case in the light of the purpose of that provision. The fine is therefore not proportionate to the size of the undertaking and does not fulfil the requirements of the case-law.

| — | The Commission should also have granted the applicant the reduction for leniency which it granted Nedri Spanstaal. |
| --- | --- |

—

The Commission should also have granted the applicant the reduction for leniency which it granted Nedri Spanstaal.

| — | The Commission wrongly calculated the applicant’s fine separately and should have limited that fine to a fraction of the fine imposed on Nedri Spanstaal. The Decision in regard to the applicant is based on the applicant’s shareholding in Nedri Spanstaal during a 48/224th part of the total period of Nedri Spanstaal’s infringement; the fine does not satisfy the principal of proportionality. |
| --- | --- |

—

The Commission wrongly calculated the applicant’s fine separately and should have limited that fine to a fraction of the fine imposed on Nedri Spanstaal. The Decision in regard to the applicant is based on the applicant’s shareholding in Nedri Spanstaal during a 48/224th part of the total period of Nedri Spanstaal’s infringement; the fine does not satisfy the principal of proportionality.

| — | By failing to take account, after applying the 10 % ceiling, of the relatively limited period for which the applicant is held liable for Nedri Spanstaal’s infringement, the relatively limited quality of the applicant’s liability and its limited turnover, the Commission infringed the principle of proportionality. |
| --- | --- |

—

By failing to take account, after applying the 10 % ceiling, of the relatively limited period for which the applicant is held liable for Nedri Spanstaal’s infringement, the relatively limited quality of the applicant’s liability and its limited turnover, the Commission infringed the principle of proportionality.

| — | By failing to take account, after applying the 10 % ceiling, of the relatively limited period for which the applicant is held liable for the infringement in comparison with Nedri Spanstaal, the Commission infringed the principle of equal treatment. It follows from the case-law that the amount of the fine is also determined by the length of the infringement during which the fined undertaking is jointly responsible. The fact that the applicant’s fine is higher than Nedri Spanstaal’s fine is incompatible with this. |
| --- | --- |

—

By failing to take account, after applying the 10 % ceiling, of the relatively limited period for which the applicant is held liable for the infringement in comparison with Nedri Spanstaal, the Commission infringed the principle of equal treatment. It follows from the case-law that the amount of the fine is also determined by the length of the infringement during which the fined undertaking is jointly responsible. The fact that the applicant’s fine is higher than Nedri Spanstaal’s fine is incompatible with this.

| — | Fifthly, and in the alternative, the applicant submits that the Commission infringed its obligation to adopt a decision within a reasonable period, contrary to Article 6(1) of the EHRC and Article 41 of the Charter of Fundamental Rights of the EU. When setting the fine, the Commission wrongly failed to take account of the failure to act within a reasonable period. The duration of the proceedings in question is 94 months and thus unreasonably long. |
| --- | --- |

—

Fifthly, and in the alternative, the applicant submits that the Commission infringed its obligation to adopt a decision within a reasonable period, contrary to Article 6(1) of the EHRC and Article 41 of the Charter of Fundamental Rights of the EU. When setting the fine, the Commission wrongly failed to take account of the failure to act within a reasonable period. The duration of the proceedings in question is 94 months and thus unreasonably long.

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| 20.11.2010 | EN | Official Journal of the European Union | C 317/43 |
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Action brought on 22 September 2010 — Gap SA granen & producten v Commission

(Case T-437/10)

()

2010/C 317/76

Language of the case: Dutch

Parties

Applicant: Gap SA granen & producten NV (Zoersel, Belgium) (represented by: C. Ronse and A. Hansebout, lawyers)

Defendant: European Union, represented by the European Commission

Form of order sought

The applicant requests the General Court to declare that the European Union has incurred non-contractual liability and order it to pay compensation in respect of the harm which the applicant has suffered, more specifically, to pay it the sum of EUR 295 690,43, increased by Belgian statutory interest from the respective dates on which the applicant paid the disputed import duties, and also to order the European Union to pay a provisional sum of EUR 30 000, plus Belgian statutory interest, in respect of the further harm which the applicant has suffered.

Pleas in law and main arguments

The applicant is seeking compensation for the harm which it claims to have suffered by reason of the fact that the European Commission, when setting import duties on durum wheat, specifically in the context of Commission Regulation (EC) No 919/2009 of 1 October 2009 amending Regulation (EC) No 915/2009 fixing the import duties in the cereals sector applicable from 1 October 2009 (OJ 2009 L 259, p. 5), acted unlawfully and applied incorrect market prices and freight costs.

In support of its claim for compensation, the applicant submits that the Commission breached Article 4 of Regulation No 1249/96 (1) and the general duty of care by taking into account incorrect prices and freight costs for the purpose of imposing and calculating the import duties.

In the applicant’s view, the breach of Article 4 of Regulation No 1249/96 is sufficiently serious because the Commission did not have any discretionary power when it adopted Regulation No 919/2009. Moreover, it argues, the Commission’s breach of the duty of care is in itself a sufficiently serious breach.

The applicant concludes by submitting that the harm which it suffered was attributable to an improperly imposed and wrongly calculated duty, the precise amount of which the applicant proves. In addition, the applicant claims also to have suffered harm by reason of the time which it has had to devote to the present case and the lawyers’ fees which it has been obliged to incur.

---

(1)  Commission Regulation (EC) No 1249/96 of 28 June 1996 on rules of application (cereal sector import duties) for Council Regulation (EEC) No 1766/92 (OJ 1996 L 161, p. 125).

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| 20.11.2010 | EN | Official Journal of the European Union | C 317/43 |
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Action brought on 24 September 2010 — Forgital Italy v Council

(Case T-438/10)

()

2010/C 317/77

Language of the case: Italian

Parties

Applicant: Forgital Italy SpA (Velo d'Astico, Italy) (represented by: V. Turinetti di Priero and R. Mastroianni, lawyers)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

| — | annul Council Regulation (EU) No 566/2010 of 29 June 2010 amending Regulation (EC) No 1255/96 temporarily suspending the autonomous Common Customs Tariff duties on certain industrial, agricultural and fishery products, with particular reference to point (1) of Article 1 thereof, and Annex I to that Regulation in so far as it amends the description for CN Code 8108 20 00; |
| --- | --- |

—

annul Council Regulation (EU) No 566/2010 of 29 June 2010 amending Regulation (EC) No 1255/96 temporarily suspending the autonomous Common Customs Tariff duties on certain industrial, agricultural and fishery products, with particular reference to point (1) of Article 1 thereof, and Annex I to that Regulation in so far as it amends the description for CN Code 8108 20 00;

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

—

order the Council to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant in the present case is a company, with its seat in Italy, which is specialised in metalworking. It contests Regulation No 566/2010, which amended the applicable legislation temporarily suspending the autonomous Common Customs Tariff duties, in so far as one of the amendments introduced applies to the product designated by CN Code 8108 20 00, TARIC 20, the description of which was replaced with the following: ‘Raw ingots from the fusion of titanium and titanium alloys, of a diameter of not more than 380 mm’.

As a result of that amendment, ingots of a diameter greater than 380 mm — which had until then been exempt from duty under the previous legislation — were made liable, with effect from 1 July 2010, for payment of the Common Customs Tariff. On the other hand, ingots of a diameter of 380 mm or less will continue to be exempt from the duty until 31 December 2013.

In support of the action, the applicant relies on four pleas in law:

| 1. | Failure to state reasons for the decision, or failure to state adequate reasons. On this point, it is argued that inadequate reasons are given in the contested Regulation for the amendment to the description of the product designated by CN Code 8108 20 00, TARIC 20: it is merely stated that the amendment is necessary ‘in order to take account of technical product developments and economic trends on the market’. Despite the requirements under the case-law, that statement does not enable the applicant to know the reasons for the measure so as to be able to defend its own rights; nor does it enable the EU Courts to exercise their powers of review. |
| --- | --- |

1.

Failure to state reasons for the decision, or failure to state adequate reasons. On this point, it is argued that inadequate reasons are given in the contested Regulation for the amendment to the description of the product designated by CN Code 8108 20 00, TARIC 20: it is merely stated that the amendment is necessary ‘in order to take account of technical product developments and economic trends on the market’. Despite the requirements under the case-law, that statement does not enable the applicant to know the reasons for the measure so as to be able to defend its own rights; nor does it enable the EU Courts to exercise their powers of review.

| 2. | Breach of the principles of legal certainty and the protection of the applicant’s legitimate expectations. According to the applicant, in so far as the contested Regulation concerns the description of the product in question, it fails to comply with the principle of legal certainty, in that the amendments made were not predictable on the basis of previous practice or the information given in the Commission Communication concerning autonomous tariff suspensions and quotas (OJ 1998 C 128, p. 2). That entails also breach of the principle of the protection of the legitimate expectations entertained by the applicant, which had in good faith placed its trust in (i) the previous description and period of validity of the tariff suspension relating to the products in question, as provided under the legislation in force before the amendment and (ii) the criteria identifiable in previous practice and set out in the above Communication as the basis for any amendment of the description or for the premature cancellation of that tariff suspension. |
| --- | --- |

2.

Breach of the principles of legal certainty and the protection of the applicant’s legitimate expectations. According to the applicant, in so far as the contested Regulation concerns the description of the product in question, it fails to comply with the principle of legal certainty, in that the amendments made were not predictable on the basis of previous practice or the information given in the Commission Communication concerning autonomous tariff suspensions and quotas (OJ 1998 C 128, p. 2). That entails also breach of the principle of the protection of the legitimate expectations entertained by the applicant, which had in good faith placed its trust in (i) the previous description and period of validity of the tariff suspension relating to the products in question, as provided under the legislation in force before the amendment and (ii) the criteria identifiable in previous practice and set out in the above Communication as the basis for any amendment of the description or for the premature cancellation of that tariff suspension.

| 3. | Breach of the principle of equal treatment. According to the applicant, the contested Regulation introduces, without putting forward any plausible justification, a difference in treatment as between the importers of raw ingots from the fusion of titanium and titanium alloys, of a diameter of not more than 380 mm (for whom the tariff is suspended) and importers of titanium ingots of a greater diameter. |
| --- | --- |

3.

Breach of the principle of equal treatment. According to the applicant, the contested Regulation introduces, without putting forward any plausible justification, a difference in treatment as between the importers of raw ingots from the fusion of titanium and titanium alloys, of a diameter of not more than 380 mm (for whom the tariff is suspended) and importers of titanium ingots of a greater diameter.

| 4. | Breach of the principle of proportionality. The applicant maintains on this point that, so far as the product in question is concerned, the contested Regulation is disproportionate in relation to the purported need to ‘take account of technical product developments and economic trends on the market’, in that (i) there have been no economic or technical developments in the titanium alloy ingots sector which were so significant as to make it necessary for the import rules to undergo the amendment introduced by the contested Regulation and (ii) the drastic and unexpected nature of those amendments — which were not accompanied by a transitional period — is inconsistent with the aims pursued by that Regulation. |
| --- | --- |

4.

Breach of the principle of proportionality. The applicant maintains on this point that, so far as the product in question is concerned, the contested Regulation is disproportionate in relation to the purported need to ‘take account of technical product developments and economic trends on the market’, in that (i) there have been no economic or technical developments in the titanium alloy ingots sector which were so significant as to make it necessary for the import rules to undergo the amendment introduced by the contested Regulation and (ii) the drastic and unexpected nature of those amendments — which were not accompanied by a transitional period — is inconsistent with the aims pursued by that Regulation.

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| 20.11.2010 | EN | Official Journal of the European Union | C 317/44 |
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Action brought on 28 September 2010 — ESGE v OHIM — Kenwood Appliances Luxembourg (KMIX)

(Case T-444/10)

()

2010/C 317/78

Language in which the application was lodged: German

Parties

Applicant: ESGE AG (Bussnang, Switzerland) (represented by: J. Klink, 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: Kenwood Appliances Luxembourg SA (Luxembourg, Luxembourg)

Form of order sought

| — | Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 14 July 2010 in Case R 1249/2009-2; |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 14 July 2010 in Case R 1249/2009-2;

| — | Amend the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 14 July 2010 in Case R 1249/2009-2 so that the Opposition Division’s decision of 21 August 2008 in Case B 1252958 is annulled; |
| --- | --- |

—

Amend the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 14 July 2010 in Case R 1249/2009-2 so that the Opposition Division’s decision of 21 August 2008 in Case B 1252958 is annulled;

| — | Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs of the proceedings, including the costs incurred in the course of the appeal procedure. |
| --- | --- |

—

Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs of the proceedings, including the costs incurred in the course of the appeal procedure.

Pleas in law and main arguments

Applicant for a Community trade mark: Kenwood Appliances Luxembourg SA

Community trade mark concerned: the word mark ‘KMIX’ for goods in Classes 7 and 11

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

Mark or sign cited in opposition: the word mark ‘BAMIX’ for goods in Classes 7 and 40

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(1)(b) of Regulation (EC) No 207/2009 (1) as there is a likelihood of confusion between the marks at issue.

---

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

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| 20.11.2010 | EN | Official Journal of the European Union | C 317/45 |
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Action brought on 28 September 2010 — HerkuPlast Kubern v OHIM — How (eco-pack)

(Case T-445/10)

()

2010/C 317/79

Language in which the application was lodged: German

Parties

Applicant: HerkuPlast Kubern GmbH (Ering, Germany) (represented by: G. Würtenberger and R. Kunze, 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: Heidi A.T. How (Harrow, United Kingdom)

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 27 July 2010 in Case R 1014/2009-4; |
| --- | --- |

—

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 27 July 2010 in Case R 1014/2009-4;

| — | 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: Heidi A.T. How.

Community trade mark concerned: Figurative mark including the word element ‘eco-pack’, for goods in Class 16.

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

Mark or sign cited in opposition: German word mark and international registration ‘ECOPAK’ for goods in Class 20.

Decision of the Opposition Division: Opposition rejected.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009 (1) as there is a likelihood of confusion between the marks at issue, and infringement of Articles 75 and 76 of Regulation (EC) No 207/2009 in so far as the Board of Appeal dismissed altogether the existence of any likelihood of confusion, its reasoning is, at various points, inherently contradictory and it inappropriately rejected as irrelevant arguments submitted by the applicant that are in fact relevant.

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

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| 20.11.2010 | EN | Official Journal of the European Union | C 317/45 |
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Appeal brought on 24 September 2010 by Luigi Marcuccio against the order of the Civil Service Tribunal delivered on 9 July 2010 in Case F-91/09, Marcuccio v Commission

(Case T-450/10 P)

()

2010/C 317/80

Language of the case: Italian

Parties

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

Other party to the proceedings: European Commission

Form of order sought by the appellant

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

—

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

| — | Declare that the action at first instance, in relation to which the order under appeal was made, was perfectly admissible. |
| --- | --- |

—

Declare that the action at first instance, in relation to which the order under appeal was made, was perfectly admissible.

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

—

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

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

—

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

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

—

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

Pleas in law and main arguments

The present appeal is brought against the order of the Civil Service Tribunal (CST) of 9 July 2010. That order dismissed as partly manifestly inadmissible and partly unfounded an action which sought primarily compensation for damage which the appellant claims to have suffered as a result of a request sent to him to undergo certain medical examinations necessary for the purpose of any assessment as to his invalidity.

In support of his claims, the appellant submits that no reasons are stated whatsoever in the order under appeal in support of the findings relating to the alleged inadmissibility of the claim for damages.

The appellant also alleges unreasonable misinterpretation and misapplication Article 270 TFEU, Article 90 of the Staff Regulations of Officials of the European Union, the principles of legal certainty, the right to judicial protection, the hierarchy of sources of law, the separation of powers and of the principle that the court is subject to the law.

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| 20.11.2010 | EN | Official Journal of the European Union | C 317/46 |
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Action brought on 28 September 2010 — Fuchshuber Agrarhandel v Commission

(Case T-451/10)

()

2010/C 317/81

Language of the case: German

Parties

Applicant: Fuchshuber Agrarhandel GmbH (Hörsching, Austria) (represented by: G. Lehner, lawyer)

Defendant: European Commission

Form of order sought

| — | conduct a hearing; |
| --- | --- |

—

conduct a hearing;

| — | order the Commission of the European Communities to pay the applicant within 14 days the sum of EUR 2 623 282,31, together with interest of 6 % per annum on the sum of EUR 1 641 372,50 Euro from 24 September 2007 and interest of 6 % per annum on the sum of EUR 981 909,81 from 16 October 2007; |
| --- | --- |

—

order the Commission of the European Communities to pay the applicant within 14 days the sum of EUR 2 623 282,31, together with interest of 6 % per annum on the sum of EUR 1 641 372,50 Euro from 24 September 2007 and interest of 6 % per annum on the sum of EUR 981 909,81 from 16 October 2007;

| — | declare that the Commission of the European Communities is obliged to compensate the applicant for any further losses in connection with consignment KUK459 awarded on 3 September 2007 and consignment KUK465 awarded on 17 September 2007; |
| --- | --- |

—

declare that the Commission of the European Communities is obliged to compensate the applicant for any further losses in connection with consignment KUK459 awarded on 3 September 2007 and consignment KUK465 awarded on 17 September 2007;

| — | rule that the Commission of the European Communities is to pay to the applicant’s lawyer the applicant’s costs within 14 days. |
| --- | --- |

—

rule that the Commission of the European Communities is to pay to the applicant’s lawyer the applicant’s costs within 14 days.

Pleas in law and main arguments

The applicant seeks compensation for the loss which it states that it has incurred because certain quantities of the maize purchased by it in 2007 from the stocks of the Hungarian intervention agency in two tender procedures were missing from the relevant warehouses.

In the grounds of its application, the applicant submits inter alia that the Commission failed to exercise its supervisory powers over the Hungarian paying agency and also did not insist on observance of the Hungarian paying agency’s obligations. It further states that it would have suffered no loss if the Commission had, in law and in fact, laid down more stringent and more precise requirements and control mechanisms in relation to the warehouse keepers’ fitness and reliability, to the suitability of the storage locations, and to stock surveys in respect of, and the identification and storage of, the intervention goods.

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European Union Civil Service Tribunal

| 20.11.2010 | EN | Official Journal of the European Union | C 317/47 |
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Judgment of the Civil Service Tribunal (First Chamber) of 30 September 2010 — van Heuckelom v European Police Office (Europol)

(Case F-43/09) (1)

(Civil Service - Staff Regulations of Europol - Article 29 - Advancement in step granted on the basis of staff reports - Plea of illegality of the decision establishing the policy for determining grades and steps - Respective powers of Europol’s Director and Management Board - Europol’s Director’s discretion - Limits)

2010/C 317/82

Language of the case: Dutch

Parties

Applicant: Carlo van Heuckelom (The Hague, Netherlands) (represented by: W.J. Dammingh and N.D.Dane, lawyers)

Defendant: European Police Office (Europol) (represented by: D. Neumann and D. El Khoury, Agents, assisted initially by B. Wägenbaur and R. Van der Hout, lawyers, then by B. Wägenbaur, lawyer)

Re:

Annulment of the decision of 14 July 2008 awarding the applicant a single step of classification in grade and of the decision of 19 January 2009 rejecting the complaint brought against the first decision

Operative part of the judgment

The Tribunal:

| 1. | Dismisses Mr. van Heuckelom’s action; |
| --- | --- |

1.

Dismisses Mr. van Heuckelom’s action;

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

2.

Orders each party to bear its own costs.

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(1)  OJ C 180, 01/08/2009, p. 63.

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Judgment of the Civil Service Tribunal (First Chamber) of 14 September 2010 — Da Silva Pinto Branco v Court of Justice

(Case F-52/09) (1)

(Civil Service - Officials - Recruitment - Probationary official - Dismissal at the end of the probationary period - Rights of the defence - Evaluation of abilities - Judicial review)

2010/C 317/83

Language of the case: French

Parties

Applicant: Delfina Da Silva Pinto Branco (Luxembourg, Luxembourg) (represented by: M. Erniquin and C. Defago, lawyers)

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

Re:

First, application for annulment of the decision to dismiss the applicant. Next, application for the applicant to be established as an official or to be reinstated in her post as a probationary official. Lastly, application for damages for non-pecuniary losses suffered

Operative part of the judgment

The Tribunal:

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

1.

Dismisses the action;

| 2. | Orders Mrs Da Silva Pinto Branco to pay all the costs. |
| --- | --- |

2.

Orders Mrs Da Silva Pinto Branco to pay all the costs.

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(1)  OJ C 244, 10/10/2009, p. 16.

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| 20.11.2010 | EN | Official Journal of the European Union | C 317/48 |
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Judgment of the Civil Service Tribunal (First Chamber) of 14 September 2010 — AE v Commission

(Case F-79/09)

(Civil Service - Officials - Social security - Occupational sickness and accident insurance - Article 73 of the Staff Regulations - Refusal to recognise the occupational origin of a disease - Hypersensitivity to electro-magnetic fields)

2010/C 317/84

Language of the case: French

Parties

Applicant: AE (Muchamiel, Spain) (represented by: L. Levi and M. Vandenbussche, lawyers)

Defendant: European Commission (represented by: initially, J. Currall and D. Martin, Agents, and, subsequently, J. Currall and J. Baquero Cruz, Agents)

Re:

Action for annulment, first, of the decision of the appointing authority dated 15 December 2008, received on 16 January 2009, rejecting the applicant’s request that his medical condition be recognised as an occupational disease within the meaning of Article 73 of the Staff Regulations and, second, so far as necessary action for annulment of the decision of 11 June 2009 rejecting the applicant’s complaint. Claim for EUR 12 000 damages in compensation for non-material damage suffered

Operative part of the judgment

The Tribunal:

| 1. | Orders the European Commission to pay AE the sum of EUR 2 000; |
| --- | --- |

1.

Orders the European Commission to pay AE the sum of EUR 2 000;

| 2. | Dismisses the remainder of the claims in the action; |
| --- | --- |

2.

Dismisses the remainder of the claims in the action;

| 3. | Orders the European Commission to bear its own costs and pay a quarter of the applicant’s; |
| --- | --- |

3.

Orders the European Commission to bear its own costs and pay a quarter of the applicant’s;

| 4. | Orders the applicant to bear three quarters of his or her own costs. |
| --- | --- |

4.

Orders the applicant to bear three quarters of his or her own costs.

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| 20.11.2010 | EN | Official Journal of the European Union | C 317/48 |
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Official Journal of the European Union

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Judgment of the Civil Service Tribunal (First Chamber) of 14 September 2010 — Rossi Ferreras v Commission

(Case F-85/09) (1)

(Civil Service - Officials - 2001/2002 Appraisal - Career Development Report - Compliance with an annulling judgment - Effects of the withdrawal of an act - Establishment of the objectives)

2010/C 317/85

Language of the case: French

Parties

Applicant: Francisco Rossi Ferreras (Luxembourg, Luxembourg) (represented by: F. Frabetti, lawyer)

Defendant: European Commission (represented by: G. Berscheid and C. Berardis-Kayser, Agents)

Re:

Action for annulment of the applicant’s Career Development Report for the period from 1 July 2001 to 31 December 2002

Operative part of the judgment

The Tribunal:

| 1. | Dismisses Mr Rossi Ferreras’s action; |
| --- | --- |

1.

Dismisses Mr Rossi Ferreras’s action;

| 2. | Orders Mr Rossi Ferreras to pay all the costs. |
| --- | --- |

2.

Orders Mr Rossi Ferreras to pay all the costs.

---

(1)  OJ C 312, 19/12/2009, p. 45.

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| 20.11.2010 | EN | Official Journal of the European Union | C 317/48 |
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Order of the Civil Service Tribunal (First Chamber) of 6 October 2010 — Marcuccio v Commission

(Case F-2/10) (1)

(Civil Service - Officials - Social security - Sickness insurance - Applications for payment of medical expenses - No act adversely affecting an official - Action manifestly inadmissible and manifestly lacking any foundation in law - Article 94 of the Rules of Procedure)

2010/C 317/86

Language of the case: Italian

Parties

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

Defendant: European Commission (represented by: J. Currall and C. Berardis-Kayser, Agents, assisted by A. Del Ferro, lawyer)

Re:

Application for annulment of the decision refusing a request for payment of 100 % of the applicant’s medical expenses

Operative part of the order

| 1. | Mr Marcuccio’s action is dismissed, in part as manifestly inadmissible and in part as manifestly lacking any foundation; |
| --- | --- |

1.

Mr Marcuccio’s action is dismissed, in part as manifestly inadmissible and in part as manifestly lacking any foundation;

| 2. | Mr Marcuccio is ordered to pay the costs; |
| --- | --- |

2.

Mr Marcuccio is ordered to pay the costs;

| 3. | Mr Marcuccio is ordered to pay the Tribunal the sum of EUR 1 500. |
| --- | --- |

3.

Mr Marcuccio is ordered to pay the Tribunal the sum of EUR 1 500.

---

(1)  OJ C 63, 13/03/2010, p. 53.

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| 20.11.2010 | EN | Official Journal of the European Union | C 317/49 |
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Action brought on 30 August 2010 — Cantisani v Commission

(Case F-71/10)

()

2010/C 317/87

Language of the case: French

Parties

Applicant: Nicola Cantisani (Brussels, Belgium) (represented by: S. de Lannoy, lawyer)

Defendant: European Commission

Subject-matter and description of the proceedings

Annulment of the Commission's decision rejecting the applicant's request for assistance in respect of harrassment and claim for compensation.

Forms of order sought

| — | Annul the decision of the Director of the Directorate General for Personnel and Administration of the Commission of 9 October 2009 (ADMIN.B2/JJ/jm 0(09)) whereby the adminstration decided it did not need to take action in respect of the applicant's request to the Commission for assistance of 29 January 2009; |
| --- | --- |

—

Annul the decision of the Director of the Directorate General for Personnel and Administration of the Commission of 9 October 2009 (ADMIN.B2/JJ/jm 0(09)) whereby the adminstration decided it did not need to take action in respect of the applicant's request to the Commission for assistance of 29 January 2009;

| — | Compensate the applicant for material and non-material damage suffered by reason of the acts of harrassment; |
| --- | --- |

—

Compensate the applicant for material and non-material damage suffered by reason of the acts of harrassment;

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

—

Order the European Commission to pay the costs.

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| 20.11.2010 | EN | Official Journal of the European Union | C 317/49 |
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Action brought on 30 August 2010 — Cantisani v Commission

(Case F-71/10)

()

2010/C 317/87

Language of the case: French

Parties

Applicant: Nicola Cantisani (Brussels, Belgium) (represented by: S. de Lannoy, lawyer)

Defendant: European Commission

Subject-matter and description of the proceedings

Annulment of the Commission's decision rejecting the applicant's request for assistance in respect of harrassment and claim for compensation.

Forms of order sought

| — | Annul the decision of the Director of the Directorate General for Personnel and Administration of the Commission of 9 October 2009 (ADMIN.B2/JJ/jm 0(09)) whereby the adminstration decided it did not need to take action in respect of the applicant's request to the Commission for assistance of 29 January 2009; |
| --- | --- |

—

Annul the decision of the Director of the Directorate General for Personnel and Administration of the Commission of 9 October 2009 (ADMIN.B2/JJ/jm 0(09)) whereby the adminstration decided it did not need to take action in respect of the applicant's request to the Commission for assistance of 29 January 2009;

| — | Compensate the applicant for material and non-material damage suffered by reason of the acts of harrassment; |
| --- | --- |

—

Compensate the applicant for material and non-material damage suffered by reason of the acts of harrassment;

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

—

Order the European Commission to pay the costs.

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| 20.11.2010 | EN | Official Journal of the European Union | C 317/49 |
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20.11.2010

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Official Journal of the European Union

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Action brought on 24 September 2010 — Dubus v Parliament

(Case F-86/10)

()

2010/C 317/89

Language of the case: French

Parties

Applicant: Charles Dubus (Tervuren, Belgium) (represented by: E. Boigelot and S. Woog, lawyers)

Defendant: European Parliament

Subject-matter and description of the proceedings

Annulment of the decision by the European Parliament not to include the applicant in the list of officials promoted from grade AST3 to AST4 for the 2009 promotions year.

Forms of order sought

| — | Annul the decision by the European Parliament not to include the applicant in the list of officials promoted from grade AST3 to AST4 for the 2009 promotions year; |
| --- | --- |

—

Annul the decision by the European Parliament not to include the applicant in the list of officials promoted from grade AST3 to AST4 for the 2009 promotions year;

| — | in consequence of such annulment, carry out a fresh comparative examination of the merits of the applicant and other candidates for the 2009 promotions year and promote the applicant to grade AST4 with retrospective effect from 1 January 2009; interest on arrears of remuneration as from 1 January 2009 at two points above the European Central Bank rate for main refinancing operations; |
| --- | --- |

—

in consequence of such annulment, carry out a fresh comparative examination of the merits of the applicant and other candidates for the 2009 promotions year and promote the applicant to grade AST4 with retrospective effect from 1 January 2009; interest on arrears of remuneration as from 1 January 2009 at two points above the European Central Bank rate for main refinancing operations;

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

—

order the European Parliament to pay the costs.

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| 20.11.2010 | EN | Official Journal of the European Union | C 317/50 |
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20.11.2010

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Official Journal of the European Union

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Action brought on 27 September 2010 — Van Asbroeck v Commission

(Case F-88/10)

()

2010/C 317/90

Language of the case: French

Parties

Applicant: Marc Van Asbroeck (Dilbeek, Belgium) (represented by: S. Rodrigues, A. Blot and C. Bernard-Glanz, lawyers)

Defendant: European Commission

Subject-matter and description of the proceedings

Application: (1) for annulment of the Commission's decision rejecting the applicant's claim for the partial setting aside of the Commission's decision of 22 October 2008 concerning the introduction of an indemnity in favour of officials who changed category before 1 May 2004; (2) that he be reclassified, with retrospective effect from 1 May 2004, in Grade D*4/8; and (3) that his career be reconstituted in accordance with the promotions, annual adaptations and advances in step affecting him since that time.

Form of order sought

| — | Order the Commission to adopt an express position on the table drawn up by the applicant to compare his actual salary progression with the salary progression he would have enjoyed if he had not changed category before 1 May 2004; |
| --- | --- |

—

Order the Commission to adopt an express position on the table drawn up by the applicant to compare his actual salary progression with the salary progression he would have enjoyed if he had not changed category before 1 May 2004;

| — | annul the Commission's decision rejecting the applicant's claim for the setting aside of the third sentence of Article 1(3) of the Commission's decision of 22 October 2008 concerning the introduction of an indemnity in favour of officials who changed category before 1 May 2004; reclassify the applicant with retrospective effect from 1 May 2004, in Grade D*4/8; reconstitute the applicant's career in accordance with the promotions, annual adaptations and advances in step affecting him since that time; and, in so far as necessary, annul the decision rejecting the complaint; |
| --- | --- |

—

annul the Commission's decision rejecting the applicant's claim for the setting aside of the third sentence of Article 1(3) of the Commission's decision of 22 October 2008 concerning the introduction of an indemnity in favour of officials who changed category before 1 May 2004; reclassify the applicant with retrospective effect from 1 May 2004, in Grade D*4/8; reconstitute the applicant's career in accordance with the promotions, annual adaptations and advances in step affecting him since that time; and, in so far as necessary, annul the decision rejecting the complaint;

| — | order the Commission to pay a sum provisionally fixed at EUR 13 218,24 by way of compensation for financial loss, plus interest for delay at the statutory rate dating from the judgment to be given; |
| --- | --- |

—

order the Commission to pay a sum provisionally fixed at EUR 13 218,24 by way of compensation for financial loss, plus interest for delay at the statutory rate dating from the judgment to be given;

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

—

order the European Commission to pay the costs.

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| 20.11.2010 | EN | Official Journal of the European Union | C 317/50 |
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Order of the Civil Service Tribunal of 16 September 2010 — Block and Others and Knaul and Others v Commission

(Joined Cases F-8/05 and F-10/05) (1)

()

2010/C 317/91

Language of the case: French

The President of the First Chamber has ordered that the cases be removed from the register.

---

(1)  OJ C 115, 14.5.2005, p. 33 and p. 36.

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Order of the Civil Service Tribunal of 16 September 2010 — Avendano and Others v Commission

(Case F-45/06) (1)

()

2010/C 317/92

Language of the case: French

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

---

(1)  OJ C 143, 17.6.2006, p. 39.

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Order of the Civil Service Tribunal of 16 September 2010 — Baele and Others v Commission

(Case F-70/06) (1)

()

2010/C 317/93

Language of the case: French

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

---

(1)  OJ C 190, 12.8.2006, p. 36.

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| 20.11.2010 | EN | Official Journal of the European Union | C 317/51 |
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C 317/51

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Order of the Civil Service Tribunal of 16 September 2010 — Blank and Others v Commission

(Case F-103/06) (1)

()

2010/C 317/94

Language of the case: French

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

---

(1)  OJ C 261, 28.10.2006, p. 35.

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| 20.11.2010 | EN | Official Journal of the European Union | C 317/51 |
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Order of the Civil Service Tribunal of 16 September 2010 — Ernotte v Commission

(Case F-90/09) (1)

()

2010/C 317/95

Language of the case: French

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

---

(1)  OJ C 11, 16.1.2010, p. 41.

---